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RENDERED: DECEMBER 7, 2012; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-001944-MR ESTATE OF ELEANOR M. THOMAS APPELLANT

v.

APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 10-CI-00307

JENNIE STUART MEDICAL CENTER, INC.

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, KELLER AND MAZE, JUDGES. MAZE, JUDGE: The Estate of Eleanor M. Thomas (the Estate), appeals from a summary judgment order of the Christian Circuit Court dismissing its negligence claim against Jennie Stuart Medical Center, Inc. (JSMC). The Estate argues that there were genuine issues of material fact which precluded summary judgment and that it was entitled to additional discovery due to JSMC's inaccurate and untimely

responses to interrogatories. We conclude that any disputed issues of fact were not material because the Estate failed to show that JSMC owed a duty to Thomas in the manner alleged. Furthermore, while we have concerns about JSMC's conduct in responding to the Estate's discovery requests, the omitted evidence was not relevant to establish the existence of a duty. Therefore, the trial court properly granted JSMC's motion for summary judgment. Hence, we affirm. Except where otherwise noted, the following facts are not in dispute. On April 27, 2009, Eleanor Thomas, accompanied by her friend Betty Young, visited JSMC for a routine doctor's appointment. Thomas was ninety-two years of age as of that date. Upon arriving, they were approached at the hospital's entrance by a JSMC employee, Amanda Gilbert. Gilbert is a "greeter" for JSMC, and her responsibilities include offering assistance to any person entering or leaving the hospital. In accordance with those duties, Gilbert obtained a wheelchair, assisted Thomas into the wheelchair and wheeled Thomas to her doctor's appointment. After the appointment, Gilbert again assisted Thomas into the wheelchair and wheeled Thomas to the edge of the canopy in front of the hospital's entrance. Gilbert then locked the wheels of the wheelchair and helped Ms. Thomas to her feet. At that point, Gilbert left Thomas with Young to assist another individual. According to Gilbert, Thomas stated to Ms. Gilbert that she would take it from there. Young then escorted Thomas to her car, which was a short distance away. Thomas fell while she was attempting to enter the vehicle, fracturing her

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ankle and suffering a laceration to her hand. Gilbert returned and assisted Thomas into the hospital's emergency room. Thomas filed this action on March 1, 2010, alleging negligence on the part of JSMC and Gilbert.1 While this action was pending, Thomas died testate on November 23, 2010. Her Estate was substituted as a party and discovery continued. During the course of discovery, the Estate took the deposition of Thomas's grandson, L.G. Davis. Davis, who arrived at the hospital shortly after the accident, testified that hospital personnel had informed him there was a surveillance video of the incident. Based on this testimony, the Estate repeatedly requested that JSMC produce any video recording of the incident. JSMC responded to each of these requests by stating that there was no such video. On November 19, 2010, JMSC filed a motion for summary judgment, arguing that it could not have breached any duty because Thomas fell after she had entered her vehicle. The trial court denied this motion on January 5, 2011. The case proceeded toward its scheduled trial date in February 2011. However, a snowstorm forced the date to be rescheduled for October 6, 2011. Shortly thereafter, the trial court also issued an order closing further discovery. On August 22, 2011, JSMC filed a second motion for summary judgment. The Estate responded and also filed a motion for a jury instruction
1

Thomas also brought a negligence claim against Young. Thereafter, Young filed a cross-claim against JSMC. However, those claims were dismissed by an agreed order entered on July 11, 2011.

