Grubb v. Smith

523 S.W.3d 409

Teresa GRUBB and Randy Grubb, Appellants

v.Roxanne SMITH and Speedway SuperAmerica LLC, Appellees

2014–SC–000641–DG

Supreme Court of Kentucky.

MARCH 23, 2017

Rehearing Denied August 24, 2017

Modified August 24, 2017

COUNSEL FOR APPELLANTS: Yancey Lee White, Morgan & White Law Offices

COUNSEL FOR APPELLEES: David Andrew Owen, Brian Michael Johnson, Matthew Atwood Stinnett, Dickinson Wright PLLC

COUNSEL FOR AMICUS CURIAE: Christopher W. Goode, Bubalo Goode Sales & Bliss PLC

OPINION OF THE COURT BY JUSTICE HUGHES

This case has had a long procedural history, including two attempted removals to federal court, two trips to the Court of Appeals, and now a second visit to this Court, but it began life as, and remains, a fairly straightforward personal injury suit arising from a February 1, 2007 trip-and-fall at the Speedway SuperAmerica filling-station in Manchester, Kentucky. In the ensuing 2010 bench trial, the Clay Circuit Court found for Plaintiffs, Teresa Grubb and her husband Randy Grubb, and against Speedway SuperAmerica LLC (Speedway), the store's owner, and Roxanne Smith, the store's manager at the time of the accident (collectively "Defendants"). The trial court awarded the Grubbs some $200,000 damages, including an award of $175,000 to Teresa for pain and suffering.

On appeal, the Court of Appeals, invoking the common-law's open and obvious doctrine, reversed and remanded for entry of a defense judgment. This Court granted the Grubbs' motion for discretionary review. Noting our then recent attempts (in such cases as Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010) ; Dick's Sporting Goods v. Webb, 413 S.W.3d 891 (Ky. 2013) ; and Shelton v. Kentucky Easter Seals Soc. Inc., 413 S.W.3d 901 (Ky. 2013) ) to modernize the open and obvious doctrine and to harmonize it with our tort law's shift to a regime of comparative negligence, we remanded to the Court of Appeals for reconsideration in light of our recent precedent. On remand, the Court of Appeals panel found its prior ruling consistent with our recent cases and so stood by its original determination that the Grubbs' claims failed in their entirety.

We again granted the Grubbs' motion for discretionary review, and because we agree with them that the Court of Appeals panel read McIntosh and its progeny too narrowly, we reverse the panel's ruling. Our reversal reopens certain issues the panel's ruling rendered moot. Ordinarily, we would remand the matter to the Court of Appeals for its consideration in the first instance of those now resurrected issues. Given the long delays the parties have already endured and the fact that those issues have been briefed by the parties, however, we depart from our usual practice and address additional issues concerning the liability of store manager Roxanne Smith, the comparative fault of Teresa Grubb, and the trial judge's denial of a post-judgment motion to recuse. The upshot is our conclusion that the trial court erred by failing to consider whether Teresa Grubb shared responsibility for the accident, and, in light of certain undisputed facts, by failing to find that she did. We further conclude that the trial court erred in finding Smith jointly and severally liable with Speedway on the Grubbs' claims. Finally, we affirm the trial court's denial of the twelfth-hour recusal motion. Accordingly, we reverse and remand this case for further proceedings consistent with our Opinion.

RELEVANT FACTS

According to several witnesses at trial, including Teresa, at about 8:30 p.m. on February 1, 2007, she exited the convenience-store portion of the Speedway filling station in Manchester and was walking back to her car after she and a friend had paid for gasoline and purchased beverages. Teresa caught her foot in an eroded patch of asphalt in the middle of the driveway between the station's two parallel gas-pump islands and fell. The fall resulted in a broken ankle, a wrenched knee, and burns from the hot coffee Teresa had just purchased.

Teresa's testimony, the testimony of eye witnesses to the accident, and the testimony of Teresa's husband all tended to establish that Teresa experienced significant pain at the time of the accident and during its immediate aftermath. Teresa and her husband testified that then and continuing through the early stages of her recuperation, Teresa was to a large extent incapacitated and was forced to rely heavily on her husband for personal assistance and for household maintenance. And even after her ankle had healed (which her physician testified occurred within a year of the accident), Teresa continued to experience discomfort when she walked and swelling in her ankle if she stayed on her feet for extended periods. She testified that she was no longer able to wear high-heels, to go dancing, or to ride recreational vehicles, something she and her husband had enjoyed doing together. Her physician testified that those residual consequences of the injury could well prove permanent. Hospital, physician, and pharmacy records established that Teresa incurred medical expenses of slightly less than $5,800.

