Dey v. Coughlin et al

Filing 76

ORDER granting in part and denying in part Doc. 63 Defendant's Motion for Summary Judgment. Signed on 5/22/20 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

JUDY DEY,
Plaintiff,
vs.
BETTE COUGHLIN,
individually and as Executor of the
Estate of Patrick Michael Hennessey,
et al.,
Defendants.

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Case No. 19-00318-CV-W-ODS

ORDER AND OPINION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT
Pending is Defendants’ motion for summary judgment. Doc. #63. For the
following reasons, Defendants’ motion for summary judgment is granted in part and
denied in part.
I. BACKGROUND 1
In January 2016, Defendant Bette Coughlin contacted Plaintiff Judy Dey to retain
her as an independent contractor to provide home-health services for Patrick
Hennessey. Doc. #63-1, at 5. On July 8, 2016, one of Hennessey’s personal
attendants reported to Coughlin that a portion of the piano room’s ceiling was damp.
Coughlin reported the issue to Hennessey’s homeowner’s insurer. Doc. #64-2, at 4. In
late July 2016, the insurer inspected the ceiling and roof of Hennessey’s home. Id.
According to Coughlin, no leak or issue with the roof was discovered during that
inspection. Id. On August 25, 2016, while Plaintiff was providing home-health services

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The following facts are taken from the parties’ briefs and exhibits. These facts are
uncontroverted by the parties. Any citation to a page number refers to the pagination
automatically generated by CM/ECF. These facts should not be deemed as findings of
fact by the Court.

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to Hennessey in his home, a portion of the living room ceiling collapsed on her, resulting
in bodily injuries. Doc. #63-1, at 6.
On April 1, 2019, Plaintiff filed a lawsuit in the Circuit Court of Jackson County,
Missouri, alleging claims of premises liability, negligence, and fraudulent
misrepresentation against Coughlin individually and in her capacity as executor of
Hennessey’s estate. Doc. #1-3. On April 25, 2019, Defendants2 removed the matter to
this Court. Doc. #1. 3 The Court previously dismissed Plaintiff’s premises liability claims
against Coughlin individually and Plaintiff’s fraudulent misrepresentation claim against
Coughlin as executor of Hennessey’s estate. Doc. #23.
In January 2020, Defendants moved for summary judgment on all remaining
claims. Doc. #63. On February 25, 2020, the parties filed a joint stipulation and notice
of dismissal of Plaintiff’s fraud claim and her claims for punitive damages. Doc. #65.
Accordingly, the only remaining claims are Plaintiff’s premises liability claim against
Coughlin in her capacity as executor of Hennessey’s estate and Plaintiff’s negligence
claim against Coughlin individually and in her capacity as executor of Hennessey’s
estate.

II. STANDARD
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114,
115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law,
it is the substantive law’s identification of which facts are critical and which facts are
irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). The Court
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Hennessey passed away in August 2017.
“Defendants” includes Coughlin in her capacity as executor of Hennessey’s estate and
Coughlin in her individual capacity. Although Coughlin is the only defendant, the Court
refers to “Defendants” to reflect that claims are brought against Coughlin in two different
capacities.

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must view the evidence in the light most favorable to the non-moving party, giving that
party the benefit of all inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986). “[A]
nonmovant may not rest upon mere denials or allegations but must instead set forth
specific facts sufficient to raise a genuine issue for trial.” Nationwide Prop. & Cas. Ins.
Co. v. Faircloth, 845 F.3d 378, 382 (8th Cir. 2016) (citations omitted).

III. DISCUSSION
A. Premises Liability
Defendants argue they are entitled to summary judgment on Plaintiff’s premises
liability claim against Coughlin in her capacity as executor of Hennessey’s estate
because she failed to establish Hennessey had actual or constructive knowledge of the
condition that caused the living room ceiling to collapse. Doc. #63-1, at 8. A possessor
of land owes a duty of reasonable care to all entrants on the property who are present
with the possessor’s consent. Jones v. Hansen, 254 Kan. 499, 509 (1994). 4 To
determine whether the defendant exercised reasonable care, the Court considers: (1)
foreseeability of the harm; (2) the magnitude of the risk of injury to others in maintaining
such a condition of the premises; (3) the individual and social benefit of maintaining
such a condition; (4) the burden on the premises owner, in terms of convenience or
cost, in providing adequate protection; and (5) any other facts deemed applicable to the
case at hand. Id. at 509-10. “Before a landowner may be held liable for an injury
resulting from a dangerous condition, however, the plaintiff generally must show that the
defendant had actual knowledge of the condition or that the condition had existed for
such a length of time that in the exercise of ordinary care the landowner should have
known about it.” Brock v. Richmond-Berea Cemetery Dist., 264 Kan. 613, 620 (1998).
Defendants argue Plaintiff cannot establish what caused the ceiling to collapse
because she did not designate an expert witness. Doc. #63-1, at 8-9. This argument is
not supported by the applicable facts and law. The facts of this case are not complex or

