Speedway LLC v. Grubb Teresa ( 2021 )

RENDERED: JUNE 25, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1192-MR
SPEEDWAY LLC APPELLANT
APPEAL FROM CLAY CIRCUIT COURT
v. HONORABLE OSCAR GAYLE HOUSE, JUDGE
ACTION NO. 08-CI-00033
TERESA GRUBB
and RANDY GRUBB APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.
KRAMER, JUDGE: On February 1, 2007, Teresa Grubb was at a Speedway
SuperAmerica filling station in Manchester, Kentucky, when she tripped and fell
after stepping into a pothole. She and her husband, Randy Grubb, then
respectively filed negligence and loss of consortium claims in Clay Circuit Court
against the owner of the premises, Speedway LLC. Following a bench trial, the
circuit court (after several appeals spanning over a decade) ultimately entered a
judgment in favor of the Grubbs consistent with a determination that Speedway
was comparatively negligent and at fault by a margin of eighty percent. Speedway
now appeals, contending the circuit court’s apportionment of fault either violated
the law of the case or constituted clear error. Upon review, we disagree and
affirm.
The circuit court aptly summarized the evidence it deemed relevant to
the issue of apportionment as follows:
Testimony of Roxanne Smith:
Roxanne Smith testified that she began work for
Speedway SuperAmerica (Speedway) in 2004 and
became the manager of the store in question October of
2006. She had had twenty to twenty-five years of
experience in convenience or carry out stores. She would
arrive at the store at 4:15 a.m. At 5:00 a.m. the lights
would be turned on, and she would return to the outside
premises to make sure everything was alright.
She also testified that she walked the lot at least
two times per day. She swept the outside premises daily,
and a leaf blower was used to remove debris. There were
three inspections per day of the outside premises. Storm
water drained from the premises through this primary
drain where the hole was located that caused Grubb to
fall. In addition, mop water was poured into the drain,
which was located under a canopy.
According to her testimony at trial, Smith never
noticed the hole before Teresa Grubb fell on February 1,
2007. At trial Smith was asked, “The hole that is the
focal point of this whole action, did you notice this hole
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before February 1, 2007?” She answered “No, I did not.”
[Trial Video 01:03:28-01:03:38].[1] The follow up
question was, “Yet for more than 15-16 months from
October 06, five days per week you inspected this
parking lot, looked at the pumps on a daily basis and you
never noticed this depression, never noticed this hole?”
She responded, “No, I did not.” [Trial Video 01:03:38-
01:04:00]. After further cross examination she was
asked, “And it is still your testimony that you never
noticed this depression or hole in the drain of the general
area of the drain is that correct,” to which she gave an
affirmative response that she had not. [01:05:28 et seq.]
During cross examination by her attorney, she was again
asked about the pothole. She was asked why this pothole
was not reported to district management. She testified, “I
didn’t feel it was hazardous, I didn’t know about it either.
I didn’t notice it.” [17:38-17:57]. The policies and
procedures of Speedway required that any large crack or
pothole be reported to corporate.
After Teresa’s fall, Smith was assisted by Lauren
Sizemore in taking pictures and measurements of the
hole where Grubb fell. These photographs were
forwarded to corporate. According to Smith, one of the
photographs showed a ruler being placed in the hole. She
testified the hole was one inch deep. This photograph
was never produced in discovery and was not produced at
trial.
Smith acknowledged that asphalt patch could be
purchased for $6.95. Asphalt patch could be poured
directly into the hole. She testified that she probably
could not have done that by herself because of the weight
of the asphalt patch bag, which was sixty pounds.
1
The bracketed citations to evidence and the video record of the trial included within the quoted
portions of the circuit court’s findings are, to be clear, the circuit court’s citations and not ours.
As indicated later in this Opinion, this Court cannot independently review any video footage of
the trial, nor any of the evidence presented at the trial because Speedway failed to designate any
of it as part of the appellate record.
-3-
The drain where the hole was located is straight
across from the only exit door by which Grubb and
Gregory could exit the store to return to their vehicle.
The hole lies in the path of the shortest route back to
vehicles located at the outside island. Grubb and
Gregory’s vehicle was located on the inside lane of the
outside island. It is a high pedestrian traffic area.
Testimony of Carolyn King:
Carolyn King was a cashier at Speedway. She had
just gotten off work the night Grubb fell, but she did not
see the fall. She had already clocked out before she saw
Grubb on the ground. She went to Grubb and asked her
if she could be of any assistance. Grubb told her no, that
her friend would help her. She returned to the store and
told Wendy Couch to write down the occurrence.
King testified at trial that she would sweep the
outside and would also pour mop water down the drain,
but that she had never noticed the hole. No other
employees or customers had complained about the hole.
She was asked these questions and gave these answers:
Q. There’s been a discussion about the
depression pictured in the pictures, prior to
Ms. Grubb’s fall, the month you were
working there, did you ever notice that area
at all.
A. No.
Q. When you were out dumping mop water,
you never noticed it?
A. No.
Q. Out sweeping area, ever notice?
A. No, not really.
-4-
[Trial Video 01:05:38-01:06:07]
Q. I believe your response to Mr. [sic] that
you had never noticed that place?
