Currier v. Menard, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROGER CURRIER,
Plaintiff,
v. 	Case No. 24-4084-JWB
MENARD, INC.,
Defendant.
MEMORANDUM DECISION
Plaintiff Roger Currier (“Plaintiff” or “Mr. Currier”) brought this negligence action against
Defendant Menard, Inc (“Defendant” or “Menard”). He seeks damages for injuries sustained when
he tripped and fell on his way into a shopping center owned by Defendant.
On July 29, 2024, Plaintiff filed a petition against Defendant in the District Court of
Shawnee County, Kansas. 	(Doc. 1 at 1.) 	Defendant was served on August 6, 2024. 	(Id.) 	On
August 23, 2024, Defendant removed the action to this court on the basis of diversity jurisdiction
through the federal removal statute at 28 U.S.C. § 1446. 	(Id.) 	Because Plaintiff is a citizen of
Kansas and Defendant is incorporated and has its principal place of business in Wisconsin, the
parties are completely diverse. (Id. at 2.) Plaintiff’s petition sought damages in excess of $75,000,
so accordingly, this court’s jurisdiction is proper under 28 U.S.C. § 1332(a)(1). (Doc. 1-1 at 5.)
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This case was leanly litigated. 	This court entered a pretrial order on March 7, 2025,
containing only one count of negligence. 	(Doc. 35 at 5.)1 	There were no motions to dismiss,
Daubert motions, motions in limine, or motions for summary judgment. The court presided over
a bench trial from December 8-9, 2025, and took the matter under advisement. 	The court has
thoroughly considered the evidence and arguments presented at trial, the parties’ post-trial
submissions, the transcripts and deposition designations, and the relevant law, and makes the
following findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules
of Civil Procedure.
For the reasons explained herein, the court directs the clerk to enter judgment for
DEFENDANT on Plaintiff’s negligence claim.
I. 	Findings of Fact
Plaintiff is a 76-year-old man from Topeka, Kansas. (Doc. 55 at 47.) For most of his life
he has been in the rental business and has owned and maintained various pieces of property,
typically renting them out for business purposes. (Id. at 48.) He owns a shopping center in Topeka
that contains several businesses. (Id.) For the most part, Plaintiff did the maintenance and upkeep
on this shopping center himself, though for bigger projects he had some help. 	(Id.) 	In “about
2015” Plaintiff became acquainted with Mr. Aaron Smith who began conducting work for
Plaintiff’s rentals. (Id. at 38.) Mr. Smith has conducted lots of handyman type work for Plaintiff
in the intervening period. (Id.) When he began working for Plaintiff, Mr. Smith typically worked
1 The court notes that in the pretrial order, under “Plaintiff’s Claims” it says: “Plaintiff asserts that he is entitled to
recover upon the following theory(ies): i. Violation of the ADA. ii. Negligence.” (Doc. 35 at 5.) The ADA was not
identified as a separate claim elsewhere in this case, including the petition, or in the remainder of the pretrial order.
Therefore, just before trial, the court asked Plaintiff to clarify the claims in this case. (Doc. 55 at 2.) Plaintiff explained
that the only claim was for negligence and that he would use the ADA as part of his theory to establish duty. (Id. at
3.) The court proceeded accordingly.
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15-20 hours per week. (Id. at 40.) Now, Mr. Smith works 24-26 hours per week for Plaintiff. (Id.
at 41.)
The reason for this increase is that on July 4, 2023, Plaintiff suffered a fall outside of a
Sleep Number store on a property owned by Defendant Menard. 	(Id. at 54-55.) 	At the time,
Plaintiff was 73 years old. (Id. at 61.) Plaintiff drove himself and his wife to the Sleep Number
store. (Id. at 56.) The weather that day was quite sunny and hot. (Id. at 56, 81.) Plaintiff parked
his car in the far-right parking spot seen in the photograph below. (Id. at 55.)
(Def. Ex. 804.)
To enter the store, Plaintiff and his wife each decided to go up the handicap ramp on the
right side of the above photograph. (Id. at 19.) His wife was ahead of him. (Id. at 21, 55.) Plaintiff
attributed his decision to take the accessible ramp on the right instead of the stairs on the left side
of the photograph because he was “being kind of lazy.” 	(Id. at 55.) 	As Plaintiff entered the
sidewalk from the parking lot, he “tripped on that curb,” while indicating to the images below
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which were displayed as exhibits to the court. (Id.) Plaintiff indicated that he tripped on the grey
pavement space directly adjacent and behind the yellow painted portion of the curb as shown in
the images below. (Id. at 59.) 2
(Pl. Ex. 3; Def. Ex. 803.) 	Plaintiff testified that he did not fall on the dotted orange handicap
detectible warning mat. (Id. at 64.)
