Wednesday, December 4, 2019

Retailers, Premises Liability and Federal Diversity Jurisdiction

Retailers, Premises Liability and Federal Diversity Jurisdiction

       Just before Thanksgiving, a decision was handed down by the Federal District Court for the Eastern District of Kentucky (Judge Van Tatenhove) addressing what would otherwise appear to be a run-of-the-mill premises liability claim. However, in this decision, the potential liability was expanded beyond the big-box home improvement store to include, as an individual, the store manager. Justice v. Lowe’s Home Centers LLC, Civ. No: 7:19-CV-00051-GFVT, 2019 WL 6310724 (E.D. Ky Nov. 25, 2019). 

      The plaintiff, Justice, alleged that he was injured when, apparently, a door or doors fell on him at the Lowe’s store in Pikeville Kentucky. Justice filed suit against not only Lowe’s, but also James Little, the store manager. Specifically, he alleged that the defendants “permitted an unreasonably unsafe hazard or condition to exist upon the premises … when it failed to secure doors on the shelves or left unattended unsecured doors on the shelves without a posted notice or warning.” In addition, it was alleged that Little, the store manager and a certain unknown employees were guilty of “creating an unreasonable risk of harm to customers of the store and failing to otherwise exercise due care.”

      The suit was originally filed in state court, and Lowe’s removed it to Federal Court on the basis of diversity jurisdiction. In the course thereof, Lowe’s alleged that Little was improperly joined in the lawsuit on the basis that he could not be held liable for Justice’s injuries. This decision was rendered in the course of Judge Van Tatenhove granting a motion to remand, which involved necessarily a determination that Little was not improperly joined.

      In reliance upon Grubb v. Smith, 523 S.W.3d 409 (Ky. 2017), it was observed that “Kentucky law has long recognized that an employee who, in the course of employment, breaches his or her independent tort duty to a third-party can be held liable for resulting injuries.” In this instance, it was alleged that Little and the as of yet unidentified other employees of Lowe’s created the condition that that led to the plaintiff's injury. As such, recovery against Little is conceivable, and his joinder was not improper.

      On that basis, diversity jurisdiction was absent, and the case was remanded to state court for further consideration.

      With this decision, plaintiffs, who typically desire to keep their suits in state court rather than have them either filed in or removed to federal court, have more of a roadmap as to what allegations may be made against defendants with Kentucky citizenship, thereby precluding removal.

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