Adam Hale as Next Friend of Brayden Hale v. O'charley's Restaurant Properties, LLC

• Court: Court of Appeals of Kentucky
• Decided: April 1, 2021
• Docket: 2018 CA 000363
• Status: Unknown

Opinion

RENDERED: APRIL 2, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2018-CA-0363-MR

ADAM HALE, AS NEXT FRIEND OF BRAYDEN HALE APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE PAMELA R. GOODWINE, JUDGE ACTION NO. 16-CI-00356

O’CHARLEY’S RESTAURANT PROPERTIES, LLC APPELLEE

AND NO. 2018-CA-0367-MR

O’CHARLEY’S RESTAURANT PROPERTIES, LLC CROSS-APPELLANT

CROSS-APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE PAMELA R. GOODWINE, JUDGE ACTION NO. 16-CI-00356

JESSICA HALE CROSS-APPELLEE OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.

JONES, JUDGE: Appellant, Adam Hale, as next friend of Brayden Hale,

(hereinafter referred to as “the Hales”), brings this appeal from an order of the

Fayette Circuit Court granting summary judgment in favor of O’Charley’s

Restaurant Properties, LLC (“O’Charley’s”). Following a review of the record and

applicable law, we affirm.1

I. BACKGROUND

On August 3, 2015, Adam Hale, his wife, Jessica, and their five-year-

old-son, Brayden, had lunch together at an O’Charley’s restaurant in Lexington,

Kentucky. After the family finished eating, Brayden accompanied Jessica to the

women’s restroom. When the two were finished inside the restroom, Jessica

pulled the door towards her and walked out. Brayden followed behind his mother.

As the door closed, Jessica had her back to both the door and Brayden. Once the

door closed, Jessica heard her son scream and turned around. Jessica saw Brayden

standing outside the restroom door, holding his left hand, which was bleeding

1 Because we have determined that the circuit court properly granted summary judgment to O’Charley’s, it is not necessary for us to consider O’Charley’s cross-appeal.

-2- profusely. Adam, who was seated at the table, heard his son scream and went to

see what was wrong. Adam also observed his son standing outside of the women’s

restroom door with a bloodied left hand. A small part of Brayden’s left ring

fingertip had been severed by the door. The severed fingertip was located above

the middle hinge of the door.2 Brayden was never able to clearly articulate to his

parents how his finger came to be trapped in the door, and neither Adam, Jessica,

nor anyone else inside the restaurant saw the accident happen.

Brayden was transported to a local hospital where he received

medical care. Medical personnel attempted to reattach Brayden’s fingertip;

ultimately, however, the reattachment process was not a success. Eventually,

Brayden had surgery to place a small skin graft over the location where the

fingertip was severed. Dr. Michael Lynch testified that Brayden had a partial

amputation with about a centimeter or a centimeter and a half of the pad side of

Brayden’s left ring finger being cut off. The severed portion consisted of skin and

tissue; it did not include the joint, bone, or the fingernail.

On February 1, 2016, acting on Brayden’s behalf, the Hales filed suit

against O’Charley’s in Fayette Circuit Court. The action was premised on various

2 Specifically, Adam testified in his deposition that when he went to investigate why his son screamed out, he saw the tip of Brayden’s finger in the hinge side of the door exterior, more than halfway up the door and above the middle hinge.

-3- theories of liability, including res ipsa loquitur and common law negligence.3 As

the case progressed, the Hales identified O’Charley’s negligence as installing a

door mechanism that closed too fast. According to the Hales, the door closure at

issue was defective because it allowed the door to shut in 3.174 seconds instead of

five to seven seconds. Prior to trial, after a period of discovery, O’Charley’s filed

a motion for summary judgment asserting that the Hales had failed to come

forward with facts necessary to prove that the speed of the door closing mechanism

actually caused Brayden’s injury. O’Charley’s pointed out that while the Hales’s

expert, David Johnson, opined that the door closed too quickly, he could not say

that a slower closing door would have prevented the injury.4 Mr. Johnson admitted

during his deposition that he did not know how Brayden’s finger came to be caught

in the door hinge in the first instance or whether Brayden was more than three

seconds behind his mother. All Mr. Johnson could say is that the door closure

speed was not compliant with standards established by the Americans with

Disabilities Act, (“ADA”), as adopted by Kentucky in KRS5 198B.260(2). After

briefing and a hearing, the circuit court entered an order granting summary

judgment in favor of O’Charley’s.

