RENDERED: NOVEMBER 10, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1357-MR
JOLEAN FUGATE APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 19-CI-00288
WALMART INC. AND KEVIN RICE APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Jolean Fugate (“Fugate”) appeals from the Letcher Circuit
Court’s order granting summary judgment in favor of Walmart Inc. (“Walmart”)
and Kevin Rice (“Rice”). Based on our review, finding no error, we affirm.
On October 18, 2019, Fugate filed a personal injury complaint against
Walmart and Rice alleging their negligence created a dangerous condition in the
store. On Thanksgiving Day, November 22, 2018, Fugate was standing in the checkout line with her daughter and eight-year-old grandson. Fugate’s grandson
said he needed to use the bathroom, so Fugate walked him toward the bathroom
while her daughter remained in the checkout line. The store was crowded, and
although there were multiple paths to the bathroom, Fugate attempted to walk
through a two-and-a-half-foot gap between a square post and a shelving unit. A
red fire extinguisher was attached to the post, which was in her line of sight.
Fugate steered her grandson through the gap. As she attempted to
walk through the gap, Fugate believes she tapped the fire extinguisher with her
shoulder before it fell. The fire extinguisher struck the back of her leg and then
landed on the floor.
In her deposition, Fugate testified the fire extinguisher was secured to
the post, and she did not know how it was secured to the post on the date of her
injury. She did not provide any evidence of whether the mechanism securing the
fire extinguisher to the post was defective, nor did she observe any problem with
the support post to which the extinguisher was attached. Fugate did not disclose
any expert witness or depose any Walmart employees.
Walmart and Rice moved for summary judgment. The circuit court
held several hearings and took the matter under submission. Both parties
submitted memorandum orders as requested.
-2- On September 21, 2021, the circuit court granted summary judgment
finding Fugate’s claim lacked any genuine issue of material fact. Fugate could not
prove breach because she had no evidence that a dangerous condition existed on
Walmart’s premises, and she could not prove causation because she had no proof
any act or omission of Walmart caused her accident.
Fugate filed two motions to set aside the judgment. Walmart and Rice
responded, and the circuit court held a hearing. The circuit court denied the
motions. This appeal followed.
On appeal, Fugate argues the circuit court erred in granting Walmart
and Rice’s motion for summary judgment because she established genuine issues
of material fact under the (1) traditional negligence standard or (2) burden-shifting
approach in Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003).
“Appellate review of a summary judgment involves only legal
questions and a determination of whether a disputed material issue of fact exists.
So, we operate under a de novo standard of review[.]” Adams v. Sietsema, 533
S.W.3d 172, 177 (Ky. 2017) (quoting Shelton v. Ky. Easter Seals Soc’y, Inc., 413
S.W.3d 901, 905 (Ky. 2013)).
First, Fugate argues she established genuine issues of material fact to
survive summary judgment under the traditional negligence standard. “The
elements of a negligence claim are (1) a legally-cognizable duty, (2) a breach of
-3- that duty, (3) causation linking the breach to an injury, and (4) damages.” Patton
v. Bickford, 529 S.W.3d 717, 729 (Ky. 2016) (citation omitted).
In this case, the circuit court held Fugate failed to prove breach and
causation. Breach requires proof of any “unsafe . . . condition causing her fall.”
Phelps v. Bluegrass Hosp. Management, LLC, 630 S.W.3d 623, 629 (Ky. 2021).
In Phelps, the plaintiff alleged a restaurant breached its duty of care owed to her
when “she slipped on a waxy substance constituting a hazard, but she produced no
evidence to establish the existence of any such hazardous condition.” Id. The
plaintiff “offered no tangible proof of a waxy substance and no expert testimony to
establish [the restaurant’s] breach of any duty. Her case relies entirely on
conjecture.” Id. Our Supreme Court held the plaintiff failed to prove the
restaurant breached any duty owed to her. Id.
Here, Fugate fails to establish Walmart breached any duty owed to
her. Fugate alleges the fire extinguisher was not properly secured to the post.
However, it did not fall until she bumped it with her shoulder. She observed no
defect with the fire extinguisher, how it was secured to the post, or the post itself.
The fire extinguisher was bright red and was not hidden from her view. Fugate
presented no other evidence or testimony to prove any unsafe condition causing
her fall. Her claim is speculative. “[T]he party opposing summary judgment
-4- cannot rely on their own claims or arguments without offering significant
evidence.” Id. (citation omitted).
