2020 CA 000542
Ky. Ct. App.May 27, 2021Background:
- On Aug. 30, 2013, Veronica Miller slipped and fell inside Fayette Mall near a Sephora entrance and a Dead Sea kiosk; she and her husband sued the mall owner and managers for premises liability.
- Surveillance footage (included in the record) showed an unidentified male patron bending to pick up an object under a minute before Miller fell, but the recording was obstructed and did not clearly show what was dropped or a spill.
- Nir Neve (kiosk employee) averred in an affidavit he saw a patron drop a bottle/cup and then pick it up; in deposition he admitted he did not see water spill or know whether the container had liquid and did not see water on the floor before Miller fell.
- The trial court initially denied defendants’ summary judgment motion to allow further discovery; after additional discovery and Neve’s deposition the court granted renewed summary judgment, finding no notice/insufficient time to remediate and no genuine factual disputes.
- The Millers appealed, arguing genuine issues of material fact remained and the trial court misapplied Kentucky law about the plaintiff’s burden in slip-and-fall cases; the Court of Appeals reversed and remanded.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof in slip-and-fall premises liability | Miller: plaintiff need only show a foreign substance caused the fall to create a rebuttable presumption; no obligation to prove how long it was on the floor | Defendants: plaintiff must show how/when substance was on floor or that store had notice/time to remedy | Court: Trial court misapplied law; under Lanier/Martin plaintiff's proof of foreign substance + causation creates rebuttable presumption shifting burden to defendant |
| Whether genuine issues of material fact remain (cause/source of water) | Miller: video is ambiguous/obstructed; Neve did not see a spill; other patrons passed safely | Defendants: video and testimony show an object dropped <1 minute before fall, so no time to notify/clean | Court: Reversed summary judgment — factual disputes exist and must be resolved by factfinder, not on summary judgment |
| Reliance on absence of an alternative source for the water | Miller: plaintiff need not produce alternate-source evidence; owner better able to prove origin | Defendants: lack of any other source supports their theory that patron caused the spill | Court: Trial court erred to rely on plaintiffs’ failure to identify alternate source as dispositive; burden shifts once presumption arises |
| Whether the trial court improperly weighed evidence / applied wrong summary judgment standard | Miller: court impermissibly weighed evidence and may have applied federal standard | Defendants: evidence was effectively incontrovertible | Court: Court of Appeals found trial judge weighed evidence and possibly applied the wrong standard; de novo review requires viewing facts in light most favorable to nonmovant |
Key Cases Cited
- Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003) (retail customer no longer must prove how long foreign substance was on floor to survive summary judgment)
- Martin v. Mekanhart Corp., 113 S.W.3d 95 (Ky. 2003) (proof that foreign substance caused fall creates rebuttable presumption shifting burden to proprietor)
- Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991) (Kentucky summary judgment standard; court must view evidence in light most favorable to non-moving party)
- Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901 (Ky. 2013) (appellate review of summary judgment is de novo)