                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0058n.06

                                          No. 17-5775

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                             Feb 01, 2018
SANDRA DUNN,                                        )
                                                                         DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellant,                         )
                                                    )
v.                                                  )       On Appeal from the United States
                                                    )       District Court for the Eastern District
WAL-MART STORES EAST, LIMITED                       )       of Kentucky
PARTNERSHIP,                                        )
                                                    )
       Defendant-Appellee.

_________________________________/

       Before: GUY, GIBBONS, and COOK, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.                Sandra Dunn appeals the order granting

summary judgment to Wal-Mart Stores East with respect to her state-law negligence claim for

injuries sustained when she fell on the sidewalk outside a Wal-Mart store. Because reasonable

minds could differ about whether Dunn tripped on an uneven sidewalk (as she testified) or

tripped on her own feet (as Wal-Mart contends), and because the district court relied on concepts

of obviousness and contributory fault that are inconsistent with recent developments in Kentucky

premises liability law, we reverse and remand for further proceedings.

                                               I.

       Sandra Dunn was familiar with the Wal-Mart store in Cannonsburg, Kentucky, because

she had worked there at one time and continued to shop there regularly. At around 3:00 p.m. on
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Dunn v. Wal-Mart Stores East

a clear dry day in October 2014, Dunn went to the store to return a car battery charger that she

and her husband had purchased there the day before. A surveillance camera captured Dunn

parking her car in the row of spaces located directly behind the three-bay auto service area in the

rear of the store. Dunn got out of her car, removed the battery charger from the trunk, and turned

toward the store. Dunn paused briefly as another car exited the nearest service bay door, and

then resumed walking toward the building after the driver waved her forward. The video shows

that Dunn walked about a dozen steps from that point—crossing the asphalt and taking a couple

of steps on the concrete sidewalk—before she tripped and fell.

       Dunn testified that she was not looking down when she fell, but said she felt her left foot

“catch” on something that caused her to trip. While still on the ground, Dunn looked back at the

sidewalk and saw uneven concrete “sticking up” about a half inch to an inch. Dunn told Michael

Marshall, an auto technician who approached her, that she had tripped on the concrete “where it

is a little higher on one side of the concrete.” A few minutes later, Dunn wrote in an incident

report that she fell when “concrete filled in not level and caught my left foot.” Dunn repeated

her claim when she was interviewed under oath six days later. Dunn testified that she injured her

left knee in the fall, and had not recovered despite undergoing knee surgery.

       Michelle Laney, the Wal-Mart manager who signed the incident report, testified that she

did not see Dunn fall. Although Laney was familiar with the area because she frequently went

outside to smoke, she said she had not noticed any cracks or uneven surfaces in the sidewalk.

Also, it was Laney’s opinion that the video showed Dunn tripping on her own feet. Michael

Marshall testified that he also did not see Dunn fall, but he said he was aware of an uneven

“crack” in the sidewalk in the area where Dunn fell. After reviewing the video, however,

Marshall said he believed the uneven place in the sidewalk crack was closer to the corner of the
Case No. 17-5775                                                                               3
Dunn v. Wal-Mart Stores East

building than where Dunn fell. Marshall added that he thought the expansion joint in the

sidewalk was level at the spot where Dunn appeared to have tripped.

       Some photographs taken by Wal-Mart on the day of Dunn’s fall confirm that there was

an uneven spot of almost an inch in elevation along the same expansion joint in question. Wal-

Mart’s witnesses explained that those photographs did not depict the place where—according to

the video—they believe Dunn had tripped. Dunn and her daughter went back and took a few

close-up photographs of the expansion joint. But, because those photographs were taken looking

down at the expansion joint, they do not show whether it was level or not.

       Finally, more than a year after Dunn’s fall, plaintiff had photographs taken that showed

the rear door to the store, a full view of the sidewalk, and the location of the expansion joint in

question running from the corner of the building to the asphalt of the parking lot. Wal-Mart

argues (1) that the photographs do not depict the condition of the expansion joint on the day that

Dunn fell, and (2) that the subsequent repair to the expansion joint that is visible in some of the

photographs cannot be offered as proof of negligence. For purposes of this appeal, however,

these photographs provide context for the video by showing the relationship between the parking

area, the sidewalk, and the rear entrance to the store. In particular, one photograph includes a

measuring tape that shows that the expansion joint ran approximately 7 ½ feet from the corner of

the building to the asphalt of the parking area.

