Tompkins v. Bonnie Plants, Inc.
| Decision Date | 05 January 2021 |
| Docket Number | NO. 5:19-CV-0197-MAS,5:19-CV-0197-MAS |
| Parties | ROBERT TOMPKINS, Plaintiff, v. BONNIE PLANTS, INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
The matter before the Court is neither complicated nor factually disputed. Defendant Lowe's claims it is entitled to summary judgment under Kentucky law for an accident that occurred when the plaintiff tripped over a third party's vehicle near the Lowe's entrance. On the thin arguments advanced by Lowe's, the Court disagrees.
Defendant Lowe's Home Improvement, LLC, ("Lowe's") requests the Court grant summary judgment in its favor. [DE 44]. Plaintiff Robert Tompkins ("Tompkins") filed a Response in opposition [DE 47]; Defendant Bonnie Plants, Inc. ("Bonnie Plants") filed a Response not opposing Lowe's Motion for Summary Judgment [DE 50] but objecting to Tompkins' Response; and finally, Lowe's replied in support of its Motion. [DE 51]. The matter is now ripe for a decision.
The facts of this case are generally agreed upon. Regardless, the Court must "adhere to the axiom that in ruling on a motion for summary judgment, '[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Tolan v. Cotton, 572 U.S. 650, 651 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). As set forth in Tompkins's Response, Robert Tompkins and his wife headed to Lowe's in April 2018 when the following events transpired:
[W]hen they got to the garden department entrance, however, there was a piece of paper on the entrance that stated, "Closed, Use main entrance" and had an arrow on it pointing towards the main entrance; Plaintiff and his wife then began making their way to the main entrance of the Lowe's store when he first noticed the Bonnie Plants truck; the Bonnie Plants truck was parked in the driving lane in the parking lot in front of the garden center entrance of the Lowe's store; about half of the truck was parked in the driving lane and half was parked in the "yellow dashed area" adjacent to the store; and while approaching the main entrance, he tripped on the lift gate which was extended to the ground at the rear of the Bonnie Plants truck. Plaintiff's wife, Norma Tompkins, also testified that the applicable Bonnie Plants truck was parked just outside the garden entrance ("in the fire lane") at the Lowe's store. Bonnie Plants employee, Terry Lake, confirmed the same.
[DE 47 at Page ID # 781, footnotes omitted].
The only disputed fact the Court can discern in this case is whether Lowe's owned the property just outside its store entrance where the above-described incident occurred. Plaintiff does not address Lowe's statement that "Plaintiff was not on this Defendant's premises when the accident occurred," but generally refers to Lowe's as the "landowner" without explanation. Meanwhile, Lowe's does not contest Tompkins's description that the fall happened when the Bonnie Plants truck was parked "in the fire lane," or partially on the "yellow dashed area" in front of the Lowe's entrance area. [See Deposition of Robert Tompkins, DE 44-2 at Page ID # 367-68; Deposition of Norma Tompkins, DE 44-3 at Page ID # 555]. In short, Tompkins does not provide any evidence that Lowe's owned the property where the fall occurred, and Lowe's does not provide any evidence that Tompkins was not on Lowe's premises when he fell.
Lowe's removed this case to federal court based on diversity jurisdiction. 28 U.S.C. § 1332. [DE 1]. Thus, Kentucky substantive premises liability law applies in this case. Federal law governs the procedural aspects of this case, including the summary judgment standard. Hanna v. Plumer, 380 U.S. 460, 465 (1965) (); see also Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
Regarding Kentucky substantive law, this case presents a claim based on premises liability, which requires a plaintiff to prove: "(1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) injury to the plaintiff, and (4) legal causation between the defendant's breach and the plaintiff's injury." Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012). Kentucky courts use a burden-shifting approach in analyzing premises liability. Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003).1
In analyzing the issues of breach and causation in commercial slip and fall cases, Kentucky applies a burden shifting framework. Thus, plaintiff[] must demonstrate both the existence of an unreasonably dangerous condition and that the condition was a substantial factor in causing [his] accident and injury. Once the plaintiff satisfied both prerequisites, the burden shifts to the defendant to prove that it exercised reasonable care.
Cooper v. Steak N Shake, Inc., 2019 WL 5212888, at *3 (E.D. Ky. Oct. 16, 2019)(citing Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky. 2003) and Bartley v. Educ. Training Sys., Inc., 134 S.W.3d 612, 616 (Ky. 2004)).
Summary judgment is appropriate when 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 moving party has the ultimate burden of persuading the court that there are no disputed material facts and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether the "evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law[,]" the Court must review the facts and draw all reasonable inferences in favor of the non-moving party. Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989); Anderson, 477 U.S. at 255.
Initially, the Court must address whether Lowe's owed a duty to Tompkins in the current circumstance. If so, the Court will next turn to the burden-shifting approach outlined in Lanier and its progeny.
Restatement (Second) of Torts § 344 provides the following guidance for premises liability actions involving third parties.
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
RESTATEMENT (SECOND) OF TORTS § 344 (emphasis added). Kentucky courts have repeatedly cited to § 344 and upheld its rationale. See, e.g., Collins v. Newport on the Levee, LLC, 2015 WL 1969409, at *3 (Ky. App. May 1, 2015) (quoting Ferrell v. Hellems, 408 S.W.2d 459, 463 (Ky. 1966)). Kentucky law is clear: a party in control of the premises owes aduty and is "subject to liability to members of the public" who are on its premises for a business purpose for acts of a third party that results in harm where the party in control of the premises failed to exercise reasonable care or provide a warning to the business invitee. See Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 433 (Ky. 2003) (citing RESTATEMENT (SECOND) OF TORTS § 343-44).
Lowe's six-page motion simply sidesteps and ignores this jurisprudence. Rather, Lowe's contends summary judgment in its favor is appropriate because "[t]he only relation this Defendant has to Plaintiff's accident was the proximity to the Retail Store[,] and "[t]here has been no evidence indicating this Defendant had any involvement in Plaintiff's accident whatsoever." [DE 44-1 at Page ID # 277]. In other words, Lowe's does not have a duty because "Plaintiff was not on this Defendant's premises when the accident occurred." [DE 44-1 at Page ID # 276]. Lowe's support for this statement is supposedly found in Robert Tompkins's deposition in the following exchange:
.
The Court cannot discern from this or Lowe's other, limited record citations who owned the real property at the exact spot of Tompkins's fall. Regardless, ownership is immaterial to the analysis. Grubb v. Smith, 523 S.W.3d 409, 422 (Ky. 2017); See also RESTATEMENT (SECOND) OF TORTS § 328E ().
Reading the facts in the light most favorable to Tompkins (as the Court must), the Court finds that it is reasonable to infer that the accident occurred on Lowe's premises or premises Lowe's controlled. Without any proof, Lowe's claims that it does not own the land where the fall occurred; it does not claim it does not possess or control the "yellow dashed area" just outside the garden entrance to its store prior to the parking lot. Surely, such an argument would fly...
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