Speedway LLC v. Grubb

• Decision Date: 25 June 2021
• Docket Number: NO. 2020-CA-1192-MR,2020-CA-1192-MR
• Parties: SPEEDWAY LLC APPELLANT v. TERESA GRUBB and RANDY GRUBB APPELLEES
• Court: Kentucky Court of Appeals

SPEEDWAY LLC APPELLANT v. TERESA GRUBB and RANDY GRUBB APPELLEES

NO. 2020-CA-1192-MR

Commonwealth of Kentucky Court of Appeals

JUNE 25, 2021

NOT TO BE PUBLISHED

APPEAL FROM CLAY CIRCUIT COURT

HONORABLE OSCAR GAYLE HOUSE, JUDGE

ACTION NO. 08-CI-00033

OPINION

AFFIRMING

** ** ** ** **

BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.

KRAMER, JUDGE:

On February 1, 2007, Teresa Grubb was at a Speedway SuperAmerica filling station in Manchester, Kentucky, when she tripped and fell after stepping into a pothole. She and her husband, Randy Grubb, then respectively filed negligence and loss of consortium claims in Clay Circuit Court against the owner of the premises, Speedway LLC. Following a bench trial, the circuit court (after several appeals spanning over a decade) ultimately entered a judgment in favor of the Grubbs consistent with a determination that Speedway was comparatively negligent and at fault by a margin of eighty percent. Speedway now appeals, contending the circuit court's apportionment of fault either violated the law of the case or constituted clear error. Upon review, we disagree and affirm.

The circuit court aptly summarized the evidence it deemed relevant to the issue of apportionment as follows:

Testimony of Roxanne Smith:

Roxanne Smith testified that she began work for Speedway SuperAmerica (Speedway) in 2004 and became the manager of the store in question October of 2006. She had had twenty to twenty-five years of experience in convenience or carry out stores. She would arrive at the store at 4:15 a.m. At 5:00 a.m. the lights would be turned on, and she would return to the outside premises to make sure everything was alright.

She also testified that she walked the lot at least two times per day. She swept the outside premises daily, and a leaf blower was used to remove debris. There were three inspections per day of the outside premises. Storm water drained from the premises through this primary drain where the hole was located that caused Grubb to fall. In addition, mop water was poured into the drain, which was located under a canopy.

According to her testimony at trial, Smith never noticed the hole before Teresa Grubb fell on February 1, 2007. At trial Smith was asked, "The hole that is the focal point of this whole action, did you notice this holebefore February 1, 2007?" She answered "No, I did not." [Trial Video 01:03:28-01:03:38].¹ The follow up question was, "Yet for more than 15-16 months from October 06, five days per week you inspected this parking lot, looked at the pumps on a daily basis and you never noticed this depression, never noticed this hole?" She responded, "No, I did not." [Trial Video 01:03:38-01:04:00]. After further cross examination she was asked, "And it is still your testimony that you never noticed this depression or hole in the drain of the general area of the drain is that correct," to which she gave an affirmative response that she had not. [01:05:28 et seq.] During cross examination by her attorney, she was again asked about the pothole. She was asked why this pothole was not reported to district management. She testified, "I didn't feel it was hazardous, I didn't know about it either. I didn't notice it." [17:38-17:57]. The policies and procedures of Speedway required that any large crack or pothole be reported to corporate.

After Teresa's fall, Smith was assisted by Lauren Sizemore in taking pictures and measurements of the hole where Grubb fell. These photographs were forwarded to corporate. According to Smith, one of the photographs showed a ruler being placed in the hole. She testified the hole was one inch deep. This photograph was never produced in discovery and was not produced at trial.

Smith acknowledged that asphalt patch could be purchased for $6.95. Asphalt patch could be poured directly into the hole. She testified that she probably could not have done that by herself because of the weight of the asphalt patch bag, which was sixty pounds.

The drain where the hole was located is straight across from the only exit door by which Grubb and Gregory could exit the store to return to their vehicle. The hole lies in the path of the shortest route back to vehicles located at the outside island. Grubb and Gregory's vehicle was located on the inside lane of the outside island. It is a high pedestrian traffic area.

Testimony of Carolyn King:

Carolyn King was a cashier at Speedway. She had just gotten off work the night Grubb fell, but she did not see the fall. She had already clocked out before she saw Grubb on the ground. She went to Grubb and asked her if she could be of any assistance. Grubb told her no, that her friend would help her. She returned to the store and told Wendy Couch to write down the occurrence.

