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Schweitzer v. Wal-Mart Stores, Inc.

United States District Court, E.D. Kentucky, Northern Division, Covington

December 20, 2017



          David L. Bunning, United States District Judge.


         This 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.


         Plaintiff 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.

         On 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 arm.”)

         On 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.

         On 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).

         III. ANALYSIS

         A. Standard of Review

         Summary 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).

         B. Kentucky law provides up-the-ladder immunity for contractors.

         “The 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. Id.

         “Regular 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 ...

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