McCoy v. Family Dollar Store of Kentucky, Ltd.

         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 ...