Alfaro v. Outback Steakhouse of Florida, LLC

Filing 46

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 10/31/2018. Defendant's Motion for Summary Judgment (DN 34 ) and Plaintiff's Motion for Leave to File Sur-Reply (DN 42 ) are DENIED. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:18-CV-00009-GNS-HBB
SARA NOEMI ALFARO

PLAINTIFF

v.
OUTBACK STEAKHOUSE OF FLORIDA, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment (DN 34) filed by
Defendant Outback Steakhouse of Florida, LLC (“Outback”) and Plaintiff’s Motion for Leave to
File Sur-Reply (DN 42). The motions are ripe for adjudication. For the reasons outlined below,
the motions are DENIED.
I.

STATEMENT OF FACTS AND CLAIMS

This case arises from a slip and fall at Outback’s Bowling Green, Kentucky, restaurant on
April 23, 2017. (Alfaro Dep. 22:2-6, July 13, 2018, DN 34-2). Plaintiff Sara Noemi Alfaro
(“Alfaro”) entered the restaurant accompanied by her husband, Andres Ortiz (“Ortiz”), and their
friend, Anthony Hills (“Hills”). (Alfaro Dep. 22:2-8). An Outback employee was escorting the
party to their table when Alfaro slipped and fell in the dining area, dislocating her elbow. (Ortiz
Dep., 29:3-18, July 13, 2018, DN 34-3; Andrade Dep. 26:1-3, July 17, 2018, DN 35-1).
After Ortiz saw his wife fall, he felt the ground with his hand and detected a greasy or oily
substance. (Ortiz Dep. 52:2-24). Hills recalls seeing Alfaro fall then witnessing Ortiz move his
foot across the ground where his wife fell. Hills described what he saw on the floor where Ortiz
moved his foot as “a film of—it could be grease, it could've been salad dressing, but you could see

the streak as he rubbed his foot across of—like there was some sort of substance there on the
floor.” (Hills Dep. 33:13-16, July 13, 2018, DN 34-4). Hills testified that he did not see anyone
else slip and fall, nor did he notice anything on the floor before Alfaro’s fall. (Hills Dep. 29:410).
Two Outback employees, Katie Beth Henson and Chris Dinges (“Dinges”), inspected the
area after the fall and allegedly found no unsafe condition in the area. (Henson Dep. 23:21-25,
July 17, 2018, DN 34-5; Andrade Dep. 32:9-20, July 17, 2018, DN 41-4). Kayla Andrade
(“Andrade”), another Outback employee, testified that Dinges used a flashlight to inspect the floor,
looking for evidence of something that may have caused the fall. (Andrade Dep. 32:9-18, DN 414). While Outback has not produced testimony from Dinges directly, Andrade testified that Dinges
found nothing after conducting an inspection with the flashlight. (Andrade Dep. 32:19-20, DN
41-4).
II.

JURISDICTION

This Court has original jurisdiction of “all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, as is between . . . citizens of
different States . . . .” 28 U.S.C. § 1332(a)(1). Both parties are residents of different states. (Notice
Removal ¶¶ 3-4, DN 1). Additionally, Defendant believes Plaintiff has alleged damages that
satisfy the monetary threshold. (Notice Removal ¶ 6). See Williamson v. Aetna Life Ins. Co., 481
F.3d 369, 375 (6th Cir. 2007).
III.
A.

