McCoy v. Family Dollar Store of Kentucky, Ltd.
2017 Ky. App. LEXIS 2
| Ky. Ct. App. | 2017Background
- Plaintiff Sherry McCoy sued Family Dollar and landlord R & J after tripping on a wheel stop in the store parking lot and seeking over $1.3M in damages.
- McCoy testified she did not see the wheel stop, was not distracted, there was no precipitation or debris, and the wheel stop caused her fall.
- McCoy disclosed an expert (engineer John B. Schroering) in a Rule 26 disclosure but did not file his report or affidavit into the record before summary judgment.
- Family Dollar submitted the lease showing R & J was responsible for exterior maintenance and submitted testimony/affidavit that the wheel stops were bolted, painted (black/yellow), installed at construction, and unobstructed.
- The circuit court granted summary judgment for both defendants, finding the wheel stop was not an unreasonably dangerous condition—an open-and-obvious feature that did not breach defendants’ duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/consideration of expert opinion | Schroering’s opinions and ASTM standard create factual dispute about hazard | Expert report/affidavit was not filed; opinions not in record for summary judgment | Court: expert evidence was not before the court; cannot defeat summary judgment |
| Open-and-obvious condition / breach of duty | Wheel stop created an unreasonably dangerous trip hazard that defendants should have corrected or warned about | Wheel stop was properly installed, visible, not defective, therefore open and obvious and not unreasonably dangerous | Court: no breach as a matter of law; wheel stop not unreasonably dangerous; summary judgment affirmed |
| Foreseeability / negligence standard after Shelton/McIntosh | Shelton and Carter require most non-frivolous premises cases go to jury to assess breach | Defendants fulfilled standard of care; open-and-obvious feature negates liability absent special foreseeability | Court applied Shelton/Webb/McIntosh and found no factual showing defendants should have anticipated harm; no negligence shown |
| Allocation of maintenance responsibility (lease) | Implied that tenant/owner liable for maintenance | Lease assigns exterior/parking maintenance to landlord R & J, reducing Family Dollar’s liability | Court noted lease suggests R & J was responsible; no duty imposed on Family Dollar apart from lease allocation |
Key Cases Cited
- Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010) (premises-liability duty framework discussed)
- Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013) (when condition is not open/obvious, owner owes full duty to discover and remedy)
- Shelton v. Ky. Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013) (clarifies focus on breach, addresses open-and-obvious doctrine and Restatement §343A)
- Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015) (confirms Shelton’s approach favoring jury consideration of breach in many premises cases)
- Smith v. Bethlehem Sand & Gravel Co., LLC, 342 S.W.3d 288 (Ky. Ct. App. 2011) (summary judgment requires nonmoving party to present contrary evidence or affidavits)