A. Not really.
[Trial Video 01:10:29-01:10:47]
Q. Okay was there any speculation, or did
you all talk about where Ms. Grubb may or
may not have fallen.
A. Well, not really, she said that Ms. Grubb
said there was a hole.
She was confronted with her testimony from a
prior deposition. She was asked if she remembered being
asked, (1) “Okay, had you ever noticed that hole before
yourself” and answering “why yeah, it had been there all
the time, there’s a drain there, there’s a hole, and there’s
a drain,” and (2) “Okay and that is something you had
seen,” and answering “yes.” She could not remember
being asked these questions and having given those
answers. [01:10:47-01:05:38].
Testimony of Lauren Marie Sizemore:
Lauren Marie Sizemore was shift leader at
Speedway on February 1, 2007. Prior to that she had
been a cashier. She had more responsibilities as shift
lead than she did as cashier. When asked what those
additional responsibilities were, she could not recall.
Her responsibilities did include cleaning away
trash and mopping. She mopped once every shift and
sometimes more if needed. She would pour the mop
water into the drain. When asked about the hole, she
testified as follows:
-5-
Q. In the ten months you were out there
when sweeping or inspecting the lot did you
ever notice this depression we have been
talking about here today?
A. No, not at all.
Q. What about when draining mop water
into the grate.
A. No.
Q. Was that a no?
A. No, I’m sorry.
[Trial Video 01:15:18-01:18:35]
Testimony of Robbie Gregory:
Robbie Gregory testified that he accompanied
Teresa Grubb to Speedway between eight and nine
o’clock on the evening of February 1, 2007. They pulled
to the inside of the outside lane of pumps. After fueling
the vehicle, they went inside the store through the
entrance door. Inside, they got a coke and cappuccino
and paid for their purchases. They left through the exit
door on the end of the building away from the entrance
door.
While going back to their vehicle, Gregory was a
step or two in front of Grubb. The two were engaged in a
conversation. He turned around to look at her, and she
hit the ground. Gregory did not see the area before she
fell.
Testimony of Teresa Grubb:
Teresa Grubb and Robbie Gregory pulled into
Speedway on the evening of February 1, 2007 to get
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some gas. The vehicle was pulled into the inside of the
outside lane of pumps. After gassing up they went inside
Speedway through the entrance door. They retrieved a
[C]oke and a cappuccino, paid for their purchases, and
left the building through the exit door. Gregory was in
front of Grubb, and they were engaged in a conversation.
They passed the first lane of pumps. She felt her left foot
creel,[2] and she went down. Her foot was in the hole.
She did not notice the hole she was not looking down at
the ground at the time she fell. Robbie Gregory’s
walking in front of her blocked her view except that she
“could see a car or something like that.” Grubb’s
specific testimony was as follows:
A. Well, we was [sic] walking, and I had
my cappuccino, and we was [sic] talking and
we get past the first set of pumps going
through there and all of a sudden, I felt my
ankle creel and I was on the ground.
Q. Did you know what happened at that
point?
A. Yeah, my foot was in a hole.
[Trial Video 05:00-05:30]
Q. As you were walking across the parking
lot, did you notice the hole?
A. No. I wasn’t looking down at the ground
or anything I didn’t notice.
[Trial Video 09:50-10:07].
2
Considering the repeated use of the word “creel,” we can only assume this was not a
typographic error and that the word has a slang meaning appropriate to the context in which it
has been used. According to THE AMERICAN HERITAGE COLLEGE DICTIONARY 326 (3rd
ed.1993), a “creel” is “[a] wicker basket, esp. one used by anglers for carrying fish,” or “[a]
frame for holding bobbins or spools in a spinning machine.”
-7-
A. Coming out, I believe he was ahead of
me, not too far, and we was [sic] talking,
and I wasn’t drinking my cappuccino, it was
hot, I don’t know if he was drinking his
[C]oke or not, and he was talking, and the
next thing I know, I was on the ground.
Q. Were you looking at him, you said
earlier you weren’t looking at the ground.
You were looking like ordinarily.
A. Uh-huh. [Affirmative]
Q. He wasn’t blocking your view or
anything he wasn’t that close when you
couldn’t see you were going?
A. He was, I mean he was standing close to
me, I could see a car or something like that.
[Trial Video 29:20 et seq.].
Next, the circuit court analyzed what it believed were seven
significant factors in assigning the parties their respective shares of comparative
fault, explaining in relevant part:
1. It is a significant factor for purposes of
apportionment that the fall of Teresa Grubb
did not occur in a parking lot but in the
service area between the islands where fuel
was dispensed.
During the trial of this case counsel for all parties
on more than one occasion referred to the area where
Grubb fell as a parking lot, hence the origin of the use of
[the] term parking lot in this case. In its Findings of Fact,
Conclusion of Law and Judgment this Court referred to
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the location as “a hole in the parking area between the
gas pumps.” While this reference is technically correct,
it may have in fact contributed to an incorrect
nomenclature. The more appropriate description of the
location of the hole area was that of the Supreme Court
as “the driveway area directly between the two pump
islands” or “driveway/parking portion of the premises.”
