Day v. Shopko Stores Operating Co., LLC et al

Filing 29

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 1/13/2017 denying Defendant Aramark's 16 Motion for Summary Judgment. cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00050-JHM
WANDA DAY

PLAINTIFF

V.

SHOPKO STORES
OPERATING CO., LLC

DEFENDANT/
THIRD PARTY PLAINTIFF

V.

ARAMARK UNIFORM
AND CAREER APPAREL, LLC

DEFENDANT/
THIRD PARTY DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Aramark Uniform and Career Apparel,
LLC’s (hereinafter “Aramark”) motion for summary judgment. [DN 16]. Fully briefed, this
matter is ripe for decision. For the reasons stated below, the motion is DENIED.
I. BACKGROUND
This matter concerns injuries sustained by the plaintiff while in a retail store. Plaintiff
Wanda Day was in the Defendant Shopko Stores Operating Company’s (hereinafter “Shopko”)
retail store in Munfordville, Kentucky on March 7, 2015, when she tripped and fell on a floor
mat in the store. This fall allegedly caused damage to Day’s left knee, among other injuries.
Day initiated this action against Shopko in Hart Circuit Court on December 1, 2015, alleging that
Shopko’s negligence caused her to fall and seeking damages for her injuries. [DN 7-6, exh. A].
On February 16, 2015, Shopko filed a third-party complaint against Aramark, claiming that
Aramark provided and placed the floor mat in the Shopko retail store, and that Shopko was
entitled to full indemnification from Aramark for any liability assigned to Shopko. [DN 7-6].

On March 1, 2016, Day amended her complaint to also assert negligence claims against
Aramark. [DN 1-1].
Aramark filed its notice of removal with this Court on April 19, 2016. [DN 1]. After
initial disclosures had been made by all parties, Aramark moved for summary judgment as to the
claims made by both Day and Shopko on the basis that Aramark had removed all of its floor
mats and other equipment from the Shopko store on March 3, four days before the accident.
[DN 16-1]. This Court deferred ruling on Aramark’s motion to allow for additional discovery as
to whether Aramark had removed its floor mats before March 7. [DN 23]. Following a period of
limited discovery, the parties supplemented their initial filings on the motion. [DN 26, 27, 28].
II. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to

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particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “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].”
Anderson, 477 U.S. at 252.
III. DISCUSSION
The period of limited discovery revealed that the floor mat in question was likely one
placed in Shopko’s retail store by Aramark. (See Dep. Ralph McKinney [DN 26-1] at 93.)
Thus, Aramark’s original argument for granting summary judgment, specifically that the mat
was in no way connected to Aramark, is untenable and the basis for its motion no longer exists.
Therefore, it is denied.
In its supplemental reply [DN 28], Aramark argues that summary judgment is still
appropriate, as the evidence demonstrates that Aramark owed no duty to Day to ensure the mat
was kept in a reasonably safe condition once Aramark completed its delivery of the mats. Day
also now argues in her supplemental response that summary judgment should be granted in favor
of Aramark. [DN 27, at 7].
If Plaintiff Day now believes her claim against Aramark is not viable, then she should
move to dismiss it. If Aramark has new support for a summary judgment motion, then it should
file one.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Defendant Aramark’s
motion for summary judgment is DENIED.
cc: counsel of record

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January 13, 2017