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Holyfield v. Wal-Mart Stores East, L.P.

United States District Court, E.D. Kentucky, Southern Division, Pikeville

November 27, 2017

TABITHA HOLYFIELD, Plaintiff,
v.
WAL-MART STORES EAST, L.P., Defendant.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE

         This 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.

         I. BACKGROUND

         On 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.

         II. ANALYSIS

         a. Legal standards

         Summary 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.

         Once 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).

         In this 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).

         Kentucky 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)).

         The 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).

         The 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 ...


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