For these losses—the expenses incurred, Teresa's pain and suffering, her lost abilities and enjoyments, and her husband's lost consortium—the Grubbs sought $2 million from Speedway and its store manager Smith. According to the Grubbs, by opening the premises for business purposes Defendants incurred duties to ensure that the premises were reasonably safe for business invitees such as Teresa. Defendants had breached those duties, the Grubbs maintained, by failing to fix in a timely manner the eroded asphalt that tripped Teresa up.

Smith testified that she began working at the Manchester store in October 2004 and was promoted to manager in October 2006, some three or four months prior to Teresa's accident. Smith acknowledged that her employment duties included inspecting, at regular intervals, the store's exterior premises; policing them for trash and rubbish; sweeping the walkways; and reporting to the "store support" office, via an email, any "large cracks and potholes" in the gas-pump and parking areas. "Store support," according to Smith, was responsible for referring such reports to a repair person. Smith also acknowledged that she had a budget of up to $100 per day for such immediate necessities as "replacing a burned out light bulb," but she denied having the authority, much less the responsibility, either to make driveway repairs on her own or to contact a repair person directly without going through "store support." Smith further testified that while she was familiar with the worn patch of asphalt by the drain—she saw it at least once every day, every time she emptied out a bucket of mop water—she had not reported it to "store support," because in her view it was not hazardous, not the sort of "large crack [or] pothole" Speedway wanted her to report.

Other employees testified similarly. They knew from emptying mop buckets that the asphalt by the drain had worn, but the worn patch did not strike them as hazardous. Employee testimony also tended to establish that the drain area was well lit in the evenings; was not obscured by cars parked at the gas pumps; and, although there was, because of the pumps, heavy pedestrian traffic in that area, the worn asphalt had not caused any other customer to trip or even to complain.

Photographs introduced by both sides showed that the driveway area directly between the two pump islands was surfaced with concrete, and, as noted, testimony indicated that that area was also canopied and lighted. Beyond the concreted area between the islands, the driveway/parking portion of the premises was surfaced with asphalt. The drain was located about midway between the pump islands and toward one end of the concrete portion of the drive. It was set into the drive so that its cover was flush with the surface of the concrete. One side of the drain lay near the concrete/asphalt boundary, and it was there, the photo exhibits show, near that side of the drain, that an irregularly shaped patch of the asphalt—a foot square, perhaps, more or less—had weathered and eroded. The erosion varied from just a fraction of an inch to what appears to be, in a small area, at least two inches and probably more. One photograph shows erosion through the top layer of asphalt to a second or even third layer below.

Defendants maintained that they had no duty to do anything about this asphalt area because it was in plain view—"open"—and the risk it posed to pedestrians, such as it was, was apparent—"obvious." Under the common law's "open and obvious" doctrine, they argued, such conditions do not pose an "unreasonable" risk of injury to business invitees—the invitees being well able to protect themselves from such risks—and thus do not conflict with the premises owner's duty to ensure that the premises are "reasonably" safe. Smith maintained, additionally, that her limited employment duties as store manager did not subject her to liability to the Grubbs.

The trial court, the finder-of-fact in this bench trial, rejected Defendants' characterization of the area where Teresa Grubb fell. In its view, as expressed in the "Findings" portion of its Judgment, the photo exhibits showed a significant tripping hazard, a "hole" which Defendants should have realized might go unnoticed by an invitee. The court found that the hole rendered the premises unreasonably unsafe and thus triggered Defendants' duty to mitigate the risk. Their failure to do so constituted a breach of their duty, according to the court, and that breach caused injuries to Teresa and her husband, including what the trial court deemed Teresa's "significant and prolonged" pain and suffering.

In the "Conclusions" portion of its initial Judgment, the trial court held that Speedway was vicariously liable for the "acts and/or failure to act on the part of its employees, Roxanne Smith, et al., under the Doctrine of Respondeat Superior." The court...