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Greer v. Kaminkow

United States District Court, E.D. Kentucky, Southern Division, Pikeville

July 3, 2019

JUDITH H. GREER, Plaintiff,
v.
JOSEPH E. KAMINKOW, et al., Defendants.

          OPINION AND ORDER

          Robert E. Wier, United States District Judge.

         Joseph E. Kaminkow and Benita Riley Kaminkow[1] seek summary judgment. DE #21 (Motion). Judith Greer opposed. DE #23 (Response). Defendants replied. DE #25 (Reply). The matter is ripe for consideration. For the following reasons, the Court DENIES the motion. A jury must assess the merits of Greer's negligence claim.

         I. BACKGROUND[2]

         On September 17, 2015, Greer slipped and fell while working at (cleaning) the home where Riley's daughter, Whitney Slone, lived, on Wilmington Lane in Lexington. At the time, Kaminkow and Riley owned the home. See DE #21-1, at 8. They permitted Slone (along with, at the time, a man and one child) to live there rent-free, although Slone did pay applicable utilities and taxes. DE #24-2 (Riley Depo.), at 11 (Depo. p. 10); see also DE #21-1, at 2 (stating that the purpose of the home was “to provide a dwelling for Riley's daughter”). The Court has seen no lease and no indication of a binding legal tenancy between the owners and Whitney Slone. Greer was (functionally, at least) an employee of Riley and Kaminkow; Defendants themselves say that Greer “was employed” by and “had worked for Riley since March of 2004.” Id;[3] 1-2 (Complaint) at ¶ 5; 1-1 (Answer) at ¶ 5-7 (calling Greer “domestic help”).

         On the day at issue, Riley directed Greer to go to Wilmington Lane to clean. DE #24-1, at 20. Riley and Kaminkow owned two Lexington homes, and Greer cleaned or worked at both, depending on the needs and the couple's direction. Greer began performing common household chores and ultimately began moving accumulated garbage and boxes from the garage to the street for anticipated trash pickup. Id. at 21-23. Greer's basic version of the story-which is what primarily matters in the current case context-is that while she was moving a large box filled with garbage down the driveway toward the street, she stepped on a separate, previously unseen, box in the driveway, causing her to slip and ultimately fall. In Plaintiff's own words:

I had taken several garbage bags down, so I got a hold of the box and was pulling the box down, I don't know whether I had one or two in my hand, . . . and I was going down backwards, but the driveway is slanted at an angle, pretty good angle, and evidently, the wind had blowed [sic] this box, it was a rather large box, it was maybe an inch and a half to two inches thick, dog carrier came in it, a metal dog carrier, and it wasn't on the ground the first couple of times I took garbage down, and Herbie down, and whenever I started down and was pulling the box down, I stepped on the box and started falling backwards. [A]nd if you are, whether it be like ice on a driveway is the only way I can describe it, you can't get your footing, you know. You are on the box, I could not get footing enough to stand up and I was falling backwards. . . . And I fell. I actually fell on two bags of garbage.

Id. at 23-24; see also Id. at 39 (Q: “So why do you think you fell?” A: “Because I stepped on the box and could not-- as I was trying to catch my footing, there was nothing to grab on to[.]” Q: “Did the box kind of slide with you?” A: “I think so.”); id. at 40 (describing the fall like being “on ice, ” “trying to catch your footing”). Greer described falling, sort of pinwheeling down the driveway, from the point she first stepped on the box to the point she landed on the ground. Greer Dep. at 39-40. She testified that she first encountered the box on the driveway itself, although she landed in the street.

         The parties have litigated the case, and Defendants now seek summary judgment.[4] They make two primary arguments: first, that they owed Greer no duty, and second, that even if they owed a duty, they did not breach. The Court has evaluated all briefing and the full record, and addresses each argument in turn.

         II. STANDARD

         A court “shall grant summary judgment if the movant shows 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). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec., 106 S.Ct. at 1356; Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).

         The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S.Ct. at 2552; see also Id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” (emphasis in original)).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 106 S.Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 2511; Matsushita Elec., 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”) (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428, 444-45 (6th Cir. 2006).

         III. ANALYSIS

         Greer levels a common-law negligence claim against Kaminkow and Riley. “The elements of a negligence claim are (1) a legally-cognizable duty, (2) a breach of that duty, (3) causation linking the breach to an injury, and (4) damages.” Patton v. Bickford, 529 S.W.3d 717, 729 (Ky. 2016).[5] “Duty presents a question of law, whereas breach and injury are questions of fact for the jury to decide. . . . Causation presents a mixed question of law and fact.” Id.

