Phelps v. Bluegrass Hospitality Mgmt., LLC

• Decision Date: 30 September 2021
• Docket Number: 2019-SC-0613-DG
• Citation: 630 S.W.3d 623
• Parties: Leshai PHELPS, Appellant v. BLUEGRASS HOSPITALITY MANAGEMENT, LLC, Appellee
• Court: United States State Supreme Court — District of Kentucky

630 S.W.3d 623

Leshai PHELPS, Appellant

v.BLUEGRASS HOSPITALITY MANAGEMENT, LLC, Appellee

2019-SC-0613-DG

Supreme Court of Kentucky.

SEPTEMBER 30, 2021

COUNSEL FOR APPELLANT: Timothy Linden Stevenson.

COUNSEL FOR APPELLEE: Barbara Ann Kriz, Lexington, Andrew McGrath Yocum, Kriz Jenkins Prewitt & Jones, P.S.C.

OPINION OF THE COURT BY JUSTICE NICKELL

The Kentucky Court of Appeals affirmed an order of the Fayette Circuit Court granting summary judgment to Bluegrass Hospitality Management, LLC ("BGH") in this premises liability case. Leshai Phelps moved this Court for discretionary review, which we granted, to determine whether the trial court correctly dismissed her slip-and-fall claim. After a careful review of the record and pertinent authority, we affirm.

On August 7, 2015, at about 11:30 a.m., Phelps and her co-worker, Elaine Daugherty, went to lunch at Harry's Bar & Grill, a restaurant located in Lexington, Kentucky, managed by BGH. They requested the hostess seat them outside on a covered patio. Phelps and Daugherty proceeded across the wooden floor of the dining room and entered a tiled patio area where Phelps slipped, but did not fall. The two of them sat at a high-top table. When a waitress came to the table, Phelps reported she "almost slipped and fell" while crossing the floor and the waitress replied, "[y]eah, it's a little slippery."

Phelps and Daugherty became uncomfortable with the height of the high-top table and asked to be moved to a standard-height table. As Phelps stood up to move, both her feet slid, and she fell. She attempted to break her fall with her left hand, jamming her wrist and hurting her elbow. She fell for a second time while rising from the floor. Phelps filled out an incident report for management, completed her meal, and went back to work.

When Phelps continued to experience pain and other symptoms, she sought medical treatment for shoulder, elbow, hip, knee, and ankle pain. She also was diagnosed with post-concussive syndrome. She was placed on reduced duties at work and underwent therapy.

Phelps filed this action in Fayette Circuit Court seeking compensatory damages for medical expenses and loss of income. At her deposition, she testified her ongoing medical problems involved her knee and occasional residual memory issues. Claiming she had fallen due to the hazardous condition of the restaurant's flooring, she stated the floor had felt waxy. She explained upon touching the floor it felt like she had lotion on her hand. However, she admitted she had likely used hand lotion earlier in the morning before her fall. She also asserted the manager told her the floor had been waxed the night preceding her fall and had become slippery due to moisture in the air. She further noted restaurant employees had placed rugs over the area immediately after her fall.

Phelps also filed Daugherty's affidavit. Daugherty averred she witnessed Phelps fall while attempting to move from one table to another. Phelps conveyed she was injured, but Daugherty discerned nothing which might have caused Phelps to slip and fall, nor did she observe employees mopping up any spills or liquids. Daugherty did see employees place a rug in the area where Phelps had fallen but could not recall the names of the employees.

Conversely, in his affidavit, Eric Reiling, the manager at Harry's at the time, swore "no cleaning products, waxes, or other treatments were applied to the patio floor at Harry's" prior to Phelps’ fall. He also stated the floor had not been pressure washed during that timeframe.

After discovery was complete, BGH moved for summary judgment asserting the restaurant committed no act of negligence and no genuine issues of material fact existed as to Phelps’ allegations. Following a hearing, the trial court entered an order dismissing Phelps’ claim, but without explanation, on July 25, 2018. While the trial court's order did not specify the dismissal was due to its grant of BGH's motion for summary judgment, "[i]n the absence of the court's specifying the ground or grounds for his dismissal of the petition, it will be assumed that it was upon any or all of the grounds ... sufficiently established." Sword v. Scott , 293 Ky. 630, 169 S.W.2d 825, 827 (1943).

