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Johnson v. Circle K Stores, Inc.

United States District Court, W.D. Kentucky, Louisville

April 20, 2017

VIRGIL JOHNSON PLAINTIFF
v.
CIRCLE K STORES, INC. and EXEL, INC. DEFENDANTS

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge.

         I. Introduction

         Virgil Johnson filed this personal injury action against Circle K Stores, Inc. (“Circle K”) and Exel, Inc. (“Exel”). State Ct. R. 2, ECF No. 1-1. Circle K and Exel filed cross-claims against each other. Id. at 30, 33. Circle K removed the action to this Court. Not. Removal, ECF No. 1. The instant matter is before the Court on Circle K's motion for summary judgment, ECF No. 12. Johnson responded, ECF No. 15. Circle K replied to Johnson's response, ECF No. 17. Exel also responded, ECF No. 19. Circle K replied to Exel's response, ECF No. 20. For the reasons stated below, the Court will deny Circle K's motion for summary judgment.

         II. Legal Standard

         A party moving for summary judgment must 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). The Court must determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. The Court must draw all factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. Facts

         On August 24, 2014, Johnson approached the pastry cabinet inside Defendant Circle K's store to purchase a brownie. Johnson Dep. 10-11, ECF No. 13-1. When he could not find any brownies, he stood squarely in front of the cabinet for two minutes while he debated whether he wanted a different type of pastry. Id. at 11-12. When he turned to walk away, he took one step and tripped over pastry crates that had been placed on the floor behind him. Id. at 11. Johnson testified that the crates were not there when he approached the cabinet. Id. at 13, 16. He thought they must have been placed behind him while he was looking in the cabinet. Id. Nobody warned Johnson that the crates were being placed behind him. Id. at 20. He testified that he would not have fallen had the crates not been placed behind him without his knowledge. Id.

         Circle K Assistant Manager Kelly Rich witnessed Johnson's fall. Rich Dep. 6, 9, ECF No. 13-2. The pastry cabinet was directly in front of the cashier station, where Rich was standing at the time that Johnson fell. Id. at 9; see also Johnson's Resp. Ex. A, ECF No. 15-2. Rich testified, “He was in the doughnut case getting the brownies that he always got. When he backed up out of the doughnut case, he backed - he stepped back and kind of turned around and put his foot in the crate, and the crate slid, and he fell.” Rich Dep. 9, ECF No. 13-2. Rich did not see the crates on the floor before Johnson fell. Id. at 24. Rich testified that, as a member of management at Circle K, she was responsible for safety in the store. Id. at 35. She stated that she had been trained to avoid placing things in the aisles at Circle K because to do so would create a safety and tripping hazard. Id. at 33.

         Defendant Exel was responsible for stocking the pastry cabinet in the Circle K. Id. at 17. Exel provided these services to Circle K pursuant to the Transportation and Crossdock Agreement (“the agreement”). Agreement 1, ECF No. 12-5. Exel delivery drivers would bring in crates full of doughnuts, brownies, and other pastries everyday around 2:00 or 3:00 p.m. Rich Dep. 13, 17, ECF No. 13-2.

         Rich testified that an Exel delivery driver was making a delivery at the time Johnson fell. Id. at 14. This Exel delivery driver was a different driver than usual, although he had delivered to this Circle K location before then. Id. at 42. This Exel delivery driver placed the crates over which Johnson tripped flat on the floor in the aisle between the pastry cabinet and the sandwich cabinet. Id. at 21. Rich testified that Exel delivery drivers would typically place the crates on the ground standing up, rather than placing them flat on the floor. Id. at 38. Rich had never previously seen crates placed in that location. Id. at 36-37. She testified that their placement on the ground was dangerous. Id. at 24.

         The agreement between Circle K and Exel provides:

Each party hereto . . . shall indemnify, defend and hold harmless the other Party . . . from and against all liabilities, claims, suits, demands, appeals, actions . . . of any kind . . . from third parties arising out of or in connection with . . . injury to . . . any person . . . to the extent caused by or resulting from such Party's negligent acts or omissions, or those of Its employees, except to the extent caused by the negligent acts or omissions of Indemnitee.

         Agreement § ...


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