         Beginning in 2010, the Kentucky Supreme Court has effected “seismic” change in the Commonwealth's negligence law, at least relating to premises. See Grubb v. Smith, 523 S.W.3d 409, 415-21 (Ky. 2017), reh'g denied and modified, (Aug. 24, 2017) (narrating the evolution); Shelton v. Ky. Easter Seals Soc., Inc., 413 S.W.3d 901, 904 (Ky. 2013) (stating a desire to further Kentucky's “slow, yet steady, progress to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims”).[6] The core of the high court's reasoning aims to advance a “determined effort” to “limit holdings” that a premises hazard “is ‘not unreasonable as a matter of law,' to those rare instances where they are justified.” Grubb, 523 S.W.3d at 418 (majority opinion). The court's “intention [is] to return most . . . cases to jury consideration[.]” Id.

         Federal courts have recognized this: “[T]he Kentucky Supreme Court has repeatedly and explicitly declared that, under comparative fault, the unreasonableness and foreseeability of the risk of harm is normally a question for the jury to determine in deciding whether the defendant breached its duty of care in all but the rarest of circumstances.” Dunn v. Wal-Mart Stores E., LP, 724 Fed.Appx. 369, 374 (6th Cir. 2018). As Judge Stivers cogently summarized, Kentucky's negligence law “has evolved from a blunt question of . . . duty to a more nuanced analysis of breach and causation.” Wiley v. Sam's Club, Inc., No. 3:14-CV-54-GNS, 2015 WL 3687440, at *2 (W.D. Ky. June 12, 2015), aff'd, 632 Fed.Appx. 263 (6th Cir. 2016).

         A. Duty

         Defendants[7] first contest whether they owed Greer a duty.[8] As a beginning point, and to provide a workable framework for the duty inquiry, the Court views the relevant association between Defendants and Slone as most comparable to a landlord-tenant relationship.[9] The Court later explores other potential duty origins.

         1. Landlord Duty

         “When a tenant maintains complete control and possession over the premises and the landlord has no contractual or statutory obligation to repair, the landlord is only liable for ‘the failure to disclose known latent defects at the time the tenant leases the premises.'” Jaimes v. Thompson, 318 S.W.3d 118, 119 (Ky. Ct. App. 2010); see also Warren v. Winkle, 400 S.W.3d 755, 759 (Ky. Ct. App. 2013). If, on the other hand, there is a portion of the premises “retained by the lessor for the common use and benefit of a number of tenants, ” the landlord's duty is to “exercise ordinary care to keep in a reasonably safe condition the premises reserved for the common use of his tenants.” Carver v. Howard, 280 S.W.2d 708, 711 (Ky. 1955).[10] This case, though, is not about any duty Defendants owed Slone.

         In situations falling into the first category, a landlord owes a like (comparatively slight) duty to a tenant's guest or invitee.[11] See Starns v. Lancaster, 553 S.W.2d 696, 697 (Ky. Ct. App. 1977). The chief duty, quite logically, in that circumstance, falls on the tenant-the person asking the guest to her property. See Id. The relevant rules are worthy of extended quotation:

At common law, a tenant in full and complete control of premises which he occupies owes the same duty to persons coming there upon his invitation, express or implied, to keep such premises in a reasonably safe condition as he would if he were the owner, and is prima facie liable for damages proximately caused by defects in or dangers on the premises that reasonably could have been avoided by appropriate care taken by him, irrespective of whose duty it was, as between landlord and tenant, to make such repairs. Such invitees, when seeking redress for injuries sustained by them by reason of defects in the premises, must seek such redress from the tenant and not from the landlord, at least in the absence of any statutory provision making the landlord liable. . . .
As a general rule, a landlord who, without covenanting to repair, and without knowledge of latent defects, puts a tenant into full possession and control of the demised premises, not intended for public purposes, and which are free from defects of construction constituting a nuisance, will not, in the absence of statute, be liable for personal injuries sustained on the demised premises, by reason of the defective condition thereof, by the tenant and others entering on the premises under the tenant's title.

Id. (emphases added). Other cases confirm these principles and focus on the importance of the tenant inviting the involved third party. See Washington, 2017 WL 2889545, at *2 (“Kentucky courts have consistently held guests and invitees of a tenant are owed the same duties as the tenant.” (quoting Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 776 (Ky. Ct. App. 2000) (emphasis added)); Jaimes, 318 S.W.3d at 120 (affirming no landlord duty to a tenant's visiting friend).

         The critical fact that takes this case outside operation of that default rule is that Greer, here, was the landlord's invitee-not the tenant's. DE #24-1, at 20 (Greer: “Benita[] said . . . why don't you go help Whitney today.”). The record indicates that Riley asked Greer to work at Wilmington Lane on the day at issue, taking this situation outside cases like Starns's purview. See, e.g., Rogers v. Redmond, 727 S.W.2d 874, 875 (Ky. Ct. App. 1987) (recognizing, citing the Starns “such invitees” language, that there are “certain situations” when “a third person” injured “on rented premises” would have a “cause of action” against the landlord). This is one of those situations. The Court rejects the notion that a landlord actively inviting a third party to property she owned could avoid negligence liability by retreating to an old duty rule forged in different factual fires. A landlord in that ...


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