RENDERED: FEBRUARY 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0822-MR
STACY FESTERVAN, APPELLANT
ADMINISTRATOR OF THE ESTATE
OF NANCY FESTERVAN
APPEAL FROM NELSON CIRCUIT COURT
v. HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 18-CI-00369
THE KROGER CO.; AND BTCT, INC. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.
COMBS, JUDGE: This is a premises liability case in the context of a wrongful
death action. The trial court granted Appellees’ motion for summary judgment
because Appellant failed to offer any proof of how the accident occurred. Finding
no error after our review, we affirm.
On July 26, 2018, Appellant, Stacy Festervan, Administrator of the
Estate of Nancy Festervan, filed a Complaint in Nelson Circuit Court pursuant to
the survival of action statute, KRS1 411.140, and the wrongful death statute, KRS
411.130, against Appellees, the Kroger Co. and BTCT,2 Inc. Appellant alleged
that on December 7, 2017, the decedent, Nancy Festervan, “was operating a
motorized scooter, provided by [Appellee] Kroger through a parking lot on
property” owned and operated by Appellee BTCT. He also alleged that Nancy
“encountered an obstacle, or defect, and turned over spilling [her] onto the parking
lot, which caused her to break her hip and her untimely death.”
On April 7, 2020, Kroger filed a Motion for Summary Judgment. In
its supporting Memorandum, Kroger asserted that the lawsuit was based upon a
“conclusory assumption that some unidentified hazard” on the premises caused the
decedent to fall off the motorized shopping cart. “However, there is no evidence to
determine what caused her to fall—no witnesses, photographs or videos.”3 Stacy
Festervan explained that the decedent, Nancy Festervan, who was 77 years of age
1
Kentucky Revised Statutes.
2
We refer to Appellees collectively throughout this Opinion as “Kroger.”
3
Stacy Festervan testified by deposition on July 25, 2019, that to the best of his knowledge, there
were no witnesses as to what happened. Of the witnesses he identified, none of them was
present, none witnessed the fall, and none had photos or videos of the incident. (Festervan
deposition, pp. 69, 83.)
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at the time, had been driven to Kroger by a friend. The weather was dry and
sunny. While grocery shopping, Ms. Festervan had used a motorized shopping
cart. She left the Kroger store in the cart and drove it down the sidewalk of the
strip mall.
Todd Anderson, a Kroger employee, saw her sitting in the cart parked
on the sidewalk outside of Sun Tan City. Mr. Anderson assumed that she was
waiting for someone to pick her up. According to Kroger’s Memorandum,
[w]hat happened next is unknown. It is undisputed that
Ms. Festervan fell from the Cart. Indeed, moments after
Mr. Anderson observed Ms. Festervan parked in the Cart,
he heard her cry out. . . . However, there is no evidence
to establish what caused Ms. Festervan to fall.
(Footnote omitted.) Kroger argued that Festervan relied on the theory that the curb
of the sidewalk had caused Nancy to fall. However, Kroger contended that the
hypothesis was wholly unsupported by any facts and that it was mere speculation
incapable of surviving summary judgment. Kroger also noted that the motorized
carts displayed prominent warning signs that they should not be taken outside the
store and that they were intended for indoor use only.
On the contrary, Festervan asserted that the dangerous condition
resulted from the use of the electric motorized scooter outside of the store. He
argued as follows:
Absent the cart being utilized outside of the store,
this incident never occurs . . . by allowing the carts to be
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used outside of the store itself, the Defendants have
created a condition that is not reasonably safe for
business invitees.
While he did not contend that the sidewalk itself was defective, Festervan testified
in his deposition that the very fact of the use of the carts outside was hazardous,
that the only way that they could be safely utilized outdoors would be for all parts
of the sidewalks to slope, and that the failure to provide such sloping created a
hazard for business invitees.
Festervan also argued that there was no “definitive proof” that the
warning signs on the carts were present on the date of the accident. He contended
that it was reasonable to believe that Nancy had not been properly warned of the
hazard associated with taking the cart outside because not all carts have the
warnings. He also noted that store management was unaware of a prohibition
against taking the cart outside to the parking lot.
