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Smith v. Windstream Communications, Inc.

United States District Court, Sixth Circuit

June 25, 2013




Joseph Gary Smith found himself in a disastrous situation. A downed cable that fell from a utility pole in front of Smith's residence, latched to a passing vehicle, and somehow entangled him. Smith, having realized a second too late what had occurred, was immediately drug down the street, and under a couple of vehicles, until finally his body collided with a large pole. Smith blames Windstream Communications Inc., for the unfortunate incident, and filed suit against it for negligence. After several months of discovery, the parties have filed cross-motions for summary judgment. The Court has reviewed these motions. For the reasons set forth below Smith's motion is DENIED and Windstream's motion is GRANTED in part and DENIED in part.


Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "A genuine dispute exists on a material fact, and thus summary judgment is improper, if the evidence shows that a reasonable jury could return a verdict for the nonmoving party.'" Olinger v. Corporation of the President of the Church, 521 F.Supp.2d 577, 582 (E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Stated otherwise, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. In reviewing a motion for summary judgment, the court "must construe the evidence and draw all reasonable inferences in favor of the nonmoving party." Browning v. Dept. of Army, 436 F.3d 692, 695 (6th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 495 U.S. 574, 587 (1986)).

The moving party has the initial burden of demonstrating the basis for its motion and identifying those parts of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by showing "that there is an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325. Once the movant has satisfied this burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate there is a genuine issue. Hall Holding, 285 F.3d at 424 (citing Celotex, 477 U.S. at 324). Moreover, "the nonmoving party must do more than show there is some metaphysical doubt as to the material fact. It must present significant probative evidence in support of its opposition to the motion for summary judgment." Id. (internal citations omitted).

Finally, the trial court is under no duty to "search the entire record to establish that it is bereft of a genuine issue of material fact, " and "the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact." In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). In applying the summary judgment standard, the Court must review the facts and draw all reasonable inferences in favor of the non-moving party. Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001) (citing Liberty Lobby, 477 U.S. at 255). Ultimately, the proper inquiry is whether the state of the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008) (citing Anderson, 477 U.S. at 251-52).



In its Motion for Partial Summary Judgment [R. 90], Windstream argues that the claims for increased likelihood of future harm, bad faith, punitive damages, and a reasonable attorney's fee are not supported by the evidence. [ Id. at 1.] Smith, in his response, has chosen not to present well-reasoned arguments on these issues, opting instead to copy verbatim out of the Palmore Kentucky Instructions to Juries ("Palmore"). [ See generally R. 98.] The Court finds this strategy ineffective. Essentially, by relying on recommended jury instructions and the related commentary in Palmore, Smith presupposes that he has presented sufficient evidence on the claims contested by Windstream to have them decided by the trier of fact. The Court, however, rejects this premise because the record suggests otherwise.


With respect to the "increased likelihood of future harm issue, " Windstream contends that because Smith has failed to conduct medical testing to assess whether injuries sustained by Smith may lead to a higher risk of additional injuries in the future, this claim should not persist. [R. 90-1, at 5.] Smith, as already noted, takes the unusual step of defending his position by copying verbatim from Palmore's recommended instruction on "increased risk of future harm" and the related commentary. Notwithstanding this attempt to stave off summary judgment, the Court cannot rule in favor of Windstream on this issue. The Court's review of Smith's Complaint leads it to conclude that Smith has not filed a separate claim for "increased likelihood of future harm." Instead, he includes it in his list of damages. [R. 1-1, at 4 ("the Plaintiff was severely injured and permanently damaged as follows... [i]ncreased likelihood of future harm."]

Moreover, Kentucky case law does not recognize a separate claim for "increased likelihood of future harm." Rather, Kentucky has held that the "increased likelihood of future harm" is a consideration if and when a jury decides to award damages for an injury caused by the defendant's conduct. See Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 195 (Ky. 1994) ("A recovery for an increased risk of future harm... is not a new element of damages but proof that the jury should consider in compensating for future physical pain and mental suffering, for future impairment or destruction of earning power, and, if there is evidence to support it, for future medical expenses.")

Even the case cited by Windstream, Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984), overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky. 2002), [1] reinforces this approach. Windstream seems to think that the Davis court "recognized a cause of action for an increased likelihood of future harm, " [R. 90-1, at 4] but there is no support for that proposition in the opinion. Instead, the court held that "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, 672 S.W.2d at 932. It further opined that "[w]here... that likelihood initiates serious mental distress, this also is compensable." Id. Neither of the Davis court's holdings directly or indirectly establishes a claim for increased likelihood of future harm.

Still, Windstream's misinterpretation does not detract from its broader point that Smith has not proffered sufficient evidence to establish that the injuries he suffered might lead to a higher risk of additional injuries in the future. Indeed, Smith has failed to present any evidence supporting his argument that he is entitled to increased damages because of an "increased likelihood of future harm." However, the Court need not resolve this issue now. Rather, it can wait until decisions are made on instructing the jury. See Miller's Bottled Gas, Inc. v. Borg-Warner Corp., 56 F.3d 726, 736 (6th Cir. 1995) ("A trial court may refuse to instruct the jury on an issue when there has been insufficient evidence presented to support a jury finding on that issue."); United States v. City of Columbus, Ohio, 209 F.2d 857, 865 (6th Cir. 1954) (where the court found the ...

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