United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. Wilhoit Jr. Judge
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.
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.
claims to have suffered significant injury resulting from the
fall, to the extent that she underwent knee surgery [Docket
No. 1-2, ¶ 8].
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, 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).
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).
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.
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