King testified at trial that she would sweep the outside and would also pour mop water down the drain, but that she had never noticed the hole. No other employees or customers had complained about the hole. She was asked these questions and gave these answers:

Q. There's been a discussion about the depression pictured in the pictures, prior to Ms. Grubb's fall, the month you were working there, did you ever notice that area at all.

A. No.

Q. When you were out dumping mop water, you never noticed it?

A. No.

Q. Out sweeping area, ever notice?

A. No, not really.

[Trial Video 01:05:38-01:06:07]

Q. I believe your response to Mr. [sic] that you had never noticed that place?

A. Not really.

[Trial Video 01:10:29-01:10:47]

Q. Okay was there any speculation, or did you all talk about where Ms. Grubb may or may not have fallen.

A. Well, not really, she said that Ms. Grubb said there was a hole.

She was confronted with her testimony from a prior deposition. She was asked if she remembered being asked, (1) "Okay, had you ever noticed that hole before yourself" and answering "why yeah, it had been there all the time, there's a drain there, there's a hole, and there's a drain," and (2) "Okay and that is something you had seen," and answering "yes." She could not remember being asked these questions and having given those answers. [01:10:47-01:05:38].

Testimony of Lauren Marie Sizemore:

Lauren Marie Sizemore was shift leader at Speedway on February 1, 2007. Prior to that she had been a cashier. She had more responsibilities as shift lead than she did as cashier. When asked what those additional responsibilities were, she could not recall.

Her responsibilities did include cleaning away trash and mopping. She mopped once every shift and sometimes more if needed. She would pour the mop water into the drain. When asked about the hole, she testified as follows:

Q. In the ten months you were out there when sweeping or inspecting the lot did you ever notice this depression we have been talking about here today?

A. No, not at all.

Q. What about when draining mop water into the grate.

A. No.

Q. Was that a no?

A. No, I'm sorry.

[Trial Video 01:15:18-01:18:35]

Testimony of Robbie Gregory:

Robbie Gregory testified that he accompanied Teresa Grubb to Speedway between eight and nine o'clock on the evening of February 1, 2007. They pulled to the inside of the outside lane of pumps. After fueling the vehicle, they went inside the store through the entrance door. Inside, they got a coke and cappuccino and paid for their purchases. They left through the exit door on the end of the building away from the entrance door.

While going back to their vehicle, Gregory was a step or two in front of Grubb. The two were engaged in a conversation. He turned around to look at her, and she hit the ground. Gregory did not see the area before she fell.

Testimony of Teresa Grubb:

Teresa Grubb and Robbie Gregory pulled into Speedway on the evening of February 1, 2007 to getsome gas. The vehicle was pulled into the inside of the outside lane of pumps. After gassing up they went inside Speedway through the entrance door. They retrieved a [C]oke and a cappuccino, paid for their purchases, and left the building through the exit door. Gregory was in front of Grubb, and they were engaged in a conversation. They passed the first lane of pumps. She felt her left foot creel,² and she went down. Her foot was in the hole. She did not notice the hole she was not looking down at the ground at the time she fell. Robbie Gregory's walking in front of her blocked her view except that she "could see a car or something like that." Grubb's specific testimony was as follows:

A. Well, we was [sic] walking, and I had my cappuccino, and we was [sic] talking and we get past the first set of pumps going through there and all of a sudden, I felt my ankle creel and I was on the ground.

Q. Did you know what happened at that point?

A. Yeah, my foot was in a hole.

[Trial Video 05:00-05:30]

Q. As you were walking across the parking lot, did you notice the hole?

A. No. I wasn't looking down at the ground or anything I didn't notice.

[Trial Video 09:50-10:07].

A. Coming out, I believe he was ahead of me, not too far, and we was [sic] talking, and I wasn't drinking my cappuccino, it was hot, I don't know if he was drinking his [C]oke or not, and he was talking, and the next thing I know, I was on the ground.

Q. Were you looking at him, you said earlier you weren't looking at the ground. You were looking like ordinarily.

A. Uh-huh. [Affirmative]

Q. He wasn't blocking your view or anything he wasn't that close when you couldn't see you were going?

A. He was, I mean he was standing close to me, I could see a car or something like that.

[Trial Video 29:20 et seq.].

Next, the circuit court analyzed what it believed were seven significant factors in assigning the parties their respective shares of comparative fault, explaining in relevant part:

1. It is a significant factor for purposes of apportionment that the fall of Teresa Grubb did not occur in a parking lot but in the service area between the islands where fuel was dispensed.

During the trial of this case counsel for all parties on more than one occasion referred to the area where Grubb fell as a parking lot, hence the origin of the use of [th

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