NOT RECOMMENDED FOR PUBLICATION File Name: 21a0064n.06
Case Nos. 20

- 5486 /5556
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ROBERT CUNDIFF , Plaintiff

- Appellant , NEW HAMPSHIRE INSURANCE COMPANY , Intervenor Plaintiff,

v. WORLDWIDE BATTERY COMPANY, LLC , dba Worldwide Battery , Defendant

- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

BEFORE: COLE, Chief Judge ; SILER and GIBBONS , Circuit Judges.
SILER , Circuit Judge. A man trips. Who is to blame? In Kentucky, that decision is left in the hands of a jury. Because the district court improperly removed that decision from the jury,
we REVERSE and REMAND the district court’s dismissal on summary judgment.
I Robert Cundiff went to Worldwide Battery to pic k up batteries for his employer, Total Truck Parts. Cundiff v. Worldwide Battery Co., LLC , 2020 WL 1644038, at *1 (W.D. Ky. Apr. 2, 2020). While in the store, he “tripped over two large black machine batteries near the customer service desk.” Id . Cundi ff claims the batteries were “ ‘ partially blocked from view ’ by a counter” and “partially camouflaged by the black rug.” Id . He, however, admits “that he was not lookingCase No s . 20

- 5 486 /5556 , Cundiff v. Worldwide Battery Company, LLC

- 2

- at the ground when he tripped.” Id . And he acknowledges if he had looked, he likely would have seen the batteries. Id

. Cundiff sued Worldwide Battery for his injuries in Kentucky state court. New Hampshire Insurance Co. successfully intervened because it “allegedly paid Cundiff workers’ compensation benefits arising out of the trip

- and

- fall injury.” Id . Worldwide Battery then removed to the Western District of Kentucky. Id

. The district court granted summary judgment for Worldwide Battery on the ground that the batteries were an open and obvious condition and thus did not breach it s duty of care. Id. at *3.
II We have jurisdiction over this appeal under 28 U.S.C. § 1291 . We review a grant of summary judgment de novo. Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd., 401 F.3d 770, 773 (6th Cir. 2005). Because the plaintiff is the non

- moving party, all factual inferences are made in his favor. See Dinsmore Instrument Co. v. Bombardier, Inc. , 199 F.3d 318, 320 ( 6th Cir. 1999). All parties agree that Kentucky law governs this diversity action

. III Cundiff sued Worldwide Battery for premises

- liability negligence, alleging that the batteries he tripped over created an unreasonable risk of harm. To succeed, Cundiff must show: (1) duty; (2) breach; (3) causation; and (4) damages. Patton v. Bickford , 529 S.W.3d 717, 729 (Ky. 2016). Here, Worldwide Battery owed a duty to Cundiff “to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” Shelton v. Kentucky Easter Seals
Soc. Inc. , 413 S.W.3d 901, 909 (Ky. 2013). But Worldwide Battery claims the batteries were open and obvious; therefore, they we re not unreasonably dangerous. That decision, however, is reservedCase No s . 20

- 5 486 /5556 , Cundiff v. Worldwide Battery Company, LLC

- 3

- for a jury , except where the plaintiff is entirely at fault

. Grubb v. Smith , 523 S.W.3d 409, 418 (Ky. 2017) (as modified Aug. 24, 2017). Id

. Cundiff was not. Therefore, we reverse the district court. Batteries can be an unreasonable condition. Indeed, in Kentucky, a lmost anything can be unreasonably dangerous:

• A s imple curb outside of an emergency room. Ky. River Med. Ctr. v. McIntosh , 3 19 S.W.3d 385 , 394

- 95 (Ky. 2010).

• Wires on the floor next to a hospital bed. Shelton , 413 S.W.3d at 9 17

- 18

. • Ice in a parking lot of a hotel. Carter v. Bullitt Host, LLC , 471 S.W.3d 288 , 299

- 300 (Ky. 2015).

• Slipperiness of a wet hotel bathtub. Goodwin v. Al J. Schneider Co. , 501 S.W.3 d 894 , 899

- 900 (Ky. 2016).

• A small pothole between the pumps of a gas station. Grubb , 523 S.W.3d at 4 21

. • A p allet protruding from the bottom of a store display. Veloudis v. Wal

- Mart Stores E., Ltd. P’ship , 2017 WL3499927 , at *7

- *8 (Ky. Ct. App. July 28, 2017).

• Uneven pavement. Embry v. Mac’s Convenience Stores, LLC , 2014 WL 2640240 , at *4 (Ky. Ct. App. June 13, 2014).

• A c oncrete flowerpot placed near an exit. Rodgers v. Grant C n ty. Fo o tball Boosters , 2017 WL 4570711 , at *5

- *6 (Ky. Ct. App. Oct. 13, 2017). Like the other items on the list, the batteries ’ obviousness does not preclude its unreasonableness. Instead, even obvious conditions can be unreasonable if “the property possessor can anticipate someone’s being injured by it.” Grubb , 523 S.W.3d at 41 9

. A reasonable jury could conclude that batteries left in a walkway might injure someone. The heightened standard applied by the district
court was contrary to Kentucky law. Cundiff , 2020 WL 1644038, at *3

- *4. Cundiff’s “claim remains viable even though by his own admission he was careless.” Grubb , 523 S.W.3d at 41 9 (cleaned up) . Like Grubb , he admits that he “failed to observe the hazard” because he was “not paying attention to where he was walking.” Id

. (cleaned up)

. But that is not enough to show he was entirely at fault. Demonstrating complete fault requires something more

— like a video conclusively showing that the plaintiff tripped over her own feet.Case No s . 20

- 5 486 /5556 , Cundiff v. Worldwide Battery Company, LLC

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- Dunn v. Wal

- Mart Stores E., Ltd. P’ship , 724 F. App’x 369, 37 3

- 74 (6th Cir. 2018). Here, Cundiff’s familiarity with the store and lack of attention are simply factors “the jury will consider when apportioning comparative blame.” Frazier v. Total Renal Care, Inc. , 2019 WL 3219148, at *5 (E.D. Ky. July 17, 2019). I n sum, this is not one of the rare cases that can be removed from a jury’s consideration

. IV “[T]he unreasonableness 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.” Dunn , 724 F. App’x at 374. This case is n o different

. Accordingly, we REVERSE and REMAND the district court’s entry of summary judgment for Worldwide Battery.