United States District Court, W.D. Kentucky, Louisville
Gerald CRAIG, individually and as administrator of the ESTATE OF DELLA CRAIG PLAINTIFF
STEAK N SHAKE, INC. DEFENDANT
Charles R. Simpson III, United States District Court Senior
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.
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,
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.
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.
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.
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
Alleged Hearsay 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).
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
A. Yes, sir. There was a couple fries underneath another
booth, and the only reason I mention the fries was ...