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regarding spoilation of any video evidence of the incident. On September 8, 2011, JSMC filed a supplemental response stating that it had located a video of the incident. However, the footage was limited to the fall only and the Estate requested additional footage, as well as the extent of JSMC's efforts to locate the video. On September 15, 2011, the trial court granted JSMC's motion for summary judgment, based upon "the reasoning expressed in [JSMC's] motion filed August 22, 2011." Thereafter, the Estate filed a motion to alter, amend or vacate the summary judgment pursuant to CR 59.05, to re-consider in light of the newlyproduced video, and for additional factual findings. On October 5, 2011, the trial court denied all motions and designated its judgment as final and appealable. This appeal followed. The standard of review governing an appeal of a summary judgment is well-settled. We must determine whether the trial court erred in concluding that there were "no genuine issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. In Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985), the Supreme Court

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of Kentucky held that for summary judgment to be proper, "the movant shows that the adverse party could not prevail under any circumstances." The Kentucky Supreme Court also stated that "the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). However, the word "`impossible' is used in a practical sense, not an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). Furthermore, the party opposing summary judgment "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Steelvest, 807 S.W.2d at 481 (Internal quotations and citations omitted). "Because summary judgments involve no fact finding, this Court reviews them de novo, in the sense that we owe no deference to the conclusions of the trial court." Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000). The Estate argues that summary judgment was inappropriate because there were genuine issues of material fact regarding the circumstances of Thomas's fall and whether JMSC and Gilbert breached a duty which it owed to Thomas. The Estate also argues that summary judgment was inappropriate considering JSMC's untimely production of the video and its motions for additional discovery about the reasons for JSMC's failure to produce the video earlier. -5-

JSMC responds that any disputed issues of fact were not material because it was entitled to summary judgment on the legal issue of duty. It is wellestablished that tort liability for negligence requires the plaintiff to establish: (1) a duty; (2) a breach of that duty; (3) proximate causation; and (4) damages. Illinois Cent. R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967); Helton v. Montgomery, 595 S.W.2d 257, 258 (Ky. App. 1980).2 The failure to prove any requisite element is fatal to a negligence claim. Illinois Cent. R.R. v. Vincent, 412 S.W.2d at 876, citing Warfield Natural Gas Co. v. Allen, 248 Ky. 646, 59 S.W.2d 534 (Ky. App. 1933). While both parties acknowledge factual disputes concerning the exact circumstances surrounding Thomas's fall, none of these disputes are material to the questions of whether Gilbert owed a duty to Thomas and whether she breached that duty. Despite the conflicting deposition testimony and the dispute over the missing video recording, the parties agree that Thomas fell after Gilbert left her at the hospital entrance. Thomas got up from the wheelchair and Young assisted her to the car from there. Depending upon the particular deposition testimony, Thomas either fell while attempting to get into the car, or she fell out of the car after getting into it. Although the video recording was taken from a camera some distance away, it clearly shows that Thomas had one foot in the car and one foot still on the ground when she fell.
2

In some cases, the element of damages is included in the element requiring proof that the plaintiff suffered an injury which was proximately caused by the breach of a duty. See Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003).

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But in any event, the controlling issue turns on the extent of JSMC's duty to Thomas. The Estate maintains that Gilbert owed a duty to ensure that Thomas was properly secured in the vehicle. JSMC responds that it owed no such duty, and that Gilbert properly discharged any duties which she had assumed after Thomas got up from the wheelchair. The existence of a duty presents a question of law, while breach and injury are questions of fact for the jury to decide. Pathways, Inc. v. Hammons, 113 S.W.3d at 89 (Ky. 2003). JSMC notes that no court has ever imposed a duty on a business to provide assistance to customers in getting in and out of their vehicles. While the Estate does not cite any authority imposing such a specific duty, it notes that Kentucky has recognized a "universal duty" to exercise ordinary care in his activities to prevent foreseeable injury. Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 331 (Ky. 1987). However, Claywell's sweeping language of "universal duty of care" cannot be interpreted as creating a legal duty where none has existed before. Jenkins v. Best, 250 S.W.3d 680, 689 (Ky. App. 2007) Under common-law principles of negligence, a possessor of land is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. Bartley v. Educ. Training Systems, Inc., 134 S.W.3d 612, 614-15 (Ky. 2004), citing William Prosser and W. Page Keeton, Prosser and Keeton on Torts,

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