3 The Hales have abandoned their claim of negligence per se, which was premised on an alleged violation of the Americans with Disabilities Act. 4 Mr. Johnson was identified as a certified safety professional. 5 Kentucky Revised Statutes.

-4- This appeal followed.

II. STANDARD OF REVIEW

“[S]ummary judgment is to be cautiously applied and should not be

used as a substitute for trial” unless “there is no legitimate claim under the law and

it would be impossible to assert one given the facts.” Steelvest, Inc. v. Scansteel

Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991); Shelton v. Kentucky Easter Seals

Soc’y, Inc., 413 S.W.3d 901, 916 (Ky. 2013), as corrected (Nov. 25, 2013). A

motion for summary judgment should be granted “[o]nly when it appears

impossible for the nonmoving party to produce evidence at trial warranting a

judgment in his favor” even when the evidence is viewed in the light most

favorable to him. Steelvest, 807 S.W.2d at 482; Shelton, 413 S.W.3d at 905. To

survive a properly supported summary judgment motion, the opposing party must

have presented “at least some affirmative evidence showing that there is a genuine

issue of material fact for trial.” Steelvest, 807 S.W.2d at 482; see also Neal v.

Welker, 426 S.W.2d 476, 479 (Ky. 1968) (“When the moving party has presented

evidence showing that . . . there is no genuine issue of any material fact, it becomes

incumbent upon the adverse party to counter that evidentiary showing by some

form of evidentiary material reflecting that there is a genuine issue pertaining to a

material fact.”).

-5- “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 CR6 56.03). Because there

are no factual findings at issue, the appellate court may review that trial court’s

decision de novo. Shelton, 413 S.W.3d at 905.

III. ANALYSIS

A. Res Ipsa Loquitur

Res ipsa loquitur is a Latin term which means “[t]he thing speaks for

itself.” DAVID J. LEIBSON, 13 KY. PRAC. TORT LAW § 10:23 (2018 ed.). It is an

evidentiary doctrine which allows the inference of negligence on the part of the

defendant and, if forceful enough, creates a rebuttable presumption of negligence.

Sadr v. Hager Beauty Sch., Inc., 723 S.W.2d 886, 887 (Ky. App. 1987).

[R]eliance upon the doctrine of res ipsa loquitur is predicated upon a showing that (1) the defendant had full control of the instrumentality which caused the injury; (2) the accident could not have happened if those having control had not been negligent; and (3) the plaintiff’s injury resulted from the accident.

6 Kentucky Rules of Civil Procedure.

-6- Id. (citations omitted). However, even if all three elements are met, a claim

premised on res ipsa loquitur may be overcome if there is a showing that the injury

was caused by the plaintiff’s own voluntary action. Id.

There is no question that Brayden suffered an injury due to his finger

becoming lodged in the closed door and neither party asserts that an injury did not

result from the accident. Therefore, we will not address the third element of res

ipsa loquitur as it is not contested. The issues raised by the parties on appeal relate

to the first and second prongs of res ipsa loquitur. We will address each in turn.

Foremost, res ipsa loquitur requires a showing that the defendant had

full control of the instrument that caused the injury. The Hales argue this element

is met because O’Charley’s had exclusive control over the door and the door

stopping mechanism in their restaurant. The fact that O’Charley’s installed the

door and stopping mechanisms in its restaurant, however, does not mean at the

time of injury the door was in O’Charley’s exclusive control. This case is

analogous to Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 790 (Ky. App. 2012). The

appellant in Ryan was pumping gas at a Fast Lane station. She alleged that the gas

pump continued to dispense gas even when no pressure was being applied causing

gas to spray in her eye. Like the Hales, the appellant in Ryan argued that the trial

court erred in granting summary judgment because it did not apply the res ipsa

loquitur doctrine. We disagreed that the doctrine was applicable even though the

-7- gas station installed the pump. We explained that the doctrine could not apply

because the appellant was actively in control of the pump at the time of her injury.

