United States District Court, W.D. Kentucky at Louisville
MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN, II, Senior District Judge.
This case arises from an injury Maxine Hazley allegedly suffered as a business invitee on the property of either Wal-Mart Stores East, L.P., or Baceline Investments, LLC. Hazley sued both for negligence because she claims that she fell over some "chips" somewhere in the concrete outside the properties. Wal-Mart and Baceline moved for summary judgment, arguing that Hazley has only unreliable and conjectural evidence to support her claim or, alternatively, that Hazley was injured due to an "open and obvious" hazard. For the reasons that follow, these motions are granted and Hazley's claims are dismissed.
There are only a few undisputed facts in this case. In August 2011, Maxine Hazley was 64 years old and suffered from arthritis in both of her legs. This kept her from working and required her to walk with a cane. She did not drive. One afternoon, Hazley took a taxi to go shopping. She made purchases at multiple stores, ending up at Wal-Mart. She was ready to leave around 5:00 p.m., so she called a taxi and waited on a bench just inside Wal-Mart for approximately 30 minutes. When the taxi arrived, Hazley stood from the bench, handed the taxi driver some of her bags, and walked outside. She eventually entered the taxi and went home.
The rest of her story is disputed. Hazley claims that somewhere between the exit at Wal-Mart and the taxi, she fell. There is no other evidence that she fell at this time; in fact, the taxi driver testified that: (1) he did not recall Hazley falling; (2) he did not write an incident report for her fall; (3) if she had fallen, he would have filed an incident report; (4) according to the taxi company's record of this pickup, he was only at Wal-Mart picking up Hazley for two minutes; and (5) he did not drive Hazley to the hospital, but instead took her straight home. There is no video evidence of the fall and Hazley has presented no other witnesses.
She presented only her deposition testimony, which tells a vague and inconsistent story. The location of the taxi that picked her up is unclear. First, Hazley testified that she would not have had to cross over some part of the street because the taxi "would pull up to the curb." (Hazley Depos., 34:32-5.) She then said the taxi "was not close" to the curb ( id. at 35:2.) and "I think it was a lot of steps" after stepping down from the curb. ( Id. at 35:17-2.) She later testified that the distance was "five feet probably." ( Id. at 67:8.) At one point, she described the taxi as being parked "a little closer than far" from the Wal-Mart doors. ( Id. at 68:18-22.)
The location of her fall is also unclear. At different times in her deposition, she testified: (1) she "was still on the sidewalk" ( id. at 37:21.); (2) she was "in the parking lot area" ( id. at 72:13); (3) when asked whether she had both feet in the parking lot before the fall, she stated "I think I had both feet on" the parking lot ( id. at 72:17-19); (4) "probably when I stepped down from the curb to the parking lot... is probably when I lost my, you know, balance." ( Id. at 80:1-4.) She sued adjacent property owners-Wal-Mart and Baceline-but has never specified which of the two had the defective concrete that caused her to fall.
She generally claims the concrete was not missing "a big chunk, but there [were] some parts like it [was] chipped." ( Id. at 71:13-14.) The location of this "chip" that caused her fall is not clear from her testimony. At different times in her deposition, she stated: (1) "I think it was that concrete in Wal-Mart, because it was kind of chipped" ( id. at 42:12-13); (2) "I remember the sidewalk had been chipped, I remember that a chip was kind of in it, it was chipped kind of bad" ( id. at 70:15-17); (3) when asked whether the parking lot area was chipped, too, she stated: "I think it was" ( id. at 73:9-10.); (4) "I think [the chip] was in the parking lot... where I stepped down from" ( id. at 79:13-17); (5) when asked whether the chip was in the parking lot or on the curb itself, she answered "I think it was in the parking lot" ( id. at 82:4-6.); (6) when asked by her lawyer if she stepped in a chip that caused her to fall, she said: "It may have been. I think it was, you know, when I stepped down off of that curb into the parking lot." ( Id. at 80:5-11.)
Hazley sought medical treatment for the first time a week after the date of her alleged fall. She learned that she broke her ankle and had various other injuries. She sued Wal-Mart and Baceline; both defendants moved for summary judgment.
Summary judgment is appropriate if the submitted evidence shows 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). In analyzing a motion for summary judgment, a court must view the evidence in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But "[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 a reasonable jury could return a verdict for the non-moving party." Id. at 248. The Court must ultimately determine whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.
The Court applies the substantive law of Kentucky to the underlying claim. See Hayes v. Equitable Res. Co., 266 F.3d 560, 566 (6th Cir. 2001). This is a negligence claim, which requires the plaintiff to prove (1) a duty owed by the defendant, (2) a breach of that duty, (3) actual and proximate causation, and (4) harm to the plaintiff. Helton v. Montgomery, 595 S.W.2d 257, 258 (Ky. App. 1980). More specifically, under Kentucky law, a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if he:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and ...