Grubb v. Smith, 523 S.W.3d 409, 413 (Ky. 2017).
Parking lots are areas where cars are left
unattended while the drivers engage in conduct
unassociated with the parking, e.g., go into a restaurant to
eat, go into a mall to shop, or go into a theatre for a
movie. The area that vehicles pull into between lanes of
gas pumps for fueling does not fit into the classification
of a parking lot. They are only parked there for the
purpose of being serviced. Once fueled and payment is
made, it is expected that the vehicle will move on so
another vehicle can pull in and be serviced. Payment
may be made at the pump, or the customer may go into
the building and pay for their fuel and possibly make a
quick purchase of a soda, candy bar, bag of chips, or
pack of cigarettes. A customer cannot park his vehicle in
the traffic lanes of the convenience store and attend a
University of Kentucky-University of Louisville
basketball game, an Ariana Grande concert, or a bass
fishing tournament and expect not to be towed. For such
events, there are parking lots or parking garages.
This case is a fall in the service area of a
convenience store not a parking lot. It occurred under a
canopy placed over the area to provide cover for
customers while filling their gas tanks. Any breach of
duty must be analyzed in the context of the service area
of the C store not the context of wide-open parking
spaces of a parking lot. As the Supreme Court made
clear in Shelton v. Ky. Easter Seals Soc’y, Inc., 413
S.W.3d 901 (Ky. 2013) “small changes in the facts may
make a dramatic change in how much risk is
foreseeable.” Id. 913. “[T]he foreseeability of the risk of
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harm should be a question normally left to the jury under
the breach analysis. In doing so, the foreseeability of
harm becomes a factor for the jury to determine what was
required by the defendant in fulfilling the applicable
standard of care.” Id. 914.
In its first decision the Kentucky Court of Appeals
concluded, “There is no evidence that Speedway knew or
should have known that an invitee on its premises would
blindly walk through its parking lot oblivious to common
imperfections’. Smith v. Grubb, No. 2011-CA-000223-
MR, 2012 Ky. App. Unpub. LEXIS 1066, at *29 (Ct.
App. June 15, 2012). In reaching its decision the Court
of Appeals relied upon Lucas v. Gateway Cmty. Servs.
Org., Inc., 343 S.W.3d 341 (Ky. Ct. App. 2011). It found
the case at bar and Lucas to be similar because the
plaintiff had stepped on a [sic] crumbling gravel in a
parking lot. Id. *26.
Lucas was a true parking lot case. Lucas and a
friend, Davis, went to Gateway for the purpose of Lucas
signing forms so that Davis could pick up Lucas’s
grandchildren from Gateway’s head start program if
Lucas were [sic] unable to do so. They parked in the
parking lot and went inside and transacted their business.
On return Lucas fell because of a [sic] crumbling gravel
at the location where the blacktopped part of the parking
lot turned to gravel. There was no evidence of a hole. If
small changes in a fact indeed make dramatic changes in
how much risk is foreseeable, then certainly a change
from parking in an area designed for parking (Lucas) and
temporarily parking in a service area where you must
locate yourself in the area in order to get service, (Grubb)
are more than just small changes and do indeed make a
dramatic difference in how much risk is foreseeable. A
[sic] crumbling gravel in a parking lot differs
substantially from a hole in the direct path from the
inside of the building back to the vehicle where it was
fueled.
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After this case was remanded to the Court of
Appeals for it to reconsider its decision in light of more
recently decided cases, the Court of Appeals rendered its
second opinion. Smith v. Grubb, No. 2011-CA-000223-
MR, 2014 Ky. App. Unpub. LEXIS 1045 (Ct. App. Sept.
26, 2014). The Supreme Court described that opinion as
follows:
In a bow, apparently, to Shelton’s cautioning
against “no duty” rulings in “open and
obvious[”] cases, the Court of Appeals
slightly reworded its ruling. It again insisted
that the pothole at issue did not pose an
unreasonable risk of injury, but now, instead
of holding that the pothole did not implicate
Defendants’ duty to maintain reasonably
safe premises, it held that their failure to fix
the pothole could not be found a breach of
that duty. Nevertheless, in either version,
the crux of the panel’s view was that the
particular hazard was not “unreasonable”
because only a negligent invitee would be
injured by it. In effect, they held recovery
was barred because the plaintiff was (had to
have been) negligent – the old contributory
negligence bar – precisely the outcome
McIntosh and Shelton sought to correct.
Grubb v. Smith, 523 S.W.3d 409, 416 n.4 (Ky. 2017).
One of the examples that the Court of Appeals
cited as not creating an unreasonable risk was “a small
pothole in the parking lot of a shopping mall.” Smith v.
Grubb, No. 2011-CA-000223-MR, 2014 Ky. App.
Unpub. LEXIS 1045, at *29 (Ct. App. Sep. 26, 2014). It
concluded that “based on the facts developed at trial, the
only reasonable conclusion that can be reached is the
imperfection in Speedway’s parking lot did not create an
unreasonable risk of injury.” Id. 30. It also concluded as
it did in its first Smith v. Grubb opinion: “There is no
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evidence Speedway knew or should have known an
invitee on its premises would blindly walk through its
parking lot oblivious to common imperfections.” Id. *31.
