Potts et al v. Martin & Bayley, Inc.
Filing
282
MEMORANDUM OPINION AND ORDER: Martin & Bayleys Motion for Partial Summary Judgment as to Claims for Future Medical Expenses 199 , Motion for Partial Summary Judgment Dismissing Plaintiffs Claims Based on Alleged Violations of Kentucky Fire Regulations 200 , and Motion for Partial Summary Judgment Dismissing Plaintiffs Claims for Punitive Damages 201 are DENIED. Signed by Judge Joseph H. McKinley, Jr on 9/30/11. cc:counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:08-CV-00015-JHM
VANESSA L. POTTS and JOHN L. POTTS
PLAINTIFFS
v.
MARTIN & BAYLEY, INC., d/b/a/ Hucks,
CATLOW, INC. and HUSKY CORPORATION
DEFENDANTS
and
MARTIN & BAYLEY, INC., d/b/a/ Hucks
CROSS-CLAIMANT
v.
CATLOW, INC. and HUSKY CORPORATION
CROSS-DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant/Third-Party Plaintiff Martin & Bayley, Inc.’s
Motion for Partial Summary Judgment as to Claims for Future Medical Expenses [DN 199], Motion
for Partial Summary Judgment Dismissing Plaintiffs’ Claims Based on Alleged Violations of
Kentucky Fire Regulations [DN 200], and Motion for Partial Summary Judgment Dismissing
Plaintiffs’ Claims for Punitive Damages [DN 201]. Fully briefed, these matters are ripe for decision.
For the following reasons, the Court DENIES Martin & Bayley’s motions.
I. BACKGROUND
This matter involves a fire that occurred at a Huck’s self-service gas station in Morganfield,
Kentucky, on January 14, 2008. Plaintiffs’ allege that the fire was caused when a gas pump failed
to shut off causing gasoline to overflow out of the gas tank and onto the ground. The gasoline then
ignited causing Plaintiff Vanessa Potts to be severely burned. This action was filed by Plaintiffs
against the owner of the Huck’s, Martin & Bayley, Incorporated, on February 12, 2008. Martin &
Bayley then filed a Third-Party Complaint against Catlow, Incorporated and Husky Corporation, the
manufacturers of the nozzles used by Huck’s at the time of the fire. Thereafter, Plaintiffs’ amended
their Complaint to also include claims against Catlow and Husky.
Martin & Bayley has filed three motions for partial summary judgment seeking to dismiss
(1) Plaintiffs’ claim for future medical expenses; (2) Plaintiffs’ claim for negligence per se for
Martin & Bayley’s alleged violation of Kentucky Administrative Regulations; and (3) Plaintiffs’
claim for punitive damages.
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 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 of identifying that portion of the record which 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, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the non-moving
party, the non-moving party is required to do more than simply show there is some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). The rule requires the non-moving party to present specific facts showing that a genuine
factual issue exists by “citing to 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).
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“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
A. Future Medical Expenses
Martin & Bayley’s first motion seeks summary judgment as to Plaintiffs’ claim for future
medical expenses. Martin & Bayley contends that Plaintiffs have failed to demonstrate within a
reasonable degree of medical probability that Plaintiff Vanessa Potts will require future medical
treatment or the likely cost of such treatment. Plaintiffs respond and contend that this is an issue that
should be addressed by a motion for directed verdict because Plaintiffs are not required to produce
such evidence prior to trial.
In addressing future medical damages, the Kentucky Supreme Court has held “where there
is substantial evidence of probative value to support it, the jury may consider and compensate for
the increased likelihood of future complications.” Davis v. Graviss, 672 S.W.2d 928, 932 (Ky.
1984), overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky.
2002); see also Cincinnati Ins. Co. v. Samples, 192 S.W.3d 311, 318 (Ky. 2006) (finding doctor’s
testimony that 15-20% of his patients that have plaintiff’s injury require future surgery sufficient for
the jury to award damages for future medical expenses).
Plaintiffs contend that is has disclosed that Dr. William Bebout, M.D., Vanessa Potts’
treating physician, will testify regarding the permanency of Mrs. Potts’ injury as well as the need
for future treatment. In support of this argument, Plaintiffs have submitted an affidavit sworn to by
Dr. Bebout attesting his belief, within a reasonable degree of medical probability, that Mrs. Potts
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will need certain treatments in the future to relieve tension and pressure in the scarred area of her
leg and that such treatments will cost between $20,000 and $30,000.1 (See Bebout Aff., Pls.’ Resp.
Ex. A [DN 243].) Plaintiffs’ contend that this affidavit demonstrates a genuine dispute of material
fact regarding future medical damages. Defendant’s reply indicates a lack of timely disclosure.
Summary judgment at this time is inappropriate. Therefore, the Court DENIES Martin & Bayley’s
motion and this issue will be resolved at trial.
