THERESA GAIL LEWIS, Administratrix of the Estate DON HELTON v. B&R CORPORATION, d/b/a SAVE-A-LOT, and FORD MOTOR COMPANY
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RENDERED:
September 7, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001297-MR
THERESA GAIL LEWIS,
Administratrix of the Estate
of BRENDA CAROL HELTON, and
DON HELTON
APPELLANTS
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
CIVIL ACTION NO. 99-CI-00302
v.
B&R CORPORATION, d/b/a
SAVE-A-LOT, and FORD MOTOR COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and TACKETT, Judges.
HUDDLESTON, Judge: Theresa Gail Lewis, Administratrix of the estate
of Brenda Carol Helton, and Don Helton (hereinafter collectively
referred to as “Lewis”) appeal from a summary judgment granted to
B&R Corporation, d/b/a Save-A-Lot,1 on their complaint for wrongful
death involving the death of Brenda Carol Helton in a one-car
vehicular accident.
1
We affirm.
Although Ford Motor Company is named as an appellee, this
appeal addresses only the summary judgment granted B&R Corporation,
d/b/a Save-A-Lot.
On the afternoon of June 4, 1998, Brenda Helton went
alone to a Save-A-Lot grocery store in Harlan, Kentucky.
She
parked her 1988 Ford Mustang on the front row, perpendicular to the
front entrance of the store in a parking area designated for
handicapped patrons.
To the rear of her vehicle was the rest of a
20-foot parking area and a 38-foot grass embankment with an 18%
grade that was parallel to Industrial Park Drive. After completing
her shopping, Brenda Helton got into her vehicle and started the
engine. Shortly thereafter, she placed the transmission in reverse
and the vehicle suddenly accelerated at a high rate of speed.
The
car crossed the parking area, the grass embankment, Industrial Park
Road, another level 35-foot grass embankment, and a short five-foot
drop-off into the Cumberland River, where it landed on its roof,
upside-down in the river.
Brenda Helton was rescued by several
witnesses and a city police officer.
She was taken to the local
hospital in a coma, but died the next day after being transferred
to a regional hospital in Knoxville, Tennessee, without having
regained consciousness.
Kentucky State Police Officers Kenneth Crider and Michael
Cornett were called to the scene and conducted an investigation.
Officer Crider took photographs of the scene and prepared an
accident report after speaking with several witnesses and Helton’s
family.
Officer
Cornett,
who
had
training
in
accident
reconstruction, prepared a diagram of the area with corresponding
distance measurements indicating the path of the vehicle.
Officer
Crider learned that Brenda Helton was suffering from Huntington’s
disease or chorea, a muscular, neurological condition, and that
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complaints had been filed with the Department of Human Resources
about her driving ability.
One witness stated that the car’s
wheels were spinning just before it started moving in reverse at a
high rate of speed.
On June 2, 1999, Theresa Lewis, Brenda Helton’s daughter
and administratrix of her estate, and Don Helton, Brenda Helton’s
husband, filed a wrongful death complaint against B&R Corporation,
d/b/a Save-A-Lot, and Ford Motor Company.
In the complaint, the
appellants alleged B&R breached several duties it owed Brenda
Helton related to her status as a handicapped person. They further
alleged that as a proximate result of B&R’s failure to comply with
its duties, Brenda Helton had been fatally injured.2
The complaint
listed the following duties owed by B&R to its handicapped patrons:
(a) To comply with all provisions of the Kentucky Revised
Statutes regarding handicap[ped] persons and persons with
physical disabilities.
(b) To reasonably protect patrons from unreasonable risks
of
harm
while
engaged
in
reasonably
foreseeable
activities.
(c) To provide its handicap[ped] business patrons with
reasonably safe premises for the use of the patrons.
(d) To discover dangerous conditions that create an
unreasonable risk of harm to handicap[ped] patrons and to
correct or otherwise eliminate risk of harm to them.
2
The complaint also alleged that the 1988 Ford Mustang was
defective resulting in an unexpected sudden acceleration of the
vehicle that contributed to Brenda Helton’s death.
-3-
(e) To maintain the premises in such a condition so that
a patron will not be exposed to an unreasonable risks
[sic] of harm.