Likewise, Fugate failed to prove causation. “Causation consists of
two distinct components: ‘but-for’ causation, also referred to as causation in fact,
and proximate causation.” Patton, 529 S.W.3d at 730. First, “[b]ut-for causation
requires the existence of a direct, distinct, and identifiable nexus 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. Second, “[pr]roximate 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.
In Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565 (Ky. App.
2014), the plaintiff fell over the corner of the defendant’s front porch landing and
injured her shoulder. Id. at 566. The plaintiff alleged the concrete floor of the
porch was uneven and cracked. Id. The circuit court granted summary judgment
because the plaintiff offered no proof of causation. The plaintiff “testified in her
deposition that she is not sure what caused her to fall, and that she did not observe
any defect to the porch, but that there must have been something wrong with it
-5- since she fell.” Id. at 568. The circuit court found the plaintiff only presented her
own arguments as proof and failed to establish “the condition of the porch was a
substantial factor in causing her injury.” Id.
Here, Fugate failed to present any evidence beyond her own opinion
that Walmart’s alleged negligence caused her injury. Although Fugate argues the
fire extinguisher was not properly secured to the post, she did not depose any
Walmart employee or expert witness to prove Walmart’s acts or omissions were a
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RENDERED: NOVEMBER 10, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1357-MR
JOLEAN FUGATE APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 19-CI-00288
WALMART INC. AND KEVIN RICE APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Jolean Fugate (“Fugate”) appeals from the Letcher Circuit
Court’s order granting summary judgment in favor of Walmart Inc. (“Walmart”)
and Kevin Rice (“Rice”). Based on our review, finding no error, we affirm.
On October 18, 2019, Fugate filed a personal injury complaint against
Walmart and Rice alleging their negligence created a dangerous condition in the
store. On Thanksgiving Day, November 22, 2018, Fugate was standing in the checkout line with her daughter and eight-year-old grandson. Fugate’s grandson
said he needed to use the bathroom, so Fugate walked him toward the bathroom
while her daughter remained in the checkout line. The store was crowded, and
although there were multiple paths to the bathroom, Fugate attempted to walk
through a two-and-a-half-foot gap between a square post and a shelving unit. A
red fire extinguisher was attached to the post, which was in her line of sight.
Fugate steered her grandson through the gap. As she attempted to
walk through the gap, Fugate believes she tapped the fire extinguisher with her
shoulder before it fell. The fire extinguisher struck the back of her leg and then
landed on the floor.
In her deposition, Fugate testified the fire extinguisher was secured to
the post, and she did not know how it was secured to the post on the date of her
injury. She did not provide any evidence of whether the mechanism securing the
fire extinguisher to the post was defective, nor did she observe any problem with
the support post to which the extinguisher was attached. Fugate did not disclose
any expert witness or depose any Walmart employees.
Walmart and Rice moved for summary judgment. The circuit court
held several hearings and took the matter under submission. Both parties
submitted memorandum orders as requested.
-2- On September 21, 2021, the circuit court granted summary judgment
finding Fugate’s claim lacked any genuine issue of material fact. Fugate could not
prove breach because she had no evidence that a dangerous condition existed on
Walmart’s premises, and she could not prove causation because she had no proof
any act or omission of Walmart caused her accident.
Fugate filed two motions to set aside the judgment. Walmart and Rice
responded, and the circuit court held a hearing. The circuit court denied the
motions. This appeal followed.
On appeal, Fugate argues the circuit court erred in granting Walmart
and Rice’s motion for summary judgment because she established genuine issues
of material fact under the (1) traditional negligence standard or (2) burden-shifting
approach in Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003).
“Appellate review of a summary judgment involves only legal
questions and a determination of whether a disputed material issue of fact exists.
So, we operate under a de novo standard of review[.]” Adams v. Sietsema, 533
S.W.3d 172, 177 (Ky. 2017) (quoting Shelton v. Ky. Easter Seals Soc’y, Inc., 413
S.W.3d 901, 905 (Ky. 2013)).
First, Fugate argues she established genuine issues of material fact to
survive summary judgment under the traditional negligence standard. “The
elements of a negligence claim are (1) a legally-cognizable duty, (2) a breach of
-3- that duty, (3) causation linking the breach to an injury, and (4) damages.” Patton
v. Bickford, 529 S.W.3d 717, 729 (Ky. 2016) (citation omitted).