This was not a small hole in a parking lot in a mall. It
was a hole in “the driveway area directly between the
two pump islands” or “driveway/parking portion of the
premises.” Grubb v. Smith, 523 S.W.3d at 413.
2. It is a significant factor for purposes of
apportionment that the employees of
Speedway testified that they had not noticed
the hole prior to February 1, 2007, the date
of Grubb’s fall.
Regarding the testimony of Speedway’s employees
and whether they noticed the hole that caused Grubb to
fall, I made the following factual findings:
She [Roseanne Smith] testified that she
inspected and swept the parking lot on a
daily basis. She further testified that she had
not noticed the hole in question before
February 1, 2007. Another employee,
Carolyn King, likewise testified on direct
examination that part of her duties included
sweeping the parking lot everyday, as well
as, pouring mop water into the drain which
was located next to the hole in question. On
direct examination at trial, Mrs. King
testified that she had never noticed the hole
when dumping mop water into the drain or
sweeping the parking lot. On cross
examination, Plaintiff’s Counsel pointed out
that Mrs. King had testified in her
deposition, prior to trial, that she had been
aware of the hole all the time and had seen it
in the past when cleaning the parking lot.
The phraseology used by the Supreme Court
regarding Smith’s testimony varies substantially from the
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findings of fact made by me. It wrote, “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.” Grubb v.
Smith, 523 S.W.3d 409, 413 (Ky. 2017).
In Smith v. Grubb, No. 2011-CA-000223-MR,
2012 Ky. App. Unpub. LEXIS 1066 (Ct. App. June 15,
2012) the Court of Appeals summarized the testimony of
Speedway’s employees as follows:
Smith testified that since 2006, she had
managed the Speedway store and inspected
and swept the parking lot daily. Because
she did not believe the pothole was a hazard,
Smith did not request that the pothole be
repaired.
Id. *5.
Carolyn King and Lauren Sizemore,
Speedway cashiers, testified and confirmed
Smith’s testimony. Additionally, King
testified that although she swept the parking
lot daily and poured water down the drain
located next to the pothole, prior to Teresa’s
fall she did not observe anything that she
believed posed a danger to customers.
Id. *6. The same exact summary appears in Smith v.
Grubb, No. 2011-CA-000223-MR, 2014 Ky. App.
Unpub. LEXIS 1045, *5-6. *6-7 (Ct. App. Sep. 26,
2014).
The variations between my findings of fact and the
language of both the Supreme Court and the Court of
Appeals is conspicuous. This prompted me to review the
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trial testimony of Speedway’s employees, Smith, King,
and Sizemore, which is set forth above.
After review of this testimony, I have concluded
that the original findings I made regarding the testimony
of Smith and King are correct. All three testified that
they did not notice the hole. That is the same as saying
they never saw the hole. This testimony was not the
same as saying that they saw the hole but did not
appreciate the danger it posed. If you say you did not
notice a hole, then you are saying you did not see the
hole, you did not discern the hole, you did not perceive
the hole, you did not behold the hole.
Regarding the testimony of three employees of
Speedway, they either did not see the whole [sic] which
was open and obvious, or they saw the hole and took no
measures to correct it. In my findings I found, “The
Court does not find the testimony of Roxanne Smith and
Carolyn King to be credible, nor persuasive, on the issue
as to whether or not they were aware of the existence of
the hole to the parking lot and the danger it created prior
to the fall of the Plaintiff on February 1, 2007. It is clear
from looking at the pictures of the hole in question that it
had been created by an erosion process over a period of
months and months, if not years.” My conclusion was
reached on the basis that the physical facts (photographs)
belied the truthfulness of Speedway’s employees not that
Speedway’s employees testified that they saw the hole
and did not think it was dangerous. I rejected the
testimony of Speedway’s employees given to downplay
the length of the time the pothole had been present.
3. The actual or constructive notice of
Speedway is a significant factor weighing
heavily in favor of apportioning a high
percentage of the fault to Speedway.
Actual or constructive notice of a hazardous
condition is a significant factor in determining the
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reasonableness of the action of the owner of the
premises. Davis v. Coleman Mgmt. Co., 765 S.W.2d 37,
39 (Ky. Ct. App. 1989). The condition present on the
premises of Speedway was a condition that had been
created by months and months, if not years, of erosion
caused by water draining into the drain provided for the
runoff of rain. If the employees of Speedway did not see
the hole in question, they should have, thereby putting
Speedway on notice of the hazardous condition. If the
employees did in fact see the hole, then Speedway had
actual knowledge of the condition. In either event the
hole had existed for a substantial period, and Speedway
had actual or constructive knowledge of the hazardous
condition for many months. For purposes of comparative
fault, it is appropriate to consider the length of time they
knew or should have known about the hole. “[A]lthough
it is true that when the danger is obvious the land
possessor does not have superior knowledge, the land
possessor still has the superior ability to issue repairs.”
