Padgett v. Wal-Mart Stores East, Limited Partnership

Filing 93

MEMORANDUM OPINION & ORDER: GRANTING dft's 24 MOTION for Summary Judgment. Signed by Judge Joseph M. Hood on 9/15/17.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
RICAHRD PADGETT,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
WAL-MART STORES EAST,
LIMITED PARTNERSHIP
Defendant.

Civil No. 5:16-cv-394-JMH

MEMORANDUM OPINION AND ORDER

*****
This matter is before the Court on Defendant’s Motion for
Summary Judgment [DE 24].

Plaintiff responded [DE 33], Defendant

replied [DE 49], and this motion is now ripe for review.

For the

reasons stated below, Defendant’s motion will be granted.
Factual Background
On May 1, 2015, Plaintiff Richard Padgett visited Walmart
Store #3894, located at 2350 Grey Lag Way, Lexington, Kentucky to
do some shopping.
mobility.

He arrived using a walker to assist in his

He dropped off the walker at the service desk near the

store entrance, obtained an electronic shopping cart, and rode in
it to the men’s restroom near the front of the store.

Plaintiff

left the electronic shopping cart outside the men’s restroom and
went inside, walking without the assistance of a walker or cart.
Plaintiff used the handicapped-accessible stall while standing up,
flushed the toilet, exited the stall, and proceeded towards the

1

exit when he fell “face first” onto the bathroom floor.

Plaintiff

admits he did not see any liquid or object on the floor, or any
defect with the floor prior to his fall.

Plaintiff did not feel

any liquid on the floor with his hands; however, when he was on
the emergency medical services (EMS) stretcher, he observed a damp
spot on his pants about the size of a softball.

Plaintiff argues

this proves there was liquid on the floor which was absorbed onto
his pants, and that it was that liquid which caused him to slip
and fall.
result

of

Defendant argues Plaintiff simply fell, likely as a
his

hyperglycemia.

unsteadiness/preexisting

health

problems

or

Defendant argues there was no liquid on the floor,

and supports this with photographs of the dry restroom floor after
the incident and a witness statement that Plaintiff “simply lost
his balance and fell.”
extensive

medical

[DE 24, Ex. 3 and 7].

treatment

attributes to the fall.

after

the

fall,

Plaintiff had
which

Plaintiff

Defendant largely attributes the medical

treatment to other causes, such as Plaintiff’s diabetic foot ulcer,
which predated the fall.
Applicable Law
Defendant

removed

diversity jurisdiction.

this

case

to

federal

28 U.S.C. § 1332.

court

based

on

Accordingly, Kentucky

substantive slip-and-fall law applies in this case.

Federal law

governs the procedural aspects of this case, including the summary
judgment standard.

Hanna v. Plumer, 380 U.S. 460, 465 (1965)
2

(“federal courts are to apply state substantive law and federal
procedural law.”); See also Erie R. Co. v. Tompkins, 304 U.S. 64
(1938).
Summary judgment is appropriate when 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).

If there is

a dispute over facts that might affect the outcome of the case
under governing law, then entry of summary judgment is precluded.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The

moving party has the ultimate burden of persuading the court that
there are no disputed material facts and that he is entitled to
judgment as a matter of law.

Id.

Once a party files a properly supported motion for summary
judgment by either affirmatively negating an essential element of
the

non-moving

party’s

claim

or

establishing

an

affirmative

defense, “the adverse party ‘must set forth specific facts showing
that there is a genuine issue for trial.’”
Fed. R. Civ. P. 56(e)).

Id. at 250 (quoting

“The mere existence of a scintilla of

evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].”
determining

whether

the

“evidence

Id. at 252.

presents

a

In

sufficient

disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law[,]” the
3

Court must review the facts and draw all reasonable inferences in
favor of the non-moving party.

Booker v. Brown & Williamson

Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989); Anderson, 477
U.S. at 255).
Regarding the substantive Kentucky law, this case presents a
claim based on premises liability, which requires a plaintiff to
prove: “(1) a duty owed by the defendant to the plaintiff, (2)
breach of that duty, (3) injury to the plaintiff, and (4) legal
causation

between

the

defendant's

breach

and

the

plaintiff's

injury.”

