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Alfaro v. Outback Steakhouse of Florida, LLC

United States District Court, W.D. Kentucky, Bowling Green Division

October 31, 2018



          Greg N. Stivers, Judge

         This matter is before the Court on the Motion for Summary Judgment (DN 34) filed by Defendant Outback Steakhouse of Florida, LLC (“Outback”) and Plaintiff's Motion for Leave to File Sur-Reply (DN 42). The motions are ripe for adjudication. For the reasons outlined below, the motions are DENIED.


         This case arises from a slip and fall at Outback's Bowling Green, Kentucky, restaurant on April 23, 2017. (Alfaro Dep. 22:2-6, July 13, 2018, DN 34-2). Plaintiff Sara Noemi Alfaro (“Alfaro”) entered the restaurant accompanied by her husband, Andres Ortiz (“Ortiz”), and their friend, Anthony Hills (“Hills”). (Alfaro Dep. 22:2-8). An Outback employee was escorting the party to their table when Alfaro slipped and fell in the dining area, dislocating her elbow. (Ortiz Dep., 29:3-18, July 13, 2018, DN 34-3; Andrade Dep. 26:1-3, July 17, 2018, DN 35-1).

         After Ortiz saw his wife fall, he felt the ground with his hand and detected a greasy or oily substance. (Ortiz Dep. 52:2-24). Hills recalls seeing Alfaro fall then witnessing Ortiz move his foot across the ground where his wife fell. Hills described what he saw on the floor where Ortiz moved his foot as “a film of-it could be grease, it could've been salad dressing, but you could see the streak as he rubbed his foot across of-like there was some sort of substance there on the floor.” (Hills Dep. 33:13-16, July 13, 2018, DN 34-4). Hills testified that he did not see anyone else slip and fall, nor did he notice anything on the floor before Alfaro's fall. (Hills Dep. 29:4-10).

         Two Outback employees, Katie Beth Henson and Chris Dinges (“Dinges”), inspected the area after the fall and allegedly found no unsafe condition in the area. (Henson Dep. 23:21-25, July 17, 2018, DN 34-5; Andrade Dep. 32:9-20, July 17, 2018, DN 41-4). Kayla Andrade (“Andrade”), another Outback employee, testified that Dinges used a flashlight to inspect the floor, looking for evidence of something that may have caused the fall. (Andrade Dep. 32:9-18, DN 41-4). While Outback has not produced testimony from Dinges directly, Andrade testified that Dinges found nothing after conducting an inspection with the flashlight. (Andrade Dep. 32:19-20, DN 41-4).


         This Court has original jurisdiction of “all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, as is between . . . citizens of different States . . . .” 28 U.S.C. § 1332(a)(1). Both parties are residents of different states. (Notice Removal ¶¶ 3-4, DN 1). Additionally, Defendant believes Plaintiff has alleged damages that satisfy the monetary threshold. (Notice Removal ¶ 6). See Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir. 2007).


         A. Defendant's Motion for Summary Judgment (DN 34)

         In ruling on a motion for summary judgment, the Court must determine whether there is any genuine issue of material fact that would preclude entry of judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating the basis for the motion and identifying evidence in the record that demonstrates an absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies its burden, the non-moving party must then produce specific evidence proving the existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         While the Court must view the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show the existence of some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Rather, the non-moving party must present specific facts proving that a genuine factual dispute exists by “citing to particular parts of the materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient” to overcome summary judgment. Anderson, 477 U.S. at 252.

         This action concerns premises liability, a subsection of general negligence law.[1] See Colyer v. Speedway, LLC, 981 F.Supp.2d 634, 639 (E.D. Ky. 2013). Under Kentucky law, a negligence claim requires (1) a duty owed to the plaintiff; (2) a breach of that duty; and (3) a causal link between the breach and the harm to the plaintiff. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003). In the context of premises liability, proprietors owe a duty to invitees to exercise reasonable care to guard against dangerous conditions that the proprietor either knows about or could have discovered and of which the invitee could not reasonably have been aware. Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 432-33 (Ky. 2003); Smith v. Steak ‘n Shake, No. 3:14-CV-00642-TBR-LLK, 2016 WL 4180002, at *2 (W.D. Ky. Aug. 5, 2016).

         Since 2003, Kentucky courts have applied a burden shifting analysis to slip and fall claims. Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky. 2003). Under this ...

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