Cooper v. Steak N Shake, Inc., No. 5:18-CV-417-EBA,
2019 U.S. Dist. LEXIS 178665, at *16 (E.D. Ky. Oct. 16,
2019) citing McIntosh, 319 S.W.3d at 393. The
landowner’s position is unique. Ibid.
Roxanne Smith had worked at Speedway since
2004 and had been the manager since October of 2006.
Carolyn King had worked at Speedway for one month.
Lauren Sizemore had worked for Speedway since April
of 2006. Each testified that they daily swept the premises
and poured mop water into the drain where the pothole
was located. Pursuant to the policies and procedures of
Speedway each was charged with the responsibility
reporting [sic] large cracks and potholes to Speedway’s
management for maintenance repair.
There is no evidence that Teresa Grubb had any
knowledge of this hazardous condition until she fell on
February 1, 2007. No evidence was introduced at trial
that demonstrated any prior knowledge of Grubb or
Robbie Gregory, who accompanied her to Speedway on
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the evening of February 1. None of the employees
testified that [sic] knew or recognized Grubb. The only
employee who was asked denied knowing Grubb.
Grubb left the building and followed the direct
path back to her vehicle. She was using the property for
the purpose it was intended to be used. She was walking
to the rear and left of Gregory. This was a high traffic
area for pedestrians and vehicles. During the seconds of
her exiting the building, for her own safety she did need
to keep an outlook for her surroundings including the
ground, incoming and outgoing vehicles, and pedestrians.
“It should be noted that our case law has been clear that
an invitee is not required to watch each footstep as they
walk.” Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d
891, 900 n.30 (Ky. 2013). Humbert v. Audubon Country
Club, 313 S.W.2d 405 (Ky. 1958) states: “This does not
mean that one must look directly down at his feet with
each step taken but, in the exercise of ordinary care for
his own safety, one must observe generally the surface
upon which he is about to walk.” Id. 407. Grubb admits
that she was not looking at the ground, but she also
testified as set out above that her view as blocked by
Gregory who was in front her [sic] except that she “could
see a car or something like that.”
“In determining the percentages of fault, the trier
of fact shall consider both the nature of the conduct of
each party at fault and the extent of the causal relation
between the conduct and the damages claimed.” KRS[3]
§ 411.182(2). The nature of the conduct and the extent of
the causal relation based upon notice and actual or
constructive knowledge weighs heavily in favor of
apportioning a much higher percentage of liability to
Speedway as opposed to Grubb.
4. It is a significant factor for purposes of
apportionment that Speedway had the
3
Kentucky Revised Statute.
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exclusive opportunity to take steps to remedy
the hazardous condition but did not do so.
The opportunity to remedy the situation is another
significant factor to consider. Davis v. Coleman Mgmt.
Co., 765 S.W.2d at 39. There is no evidence to show that
Speedway lacked an opportunity to correct the
unreasonably dangerous condition that existed on its
premises. In fact, Speedway had a considerable length of
time within which to repair the hole. On the other hand,
Grubb was not vested with any right, authority, or
opportunity to correct the situation. Speedway was in the
unique position of being the only party that could provide
the necessary remedial measures. As to comparative
fault this factor would require almost exclusive
apportionment of the entire fault to Speedway.
5. It is a significant factor for purposes of
apportionment that it was foreseeable to
Speedway that an invitee to its premises
might fall because of the hole in the driveway
area between the two pumps.
The entrance to Speedway’s building by which
Grubb entered was located at one end of the building.
The check out and exit were located at the other end of
[sic] building. This is a common design used by many C
stores. It serves a business purpose because it requires
the customer to walk past the counters lined with chips,
candy bars, drinks and other assorted items arranged to
prompt impulse buying. While gasoline products may
produce the most revenue for a C store, it pales in
comparison to the high mark up on shelf inventory.
Speedway was certainly aware that the only exit
from its store led to a direct path for its customers back to
their vehicles. This would be particularly true of those
customers utilizing the outside lane as Grubb did. It was
clearly foreseeable to Speedway that one of its customers
might fall if there was a hazardous condition in its direct
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path of their exit in front of incoming and outgoing
traffic. A business should anticipate that rare is the
customer that will not take the most direct route back to
their vehicle.
Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598(1937) held that “a customer in a store may assume the
floor will be free from obstructions of a dangerous nature
and from a slippery spot, although he may not walk
blindly, irrespective of obvious danger.” Id. 301, 600-01;
Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891,
900 (Ky. 2013). The same is true of a C store that
provides only one exit with a direct path back to the area
where he or she have [sic] fueled their vehicle. They are
free to assume that such means of egress is free of
hazardous conditions but not walk blindly. Again, the
nature of the conduct and the extent of the causal relation
weighs heavily in favor of apportioning a much higher
percentage of liability to Speedway as opposed to Grubb.
6. The balancing of costs against the likelihood
and severity of injuries weighs in favor of
apportioning greater fault to Speedway.
“[I]t has been widely understood that the
reasonableness of a risk involves some manner of
balancing the costs or burdens of mitigating it against the
likelihood and severity of the injuries it threatens. In our
law, that determination, that balancing is ordinarily
deemed a matter of fact to be addressed by the jury.”