Id.

We recognize that there is a difference between passive use and active

control. A patron’s passive use of an item does not relinquish the defendant’s

absolute control. See J.C. Penney Co. v. Livingston, 271 S.W.2d 906, 907-08 (Ky.

1954) (holding that an escalator was under the control of the defendant when a

small child riding the elevator with his sister got his hand lodged between the

escalator’s step). Rather, exclusive control is lost when an item is actively being

operated by the patron. See Ryan, 350 S.W.3d at 790. When Jessica physically

took over operation of the door, i.e., opening and closing the door, O’Charley’s no

longer retained exclusive control. At the point Jessica began her operation of the

door, she was in control of the door’s basic operation, while O’Charley’s only

retained control of the door’s initial installation and repair, if necessary. Absent

exclusive control, the first element required under res ipsa loquitur is not met.

Second, a finding under res ipsa loquitur requires evidence that the

injury could not have happened if the party in control was not negligent. Res ipsa

loquitur applies only where the thing shown speaks of negligence of the defendant

and not merely the occurrence of an accident. Helton v. Forest Park Baptist

Church, 589 S.W.2d 217, 219 (Ky. App. 1979). The doctrine does not apply

-8- where the existence of the negligent acts is not more reasonably probable and

where the proof of occurrence, without more, leaves the matter resting only to

conjecture. Schroerlucke v. McDaniel Funeral Home, Inc., 291 S.W.2d 6 (Ky.

1956).

The Hales rely on the opinion of their safety expert, Mr. Johnson, that

the door closed too quickly. While this may be this case, no proof was offered that

the accident was actually caused by the speed of the door. This is not a case where

Brayden was hit on the back by the door, where the door knocked him down to the

ground as he was still in the process of exiting it, or even where his finger was

caught between the wall and the outside facing of the door. Brayden’s fingertip

was located in the hinge of the door. And, no one could explain how his finger

came to be in that location. Even Mr. Johnson could not explain how Brayden’s

finger came to be that location or even if a slower closing door would have

prevented the accident. It is just as likely that the accident would have still

occurred even if the door had been a slower closing one. As such, we agree with

the circuit court that res ipsa loquitur is not applicable in this case. See Harris v.

Thompson, 497 S.W.2d 422, 431 (Ky. 1973); Savill v. Hodges, 460 S.W.2d 828,

829 (Ky. 1970).7

7 While we have not located any Kentucky authority factually on point, other jurisdictions have rejected the application of res ipsa loquitur in factually analogous cases. See Dillon K. v. Northern Blvd. 4818, LLC, 77 N.Y.S.3d 69, 70 (N.Y. App. Div. 2018) (“Plaintiffs failed to raise

-9- B. Common Law Negligence

In Kentucky, a claim under common law negligence must satisfy the

following elements: (1) a duty was owed to the plaintiff by the defendant; (2) the

duty was breached; (3) there was a resulting injury to the plaintiff; (4) legal

causation exists between the defendant’s breach and the plaintiff’s injury; and (5)

damages. Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012). If

any one element fails, then, as a matter of law, the claim in its entirety must also

fail. Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992).

The parties’ arguments to us concern whether summary judgment was

properly granted with respect to causation. “Causation consists of two distinct

components: ‘but-for’ causation, also referred to as causation in fact, and

proximate causation.” Patton v. Bickford, 529 S.W.3d 717, 730 (Ky. 2016). “But-

for causation requires the existence of a direct, distinct, and identifiable nexus

