Opinion
NO. 2018-CA-001279-MR
09-20-2019
LESHAI PHELPS APPELLANT v. BLUEGRASS HOSPITALITY MANAGEMENT LLC APPELLEE
BRIEF FOR APPELLANT: Timothy L. Stevenson Bowling Green, Kentucky BRIEF FOR APPELLEE: Andrew M. Yocum Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 16-CI-02882 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; JONES AND LAMBERT, JUDGES. LAMBERT, JUDGE: Leshai Phelps appeals from the Fayette Circuit Court order granting the motion for summary judgment filed by Bluegrass Hospitality Management LLC (BGH) in this premises liability case. We affirm.
Phelps had slipped and fallen at Harry's All-American Bar & Grill (owned by BGH) on August 7, 2015. She and her coworker (Elaine Daugherty) had arrived during the lunch hour and requested seating in the outdoor patio area. Phelps alleged that her initial slip occurred upon leaving the main dining area (a wooden floor) and heading into the tiled patio area. She also alleged that she had encountered another slippery area near where she and her companion first sat and that she had alerted the wait staff that the floor was slippery. The fall occurred when Phelps was descending from her high-top seat to switch to a lower seating arrangement. As her feet fell out from under her, Phelps attempted to break her fall with her left hand, and hit her hand, jammed her wrist, and hurt her elbow on her way down and upon impact. Phelps filled out an incident report for management. She and Daugherty finished their meal and returned to work.
Afterward, when she continued to experience pain and other symptoms, Phelps sought medical relief. Besides her complaints of shoulder, elbow, hip, knee, and ankle pain, she also was diagnosed with post-concussive syndrome. Phelps was placed on reduced duties at work and underwent physical therapy for her injuries. She returned to her regular routine at her employment several months later. By the time of her deposition, Phelps stated that the only ongoing problem was with her knee, and she claimed to have occasional residual memory issues.
Phelps filed the within action on August 8, 2016. She sought compensatory damages for medical expenses and loss of income. After discovery was complete, BGH filed a motion for summary judgment. Phelps responded, and the matter was heard on July 9, 2018. The Fayette Circuit Court entered its order of dismissal on July 25, 2018, and Phelps appealed.
Phelps's sole argument on appeal is that the circuit court erred in granting summary judgment. We thus begin with a recitation of the standard of review:
"The 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). "Because summary judgments involve no fact finding, this Court will review the circuit court's decision de novo." 3D Enterprises Contracting Corp. v. Louisville & Jefferson County Metropolitan Sewer District, 174 S.W.3d 440, 445 (Ky. 2005) (citing Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000)).
We next enunciate the elements of a premises liability claim: "The basic negligence tort paradigm has never changed: duty, breach, causation, damages." Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 298 (Ky. 2015).
[T]he [circuit] court may . . . consider summary judgment. However, if it does so, the court must keep in mind our caveat from Bullitt Host that summary judgment may only be warranted 'when a situation cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable." 471 S.W.3d at 297.Goodwin v. Al J. Schneider Co., 501 S.W.3d 894, 900 (Ky. 2016).
Phelps argues that summary judgment was not proper where there are disputed issues of material facts. In her brief, she insists that these are the facts that should be put before a jury:
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?
The circuit court ruled that, while there may have been factual disputes, the issue was not whether the floor was waxy but instead turned on whether Phelps, by her own testimony of two slips prior to her fall, was put on actual notice of the allegedly dangerous condition. As such, Phelps knew the condition of the floor by her own experience and acknowledged this by remarks she made to the staff.
An open-and-obvious condition is found when the danger is known or obvious. The condition is known to a plaintiff when, subjectively, she is aware "not only . . . of the existence of the condition or activity itself, but also appreciate[s] . . . the danger it involves." And the condition is obvious when, objectively, "both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment."Dick's Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, 895 (Ky. 2013)(footnotes omitted). See also McCoy v. Family Dollar Store of Kentucky, Ltd., 525 S.W.3d 93, 100 (Ky. App. 2017). Because Phelps had subjective and objective knowledge, the floor's condition was open and obvious to her.
Moreover, Phelps was unable to produce any evidence, other than her own testimony, to support her allegations of negligence on behalf of BGH. She could not identify any substance on her clothing or shoes, and she did not photograph the area where she had fallen. Daugherty, her co-worker and companion on the date of the incident, filed an affidavit that was not of any benefit to Phelps's cause. No expert witness was employed, nor was any physical evidence placed in the record during the discovery period, which was extended by agreement of the parties. Phelps was given more than ample time to submit affirmative proof in response to BGH's motion for summary judgment but was unable to do so. "[W]hen no questions of material fact exist or when only one reasonable conclusion can be reached, the litigation may still be terminated." Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 916 (Ky. 2013).
Accordingly, we affirm the Fayette Circuit Court's order granting summary judgment.
CLAYTON, CHIEF JUDGE, AND JONES, JUDGE, CONCUR IN RESULT ONLY. BRIEF FOR APPELLANT: Timothy L. Stevenson
Bowling Green, Kentucky BRIEF FOR APPELLEE: Andrew M. Yocum
Lexington, Kentucky