In reply, Kroger reiterated that there was no evidence to show what
caused Nancy’s fall and argued that Appellant essentially was asking the court to
pile inference upon inference. Kroger asserted that because Nancy was seen
parked on the sidewalk moments before she fell, it was “easier to infer” that she
may have lost her balance, fallen asleep, or fainted in light of her documented
medical history -- alluding to a prior emergency room visit where she had passed
out at Walmart when “[s]he was just sitting at the time, riding in a cart.”
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On June 19, 2020, the trial court entered Summary Judgment in favor
of Kroger as follows in relevant part:
[T]here is no witness or video to explain how Festervan
was injured. Instead, the plaintiff alleges that Festervan
“attempted to negotiate a turn and the wheels of her cart
fell from the edge of the sidewalk.” In contrast, the
defendants suggest that Festervan likely lost her balance
after falling asleep or passing out due to her
compromised health. To support that contention, the
defendants have proffered Festervan’s medical records
which include a notation of her previously losing
consciousness while sitting in another motorized cart.
The parties also spend a lot of time arguing about
some warning signs on some of the Kroger carts. Some
of these carts have language in big, red, all-capped
lettering which states “PLEASE READ TO AVOID
PERSONAL INJURY” and “USE AT YOUR OWN
RISK!” The warnings further advise “INTENDED FOR
USE INDOORS ON LEVEL SURFACT ONLY!”
Finally, it instructs “DO NOT TAKE THIS CART
OUTSIDE THE STORE.” However, there is apparently
a number of motorized carts on the Kroger premises
without these warnings, and there has been no testimony
as to whether Festervan’s cart contained such language.
In order to create a rebuttable presumption
sufficient to defeat a motion for summary judgment,
the parties agree that the plaintiff is required to show
that “she had an encounter with a foreign substance
or other dangerous condition on the business
premises.” Martin vs. Mekanhart Corp., 113 S.W.3d
95, 98 (Ky. 2003). The plaintiff then contends that the
allowance of motorized carts outside of the Kroger
store created a dangerous condition. If Kroger is
going to allow carts to be used outside, the plaintiff
asserts that “the whole storefront should be curbed to
where it slopes down to where these things cannot flip.”
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Instead, the only sloping is in front of the entryways/exits
of the Kroger store.
This Court certainly agrees that it is dangerous for
a motorized cart to be operated on an unlevel surface.
However, this Court does not believe that it is a
“dangerous condition” for a customer to exit the grocery
store on the cart, drive down the sloped area, and then
ride to his or her parked vehicle. In fact the depositions
herein establish that a number of customers commonly
proceed in this fashion, and that no other similar
accidents have occurred. In addition, this Court does not
believe that it was dangerous for Festervan to be parked
about a foot from the curb as she waited for her ride.
The downfall with the plaintiff’s case is her
inability to provide any proof of an actual encounter
with the “dangerous condition on the business
premises.” As grounds, there is no witness or video to
substantiate that Festervan “attempted to negotiate a
turn and the wheels of her cart fell from the edge of
the sidewalk.” Instead, the plaintiff is simply
speculating as to how this accident occurred while the
defendants are likewise speculating that Festervan lost
her balance after falling asleep or passing out due to her
Addison’s Disease.
It is well-settled that a party responding to a
properly supported summary judgment motion cannot
merely rest on the allegations in his pleadings.
Continental Casualty Co. vs. Belknap Hardware & Mfg.
Co., 281 S.W.2d 914, 916 (Ky. 1955). “[S]peculation
and supposition are insufficient to justify a submission of
a case to the jury, and . . . the question should be taken
from the jury when the evidence is so unsatisfactory as to
require a resort to surmise and speculation.” O’Bryan vs.
Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citation
omitted). “[T]he proper function of summary judgment
is to terminate litigation when, as a matter of law, it
appears it would be impossible for the respondent to
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produce evidence at trial warranting a judgment in his
favor.” Steelvest, Inc. vs. Scansteel Service Center, Inc.,
807 S.W.2d 476, 480 (Ky. 1991).
(Uppercase emphases original, boldface emphases added.)
On June 24, 2020, Appellant filed a Notice of Appeal to this Court.
The standard of review on appeal of a summary
judgment is “whether the trial court correctly found that
there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a
matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781
(Ky. App. 1996) (citing Kentucky Rules of Civil
Procedure 56.03). “The record must be viewed in a light
most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in
his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,
807 S.W.2d 476, 480 (Ky. 1991) (citations omitted).
Consequently, summary judgment should be cautiously
applied and is not a substitute for a trial. It is appropriate
only when it appears, as a matter of law, that it would be
impossible for the respondent to produce evidence at trial
warranting a favorable judgment. Id.
Carney v. Galt, 517 S.W.3d 507, 509 (Ky. App. 2017).
Festervan raises the following arguments on appeal: (1) that
Appellees failed to properly warn of an impending hazard created by the use of
carts outside the store; (2) that allowance of motorized carts outside the store
created the dangerous condition; (3) that the warnings were absent or ineffective
and that it is not reasonable to assume that the decedent could not take the electric
carts outside the store; (4) that an open-and-obvious argument is not a factor; and
(5) that the trial court erred in substituting its judgment for that of a jury.
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The tort of negligence is well established in Kentucky. “In any
negligence action under Kentucky law, a plaintiff must prove the existence of a
duty, breach thereof, causation, and damages.” Boland-Maloney Lumber Co., Inc.
v. Burnett, 302 S.W.3d 680, 686 (Ky. App. 2009). In Jones v. Abner, 335 S.W.3d
471 (Ky. App. 2011), this Court held as follows:
[I]n order to create a rebuttable presumption sufficient to
defeat Appellee’s motion for summary judgment,
Appellant was required to show that:
(1) . . . she had an encounter with a foreign
substance or other dangerous condition on
the business premises; (2) the encounter was
a substantial factor in causing the accident
and the customer’s injuries; and (3) by
reason of the presence of the substance or
condition, the business premises were not in
a reasonably safe condition for the use of
business invitees.
Id. at 475 (quoting Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky. 2003)).
In the case before us, the trial court granted Kroger’s motion for
summary judgment because Festervan failed to provide any proof on an essential
element of his claim -- an actual encounter with a dangerous condition on the
business premises that caused the injury. Instead, he simply speculated as to how
the accident might have occurred.
It is well established that a party responding to a properly
supported summary judgment motion cannot merely rest
on the allegations in his pleadings. Continental Casualty
Co. v. Belknap Hardware & Manufacturing Co., 281
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S.W.2d 914 (Ky. 1955). “[S]peculation and supposition
are insufficient to justify a submission of a case to the
jury, and . . . the question should be taken from the jury
when the evidence is so unsatisfactory as to resort to
surmise and speculation.” O’Bryan v. Cave, 202 S.W.3d
585, 588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co.
v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). “‘Belief’ is
not evidence and does not create an issue of material
fact.” Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3
(Ky. 1990)[.]
Sparks v. Trustguard Ins. Co., 389 S.W.3d 121, 124 (Ky. App. 2012).
We have reviewed the record in this case in a light most favorable to
Festervan. Resolving all doubts in his favor, we are compelled to agree with the
conclusion of the trial court. Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565,
569 (Ky. App. 2014) (Summary judgment was proper where plaintiff did not know
why she fell. “Klinglesmith could not prove the essential element of causation if
the matter proceeded to trial; therefore, we find no basis for reversing the Order on
appeal.”).
The total absence of any proof of causation renders moot all other
arguments raised on appeal. Accordingly, we AFFIRM the Summary Judgment of
the Nelson Circuit Court entered on June 19, 2020.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
M. Keith Poynter M. Trent Spurlock
Louisville, Kentucky Stephen J. Mattingly
Felix H. Sharpe, II
Louisville, Kentucky
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