RENDERED: FEBRUARY 9, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

MODIFIED: MARCH 8, 2024; 10:00 A.M.

ORDERED PUBLISHED: APRIL 5, 2024; 10:00 A.M.



# Commonwealth of Kentucky

Court of Appeals

NO. 2023

- CA

- 0268

- MR

ALIZABETH MARTIN APPELLANT

v. APPEAL FROM LOGAN CIRCUIT COURT

HONORABLE JOE W

. HENDRICKS, JR., JUDGE

ACTION NO. 19

- CI

- 00271

DOLLAR GENERAL PARTNERS APPELLEE

OPINION

VACATING

AND REMANDING

**   **  **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

COMBS, JUDGE: This is a case arising in tort law alleging negligence involving

a slip

- and

- f

a ll incident. A jury found that the Appellee, Dollar General Partners

(Dollar General)

, was not negligent in causing a slip and fall accident on its

premises in which the Appellant, Alizabeth Martin (Martin) , was injured

. Martin- 2

-

now appeals from the judgment of the Logan Circuit Court entered upon that

verdict.

Martin contends that the trial court erred : by failing to grant her

motion for directed verdict; by precluding her from undertaking necessary

discovery; and by permitting opposing counsel “to paint [her] counsel as an

outsider by making comments during closing a rgument about him [ sic ] being from

Florida.” Having carefully considered the trial court’s record and the arguments of

counsel, we vacate the judgment and remand for further proceedings on the basis

of the parties’ discovery dispute.

On October 28, 2018, Martin went shopping at the Dollar Genera l

Store in Russellville. In the dairy aisle, she slipped on a sticky substance on the

floor, fell, and suffered injuries to her back. On September 4, 2019, she filed a

complaint in Logan Circu it Court alleging that the negligence of Dollar General

caused the accident. Dollar General answered the complaint and denied liability.

The case was called for trial on January 9, 2023. Closing statements

were made to the jury on January 11, 2023. Following three

- hours’ deliberation,

the jury returned a verdict in favor of the defense

. Pursuant to the court’s

Instruction #5 ( which defined the duty of a business owner to keep its premises

reasonably safe )

, the jury found : that a foreign substance was on the floor of

Dollar General’s Russellville store; that Martin’s slip on the substance was a- 3

-

substantial factor in causing her fall and injury; and that the foreign substance on

the floor rendered the premises not reasonably safe for customers. As a result of

this finding, the jury was then directed to consider the court’s Instruction #6. This

instruction defined Dollar General’s burden to show that the foreign substance

causing Martin’s fall was not placed or caused to be o n the floor by any act or

omission of its employees and that the foreign substance had not been on the floor

for a sufficient length of time, so that, in the exercise of ordinary care, employees

should have discovered it and then either removed it or provi ded an adequate

warning to customers. The jury found unanimously that the foreign substance that

caused Martin’s fall was not placed or caused to be on the floor by the employees

of Dollar General and that the substance had not been on the floor for a len gth of

time sufficient for employees to have discovered it and then removed it or warned

of the danger. This appeal followed.

On appeal, Martin argues first that she was entitled to a directed

verdict because Dollar General failed to meet its burden to show that it did not

cause the spill and that the substance had not been on the floor for a sufficient

amount of time to discover and remedy it. We disagree.

Martin contends that the verdict indicates that the jury found her

testimony entirely credible. Given its responses recorded on the verdict form, the

jury was persuaded that Martin slipped on a substance on the floor, fell, and was- 4

-

injured ; and it believed that the floor was not in a reasonably safe condition for

customers. Martin argues that unde r the standard established in Lanier v. Wal

Mart

, 99 S.W.3d 431 (Ky. 2003), she was entitled to the presumption that the spill

was attributable to Dollar General

, and where the store failed to rebut the

presumption, she was entitled to judgment. She contends that Dollar General

failed to rebut the presumption.

In response, Dollar General highlights trial testimony from which the

jury was persuaded that its emp loyees did not cause the spill; that the substance

had not been on the floor long enough for its employees to address it; and that it

did not fail to exercise ordinary care for customer safety. Martin’s counsel

acknowledged to the jury during his closing argument that there was no evidence

to indicate that any of Dollar General’s employees had caused the spill.

