Lewis v. B & R Corporation

CourtCourt of Appeals of Kentucky
Citation56 S.W.3d 432
Decision Date07 September 2001
Docket NumberNo. 2000-CA-001297-MR.,2000-CA-001297-MR.
PartiesTheresa Gail LEWIS, Administratrix of the Estate of Brenda Carol Helton, and Don Helton, Appellants, v. B & R CORPORATION, d/b/a Save-A-Lot, and Ford Motor Company, Appellees.
56 S.W.3d 432
Theresa Gail LEWIS, Administratrix of the Estate of Brenda Carol Helton, and Don Helton, Appellants,
B & R CORPORATION, d/b/a Save-A-Lot, and Ford Motor Company, Appellees.
No. 2000-CA-001297-MR.
Court of Appeals of Kentucky.
September 7, 2001.

Page 433

John Crockett Carter, Harlan, KY, for Appellants.

Catherine C. Hadden, Ashland, KY, for Appellee, B & R Corporation.




Theresa Gail Lewis, Administratrix of the estate of Brenda Carol Helton, and Don Helton (hereinafter collectively referred to as "Lewis") appeal from a summary judgment granted to B & R Corporation, d/b/a Save-A-Lot,1 on their complaint for wrongful death involving the death of Brenda Carol Helton in a one-car vehicular accident. We affirm.

On the afternoon of June 4, 1998, Brenda Helton went alone to a Save-A-Lot grocery store in Harlan, Kentucky. She parked her 1988 Ford Mustang on the front row, perpendicular to the front entrance of the store in a parking area designated for handicapped patrons. To the rear of her vehicle was the rest of a 20-foot parking area and a 38-foot grass embankment with an 18% grade that was parallel to Industrial Park Drive. After completing her shopping, Brenda Helton got into her vehicle and started the engine. Shortly thereafter, she placed the transmission

Page 434

in reverse and the vehicle suddenly accelerated at a high rate of speed. The car crossed the parking area, the grass embankment, Industrial Park Road, another level 35-foot grass embankment, and a short five-foot drop-off into the Cumberland River, where it landed on its roof, upside-down in the river. Brenda Helton was rescued by several witnesses and a city police officer. She was taken to the local hospital in a coma, but died the next day after being transferred to a regional hospital in Knoxville, Tennessee, without having regained consciousness.

Kentucky State Police Officers Kenneth Crider and Michael Cornett were called to the scene and conducted an investigation. Officer Crider took photographs of the scene and prepared an accident report after speaking with several witnesses and Helton's family. Officer Cornett, who had training in accident reconstruction, prepared a diagram of the area with corresponding distance measurements indicating the path of the vehicle. Officer Crider learned that Brenda Helton was suffering from Huntington's disease or chorea, a muscular, neurological condition, and that complaints had been filed with the Department of Human Resources about her driving ability. One witness stated that the car's wheels were spinning just before it started moving in reverse at a high rate of speed.

On June 2, 1999, Theresa Lewis, Brenda Helton's daughter and administratrix of her estate, and Don Helton, Brenda Helton's husband, filed a wrongful death complaint against B & R Corporation, d/b/a Save-A-Lot, and Ford Motor Company. In the complaint, the appellants alleged B & R breached several duties it owed Brenda Helton related to her status as a handicapped person. They further alleged that as a proximate result of B & R's failure to comply with its duties, Brenda Helton had been fatally injured.2 The complaint listed the following duties owed by B & R to its handicapped patrons:

(a) To comply with all provisions of the Kentucky Revised Statutes regarding handicap[ped] persons and persons with physical disabilities.

(b) To reasonably protect patrons from unreasonable risks of harm while engaged in reasonably foreseeable activities.

(c) To provide its handicap[ped] business patrons with reasonably safe premises for the use of the patrons.

(d) To discover dangerous conditions that create an unreasonable risk of harm to handicap[ped] patrons and to correct or otherwise eliminate risk of harm to them.

(e) To maintain the premises in such a condition so that a patron will not be exposed to an unreasonable risks [sic] of harm.

