Darris Smith v. St. Claire Regional Medical Center, Assumed Name of St. Claire Medical Center, Inc. ( 2023 )

RENDERED: OCTOBER 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1041-MR
DARRIS SMITH APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
v. HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 20-CI-90035
ST. CLAIRE REGIONAL MEDICAL APPELLEE
CENTER, ASSUMED NAME OF ST.
CLAIRE MEDICAL CENTER, INC.
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Darris Smith (“Smith”) appeals from the Rowan Circuit
Court’s order granting summary judgment in favor of St. Claire Regional Medical
Center1 (“St. Claire”) in this premises liability action. Finding no error, we affirm.
1
Assumed name of St. Claire Medical Center, Inc.
BACKGROUND
Smith slipped and fell in St. Claire’s parking lot one evening as he
was walking to his car. According to Smith, the fall occurred because the parking
lot had been sealed recently and the sealant2 was wet due to the rain. Smith claims
the surface was “slick as ice,” like someone had poured oil onto it. Smith did not
have any trouble walking before he slipped and did not notice any discoloration on
the asphalt. He also did not notice any substance on his clothes or shoes after the
fall. St. Claire concedes the parking lot was sealed two months before the
accident.3
In addition to his deposition testimony, Smith filed an affidavit stating
St. Claire was negligent when it sealed the parking lot and applied too much
sealant which prevented it from drying properly. He also opined that applying
sealant in September is not optimal because the temperatures at night slow the
drying process. Smith tendered photographs of the parking lot taken by his
brothers several hours after the incident, allegedly showing a discoloration of the
parking lot caused by the sealant.
2
Smith refers to the substance as sealer in his deposition but sealant in his affidavit. Although
these are two different products used for different purposes, for simplicity’s sake, we will simply
refer to the substance as sealant in the Opinion.
3
St. Claire sealed the parking lot on September 21-22, 2019, and the accident occurred on
December 2, 2019.
-2-
As a result of the fall, Smith suffered a broken hip and later sued St.
Claire, alleging that it was negligent in keeping the parking lot reasonably safe. St.
Claire moved for summary judgment, arguing Smith could not prove it breached
any duty owed to him, because Smith could not prove what caused his fall, citing
Phelps v. Bluegrass Hospitality Management, LLC, 630 S.W.3d 623 (Ky. 2021).
Smith countered that whether St. Claire breached its duty was an issue of fact for
the jury. In a single-paragraph order, the trial court granted the motion and
dismissed the complaint. This appeal followed.
STANDARD OF REVIEW
“The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.” Pearson
ex rel. Trent v. National Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Because these are legal questions our standard of review is de novo. Shelton v.
Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013), as corrected
(Nov. 25, 2013) (citations omitted).
ANALYSIS
Smith claims the trial court erred in granting summary judgment and
that genuine issues of material fact exist for trial. Specifically, he argues whether
it was foreseeable that a recently sealed parking lot would be slick when it rained
-3-
and whether such risk is unreasonable are questions for the jury, citing Shelton,
413 S.W.3d at 916.4 St. Claire contends Phelps controls. We agree with St. Claire
that Phelps is the applicable precedent.
Shelton was an open-and-obvious premises liability case. Smith has
never argued the parking lot was an open-and-obvious hazard. On the contrary, he
testified he was not aware the parking lot was slick until he slipped. Smith instead
claims he encountered a foreign substance – sealant – which caused him to fall.
This case is more analogous to Phelps, a slip and fall case that also involved
allegations of a foreign substance.5
Turning to our analysis, the relevant question on appeal is “whether
[Smith] produced sufficient evidence of negligence to create a material issue of
fact to submit to a jury.” Phelps, 630 S.W.3d at 627-28. “The basic elements of a
negligence claim are: duty, breach, causation, damages.” Id. at 28 (internal
quotation marks and citation omitted). The parties agree that Smith was a business
4
Although his argument is not well developed, Smith seems to believe Shelton automatically
saves his case from summary judgment. Shelton shifted the foreseeability analysis in open and
obvious premises liability cases from the duty element of a negligence claim, a question of law,
to the breach element, generally a fact question for the jury. As a natural consequence of this
shift, many cases which, previously, might have been decided on summary judgment now
proceed to a jury. Smith’s brief merely summarizes Shelton’s holding and assumes its
applicability to this case.
5
While Phelps was also about an open-and-obvious condition, this fact was not relevant to the
case’s holding.
-4-
invitee of the hospital. Therefore, to create a rebuttable presumption of negligence
sufficient to survive a motion for summary judgment, Smith had to show:
(1) he . . . 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.
