SHERRY G. MCCOY, APPELLANT
v.
FAMILY DOLLAR STORE OF KENTUCKY, LTD.; R&J DEVELOPMENT COMPANY, LLC, APPELLEES
APPEAL
FROM MARTIN CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 14-CI-00100.
BRIEFS
FOR APPELLANT: Kyle R. Salyer Louisville, Kentucky
BRIEF
FOR APPELLEE, FAMILY DOLLAR STORE OF KENTUCKY, LTD.: Kimberly
Van Der Heiden Carlisle, Kentucky
BRIEF
FOR APPELLEE, R & J DEVELOPMENT COMPANY, LLC: Jeffrey A.
Taylor Kyle W. Ray Lexington, Kentucky
BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES.
OPINION
J.
LAMBERT, JUDGE:
Sherry
McCoy has appealed from the summary judgment of the Martin
Circuit Court dismissing her premises liability case against
Family Dollar Store of Kentucky, LTD, (Family Dollar) and
R&J Development Company, LLC, (R&J) as well as from
the order denying her motion to alter, amend, or vacate that
order. Finding no error, we affirm.
McCoy
filed a complaint on May 13, 2014, seeking $1, 312, 327.46
damages from Family Dollar and R&J for injuries she
sustained when she tripped on a wheel stop and fell in the
parking lot of the Family Dollar store in Inez, Kentucky. She
alleged that she was an invitee when she fell near the front
entrance and that Family Dollar or R&J had breached its
duty to maintain the walkway surfaces in a safe manner and
therefore caused her to be injured. She requested
compensatory and punitive damages. Both Family Dollar and
R&J filed answers stating that the complaint failed to
state a cause of action and should be dismissed. A jury trial
was scheduled for June 2015.
Prior
to the trial date, McCoy filed a Rule 26 disclosure for her
expert witness, John B. Schroering, who is a professional
engineer. He was expected to testify about his site visit and
inspection of the parking lot, specifically about wheel
stops, and McCoy summarized his opinions. McCoy's witness
list indicated that Mr. Schroering's report was attached,
but that document was not included with the witness list.
McCoy
testified by deposition on February 10, 2015.[1] She stated that she had shopped at the
Family Dollar in Inez around four times prior to the November
21, 2013, incident. She remembered that it was cold that day
but there was not any precipitation. She was wearing tennis
shoes. She parked at the front of the store, one or two
spaces to the right of the front door, and she said there was
a sidewalk between the parking lot and the store. She could
not pull directly up to the sidewalk because there were big
red poles blocking her from doing so. She said there was also
a wheel stop at the front of the parking space. She did not
know how tall it was or whether it was painted. There was a
space between the wheel stop and the sidewalk, but she did
not know how big that space was. She did not notice the wheel
stop that day until she fell.
The day
of the incident, McCoy was driving her husband's Dodge
Dakota truck. Upon her arrival at Family Dollar, she parked,
got out of the truck, walked to the sidewalk, and proceeded
into the store to shop, where she used a shopping cart. After
she completed her shopping, McCoy pushed the cart out of the
store and placed it next to the red poles. She opened the
passenger side door of the truck and placed her purse and one
bag inside. She went back to get her other purchases and
discovered that the cart had slid away from the red pole
where she had left it. She had to step up onto the sidewalk.
She reached into the cart to retrieve her purchases, turned
around, stepped back down, hit her foot against the wheel
stop, and fell on her face. She said that there was open
space between her vehicle and the next one and that there was
enough space between the wheel stop and the sidewalk for her
to place her foot. McCoy later testified that she was looking
straight ahead towards the parking lot when she stepped off
the sidewalk and that nothing was distracting her. She said
the wheel stop caused her to fall, not any debris or anything
slick on the pavement. She denied seeing the wheel stop.
On
April 27, 2015, Family Dollar filed a motion for summary
judgment seeking dismissal of McCoy's complaint. Family
Dollar attached a copy of the lease between it and R&J,
which was entered into February 24, 2012. The lease provided
that R&J constructed both the building and parking lot
that were rented to Family Dollar as a tenant. Pursuant to
the terms of the lease, R&J, as the landlord, had the
responsibility to maintain and keep in good repair the
exterior areas of the store. This included the parking,
service, and access areas, but did not include snow, ice,
trash, weeds, and debris removal. Family Dollar was
responsible for the interior of the building.
Family
Dollar cited to the deposition testimony of Brandon Doerner,
the Real Estate Director for R&J.[2] Mr. Doerner testified that the wheel stops
were placed in the parking lot during construction. They were
bolted into the asphalt and had reflective yellow striping.
He stated that there was room between the wheel stops and the
ingress and egress areas for pedestrians to be between their
cars and the entrance of the store. Mr. Doerner inspected the
wheel stops after McCoy's fall, and he took photographs
that were provided in discovery. He stated that the wheel
stops had been approved in the construction process and had
passed inspection. Family Dollar argued that it had not
breached any duty to McCoy and therefore could not be held
liable for her injury in the parking lot. McCoy objected to
Family Dollar's motion and argued that a factual issue
existed as to which entity placed the wheel stop in the
parking lot.
R&J
filed a separate motion for summary judgment on April 29,
2015. R&J pointed to Mr. Doerner's affidavit for the
factual assertions that the wheel stop was painted black and
yellow and had not changed since the Family Dollar opened in
October 2012. R&J further relied upon McCoy's
deposition testimony that she was not distracted when she
fell, that there was no precipitation, debris, or slippery
substance that contributed to her fall, and she was not
looking down when she stepped off of the sidewalk. R&J
argued ...