Phelps appealed. The Court of Appeals affirmed, citing two grounds. First, the appellate panel noted the condition of the floor was open and obvious to Phelps. Second, the Court of Appeals held Phelps had failed to produce sufficient evidence of negligence by BGH to create a material issue of fact. We granted discretionary review.

On appeal to this Court, Phelps raises two allegations of trial court error. First, Phelps argues summary judgment was not appropriate because issues of fact existed which should have been submitted for determination by a jury, including:

Was there a waxy substance (possibly floor wax) on the floor on the date of Appellant's fall? If so, did the presence of a waxy substance (possibly floor wax) on the floor create an unreasonably dangerous condition? Did the Appellee appropriately warn Appellant of the presence of a condition by stating[,] "it's a little slippery" [?] Was the condition open and obvious?

She contends the Court of Appeals erred in holding she was required to produce physical evidence in support of her allegations, because her sworn deposition testimony was sufficient to create issues of material fact to support her cause of action. Second, Phelps argues the Court of Appeals incorrectly applied the open and obvious doctrine by not analyzing the duty to correct.

In weighing the foregoing allegations of error:

"[t]he standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Pearson ex rel. Trent v. Nat'l Feeding Systems, Inc. , 90 S.W.3d 46, 49 (Ky. 2002). Summary judgment is only proper when "it would be impossible for the respondent to produce any evidence at the trial warranting a judgment in his favor." Steelvest, Inc., v. Scansteel Service Center, Inc. , 807 S.W.2d 476, 480 (Ky. 1991). In Steelvest , the word " ‘impossible’ is used in a practical sense, not in an absolute sense." Perkins v. Hausladen , 828 S.W.2d 652, 654 (Ky. 1992). In ruling on a motion for summary judgment, the court is required to construe the record "in a light most favorable to the party opposing the motion ... and all doubts are to be resolved in his favor." Steelvest , 807 S.W.2d at 480. A party opposing a summary judgment motion cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Id. at 481.

Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 789-90 (Ky. App. 2012).

"Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So, we operate under a de novo standard of review ...." Adams v. Sietsema , 533 S.W.3d 172, 177 (Ky. 2017) (quoting Shelton v. Ky. Easter Seals Soc'y, Inc., 413 S.W.3d 901, 905 (Ky. 2013) ).

With these standards in mind, we turn to Phelps’ two arguments. First, we consider whether Phelps produced sufficient evidence of negligence to create a material issue of fact to submit to a jury.

The basic elements of a negligence claim are: "duty, breach, causation, damages." Carter v. Bullitt Host, LLC , 471 S.W.3d 288, 298 (Ky. 2015). "[L]iability—responsibility—under Kentucky law must be determined based on the principles of comparative fault." Id.

[U]nder comparative fault, every person has a duty of ordinary care in light of the situation, and that duty applies equally to plaintiffs and defendants. For fault to be placed on either party, a party must have breached his duty; and if there is a breach, fault must be apportioned based on the extent a party's breach caused or helped cause harm to the plaintiff. But it is just as true under comparative fault as it has always been that if a landowner has done everything that is reasonable under the circumstances, he has committed no breach, and cannot be held liable to the plaintiff. The difference under comparative fault is that a landowner is not excused from his own reasonable obligations just because a plaintiff has failed to a degree, however slight, in looking out for his own safety.

Id. at 298.

As a customer in a restaurant, Phelps 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); Grubb v. Smith , 523 S.W.3d 409 (Ky. 2017) (narrating the evolution of slip-and-fall cases and the impact of Kentucky's application of comparative negligence upon the open and obvious doctrine). As stated in Shelton :

[A]n invitee is generally defined as one who "enters upon the premises at the express or implied invitation of the owner or occupant on behalf of mutual interest to them both, or in connection with the business of the owner or occupant." 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.

413 S.W.3d at 909 (footnotes omitted).

In Lanier , we adopted a burden-shifting approach to premises liability cases involving injuries to business invitees. Therefore, to create a rebuttable presumption sufficient to defeat BGH's motion for summary judgment, Phelps was required to show:

(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. [ Lanier , 99 S.W.3d at 435-36.] Such proof creates a rebuttable

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