       Dunn filed suit in state court, and Wal-Mart removed the action to federal court on the

grounds of diversity of citizenship.      Discovery was conducted, and Wal-Mart moved for

summary judgment in its favor. Granting Wal-Mart’s motion, the district court concluded that—

despite an apparently “slight elevation in the sidewalk due to the expansion joint”—the

expansion joint was not unreasonably dangerous as a matter of law. The district court explained
Case No. 17-5775                                                                               4
Dunn v. Wal-Mart Stores East

that the expansion joint was “hardly uncommon,” did not appear to be defective, was “clearly

visible to the naked eye,” and would not pose an unreasonable risk to a “minimally attentive”

shopper walking across it. Alternatively, the district court also found that Dunn could not

establish causation because “Kentucky courts have routinely held plaintiffs to be negligent, and

store owners not liable, when the plaintiff’s injuries were caused by her failure to exercise

ordinary care.” (Emphasis added). Judgment was entered in favor of Wal-Mart, and this appeal

followed.

                                                II.

       The district court’s grant of summary judgment is reviewed de novo. Gillis v. Miller,

845 F.3d 677, 683 (6th Cir. 2017). In doing so, we must view the evidence and draw all

reasonable inferences in the light most favorable to the nonmoving party.          Id.   Summary

judgment is proper 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). Because jurisdiction is based on

diversity of citizenship, the court must “apply state law in accordance with the controlling

decisions of the state supreme court.” Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d

450, 454 (6th Cir. 2001).

       To establish a negligence claim under Kentucky law after the adoption of comparative

negligence, “a plaintiff must still prove the defendant owed a duty to the plaintiff, breached that

duty, and consequent injury followed.” Shelton v. Ky. Easter Seals Soc., Inc., 413 S.W.3d 901,

906 (Ky. 2013). When, as here, the plaintiff is an invitee, “a possessor of land owes a duty to

[the] invitee to discover unreasonably dangerous conditions on the land and either eliminate or

warn of them.” Id. at 909 (citing Ky. River Med. Ctr. v. McIntosh, 319 S.W.3d 385, 388 (Ky.

2010)). As most recently explained in Grubb, “conditions on the land that are not unreasonably
Case No. 17-5775                                                                              5
Dunn v. Wal-Mart Stores East

dangerous do not implicate the land possessor’s duty of care, and thus injuries arising from such

conditions cannot give rise to the possessor’s liability.” Grubb v. Smith, 523 S.W.3d 409, 417

(Ky. 2017) (as modified Aug. 24, 2017). However, in a line of decisions beginning with

McIntosh in 2010 and continuing through Grubb in 2017, the Kentucky Supreme Court has

clarified that with the adoption of comparative negligence the landowner’s “duty exists

regardless of the obviousness of the dangerous condition or ‘the invitee’s knowledge of the

condition.’” Goodwin v. Al J. Schneider Co., 501 S.W.3d 894, 897 (Ky. 2016) (quoting Shelton,

413 S.W.3d at 911).

       A.      Kentucky Premises Liability Law

       “Under the old common law, conditions on the land could not be deemed unreasonably

dangerous if they were ‘known to the visitor or so obvious to him that he may be expected to

discover them.’” Grubb, 523 S.W.3d at 417 (emphasis added) (quoting Bonn v. Sears, Roebuck

& Co., 440 S.W.2d 526, 528 (Ky. 1969)). “The open and obvious rule came to be applied in

much the same way as contributory negligence: as a rule of law whereby courts, by labeling a

condition on the property as ‘obvious’ in effect precluded jury consideration of the condition’s

reasonableness.” Id. Rejecting that rule in Shelton, the Kentucky Supreme Court held that, “at

the very least, a land possessor’s general duty of care is not eliminated because of the

obviousness of the danger.” Shelton, 413 S.W.3d at 907. Further, the Court in Shelton clarified

that although summary judgment was still a “viable concept,” “the question of foreseeability and

its relation to the unreasonableness of the risk of harm is properly categorized as a factual one,

rather than a legal one.” Id. at 916.

       In Carter, the Court abrogated Kentucky’s long-standing rule “that natural outdoor

hazards which are as obvious to an invitee as to an owner of the premises do not constitute
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Dunn v. Wal-Mart Stores East

unreasonable risks to [the invitee] which the landowner has a duty to remove or warn against.”

Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 291 (Ky. 2015) (quoting Standard Oil v. Manis,

433 S.W.2d 856, 858 (Ky. 1968)).          Rather, because that rule had relied in large part on

contributory negligence, the Court held that the “open-and-obvious nature of a hazard is, under

comparative fault, no more than a circumstance that the trier of fact can consider in assessing the

fault of any party, plaintiff or defendant.” Id. at 297 (citing Shelton, 413 S.W.3d at 911-12).

Importantly, the Court emphasized that:

       under the right circumstances, the plaintiff[’s] conduct in the face of an open-and-
       obvious hazard may be so clearly the only fault of his injury that summary
       judgment could be warranted against him, for example when a situation cannot be
       corrected by any means or when it is beyond dispute that the landowner has done
       all that was reasonable.

Id. But, summary judgment was vacated in Carter because there were “questions of fact about

whether, and to what degree, the hotel acted reasonably with respect to the icy hazard under its

carport” and “whether Carter acted with ordinary care for his own safety” when walking under

the carport the morning after a winter storm. Id. at 299-300.

       Most recently, the Court in Grubb explained that the shift to comparative fault in

negligence cases “should have restored the jury’s principal role” in determining “whether an

‘obvious’ risk-posing condition on the land was reasonable or not.” Grubb, 523 S.W.3d at 418.

Moreover, the Court described the “McIntosh line of cases” as reflecting a “determined effort to

effect that restoration and to limit holdings, at trial or on appeal, that an obvious risk-posing

condition on the property is ‘not unreasonable as a matter of law,’ to those rare instances where

they are justified.” Id. The Court also expressly declined to adopt a trivial-defect rule “under

which pavement flaws satisfying some standard of minimalness are deemed not unreasonable.”

Id. at 420 (citing cases). Either way, the Court in Grubb vacated summary judgment in favor of
Case No. 17-5775                                                                                              7
Dunn v. Wal-Mart Stores East

the property owner for a second time because there were questions of fact regarding the

trivialness or reasonableness of the risk posed by an eroded patch or pothole in the asphalt that

the plaintiff tripped on between the gas pumps at the Speedway station. Id. at 420-21.1

        B.       Analysis

        Dunn correctly argues that the district court’s reliance, at least in part, on the obviousness

of the “slight elevation” in the expansion joint and on Dunn’s own negligence in granting

summary judgment to Wal-Mart is inconsistent with the controlling Kentucky Supreme Court

decisions in Shelton, Carter, and Grubb. Specifically, the district court concluded that the

“slight elevation” in the expansion joint was not unreasonable as a matter of law because it “was

not an out-of-the-ordinary obstacle,” it was “clearly visible to the naked eye,” and it would not

pose an unreasonable risk to a shopper “who is ‘minimally attentive’ and use[s] her ‘practical

faculties of observation’ and ‘simple powers of ambulation.’” Also, in addressing causation, the

district court explained that store owners are not to be held liable when plaintiffs fail to exercise

ordinary care for their safety. The order granting summary judgment cannot be affirmed on the

basis of this reasoning.

        However, the district court also stated that nothing in the record “suggests the expansion

joint was not in good repair or [was] otherwise defective.” That dovetails with Wal-Mart’s

contention that there is no evidence that the expansion joint was uneven in the area where Dunn

tripped and that the video unequivocally demonstrates that Dunn tripped entirely on her own

feet. If Wal-Mart is correct in that regard, this could be one of the rare instances in which

1
 Two Kentucky Court of Appeals decisions issued after Shelton found summary judgment for the property owner
was still appropriate, but those decisions were vacated on appeal and summary judgment was reversed on remand.
See Ward v. JKP Invs., LLC (After Remand), No. 2013-CA-1706-MR, 2016 WL 197136 (Ky. Ct. App. Jan. 15,
2016) (plaintiff fell at a party when she stepped on the crumbling corner of a wide concrete step); Embry v. Mac’s
Convenience Stores, LLC (After Remand), No. 2012-CA-000333-MR, 2014 WL 2640240 (Ky. Ct. App. June 13,
2014) (discretionary review denied Mar. 25, 2015) (plaintiff stepped backwards from his vehicle trailer parked next
to a gas pump and fell when he stepped on uneven pavement).
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Dunn v. Wal-Mart Stores East

summary judgment would be appropriate because the plaintiff’s conduct would be clearly the

only cause of her injuries. See Grubb, 523 S.W.3d at 418 (quoting Carter, 471 S.W.3d at 297);

see also McCoy v. Family Dollar Store of Ky., Ltd., 525 S.W.3d 93 (Ky. Ct. App. 2017)