Wright v. House of Imports, Inc., 381 S.W.3d 209, 213

(Ky. 2012).
With respect to the element of duty, Kentucky courts use a
burden-shifting approach.

Lanier v. Wal-Mart Stores, Inc., 99

S.W.3d 431 (Ky. 2003).
Under Lanier, the customer retains the burden
of proving that: (1) he or she had an encounter
with a foreign substance or other dangerous
condition on the business premises; (2) the
encounter was a substantial factor in causing
the accident and the customer's injuries; and
(3) by reason of the presence of the substance
or condition, the business premises were not
in a reasonably safe condition for the use of
business invitees.
Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky. 2003).

If

Plaintiff can so prove, there is a rebuttable presumption of
negligence and the burden shifts to Wal-Mart to prove the absence
of negligence by showing that it exercised reasonable care in

4

maintaining its premises.

Id.

To succeed on its motion for

summary judgment, Defendant must demonstrate there is no genuine
issue of material fact regarding one of the elements of Plaintiff’s
claim.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Analysis

The first two elements of Plaintiff’s claim under the Lanier
burden-shifting scheme are at issue in this case. Defendant, using
Plaintiff’s deposition testimony, argues there was no dangerous
condition giving rise to liability.

[DE 24, p. 8].

Defendant

correctly points out that Plaintiff testified he found the restroom
clean, did not see any liquid or tripping hazard on the floor, did
not feel any liquid on the floor with his hands, and no one told
him there was any liquid on the floor.
Deposition of Plaintiff, pp. 72-95].
extensive

medical

history

prior

to

[DE 24, p. 8, and Ex. 1,

Defendant notes Plaintiff’s
the

fall,

which

included

incontinence, Parkinson’s disease, gait disturbance, and foot
drop.

[DE 24, p. 6 and Plaintiff’s medical record, Ex. 4].

Defendant’s theory of the case is that Plaintiff is an elderly
man, unsteady on his feet, who had a toileting mishap prior to
exiting the stall, and upon walking back to the exit without an
assistance device, fell due to his unsteadiness and/or other
medical conditions.
Plaintiff, on the other hand, argues he testified there was
“something damp on the floor” that “took [his] legs out from under
5

[him].”

[Id. at pp. 76 and 94-96].

Plaintiff testified he first

noticed a damp spot on the exterior portion of his right pant leg
after the fall.

Although Plaintiff uses a walker and an electric

scooter, prior to the fall he was able to walk in stores, at least
some distances, without assistance devices. [Id. at p. 111].
Plaintiff states he entered the restroom and used it without his
walker, left the stall, and fell.

After falling, Plaintiff says

he saw a damp spot on his pants that he did not see prior to the
fall, and that this spot on his pants was from liquid which caused
his fall.
Plaintiff’s

entire

case

depends

on

the

jury

believing

Plaintiff that the wet spot on his pants appeared only after the
fall, and concluding that it therefore came from the floor.

This

is not necessarily a far logical leap, although the Court can
imagine

numerous

Plaintiff’s pants.

alternate

explanations

for

the

liquid

on

However, there is a dearth of evidence or

testimony that the liquid on his pants was the cause of the fall.
Assuming,

arguendo, that there was liquid on the floor that

ultimately transferred to Plaintiff’s pants (there is, in fact, no
evidence to support this factual allegation), a jury would have to
make a second logical leap and assume this same small spot of
liquid—which was not see by Plaintiff or any other witness in
evidence before or after the accident—was the same liquid which
caused Plaintiff to slip, completely lose his footing and fall all
6

the way to the ground.

