Sloan v. Drury Hotels Company, LLC

Filing 89

MEMORANDUM OPINION AND ORDER signed by Senior Judge Thomas B. Russell on 9/15/16; denying 53 Motion in Limine. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00061-TBR
KAREN SLOAN,

Plaintiff,

v.
DRURY HOTELS COMPANY, LLC,

Defendant/Third-Party Plaintiff,

v.
JOAN ROSS SQUIRES,

Third-Party Defendant.

MEMORANDUM OPINION AND ORDER
In anticipation of the approaching trial in this action, Karen Sloan has filed a
motion seeking an in limine ruling that Kentucky’s comparative fault statute, Ky. Rev.
Stat. § 411.182, does not apply to actions involving Kentucky’s dog-owner liability
statute, Ky. Rev. Stat. § 258.235. For the reasons that follow, Mrs. Sloan’s Motion in
Limine, [R. 53], is DENIED.
I.
A.
In March 2014, Terry and Karen Sloan decided to stay at the Drury Inn located in
Paducah, Kentucky, for an extended period while repairs were made to their home. [R.
51 at 1 (Mrs. Sloan’s Pretrial Memorandum).] The Sloans, who owned three small dogs,
selected the Drury Inn because of its pet-friendly policies.

[Id.]

During the early

morning hours of March 7, Mrs. Sloan took her dogs outside for a walk. [Id.] When
Mrs. Sloan exited the Drury Inn, Joan Squires, who was also a guest there, was in the
“pet relief area” across the parking lot. [See R. 35 at 1–2 (Drury Hotels Company’s
Pretrial Memorandum).] She had been walking her dog too, though, unlike Mrs. Sloan,
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without a leash. [Id. at 1.] As Mrs. Sloan made her way to the pet relief area, she fell,
injuring her left elbow. [R. 51 at 1.]
The parties disagree as to what caused her fall. [Compare R. 30 at 1–2 (Squires’
Pretrial Memorandum), and R. 51 at 1–3, with R. 35 at 1–2.] According to Mrs. Sloan,
she encountered a patch of black ice in the parking lot and lost her footing. [R. 51 at 1.]
The Drury Hotels Company, however, posits a different theory: It blames Squires’ dog
for startling Mrs. Sloan’s dogs which caused her fall after she became entangled in their
leashes. [R. 35 at 1–2.]
B.
In March 2015, Karen Sloan filed this slip-and-fall action against the Drury
Hotels Company, LLC, in McCracken Circuit Court, alleging the Drury Hotels
Company’s failure to exercise reasonable care caused her fall and resulting injuries. [See
R. 1-3 at 4–5, ¶¶ 12–24 (Complaint).] The Drury Hotels Company timely removed that
action to this Court, [see R. 1 at 1–2, ¶¶ 1–4 (Notice of Removal)], and subsequently
impleaded Joan Squires, seeking indemnity and contribution, [see R. 20 at 2–6, ¶¶ 6–30
(Third-Party Complaint)]. With the prospect of trial approaching, Mrs. Sloan has filed a
motion seeking an in limine ruling that Kentucky’s comparative fault statute, Ky. Rev.
Stat. § 411.182, does not apply to actions involving Kentucky’s dog-owner liability
statute, Ky. Rev. Stat. § 258.235. [R. 53 at 1–3 (Mrs. Sloan’s Motion in Limine).]
II.
Using the inherent authority to manage the course of trials before it, this Court
may exclude irrelevant, inadmissible, or prejudicial evidence through in limine rulings.
See Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid. 103(c));

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Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013); Mahaney ex rel. Estate of
Kyle v. Novartis Pharm. Corp., 835 F. Supp. 2d 299, 303 (W.D. Ky. 2011). Unless such
evidence is patently “inadmissible for any purpose,” Jonasson v. Lutheran Child &
Family Servs., 115 F.3d 436, 440 (7th Cir. 1997), though, the “better practice” is to defer
evidentiary rulings until trial, Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708,
712 (6th Cir. 1975), so that “questions of foundation, relevancy and potential prejudice
may be resolved in proper context,” Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d
702, 706 (E.D. Ky. 2010). A ruling in limine is “no more than a preliminary, or advisory,
opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United
States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff’d, 469 U.S. 38). Consequently,
the Court may revisit its in limine rulings at any time and “for whatever reason it deems
appropriate.” Id. (citing Luce, 713 F.2d at 1239).
III.
The principal question raised by Mrs. Sloan’s motion is whether Kentucky’s
comparative fault statute, Ky. Rev. Stat. § 411.182, applies to cases involving Kentucky’s
dog-owner liability statute, Ky. Rev. Stat. § 258.235. In the main, Mrs. Sloan seeks to
prohibit the jury from apportioning any fault to Squires should a jury find her dog
contributed to Mrs. Sloan’s accident. [R. 53 at 2–3; R. 66 at 2–3 (Reply).] Her argument
goes something like this: Under Kentucky law, “[a]ny owner whose dog is found to have
caused damage to a person . . . shall be responsible for that damage.” Ky. Rev. Stat. §
258.235(4). An “owner” of a dog, in turn, includes “every person having a right of
property in the dog and every person who keeps or harbors the dog, or has it in his care,
or permits it to remain on or about premises owned or occupied by him.” Ky. Rev. Stat.

