NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0058n.06
No. 17-5775
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

SANDRA DUNN, Plaintiff-Appellant,

v. WAL-MART STORES EAST, LIMITED PARTNERSHIP, Defendant-Appellee. _________________________________/ ) ) ) ) ) ) ) ) ) On Appeal from the United States District Court for the Eastern District of Kentucky

Before: GUY, GIBBONS, and COOK, Circuit Judges. RALPH B. GUY, JR., Circuit Judge . Sandra Dunn appeals the order granting summary judgment to Wal-Mart Stores East with respect to her state-law negligence claim for injuries sustained when she fell on the sidewalk outside a Wal-Mart stor e. Because reasonable minds could differ about whether Dunn tripped on an uneven sidewalk (as she testified) or tripped on her own feet (as Wal-Mart contends), a nd because the district c ourt relied on concepts of obviousness and contributory fault that are inconsistent with re cent developments in Kentucky premises liability law, we reverse and remand for further proceedings.
I. Sandra Dunn was familiar with the Wal-Ma rt store in Cannonsburg, Kentucky, because she had worked there at one time and continued to shop there regularly. At around 3:00 p.m. onCase No. 17-5775 2 Dunn v. Wal-Mart Stores East a clear dry day in October 2014, Dunn went to the store to return a car batter y charger that she and her husband had purchased there the day be fore. A surveillance camera captured Dunn parking her car in the row of spaces located directly behind the thre e-bay auto service area in the rear of the store. Dunn got out of her car, removed the battery charger from the trunk, and turned toward the store. Dunn paused briefly as anot her car exited the nearest service bay door, and then resumed walking toward the building after the driver waved her forward. The video shows that Dunn walked about a dozen st eps from that point—crossing th e asphalt and taking a couple of steps on the concrete sidewa lk—before she tripped and fell. Dunn testified that she was not looking down wh en she fell, but said she felt her left foot “catch” on something that caused her to trip. While still on the ground, Dunn looked back at the sidewalk and saw uneven concrete “sticking up” about a half inch to an inch. Dunn told Michael Marshall, an auto technician who approached her, that she had tripped on the concrete “where it is a little higher on one side of the concrete.” A few minutes later, Dunn wrote in an incident report that she fell when “concrete filled in not le vel and caught my left foot.” Dunn repeated her claim when she was interviewed under oath six da ys later. Dunn testified that she injured her left knee in the fall, and had not re covered despite undergoing knee surgery. Michelle Laney, the Wal-Mart manager who signed the incident report, testified that she did not see Dunn fall. Although Laney was familia r with the area because she frequently went outside to smoke, she said she ha d not noticed any cracks or uneve n surfaces in the sidewalk. Also, it was Laney’s opinion that the video showed Dunn trippi ng on her own feet. Michael Marshall testified that he also did not see Dunn fall, but he said he was aware of an uneven “crack” in the sidewalk in the area where D unn fell. After reviewing the video, however, Marshall said he believed the une ven place in the sidewalk crack wa s closer to the corner of theCase No. 17-5775 3 Dunn v. Wal-Mart Stores East building than where Dunn fell. Marshall added that he thought the expansion joint in the sidewalk was level at the spot wher e Dunn appeared to have tripped. Some photographs taken by Wal-Mart on the day of Dunn’s fall confirm that there was an uneven spot of almost an in ch in elevation along the same e xpansion joint in question. WalMart’s witnesses explained that those photogra phs did not depict the place where—according to the video—they believe Dunn had tripped. D unn and her daughter went back and took a few close-up photographs of the expansion joint. But, because those photographs were taken looking down at the expansion join t, they do not show whet her it was level or not. Finally, more than a year after Dunn’s fall, plaintiff had photographs taken that showed the rear door to the store, a full view of the sidewalk, and the lo cation of the expansion joint in question running from the corner of the building to the asphalt of the parking lot. Wal-Mart argues (1) that the photographs do not depict the condition of the e xpansion joint on the day that Dunn fell, and (2) that the subsequent repair to th e expansion joint that is visible in some of the photographs cannot be offered as proof of negligence. For purpos es of this appeal, however, these photographs provide context for the video by showing the relationship between the parking area, the sidewalk, and the rear entrance to the store. In particular, one photograph includes a measuring tape that shows that th e expansion joint ran approximatel y 7 1⁄2 feet from the corner of the building to the asphalt of the parking area. Dunn filed suit in state court, and Wal-Mart removed the action to federal court on the grounds of diversity of citizenship. Disc overy was conducted, and Wal-Mart moved for summary judgment in its favor. Granting Wal-Ma rt’s motion, the district court concluded that— despite an apparently “slight elevation in th e sidewalk due to the expansion joint”—the expansion joint was not unreasonably dangerous as a matter of law. The di strict court explainedCase No. 17-5775 4 Dunn v. Wal-Mart Stores East that the expansion joint was “hardly uncommon,” did not appear to be defective, was “clearly visible to the naked eye,” and would not pose an unreasonable risk to a “minimally attentive” shopper walking across it. Alte rnatively, the district court al so found that Dunn could not establish causation because “Kentu cky courts have routinely held plaintiffs to be negligent, and store owners not liable , when the plaintiff’s injuries were caused by her failure to exercise ordinary care.” (Emphasis added). Judgment was entered in favor of Wal- Mart, and this appeal followed.
