United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
matter is before the Court on Defendant's Motion for
Summary Judgment [DE 24]. Plaintiff responded [DE 33],
Defendant replied [DE 49], and this motion is now ripe for
review. For the reasons stated below, Defendant's motion
will be granted.
1, 2015, Plaintiff Richard Padgett visited Walmart Store
#3894, located at 2350 Grey Lag Way, Lexington, Kentucky to
do some shopping. He arrived using a walker to assist in his
mobility. He dropped off the walker at the service desk near
the store entrance, obtained an electronic shopping cart, and
rode in it to the men's restroom near the front of the
store. Plaintiff left the electronic shopping cart outside
the men's restroom and went inside, walking without the
assistance of a walker or cart. Plaintiff used the
handicapped-accessible stall while standing up, flushed the
toilet, exited the stall, and proceeded towards the exit when
he fell “face first” onto the bathroom floor.
Plaintiff admits he did not see any liquid or object on the
floor, or any defect with the floor prior to his fall.
Plaintiff did not feel any liquid on the floor with his
hands; however, when he was on the emergency medical services
(EMS) stretcher, he observed a damp spot on his pants about
the size of a softball. Plaintiff argues this proves there
was liquid on the floor which was absorbed onto his pants,
and that it was that liquid which caused him to slip and
fall. Defendant argues Plaintiff simply fell, likely as a
result of his unsteadiness/preexisting health problems or
hyperglycemia. Defendant argues there was no liquid on the
floor, and supports this with photographs of the dry restroom
floor after the incident and a witness statement that
Plaintiff “simply lost his balance and fell.” [DE
24, Ex. 3 and 7]. Plaintiff had extensive medical treatment
after the fall, which Plaintiff attributes to the fall.
Defendant largely attributes the medical treatment to other
causes, such as Plaintiff's diabetic foot ulcer, which
predated the fall.
removed this case to federal court based on diversity
jurisdiction. 28 U.S.C. § 1332. Accordingly, Kentucky
substantive slip-and-fall law applies in this case. Federal
law governs the procedural aspects of this case, including
the summary judgment standard. Hanna v. Plumer, 380
U.S. 460, 465 (1965) (“federal courts are to apply
state substantive law and federal procedural law.”);
See also Erie R. Co. v. Tompkins, 304 U.S. 64
judgment is appropriate when 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). If there is a dispute
over facts that might affect the outcome of the case under
governing law, then entry of summary judgment is precluded.
Anderson v. Liberty Lobby, Inc., 242');">477 U.S. 242, 248
(1986). The moving party has the ultimate burden of
persuading the court that there are no disputed material
facts and that he is entitled to judgment as a matter of law.
party files a properly supported motion for summary judgment
by either affirmatively negating an essential element of the
non-moving party's claim or establishing an affirmative
defense, “the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.'” Id. at 250 (quoting Fed.R.Civ.P.
56(e)). “The mere existence of a scintilla of evidence
in support of the [non-moving party's] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].”
Id. at 252. In determining 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[, ]” the Court
must review the facts and draw all reasonable inferences in
favor of the non-moving party. Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.
1989); Anderson, 477 U.S. at 255).
the substantive Kentucky law, this case presents a claim
based on premises liability, which requires a plaintiff to
prove: “(1) a duty owed by the defendant to the
plaintiff, (2) breach of that duty, (3) injury to the
plaintiff, and (4) legal causation between the
defendant's breach and the plaintiff's injury.”
Wright v. House of Imports, Inc., 381 S.W.3d 209,
213 (Ky. 2012).
respect to the element of duty, Kentucky courts use a
burden-shifting approach. Lanier v. Wal-Mart Stores,
Inc., 99 S.W.3d 431 (Ky. 2003).
Under Lanier, the customer retains the burden of
proving that: (1) he or she had an encounter with a foreign
substance or other dangerous condition on the business
premises; (2) the encounter was a substantial factor in
causing the accident and the customer's injuries; and (3)
by reason of the presence of the substance or condition, the
business premises were not in a reasonably safe condition for
the use of business invitees.
Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky.
2003). If Plaintiff can so prove, there is a rebuttable
presumption of negligence and the burden shifts to Wal-Mart
to prove the absence of negligence by showing that it
exercised reasonable care in maintaining its premises.
Id. To succeed on its motion for summary judgment,
Defendant must demonstrate there is no genuine issue of
material fact regarding one of the elements of
Plaintiff's claim. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).
first two elements of Plaintiff's claim under the
Lanier burden-shifting scheme are at issue in this
case. Defendant, using Plaintiff's deposition testimony,
argues there was no dangerous condition giving rise to
liability. [DE 24, p. 8]. Defendant correctly points out that
Plaintiff testified he found the restroom clean, did not see
any liquid or tripping hazard on the floor, did not feel any
liquid on the floor with his hands, and no one told him there
was any liquid on the floor. [DE 24, p. 8, and Ex. 1,
Deposition of Plaintiff, pp. 72-95]. Defendant notes
Plaintiff's extensive medical history prior to the fall,
which included incontinence, Parkinson's disease, gait
disturbance, and foot drop. [DE 24, p. 6 and Plaintiff's
medical record, Ex. 4]. Defendant's theory of the case is