United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
Mary Somrak brings this diversity action against defendant
Kroger, Co. for negligence after she slipped and fell in a
Dillon's grocery store. This case is now before the court
on defendant's Motion for Summary Judgment (Doc. 54).
Defendant argues that plaintiff cannot hold it liable for any
torts committed by Dillon Companies, Inc.
(“Dillon”), which is a wholly owned subsidiary of
defendant. For the reasons stated below, the court grants
September 10, 2015, plaintiff was shopping at a Dillon's
grocery store in Salina, Kansas. After plaintiff checked out
at one of the self-checkout counters, she slipped, fell, and
cut her left hand on a jar of spaghetti sauce that had broken
during the fall.
brought this suit against defendant claiming negligence and
willful and wanton conduct. Defendant maintains that it is
the parent company of Dillon-who operates Dillon's
grocery stores- and is therefore not liable for any tortious
act of its subsidiary and its subsidiary's employees.
According to defendant's in-house counsel, Dillon is a
limited liability company formed in the State of Kansas and
is a wholly owned subsidiary of defendant. Dillon is
responsible for the day-to-day management of its
stores-including the Salina store at issue-and is responsible
for the employment decisions regarding employees at
Dillon's stores in Kansas. According to a filing from the
Kansas Secretary of State, Dillon is incorporated in Kansas.
Willey, a Dillon's store employee, was responsible for
monitoring the self-checkout lanes and was working on the day
of the incident. Plaintiff provided Willey's W-4 forms
from 2007, which indicate she is employed by defendant.
Plaintiff also provided a number of documents and materials
used at the Dillon's store at issue that contain
defendant's logo. These include the incident report used
after the incident, a safety requirement poster used at the
store, and records from a safety program utilized by
defendant and implemented at the Dillon's store at issue.
judgment is appropriate if the moving party demonstrates that
there is “no genuine issue as to any material
fact” and that it is “entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(c). A
“genuine” factual dispute requires more than a
mere scintilla of evidence. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The party seeking
summary judgment bears the initial burden of showing the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party demonstrates an absence of evidence in support
of an element of the case, the burden then shifts to the
nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248. The nonmoving party
“may not rest upon the mere allegations or denials of
his pleading.” Id.
making the summary judgment determination, the court must
view the evidence and reasonable inferences in the light most
favorable to the nonmoving party. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). Ultimately, the court evaluates
“whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it
is so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 252.
claims it is entitled to summary judgment because it is not
liable for any injury plaintiff sustained at a store operated
by Dillon, its wholly owned subsidiary. Defendant argues
plaintiff has not shown any reason that this court should
pierce the corporate veil and hold it liable for the
negligence of its subsidiary. Plaintiff, however, maintains
it is not necessary to pierce the corporate veil because
defendant is the real party in interest. Plaintiff claims
that Willey is an employee of defendant, and defendant is
therefore liable for her negligence under a theory of
respondeat superior. Plaintiff also argues that evidence
shows that defendant was directly involved in the operation
and management of the Dillon's store at issue.
claims that defendant's negligence caused the injuries
she sustained when she fell. In order to establish negligence
under Kansas law, the plaintiff must prove: (1) the defendant
owed a duty to the plaintiff; (2) the duty was breached; (3)
the breach was the proximate cause of the plaintiff's
injury; and (4) the plaintiff sustained damages. Adams v.
Bd of Sedgwick Cnty. Comm'rs, 214 P.3d 1173, 1179
(Kan. 2009). Defendant essentially argues it is entitled to
summary judgment because any duty owed plaintiff was owed
only by its subsidiary.
undisputed that Dillon is a wholly owned subsidiary of
defendant. A subsidiary corporation is a corporation
“in which a parent corporation has a controlling
share.” CORPORATION, Black's Law Dictionary (10th
ed. 2014). “A corporation holding stock in another
corporation stands in the same relation as a
stockholder.” Dean Operations, Inc. v. One Seventy
Assocs., 896 P.2d 1012, 1016 (Kan. 1995). And
“[t]he fact that one corporation owns the controlling
stock of another does not destroy the identity of the other
corporation as a distinct legal entity.” 18A Am. Jur.
2d Corporations § 727.
liability is not ordinarily imposed upon a parent corporation
for the torts of its subsidiary. Id.; see also
Dean Operations, 896 P.2d at 1016 (“In the absence
of fraud or other invidious and vitiating circumstances, the
fact that one corporation is instrumental in the formation of
another corporation and owns nearly all of the stock of the
latter corporation does not have ...