Walters v. Dollar Gen. Corp.

JANE WALTERS, Plaintiff, v. DOLLAR GENERAL CORPORATION, et al., Defendants.

Case No. 19-1010-EFM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

February 9, 2021

MEMORANDUM AND ORDER

Before the Court are Plaintiff Jane Walters, Defendant Dollar General Corporation, and Defendant DG Retail, LLC's (collectively "Dollar General") Motions for Summary Judgment (Docs. 90 and 96). Jane Walters brings this action under diversity jurisdiction for a personal injury she sustained on June 3, 2018, after tripping and falling on a sidewalk outside of Dollar General's store in Pratt, Kansas. She alleges, among other things, that Dollar General was negligent in its inspection and maintenance of the sidewalk. For the following reasons, the Court grants in part and denies in part the motions for summary judgment.

I. Factual and Procedural Background¹

On June 3, 2018, Walters tripped and fell on the sidewalk in front of Dollar General's store in Pratt, Kansas. On her way out of the store, Walter's tripped on a "hole" while carrying flower pots that obstructed her view of the sidewalk. Walters testified that the hole that caused her to trip was deep enough that "quite a bit of the top part of the front of [her] foot went in."² While there were multiple irregularities in the surface of the sidewalk, no one measured the cracks in the sidewalk at the time of the accident.

As far back as 2009, Dollar General considered the condition of the sidewalk to be a "trip hazard." Over the years, it made minor repairs to fix the defects. Approximately 250-300 customers entered the store each day via the sidewalk and the store manager, Janelle Verstraete, testified that during the preceding five years, she could recall only two accidents. It is unclear whether these two prior accidents resulted from the same defect that caused Walters' fall. As often as three to five times per month, customers complained to Dollar General employees about the condition of the sidewalk. The employees frequently reported these complaints to Dollar General's management. In one instance, a ticket filed by an employee to Dollar General's corporate department stated that "the sidewalk . . . has been cracked very badly for years and customers continue to trip . . . ."³ In another ticket, Verstraete stated that the "sidewalk is all buckled up and holes in sidewalk [sic]" and that it was "very dangerous to customers . . . ."⁴However, Dollar General and senior manager of facility maintenance, Anne Marie Heisse, did not think that the sidewalk presented an imminent danger to customers entering or exiting the store. Nevertheless, Dollar General hired contractors to fix parts of the sidewalk.

Defendant IIM, Inc., contracted with Dollar General to provide facility and premises repair services between November 2013 and November 2016. On or about June 12, 2016, a customer tripped and fell on the sidewalk in front of Dollar General's Pratt store. The customer reported toe and hip injuries and stated that the concrete causing her fall was uneven by about a quarter of an inch. In response, Verstraete entered a service request ticket with IIM to repair cracks in the sidewalk, reporting that "the sidewalk is very uneven and broken . . . ."⁵ IIM "parked" the ticket, meaning that it would eventually be addressed after being bundled with other services. The sidewalk was not repaired at that time and Dollar General did not press IIM to repair the defects immediately. On April 12, 2017, another customer tripped and fell on the sidewalk. This time, Verstraete entered a service request ticket with Dollar General's own facility maintenance to have the sidewalk repaired, which Heisse addressed by soliciting a quote from a local paving company. This request initiated a back-and-forth process between Dollar General and the paving company in preparation for the repair. The paving company eventually ceased responding and Dollar General employees failed to follow up on the ticket. Also in April 2017, a Dollar General employee emailed Heisse, stating: "We have a store that is having a large amount of accidents on a sidewalk in disrepair."⁶ Ultimately, the sidewalk remained in disrepair until Walters' accident on June 3, 2018.