II. The district court’s grant of summary judgment is reviewed de novo

. Gillis v. Miller , 845 F.3d 677, 683 (6th Cir. 2017). In doing so, we must view the evidence and draw all reasonable inferences in the light mo st favorable to the nonmoving party. Id . Summary judgment is proper when there is “no genuine disput e as to any material fact and the movant is entitled to judgment as a matter of law.” F ED
. R. C IV
. P. 56(a). Because ju risdiction is based on diversity of citizenship, the court must “appl y state law in accordance with the controlling decisions of the state supreme court.” Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc. , 249 F.3d 450, 454 (6th Cir. 2001). To establish a negligence claim under Kent ucky law after the adoption of comparative negligence, “a plaintiff must still prove the defenda nt owed a duty to the plaintiff, breached that duty, and consequent injury followed.” Shelton v. Ky. Easter Seals Soc., Inc. , 413 S.W.3d 901, 906 (Ky. 2013). When, as here, the plaintiff is an invitee, “a possessor of land owes a duty to [the] invitee to discover unreason ably dangerous conditions on the land and either eliminate or warn of them.” Id. at 909 (citing Ky. River Med. Ctr. v. McIntosh , 319 S.W.3d 385, 388 (Ky. 2010)). As most rece ntly explained in Grubb , “conditions on th e land that are not unreasonablyCase No. 17-5775 5 Dunn v. Wal-Mart Stores East dangerous do not implicate the land possessor’s duty of care, and thus injuries arising from such conditions cannot give rise to the possessor’s liability.” Grubb v. Smith , 523 S.W.3d 409, 417 (Ky. 2017) (as modified Aug. 24, 2017). Howeve r, in a line of decisions beginning with McIntosh in 2010 and continuing through Grubb in 2017, the Kentucky Supreme Court has clarified that with the adoption of comparative negligence the landowner’s “duty exists regardless of the obviousness of the dangerous condition or ‘the invitee’s knowledge of the condition.’” Goodwin v. Al J. Schneider Co. , 501 S.W.3d 894, 897 (Ky. 2016) (quoting Shelton , 413 S.W.3d at 911). A. Kentucky Premises Liability Law “Under the old common law, conditions on the land could not be deemed unreasonably dangerous if they were ‘known to the visitor or so obvious to him that he may be expected to discover them.’” Grubb , 523 S.W.3d at 417 (emphasis added) (quoting Bonn v. Sears, Roebuck
& Co. , 440 S.W.2d 526, 528 (Ky. 1969)). “The open and obvious rule came to be applied in much the same way as contributory negligence: as a rule of law whereby courts, by labeling a condition on the property as ‘obvio us’ in effect precluded jury consideration of the condition’s reasonableness.” Id . Rejecting that rule in Shelton , the Kentucky Supreme Court held that, “at the very least, a land possesso r’s general duty of care is not eliminated because of the obviousness of the danger.” Shelton , 413 S.W.3d at 907. Further, the Court in Shelton clarified that although summary judgment was still a “viabl e concept,” “the question of foreseeability and its relation to the unreasonablene ss of the risk of harm is prope rly categorized as a factual one, rather than a legal one.” Id . at 916.
