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Queen v. Wal-Mart Stores, East, LP

United States District Court, E.D. Kentucky, Northern Division

June 1, 2017

DORA QUEEN, PLAINTIFF,
v.
WAL-MART STORES, EAST, LP, DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          Henry R. Wilholt Jr.United States District Judge

         This matter is before the Court upon Defendant Wal-Mart Stores, East, L.P.'s Motion for Summary Judgment [Docket No. 18]. The matter has been fully briefed by the parties [Docket Nos. 18-1, 20 and 21]. For the reasons set forth herein, the Court finds that Defendant is entitled to judgment as a matter of law.

         I.

         This case arises from a fall which occurred at the Wal-Mart in Cannonsburg, Kentucky on October 15, 2015 [Complaint, Docket No. 1 -1, ¶ 4]. On that day, Plaintiff Dora Queen, who was 74 years old at the time of the accident, was shopping at the Cannonsburg, Kentucky Wal-Mart. A few months earlier, she broke her right wrist in a different fall. She was still treating for her wrist injury on the day of the Wal-Mart accident. [Deposition of Plaintiff, Docket No. 18-3, pg. 16-22]. Plaintiff, pushing a cart, had just gathered a few items from the dairy before she fell. Id. at 50.

         In her deposition she describes the fall: She pushed her cart close to a large display of water on a pallet, and attempted to slide a case of water into her cart, so she would not have to use her injured hand to lift the water. Id. at 53, 60. Her right foot was behind the wheel of the cart, and she pulled her left leg up to balance herself. Id. at 61. Once she did so, she felt something pull. Id. She was thrown off balance and heard a snap. Id. at 53, 61. She fell toward the water. Id. at 60-61. Her cart went "flying down the aisle", she fell to both knees, and her right hand hit the case of water, Id. at 60. She then saw the piece of wood on the floor. Id. at 53, 65. It was not there before she fell. Id. at 67.

         As a result of the fall, Plaintiff suffered a torn left ACL as well as an unspecified torn ligament on her right side. Id. at 41-44. She claims that despite treatment and physical therapy, she still experiences pain in her knees and, as such, her activities are restricted. Id. at 47.

         Plaintiff filed a civil lawsuit against Wal-Mart in Boyd Circuit Court, alleging negligence and seeking compensatory damages, as well as attorney's fees [Docket No. 1].

         The case was removed to this Court upon the basis of diversity jurisdiction. See 28 U.S.C. § 1332.

         Defendant 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.

         II.

         Summary 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 one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

         "Once 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. Earnes, 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.

         Ultimately, 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., 879 F.2d 1304, 1310 (6th Cir. 1989) quoting Anderson, 477 U.S.at 251-52.

         In this diversity action, the Court applies Kentucky law to the substantive legal issues. Further, the parties do not dispute the standard to be applied to the Plaintiffs negligence claims. To prevail, she must prove three elements: (1) a duty on the part of the defendant; (2) a breach of that duty; and (3) consequent injury. Mullins v. Commonwealth Life Ins. ...


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