In furtherance of its request for pavement repair services before Walters' accident, Dollar General photographed the cracks in the sidewalk. There are four pictures of the pertinent areas. The first one depicts a crack, bulge, and apparent patchwork attempt. Taken together, these defects appear to have resulted in a hole, although it is unclear from the picture how deep the hole may have been. Walters identified this hole as the cause of her accident. Pictures two and three show a hairline crack running along the sidewalk's edge facing the parking lot. Picture four shows a recessed concrete slab in the sidewalk causing a lip with the adjoining slab. It is unclear from the pictures exactly how deep any of the defects were and, to reiterate, no one measured the cracks in the sidewalk at the time of Walters' accident. However, following Walters' accident, Dollar General district manager Charles Robb entered a ticket with Dollar General's corporate office which stated in part: "Can we please get this fixed asap? The buckle is so big it takes up over half the sidewalk."⁷

Walters alleges, among other things, that Dollar General was negligent in their inspection and maintenance of the sidewalk. Walters seeks both compensatory and punitive damages. Dollar General moved to dismiss, which the Court denied on November 6, 2019. Walters proceeds with four claims under Kansas law: negligence, wanton/reckless conduct, nuisance, and negligence per se. Defendant IIM, Inc., is in default and did not appear for the pretrial conference. Walters intends to proceed to trial against IIM only if she fails to prevail on her motion for partial summary judgment against Dollar General's fault comparison defense. Dollar General now moves for summary judgment against all of Walters' claims. Walters likewise moves for summary judgment against Dollar General's defense of comparison of fault against IIM.

II. Legal Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.⁸ A fact is "material" when it is essential to the claim, and issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.⁹ The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim.¹⁰ The nonmovant must then bring forth specific facts showing a genuine issue for trial.¹¹ These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits—conclusory allegations alone cannot survive a motion for summary judgment.¹² The court views all evidence and reasonable inferences in the light most favorable to the non-moving party.¹³

III. Analysis

A. Walters' Negligence Claims

Dollar General first seeks summary judgment on Walters' negligence claim, arguing that the "slight defect" rule bars Walters' recovery. To succeed on a negligence claim under Kansas law, a plaintiff must prove: "the existence of a duty, breach of that duty, injury, and a causalconnection between the duty breached and the injury suffered."¹⁴ Negligence cases typically present factual determinations for a jury, not legal questions for the court.¹⁵ However, questions regarding the existence of the duty element are purely legal determinations.¹⁶ Therefore, if a court concludes that a defendant did not have a duty to act in a certain manner toward the plaintiff, then the defendant cannot be liable, and the court may properly grant summary judgment in the defendant's favor.¹⁷

Dollar General contends that the Court should grant summary judgment in its favor because the "slight defect" rule under Kansas law bars Walters' claim. The slight defect rule is a judicially created rule "that negates the existence of a duty that might otherwise exist."¹⁸ Under the rule, "slight variances in the level of sidewalk surfaces, whether caused by projections, depressions or otherwise, are not sufficient to establish actionable negligence in the construction or maintenance of the sidewalk."¹⁹ A court may decide as a matter of law whether the slight defect rule bars a plaintiff's claim.²⁰ "Courts generally rely on the well-established rule that a sidewalk defect is actionable, that is, it presents a jury question, only when the defect is such that a reasonably prudent person should anticipate some danger to persons walking on it."²¹ "[E]ach case must bedetermined on its own facts."²² Kansas courts have applied the slight defect rule in cases where the sidewalk defect ranged from less than an inch to as many as three inches.²³

The Court concludes that there is a genuine dispute of material fact at issue in this case precluding summary judgment. Walters contends that the defect in Dollar General's sidewalk was deep enough to cover half of her foot. The pictures taken before the accident reveal multiple cracks, chips, and holes in the sidewalk, but are unclear as to the severity or depth of the defects. Notably, these pictures show the sidewalk as it existed roughly 15 months before Walters' accident. Dollar General argues that the Court should rely on these pictures alone in holding that no factual dispute exists. However, multiple Dollar General employees, managers, and customers testified that the sidewalk defects were severe and dangerous. While no evidence clearly establishes measurements for the severity of the defects, the pictures considered in conjunction with the testimony and other evidence in the record presents a genuine issue of material fact. As a result, the Court denies Dollar General's motion for summary judgment on Walters' negligence claim.

B. Walters' Punitive Damages Claim

In addition to...