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Altman v. Cbocs, Inc.

United States District Court, W.D. Kentucky, Paducah Division

April 16, 2013

MIKE ALTMAN, PLAINTIFF
v.
CBOCS, INC., et al., DEFENDANTS

Page 561

For Mike Altman, Plaintiff: Michael M. Pitman, Haverstock, Bell & Pitman, Murray, KY.

For CBOCS, Inc., Cracker Barrell Old Country Store, Inc., Defendants: Dov Moore, Law Office of Dov Moore, PLLC, Bowling Green, KY; John Thomas Feeney, Feeney & Murray, PLLC, Nashville, TN.

OPINION

Thomas B. Russell, Senior United States District Judge.

Page 562

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the Defendants' motion for summary judgment. (Defs.' Mot. Summ. J., Docket Number (" DN" ) 16.) The Plaintiff responded. (Pl.'s Resp., DN 23.) The Defendants replied. (Defs.' Reply, DN 24.) At the Court's request, each party filed a supplemental brief addressing the applicability of the Kentucky Supreme Court's decision in Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010). Fully briefed, this matter is now ripe for adjudication. For all of the following reasons, the Defendants' motion is DENIED.

I.

At the time of the events giving rise to this action, Plaintiff Mike Altman (" Altman" ) was a graduate student at Murray State University studying for his Master's degree in History with a specialization in World War II military history. During his time at MSU, he lived in student housing located at 905 College Courts, Murray, Kentucky.

Sometime between 9:30am and 10:00am on the morning of February 8, 2011, Altman left his residence and walked approximately half a mile across campus to the Cracker Barrel Old Country Store located at 650 N. 12th Street, Murray, Kentucky, to eat breakfast. He ate there frequently. To reach the restaurant, Altman walked through 8- to 11-inch deep snow that had fallen on the area the previous evening. He walked in ruts left by cars and paths made by other pedestrians and was careful to avoid exposed concrete areas that were potentially slick and hazardous. There is no question that he was aware of the snow in the area. It appears that he did not have any trouble with the conditions while walking across campus.[1]

Arriving at the restaurant, Altman crossed the north parking lot adjacent to the store and proceeded toward the entrance by walking under a covered porch attached to the front of the store. Upon entering the porch area, Altman's feet slipped from under him and he fell on the concrete surface, landing on his back and right shoulder. After a few minutes lying on the porch, Altman regained his footing and entered the store, where he informed a worker that he had fallen and was in pain. One of the store's employees took Altman to the hospital, and he was diagnosed with a fracture in the humerus bone in the top of his right arm. Although he initially only wore a stabilizing sling on the arm, the injury eventually required corrective

Page 563

surgery. Post-surgery, Altman complains of a limited range of motion, diminished strength, and continuing pain in his right should as a result of the fall. He claims his fall was caused by snow and ice on the porch, which the Defendant had a duty to protect him from and failed to do so.

The Cracker Barrel restaurant at issue opened at 6:00am on the morning of February 8, 2011. Altman called that morning to ensure that the store was open before he walked across campus. Debora Maze, the store's then-general manager, was on duty that morning. As manager, she was responsible for ensuring that the store's entrance was clear of hazards like snow and ice and was generally safe and accessible for the restaurant's patrons. In her deposition testimony, Maze recalled that Murray experienced heavy snowfall on the previous evening and that on the morning of Altman's accident she directed one of the store's maintenance workers to shovel the snow off the porch and to spread salt on the cleared areas in order to prevent refreezing. She inspected the porch after the maintenance worker finished clearing the area and found it to be in a good condition. If the porch had not passed inspection, she would have required the worker to shovel and salt it again, and she only recalls requesting the worker clear the porch once.

Photographs of the porch were taken sometime after Altman's fall. The photographs show snow and ice on the left- and right-hand sides of an aisle that traverses the porch and runs parallel to the store's front. The area where Altman fell is also generally clear, although small patches of snow and ice are scatter throughout and other dark patches are present, suggesting the presence of moisture. Salt is also visible on the porch. Altman contends that his fall was caused by one of the patches of snow and ice that was not cleared in the removal process.

The Defendants now move for summary judgment on two grounds. First, they contend that under Kentucky law they had no duty to protect Altman from the danger presented by snow on the porch, which was a naturally occurring hazard that was open and obvious. Second, the Defendants claim that the decision to clear the porch did not conceal the snow or otherwise heighten Altman's risk of a slip and fall. In all, the Defendants argue that they had no duty to protect Altman ...


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