United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge.
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.
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
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.
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.
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.
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.
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