Grubb v. Smith, 523 S.W.3d 409, 417 (Ky. 2017). Smith
testified that she was aware that the hole could have been
repaired with asphalt patch, which cost $6.95 for a 60-
pound bag. The cost of the asphalt patch plus labor for
pouring it into the hole is to be weighed against the
likelihood and severity of injuries that are threatened.
The Supreme Court correctly described the hole as
“an irregularly shaped patch of the asphalt—a foot
square, perhaps, more or less—had weathered and
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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.” Grubb v. Smith, 523 at 413.
The likelihood that some invitee is going to step into this
hole located in his or her direct route back to their vehicle
from the inside premises of the store is great. It is well
known that such falls often result in serious injuries
including head injuries, back injuries, and broken bones
in various parts of the body. The hole was a foreseeable
unreasonable risk which Speedway did not appreciate.
7. It is a significant factor for purposes of
apportionment that Grubb failed to exercise
ordinary care in not observing the hole.
The fact that Grubb did not see the hole in question
is a significant factor to consider for purposes of
apportionment but must be considered in light of all the
attendant circumstances including the obviousness of the
hole. This was a high traffic area with vehicles
approaching from both ends of the service islands over
four lanes of traffic. It was also a high traffic area for
pedestrians fueling their vehicles and moving back and
forth between the service area and the inside of the
convenience store. It is certainly foreseeable that a
pedestrian walking in front might block the view of the
person walking to the rear.
As indicated, after weighing the evidence and considering the factors
elucidated above, the circuit court entered a judgment in favor of the Grubbs
consistent with a determination that Teresa Grubb had been 20% at fault for her
injuries and that Speedway had been 80% at fault. Now on appeal, Speedway’s
arguments are two-fold; the first of which involves the “law of the case” doctrine,
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which generally provides that “an appellate court, on a subsequent appeal, is bound
by a prior decision on a former appeal in the same court[.]” Inman v. Inman, 648
S.W.2d 847, 849 (Ky. 1982). The rule means that “issues decided in earlier
appeals should not be revisited in subsequent ones.” Brown v. Commonwealth,
313 S.W.3d 577, 610 (Ky. 2010). In this vein, Speedway points to the following
passage from the Kentucky Supreme Court’s opinion in Grubb v. Smith, 523
S.W.3d 409, 429-30 (Ky. 2017): 4
As Defendants correctly note, in McIntosh we were
emphatic in pointing out that while the obviousness of
the condition that occasioned the plaintiff’s injury did
not, under the comparative-fault approach, preclude the
plaintiff’s claim, “only under extremely rare
circumstances” under that approach “could a plaintiff
[injured by an obvious condition] avoid some share of
fault.” McIntosh, 319 S.W.3d at 392. This case does not
present “extremely rare circumstances.” Quite the
contrary, as Teresa herself testified, it presents the utterly
mundane circumstance of a person who, engaged in
conversation with a friend, fails to watch where she is
going and trips on an obvious flaw in the pavement.
Some portion of the responsibility for her injuries should
have been attributed to Teresa, but the trial court did not
even address the question. We agree with Defendants
that the trial court’s lapse was a “substantial error”
requiring us to vacate the Judgment and to remand to that
court for the findings mandated by KRS 411.182(1).
And while it is for the trial court to determine in the first
4
Interestingly, the issue for which this case has seen repeated appellate review was not argued in
the circuit court; nor did Speedway seek a finding under Kentucky Rule of Civil Procedure (CR)
52.04. Grubb, 523 S.W.3d at 430. Nonetheless, the Supreme Court excused Speedway’s failure
to address apportionment and determined that the circuit court had committed palpable error in
not addressing it sua sponte. Id.
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instance the percentages of fault, as provided for in KRS
411.182(2), we reiterate that in light of Teresa’s admitted
carelessness, the percentage attributed to her should not
be insignificant.
(Emphasis added.)
Speedway further points to Speedway SuperAmerica, LLC5 v. Teresa
Grubb and Randy Grubb, No. 2017-CA-002021-MR, 2020 WL 1231606 (Ky.
App. Mar. 13, 2020) (unpublished). It specifically addresses how it believes this
Court, in the following passage from that opinion, further refined the Supreme
Court’s above-quoted statement:
We agree with Speedway that ten percent is far from a
significant amount of fault and is not much fault at all.
As the term is commonly understood, “significant
amount” means a noticeably or measurably large amount.
Likewise, “much fault” is commonly understood to mean
a large amount of fault. We conclude that apportioning
only ten percent of the fault to Teresa falls way short of
implementing the Supreme Court’s directions. It does
not reflect the Supreme Court’s conclusion that “much”
of the fault in causing her accident was attributable to
Teresa or that her fault was “not insignificant.” Although
certainly this case needs to come to end, we are
compelled to reverse and remand with directions that the
trial court apportion damages in accordance with the
Supreme Court’s opinion in Grubb.
Id. at *4 (emphasis added.)
5
While no party takes issue with it – and accordingly this Court will not take issue with it either
– the appellant named itself “Speedway LLC” in its notice of appeal relative to this appeal; but,
in its prior appeals in this litigation, the same appellant named itself “Speedway SuperAmerica
LLC.”
