United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge.
matter is before the Court on the renewed motion of Dollar
General Corporation, Dollar General Partners, and DG
Strategic VI, LLC (“Dollar General”) for summary
judgment under Federal Rule of Civil Procedure
56(a). DN 37. Plaintiff Brenda Richardson
responded. DN 39. Dollar General replied. DN 42. For the
reasons explained below, the Court will deny Dollar
General's renewed motion for summary judgment.
case arises out of a slip-and-fall that occurred on September
7, 2015 at a Dollar General in Elizabethtown, Kentucky. The
Court recounted the facts of this case at length in its May
16, 2017 memorandum opinion (DN 18), and again briefly in its
August 7, 2017 memorandum opinion (DN 23). The Court will,
again, briefly summarize the events giving rise to the claims
and provide an updated procedural history of the case.
September 7, 2015, Richardson went to Dollar General's
store in Elizabethtown, Kentucky (“the store”) at
approximately 12:00 P.M. Richardson Dep., DN 37-2,
at 39:14-39:23. Almost immediately after entering the store,
Richardson slipped and fell to the floor. Id. at
44:3-44:8. Richardson testified that she did not look down at
the floor and she did not see that the floor was wet until
she was on the ground. Id. at 55:22-56:21.
Richardson acknowledged there was a “wet floor”
cone at the front of the store, but that the cone was beyond
where she slipped and fell. Id. at 48:22-48:24;
50:1-50:22. Both Richardson and Kay Duvall, a manager at the
store, testified it rained on the date of the
accident. Richardson Dep., DN 37-2, at
44:16-44:22; Duvall Dep., DN 39-2, at 40:7,
brought this premises liability action against Dollar
General. Dollar General then moved for summary judgment
claiming, in relevant part, that Dollar General satisfied the
duty of care that a landowner owes to an invitee under
Kentucky law by placing a yellow cone near the substance on
the floor. DN 13, at 7-9. In its memorandum opinion dated May
16, 2017, this Court explained this argument was unavailing
because-although Dollar General had placed a yellow cone on
the floor-Dollar General did “not provide any
evidence showing that the cone's placement relative to
the substance was a reasonable precaution to prevent invitees
from being injured.” DN 18, at 8 (emphasis in
original). This Court noted, “[i]f the available
evidence showed that the yellow cone had been placed
sufficiently close to the substance on the floor such that
there was no genuine dispute of fact that the cone was a
reasonable precaution to prevent injury, summary judgment
would be appropriate.” Id.
15, 2017, Dollar General moved to alter or amend the May 16,
2017 memorandum opinion arguing that summary judgment was
appropriate because “the cone clearly was in close
proximity to where Plaintiff fell, or in other words, to the
substance on which Plaintiff slipped.” DN 20, at 5. In
support of this assertion, Dollar General attached a still
from surveillance footage showing the cone “in close
proximity” to where Richardson fell. Id. at 5
(internal quotation marks omitted); DN 20-2. In its August 7,
2017 memorandum opinion, this Court denied Dollar
General's motion to alter or amend the Court's prior
Dollar General merely repeats arguments that it made in its
original motion for summary judgment or raises arguments that
could have been raised before the Court denied its motion for
summary judgment. Dollar General still does not provide
evidence showing that the cone's placement relative to
the substance on the floor was a reasonable precaution to
prevent invitees from being injured. Dollar General states
that the cone ‘clearly was in close proximity to where
Plaintiff fell, or in other words, to the substance on which
Plaintiff slipped.' Mot. Amend 5, ECF No. 20. But Dollar
General never identified the cone in the photographic
evidence from the video surveillance equipment, nor did it
ask Richardson to estimate the distance between the cone and
the substance on the floor.
DN 23, at 6. Now, Dollar General takes its third bite at the
apple and renews its request for summary judgment on the
issue of whether Dollar General satisfied the duty of care it
owed, as a landowner, to an invitee.
granting a motion for summary judgment, a court must find
that “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 party moving for summary
judgment bears the initial burden of establishing the
nonexistence of any issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). The moving party
satisfies this burden by “citing to particular parts of
materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c). When resolving a motion for summary judgment, the
court must view the evidence in the light most favorable to
the non-moving party. Scott v. Harris, 550 U.S. 372,
378 (2007). A genuine issue of material fact exists “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Court gave a detailed history of Kentucky premises liability
law in its May 17, 2017 memorandum opinion. See DN
18, at 3-4. In summary, a landowner owes a duty to an invitee
to take reasonable steps to either eliminate or warn of
unreasonably dangerous conditions on its land. Shelton v.
Ky. Easter Seals Soc., Inc., 413 S.W.3d 901, 909 (Ky.
2013). This duty exists whether the conditions are open and
obvious or hidden. Goodwin v. Al J. Schneider Co.,
501 S.W.3d 894, 899 (Ky. 2016). In determining whether the
landowner has breached its duty, “the court does not
look to whether the conditions were open and obvious but to
whether the landowner took reasonable steps to eliminate the
risks created by the conditions.” Id. (citing
Shelton, 413 S.W.3d at 918). If there is a genuine
issue of material fact regarding the reasonableness of the
steps the landowner took, then summary judgment is not
appropriate. Id. Because Kentucky has adopted a
comparative fault tort ...