an issue of fact. Plaintiffs’ argument that the doctrine of res ipsa loquitur applies to this case is unpersuasive, since [their] version of the incident does not rule out the possibility that the injury [infant’s finger being smashed in parking garage door] was caused by infant plaintiff’s own voluntary actions[.]’”); Massey on Behalf of Massey v. Schwegmann Giant Super Markets, Inc., 557 So. 2d 280, 283 (La. Ct. App. 1990) (“A conclusion could reasonably be drawn that the plaintiff’s injured finger was due to his own actions in opening the freezer door and allowing it to close on his finger . . . this is not a proper case for the application of the doctrine of res ipsa loquitur.”); Harvey v. Racetrac Petroleum, Inc., No. 3:07-CV-1828-D, 2009 WL 577605, at *2, n.4 (N.D. Tex. Mar. 6, 2009) (“Here, the character of the accident (a child getting his finger caught in a closing door) is the type of accident that could ordinarily occur in the absence of negligence on the part of the door owner. Moreover, at the time of the accident, the allegedly defective door was at least partly, if not entirely, under the control of Demetrice.”); Parker v. Felcor Lodging Tr., Inc., No. 1:08-CV-3644-RWS, 2010 WL 3717308, at *1 (N.D. Ga. Sept. 14, 2010) (holding res ipsa loquitur did not apply against hotel where fingertip severed by door was found on the room side of the door where the hinges connected to the door to the frame).

-10- between the defendant’s breach of duty (negligence) and the plaintiff’s damages

such that the event would not have occurred ‘but for’ the defendant’s negligent or

wrongful conduct in breach of a duty.” Id. “Proximate causation captures the

notion that, although conduct in breach of an established duty may be an actual

but-for cause of the plaintiffs damages, it is nevertheless too attenuated from the

damages in time, place, or foreseeability to reasonably impose liability upon the

defendant.” Id. at 731.

The Hales contend that there is an issue of material fact as to the cause

of Brayden’s injury. In support of this theory, the Hales cite to Bailey v. North

American Refractories Company, where this Court held that there is an issue of

material fact when competing expert testimony has been produced providing two

theories of causation. 95 S.W.3d 868, 873 (Ky. App. 2001). In such an instance,

we agree, the question of causation becomes a question of fact, best left for the

jury. The problem in this case, however, is not a disagreement between experts or

even fact witnesses regarding how the injury occurred. The record is devoid of any

evidence regarding how the accident occurred. Mr. Johnson, the Hales’s expert,

opined that the door closed too quickly. However, he admitted that he could not

say whether a slower closing door would have prevented the accident because he

did not know how Brayden’s finger came to be located in the door hinge.

-11- In the ordinary use of a door, a person does not need to place his

fingers near the hinge side of the door. Additionally, even had the door taken

longer to close, the pinch point would have happened much quicker and with much

greater force on the hinge side than on the latch side of the door, making it likely

the injury still would have occurred. Therefore, it is reasonable to conclude the

door’s closing speed was not the legal cause of Brayden’s injury. Absent legal

cause, there is no actionable claim for negligence. As such, the circuit court did

not err in granting summary judgment in favor of O’Charley’s.8

Our conclusion that the circuit court properly granted summary

judgment in favor of O’Charley’s renders any remaining issues, including those

raised by the cross-appeal, moot.

IV. CONCLUSION

For the reasons set forth above, we affirm the Fayette Circuit Court.

ALL CONCUR.

8 See Ray v. GPR Hosp., LLC, No. 1:14-CV-1309-CC, 2015 WL 12683828, at *5 (N.D. Ga. Sept. 30, 2015) (“In this case, assuming arguendo that Defendant had actual or constructive notice that the door in question was closing too quickly and required an adjustment, the defective condition of the door was not the proximate cause of Charles Ray’s injury.”); Beman v. Kmart Corp., 501 S.E.2d 580, 582 (Ga. Ct. App. 1998).

-12- BRIEFS FOR APPELLANT ADAM BRIEF FOR APPELLEE/CROSS- HALE: APPELLANT O’CHARLEY’S RESTAURANT PROPERTIES, LLC: Justin S. Peterson Laraclay Parker Susan L. Maines Lexington, Kentucky Lexington, Kentucky

BRIEF FOR CROSS-APPELLEE JESSICA HALE:

Justin S. Peterson Laraclay Parker Lexington, Kentucky

-13-