Schmidt et al v. Intercontinental Hotels Group Resources, Inc. et al
Filing
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MEMORANDUM OPINION & ORDER: The Court DENIES 37 Third-Party Defendant's MOTION for Summary Judgment by Bulls Eye Lawn And Landscape. Signed by Magistrate Judge Robert E. Wier on 10/12/2011.(GLD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
KAREN SCHMIDT AND JOSEPH
SCHMIDT,
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No. 5:10-CV-24-REW
Plaintiffs,
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v.
) MEMORANDUM OPINION AND ORDER
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INTERCONTINENTAL HOTELS GROUP )
RESOURCES, INC. AND HOTEL d/b/a
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HOLIDAY INN LEXINGTON,
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KENTUCKY,
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Third-Party Plaintiff/Defendant,
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v.
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BULLS EYE LAWN AND LANDSCAPE, )
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Third-Party Defendant.
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*** *** *** ***
Third-Party Defendant, Bulls Eye Lawn and Landscape (Bulls Eye), by counsel, moved for
summary judgment as to all counts listed in the Third-Party Complaint. DE #37 (Motion). ThirdParty Plaintiff/Defendant, Intercontinental Hotels Group Resources, Inc. and Hotel d/b/a Holiday Inn
Lexington, Kentucky (Defendant), responded in opposition, DE #38 (Response), and Bulls Eye
subsequently replied, DE #39 (Reply). Having reviewed the filings and full record under the required
standards, the Court DENIES Bulls Eye’s motion for summary judgment.
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I. Relevant Background1
This matter arises from Plaintiff Karen Schmidt’s alleged slip and fall on a patch of ice
outside the entrance to her hotel, the Holiday Inn in Lexington, Kentucky, on the evening of January
30, 2009. DE #1 (Complaint) ¶¶ 1, 15. Plaintiff seeks recovery based on Defendant’s alleged failure
to maintain the premises in a reasonably safe condition for use by its guests. Id. ¶¶ 14-16. Defendant
seeks either indemnification from or apportionment regarding Bulls Eye. DE #23 (Third-Party
Complaint). Defendant claims that Bulls Eye was present on the Holiday Inn property on the day of
Plaintiff’s fall and assisted with snow and ice removal from both the parking lot and the sidewalks,
and thus, Bulls Eye owed a duty to Plaintiff. Id.
Beginning in 2005, Defendant maintained an oral contract with Bulls Eye to assist with snow
and ice removal from its property. DE #38-4 (Response). The parties did not have a set “policy”
covering the scope of Bulls Eye’s work. Id. Instead, Bulls Eye performed plowing and snow removal
services only when and as demanded by Defendant. Id. Bulls Eye typically plowed the driveway and
parking lot and spread rock salt throughout but also did assist with shoveling sidewalks as requested.
Id. Bulls Eye’s billing statement, invoiced to Defendant on February 18, 2009, indicates that Bulls
Eye performed plowing services on January 19, 26, 27, 28, 29, 30, and 31, and performed sidewalk
shoveling on January 19, 27, and 28. DE #37-3 (Motion). Holiday Inn did not maintain separate
records of Bulls Eye’s snow and ice removal. DE #38-6 (Response) ¶6.
Defendant contends that on January 30, 2009, Bulls Eye provided rock salt, shoveled the
sidewalks, and applied rock salt to the sidewalks. DE #38-6 (Response) ¶¶ 4-5. Bulls Eye denies
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In accordance with Federal Rule of Civil Procedure 56, the Court discusses the facts in
favor of Third-Party Plaintiff/Defendant, the non-movant.
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shoveling the sidewalks on January 30, 2009, and alleges it was present merely to spread rock salt
in the parking lot and driveway during the morning hours. DE #37-1 (Motion) at 4.
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary judgment shall be granted “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence
and draw all reasonable inferences from the underlying facts in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986); Lindsay v. Yates,
578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not “weigh the evidence and
determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc.,
106 S. Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine issue of material fact initially rests with
the moving party. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986) (requiring the moving party
to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 at 414 (“The
party moving for summary judgment bears the initial burden of showing that there is no material
issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving
party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S. Ct. at
2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the
entry of summary judgment . . . against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the burden
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of proof at trial.” Celotex Corp. at 106 S. Ct. at 2552.
A fact is “material” if the underlying substantive law identifies the fact as an essential
element. Anderson, 106 S. Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists
if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 (“Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’”) (citation omitted). Such evidence must be admissible at trial. Salt Lick Bancorp.
v. FDIC, 187 F. App’x 428, 444-45 (6th Cir. 2006).
III. Analysis
Bulls Eye seeks summary judgment on the ground that there is no genuine dispute of material
fact as to whether it assisted with sidewalk snow and ice removal on January 30, 2009. Thus, if Bulls
Eye did not participate in sidewalk snow and ice removal, it did not owe a duty to either Plaintiff or
Defendant and cannot be liable to Defendant for indemnity or included in apportionment.2
Defendant denies all liability to Plaintiffs but conditionally seeks indemnity or apportionment and
argues that summary judgment is inappropriate because the scope of Bulls Eye’s work on January
30, 2009, is in genuine dispute.
At the outset, the Court notes that this action is not a classic indemnity case. Indemnity in tort
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Bulls Eye also seeks summary judgment against Plaintiff Karen Schmidt on the ground
that it did not owe a duty to Plaintiff based on the allegations contained within Plaintiffs’
amendment complaint. The record does not reveal any amended complaint setting forth
allegations by Plaintiff against Bulls Eye.
