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Dunn v. Wal-Mart Stores, East, LP

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

June 15, 2017

SANDRA DUNN, PLAINTIFF,
v.
WAL-MART STORES, EAST, LP, DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          Henry R. Wilhoit Jr. Judge

         This matter is before the Court upon Defendant Wal-Mart Stores East, LP's Motion for Summary Judgment [Docket No, 20]. The matter has been fully briefed [Docket Nos. 20-1. 24 and 27]. 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 trip-and-fall which occurred at the Wal-Mart in Cannonsburg, Kentucky on October 28, 2014 [Docket No. 1-2, Complaint, ¶7], Plaintiff alleges that on that day, she was shopping at the Wal-Mart and fell on the concrete sidewalk outside of the store's Tire and Lube Express Department. Specifically, she maintains that she tripped over an uneven sidewalk expansion joint [Docket No. 20-2, Deposition of Plaintiff, pg. 62]. In her deposition, Plaintiff testified that she did not see her foot catch on anything before she fell. Id.. Instead, she was looking straight ahead when she tripped and fell. Id. at 74. She did not see any uneven portion of the sidewalk until after she fell. Id. at 71. Once she fell, she claims the uneven sidewalk was easy to see and obvious. Id. at 71-72. Further, she stated that sees expansion joints like this all the time, although she walks around them. Id. at 74. She previously has encountered expansion joints, concrete slabs, or pieces of pavement coming together, like she saw after falling, and she expects to see this type of thing when walking outside. Id. at 70-71.

         Plaintiff claims to have suffered significant injury resulting from the fall, to the extent that she underwent knee surgery [Docket No. 1-2, ¶ 8].

         Plaintiff 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.

         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, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgement as a matter of law." Fed.R.Civ.Proc. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 323-325 (1986).

         The moving party bears the initial burden of demonstrating the basis for its motion and identifying those parts of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.2002). The movant may satisfy its burden by showing "that there is an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325. Once the movant has satisfied this burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate there is a genuine issue in dispute. Hall Holding, 285 F.3d at 424 (citing Celotex Corp., 477 U.S. at 324).

         The Court must then determine "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). In making this determination, the Court must review the facts and draw all reasonable inferences in favor of the non-moving party. Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir.2001). Summary judgment is inappropriate where there is a genuine conflict "in the evidence, with affirmative support on both sides, and where the question is which witness to believe." Id.

         To prevail on a negligence claim under Kentucky law, the plaintiff must prove that the defendant 1) owed the plaintiff a duty of care, 2) the defendant breached the standard of care by which his or her duty is measured, and 3) that the breach was the legal causation of the consequent injury. Pathways, Inc. v. Mammons,113 S.W.3d 85, 88-89 (Ky.2003). The failure to establish the existence of any one of ...


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