United States District Court, W.D. Kentucky, Paducah Division
THOMAS B. RUSSELL, Senior District Judge.
This matter is before the Court upon Defendant Banks Grocery Company's Motion for Summary Judgment. (Docket No. 28.) Plaintiff Sandra Brown has responded, (Docket No. 33), and Defendant Banks Grocery Company ("Banks") has replied, (Docket No. 39). This matter is now ripe for adjudication. For the reasons that follow, Banks' Motion for Summary Judgment will be GRANTED.
Brown's claim arises from a slip and fall she suffered on August 29, 2010. Brown intended to go grocery shopping at SuperValu Foods #3 ("SuperValu"), located in Paducah, Kentucky and owned by Banks. During Brown's drive to the store, the weather became rainy: "a little more than a sprinkle, " but not enough to necessitate windshield wipers. (Docket No. 28-2 at 44-45.)
Wearing flip-flop sandals, Brown walked across the wet parking lot to the store's entrance. (Docket No. 28-2 at 50.) She passed through SuperValu's first set of automatic sliding glass doors, which opened onto a foyer consisting of nearly seventeen feet of carpet. She proceeded across the foyer to a second set of automatic doors, which opened onto the tile floor of the grocery area. As she stepped off the carpet onto the tile, the bottom of her flip-flop, still wet with rain, encountered the dry tile; she slipped and fell onto her left side, injuring her leg, arm, him, and lower back. (Docket No. 28-6; Docket No. 28-1 at 2; Docket No. 33 at 2.) Brown, a long-time patron of the store, contends that a rug was typically placed in the area where she fell. ( See Docket No. 28-2 at 43, 51.) She does not claim that the water causing her accident was within SuperValu's control; rather, she testified that the moisture had already accumulated on her flip-flops when she entered the store. (Docket No. 28-2 at 46-47.)
Brown's safety expert, Dr. George V. Nichols, noted that the floor was safe under dry conditions. ( See Docket No. 28-8 at 20 ("If it were dry and no moisture present, I'd have no reason to suspect that the slipperiness of the floor would have been increased.").) However, Dr. Nichols offers a two-pronged criticism of SuperValu. First, he opines that SuperValu should have provided additional carpeting on the date of the accident. (Docket No. 28-8 at 18-19.) He then concludes that SuperValu failed to adequately warn Brown of the potentially slippery conditions caused by the rain. (Docket No. 28-8 at 18-19.)
Greg Greene, the store's manager, testified that on the date of Brown's accident, SuperValu employees placed wet floor signs at the entrance, "where the flooring transitions from carpet to tile." (Docket No. 33-1 at 6.) However, there is no indication that such signs were placed in the entryway until after Brown's fall. ( See Docket No. 28-2 at 47.) Greene also explained that twice yearly, Banks hires a cleaning company to strip, clean, and wax the tile floors. (Docket No. 33-1 at 11.) He noted that twice weekly, employees buff the store's floors. (Docket No. 33-1 at 11.)
In the instant Motion, Banks contends that because Brown points to no unreasonably dangerous condition on the SuperValu premises, it is entitled to summary judgment. Banks further argues that it had no duty to warn Brown of open and obvious, naturally occurring hazards.
SuperValu moves for summary judgment, arguing that Brown has not established that it breached any duty owed to her, an essential element to this claim. Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; he must present evidence on which the trier of fact could reasonably find for him. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). "A plaintiff must put forward more than mere speculations or intuitions." Frazier v. USF Holland, Inc., 250 F.Appx. 142, 148 (6th Cir. 2007); that is, "the mere possibility' of a factual dispute is not enough." Mitchel v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (quoting Gregg v. Allen-Bradley Co., 901 F.2d 859, 863 (6th Cir. 1986)). Mere speculation will not suffice to defeat a motion for summary judgment: "[T]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012).
The Court will apply Kentucky's substantive law to Brown's claim. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001). A common law negligence claim grounded in Kentucky law requires the plaintiff to prove "(1) a duty on the part of the defendant; (2) a breach of that duty; and (3) consequent injury." Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992).
The parties do not dispute that SuperValu owed a duty to Brown, an invitee onto its premises. Instead, they contest whether SuperValu breached its duty and caused Brown's injuries. According to Brown, SuperValu created a potentially dangerous situation by waxing and buffing the tile floor and was aware of an unreasonable risk that a customer stepping onto the floor would slip and fall. (Docket No. 33 at 4, 7.) This potential hazard, she argues, obligated the store ...