United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
This matter is before the Court upon Defendants' Motion for Summary Judgment [Docket No. 15]. The matter has been fully briefed by the parties [Docket Nos. 15-1, 18, 25 and 26-2]. For the reasons set forth herein, the Court finds that Defendants are statutorily immune from tort liability and, therefore, entitled to judgment as a matter of law.
I. FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arises from an accident which occurred on September 3, 2012 at the Wal-Mart in Louisa, Kentucky. On that day, Plaintiff Larry Settles was delivering merchandise from Wal-Mart's Distribution Center to various Wal-Mart locations in Kentucky. In his deposition, Plaintiff testified that he arrived at the Louisa Wal-Mart and the Wal-Mart merchandise was removed from his tractor/trailer, by Wal-Mart employees, into the receiving area of the store. [Deposition of Larry Settles, Docket No. 15-2, p. 95]. He recounted that after the merchandise was unloaded, he bent down to secure the latch of his trailer door. Id. at 95. As he stood up to finish the delivery process, he claims that a Wal-Mart employee accidently lowered a dock door onto him, causing injury Id. at 95-96. After completing the delivery at the Louisa store, he drove to the next Wal-Mart store, completed his delivery there, and returned to the Wal-Mart Distribution Center. Id. at 133-134.
Plaintiff is a tractor/trailer driver and regularly transported merchandise from the Wal-Mart Distribution Center to Wal-Mart stores. He testified that he delivered merchandise for Wal-Mart on a daily basis, delivering to Wal-Mart stores 3 or 4 times per night. Id. at 37, 38, 71.
Plaintiff was not hired directly by Wal-Mart. Before the accident, Wal-Mart contracted with Schneider, a trucking company, to transport Wal-Mart merchandise from the Distribution Center and deliver it to its stores. Id. at 26-27. Schneider, in turn, subcontracted those services to Mercer Transportation, who then subcontracted the services to L & D Transportation. Id. Plaintiff was employed by L & D Transportation. Id.
Plaintiff filed this lawsuit against Wal-Mart Stores, Inc., Wal-Mart Stores East, Limited Partnership aka Wal-Mart Stores East, LP, and Bob Poole (collectively referred to herein as "Wal-Mart"), in Lawrence Circuit Court, alleging that Defendants breached their duty of care and are responsible for the injuries he sustained. [Docket No. 1-1]. His wife, Plaintiff Lisa Settles, asserts a claim for loss of consortium. Id.
Defendants filed a Notice of Removal, alleging federal jurisdiction pursuant to 28 U.S.C. § 1332 [Docket No. 1].
Defendants seek summary judgment as to all claims alleged herein. They argue that Wal-Mart is the "up-the-ladder" employer of Plaintiff pursuant to KRS § 342.610(2), and, therefore, is statutorily immune from tort liability to Plaintiff. According to Defendants, Plaintiffs' sole remedy for any injury lies in the Kentucky Workers' Compensation Act. They further argue that Plaintiff Lisa Settles cannot maintain her derivative loss of consortium claim against Wal-Mart and her claim must also be dismissed.
II. STANDARD OF REVIEW
Summary judgment is appropriate where "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." Fed.R.Civ.P. 56 (c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court views all evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the [non-moving party].'" Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
In order to prevail, Wal-Mart must demonstrate that there is no genuine issue of material fact concerning its immunity from ...