(f) To provide safe guards [sic] and preventive measures to protect handicap[ped] patrons with physical disabilities from an unreasonable risk of harm.

(g) To make timely inspections of the premises used by its handicap[ped] patrons and discover and eliminate and/or warn of any conditions that create an unreasonable risk of harm to them.

(h) To use whatever means the defendant has available to it to eliminate unreasonable risk of harm.

(i) To lay out, construct, design, and otherwise present the premises to its handicap[ped] patrons so that they will not be exposed to an unreasonable risk of harm.

Page 435

(j) To otherwise use ordinary care to protect and provide a safe environment and premise [sic] for its handicap[ped] patrons with a physical disability.

On June 22, 1999, B & R served its first set of interrogatories and request for production of documents on the appellants.3 In its interrogatories, B & R asked Lewis to state in detail each and every statute, regulation or case which she contended imposed each of the duties alleged in the complaint and state "every fact upon which you intend to rely to prove the alleged violation of each separate duty." It also asked Lewis to state whether she intended to call an expert witness to testify, to state the subject matter of any expert's testimony, and to provide a summary of the grounds for the expert's opinions. In December 1999, the appellees took the depositions of Theresa Lewis, Officer Crider, and Rhonda Bowers, a witness to the incident. Also in December, Lewis served B & R with answers to its first set of interrogatories and request for admissions. In March 2000, the appellees took the deposition of Don Helton.

On February 16, 2000, B & R filed a motion for summary judgment arguing that Lewis had failed to identify any duty B & R breached which could have caused or contributed to the accident. On the same day, Ford filed a motion for a trial date and order assigning discovery deadlines. On March 17, 2000, the circuit court held a hearing on the motions during which appellants' attorney stated that B & R had breached various provisions of the Americans with Disabilities Act (ADA) regulations and that he would produce an engineering expert to support the allegations in the complaint. After the hearing, the circuit court set a March 2001 trial date with a pretrial conference in September 2000, and required Lewis to identify all of her expert witnesses by August 1, 2000. The court stated that a cut-off date for discovery would be considered at the pretrial conference.

On April 7, 2000, Lewis filed a response to B & R's motion for summary judgment. She asserted that B & R's breach of federal and state law on handicapped parking had created an unreasonably dangerous condition. She said that the handicapped parking spaces were too close to a steep drop-off and that the design of the parking spaces did not provide reasonable access for handicapped patrons. Attached to the response was an affidavit by Don Helton stating that the handicapped parking spaces were located on a steep grade, that they were not located to provide the shortest route of travel to the building's entrance, and that there was insufficient room to maneuver a vehicle safely. On April 19, 2000, B & R filed a reply to the response denying the assertion that it breached any duty of care to the victim and challenging several factual statements in the response. Attached to the reply were the police accident report, several photographs of the scene, and a copy of the ADA regulations cited by Lewis in her response.

On April 21, 2000, the court conducted a hearing on the motion for summary judgment. B & R argued that Lewis failed to identify a sufficient legal or factual basis for her claim. Lewis stated that B & R Corporation breached a general duty to exercise reasonable care by creating a dangerous risk to handicapped patrons entering and exiting the parking lot. The court granted the motion stating Lewis did

Page 436

not present facts showing the breach of any duty owed to Brenda Helton by the store.

Lewis contends she presented sufficient evidence showing that the design of the Save-A-Lot parking lot violated the owner's duties to its handicapped patrons and was a cause of Brenda Helton's death. Although the complaint tends to merge the issues, it appears to raise claims based on common law premises liability and negligence per se. She cites to KRS 198B.260(2), the Kentucky Building Code, and the Americans with Disabilities Act as sources for establishing the requirements for handicapped parking at commercial businesses. Lewis asserts that there was a genuine issue of material fact sufficient to preclude summary judgment for B & R.

We begin with a general review of the standards for summary judgment. 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."4 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.5 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."6 The trial court "must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists."7 While the Court in Steelvest 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."8 Because summary judgment involves only legal...

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