United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge
matter is before the Court on the motion of Dollar General
Corporation, Dollar General Partners, and DG Strategic VI,
LLC (“Dollar General”) for summary judgment under
Federal Rule of Civil Procedure 56(a), ECF No. 13. Plaintiff
Brenda Richardson responded, ECF No. 16. Dollar General
replied, ECF No. 17. For the reasons explained below, the
Court will deny Dollar General's motion for summary
September 7, 2015, Richardson went to Dollar General's
store in Elizabethtown, Kentucky (“the store”)
around 12:00 P.M. Compl. ¶¶ 5, 10, ECF No. 1-1;
Richardson Dep. 2, ECF No. 16-2. A record of climatological
observations attached as an exhibit to Richardson's
memorandum of law shows that it did not rain in Elizabethtown
that day. Ex. 1 at 3, ECF No. 16-1. Richardson testified at
her deposition that it might have rained or
“sprinkled” earlier in the day. Richardson Dep.
3, ECF No. 13-1.
remembered that she parked her car in front of the store.
Richardson Dep. 3, ECF No. 16-2. When opposing counsel asked
her if she might have been taking extra precautions while
walking into the store because the floors could have been
wet, Richardson answered in the affirmative. Richardson Dep.
4, ECF No. 13-1. She said that she began walking towards the
store's front entrance. Id. at 3. The automatic
doors opened. Id. Almost immediately after entering
the store, she slipped and fell to the floor. Id.
further testified that she did not see that the floor was
slippery until she was on the ground. Richardson Dep. 6, ECF
No. 16-2. But as she was walking into the store, she saw a
yellow cone on the floor that signaled that the floor was
slippery. Richardson Dep. 5, ECF No. 13-1. Richardson stated
that the yellow cone was beyond where she slipped and fell.
Id. at 6.
deposition, Richardson agreed that she had a responsibility
for her own safety and a responsibility to look where she was
walking. Id. at 9. She then affirmed that if she had
looked at the floor before she fell, she would have been able
to see that it was wet. Id.
filed suit against Dollar General in the Hardin County,
Kentucky Circuit Court in September 2016. Compl. 1, ECF No.
1-1. She asserts that Dollar General was negligent in
maintaining the entrance of the store, which caused her
injuries. Id. ¶¶ 6-13. She seeks
compensatory damages and all other appropriate relief.
Id. at 6. Soon after she filed suit in the Hardin
County Circuit Court, Dollar General removed the case to this
Court. Not. Removal 1, ECF No. 1. Dollar General now moves
for summary judgment on her claims. Mot. Summ. J. 1, ECF No.
Standard of Review
granting a motion for summary judgment, a court must find
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 party moving for summary
judgment bears the initial burden of establishing the
nonexistence of any issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). The moving party
satisfies this burden by “citing to particular parts of
materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c). When resolving a motion for summary judgment, the
court must view the evidence in the light most favorable to
the non-moving party. Scott v. Harris, 550 U.S. 372,
premises liability cases, land possessors generally owe
invitees a duty to “discover unreasonably dangerous
conditions on the land and to either correct them or warn of
them.” Ky. River Med. Ctr. v. McIntosh, 319
S.W.3d 385, 388 (Ky. 2010). Traditionally, in Kentucky, when
the unreasonably dangerous conditions on the land were open
and obvious, the landowner's duty of care owed to
invitees would have been eliminated, and the landowner could
not be held liable in negligence. Shelton v. Ky. Easter
Seals Soc'y, Inc., 413 S.W.3d 901, 910 (Ky. 2013);
see also Standard Oil v. Manis, 433 S.W.2d 856, 858
(Ky. 1968) (establishing that “natural outdoor hazards
which are as obvious to an invitee as to an owner of the
premises do not constitute unreasonable risks to [the
invitee] which the landowner has a duty to remove or warn
has since changed. In 2010, the Kentucky Supreme Court
explained that the state's adoption of a comparative
fault tort regime compelled modifying the open and obvious
doctrine of premises liability. McIntosh, 319 S.W.3d
at 389; see also Hilen v. Hays, 673 S.W.2d 713, 720
(Ky. 1984) (supplanting Kentucky's contributory
negligence doctrine with comparative negligence). In a
comparative fault tort regime, “every person has a duty
of ordinary care in light of the ...