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The Court previously determined Kansas law applied. Doc. #41.
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technical, and a jury can resolve Plaintiff’s claim without an expert’s assistance. United
States v. Cantrell, 999 F.2d 1290, 1292 (8th Cir. 1993).
Plaintiff argues Hennessey’s insurer determined a leaking roof caused the
collapse, and a repairman discovered broken tiles and debris-filled valleys on the roof
over the living room. Doc. #64, at 20-21. She maintains the insurer’s determination and
repairman’s discovery establish causation. Id.
Defendants argue Plaintiff’s theory about what caused the ceiling to collapse is
insufficient and generic. Doc. #66, at 26. Defendants contend Plaintiff cannot establish
Hennessey knew about the condition that caused the ceiling collapse before it occurred.
Id. They maintain Hennessey was unaware the piano room’s ceiling was damp on July
8, 2016. Doc. #63-1, at 10. Defendants further argue Plaintiff cannot establish a roof
leak in the piano room translates to knowledge of a roof leak in the living room. Id.
Plaintiff alleges Hennessey knew the roof was defective for at least four years
prior to the ceiling collapse. Doc. #64, at 17. To support her assertion, Plaintiff cites the
deposition of Hennessey’s niece, Kathleen Shea, who testified the roof leak was an
ongoing problem and Hennessey “probably mentioned” the roof condition and leaks to
her. Doc. #64-1, at 3. Plaintiff also argues the roof leaks were not confined to one area
of the home. Doc. #64, at 18. Shea testified the roof leaks were in the piano room and
the dining room, and those two rooms were adjacent to the living room where the ceiling
collapsed in August 2016. Doc. #64-1, at 2.
Defendants argue Shea’s testimony does not explain how roof leaks in different
rooms of the home translate into knowledge of an issue in the living room. Doc. #66, at
29. They further argue Shea has no personal knowledge of the involved matters, and
any knowledge she purportedly possesses emanated from conversations she had with
Hennessey’s late wife before 2012. Id.; Doc. #64-1, at 3. Shea also testified she did
not know what Hennessey or Coughlin knew about the ceiling or the roof. Doc. #64-1,
at 8.
According to Plaintiff, Coughlin and another home health worker, Sharron
Henneman, observed water stains on Hennessey’s living room ceiling a month before
Coughlin hired Plaintiff. Doc. #64, at 19. Plaintiff alleges Coughlin told Henneman that
Hennessey did nothing to address the stains. Id. Defendants deny this encounter

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between Coughlin and Henneman occurred or that Coughlin observed water stains on
the living room ceiling. Doc. #64-2, at 7.
The Court must view the evidence in the light most favorable to Plaintiff, giving
her the benefit of all inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus., 475 U.S. at 588-89, Tyler v. Harper, 744 F.2d 653, 655 (8th Cir.
1984). Because the Court must view the evidence in the light most favorable to Plaintiff,
the Court finds a genuine factual dispute exists as to Plaintiff’s premises liability claim.
Therefore, Defendant’s motion for summary judgment on this claim is denied.

B. Negligence
Defendants also move for summary judgment on Plaintiff’s negligence claim
against Coughlin individually and in her capacity as executor of Hennessey’s estate.
Defendants argue they did not owe a duty to Plaintiff other than the duty owed by
Hennessey as an occupier of land, which is the basis for Plaintiff’s premises liability
claim. Doc. #63-1, at 12.
To establish negligence under Kansas law, Plaintiff must prove the “existence of
a duty, a breach of that duty, an injury, and proximate cause, that is, a causal
connection between the duty breached and the injury suffered.” D.W. v. Bliss, 279 Kan.
726, 734 (2005). Generally, the existence of negligence is a question of fact reserved
for the jury. Wagoner v. Dollar Gen. Corp., 955 F. Supp. 2d 1220, 1228 (D. Kan. 2013).
However, the existence of a legal duty is a question of law to be determined by the
court. Roe v. Kan. Dep’t of Social and Rehab. Serv. for State, 278 Kan. 584, 592
(2004).
Defendants argue Plaintiff’s negligence claim should be dismissed because she
did not establish they owed her any duty or they breached any alleged duty. Doc. #631, at 12-13. Under Kansas negligence law, “there is no affirmative duty to protect an
individual unless one can establish a special duty is owed to the injured individual.”
Thomas v. Cty. Comm’rs of Shawnee Cty., 40 Kan. App. 2d 946, 951 (2008).
Defendants contend that other than the duty Hennessey owed Plaintiff under Kansas
premises liability law, Defendants do not owe an affirmative duty to protect Plaintiff from
harm due to the absence of a “special relationship.” Doc. #66, at 30

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Plaintiff argues that in a contract for employment relationship, common law
negligence remains an available remedy for an injured servant. Doc. #64, at 21-22;
Taylor v. Hostetler, 186 Kan. 788, 797 (1960). She further argues Defendants breached
their duty to provide a safe workplace because they knew the ceiling of the room in
which she worked was defective, and they did not repair the ceiling or warn her about
the condition. Doc. #64, at 21-22.
It is undisputed that Plaintiff was not an employee; she was an independent
contractor. Doc. #1-3; Doc. #63-1, at 5; Doc. #64, at 7. Plaintiff cites no case law in
which a duty to provide a safe work place was imposed where the plaintiff was not an
employee but an independent contractor. And the Court is unable to find any such case
law. Plaintiff does not allege a special relationship existed that would impose the
affirmative duty of providing a safe workplace on Defendants.
Because Plaintiff was an independent contractor and not an employee, and
because she has not asserted any other special relationship, Plaintiff failed to establish
Defendants owed her an affirmative duty to provide a safe workplace. Thus, Plaintiff
failed to establish an essential element of her negligence claim. Accordingly, the Court
grans, Defendants’ motion for summary judgment on Plaintiff’s negligence claims
against Coughlin individually and in her capacity as executor of Hennessey’s estate.

IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted
in part and denied in part.

IT IS SO ORDERED.

DATE: May 22, 2020

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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