Dollar General’s evidence showed that an employee, Floyd Farmer,

had been on his hands and knees in the dairy aisle just before Mar tin fell and that

he saw nothing spilled on the floor. Farmer indicated that if he had seen a spill

, he

would have cleaned it up. Four store employees testified that they had no notice of

the spill and did not see Martin fall. No other evidence concerni ng the length of

time that the substance was on the floor was presented, and the source of the

substance was never established.- 5

- Ordinarily, the question of whether an employee had sufficient time to

discover and remedy a spill is left to the jury. Johnson v. Wal

- Mart Stores E., LP

,

169 F. Supp. 3d 700 (E.D. Ky. 2016) (noting that the reasonableness of leaving a

spill unattended fo r nine minutes and fifteen seconds is wholly dependent on the

surrounding circumstances and that , therefore, it cannot be decided as a matter of

law). From the evidence presented at trial, the jury was free to infer that the

substance was not on the floor when Farmer was in the area and that it had not

been there long enough for employees to become aware of it and clean it up before

Martin fell. The jury appeared to be persuaded from the testimony of Dollar

General’s witnesses that it had exercised reason able care with respect to its

premises. T hus, t he trial court did not err by concluding that the verdict was

supported by sufficient evidence. A new trial is not warranted on this basis ; nor

was a directed verdict

.

However, we are persuaded that the trial court erred in precluding

Martin from conducting discovery pursuant to the provisions of CR 1 30.02(6).

Therefore, w e agree that the judgment must be vacated and that the matter be

remanded for further proceedings.

CR 30.02 provides for the deposition of any person upon oral

examination. Where a corporation is the deponent, the deposing party may in his

1 Kentucky Rules of Civil Procedure.- 6

-

notice (and in a subpoena) describe with reasonable particularity the matters upon

which the examination is reques ted. CR 30.02(6). In response, depo n ent “ t he

corporation ” is required to designate one or more officers, directors, managing

agents, or other persons who consent to testify on its behalf and may set forth

-- for

each person designated

-- the matters on which he will testify. Id. The designated

persons must testify as to matters known or reasonably available to the

organization. Id. The “reasonable particularity” requirement enables the

corporation both to identify appropriate designees and to educate them with respect

to the information sought to be discovere d. It is intended to be of assistance to the

corporation in complying with the notice and subpoena underlying the discovery

request.

Shortly after her complaint was filed, Martin requested the

examination of Dollar General and provided a comprehensive list of the matters

upon which her examination of the corporation could be expected to focus. These

topics included : the factual basis for the defens es set forth in the defendant’s

answer; the actions taken by the defendant to obtain the documents requested

through discovery; preparation of the incident report; the nature of the

investigation of the incident undertaken by the corporation; the nature of efforts

undertaken by the corporation to maintain store premises in a safe condition; the

location of all surveillance video cameras on the premises at the time of Martin’s- 7

-

fall; the content and location of all video recordings reviewed in Dollar General’ s

investigation of the incident; the nature of any documents and communications

(specifically including any customer complaints) sent or received by the

corporation regarding the condition of the floors of the premises; the nature of any

documents

-- and documents and communications sent or received by the

corporation

-- regarding Martin’s fall and/or injuries; the corporation’s policies,

procedures, and training with respect to maintaining a safe premises and

performing investigations of any reported incidents on the premises; the designee’s

testimony in other personal injury actions; the corporation’s knowledge of industry

standards and norms; and the nature of any warnings posted concerning stores’

dairy cases.

Dollar General failed to respond

. Martin filed a motion requesting the

court to order Dollar General to comply with the requirements of CR 30.02(6). In

an order entered on November 6, 2020, the court ordered Dollar General “to

identify and produce a corporate representative(s) to testify regarding the

[identified] topics” in compliance with the rule.

In response, Dollar General designated Alissa Garrison, a district

manager, to testify on its behalf. However, Dollar General did not consider or treat

Martin’s description of “ matters up on which the examination is requested” as a

means of aiding in its obligation to identify a designee and to prepare that designee- 8

-

to testify regarding matters known or reasonably available to the corporation

.