(f) To provide safe guards [sic] and preventive measures
to
protect
handicap[ped]
patrons
with
physical
disabilities from an unreasonable risk of harm.
(g) To make timely inspections of the premises used by
its handicap[ped] patrons and discover and eliminate
and/or warn of any conditions that create an unreasonable
risk of harm to them.
(h) To use whatever means the defendant has available to
it to eliminate unreasonable risk of harm.
(i) To lay out, construct, design, and otherwise present
the premises to its handicap[ped] patrons so that they
will not be exposed to an unreasonable risk of harm.
(j) To otherwise use ordinary care to protect and provide
a
safe
environment
and
premise
[sic]
for
its
handicap[ped] patrons with a physical disability.
On
June
22,
1999,
B&R
served
its
first
set
of
interrogatories and request for production of documents on the
appellants.3
In its interrogatories, B&R asked Lewis to state in
detail
and
each
every
statute,
regulation
or
case
which
she
contended imposed each of the duties alleged in the complaint and
state “every fact upon which you intend to rely to prove the
3
On June 25, 1999, Ford also served its first set of
interrogatories and request for production of documents on the
appellants.
-4-
alleged violation of each separate duty.”
It also asked Lewis to
state whether she intended to call an expert witness to testify, to
state the subject matter of any expert’s testimony, and to provide
a summary of the grounds for the expert’s opinions.
In December
1999, the appellees took the depositions of Theresa Lewis, Officer
Crider, and Rhonda Bowers, a witness to the incident.
Also in
December, Lewis served B&R with answers to its first set of
interrogatories and request for admissions.
In March 2000, the
appellees took the deposition of Don Helton.
On February 16, 2000, B&R filed a motion for summary
judgment arguing that Lewis had failed to identify any duty B&R
breached which could have caused or contributed to the accident.
On the same day, Ford filed a motion for a trial date and order
assigning discovery deadlines.
On March 17, 2000, the circuit
court held a hearing on the motions during which appellants’
attorney stated that B&R had breached various provisions of the
Americans with Disabilities Act (ADA) regulations and that he would
produce an engineering expert to support the allegations in the
complaint.
After the hearing, the circuit court set a March 2001
trial date with a pretrial conference in September 2000, and
required Lewis to identify all of her expert witnesses by August 1,
2000.
The court stated that a cut-off date for discovery would be
considered at the pretrial conference.
On April 7, 2000, Lewis filed a response to B&R’s motion
for summary judgment.
She asserted that B&R’s breach of federal
and state law on handicapped parking had created an unreasonably
dangerous condition.
She said that the handicapped parking spaces
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were too close to a steep drop-off and that the design of the
parking spaces did not provide reasonable access for handicapped
patrons.
Attached to the response was an affidavit by Don Helton
stating that the handicapped parking spaces were located on a steep
grade, that they were not located to provide the shortest route of
travel to the building’s entrance, and that there was insufficient
room to maneuver a vehicle safely.
On April 19, 2000, B&R filed a
reply to the response denying the assertion that it breached any
duty
of
care
to
the
victim
statements in the response.
and
challenging
several
factual
Attached to the reply were the police
accident report, several photographs of the scene, and a copy of
the ADA regulations cited by Lewis in her response.
On April 21, 2000, the court conducted a hearing on the
motion for summary judgment.
B&R argued that Lewis failed to
identify a sufficient legal or factual basis for her claim.
Lewis
stated that B&R Corporation breached a general duty to exercise
reasonable care by creating a dangerous risk to handicapped patrons
entering and exiting the parking lot. The court granted the motion
stating Lewis did not present facts showing the breach of any duty
owed to Brenda Helton by the store.
Lewis contends she presented sufficient evidence showing
that the design of the Save-A-Lot parking lot violated the owner’s
duties to its handicapped patrons and was a cause of Brenda
Helton’s death.
Although the complaint tends to merge the issues,
it appears to raise claims based on common law premises liability
and negligence per se.
She cites to KRS 198B.260(2), the Kentucky
Building Code, and the Americans with Disabilities Act as sources
-6-
for
establishing
the
commercial businesses.
requirements
for
handicapped
parking
at
Lewis asserts that there was a genuine
issue of material fact sufficient to preclude summary judgment for
B&R.