As a result of his fall, Plaintiff sustained a spiral fracture in his left femur. (Id. at 70.) The
fracture ran from near the top of the femur to just above his knee. (Id. at 72.) Plaintiff’s wife and
employees from the Five Guys restaurant rushed to his assistance and called an ambulance. (Id.
at 63.) Plaintiff was taken to a hospital, where he had surgery the following day. (Id. at 70.) After
a few days in the hospital, Plaintiff was discharged to a “Health Care Resort”, where he remained,
2 The court has placed an X on one of the photographs that shows where Plaintiff indicated that he tripped during trial.
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recovering from his injuries, for nearly the next three months until September 28, 2023. 	(Id.)
Upon his release, he remained in a wheelchair. (Id. at 71.) At this point, a home health service
came to provide physical therapy services to Plaintiff. Gradually, perhaps by the end of the year,
Plaintiff progressed from a wheelchair to walker. (Id.) Plaintiff attended a follow-up appointment
with his surgeon on December 23, 2023. (Id.) Plaintiff was scheduled to have another follow-up
appointment six months later. 	(Id. at 84.) 	Because he contracted COVID-19, he canceled that
appointment and never rescheduled. (Id.) When asked why he did not reschedule, Plaintiff said
he thought it was “an exercise of futility” because “it [the injury] was not getting any better.” (Id.
at 101.)
Unfortunately, this is not Plaintiff’s first fall or serious injury. In August 2017, Plaintiff
broke his left femur, near his hip, working on a house he was “flipping.” (Id. at 51.) In September
and October of 2018, Plaintiff tripped and fell twice, breaking each of his wrists. (Id. at 52-54.)
Plaintiff maintains however that these events were “aberration[s]” and that he had never previously
broken a bone. (Id. at 54.) Plaintiff explained that he had a complete recovery from these injuries
and was walking without assistive devices. 	(Id. at 54-55.) 	Since the July 4, 2023, fall though,
Plaintiff has been unable to walk without the assistance of a walker and has never returned to the
repair work he was doing prior. (Doc. 55 at 41, 72, 74.) Walking without a walker is “too painful
to do.” (Id. at 72.)
Plaintiff’s medical records classify him as “morbidly obese.” (Id. at 95; Def. Ex. 811 at 2.)
Plaintiff also has arthritis, but “it’s not severe” and “minor.” (Doc. 55 at 73, 89.) That said, prior
to his fall, Plaintiff had acquired a handicap parking tag due to arthritis in his knees, and it was
noted in his medical records as “chronic pain.” 	(Id. at 89, 91.) 	Plaintiff agreed that some
“combination of [his] weight, [his] injury, [his] arthritis, [his] injury, and maybe even that prior
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injury” contributed to his condition and pain. (Id. at 73; 87-88.) But he also explained that the
July 2023 fall was the most “severe” issue. 	(Id. at 73-74.) 	Plaintiff stated that his arthritis
worsened after his fall. (Id. at 92-93.) Finally, Plaintiff disputed a post-surgery medical record
that described his left femur pain as “well controlled.” (Id. at 94.)
As seen above, the fall occurred on a piece of concrete in the parking lot of the property
owned by Defendant Menard. The parties elicited expert testimony about whether this piece of
concrete was constructed improperly. Plaintiff produced two experts. Plaintiff’s first expert, Mr.
Robert Downey, described where Plaintiff tripped as an “improperly constructed flare.” 	(Id. at
114.) A flare “is where the curb changes in elevation from the curb to the level of the parking lot.”
(Id. at 115.) Mr. Downey explained that this definition comes from “archived” ADA “guidance.”
(Id. at 116-117.) Current ADA regulations do not define the term “flare.” (Id.) But ADA guidance
requires that “flares” have a maximum slope of 5.71 degrees. 	(Id. at 122.) 	Plaintiff’s expert
measured the “flare” in this case at 22.9 degrees. (Id. at 122-23.) This, according to Plaintiff’s
expert, renders the flare “improperly constructed.” 	(Id.) 	Mr. Downey testified that Defendant
Menard could have audited the property for ADA violations and either barred access to or
reconstructed the “flare.” (Id. at 131.)
