United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on defendant's motion for
summary judgment (DE 28). Plaintiff Holyfield has responded
(DE 29), defendant Wal-Mart has replied (DE 30), and this
motion is ripe for review. For the following reasons,
defendants motion (DE 28) is GRANTED.
September 28, 2016, plaintiff Holyfield was shopping at
Wal-Mart store #2548 in South Williamson, Kentucky. (DE 1-2
at 9). Holyfield alleges that when she reached for a
one-liter bottle of flavored water from an overhead shelf,
other one-liter bottles of flavored water fell off the shelf
and struck her, causing injuries to her face, head, and neck.
(DE 29 at 1). Holyfield alleges that the arrangement of the
bottled water constituted a dangerous condition because they
were not stocked in cardboard boxes, but were placed bare
upon the shelves, having no “fencing” to keep
them from falling. (DE 29 at 3). She believes Wal-Mart is
responsible for the injuries she incurred. Wal-Mart alleges
that any possible danger from the bottled water was open and
obvious, and Holyfield cannot prove the traditional elements
of negligence. Both parties have supplemented the record,
including the depositions of Holyfield and Wal-Mart
employees. Further, the Court has been provided a photo
showing the type of water bottles sold, and overhead shelving
used, in store #2548. (DE 28-3). The Court finds the record
is sufficient to consider the motion for summary judgment.
judgment is proper “if the movant shows that 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). The moving party bears the initial burden and must
identify “those portions of the pleadings...which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (internal citation omitted). The movant
may meet this burden by demonstrating the absence of evidence
supporting one or more essential elements of the
non-movant's claim. Id. at 322-25.
the movant meets the initial burden, the opposing party
“must set forth specific facts showing that there is a
genuine issue for trial.” Fed.R.Civ.P. 56(e). When, as
here, a defendant moves for summary judgment, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). It is not sufficient
“simply [to] show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rule 56(e) “requires the nonmoving party to go beyond
the pleadings” and present some type of evidentiary
material in support of its position. Celotex Corp.,
477 U.S. at 324. Summary judgment must be entered
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Id. at 322.
“[T]he evidence should be viewed in the light most
favorable to the non-moving party.” Ahlers v.
Schebil, 188 F.3d 365, 369 (6th Cir. 1999) (citing
Anderson, 477 U.S. at 255).
diversity action, the Court applies Kentucky law to the
substantive legal issues. Under Kentucky law, a plaintiff
must prove three elements to recover on a negligence claim:
(1) a duty on the part of the defendant; (2) breach of that
duty; and (3) consequent injury. Mullins v. Commonwealth
Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992). Defendant
Wal-Mart concedes that it has an affirmative duty to maintain
a reasonably safe premises for its patrons, which involves
the responsibility to discover unreasonably dangerous
conditions and either correct them or warn of them. (DE 28 at
4); Dick's Sporting Goods, Inc. v. Webb, 413
S.W.3d 891, 897-98 (Ky. 2013). Wal-Mart, however, argues that
any dangerous condition presented by the bottled water was
open and obvious. (DE 28 at 3).
has adopted the Restatement (Second) of Torts' approach
to the open and obvious condition doctrine. See Shelton
v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901,
910-911 (Ky. 2013); see also Restatement (Second) of
Torts § 343(A) (1965). “Under that approach, a
condition is open and obvious if either (1) a plaintiff is
subjectively aware of the condition and the risk it poses, or
(2) if, objectively, both the condition and the accompanying
risk ‘would be recognized by a reasonable man, in the
position of the visitor, exercising ordinary perception,
intelligence, and judgement.'” Parker v.
Wal-Mart Stores East, LP, 2016 WL 1448640, *2-3 (E.D.
Ky. 2016) (citing Restatement (Second) of Torts §
343(A)(1) cmt. B (1965)).
doctrine “suspends liability when the danger is known
or obvious to the invitee, unless the invitor should
anticipate or foresee harm resulting from the condition
despite its obviousness or despite the invitee's
knowledge of the condition.” Shelton, 413
S.W.3d at 911. Thus, even when there is an open and obvious
danger, the invitor still retains a duty to eliminate or warn
of unreasonable risks of harm. Id. at 914.
Essentially, if a “land possessor could reasonably
foresee that an invitee would be injured by the
danger…but nevertheless fails to take reasonable
precautions to prevent the injury, he can be held
liable.” Kentucky River Med. Ctr. V.
McIntosh, 319 S.W.3d 385, 392 (Ky. 2010).
Kentucky Supreme Court recites several factors that are
relevant when determining whether a defendant is liable
despite the obviousness of a danger:
[W]hen a defendant has reason to expect that the
invitee's attention may be distracted, so that he will
not discover what is obvious or will forget what he has
discovered, or fail to protect himself against it; and when a
defendant has reason to expect that the invitee will proceed
to encounter the known or obvious danger because to a
reasonable man in his position the advantages of doing so
would outweigh the apparent risk.
Id. at 914 (citing Kentucky River Medical Center
v. McIntosh,319 S.W.3d 385 (Ky. 2010). Within the
negligence analysis of Kentucky law, “[t]he obviousness
of the condition is a ‘circumstance' to be factored
under the standard of care.” Shelton, 413
S.W.3d at 911. The inquiry remains one of foreseeability, and
“[a] risk is not unreasonable if a reasonable person in
the defendant's shoes would not take action to ...