We begin with a general review of the standards for
summary judgment.
The standard of review on appeal when a trial
court grants a motion for 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.”4
The trial court must view the evidence in the
light most favorable to the nonmoving party, and summary judgment
should be granted only if it appears impossible that the nonmoving
party will be able to produce evidence at trial warranting a
judgment in his favor.5
The moving party bears the initial burden
of showing that no genuine issue of material fact exists, and then
the burden shifts to the party opposing summary judgment to present
“at least some affirmative evidence showing that there is a genuine
issue of material fact for trial.”6
The trial court “must examine
the evidence, not to decide any issue of fact, but to discover if
4
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996);
Palmer v. International Ass’n of Machinists & Aerospace Workers,
Ky., 882 S.W.2d 117, 120 (1994); CR 56.03.
5
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 480-82 (1991); Leslie v. Cincinnati Sub-Zero Products,
Inc., Ky. App., 961 S.W.2d 799, 804 (1998).
6
Steelvest, 807 S.W.2d at 482. See also Hubble v. Johnson,
Ky., 841 S.W.2d 169, 171 (1992); Hibbitts v. Cumberland Valley
Nat’l Bank & Trust Co., Ky. App., 977 S.W.2d 252, 253 (1998).
-7-
a real issue exists.”7
“impossible”
in
While the Court in Steelvest used the word
describing
the
strict
standard
for
summary
judgment, the Supreme Court later stated that that word was “used
in a practical sense, not in an absolute sense.”8
Because summary
judgment involves only legal questions and the existence of any
disputed material issues of fact, an appellate court need not defer
to the trial court’s decision and will review the issue de novo.9
Lewis’s complaint is based on the legal theories of
negligence per se and premises liability, which are two subcategories of general negligence law.
In order to state a cause of
action based on negligence, a plaintiff must establish a duty on
the defendant, a breach of the duty, and a causal connection
between the breach of the duty and an injury suffered by the
plaintiff.10
The causal connection or proximate cause component
traditionally was composed of two elements: cause-in-fact and legal
or consequential causation.11
Cause-in-fact involves the factual
7
Steelvest, 807 S.W.2d at 480.
See also Commonwealth,
Natural Resources and Environmental Protection Cabinet v. Neace,
Ky., 14 S.W.3d 15, 20 (2000).
8
Perkins v. Hausladen, Ky., 828 S.W.2d 652, 654 (1992). See
also Welch v. American Publishing Co. of Kentucky, Ky., 3 S.W.3d
724 (1999).
9
See Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal
Realtors and Auctioneers, Inc., Ky. App., 997 S.W.2d 497, 498
(1999); Morton v. Bank of the Bluegrass and Trust Co., Ky. App., 18
S.W.3d 353, 358 (1999).
10
Grisham v. Wal-Mart Stores, Inc., 929 F.Supp. 1054, 1056
(E.D. Ky. 1995)(citing Mullins v. Commonwealth Life Ins. Co., Ky.,
839 S.W.2d 245, 247 (1992)); Helton v. Montgomery, Ky. App., 595
S.W.2d 257, 258 (1980).
11
See, e.g., F.D.I.C. v. Barton, 233 F.3d 859, 863 (5th Cir.
2000); Talkington v. Atria Reclamelucifers Fabrieken (Cricket BU),
(continued...)
-8-
chain of events leading to the injury; whereas, consequential
causation concerns the concepts of foreseeability and the public
policy consideration on limiting the scope of responsibility for
damages.12
redefined
In Kentucky, the cause-in-fact component has been
as
a
“substantial
factor”
Restatement (Second) of Torts §431.13
element
as
expressed
in
The scope of duty also
11
(...continued)
152 F.3d 254, 264 (1998). See also Gerebenics v. Gaillard, Ky.,
338 S.W.2d 216, 219 (1960)(“To constitute proximate cause, an act
must be such that it induced the accident and without which the
accident would not have happened.); Spivey v. Sheeler, Ky., 514
S.W.2d 667, 672 (1974)(“In determining proximate cause, an injury
growing out of an act of negligence, the rule is the injury must be
the natural and probable consequence of the act of negligence; that
is, such a consequence as under the surrounding circumstance of the
case might and ought to be foreseen by the wrongdoer as likely to
flow from his act.”)