Instead, it took the position that because the deposition had been noticed under the

provisions of CR 30.02(6)

, some special protections had been conferred upon it.

While the notice provided for in the rule was by its terms not intended to limit

what could be asked at the deposition of a corporate re presentative, Dollar General

nonetheless indicated to Martin’s counsel that it would file a motion for a

protective order unless counsel revised the list of deposition topics

.

By way of explanation, Dollar General explained that while it was a

party to the action

, it had no “first

- hand knowledge regarding the subject accident

or Ms. Martin’s treatment.” It noted that it had “already responded to extensive

discovery requests” an d had “produced four employees and the store manager for

deposition.” It argued that many of the topics identified by Martin were

“unnecessarily duplicative, harassing and unduly burdensome and would serve no

legitimate purpose.” It also contended that m uch of the matter identified by Martin

for oral examination would not assist the jury and that other information sought

was protected by the attorney

- client privilege and/or work product doctrine.

Finally, counsel characterized Martin’s description of the topics to be addressed in

the deposition variously as “insufficiently tailored” ; “impermissibly broad” ; and

even “inappropriate as worded.” It requested that “a revised list of topics [be]

forwarded to us reflecting [the removal of some and close tailori ng of others] in- 9

-

advance of [Garrison’s] deposition.” Dollar General thus construed Martin’s

notice as serv ing to obstruct rather than to facilitate the anticipated discovery.

Martin scheduled the remote deposition testimony of Alissa Garrison

for Jan uary 28, 2021. When Garrison and counsel appeared for the deposition (but

without going on the record), Martin’s counsel indicated that the narrow

parameters defined by Dollar General upon which the corporate designee was

willing to testify were not accep table and that the deposition was cancelled until

such a time as the trial court provided some direction. In response, Dollar General

filed a motion for protective order.

In an order entered on March 26, 2021, the trial court granted the

motion, ruling that Martin “shall be precluded from taking a CR 30.0 2 deposit ion

of a corporate representative of [Dollar General ].” Martin’s witness list provided

to the court and counsel included Garrison ; however, Martin did not subpoena

Garrison for her trial

, n or did she attempt to call Garrison as a witness. Martin did

not request that any other corporate representative be available to testify at trial.

O ur rules of civil procedure prov ide one limit on discovery of matters

not privileged : whether “the information sought appears reasonably ca lculated to

lead to the discovery of admissible evidence.” CR 26.02(1). Even if the

information sought will be inadmissible at trial , that fact provides no grounds for

objection. Id

. Moreover, C R 26.03 provides that a trial court may issue an order- 10

-

precluding or limiting a deposition or other discovery

-- but only where “ justice

requires to protect a party or person from annoyance, embarrassment, oppression,

or undue burden or expense

. . . . ”

Because of the wide latitude shared by litigants with respect to

discovery efforts, entry of a protective order against discovery is proper only upon

proof that it is being undertaken in bad faith

. Volvo Car Corp. v. Hopkins , 860

S.W.2d 777 (Ky. 1993). We review a trial court’s decision to limit discovery for

an abuse of discretion. Richmond Health Facilities

- Madison, LP v. Clouse , 473

S.W.3d 79 (Ky. 2015). We perceive no bad faith here at all

-- much less any that

would s upport or substantiate the entry of a protective order

.

Dollar General assert ed that the matters for wh ich discovery was

sought were not stated by Martin “with reasonable particularity” ; that they were

irrelevant and not reasonably calculated to lead to the discovery of admissible

evidence; that they were overbroad, unduly burdensome, and vague; and that they

sought privileged information

. Agreeing with Dollar General, t he trial court

grant ed a bla nket protective order that absolutely precluded any oral examination

of any Dollar General corporate representative.