DISCUSSION

Defendant’s Motion for Summary Judgment (DN 34)

In ruling on a motion for summary judgment, the Court must determine whether there is
any genuine issue of material fact that would preclude entry of judgment for the moving party as

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a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating
the basis for the motion and identifying evidence in the record that demonstrates an absence of a
genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the
moving party satisfies its burden, the non-moving party must then produce specific evidence
proving the existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
While the Court must view the evidence in the light most favorable to the non-moving
party, the non-moving party must do more than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (citation omitted). Rather, the non-moving party must present specific facts proving
that a genuine factual dispute exists by “citing to particular parts of the 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 [nonmoving party’s] position will be insufficient” to overcome summary judgment. Anderson, 477
U.S. at 252.
This action concerns premises liability, a subsection of general negligence law. 1 See
Colyer v. Speedway, LLC, 981 F. Supp. 2d 634, 639 (E.D. Ky. 2013). Under Kentucky law, a
negligence claim requires (1) a duty owed to the plaintiff; (2) a breach of that duty; and (3) a causal
link between the breach and the harm to the plaintiff. Pathways, Inc. v. Hammons, 113 S.W.3d
85, 88-89 (Ky. 2003). In the context of premises liability, proprietors owe a duty to invitees to
exercise reasonable care to guard against dangerous conditions that the proprietor either knows

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In diversity actions, “federal courts apply state substantive law and federal procedural law.”
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 417 (1996). Therefore, the Court will apply
Kentucky’s substantive law.
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about or could have discovered and of which the invitee could not reasonably have been aware.
Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 432-33 (Ky. 2003); Smith v. Steak ‘n Shake, No.
3:14-CV-00642-TBR-LLK, 2016 WL 4180002, at *2 (W.D. Ky. Aug. 5, 2016).
Since 2003, Kentucky courts have applied a burden shifting analysis to slip and fall claims.
Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky. 2003). Under this approach, an invitee may
avoid summary judgment if:
(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.
Id. (citing Lanier, 99 S.W.3d at 435-36). If the invitee meets this threshold, then the burden shifts
to the proprietor to demonstrate it was not negligent. Id.
Outback contends that Plaintiff’s witnesses have offered insufficient testimony to establish
the presence of a hazardous condition. (Def.’s Mem. Supp. Mot. Summ. J. 7-9, DN 34-1
[hereinafter Def.’s Mot.]). Specifically, Outback argues that Plaintiff cannot prove the existence
of a foreign substance because Ortiz did not see the any substance on the floor after the fall. (Def.’s
Mot. Summ. J. 3). Further, Outback argues that Ortiz’s and Hills’ testimony concerning rags left
on a table near where Alfaro fell cannot be used to prove the existence of a hazardous condition.
(Def.’s Mot. 2, 3).
To the contrary, Alfaro has presented two witnesses who testified to the presence of a
foreign substance on the floor. Hills stated he saw something he could not identify but that
appeared to be a film on the floor when Ortiz moved his foot across the area where Alfaro fell.
(Ortiz Dep. 52:2-24; Hills Dep. 33:4-16). Though Ortiz testified he did not actually see what was
on the floor because his wife was in front of him and the floor was a dark color, he nevertheless

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specifically related that he felt with his fingers some kind of oily or greasy substance on the floor.
(Ortiz Dep. 29:19-30:8, 52:2-55:3). Additionally, Plaintiff herself testified she saw something
shiny on the floor after she fell, though she admits she does not know whether it was oil or not
because she was confused and injured. (Alfaro Dep. 59:14-20).
Ortiz’s testimony is not speculative. He testified to what he felt on the floor, and
Defendant’s arguments suggesting he should have been able to identify the oil or communicate its
presence to Outback employees does not destroy this evidence. Ortiz and Hills felt the floor and
directly observed the presence of an oily substance. It matters not at this juncture that these
witnesses could not identify the oily substance. For the purpose of establishing a prima facie case,
the direct observations of an oily substance in the area where Alfaro fell satisfied Plaintiff’s initial
burden.
Outback claims that two witnesses support its position that nothing was on the floor, but
this is not an exact reflection of the evidence presented to the Court. Henson testified that she
inspected the floor and found nothing. (Henson Dep. 23:21-25). Outback has not, however,
presented any testimony from Dinges regarding his inspection of the floor. Instead, Outback offers
only Andrade’s account of what she saw along with her recollection of what Dinges said. (Andrade
Dep. 32:9-20, DN 41-4). The Court makes no finding at this time as to whether this testimony is
hearsay but raises the issue only to demonstrate that the presence of some substance on the floor
in this instance is a question best resolved by a jury.
The cases Defendant cites in support of its motion are inapposite. In Kendall v. Ralphie’s
Fun Center, No. 2016-CA-000981-MR, 2017 WL 5187731 (Ky. App. Nov. 9, 2017), for instance,
a patron at a bowling alley slipped and fell while approaching the foul line during a roll. Id. at *1.
The plaintiff argued summary judgment was improper because she had produced ample