(discretionary review denied Aug. 16, 2017) (finding the defendant did not breach the duty of

care owed to a plaintiff who tripped on a wheel stop in the parking lot because the wheel stop

was not defective or damaged, was properly installed, and had reflective yellow striping); Spears

v. Schneider, No. 2012-CA-00065, 2015 WL 2153310 (Ky. Ct. App. May 8, 2015) (discretionary

review denied Dec. 10, 2015) (finding that the level steps from the defendant’s store onto a

sloped sidewalk was not an unreasonable risk where the steps were well-maintained and well-lit,

a handrail was provided, and there was nothing more the defendant could have done to eliminate

the hazard).

       Here, Dunn testified that she caught her left foot on an uneven sidewalk expansion joint

that had an inch or less difference in elevation. Wal-Mart maintains that the video unequivocally

demonstrates that, in fact, Dunn tripped on her own feet. Although Wal-Mart’s interpretation is

a reasonable one, the video itself is not conclusive given the camera’s distance from the fall and

the grainy resolution of the video. Despite Wal-Mart’s insistence to the contrary, it is impossible

to tell conclusively from the video whether the expansion joint was level near the spot where

Dunn tripped. Moreover, when the evidence in the record is viewed in the light most favorable

to Dunn, reasonable minds can differ about whether Dunn tripped on the expansion joint in

question and whether the expansion joint was uneven in the spot that she tripped. Dunn testified

that it was uneven, and Wal-Mart’s photographs show that a portion of the same expansion joint

was uneven. Since the expansion joint in question was only 7 ½ feet wide, and Dunn can be seen

taking a couple of steps on the sidewalk before she tripped, this court cannot conclude as a
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Dunn v. Wal-Mart Stores East

matter of law that Dunn tripped on her own feet and therefore was clearly the only cause of her

injuries. See, e.g., Veloudis v. Wal-Mart Stores East, LP, No. 2016-CA-00207-MR, 2017 WL

3499927, at *6 (Ky. Ct. App. July 28, 2017) (finding the video could not conclusively establish

one way or the other whether the plaintiff tripped on the corner of a pallet on the floor or tripped

on his own feet).

       Lastly, assuming as we must that Dunn tripped on an uneven expansion joint in the

sidewalk, the obviousness of such a risk-posing condition is nothing more than a circumstance

that the trier of fact can consider in assessing the fault of either party. Carter, 471 S.W.3d at

297. “[A]n obvious risk-posing condition on the property can be unreasonable if, despite the

obviousness, the property possessor can still anticipate someone being injured by it.” Grubb,

523 S.W.3d at 419. As outlined earlier, the Kentucky Supreme Court has repeatedly and

explicitly declared that, under comparative fault, the unreasonableness and foreseeability of the

risk of harm is normally a question for the jury to determine in deciding whether the defendant

breached its duty of care in all but the rarest of circumstances. Indeed, the Kentucky Supreme

Court held that an unreasonable risk could be created by a “simple curb” outside an emergency

room (McIntosh), wires on the floor near a hospital bed (Shelton), ice in the parking lot of a hotel

after a winter storm (Carter), the slipperiness of a wet hotel bathtub (Goodwin), and a small

pothole between the pumps of a gas station (Grubb). See Goodwin, 501 S.W.3d at 899. The

Kentucky Court of Appeals has likewise held that summary judgment was not appropriate

because the reasonableness of the risk and foreseeability of the harm were questions of fact in

cases where the plaintiff tripped on the corner of a pallet protruding from the bottom of a store

display, fell when stepping backward onto uneven pavement at a gas station, or tripped over a

concrete flower pot placed near the exit of a banquet hall. See Embry (After Remand), 2014 WL
Case No. 17-5775                                                                           10
Dunn v. Wal-Mart Stores East

2640240, at *6; Veloudis, 2017 WL 3499927, at *8; Rodgers v. Grant Cty. Football Boosters,

No. 2016-CA-000377-MR, 2017 WL 4570711, at *5-6 (Ky. Ct. App. Oct. 13, 2017). Here, the

unreasonableness of the risk posed by an uneven sidewalk expansion joint, the foreseeability of

harm to an invitee, and whether Wal-Mart breached its duty of care, are questions of fact that

should not have been resolved as a matter of law.

                                    *       *       *    *

       The district court’s order granting summary judgment to Wal-Mart is REVERSED and

the case REMANDED for further proceedings consistent with this opinion.
