United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
R. WILHOLT JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Wal-Mart Stores,
Inc.'s Motion for Summary Judgment [Docket No. 19]. The
matter has been fully briefed by the parties [Docket Nos,
19-1, 23 and 29]. For the reasons stated herein, the Court
finds that Defendant is entitled to judgment as a matter of
case arises from an incident which occurred at the Wal-Mart
in Ashland, Kentucky on August 21, 2014. On that day,
Plaintiff Jodie Workman went to Wal-Mart with her son to shop
for school supplies. [Deposition of Plaintiff, Docket No.
19-2, pg. 53]. In her deposition, she described the incident
in detail. When they finished shopping, Plaintiff put her
groceries in the trunk of her car and returned her cart next
to a cart corral in the parking lot. Id. at 56, 61.
When she approached the cart corral, there were several carts
extending from the it as well carts surrounding it.
Id. at 58. The carts that extended out of the cart
corral were collapsed into one another. Id. at 59.
There were also carts collapsed into one another next to the
cart corral, and some carts were by themselves. Id.
at 60. Plaintiff positioned her cart next to the other carts,
very carefully, so it would not turn or roll. Id. at
58, 60, 62. She saw carts, in her peripheral vision, ahead of
where she placed her cart, begin to move. Id. She
does not know why these carts started to move. Id.
at 70-71. She does not believe she touched any other
carts when she placed her cart next to the carts outside of
the cart corral. Id. at 61. She does not know if
another customer knocked the carts, starting their motion.
Id. at 62. She testified that it was easy to see the
carts moving toward her, because this was quite obvious.
Id. at 78. When the carts began to move, however,
rather than getting out of the way, Plaintiff began
collecting the carts and placing them back within the corral.
Id. at 62-63. She did this for "probably a good
five minutes, " but it "seemed like it took
forever." Id. at 63. Plaintiff admitted that no
one - not another shopper or a Wal-Mart employee - told her
to collect the carts. Id. at 66.
point during the five minutes, Plaintiff noticed a cart
coming toward her, and she raised her hand to stop it.
Id. at 32, 64. A cart then hit the top of her right
hand. Id. at 32, 64. When her right hand was struck
by the cart, both of her palms were facing away from the cart
and her fingertips were pointed down towards the ground,
Id. at 64-65.
son was sitting in the car when the accident happened, but
did not witness it. Id. at 54. Plaintiff does not
know if the cart that hit her was the one she had used while
she was shopping. Id. at 65. Plaintiff cannot
identify which cart struck her. Id. at 68. She
looked at the cart that struck her and saw nothing wrong with
result of the impact with carts, Ms. Workman suffered a torn
tendon in her hand. She had surgery and was off work because
of it for a few months. She alleges that the medical bills
were over $40, 000.00 and she continues to have problems with
sued Wal-Mart for negligence in Boyd Circuit Court, seeking
payment of medical expenses, lost wages, and damages for her
pain and suffering and her impaired capacity to earn money.
case was removed to this Court upon the basis of diversity
jurisdiction. See 28 U.S.C. § 1332.
now seeks summary judgement, arguing that Plaintiff has
failed to bring forth any evidence that Wal-Mart breached a
duty to her or caused the accident.
judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S.317, 322-23 (1986). A dispute over a
material fact is not "genuine" unless a reasonable
jury could return a verdict for the nonmoving party. That is,
the determination must be "whether the evidence presents
a sufficient disagreement to require submission to a jury or
whether it is so onesided that one party must prevail as a
matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S.242, 251-52(1986).
a moving party has met its burden of production, 'its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts."
Keeneland Ass'n, Inc. v. Barnes, 830 F.Supp.
974, 984 (E.D. Ky. 1993) citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
nonmoving party may not merely rely upon the assertions in
its pleadings; rather that party must come forward with
probative evidence, such as sworn affidavits to support its
claims. Celotex, 477 U.S. at 324. In making this
determination, the Court must review all the facts and the
inferences drawn from those facts in the light most favorable
to the nonmoving party. Matsushita, 475 U.S. at 587.
the standard for determining whether summary judgment is
appropriate is "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Booker v. Brown & Williamson
Tobacco Co.,8 ...