12
Id. See also Ohio Cas. Ins. Co. v. Commonwealth, Dept. of
Highways, Ky., 479 S.W.2d 603 (1972); United Fuel Gas Co. v.
Thacker, Ky., 372 S.W.2d 784 (1963).
13
Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980). As noted in
Deutsch, the discussion of “proximate cause” in many cases has been
confusing and “defies precise definition.” Id. at 143. Under the
Restatement approach, liability arises from the existence of
negligence and a “legal cause.” See Restatement (Second) of Torts
§430. The Restatement does not follow the traditional analysis for
proximate cause. See Dan B. Dobbs, The Law of Torts (2001); David
W. Robertson, The Common Sense of Cause in Fact, 75 Tex. L. Rev.
1765 (1997).
It places the foreseeability component under the
analysis for determining duty as a part of negligence, rather than
under the concept of “legal cause.” See Restatement (Second) of
Torts § 281 and § 435. The traditional approach created confusion
by including a foreseeability component in both the scope of the
duty and proximate cause analysis.
A review of the case law
indicates that Kentucky courts have not fully embraced the
Restatement (Second) approach to causation analysis. See, e.g.,
Grayson Fraternal Order of Eagles v. Claywell, Ky., 736 S.W.2d 328
(1987); Waldon v. Housing Auth. of Paducah, Ky. App., 854 S.W.2d
779 (1993); Isaacs v. Smith, Ky., 5 S.W.3d 500 (1999)(mixing
foreseeability with discussion of duty, substantial factor, and
proximate cause).
-9-
includes a foreseeability component involving whether the risk of
injury was reasonably foreseeable.14
While general negligence law requires the existence of a
duty, premises liability law supplies the nature and scope of that
duty when dealing with tort injuries on realty.
Under common law
premises liability, the owner of a premises to which the public is
invited has a general duty to exercise ordinary care to keep the
premises in a reasonably safe condition and warn invitees of
dangers that are latent, unknown or not obvious.15 Similarly,
statutes, ordinances, regulations and building codes may create a
duty subject to liability as negligence per se.16
A negligence per
14
See, e.g., Fryman v. Harrison, Ky., 896 S.W.2d 908 (1995);
Standard Oil Co. v. Manis, Ky., 433 S.W.2d 856 (1968);
Commonwealth, Dept. of Highways v. Widner, Ky., 388 S.W.2d 583
(1965).
While the cases do not specifically discuss any
differences in the foreseeability analysis for purposes of
determining duty and causation, the former appears to concern the
foreseeability of harm or risk generally, while the latter concerns
the foreseeability of the consequences or specific injury in the
given case. See., e.g., Bolus v. Martin L. Adams & Son, Ky., 438
S.W.2d 79, 81 (1969)(“It is not necessary, to impose liability for
negligence. that the defendant should have been able to anticipate
the precise injury sustained, or to foresee the particular
consequences or injury that resulted. It is enough that injury of
some kind to some person could have been foreseen.”); Adams v.
Feck, Ky., 303 S.W.2d 287, 289 (1957)(“Proximate cause is that
cause which leads to, and which might be expected to have produced,
a given result.”). But see Eaton v. Louisville & N.R. Co., Ky.,
259 S.W.2d 29(1953)(it is not necessary that precise form of injury
should be anticipated as part of proximate cause).
15
See Johnson v. Lone Star Steakhouse & Saloon, Inc., Ky.
App., 997 S.W.2d 490 (1999); Rogers v. Professional Golfers Ass’n
of America, Ky. App., 30 S.W.3d 185 (2000); Steiden v. Kroger Co.,
Ky., 483 S.W.2d 146 (1972).
16
See Isaacs v. Smith, supra, n. 13; Blue Grass Restaurant
Co. v. Franklin, Ky., 424 S.W.2d 594 (1968); Bennett v. Parkway
Professional Center, Inc., Ky., 507 S.W.2d 694 (1974); Nott v.
Zellars, Ky., 353 S.W.2d 379 (1961).
