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Craig v. Steak N Shake, Inc.

United States District Court, W.D. Kentucky, Louisville

July 29, 2019

Gerald CRAIG, individually and as administrator of the ESTATE OF DELLA CRAIG PLAINTIFF


          Charles R. Simpson III, United States District Court Senior Judge

         I. Introduction

         This matter is before the Court on Defendant's Motion for Summary Judgment. DN 23. Plaintiff responded. DN 24. Defendant replied. DN 28. Therefore, this matter is ripe for review. Finding that a genuine dispute of material fact exists regarding the cause of Della Craig's fall, the Court will deny the motion.

         II. Legal Standard

         A party moving for summary judgment must show 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). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. In undertaking this analysis, 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).

         The party moving for summary judgment bears the burden of establishing the nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). They can meet this burden by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the . . . presence of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). This burden can also be met by demonstrating that the nonmoving party “fail[ed] 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, 477 U.S. at 322.

         III. Factual Background

         On August 21, 2016, Plaintiff Gerald Craig and his wife Della visited Defendant Steak ‘n Shake, Inc.'s restaurant located on Dixie Highway in Louisville. While there, Della fell. The parties vigorously dispute the cause of that fall. Gerald claims that there were french fries spilled on the floor. Steak ‘n Shake argues that there is no evidence of that and that Della had a history of falling. As a result of the fall, Gerald claims Della sustained fractured ribs, internal bleeding, and a collapsed lung. Ultimately, Della passed away. Gerald then brought this action on his own behalf and as the administrator of Della's estate.

         IV. Discussion

         Kentucky has adopted a burden-shifting approach to slip-and-fall cases. Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003). An invitee must initially prove “that he or she fell as a result of a transitory foreign substance” and that the foreign substance was “a substantial factor in causing his accident and injury.” Id. at 435 (citation omitted). Then, “a rebuttable presumption of negligence arises [and] the burden shifts to the defendant to show by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises under the circumstances.” Id. (citation omitted).

         On summary judgment, Steak ‘n Shake argues that Gerald has failed to demonstrate that there was a transitory foreign substance-french fries-that was a substantial factor in Della's fall. The parties discuss three pieces of evidence, which the Court considers in turn: an alleged hearsay statement from a customer that she saw Della slip on french fries, Gerald's testimony that he observed french fries around Della after her fall, and a security camera video.

         A. Alleged Hearsay Evidence

         Evidence considered at the summary judgment stage must be admissible at trial. Fed.R.Civ.P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”); Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must . . . set out facts that would be admissible in evidence . . . .”). As a result, “[i]t is well established that a court may not consider [inadmissible] hearsay when deciding a summary judgment motion.” Tranter v. Orick, 460 Fed.Appx. 513, 514 (6th Cir. 2012) (citations omitted).

         Here, the parties focus on a statement made by Linda Hasty, a restaurant patron. Cindy Burdette, the Operational Manager at the Dixie Highway Steak ‘n Shake location, testified at her deposition that Hasty told her she had seen Della slip on fries on the floor:

Q. Okay. A few fries on the floor; does that mean French fries?
A. Yes, sir. There was a couple fries underneath another booth, and the only reason I mention the fries was ...

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