B. NFPA 30A
Martin & Bayley’s second motion seeks summary judgment on Plaintiffs’ theory of liability
premised upon a violation of Kentucky regulation 815 K.A.R. 10:060. 815 K.A.R. 10:060 adopts
the National Fire Protection Association’s Uniform Fire Code, known as NFPA 1. NFPA 1, in turn
incorporates NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages. Section
9.4 of NFPA 30A lists the operating requirements for attended self-service motor fuel dispensing
facilities. This section of the code states that “[t]here shall be at least one attendant on duty while
the self-service facility is open for business. The attendant’s primary function shall be to supervise,
observe, and control the dispensing of Class I liquids while said liquids are actually being
dispensed.”2 NFPA30A § 9.4.2. The regulation further states that “[t]he attendant or supervisor on
duty shall be mentally and physically capable of performing the functions and assuming the
responsibility prescribed in Section 9.4.” Id. at § 9.4.3.1.
Martin & Bayley admits that its attendant “did not ‘supervise, observe, and control the
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Plaintiffs note that Martin & Bayley has declined, until recently, to depose any of
Plaintiffs’ experts, except for Plaintiffs’ treating surgeon, Dr. Green. At this time, it appears that
Martin & Bayley plans to depose Dr. Bebout in the next week before trial.
2
Gasoline is considered a Class I liquid. See NFPA 30A, Annex B, Tbl. B-1.
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dispensing of Class I liquids’” at the time of Mrs. Potts’ accident, but was instead in the rear of the
store making a pizza in the deli for another customer. (Martin & Bayley’s Mot. Part. Summ. J. 1-2
[DN 200].) However, Martin & Bayley contends that it did not violate NFPA 30A because it is
undisputed that it informed the attendant that her primary function was watching the gasoline pumps
and assisting in that process. Martin & Bayley argues that the regulation does not regulate the
attendant’s conduct but instead regulates the attendant’s job description. Id. at 2. Martin & Bayley
further argues that although the attendant was fulfilling a secondary function at the time of the fire,
working the deli, that she was still assigned the primary function of supervising and observing the
dispensing of gasoline, which is enough to satisfy the regulation.
Plaintiffs’ and Catlow contend that Martin & Bayley’s view is an erroneous interpretation
of the regulation. Catlow contends that regardless of what the attendant’s “‘primary assignment’
may have been, it is clear that [the attendant] was not performing her primary function at the time
of the fire.” (Catlow’s Resp. 4 [DN 242].) Plaintiffs’ argue that “[t]he regulation is to provide
protection during the potentially hazardous process of dispensing gasoline,” and that such a purpose
cannot be “accomplished if those being regulated and required to supervise, observe and control the
process can, in their discretion, ignore the process as [Martin & Bayley] contends.” (Pls.’ Resp. 3
[DN 247].)
The Court agrees with Martin & Bailey. There is no genuine issue of fact that it had at least
one attendant on duty and that the attendant’s primary function was to supervise, observe, and
control the dispensing of gasoline. Therefore, there is no evidence that it violated the regulation.
However, this conclusion certainly does not equate to a finding that the conduct of the attendant was
reasonable.
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Although Martin & Bailey seeks summary judgment on the claims based on an alleged
violation of these regulations, there is no such specific claim made in this case. The claim asserted
in this case is that Martin & Bailey failed to exercise ordinary care to maintain its premises in a
reasonably safe condition for the dispensing of gasoline. Whether the attendant on duty actually
supervised, observed and controlled the dispensing of gasoline is relevant evidence for the jury to
consider in deciding the ultimate question of negligence. However, discussion of the regulation
needs to be in this context and not as if it were a separate claim. Since the Court cannot grant
summary judgment on a claim that does not exist, it DENIES Martin & Bayley’s motion.
C. Punitive Damages
Martin & Bayley’s third motion seeks summary judgment as to Plaintiffs’ claim for punitive
damages. Martin & Bayley contends that because there has been expert testimony elicited that the
defect within the nozzles was undiscoverable by Martin & Bayley that it cannot be found to have
demonstrated a wanton or reckless disregard for the safety of others. Martin & Bayley further
contends that it cannot be held liable for any gross negligence of its employees because the evidence
does not support a finding that Martin & Bayley authorized, ratified, or could have anticipated the
employees allegedly negligent conduct. Plaintiffs’ contend that there are genuine disputes of
material fact that preclude summary judgment regarding Martin & Bayley’s knowledge of and
response to complaints of overflows at the Morganfield location, as well as the adequacy and
implementation of employee training. Plaintiffs’ also challenge the constitutionality of K.R.S. §§
411.184(2),(3).
The Court declines to grant summary judgment on the issue of punitive damages at this time.
Instead, it will hear the proof and decide whether to allow the jury to award punitive damages.
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Likewise, the constitutional issues raised by the Plaintiff will be addressed at trial. Therefore, the
Court DENIES Martin & Bayley’s motion.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Martin & Bayley’s
Motion for Partial Summary Judgment as to Claims for Future Medical Expenses [DN 199], Motion
for Partial Summary Judgment Dismissing Plaintiffs’ Claims Based on Alleged Violations of
Kentucky Fire Regulations [DN 200], and Motion for Partial Summary Judgment Dismissing
Plaintiff’s Claims for Punitive Damages [DN 201] are DENIED.
September 30, 2011
cc: counsel of record
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