Background
Teresa Martinez sued the Shelbyville Municipal Water & Sewer Commission after she fell on April 11, 2022, when she stepped on a water meter in her front yard while crossing her lawn diagonally to reach her stepsister’s car. She “fell in a hole” up to her knee when the meter cover was either partially dislodged, fully dislodged, or missing entirely—she could not say which. Martinez’s family had trimmed the grass around the meter roughly a couple of days before the fall without noticing any problem with the cover. Commission records showed the meter had last been read on March 15, 2022, and no unsecured-cover reports were on file before Martinez’s call to the Commission the morning of her fall.
Martinez filed her negligence complaint in December 2022, asserting both vicarious liability and claims for negligent hiring, training, and supervision of the unidentified employees who read her meter. She was deposed in February 2024 and, when asked at a June 2024 hearing whether she needed additional discovery, told the court she was ready to proceed to trial. After the Commission moved for summary judgment, Martinez filed a responsive affidavit claiming—for the first time—that she had personally watched Ring doorbell livestream footage on two separate occasions showing a Commission employee removing the meter cover and failing to replace it correctly. She offered no dates, no saved footage, no documentation from her internet provider, and no explanation for why she had never mentioned the footage during her deposition or reported the unsecured meter to the Commission despite nine foster children living in her home at the time.
The Shelby Circuit Court granted summary judgment to the Commission on April 2, 2025, and dismissed the complaint. Martinez timely appealed.
The Court’s Holding
The Kentucky Court of Appeals affirmed the grant of summary judgment in all respects, with all three judges concurring. On the threshold issue of the unidentified employees, the court found Martinez had waived those claims by failing to identify the employees, never amending her complaint to name them, and failing to address the arguments against employee liability either at the trial court level or in her appellate brief, as required by RAP 32(A)(4).
On the core negligence claim, the court applied the established Kentucky rule that a water company cannot be liable for injuries absent actual or constructive notice of the dangerous condition. Both parties conceded no actual notice existed. The sole question was therefore whether the hazardous condition had persisted long enough to impute constructive notice to the Commission. The court held that Martinez produced no competent evidence sufficient to create a genuine issue of material fact on that question.
The critical evidentiary ruling concerned Martinez’s post-deposition affidavit. Under Kentucky law, a post-deposition affidavit is admissible to explain deposition testimony, but an affidavit that merely contradicts prior sworn testimony cannot be used to manufacture a genuine issue of material fact sufficient to defeat summary judgment. The court found Martinez’s affidavit fell squarely into the prohibited category: rather than clarifying anything she had said at deposition, it introduced an entirely new and inconsistent fact pattern—careful monitoring of the meter via Ring camera versus her deposition admission that she “really didn’t pay attention” to the meter at all. Because the affidavit was unsubstantiated, raised for the first time nearly two years post-injury, and flatly contradicted her prior sworn testimony, the circuit court correctly disregarded it.
Key Takeaways
- A Kentucky municipal water utility cannot be held liable for a premises-liability injury without proof that it had actual or constructive notice of the dangerous condition; the plaintiff bears the burden of presenting affirmative evidence on this element to survive summary judgment.
- A post-deposition affidavit that does not clarify or explain deposition testimony but instead introduces a wholly new and contradictory account will be disregarded under Kentucky’s sham-affidavit doctrine and cannot create a triable issue of fact.
- Litigants who fail to identify unknown defendants, do not amend their complaints, and do not address related arguments in their appellate briefs risk waiving those claims entirely under RAP 32(A)(4).
- Unpreserved and undocumented digital evidence (here, Ring camera footage) referenced only in a late-stage affidavit, with no explanation for its non-preservation, carries no evidentiary weight in defeating a summary judgment motion.
Why It Matters
This decision reinforces the high evidentiary bar plaintiffs must clear to establish constructive notice against municipal utilities in Kentucky, particularly where family members near the alleged hazard shortly before the incident observed nothing amiss and no independent witnesses corroborate the plaintiff’s account. Defense practitioners can cite this case for the proposition that a plaintiff’s own prior deposition admissions set a floor that cannot later be walked back through a convenient affidavit filed only after a summary judgment motion is on file.
More broadly, the opinion is a useful reminder of the limits of self-serving statements in Kentucky summary judgment practice. As digital evidence—doorbell cameras, home security systems—becomes ubiquitous in civil litigation, courts will scrutinize closely any claim of footage that was never preserved, never mentioned in discovery, and surfaces only when a dispositive motion threatens the case. Counsel representing plaintiffs in premises-liability cases should identify and preserve all potentially relevant digital footage at the outset of the case and disclose it promptly in discovery to avoid the credibility pitfall on display here.