-10-
se claim “is merely a negligence claim with a statutory standard of
care substituted for the common law standard of care.”17
While it is unquestioned that violations of
statutes constitute negligence per se, that statement is
coextensive with the requirement that the violation “must
be a substantial factor in causing the result.”
Britton
v. Wooten, Ky., 817 S.W.2d 443, 447 (1991). However, the
mere violation of a statute does not necessarily create
liability unless the statute was specifically intended to
prevent the type of occurrence which has taken place.
Not all statutory violations result in liability for that
violation. The violation must be a substantial factor in
causing the injury and the violation must be one intended
to
prevent
the
specific
type
of
occurrence
before
liability can attach.18
Generally, the issues of the standard of care and the
existence of a duty are legal questions; whereas, the breach of a
duty and causation are factual issues.19
However, where only one
17
Real Estate Marketing, Inc. v. Franz, Ky., 885 S.W.2d 921,
927
(1994)(quoting
Atherton
Condominium
Apartment-Owners
Association Board of Directors v. Blume Development Co., 115 Wash.
2d 506, 799 P.2d 250 (1990); Carman v. Dunaway Timber Co., Inc.,
Ky., 949 S.W.2d 569, 570 (1997)(Administrative regulation defines
relevant standard of care if person injured is member of class
intended to be protected by the regulation and the injury resulted
from event regulation designed to prevent.).
18
Isaacs, supra, n. 14 at 502.
See also Blue Grass
Restaurant Co., supra; Milliken v. Union Light, Heat & Power Co.,
Ky., 341 S.W.2d 261 (1960); Laughlin v. Lamkin, Ky. App., 979
S.W.2d 121 (1998).
19
See, e.g., Mullins v. Commonwealth Life Ins. Co., Ky., 839
(continued...)
-11-
reasonable conclusion can be reached, a court may decide the issue
of causation as a matter of law.20
Lewis states in her brief that Save-A-Lot maintained its
customer parking spaces in a condition that subjected
patrons to an unreasonably dangerous situation.
handicapped
She asserts that
the parking spaces “were located on a steep grade and were very,
very close to a steep bank or drop-off . . . .
There was not
enough room to safely maneuver a vehicle from the handicap[ped]
parking spaces without being subject to the risk of going over the
bank.
On June 4, 1998, as she was negotiating this dangerous
condition of the parking lot, Brenda Helton, decedent, plunged over
the bank. She was killed. The unreasonably dangerous condition of
the premises was a contributing cause of her death.”
Lewis cites to the investigation by Officers Crider and
Cornett
and
the
allegations.
A
affidavit
review
of
of
Don
the
Helton
police
in
support
accident
of
her
report
and
photographs of the scene taken by Officer Crider totally belie
these assertions.
The diagram of the scene prepared by the police
indicates that Helton’s vehicle traveled approximately 35 feet
19
(...continued)
S.W.2d 245, 248 (1992)(existence of duty is issue of law); Sheehan
v. United Services Automobile Ass’n, Ky. App., 913 S.W.2d 4, 6
(1996)(same); New St. L. & Calhoun Packet Corp. v. Pennsylvania R.
Co., Ky., 302 Ky. 693, 194 S.W.2d 977, 982 (1946)(determination of
standard of care is legal issue and whether care was exercised in
discharge of duty is jury question); Bell v. Ward, 242 S.W.2d 869,
871 (1951)(same); Eichstadt v. Underwood, Ky., 337 S.W.2d 684, 686
(1960)(causation and contributory negligence ordinarily jury
questions); Stanley v. Caldwell, Ky., 274 S.W.2d 383 (1954)(same).
20
See Grayson Fraternal Order of Eagles v. Claywell, supra,
n. 12; O.K. Tire Store No. 3, Inc. v. Stovall, Ky., 392 S.W.2d 43,
44 (1965); Adkins v. Greyhound Corp., Ky., 357 S.W.2d 860, 862
(1962).
-12-
across the parking lot, 38 1/2 feet across a grass embankment, 23
feet across Industrial Park Drive, 36 feet across a second grass
embankment and 5 feet down a steep drop-off into the Cumberland
River.
The first grass embankment had an 18% grade, but the
parking lot had only a gradual slope.