Plaintiff’s second expert, Mr. Russell Kendzior, the self-proclaimed “buil[der] [of] the
largest industry in the world” is a walkway safety specialist. (Pl. Ex. 21 at 39, 6.) Mr. Kendzior
largely concurred with Mr. Downey, however Mr. Kendzior referred to the area in question as a
“curb.” 	(Id. at 29.) 	He described the area as a “bad, very dangerous design” and creating a
“hazardous condition.” 	(Id. at 15.) 	Mr. Kendzior also determined that the area was part of the
“accessible path” within the meaning of the ADA. (Id. at 16.) As a corollary, he determined that
the area violated the ADA and the “International Building Code” due to it slope. (Id. at 18-19,
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21.) Like Mr. Downey, Mr. Kendzior testified that Defendant could have rectified this problem
by either blocking access or redesigning the area. (Id. at 19-20.) But in lieu of such a remedy, the
area “was not reasonably safe.” (Id. at 28.)
Defendant produced its own expert, Mr. Christopher Francisco. (Doc. 56 at 3.) He is a
licensed architect. (Id. at 3-4.) Mr. Francisco testified that the area in question did not violate the
ADA or any relevant building codes. 	(Id. at 11.) 	He explained that the ADA is not a “safety
standard” but is an “accessibility standard.” (Id. at 12.) Mr. Francisco testified that the area in
question is not a “flare” as “flares” are used when the travel of persons is expected “across the
ramp” whereas here the “accessible route . . . does not cross the ramp” but is “perpendicular to it.”
(Id. at 14.) 	Mr. Francisco testified that if the area in question is not a “flare” then the slope
requirements alluded to by Plaintiff’s expert do not apply. (See id.) Further, he testified that if the
area is “outside of the – if it’s outside the accessible path, the ADA doesn’t regulate it.” (Id. at
15.) 	Defendant’s expert refers to the area in question as a “relaxed curb return.” 	(Id. at 17.)
Defendant’s expert indicated that a curb return does not have slope requirements. (See id.) Mr.
Francisco additionally indicated that “this kind of thing is commonplace, and it would be done for
various different reasons.” (Id. at 18.)
Defendant’s expert also explained that “building codes” apply when “the building was
constructed.” (Id. at 20.) By contrast, the “International Property Maintenance Code applies [] to
existing buildings.” (Id.) In this case the City of Topeka adopted the 2021 International Property
Maintenance Code. (Id. at 21.) In Mr. Francisco’s opinion, the site complied with this code. (Id.
at 22.) 	The gist of Mr. Francisco’s testimony could be aptly summarized in his statement that
“when people navigate areas, exterior areas, parking lots, sidewalks, there is not an expectation
that everything is going to be perfectly flat and smooth. So, it’s incumbent upon the individual
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navigating the area to be paying attention and to understand and kind of do their own little risk
assessment as they’re utilizing the areas.” (Id. at 24.)
II. 	Conclusions of Law
Premises liability claims in the State of Kanas “require a plaintiff to show four well-known
elements—that a duty is owed to the plaintiff; that a breach of that duty has occurred; that the
breach of duty has caused the plaintiff's injury; and that damages have been suffered by the
plaintiff—in short: duty, breach, causation, and damages.” Corazzin v. Edward D. Jones & Co.,
L.P., 530 P.3d 445, 449 (Kan. Ct. App. 2023). Kansas courts have instructed that “the owner of a
business is not the insurer of the safety of its patrons” but the owner does have “a duty to warn of
any dangerous condition that the owner or operator knows about—or should know about—if
exercising reasonable care while tending to the business.” Id. (quoting Cunningham v. Braum’s
Ice Cream & Dairy Stores, 80 P.3d 35, 40 (Kan. 2003) (internal quotation marks omitted)).
For Plaintiff to “establish the existence of this duty, [he] must show that the owner or
operator had actual knowledge of the condition, or that the condition had existed for long enough
that in the exercise of reasonable care the owner or operator should have known of the condition.”
Id. There is an exception to this rule; a landowner has “no duty to warn of or to make safe any
dangerous conditions that are known or obvious to a visitor.” Bonnette v. Triple D Auto Parts Inc.,
409 P.3d 865, 871 (Kan. Ct. App. 2017) (citing Miller v. Zep Mfg. Co., 815 P.2d 506, 514 (Kan.
1991)). 	Still, that exception dissipates “if the visitor is likely to be distracted when confronted
with the dangerous condition and is, therefore, (1) not likely to discover the dangerous condition,
(2) likely to forget the presence of the dangerous condition, or (3) not likely to protect against the
dangerous condition.” Id. This distraction rule does not apply for “mere[] inattentive[ness].” Id.
at 872.
