Jones v. Abner, 2009–CA–001441–MR.

• Decision Date: 11 March 2011
• Docket Number: No. 2009–CA–001441–MR.,2009–CA–001441–MR.
• Citation: 335 S.W.3d 471
• Parties: Mazie JONES, Appellant,v.Billy ABNER, d/b/a Lil' Abner Motel, Appellee.
• Court: Kentucky Court of Appeals

335 S.W.3d 471

Mazie JONES, Appellant,

v.Billy ABNER, d/b/a Lil' Abner Motel, Appellee.

No. 2009–CA–001441–MR.

Court of Appeals of Kentucky.

March 11, 2011.

Melissa C. Howard, Jackson, KY, for appellant.James E. Davis, Stanton, KY, for appellee.Before ACREE and STUMBO, Judges; LAMBERT,¹ Senior Judge.

OPINION

LAMBERT, Senior Judge:

Mazie Jones appeals from the Powell Circuit Court's entry of summary judgment in favor of Billy Abner, d/b/a Lil' Abner Motel as to her personal injury lawsuit against the motel. Appellant was injured when she slipped and fell while getting into a bathtub at the motel. Appellant asserts that summary judgment was inappropriate because a genuine issue of material fact existed as to whether the condition of the bathtub was unreasonably dangerous and a substantial cause of her injuries. However, after our review, we affirm.

Facts and Procedural History

Appellant and her husband, Arnold Jones, arrived at the Lil' Abner Motel on Friday, July 21, 2006, for a weekend stay. Appellant showered upon her arrival at the motel and again the following day. On Sunday morning, Appellant went into the bathroom and once again began preparing to take a shower. With the water running, she put her right foot into the bathtub. As she picked up her left foot, she slipped and hit the side of her head against the end of the tub. She was taken by ambulance to Clark County Regional Hospital and later transferred to the University of Kentucky Hospital. Appellant suffered a concussion as a result of her fall and was required to undergo a number of dental surgeries, including procedures to attach plates to her jawbone.

Appellant subsequently filed a personal injury lawsuit against Appellee in which she cited the bathtub's condition as an unreasonably dangerous condition that she encountered as an invitee on the motel premises. Appellant specifically contended that the bathtub was slippery because of the methods used to clean it and that this slipperiness was exacerbated by Appellee's failure to install and/or maintain appropriate non-slippage devices in the bathtub—including a handrail and non-slip safety strips at the bottom of the tub. Appellee denied Appellant's allegations, and the parties proceeded to take a number of discovery depositions.

In her deposition, Appellant claimed that on the day she fell the bathtub was slicker than it had been during her two previous showers, but she had “no idea” why the tub was especially slick that morning. Appellant assumed that the bathroom and tub had been cleaned between her Friday and Saturday showers because there were no dirty towels in the bathroom, and she made a similar inference that the bathroom had been cleaned between her Saturday and Sunday showers. Appellant could not recall how many non-slip safety strips were in the bathtub to stand on, but she noted that there was no safety rail in the tub. She also acknowledged that she did not consider the bathtub to be unsafe prior to her fall.

Appellant's husband, Arnold Jones, testified that he was the first person to hear Appellant fall and that water was running in the bathtub when he found her. When asked about whether there were any non-slippage safety devices in the bathtub, Jones indicated that “it had about four (4) strips” and that they were “just more or less in the center.” He further noted that they looked “old” and that there were “strings ... coming off the side,” an indication that they were worn. Jones blamed Appellant's fall on a lack of safety rails and “something better” on the bottom of the bathtub, but he acknowledged that he had not told anyone at the motel that he was concerned about the safety of the tub.

Appellee disagreed with Arnold Jones' depiction of the safety strips. He testified that every bathtub in the motel contained slip-resistant strips and that the ones in Appellant's room were replaced in the spring prior to her fall. He also produced a photograph of the bathtub taken in 2007 showing that there were eight safety strips on the bottom of the bathtub and noted that to the best of his knowledge, no changes had been made to the tub since Appellant's fall.