Brenda Helton parked in the
handicapped spaces near the store entrance, not the embankment, and
was
approximately
embankment.
25
feet
from
the
beginning
edge
of
the
She unarguably had sufficient room within the parking
lot to maneuver without encountering the embankment.
In addition, the witnesses and physical evidence indicate
that Helton’s vehicle accelerated quickly at the very beginning and
continued on a straight course at a high rate of speed without any
indication that she attempted to apply the brakes.
The placement
of the parking spaces was not a cause-in-fact of the accident and
it was not reasonably foreseeable that the placement of the parking
lot adjacent to a sloped embankment would pose a risk to patrons or
that a handicapped patron would be injured by driving her vehicle
into the river.
Lewis did not present sufficient evidence to
create a material issue of fact on causation involving the design
of the parking lot because it was not a substantial factor in
causing the accident and it was not reasonably foreseeable that the
design created a risk of injury from falling into the river.
Therefore, whether expressed in terms of duty or causation, B&R was
entitled to judgment on the legal theory of premises liability.
Lewis also refers to several regulations under the ADA
dealing with the design of parking spaces and accessibility to
-13-
public buildings by handicapped individuals.21
She contends the
handicapped parking spaces at Save-A-Lot did not comply with the
guidelines with respect to an adequate access aisle,22 accessible
route,23 accessible space,24 running slope,25 location of parking
spaces,26 parking spaces27 and surface slope.28
This claim appears
to be based on a negligence per se theory of liability.
Lewis’s reliance on the ADA Accessibility Guidelines is
misplaced.
Even assuming the handicapped parking spaces at the
21
See 36 CFR Part 1191, Appendix A. KRS 198B.260 provides
for building code regulations facilitating access by persons with
disabilities and coordination with the federal Americans with
Disabilities Act guidelines.
22
“Access Aisle.
An accessible pedestrian space between
elements, such as parking spaces, seating, and desks, that provide
clearances appropriate for use of the elements.”
See id.
Definitions, Section 3.5.
23
“Accessible Route.
A continuing unobstructed path
connecting all accessible elements and spaces of a building or
facility . . . . Exterior accessible routes may include parking
access aisles, curb ramps, crosswalks at vehicular ways, walks,
ramps, and lifts.” Id.
24
“Accessible
guidelines.” Id.
Space.
Space
that
complies
with
these
25
“Running Slope.
The slope that is parallel to the
direction of travel (see cross slope).” Id.
26
“Location. Accessible parking spaces serving a particular
building shall be located on the shortest accessible route of
travel from adjacent parking to an accessible entrance . . . .”
Id., Section 4.6.2.
27
“Parking Spaces. Accessible parking spaces shall be at
least 96 in. (2440 mm.) wide. Parking access aisles shall be part
of an accessible route to the building or facility entrance and
shall comply with 4.3 . . . .” Id., Section 4.6.3.
28
“Slope. Accessible route with a running slope greater than
1:20 is a ramp and shall comply with 4.8. Nowhere shall the cross
slope of an accessible route exceed 1:50.” Id., Section 4.3.7.
Lewis cites Section 4.6.6 on this point, but that section deals
with passenger loading zones.
-14-
Save-A-Lot store did not comply with the Guidelines, Lewis has not
explained how any violation contributed in any way to the accident.
As described above, Brenda Helton died as a result of her vehicle
traveling some 140 feet from the store into the Cumberland River.
The Guidelines deal with accessibility of handicapped patrons to a
public building.
Helton’s injury did not involve any condition
related to the Guidelines.29
Consequently, Lewis has shown neither
that the ADA Guidelines were intended to prevent the type of
occurrence that resulted in Helton’s death nor that any violation
of the Guidelines was a substantial factor in causing the death.
Lewis has submitted no evidence indicating that she could establish
a negligence per se claim.
In conclusion, the circuit court correctly determined
that no genuine issue of material fact was in dispute and that B&R
Corporation was entitled to judgment as a matter of law under
either premises liability or negligence per se.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE
B&R CORPORATION:
John Crockett Carter
Harlan, Kentucky
Catherine C. Hadden
Ashland, Kentucky
29
Cf. Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir.
1999)(handicapped patron injured in restroom that did not comply
with ADA Guidelines).
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