In this case, the circuit court held Fugate failed to prove breach and
causation. Breach requires proof of any “unsafe . . . condition causing her fall.”
Phelps v. Bluegrass Hosp. Management, LLC, 630 S.W.3d 623, 629 (Ky. 2021).
In Phelps, the plaintiff alleged a restaurant breached its duty of care owed to her
when “she slipped on a waxy substance constituting a hazard, but she produced no
evidence to establish the existence of any such hazardous condition.” Id. The
plaintiff “offered no tangible proof of a waxy substance and no expert testimony to
establish [the restaurant’s] breach of any duty. Her case relies entirely on
conjecture.” Id. Our Supreme Court held the plaintiff failed to prove the
restaurant breached any duty owed to her. Id.
Here, Fugate fails to establish Walmart breached any duty owed to
her. Fugate alleges the fire extinguisher was not properly secured to the post.
However, it did not fall until she bumped it with her shoulder. She observed no
defect with the fire extinguisher, how it was secured to the post, or the post itself.
The fire extinguisher was bright red and was not hidden from her view. Fugate
presented no other evidence or testimony to prove any unsafe condition causing
her fall. Her claim is speculative. “[T]he party opposing summary judgment
-4- cannot rely on their own claims or arguments without offering significant
evidence.” Id. (citation omitted).
Likewise, Fugate failed to prove causation. “Causation consists of
two distinct components: ‘but-for’ causation, also referred to as causation in fact,
and proximate causation.” Patton, 529 S.W.3d at 730. First, “[b]ut-for causation
requires the existence of a direct, distinct, and identifiable nexus 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. Second, “[pr]roximate 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.
In Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565 (Ky. App.
2014), the plaintiff fell over the corner of the defendant’s front porch landing and
injured her shoulder. Id. at 566. The plaintiff alleged the concrete floor of the
porch was uneven and cracked. Id. The circuit court granted summary judgment
because the plaintiff offered no proof of causation. The plaintiff “testified in her
deposition that she is not sure what caused her to fall, and that she did not observe
any defect to the porch, but that there must have been something wrong with it
-5- since she fell.” Id. at 568. The circuit court found the plaintiff only presented her
own arguments as proof and failed to establish “the condition of the porch was a
substantial factor in causing her injury.” Id.
Here, Fugate failed to present any evidence beyond her own opinion
that Walmart’s alleged negligence caused her injury. Although Fugate argues the
fire extinguisher was not properly secured to the post, she did not depose any
Walmart employee or expert witness to prove Walmart’s acts or omissions were a
substantial factor in causing her injury. The only factor Fugate knows caused the
fire extinguisher to fall was her shoulder bumping into it. Thus, the circuit court
correctly granted summary judgment.
Second, Fugate argues she established genuine issues of material fact
to survive summary judgment under the burden-shifting approach to negligence
claims. In Lanier, 99 S.W.3d at 437, the Supreme Court of Kentucky adopted a
burden-shifting approach for proving negligence in premises liability cases. The
burden-shifting approach “impose[s] a rebuttable presumption that shifts the
burden of proving the absence of negligence, i.e., the exercise of reasonable care,
to the party who invited the injured customer to its business premises.” Id. Under
this approach, the plaintiff retains the initial burden of proving:
(1) he or she 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
-6- the presence of the substance or condition, the business premises were not in a reasonably safe condition for the use of business invitees. Such proof creates a rebuttable presumption sufficient to avoid a summary judgment or directed verdict, and “shifts the burden of proving the absence of negligence, i.e., the exercise of reasonable care, to the party who invited the injured customer to its business premises.”
Bartley v. Educational Training Systems, Inc., 134 S.W.3d 612, 616 (Ky. 2004).
Fugate failed to meet her initial burden of proof for the burden to shift
to Walmart to prove the absence of negligence. Above, we held Fugate failed to
prove there was a dangerous condition on Walmart’s premises. She also failed to
prove the falling fire extinguisher was caused by anything but her own conduct.
Further, she failed to prove the alleged dangerous condition rendered Walmart’s
premises unsafe for the use of business invitees. As such, the circuit court properly
granted summary judgment.
For the foregoing reasons, we affirm the judgment of the Letcher
Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Michael A. Johnson Thomas E. Stevens Justin W. Noble Louisville, Kentucky Hazard, Kentucky
-7-