In Carter , the Court abrogated Kentucky’ s long-standing rule “that natural outdoor hazards which are as obvious to an invitee as to an owner of the premises do not constituteCase No. 17-5775 6 Dunn v. Wal-Mart Stores East unreasonable risks to [the invitee] wh ich the landowner has a duty to remove or warn against.” Carter v. Bullitt Host, LLC , 471 S.W.3d 288, 291 (Ky. 2015) (quoting Standard Oil v. Manis , 433 S.W.2d 856, 858 (Ky. 1968)). Rather, because that rule had relied in large part on contributory negligence, the Court held that th e “open-and-obvious nature of a hazard is, under comparative fault, no more than a circumstance that the trier of fact can consider in assessing the fault of any party, plai ntiff or defendant.” Id . at 297 (citing Shelton , 413 S.W.3d at 911-12). Importantly, the Court emphasized that: under the right circumstances, the plainti ff[’s] conduct in the face of an open-andobvious hazard may be so clearly the only fault of his injury that summary judgment could be warranted against him, for example when a situation cannot be corrected by any means or when it is beyond dispute that the landowner has done all that was reasonable. Id . But, summary judgment was vacated in Carter because there were “que stions of fact about whether, and to what degree, the hotel acted r easonably with respect to the icy hazard under its carport” and “whether Carter acted with ordina ry care for his own safety” when walking under the carport the morning after a winter storm. Id . at 299-300. Most recently, the Court in Grubb explained that the shift to comparative fault in negligence cases “should have rest ored the jury’s principal role” in determining “whether an ‘obvious’ risk-posing condition on the land was reasonable or not.” Grubb , 523 S.W.3d at 418. Moreover, the Court described the “ McIntosh line of cases” as reflecting a “determined effort to effect that restoration and to limit holdings, at trial or on appeal, that an obvious risk-posing condition on the property is ‘not unreasonable as a matter of law,’ to those rare instances where they are justified.” Id . The Court also expressly declined to adopt a trivial- defect rule “under which pavement flaws satisfying some standard of minimalness are deemed not unreasonable.” Id . at 420 (citing cases). Either way, the Court in Grubb vacated summary judgment in favor ofCase No. 17-5775 7 Dunn v. Wal-Mart Stores East the property owner for a second time because th ere were questions of fact regarding the trivialness or reasonableness of the risk posed by an eroded patch or pot hole in the asphalt that the plaintiff tripped on between the gas pumps at the Speedway station. Id. at 420-21. 1 B. Analysis Dunn correctly argues that the di strict court’s reliance, at l east in part, on the obviousness of the “slight elevation” in the expansion joint and on Dunn’s own negligence in granting summary judgment to Wal-Mart is inconsistent with the controlling Kentucky Supreme Court decisions in Shelton , Carter , and Grubb . Specifically, the district court concluded that the “slight elevation” in the expansion joint was not unreasonable as a matter of law because it “was not an out-of-the-ordinary obstacle,” it was “clearl y visible to the naked eye,” and it would not pose an unreasonable risk to a shopper “who is ‘min imally attentive’ and use[s] her ‘practical faculties of observation’ and ‘sim ple powers of ambulation.’” Al so, in addressing causation, the district court explained th at store owners are not to be held lia ble when plaintiffs fail to exercise ordinary care for their safet y. The order granting summary j udgment cannot be affirmed on the basis of this reasoning. However, the district court also stated that nothing in the record “suggests the expansion joint was not in good repair or [was] otherwise defective.” That dovetails with Wal-Mart’s contention that there is no evidence that the ex pansion joint was uneven in the area where Dunn tripped and that the video unequivocally demons trates that Dunn tripped entirely on her own feet. If Wal-Mart is correct in that regard, this could be one of the rare instances in which

1 Two Kentucky Court of App eals decisions issued after Shelton found summary judgment for the property owner was still appropriate, but those decision s were vacated on appeal and summary judgment was reversed on remand. See Ward v. JKP Invs., LLC (After Remand) , No. 2013-CA-1706-MR, 2016 WL 197136 (Ky. Ct. App. Jan. 15, 2016) (plaintiff fell at a party when she stepped on the crumbling corner of a wide concrete step); Embry v. Mac’s Convenience Stores, LLC (After Remand) , No. 2012-CA-000333-MR, 2014 WL 2640240 (Ky. Ct. App. June 13, 2014) (discretionary review denied Mar. 25, 2015) (plaintiff stepped backwards from his vehicle trailer parked next to a gas pump and fell when he stepped on uneven pavement).Case No. 17-5775 8 Dunn