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circumstantial evidence to establish the existence of an unsafe condition. Id. The Kentucky Court
of Appeals disagreed, however, noting that the plaintiff claimed she had seen others fall on the
approach that evening but never produced a witness or even an affidavit of her own to confirm that
allegation. Id. On the other hand, the defendant produced a witness who testified that he saw the
plaintiff with both feet across the foul line and into the greased lane at the time of her fall. Id. In
short, the plaintiff had no evidence beyond her own unsupported speculation, and the defendant
provided sworn testimony to the contrary. In the present case, Outback has produced an employee
who says she found nothing on the floor, and Plaintiff has produced witnesses whose affirmative
testimony indicates there was an oily substance on the floor where Alfaro fell.
Similarly, in Smith, a restaurant patron fell on her way to the restroom. Smith, 2016 WL
4180002, at *1. The plaintiff left the restaurant without alerting any restaurant employee, filed
suit, then stated in her deposition that the floor looked completely normal to her. Id. The plaintiff’s
only explanation for her fall was that “[u]nder the table and before her fall, she felt something
‘greasy or sticky’ with her shoe. Smith looked under the table when she returned from the
restroom, but could not see anything unusual about that ‘greasy or sticky’ spot.” Id. (internal
citations omitted). The Court found this testimony was not sufficient evidence to stave off
summary judgment.
The conjectural evidence in Smith contrasts sharply with the facts at bar. In Smith, the
plaintiff presented no testimony that such a hazardous condition existed, only speculation that
some greasy substance was under the table. Here, the combined testimony of Alfaro, Ortiz, and
Hills constitutes sufficient evidence for a jury to conclude that there was a substance on the
restaurant floor that created an unsafe condition.

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This Court cannot weigh the disputed facts before it and must instead “analyze the evidence
enough to determine whether there is an issue that ‘may reasonably be resolved in favor of either
party.’” Peters v. Lincoln Elec. Co., 285 F.3d 456, 477 (6th Cir. 2002) (quoting Anderson, 477
U.S. at 250). Both parties have presented conflicting testimony, and for the reasons already
discussed, Plaintiff’s witnesses do not offer such speculative testimony to compel a conclusion
that Defendant’s witnesses were correct. A reasonable juror could hear the evidence presently
before the Court and find in favor of the Plaintiff. Therefore, summary judgment is inappropriate.
B.

Plaintiff’s Motion for Leave to File Sur-Reply (DN 42)

Alfaro has also moved to leave to file a sur-reply to Defendant’s motion. (Pl.’s Mot. Leave
File Sur-Reply 1, DN 16). Neither the Federal Rules of Civil Procedure nor the Court’s local rules
permit the filing of sur-replies. “As many courts have noted, ‘[s]ur-replies . . . are highly
disfavored, as they usually are a strategic effort by the nonmoving party to have the last word on
a matter.” Liberty Legal Found. v. Nat'l Democratic Party of the USA, Inc., 875 F. Supp. 2d 791,
797 (W.D. Tenn. 2012) (citation omitted). Because sur-replies are highly disfavored and it is
unnecessary for the Court to consider the tendered sur-reply in ruling on the pending dispositive
motion, this motion will be denied.
IV.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion for
Summary Judgment (DN 34) and Plaintiff’s Motion for Leave to File Sur-Reply (DN 42) are
DENIED.

cc:

Greg N. Stivers, Judge
United States District Court

counsel of record

October 31, 2018

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