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Richardson v. Dollar General Corp.

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

May 16, 2017

BRENDA RICHARDSON PLAINTIFF
v.
DOLLAR GENERAL CORPORATION, DOLLAR GENERAL PARTNERS, DG STRATEGIC VI, LLC, and UNKNOWN DEFENDANT DEFENDANTS

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         I. Introduction

         This 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 judgment.

         II. Background

         On 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.

         Richardson 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.

         Richardson 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.

         In her 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.

         Richardson 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. 13.

         III. Standard of Review

         Before 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, 378 (2007).

         IV. Discussion

         In 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 against”).

         The law 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 ...


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