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§ 258.095(5). Mrs. Sloan points out that the Drury Hotels Company allowed Squires’
dog “to remain on or about [its] premises,” making it just as much an “owner” of Squires’
dog as Squires herself. Id. Since the Drury Hotels Company is just as liable for the
damage Squires’ dog caused, Mrs. Sloan reasons, an apportionment instruction is
unnecessary. [See R. 53 at 2–3; R. 66 at 2–3.]
The Court is not so sure. Kentucky’s dog-owner liability statute provides that
“[a]ny owner whose dog is found to have caused damage to a person . . . shall be
responsible for that damage.” Ky. Rev. Stat. § 258.235(4). Despite that language,
though, Kentucky courts have long held that the statute does not impose strict liability
upon the owner or keeper of a dog in all circumstances. See Johnson v. Brown, 450
S.W.2d 495, 496 (Ky. 1970) (discussing Ky. Rev. Stat. § 258.275(1) (current version at
Ky. Rev. Stat. § 258.235(4))); Dykes v. Alexander, 411 S.W.2d 47, 48–49 (Ky. 1967);
May v. Holzknecht, 320 S.W.3d 123, 126–27 (Ky. Ct. App. 2010); Carmical v. Bullock,
251 S.W.3d 324, 326 (Ky. Ct. App. 2007); see also 13 David J. Leibson, Kentucky
Practice Tort Law § 12:5 (2015 ed.). The statute provides that the owner of a dog shall
be responsible for damage caused by the dog. See Ky. Rev. Stat. § 258.235(4). “It does
not, however, state that the owner shall be liable for all damages. While the owner is
liable, other parties may also be liable or may have proximately contributed to the
injury.” S.H. ex rel. Robinson v. Bistryski, 923 P.2d 1376, 1380 (Utah 1996), cited with
approval by Carmical, 251 S.W.3d at 327.
Principles of comparative fault, then, “remain relevant,” May, 320 S.W.3d at 127
(citing Carmical, 251 S.W.3d 324), particularly Kentucky’s (partial) codification of the
Uniform Comparative Fault Act, Ky. Rev. Stat. § 411.182. Kentucky’s comparative fault

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statute requires the trier of fact in “all tort actions” to “consider both the nature of the
conduct of each party at fault and the extent of the causal relation between the conduct
and the damages claimed” when determining the percentage of the total fault properly
attributed to the parties. Ky. Rev. Stat. § 411.182(2) (emphasis added). “Fault,” as used
in the statute, includes not only “acts or omissions that are in any measure negligent or
reckless toward the person or property of the actor or others,” but also acts or omissions
“that subject a person to strict tort liability.” Owens Corning Fiberglas Corp. v. Parrish,
58 S.W.3d 467, 473 (Ky. 2001) (emphasis added) (quoting Unif. Comparative Fault Act
§ 1(b) (Unif. Law Comm’n 1979)); see also Wemyss v. Coleman, 729 S.W.2d 174, 177–
78 (Ky. 1987). By defining “fault” to include conduct subjecting a person to strict
liability, Kentucky has signaled that comparative fault principles persist even in those
actions. The mere fact that Ky. Rev. Stat. § 258.235 prescribes a form of strict liability
rather than traditional negligence does not exclude it from application of the comparative
fault statute. See S.H. ex rel. Robinson, 923 P.2d at 1380–81 (collecting cases). “It will,
therefore, be up to the finder of fact to determine and, if appropriate, apportion the
liability of the parties in this action.” Bell v. Kruse, No. 2010-CA-000323-MR, 2011 WL
1515417, at *2 (Ky. Ct. App. Apr. 22, 2011).
IV.
IT IS HEREBY ORDERED that Karen Sloan’s Motion in Limine, [R. 53], is
DENIED.
IT IS SO ORDERED.
Date:

September 15, 2016

cc:

Counsel of Record

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