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For a condition to be “known” or “obvious” to a visitor, the visitor must have knowledge
of the existence of the condition and also “appeciat[e] [] the danger it involves.” Id. at 871 (quoting
Didde v. City of Chapman, No. 106,090, 2012 WL 3822735, at *3 (Kan. Ct. App. 2012) (internal
quotation marks omitted)). Crucially, this is a reasonable man standard and is assessed objectively.
Id. The question of law boils down to: would a reasonable person, “in the position of the visitor,
exercising ordinary perception, intelligence, and judgment” notice the dangerous condition. Id.
Here, the court holds that a reasonable person should have noticed the condition on
Defendant’s property as it was “known or obvious to a [reasonable] visitor.” Id. The court finds
this because the front of the curb is painted bright yellow and it is plain that the concrete, both on
the curb and behind it, slopes downward. (Pl. Ex. 3; Def. Ex. 803.) Along the route where Mr.
Currier testified he was walking, the yellow curb and the slope would have been right in front of
him. (Doc. 55 at 55; Pl. Ex. 3; Def. Ex. 803.) While one could argue the slope is slightly concealed
because the portion of concrete is painted solid grey, this is mitigated by the yellow paint on the
adjacent curb which indicates to the pedestrian walking that “there’s a change in elevation” and
this “visual cue”, in the court’s view, makes the slope more visible. 	(Pl. Ex. 21 at 95.) 	A
reasonable person would assume that the concrete immediately behind the painted curb would
slope at a similar or identical angle as the curb.
Put simply, Defendant Menard did not have a duty to Mr. Currier arising out of the curb
because even assuming the curb was “not reasonably safe” (Pl. Ex. 21 at 28), and therefore
constituted a dangerous condition, its existence was so open and obvious that a reasonable person
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exercising ordinary care should have been able to avoid whatever danger originated therefrom.3
Wellhausen v. Univ. of Kansas, 189 P.3d 1181, 1184 (Kan. Ct. App. 2008) (“However, the
Restatement advocates an objective test to determine whether a danger is known and obvious.”).
None of the exceptions to that rule apply in this case. 	Mr. Currier was not likely to be
distracted for any reason attributable to Menard, and therefore “(1) not likely to discover the
dangerous condition, (2) likely to forget the presence of the dangerous condition, or (3) not likely
to protect against the dangerous condition.” 	Bonnette, 409 P.3d at 871. 	In addition, these
exceptions are applied in “very limited circumstances.” Wellhausen, 189 P.3d at 1184. Instead,
this appears to be a classic case of “mere[] inattentive[ness].” Bonnette, 409 P.3d at 872. For mere
inattentiveness, a claim against Defendant cannot lie.
III. 	Judgment
For the foregoing reasons, the court directs the clerk to enter judgement for DEFENDANT.
IT IS SO ORDERED. Dated this 27th day of April, 2026.
s/ John W. Broomes
JOHN W. BROOMES
CHIEF UNITED STATES DISTRICT JUDGE
3 This is true even if the construction of the ramp violates applicable building codes or the ADA. For one, Plaintiff
did not plead a negligence per se claim but instead pled only simple negligence. See Shirley v. Glass, 308 P.3d 1, 5-
6 (Kan. 2013) (holding that Plaintiff had not pled a separate negligence per se claim but still evaluating whether
statutory violations could be used as evidence of the standard or care). Second, courts have discouraged the use of
the ADA in negligence per se actions “because its purpose is to prevent discrimination, not personal injuries.” Moore
v. Waffle House, Inc., No. 23-CV-5873-SAL, 2025 WL 1880244, at *6 (D.S.C. Apr. 15, 2025) (collecting cases).
With that in mind, the only use for the ADA or building codes is as evidence of the breach of a duty. Glass, 308 P.3d
at 5-6. But, as explained, there is no duty here because the danger was open and obvious, so any violation of the ADA
or applicable building codes is immaterial. Bonnette, 409 P.3d at 871 (“But a landowner generally has no duty to
warn of or to make safe any dangerous conditions that are known or obvious to a visitor.”).
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