Sparks v. Kroger Limited Partnership I

Filing 63

MEMORANDUM OPINION & ORDER: Kroger's motion for summary judgment is GRANTED. Judgment in favor of the Defendant shall be entered contemporaneously herewith. Signed by Judge Gregory F. VanTatenhove on 01/02/2019.(KJA)cc: COR, London Diary, Jury Clerk

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
EVELYN SUE SPARKS

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Plaintiff,
V.
KROGER LIMITED PARTNERSHIP I,
Defendant/Third-Party Plaintiff
V.
VILLAGE SQUARE SHOPPING
CENTER, LLLP
Defendant/Third-Party Defendant

Civil No. 6:17-cv-00147-GFVT
MEMORANDUM OPINION
&
ORDER

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I.
Evelyn Sparks fell on the walkway leading into Kroger. [R. 47 at 2.] Afterwards she
sued for her injuries. [R. 1-1.] Seeking to limit its liability, Kroger brought a third-party claim
against its landlord, Village Square. [R. 1-4.] Sparks followed, but her claim against Village
Square was time-barred. [R. 45.] As a result, only Sparks’ claim against Kroger remains. [R.
46-1.] Kroger thinks this remaining claim should be dismissed on summary judgment because
they did not owe a duty of care to Sparks. [R. 46-1] The Court agrees and for the forgoing
reasons that motion is GRANTED.
II.
A.
This action is in federal court based on diversity jurisdiction, 28 U.S.C. § 1332. Because

Kentucky is the forum state, its substantive law will be used. Rawe v. Liberty Mut. Fire Ins. Co.,
462 F.3d 521, 526 (6th Cir.2006) (citations omitted). However, federal procedural law will
govern as applicable, including in establishing the appropriate summary judgment standard.
Weaver v. Caldwell Tanks, Inc., 190 Fed.Appx. 404, 408 (6th Cir.2006).
Summary judgment is appropriate when “the pleadings, discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex
Corp. v. Catrett, 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A genuine
dispute exists on a material fact, and thus summary judgment is improper, if the evidence shows
‘that a reasonable jury could return a verdict for the nonmoving party.’” Olinger v. Corp. of the
President of the Church, 521 F.Supp.2d 577, 582 (E.D.Ky.2007) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party has
the initial burden of demonstrating the basis for its motion and identifying those parts of the
record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co.,
Inc., 285 F.3d 415, 424 (6th Cir.2002). The movant may satisfy its burden by showing “that there
is an absence of evidence to support the non-moving party's case.” Celotex Corp., 477 U.S. at
325, 106 S.Ct. 2548. Once the movant has satisfied this burden, the nonmoving party must go
beyond the pleadings and come forward with specific facts to demonstrate there is a genuine
issue in dispute. Hall Holding, 285 F.3d at 424 (citing Celotex Corp., 477 U.S. at 324, 106 S.Ct.
2548).
The Court must then determine “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
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matter of law.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989)
(quoting Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505). In making this determination, the Court
must review the facts and draw all reasonable inferences in favor of the non-moving party.
Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001) (citing Anderson, 477 U.S. at 255, 106
S.Ct. 2505). Summary judgment is inappropriate where there is a genuine conflict “in the
evidence, with affirmative support on both sides, and where the question is which witness to
believe.” Dawson v. Dorman, 528 Fed.Appx. 450, 452 (6th Cir.2013).
B.
To prevail on a negligence claim under Kentucky law, the plaintiff must prove that the
defendant 1) owed the plaintiff a duty of care, 2) the defendant breached the standard of care by
which his or her duty is measured, and 3) that the breach was the legal causation of the
consequent injury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88–89 (Ky.2003); Wright v.
House of Imports, Inc., 381 S.W.3d 209, 213 (Ky.2012). The element of duty is a question of law
for the court to decide, breach and injury are questions of fact for the jury to decide, and
causation is a mixed question of law and fact. Pathways, Inc., 113 S.W.3d at 89 (citing Deutsch
v. Shein, 597 S.W.2d 141, 145 (Ky.1980)). If there is a genuine dispute as to any material fact
concerning the elements of duty, breach, or causation, such that a reasonable jury could find that
Kroger was negligent, the Court cannot grant summary judgment. Anderson, 477 U.S. at 255,
106 S.Ct. 2505.
A defendant can only owe a duty to a plaintiff if they are the possessor of the land where

