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Colyer v. Speedway, LLC

United States District Court, E.D. Kentucky, Southern Division

November 8, 2013

CATHY COLYER, Plaintiff,

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For Cathy Colyer, Plaintiff: William M. Thompson, LEAD ATTORNEY, Thompson & Thompson, Somerset, KY.

For Speedway LLC, Speedway SuperAmerica, LLC, Defendants: Andrew M. Palmer, D. Christopher Robinson, Douglas W. Langdon, LEAD ATTORNEYS, Frost Brown Todd LLC - Louisville, Louisville, KY.


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Gregory F. Van Tatenhove, United States District Judge.

While walking down an aisle in a gas station, Plaintiff Cathy Colyer tripped on a cardboard box that was sitting on the floor. Although she did not fall down, Colyer injured her shoulder when she caught herself on a nearby ATM machine and later brought suit for damages. This matter is before the Court upon the Motion for Summary Judgment filed by Defendants Speedway, LLC and Speedway Superamerica, LLC (collectively " Speedway" ). [R. 17.] Because there is no genuine issue of material fact as to Speedway's liability, its motion will be GRANTED.


On the evening of September 30, 2010, between 9:45 and 10:00 p.m., Plaintiff Cathy Colyer stopped at a Speedway gas station in Somerset, Kentucky, on her way home from playing bingo. [R. 17-1 at 2; Colyer Depo. at 43.] Colyer testified that the weather was clear and " pretty" when she entered the store to purchase a 2-liter bottle of Mountain Dew for her son. [R. 17-1 at 2; Colyer Depo. at 43, 47.] Store employee Audrey Hargis testified that the Speedway store had just received a shipment of merchandise a few minutes before Colyer arrived, and that the employees were in the process of unpacking the boxes and re-stocking the shelves. [R. 17-1 at 2; Hargis Depo. at 7-8.] Colyer admitted that she noticed the presence of the cardboard boxes in the store, and then walked down an aisle toward the location of the 2-liters in the back corner. Colyer Depo at 61. After selecting a 2-liter of Mountain Dew, Colyer went back up the aisle toward the cash register.[1] Id. at 57-58. Colyer testified that although she saw a cardboard box sitting in the aisle that she walked down, she attempted to walk around the box by maneuvering to the left side of the aisle. Id. at 73, 81-82. As she passed the cardboard box, Colyer's leg hit the box, causing her to lose her balance and stumble. Id. at 64. Colyer caught herself on a nearby ATM machine, which she hit with her hand and possibly her right arm, but she did not fall to the ground or drop the Mountain Dew. Id. at 66-69. Colyer testified that neither the ATM machine, the box, nor anything else moved significantly when she tripped. Id. at 68.

Colyer described the box as being about eighteen inches wide and " maybe a foot tall" or less, to the best of her recollection. Id. at 59. She conceded that when she was walking back toward the register, she clearly saw the box as she was approaching

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it, and that nothing blocked her view of the ground or of her feet while she was walking. Id. at 62-63. Colyer also testified that there were multiple paths back to the cash register, but that other boxes besides the one she tripped over were in the other aisles as well. Id. at 60-61.

After regaining her composure, Colyer proceeded to the cash register to purchase the Mountain Dew and told the employee at the register that she had tripped on the box and that the boxes in the store were dangerous. Id. at 70-72. Colyer did not tell anyone she was injured because she did not think she was hurt until after she had left the store. Id. at 70-72. Upon leaving the store, Colyer drove herself to her son's house to drop off his Mountain Dew and then drove to her own house. Id. at 73. Later that night, Colyer began to experience pain in her shoulder. Id. at 74-75. She went to a doctor the next day, had several tests done, and continued to have shoulder and neck pain. Id. at 74-77. According to her deposition testimony, Colyer ultimately had surgery on her shoulder and on her neck, but she could not recall what kind of surgeries they were. Id. at 85-88.

Colyer does not dispute any of these facts, but she asserts that an additional important fact is that the store was cluttered with boxes " thru [sic] out the store." [2] [R. 19 at 3.] The Court notes, however, that Speedway objects to this characterization of the store because the evidence in the record does not support that description. [R. 22 at 7.] The Court agrees with Speedway that describing the store as being cluttered with boxes everywhere is inaccurate, given the situation of unpacking new merchandise, and that the deposition testimony and pictures submitted to the Court do not support Colyer's description of the store.

This action is in federal court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Ms. Colyer is a resident of Kentucky, and Speedway is an LLC organized under the laws of the state of Delaware. [R. 1 at 2.] Speedway, LLC, has only one member, Marathon Petroleum Corporation (" MPC" ) Investment LLC, which is a Delaware corporation with its principal place of business in Ohio. Thus, complete diversity exists among the parties. Colyer has not set forth a specific amount of damages, but on January 4, 2012, as part of the discovery process, Speedway served Colyer with an Interrogatory asking about the amount in controversy and asking Colyer to sign a stipulation that her damages did not exceed $75,000. [R. 1 at 2.] Colyer did not respond to the Interrogatory. Speedway has also served Requests for Admissions, seeking an admission from Ms. Colyer that her damages exceed $75,000, but Colyer never responded to that request either, and therefore her lack of response is deemed an admission under Fed.R.Civ.P. 36 (a)(3) and (b). Because Kentucky is the forum state, its substantive law will be used. Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 526 (6th Cir. 2006). However, federal procedural law will govern as applicable, including in establishing the appropriate summary judgment standard. Weaver v. Caldwell Tanks, Inc., 190 F.Appx. 404, 408 (6th Cir. 2006).



Summary judgment is appropriate when " the pleadings, discovery and disclosure

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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." Fed.R.Civ.P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " 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. Corp. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Stated otherwise, " [t]he mere existence of a scintilla of evidence in support ...

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