United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning, United States District Judge.
matter is before the Court upon Defendant Wal-Mart Stores,
Inc.'s (Wal-Mart) motion for summary judgment (Doc. #
12). Plaintiff having responded to the motion (Doc. # 15),
and Wal-Mart having filed its reply (Doc. # 18), the motion
is ripe for review. For the reasons stated below, the Court
finds the motion to be well-taken, and will grant summary
judgment in favor of Wal-Mart.
FACTUAL AND PROCEDURAL BACKGROUND
John Schweitzer worked for Advantage Sales and Marketing
(“ASM”), representing sales of GlaxoSmithKline
products to retail stores. (Doc. # 12-2 at 6). His job
required him to go into retailers, such as Wal-Mart or
Kroger, and ensure that the brands he represented were
properly tagged on the shelves and were stocked on shelves in
an appealing manner. Id. at 6-7. In addition,
Plaintiff would construct displays for his products when
necessary, and talk to department heads about brand volume,
targeted advertising, and freshness. Id. at 7.
Plaintiff indicated in his deposition that Wal-Mart's
employees engaged in the same type of work Plaintiff did, for
different products. Id. at 7. The Wal-Mart in
Maysville stocked approximately 150 of the brands Plaintiff
represented, including Tums, Nicorette, and Abreva.
Id. at 6. Plaintiff's work for ASM took him to
that store once per month from 2002 until early 2015.
Id. at 18.
March 2, 2015, Plaintiff arrived at the Wal-Mart in Maysville
at about 9:00 a.m., coming from a previous stop at the
Maysville Kroger. Id. at 18. In a time period
spanning approximately three minutes, Plaintiff exited his
car, started walking across the parking lot, and slipped on a
patch of ice 15-20 feet from his car. Id. at 18,
21-22. As a result, Plaintiff filed a
workers'-compensation claim, indicating that he was
injured doing work for ASM at Wal-Mart. Id. at 10;
see also Doc. # 18-1 at 1 (“Describe how the
injury occurred: Walking into Walmart in Maysville, KY to
deliver products, slipped and fell on ice injuring
February 29, 2016, Plaintiff filed a complaint against
Wal-Mart in the Mason County Circuit Court, alleging that as
the result of his fall, he has sustained a permanent and
serious injury to his right shoulder. (Doc. # 1-3, at 1-2).
Plaintiff alleges three counts against Wal-Mart: (1)
negligent inspection and maintenance; (2) premises liability;
and (3) negligent hiring and supervision. Id. at
2-3. Specifically, Plaintiff seeks compensatory damages and
claims that as a result of Wal-Mart's negligence and
recklessness, he has suffered permanent injuries, resulting
in past, present, and future medical expenses, lost wages,
and great mental and physical pain and suffering.
Id. at 3-4.
August 2, 2017, Wal-Mart filed a Motion for Summary Judgment,
arguing that Plaintiff had already been compensated for his
injuries through the Kentucky Workers' Compensation
program, and as an up-the-ladder employer, Wal-Mart was
immune from tort liability for injuries incurred on its
premises and subsequently compensated under a workers'
compensation claim. (Docs. # 12 and 12-1). Plaintiff
responded in opposition (Doc. # 15), to which Wal-Mart
replied. (Doc. # 18).
Standard of Review
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). The
moving party has the initial burden of “showing the
absence of any genuine issues of material fact.”
Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483
(6th Cir. 2008). Once the moving party has met its burden,
the nonmoving party must cite to evidence in the record upon
which “a reasonable jury could return a verdict”
in its favor; a mere “scintilla of evidence” will
not do. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-52 (1986). At the summary-judgment stage, a court
“views the evidence in the light most favorable to the
nonmoving party and draws all reasonable inferences in that
party's favor.” Slusher v. Carson, 540
F.3d 449, 453 (6th Cir. 2008).
Kentucky law provides up-the-ladder immunity for
Kentucky Workers' Compensation Act is a legislative
remedy which affords an injured worker a remedy without proof
of the common law elements of fault.” General
Electric Co. v. Cain, 236 S.W.3d 579, 606 (Ky. 2007). On
balance, two sections of this Act, when read in conjunction,
give a premises owner immunity from tort liability with
respect to tort-related injuries so long as the premises
owner had workers' compensation coverage and the worker
was injured performing work of the type that was a regular or
recurring part of the premises owner's business.
Cain, 236 S.W.3d at 585 (discussing Ky. Rev. Stat.
Ann. §§ 342.690(1) and 342.610(2)). The premises
owner asserting this up-the-ladder defense has the burden of
both pleading and proving the affirmative defense.
or recurring” has been interpreted to mean that the
type of work is performed as part of the usual, normal, or
customary part of the particular business, which one would
expect the employees to normally perform, and that it is
repeated “with some degree of regularity.”
Id. at 588. The test to determine whether the type
of work is that which would be normally performed by the
business is a relative test, not an absolute one.
Id. And proof of purchase of a
workers'-compensation policy, absent evidence that the