However, a mere showing that discovery may involve some repetition,

inconvenience, and expense is insufficient to establish good cause to limit the

discovery sought. Moreover, the attorney

- client privilege does not prevent the- 11

-

disclosure o f f

acts communicated to an attorney, and the work product doctrine

does not prevent the disclosure of facts commun icated by an attorney to a client

that the attorney obtained from independent sources. Upjohn Co. v. U nited S tates

,

449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981); Hickman v. Taylor

, 329

U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Dollar General’s desire to protect

allegedly privileged information could be accomplished by recourse to objecting

during the course of the deposition to questions that seek inappropriate

information. Finally, we note that th e trial court’s prohibition was particularly

ex c essive because oral examination of a party provides counsel a unique

opportunity in pre

- trial practice : a forum for direct and unparalleled interaction

between trial counsel and a potential witness and an opportunity to follow up

meaningfully to an opponent’s responses to inquiries. For this reason, among

others, it is not surprising that courts rarely proh ibit the taking of an oral deposition

altogether. Under the circumstances presented, we are persuaded that the trial

court erred in prohibiting entirely the taking of CR 30.02(6) depositions of Dollar

General’s designee(s). The refusal of the trial court to permit counsel to engage in

basic discovery efforts involving a party opponent essentially deprived Martin of a

fair trial. Consequently, we must conclude that the trial court abused its discretion

by prohibiting oral examination of the defendant.- 12

- As an alternative, Dollar General argues that the court’s error was

harmless and does not merit “disregarding the jury’s verdict.” We disagree.

Dollar General explains that “in discovery and at trial, Martin was

permitted to question Dollar General employees regarding corporate policies and

procedures, staffing issues, knowledge of the subject incident, and the video

camera recording system.” Over Dollar General’s objection, Gary Trout, the

store’s general manager, was asked about corporate’s polici es and procedures

concerning floor inspections, floor maintenance, and floor cleaning. Trout

responded that Dollar General’s employees are trained to clean spills, recover

displaced products, and put things where they belong. He indicated that Farmer

was meticulous in his responsibilities

, including his duty to clean up any spill.

And, again over Dollar General’s objection, the trial court permitted Martin to ask

Trout whether he knew how Dollar General’s corporate office edited the pre

- trial

discovery. Cristina Lowe, another Dollar General employee and fact

- witness, was

also asked about Dollar General’s video recording practices and testified that the

recording device was motion

- activated.

Dollar General argues that this information elicited at t rial was

sufficient and notes that Martin “has not identified any issue she could not explore

through the testimony of these witnesses.” We are not persuaded that the

testimony of fact

- witnesses at trial adequately supplant ed discovery deposition(s)- 13

-

of th e party defending the action. Nor are we convinced that where the trial court

denie d the plaintiff an opportunity to depose the defendant, she had to be able to

identify with particularity and precision the type of evidence that she hoped to

discover in t he deposition before relief would have been warranted. Such extreme

particularity is not a hallmark of the discovery process. Again, CR 30.02 calls for

reasonable particularity

.

T he approach advocated by Dollar General directly undermines the

very purposes of discovery. Pre

- trial discovery is meant to simplify and clarify the

issues in a case before a jury is empaneled. LaFleur v. Shoney ’ s, Inc

., 83 S. W.3d

474 (Ky. 2002)

. Broad

- based and orderly discovery also aims to eliminate surprise

at trial and helps in a search for truth. Id. Again, we can find no basis to uphold

the trial court’s decision to prohibit the discovery of basic information sought by

Martin in deposing Dollar General in this matter.

Therefore , the judgment of the Logan Circuit Court must be vacated

and the matter be remanded for further proceedings. In light of our analysis and

disposition of the appeal, we need not consider Martin’s argument that the cou rt

erred by permitting Dollar General’s counsel to make prejudicial comments about

her counsel during closing arguments. We trust that trial counsel are well aware

that the wide latitude they are permitted during closing arguments is not boundless- 14

-

and tha t comments aimed at inflaming a jury’s prejudice are not appropriate

.

ALL CONCUR.

BRIEF S FOR APPELLANT:

Lauren E. Marley

Kelli Lester

Bowling Green, Kentucky

Brenton D. Stanley

Louisville, Kentucky BRIEF FOR APPELLEE:

Jamie Wilhite Dittert

Megan L. Adkins

Lexington, Kentucky