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Miller v. Wal-Mart Stores East

United States District Court, E.D. Kentucky, Central Division, Lexington

September 25, 2019

LINDA MILLER, Plaintiff,



         This matter is before the Court on Wal-Mart’s Motion for Summary Judgment. (DE 16.) Wal-Mart has also filed a Motion for a Hearing relating to its Motion for Summary Judgment. (DE 17). For the reasons stated below, both Motions are DENIED.

         I. BACKGROUND

         This case arises from a trip and fall incident outside of a Wal-Mart in Lexington, Kentucky. The Plaintiff, Linda Miller, was walking from the parking lot to the pharmacy entrance of the Wal-Mart when she tripped and fell on a raised pavement seam where the parking lot asphalt met the crosswalk outside of the entrance. (DE 19 at 2.) The raised crosswalk spanned across the width of the entrance and it was raised approximately a half-inch above the asphalt in the parking lot. (DE 19-1.) The crosswalk was a faded red color with horizontal white lines painted across the pavement. There was a white line painted across the entire seam where the asphalt converged with the crosswalk. (DE 16 at 2; DE 19 at 10.)

         Miller claims that she sustained an injury to her knee when she fell outside the Wal-Mart and that she underwent a total knee replacement as a result of the fall. (DE 16 at 1.) Miller brought suit against Wal-Mart for negligence, alleging that the raised pavement seam was a dangerous condition posing an unreasonable risk of harm. (DE 1-8 at 2; DE 19 at 10.)

         Wal-Mart has filed a Motion for Summary Judgment asserting that Wal-Mart’s premises were in a reasonably safe condition and that the “minor change in elevation” did not pose any unreasonable risk of harm. (DE 16 at 6; DE 22 at 5.) Miller responds asserting that summary judgment is inappropriate because whether the raised pavement seam constituted an unreasonable risk of harm is a question for the trier of fact.

         As further explained below, the Court finds that the unreasonableness of the raised pavement seam and foreseeability of injury from such condition are questions of fact to be considered by a jury. As such, those issues are reserved for the trier of fact and Wal-Mart’s Motion for Summary Judgment must be denied.

         II. ANALYSIS

         Summary judgment is granted when “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). “The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party.” Combs v. Meijer, Inc., No. 5:12-CV-209-KSF, 2012 WL 3962383, at *2 (E.D. Ky. Sept. 10, 2012) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986). If the moving party meets its burden, the burden shifts to the nonmoving party to produce specific facts showing a genuine issue for trial. Id. Summary judgment must be granted “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.” Id. at 2552. A genuine issue of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243, (1986).

         Here, there are genuine issues of material fact as to whether the raised pavement seam constituted an unreasonable risk of harm and whether injury was foreseeable.

         Miller brings a premises-liability negligence claim against Wal-Mart, asserting that the raised pavement seam created an unreasonable risk of harm. “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). Duty presents a question of law, breach and injury are questions of fact for the jury to decide, and causation presents a mixed question of law and fact. Id.

         Possessors of land owe a duty to invitees to exercise reasonable care. “Generally speaking, a possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 909 (Ky. 2013). “Possessors of land are not required to ensure the safety of individuals invited onto their land; but possessors of land are required to maintain the premises in a reasonably safe condition.” Id. at 908.

         Regarding the duty element, the parties agree that Wal-Mart owed a duty to Miller to keep its premises in a reasonably safe condition. (DE 16 at 7; DE 19 at 6.) The parties further agree that Wal-Mart had a duty to eliminate or warn of any dangerous conditions on its property. However, Wal-Mart asserts that “the minor change in elevation is not a hazard.” (DE 22 at 6.) Wal-Mart further contends that it “owed no duty to warn or correct [the] condition [of the pavement seam] because it created no unreasonable risk.” (DE 16 at 12.)

         The Court must next determine whether a jury could reasonably find Wal-Mart breached its duty to Miller. Kentucky has adopted and follows comparative fault principles in negligence cases. See Shelton, 413 S.W.3d at 906. Under Kentucky law, generally, the question of breach is entirely factual and inappropriate for summary judgment. See Dunn v. Wal-Mart Stores E., LP, 724 F.App'x 369, 374 (6th Cir. 2018); Patton, 529 S.W.3d at 729 (Breach is a “question[ ] of fact for the jury to decide.”). Further, Kentucky courts have “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, 724 ...

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