United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
Sparks fell on the walkway leading into Kroger. [R. 47 at 2.]
Afterwards she sued for her injuries. [R. 1-1.] Seeking to
limit its liability, Kroger brought a third-party claim
against its landlord, Village Square. [R. 1-4.] Sparks
followed, but her claim against Village Square was
time-barred. [R. 45.] As a result, only Sparks' claim
against Kroger remains. [R. 46-1.] Kroger thinks this
remaining claim should be dismissed on summary judgment
because they did not owe a duty of care to Sparks. [R. 46-1]
The Court agrees and for the forgoing reasons that motion is
action is in federal court based on diversity jurisdiction,
28 U.S.C. § 1332. Because Kentucky is the forum state,
its substantive law will be used. Rawe v. Liberty Mut.
Fire Ins. Co., 462 F.3d 521, 526 (6th Cir.2006)
(citations omitted). However, federal procedural law will
govern as applicable, including in establishing the
appropriate summary judgment standard. Weaver v. Caldwell
Tanks, Inc., 190 Fed.Appx. 404, 408 (6th Cir.2006).
judgment is appropriate when “the pleadings, discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c)(2); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). “A genuine dispute exists on a
material fact, and thus summary judgment is improper, if the
evidence shows ‘that a reasonable jury could return a
verdict for the nonmoving party.'” Olinger v.
Corp. of the President of the Church, 521 F.Supp.2d 577,
582 (E.D.Ky.2007) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). The moving party has the initial burden of
demonstrating the basis for its motion and identifying those
parts of the record that establish the absence of a genuine
issue of material fact. Chao v. Hall Holding Co.,
Inc., 285 F.3d 415, 424 (6th Cir.2002). The movant may
satisfy its burden by showing “that there is an absence
of evidence to support the non-moving party's
case.” Celotex Corp., 477 U.S. at 325, 106
S.Ct. 2548. Once the movant has satisfied this burden, the
nonmoving party must go beyond the pleadings and come forward
with specific facts to demonstrate there is a genuine issue
in dispute. Hall Holding, 285 F.3d at 424 (citing
Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548).
Court must then determine “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th
Cir.1989) (quoting Anderson, 477 U.S. at 251-52, 106
S.Ct. 2505). In making this determination, the Court must
review the facts and draw all reasonable inferences in favor
of the non-moving party. Logan v. Denny's, Inc.,
259 F.3d 558, 566 (6th Cir. 2001) (citing Anderson,
477 U.S. at 255, 106 S.Ct. 2505). Summary judgment is
inappropriate where there is a genuine conflict “in the
evidence, with affirmative support on both sides, and where
the question is which witness to believe.” Dawson
v. Dorman, 528 Fed.Appx. 450, 452 (6th Cir.2013).
prevail on a negligence claim under Kentucky law, the
plaintiff must prove that the defendant 1) owed the plaintiff
a duty of care, 2) the defendant breached the standard of
care by which his or her duty is measured, and 3) that the
breach was the legal causation of the consequent injury.
Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89
(Ky.2003); Wright v. House of Imports, Inc., 381
S.W.3d 209, 213 (Ky.2012). The element of duty is a question
of law for the court to decide, breach and injury are
questions of fact for the jury to decide, and causation is a
mixed question of law and fact. Pathways, Inc., 113
S.W.3d at 89 (citing Deutsch v. Shein, 597 S.W.2d
141, 145 (Ky.1980)). If there is a genuine dispute as to any
material fact concerning the elements of duty, breach, or
causation, such that a reasonable jury could find that Kroger
was negligent, the Court cannot grant summary judgment.
Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
defendant can only owe a duty to a plaintiff if they are the
possessor of the land where the accident
happened. Shelton v. Ky. Easter Seals Soc'y,
Inc., 413 S.W.3d 901, 909 (Ky. 2013). Therefore, who
possessed the walkway-either Kroger or Village Square-where
Sparks fell decides this motion. Kroger alleges that by
operation of contract and performance, Village Square was the
possessor of the walkway. Sparks disagrees. Nonetheless,
Kroger must prevail because even taking all inferences in the
plaintiff's favor still shows that Kroger is correct.
parties agree that Village Square retained by contract
responsibility over all Common Areas and the parking lot.
[R.46-1; R. 47.] And, in these Common Areas, Village Square
was required to repair and maintain, keep clean, remove snow
and ice, and keep the space lighted during business hours.
There the parties' agreement ends. Kroger contends that
the walkway is a Common Area in possession of Village Square.
Sparks counters that the plain text of the contract, which
defines Common Areas as those not covered by a store,
forecloses Kroger's reading. Since the walkway is
partially covered it cannot be a Common Area. By implication,
then, Kroger must be in possession.
further support, Sparks points to an unpublished case which
sought to put a gloss on the statutory definition of public
thoroughfare. Krietemeyer v. City of Madisonville,
2018 WL 4037645 (Ky. Ct. App. 2018). In that case, the
Kentucky Court of Appeals held that stairs leading up to a
police station were not a public thoroughfare because the
stairs had limited public access (no soliciting), could only
be used to access the building, and were physically attached
to the building. Id. Contrary to Sparks assertions,
those police station stairs are inapposite to the walkway in
front of Kroger. Here, the public had unfettered access to
the walkway in front of Kroger and could be used, at least in
some capacity, by customer's moving around the shopping
center. Yes, the walkway was attached to the Kroger building
but so are most shopping center sidewalks. To the degree that
this provides a similarity between the police station stairs
and the walkway-it is illusory.
response, Kroger's argument about the purpose of the
lease-term is persuasive. Village Square's duties in
Common Areas included maintenance, repairs, and snow removal.
Each of these obligations would be necessary for the upkeep
of this exposed concrete walkway. The similarity of duties
for keeping the walkway accessible to shoppers makes it like
all the other sidewalks in the development possessed ...