Alberta Bowen, a housekeeper at the motel, testified that she cleaned the subject bathtub on Saturday afternoon with a Clorox spray and water while the Joneses waited outside. According to Bowen, her general practice was to use a dry bath towel to wipe a bathtub down after cleaning it, and she noted that she “always” did this—including on this occasion. She further indicated that the cleaning solution in question was not particularly slick. Bowen testified that Appellant was “irritated” because the room had not been cleaned earlier, but she indicated that she cleaned the bathtub in her usual manner even though she felt “rushed.” Bowen also noted that all of the bathtubs in the motel contained non-slip safety strips “all over the bottom” and that those strips were replaced regularly if they ever became loose. Bowen further testified that the bathtub was not cleaned again prior to Appellant's fall.

On June 12, 2009, Appellee filed a motion for summary judgment asserting that Appellant could not show that she encountered an unreasonably dangerous condition at the motel or that Appellee's actions were a substantial factor in causing her injuries. Appellee further argued that because the condition of the bathtub was open and obvious, Appellant should be barred from recovery. The trial court granted summary judgment for Appellee on the grounds that Appellant could only speculate as to what caused her to fall and that she was unable to show that she had encountered any unreasonably dangerous condition caused by Appellee. This appeal followed.

Analysis

On appeal, Appellant argues that summary judgment was inappropriate because of the existence of genuine issues of material fact. Appellant specifically contends that questions existed as to whether the number and condition of the non-slip safety strips in the bathtub and the solution used to clean the bathtub created a dangerous condition that caused her injuries. The standards for reviewing a trial court's entry of summary judgment are well-established and were concisely summarized by this Court in Lewis v. B & R Corp., 56 S.W.3d 432 (Ky.App.2001):

The standard of review on appeal when a trial court grants a motion for summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present “at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” The trial court “must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists.” While the Court in Steelvest² used the word “impossible” in describing the strict standard for summary judgment, the Supreme Court later stated that that word was “used in a practical sense, not in an absolute sense.” Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo.

Id. at 436 (Internal footnotes and citations omitted).

The parties agree that as a guest in the motel, Appellant was a business invitee. See generally Lanier v. Wal–Mart Stores, Inc., 99 S.W.3d 431 (Ky.2003) (discussing business invitees in “slip and fall” cases). Consequently, in order to create a rebuttable presumption sufficient to defeat Appellee's motion for summary judgment, Appellant was required to show that:

(1) ... she had an encounter with a foreign substance or other dangerous condition on the business premises; (2) the encounter was a substantial factor in causing the accident and the customer's injuries; and (3) by reason of the presence of the substance or condition, the business premises were not in a reasonably safe condition for the use of business invitees.

Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky.2003); see also Lanier, 99 S.W.3d at 435–36.

Appellant claims that the motel bathtub was unreasonably dangerous for two reasons. First, she argues that the bottom of the bathtub was overly slick and that this slickness was attributable to the cleaning practices of Appellee's employees—specifically, that cleaning residue was left on the bottom of the tub when it was cleaned the day before her fall. However, Appellant's argument amounts to nothing more than pure conjecture because she provides nothing of substance to support her position. Alberta Bowen, the motel housekeeper, testified that she cleaned the bathtub on Saturday morning with Clorox spray and that her general practice was to then rinse out the bathtub and to wipe it down with dry towels. She further claimed that she followed this same process after cleaning Appellant's bathtub. In response, Appellant offers only a speculative hypothesis that a “slick residue” was left in the bathtub after it was cleaned.³ This does not satisfy our standards for summary judgment. “The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment.” Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky.2001). Accordingly, “speculation and supposition” are not enough to survive a motion for summary judgment. O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky.2006), quoting Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky.1951). Appellant essentially...