United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge
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
STATEMENT OF FACTS AND CLAIMS
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).
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).
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).
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).
Defendant's Motion for Summary Judgment (DN
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
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
action concerns premises liability, a subsection of general
negligence law. 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).
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 ...