There are only two statements in the

entirety of the evidence before the Court that possibly suggest
any liquid on Plaintiff’s pants was also the cause of his fall:
Q: Do you know, one way or the other, Mr.
Padgett, what caused your fall?
A: There was something damp on the floor.
Q: How do you know that?
A: Well it took my legs out from under me, and
– I had a stain on my pants.
DE 24, Ex. 4, Deposition of Plaintiff, p. 76, ll. 2-8.
Q: Okay. Was there any particular color to the
dampness you noticed on your pants?
A: No, it was just damp.
Q: Do you have any knowledge, Mr. Padgett,
about what the source of that dampness was?
What liquid it was?
A: No. I didn’t see it until I slipped on it.
Q: So you didn’t observe the dampness until
after your incident?
A: Right.
[DE 24, Ex. 4, Deposition of Plaintiff, p. 95, ll. 24-25 and
p. 96, ll. 2-8.] These statements, read in the context of all of
Plaintiff’s testimony about his incident, are no more than a
speculative “scintilla” of evidence that he slipped on liquid on
the floor of the Wal-Mart bathroom. In the quote above, it appears
counsel and Plaintiff are talking about the dampness on Plaintiff’s
pants (not any liquid on the floor), though the wording is unclear.
7

Plaintiff states he did not see the liquid “until [he] slipped on
it[,]” which might imply that he saw liquid on the floor; however,
it is clear from the follow-up question and answer this is not
what Plaintiff meant.

Counsel asks “you did not observe the

dampness until after your incident?”

Plaintiff responds, “right.”

Furthermore, Plaintiff repeatedly testified that he did not see or
feel liquid on the floor at any time before or after his fall.
For example:
Q: At any point, when you were in the restroom,
did you actually see any type of liquid on the
floor?
A: No.
. . .
Q: Are you aware of any facts, based on what
you personally observed, that there was any
liquid or dampness on the floor before you
went into the stall?
A: Not that I am aware of.
. . .
Q: After your incident, did you observe liquid
or dampness anywhere other than your pants?
A: No. And I only observed that on my pants
when I got on the stretcher.
. . .
Q: So it wasn’t until after you got on the
stretcher that you observed that there was
some sort of -A: I think that’s right.

8

Q: dampness on your pants; is that correct?
A: I think so.
. . .
Q: Okay. And did you feel any sort of dampness
on the floor with your hands when you were
sitting – or when you were lifting yourself
up, or however you said it?
A: It was just cold. I – don’t remember any
dampness in the – my hands.
[DE 24, Ex. 4, Deposition of Plaintiff, p. 76, ll. 17-10; p.
79, ll. 17-20; p. 83, ll. 3-14; p. 97, ll. 8-9].
Considering all of the evidence in the record, in the light
most favorable to Plaintiff, Plaintiff’s argument requires a jury
to engage in not only logical leaps, but mental gymnastics to find
in favor of Plaintiff at trial.

No reasonable jury could do so.

The Court finds this case to be very similar to the Western
District of Kentucky case cited by Defendant, in which Plaintiff
maintained a “speculative hypothesis” about grease transferring to
her shoe and ultimately causing her fall, but had no actual
evidence to support her claim.

Smith v. Shake, 2016 WL 4180002,

at *3 (W.D. Ky. Aug. 5, 2016).

Like the plaintiff in Smith, who

saw nothing unusual on the bathroom floor where she fell, Plaintiff
repeatedly testified he did not see or feel any liquid on the
bathroom floor, and there is no evidence such liquid existed.
Plaintiff has speculated there must have been liquid on the floor
because he found liquid on his pants, and further surmised, without
9

evidence, that this liquid must have been the cause of his fall.
As Judge Russell stated, “such speculation is insufficient to
create a genuine issue of material fact[.]”

Id. (citing Jones v.

Abner, 335 S.W.3d 471, 475–76 (Ky. Ct. App. 2011) and Hazley v.
Wal-Mart Stores E., L.P., 2014 WL 5366115, at *3–4 (W.D. Ky. Oct.
21, 2014)).
Conclusion
For the reasons stated in this memorandum opinion and order,
Plaintiff’s claims will be dismissed with prejudice and judgment
will

be

entered

in

favor

of

Defendant.

The

Court

being

sufficiently advised, IT IS ORDERED that Defendant’s Motion for
Summary Judgment [DE 24] is GRANTED.
This 15th day of September, 2017.

10