v. Wal-Mart Stores East summary judgment would be appropriate because the plaintiff’s conduct would be clearly the only cause of her injuries. See Grubb , 523 S.W.3d at 418 (quoting Carter , 471 S.W.3d at 297); see also McCoy v. Family Dollar Store of Ky., Ltd. , 525 S.W.3d 93 (Ky. Ct. App. 2017) (discretionary review denied Aug. 16, 2017) (fi nding the defendant did not breach the duty of care owed to a plaintiff who tripped on a wheel stop in the parking lot because the wheel stop was not defective or damaged, was properly inst alled, and had reflecti ve yellow striping); Spears v. Schneider , No. 2012-CA-00065, 2015 WL 2153310 (Ky. Ct. App. May 8, 2015) (discretionary review denied Dec. 10, 2015) (finding that the level steps from the defendant’s store onto a sloped sidewalk was not an unreasonable risk where the steps were well-maintained and well-lit, a handrail was provided, and ther e was nothing more the defendant could have done to eliminate the hazard). Here, Dunn testified that she caught her left foot on an uneven sidewalk expansion joint that had an inch or less differe nce in elevation. Wal-Mart mainta ins that the video unequivocally demonstrates that, in fact, Dunn tripped on her own feet. Although Wal-Mart’s interpretation is a reasonable one, the video itself is not conclusive given the camer a’s distance from the fall and the grainy resolution of the video. Despite Wal-Ma rt’s insistence to the c ontrary, it is impossible to tell conclusively from the video whether the expansion joint was level near the spot where Dunn tripped. Moreover, when the evidence in the record is viewed in the light most favorable to Dunn, reasonable minds can differ about wh ether Dunn tripped on the expansion joint in question and whether the expansion joint was uneven in the spot that she tripped. Dunn testified that it was uneven, and Wal-Mart ’s photographs show that a porti on of the same expansion joint was uneven. Since the expansion joint in questio n was only 7 1⁄2 feet wide, and Dunn can be seen taking a couple of step s on the sidewalk before she trippe d, this court cannot conclude as aCase No. 17-5775 9 Dunn v. Wal-Mart Stores East matter of law that Dunn tripped on her own feet and therefore was clearly the only cause of her injuries. See, e.g. , Veloudis v. Wal-Mart Stores East, LP , No. 2016-CA-00207-MR, 2017 WL 3499927, at *6 (Ky. Ct. App. July 28, 2017) (finding th e video could not conclusively establish one way or the other whether the pl aintiff tripped on the corner of a pallet on the floor or tripped on his own feet). Lastly, assuming as we must that Dunn tr ipped on an uneven expansion joint in the sidewalk, the obviousness of such a risk-posing condition is nothing more than a circumstance that the trier of fact can consider in assessing the fault of either party. Carter , 471 S.W.3d at 297. “[A]n obvious risk-posing condition on the pr operty can be unreasonable if, despite the obviousness, the property possesso r can still anticipate some one being injured by it.” Grubb , 523 S.W.3d at 419. As outlined earlier, the Kentucky Supreme Court has repeatedly and explicitly declared that, under co mparative fault, the unreasonablen ess and foreseeability of the risk of harm is normally a question for the jury to determine in deciding whether the defendant breached its duty of care in all but the rarest of circumstances. Indeed, the Kentucky Supreme Court held that an unreasonable risk could be created by a “simple curb” outside an emergency room ( McIntosh ), wires on the floor near a hospital bed ( Shelton ), ice in the parking lot of a hotel after a winter storm ( Carter ), the slipperiness of a wet hotel bathtub ( Goodwin ), and a small pothole between the pumps of a gas station ( Grubb ). See Goodwin , 501 S.W.3d at 899. The Kentucky Court of Appeals has likewise held that summary judgment was not appropriate because the reasonableness of the risk and foreseeab ility of the harm were questions of fact in cases where the plaintiff tripped on the corner of a pallet protruding from the bottom of a store display, fell when stepping backward onto uneve n pavement at a gas st ation, or tripped over a concrete flower pot placed near the exit of a banquet hall. See Embry (After Remand) , 2014 WLCase No. 17-5775 10 Dunn v. Wal-Mart Stores East 2640240, at *6; Veloudis , 2017 WL 3499927, at *8; Rodgers v. Grant Cty. Football Boosters , No. 2016-CA-000377-MR, 2017 WL 4570711, at *5-6 (K y. Ct. App. Oct. 13, 2017). Here, the unreasonableness of the risk posed by an uneven si dewalk expansion joint, the foreseeability of harm to an invitee, and whether Wal-Mart breached its duty of car e, are questions of fact that should not have been resolved as a matter of law.
* * * * The district court’s order granting summary judgment to Wal-Mart is REVERSED and the case REMANDED for further proceedings consistent with this opinion.