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is available when “two persons are liable in tort to a third person for the same harm and one of them
discharges the liability of both.” Restatement (Second) of Torts § 886B(1). This Section explains that
indemnity is granted if the “indemnitor created a dangerous condition of land or chattels as a result
of which both were liable to the third person, and the indemnitee innocently or negligently failed to
discover the defect.” Id. § 886B(2)(e).
The Comments to Section 886B indicate that an indemnitee recovers from an indemnitor
because the latter’s conduct was more blameworthy than the former’s. Id. § 886B cmt. a. Thus,
“[t]he basis for indemnity is restitution.” Id. § 886B cmt. c. Holiday Inn alleges that Bulls Eye “was
the primary and efficient cause of the Plaintiff’s injury,” DE #38 (Response) at 4-5, but Holiday Inn
also acknowledges in its answers to interrogatories that its maintenance department is responsible
for and actively involved in clearing off sidewalks and stairs, DE# 37-5. As developed thus far, the
record likely would not support an indemnification instruction. Classically, indemnity does not apply
to parties in pari delicto. See York v. Petzl Am., Inc., 2010 WL 3717266, *4 (Ky. Ct. App. 2010).
Bulls Eye frames the issue for summary judgment as one of duty, a question of law, but the
true issue is undoubtedly one of fact. Bulls Eye supports its argument with an affidavit, answers to
interrogatories, and other documents, all forms of proof contemplated by Rule 56(c). Fed. R. Civ.
P. 56(c). Movant argues that it did not participate in sidewalk snow and ice removal on January 30,
2009, and that its sole relevant contact with Holiday Inn was ten hours prior to Plaintiff’s fall and
was limited to delivering and spreading rock salt on the hotel’s driveway and parking lot. DE #37-1
(Motion) at 3-4. Bulls Eye’s tendered Affidavit from Jacob Miller swears that Bulls Eye assisted in
sidewalk shoveling only if specifically requested by Holiday Inn, and that Bulls Eye did not assist
in laying down ice melt on the sidewalks on the fateful day. DE #37-4 (Motion) at 2. Mr. Miller
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further swears that Bulls Eye’s work for Holiday Inn on both January 29 and 30, 2009, did not
include any kind of sidewalk snow and ice removal. Id.
In Response, Holiday Inn submits an Affidavit from James Springer, the Chief Engineer and
head of maintenance at Holiday Inn Lexington at the time of Plaintiff’s fall, swearing that on January
30, 3009, Bulls Eye assisted in shoveling the sidewalks prior to Bulls Eye’s application of rock salt
to the sidewalks. DE #28-6 (Response). Bulls Eye’s Reply provides additional, circumstantial
evidence and maintains that summary judgment is appropriate, regardless of Holiday Inn’s tendered
affidavit. DE #39 (Reply) at 2. Bulls Eye points to Defendant’s admissions that (1) Holiday Inn’s
maintenance department is responsible for sidewalk shoveling and (2) Holiday Inn also purchases
ice melt from a third-party distributor. Id. Further, Bulls Eye contends its invoice indicates the days
that Holiday Inn requested sidewalk shoveling services, and the line item for January 30, 2009,
charges Bulls Eye only for spreading rock salt in the parking lot and driveway areas. Id.; DE #38-5
(Response).
Although Bulls Eye claims (correctly) that “[t]his is not an instance where the only evidence
is conflicting affidavits,” its proffer nevertheless fails to demonstrate the absence of a genuine
dispute of material fact. The scope of Bulls Eye’s work on January 30, 2009, is an issue of fact
material to the case, and Holiday Inn’s tendered affidavit suffices to place the fact issue in genuine
dispute. The Court cannot weigh the evidence or determine its truth at the summary judgment
stage—its sole function is to determine whether there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 106 S. Ct. 2505, 2510-11 (1986). The record presents a classic swearing contest between
sentient witnesses as to whether Holiday Inn requested (and Bulls Eye subsequently performed)
sidewalk snow and ice removal services. Holiday Inn’s contradictory Affidavit may ultimately be
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outweighed but here is more than mere allegations. It is proper proof setting forth a factual matter
for trial. As a result, judgment as a matter of law is inappropriate.
Holiday Inn’s Response also addresses the fact that Bulls Eye performed sidewalk snow and
ice removal on the evening of January 28, 2009. DE #38 (Response) at 4. This fact alone does not
support the conclusion that Bulls Eye owed either Plaintiff or Holiday Inn a duty on January 30,
2009, and by itself would be insufficient to survive summary judgment. As both parties note, the
catastrophic ice storm continued for days. Simply providing snow and ice removal services fortyeight hours to prior to Plaintiff’s fall does not place the scope of Bulls Eye’s work on January 30,
2009, in genuine dispute.
Finally, Defendant asserts that Bulls Eye’s Motion is premature because discovery in the case
is ongoing and only one deposition had been taken at the time of Bulls Eye’s filing. The Court notes
that Federal Rule of Civil Procedure 56(d) requires a nonmovant to support its claim for prematurity
by an “affidavit or declaration” asserting the specific reasons why it cannot present facts essential
to justify its opposition. Fed. R. Civ. P. 56(d). Holiday Inn did not file either in the instant case,
though the result moots the problem.
IV. Conclusion
For the reasons discussed above, the Court DENIES Third-Party Defendant Bulls Eye’s
Motion for Summary Judgment.
This the 12th day of October, 2011.
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