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Citing the above-quoted language from these two appellate opinions,
Speedway’s argument is essentially this: Because (1) the Kentucky Supreme Court
stated that “the percentage [of fault] attributed to [Grubb] should not be
insignificant,”6 and because (2) this Court held that an apportionment of ten
percent of the fault was not “not insignificant,”7 (3) the circuit court’s latest
attribution of twenty percent of the fault to Grubb – which is ten percent more than
a ten percent share of the fault – is likewise, Speedway reasons, not “not
insignificant.” Therefore, Speedway concludes, the circuit court’s order violated
the “law of the case” doctrine and was thus erroneous.
We disagree. The Kentucky Supreme Court’s statement that “the
percentage [of fault] attributed to [Grubb] should not be insignificant”8 appears to
be obiter dictum.9 Indeed, the nonbinding nature of this statement was underscored
earlier (i.e., in the very same sentence) by the Kentucky Supreme Court. The
Court further observed that “it is for the trial court,” and not a court of review such
6
Grubb, 523 S.W.3d at 430.
7
Grubb, 2020 WL 1231606 at *4.
8
Grubb, 523 S.W.3d at 430.
9
“A statement in an opinion not necessary to the decision of the case is obiter dictum. It is not
authoritative though it may be persuasive or entitled to respect according to the reasoning and
application or whether it was intended to lay down a controlling principle.” Cawood v. Hensley,
247 S.W.2d 27, 29 (Ky. 1952) (citation omitted).
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as itself, “to determine in the first instance the percentages of fault[.]” Grubb, 523
S.W.3d at 430.
Upon remand, having been tasked with “determin[ing] in the first
instance the percentages of fault,” the circuit court then found Grubb was ten
percent at fault, based upon its own credibility determinations of the evidence
presented. Speedway then appealed this decision.
To be sure, reasonable minds might differ regarding whether the
Kentucky Supreme Court’s statement regarding a “not insignificant” share of the
fault was dictum. Nonetheless, this Court in Grubb, 2020 WL 1231606 at *4,
interpreted it as the law of the case – “whether right or wrong” – and concluded
that a ten percent share of fault did not meet the Supreme Court’s concept of a “not
insignificant” share of fault. Effectively, we reversed the circuit court’s factual
findings of comparative fault without making any determination of clear error.
Nonetheless, an appeal was not taken of Grubb, 2020 WL 1231606; thus, we must
apply the law of the case. And due to the law of the case – and thus for purposes
of this case only – we have no choice but to follow the law of this case that ten
percent does not meet a “not insignificant” share of fault. Upon remand again and
after a thorough and tedious review and recitation of the evidence and detailed
credibility findings, the circuit court found Grubb to be twenty percent at fault.
Speedway has now appealed that determination to this Court.
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That explanation is necessary to put the case into context given its
history, but notwithstanding it, this ends up being of no consequence here for a
most basic reason: Now, the trial court has attributed a twenty percent share of the
overall fault to Grubb. Thus, the circuit court followed the mandate of Grubb,
2020 WL 1231606, having doubled Grubb’s apportionment of fault. And
unsurprisingly, Speedway cites no authority – nor have we discovered any –
indicating that twenty percent is not, as a matter of law, a “not insignificant”
attribution of fault. We agree with the Supreme Court’s assessment that only the
finder of fact is in the position to make this determination. Grubb, 523 S.W.3d at
430 (“[I]t is for the trial court,” and not a court of review such as itself, “to
determine in the first instance the percentages of fault[.]”). Accordingly,
Speedway’s argument in this vein lacks merit and has no authority on which to
rely.
This leads to Speedway’s second argument. Speedway asserts the
circuit court erred because, in its view, the circuit court’s findings did not
adequately focus upon, or give enough weight or credence to the evidence of,
Grubb’s comparative negligence. In support, it directs this Court’s attention to
several depositions and several parts of the video record of the trial held in this
matter.
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As an aside, we emphasize once more that ours is a court of review.
We do not engage in fact finding. We do not engage in weighing evidence. We do
not engage in judging the credibility of witnesses. Nor, for that matter, are we
authorized to dictate how a trial court should weigh the evidence. Instead, as it
relates to the evidence, our authority is limited to an assessment of clear error.
Stated differently, we only reverse a trial court’s factual findings – and thus its
fact-based apportionments of fault pursuant to KRS 411.182 – if, after due regard
is given to the opportunity of the trial court to judge the credibility of the
witnesses, those findings are manifestly against the weight of the evidence. See
Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967); CR 52.01.
To withstand clear error review, this Court must find substantial
evidence in the record to support each disputed finding. Gosney v. Glenn, 163
S.W.3d 894, 898 (Ky. App. 2005). “Substantial evidence is evidence, when taken
alone or in light of all the evidence, [that] has sufficient probative value to induce
conviction in the mind of a reasonable person.” Id. Thus, this Court looks to the
evidence of record transmitted to it for this examination.