Martin v. Mekanhart Corp., 113 S.W.3d 95, 98 (Ky. 2003); see also Lanier v. Wal-
Mart Stores, Inc., 99 S.W.3d 431, 435-36 (Ky. 2003).
In Phelps, the plaintiff (Phelps) and her co-worker went to lunch and
as they were getting up from the table, Phelps slipped and fell, injuring herself.
She claimed she felt a waxy substance on the floor and that the manager told her
the floor had been waxed the night before and had become slippery due to moisture
in the air. However, Phelps’ co-worker discerned nothing on the floor which might
have caused Phelps’ fall. Phelps sued the restaurant and following discovery, the
restaurant moved for summary judgment. Along with the motion, it filed an
affidavit from the restaurant manager stating no cleaning products or wax had been
applied to the floor prior to the accident. The trial court granted the motion and
dismissed Phelps’ case.
On appeal, a panel of this Court affirmed the trial court, noting that
Phelps “was unable to produce any evidence, other than her own testimony, to
-5-
support her allegations of negligence[.]” Phelps v. Bluegrass Hosp. Management
LLC, No. 2018-CA-001279-MR, 2019 WL 4565230, at *2 (Ky. App. Sept. 20,
2019), aff’d, 630 S.W.3d 623 (Ky. 2021). She could not identify any substance on
her clothes or shoes, had no photographs of the area where she had fallen, and had
no expert witness. On discretionary review, the Supreme Court affirmed the Court
of Appeals, holding that Phelps had “failed to submit proof of a material fact – that
being the presence of a hazardous condition upon BGH’s business premises[,]”
which was fatal to her claim. Phelps, 630 S.W.3d at 630.
The Court observed that when faced with a premises liabilities claim:
[n]either courts nor juries are authorized to indulge in
speculation or guesswork as to the cause of accidents;
there must be some tangible evidence from which it may
be fairly said what brought about the accident. It has
long been the rule in this state that no recovery can be
had in such cases where the evidence is so unsatisfactory
as to require surmise or speculation as to how the injury
occurred, and that there will be no presumption of
negligence.
Id. at 628. Stated another way, “‘[b]elief’ is not evidence and does not create an
issue of material fact. A plaintiff must present affirmative evidence in order to
defeat a properly supported motion for summary judgment.” Humana of Kentucky,
Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990) (citation omitted).
While Phelps claimed she slipped on a waxy substance, she produced
no tangible evidence of such and no expert testimony establishing the breach of
-6-
any duty owed to her. Phelps, 630 S.W.3d at 629. As such, “Her case relies[d]
entirely on conjecture. Without some proof or testimony indicating BGH failed to
discover an unreasonably dangerous condition and either correct or warn of it, any
attempt to lay blame for Phelps’ fall [was] an exercise in surmise and speculation.”
Id. Ultimately, the Court ruled that “Phelps’ inability to identify the mechanism
which caused her fall [was] fatal to her premises liability claim.” Id. at 629.
Without proof of an unsafe substance or condition that caused her fall, she could
not prove the restaurant breached any duty owed to her. Id.
Similarly, here, Smith cannot identify the mechanism which caused
his fall. Therefore, he cannot show he had an encounter with a foreign substance
that was a substantial factor in causing the accident. He alleges the parking lot was
slippery because of a sealant but produced no tangible proof of such a condition.
There was no substance on his clothes or shoes and although he provided pictures
showing a discoloration of the parking lot, the photos are low quality and were
taken several hours after the fall. Further, the source of the discoloration is
unclear, whether rain, sealant, or something else.
While St. Claire concedes the parking lot was sealed two months prior
to the accident, Smith produced no evidence the sealant ever constituted a hazard,
much less at the time of the fall. Smith asserts St. Claire should have known “a
recently sealed parking lot would become slippery in the rain” and that St. Claire
-7-
was negligent in overapplying the sealant so that it was “mushy and slick.” But
Smith offered no expert testimony to corroborate these claims. It is well-
established that a “party opposing summary judgment cannot rely on their own
claims or arguments without [offering] significant evidence[.]” Wymer v. JH
Props., Inc., 50 S.W.3d 195, 199 (Ky. 2001). “Without some proof or testimony
indicating [St. Claire] failed to discover an unreasonably dangerous condition and
either correct or warn of it, any attempt to lay blame for [Smith’s] fall is an
exercise in surmise and speculation.” Phelps, 630 S.W.3d at 629. Because Smith
failed to produce sufficient evidence of negligence, the trial court did not err in
granting summary judgment.
CONCLUSION
Therefore, the order of the Rowan Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Winter R. Huff Cathy L. Stickels
Somerset, Kentucky Olivia C. Keller
Covington, Kentucky
C. Graham Martin
Salyersville, Kentucky
-8-