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the accident happened. 1 Shelton v. Ky. Easter Seals Soc’y, Inc., 413 S.W.3d 901, 909 (Ky.
2013). Therefore, who possessed the walkway—either Kroger or Village Square—where Sparks
fell decides this motion. Kroger alleges that by operation of contract and performance, Village
Square was the possessor of the walkway. Sparks disagrees. Nonetheless, Kroger must prevail
because even taking all inferences in the plaintiff’s favor still shows that Kroger is correct.
Both parties agree that Village Square retained by contract responsibility over all
Common Areas and the parking lot. [R.46-1; R. 47.] And, in these Common Areas, Village
Square was required to repair and maintain, keep clean, remove snow and ice, and keep the space
lighted during business hours. There the parties’ agreement ends. Kroger contends that the
walkway is a Common Area in possession of Village Square. Sparks counters that the plain text
of the contract, which defines Common Areas as those not covered by a store, forecloses
Kroger’s reading. Since the walkway is partially covered it cannot be a Common Area. By
implication, then, Kroger must be in possession.
For further support, Sparks points to an unpublished case which sought to put a gloss on
the statutory definition of public thoroughfare. Krietemeyer v. City of Madisonville, 2018 WL
4037645 (Ky. Ct. App. 2018). In that case, the Kentucky Court of Appeals held that stairs
leading up to a police station were not a public thoroughfare because the stairs had limited public
access (no soliciting), could only be used to access the building, and were physically attached to
the building. Id. Contrary to Sparks assertions, those police station stairs are inapposite to the
walkway in front of Kroger. Here, the public had unfettered access to the walkway in front of

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Possession is assumed to be limited to one defendant because Sparks has pointed to no caselaw suggesting the
possibility of overlapping possessors.

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Kroger and could be used, at least in some capacity, by customer’s moving around the shopping
center. Yes, the walkway was attached to the Kroger building but so are most shopping center
sidewalks. To the degree that this provides a similarity between the police station stairs and the
walkway—it is illusory.
In response, Kroger’s argument about the purpose of the lease-term is persuasive.
Village Square’s duties in Common Areas included maintenance, repairs, and snow removal.
Each of these obligations would be necessary for the upkeep of this exposed concrete walkway.
The similarity of duties for keeping the walkway accessible to shoppers makes it like all the
other sidewalks in the development possessed by Village Square. While this argument is
convincing, it would not, by itself, be enough to grant summary judgment.
Instead, Kroger and Village Square’s understanding of the contract and course of
performance compels summary judgment. No doubt can be left that Village Square was in
possession of the walkway. Kroger’s manager testified that he believed in his professional
capacity that Village Square was responsible for the walkway and Village Square’s affidavit
confirmed the same. [R.46-1; R. 48.] Sparks seeks to undermine this evidence by noting that
Kroger sometimes picked-up trash or cleared snow from the walkway. But that is not enough.
Kroger’s intermittent performance of extra-contractual duties only shows that Kroger sought to
keep its customer’s satisfied; it does not show an assumption of possession. Nor does logic or
the law support inventing an implied duty. Imposing liability under these facts would reduce
prosocial behavior; precisely the opposite goal of creating such a duty.
In a similar vein, Sparks alleges that Kroger’s placement of merchandise displays and
shopping carts, as well as certain third-party items shows possession. [R. 47.] This argument is
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equally unavailing. Just as a child’s items placed outside a parent’s apartment door does not
convert the hallway into the parent’s possession; the placement of various paraphernalia in the
walkway does not convert that walkway into Kroger’s possession.
Village Square had possession of the walkway. Therefore, if any duty was owed to
Sparks it was owed by Village Square. Unfortunately, Sparks’ claim against Village Square is
barred by time. This does not mean liability can be laid at the feet of Kroger. For that reason,
Kroger’s motion for summary judgment is GRANTED. Judgment in favor of the Defendant
shall be entered contemporaneously herewith.
This the 2nd day of January, 2019.

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