“It is the Appellant’s duty to ensure that the record on appeal is
‘sufficient to enable the court to pass on the alleged errors.’” Smith v. Smith, 450
S.W.3d 729, 731 (Ky. App. 2014) (quoting Burberry v. Bridges, 427 S.W.2d 583,
585 (Ky. 1968)). However, Speedway has put this Court at a disadvantage: The
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record on appeal before us contains no evidence at all. Rather, Speedway has
contented itself with ensuring the record consists exclusively of only two volumes
of appellate opinions and post-judgment pleadings, all of which post-date the trial
that was held in this matter by several years.
To review whether there is substantial evidence in the record to
support Speedway’s assertion of clear error, we must review the evidence
produced during the bench trial. The trial court painstakingly reviewed the
testimony of the various witnesses and evidence at trial. Thus, we are called upon
to likewise review the testimony and evidence produced at trial to evaluate whether
clear error occurred. But, as discussed, there is no designation of any video
recording or other evidence in the record for us to review.
Speedway was responsible for designating the video record and other
evidence for certification by the circuit clerk as part of the record on appeal.
Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016). Speedway’s failure
to designate for our review the video record of the bench trial and the evidence
introduced at that trial necessarily curtails our ability to evaluate the correctness of
the trial court’s findings.
Not only are we impeded from reviewing the record, another rule
comes into play here – a rule that is not mitigated by any second-hand appraisal of
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evidence10 nor by Speedway’s improper endeavor in this appeal to simply append
evidence into the appendix of its brief.11 The burden is on the appellant to
designate that part of the record necessary for an adequate review of the case. Id.When an appellant fails to ensure that the record on appeal is complete and
sufficient for a review of the issues presented, the appellate court must “assume the
missing portions of the record support the trial court’s decision.” Smith, 450
S.W.3d. at 732. Therefore, because Speedway has failed to ensure that we can
review the evidence of record ourselves, the law is clear that we must presume the
trial court’s findings are supported by the evidence of record.
In any case, given that the circuit court had the opportunity from the
long-ago genesis of this case to evaluate the evidence, consider the credibility of
the witnesses and apply the law, we discern no error in its having done so. Indeed,
“judging the credibility of witnesses and weighing evidence are tasks within the
exclusive province of the trial court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
10
See Caden v. Commonwealth, 242 S.W.2d 409, 412 (Ky. 1951) (stating the only time this
presumption does not arise is “where the omitted portions of a record were not considered by the
trial court or did not influence the decision, and are not necessary to be regarded by us on
review.” (citation omitted)).
11
Specifically, Speedway has appended several pages of what purports to be a pretrial deposition
from Teresa Grubb in tab “B” of its brief, the substance of which was never discussed by the
circuit court in its findings. Speedway’s inclusion of these pages was clearly improper, and
those pages cannot be considered, because they are not in the appellate record before us and the
function of an appendix is to provide “ready reference” to documents that “may be found in the
record.” CR 76.12(4)(d)(v).
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2003). As the Supreme Court held in this matter, “[u]nder the comparative-fault
regime, the fact finder is tasked with apportioning fault for the plaintiff’s injuries
between (or among) those responsible, with the defendant’s liability for the
plaintiff’s damages proportionate to his or her share of the fault.” Grubb, 523
S.W.3d at 415. KRS 411.182(2) requires a trier of fact determining the respective
percentages of comparative fault to “consider both the nature of the conduct of
each party at fault and the extent of the causal relation between the conduct and the
damages claimed.”
Upon review, we disagree with any suggestion from Speedway that
the circuit court’s extensive findings set forth above inadequately addressed those
mandatory factual considerations. We fail to see how the circuit court erred in any
matter and will not further impugn its ability to judge the credibility and evidence
under its seasoned review. There is no patent indication from those findings that
the circuit court drew any inferences in support of its findings that were manifestly
against the weight of the evidence, or that the circuit court otherwise
misunderstood the applicable law. CR 52.01.
This case is now a teenager, having been filed in circuit court in 2008.
The circuit court has now reviewed the testimony and evidence on at least three
separate occasions. This is its fifth appellate trip.12 For an issue that was never
12
2011-CA-000223; 2012-SC-000573; 2014-SC-000641; 2017-CA-002021; 2020-CA-001192.
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presented to the circuit court in the first instance, it has miraculously survived
Kentucky Supreme Court scrutiny. The circuit court is the only tribunal reviewing
this case which has had the first-hand opportunity to evaluate witnesses and
evidence. After three evaluations of the evidence, it clearly believes that under the
facts of this case, it is not insignificant to apportion twenty percent of the fault to
the tort victim herein. There being no authority mandating otherwise and
Speedway’s having failed to ensure that the evidence of record was before this
Court for purposes of appellate review, we are compelled to presume that the
missing evidence of record supports the circuit court’s findings.13 Accordingly, the
final judgment of the Clay Circuit Court is hereby AFFIRMED.
COMBS, JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS AND DOES NOT FILE
SEPARATE OPINION.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
David A. Owen Yancy L. White
Logan J. Mayfield Annette Morgan-White
Lexington, Kentucky Manchester, Kentucky
13
Smith, 450 S.W.3d. at 732.
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