Carney v. Galt

OPINION TAYLOR, JUDGE: Stuart Dale Carney brings this appeal from a June 25, 2014, order of the Jefferson Circuit Court granting Rusty Galt and Julita Nord’s respective motions for summary judgment as concerns Carney’s premises liability and negligence claims arising from injuries sustained on June 9, 2012.1 For the reasons stated, we affirm in part, reverse in part, and remand. BACKGROUND The circuit court set out the relevant undisputed facts for this case in its order as follows: This case involves injuries to the Plaintiff when he ran onto the Defendants’ property on June 9, 2012[,] to retrieve a basketball. There are several facts which are undisputed in this case. The Plaintiff Carney resided at 12018 Rock Spring Drive in Jefferson County, Kentucky. Defendant Nord owned a single-family residence located at 12019 Rock Spring Drive. Defendant Nord leased this property, with an option to buy, to Defendant Galt. Defendant Galt tendered a video-taped interaction between he and Plaintiff which clearly established that the two neighbors are not on good terms. It is undisputed that Mr. Galt was constructing a fence on his leased property at the time of Plaintiffs injuries. Plaintiff stated in his deposition that he was aware that Defendant Galt was building a fence on his property. He further stated that he could see the fence being constructed from his home. By all accounts, Plaintiff Carney was playing basketball and drinking beer on the evening the incident occurred. The ball rolled into Defendant Galt’s yard and Plaintiff chased after it. As Plaintiff Carney grabbed for the ball, he tripped on posts and 2x4’s that were part of the fence construction and landed on a con — 509 — crete driveway. As a result of his fall, Plaintiff claims he sustained permanent injuries, permanent loss of bodily functions, medical bills and other expenses. (Citation omitted.) One additional fact not referenced by the circuit court that we find relevant to our review is that at the time of the accident, Carney was a guest on property owned by Sherri Moore, which is located immediately next door to Galt’s house on Rock Spring Drive. The basketball court that Carney was playing on at the time of the accident was located in Moore’s driveway, which is adjacent to Galt’s property where the fence was under construction. Additional facts relevant to our analysis will be set out in the discussion that follows. STANDARD OF REVIEW The standard of review on appeal of a summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure 66.03). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). Consequently, summary judgment should be cautiously applied and is not a substitute for a trial. It is appropriate only when it appears, as a matter of law, that it would be impossible for the respondent to produce evidence at trial warranting a favorable judgment. Id. ANALYSIS A. Landlord Liability The circuit court concluded that Julita Nord as landlord and owner of the residence being leased to Galt was not liable to Carney based upon the allegations set out in the amended complaint in this action. We agree. Upon leasing the property to Galt, and placing Galt in complete control of the premises, Nord’s only duty as a landlord was to warn Galt of known latent defects at the time that Galt leased the premises. See Carver v. Howard, 280 S.W.2d 708 (Ky. 1955). It has been a long standing rule in Kentucky that a tenant takes the premises as he finds them. Milby v. Mears, 580 S.W.2d 724 (Ky. App. 1979). In this case, the fence was being constructed by Galt on Nord’s property under his control pursuant to his lease with Nord. As a general proposition in Kentucky, a landlord is not liable for the negligence of his tenant in the use of a leased premises. Farmer v. Modern Motors, Co., 235 Ky. 483, 31 S.W.2d 716 (1930). The Supreme Court has recently carved out one exception to this rule as concerns the dog-bite liability statute, Kentucky Revised Statutes (KRS) 258.235(4). Benningfield v. Zinsmeister, 367 S.W.3d 561 (Ky. 2012). That exception is not applicable to this case. We can find no authority in Kentucky jurisprudence that would create liability against Nord based upon the allegations set out in the amended complaint in this action. Accordingly we affirm the summary judgment granted by the circuit court in favor of Nord. B. Liability of Rusty Galt The circuit court concluded that Carney was a trespasser on Galt’s property to whom there was no duty of care owed, and that further the fence was an open and obvious condition that precluded liability even if there was a duty owed to Carney by Galt. We will review each of these findings in light of the established facts in this case and in conjunction with the status of premises liability law in Ken — 510 — tucky, beginning with the open and obvious doctrine. Prior to 2010 in Kentucky, the facts of this case would have easily fit into an open and obvious doctrine analysis that would have precluded any liability by Galt to Carney regardless of Carney’s status when coming onto Galt’s property. Under this doctrine, a land possessor could not be held liable to a visitor on his property, regardless of the visitor’s status, who was injured by open and obvious dangers that were known to the visitor or otherwise so obvious that the visitor would be expected to discover them. Rogers v. Prof'l Golfers Ass’n of Am., 28 S.W.3d 869 (Ky. App. 2000). The fence was clearly an open and obvious condition based upon the record in this case. However, the Kentucky Supreme Court has recently modified (and perhaps abolished) the open and obvious doctrine beginning with Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010) and its progeny.2 In McIntosh, the Kentucky Supreme Court adopted the position of the Restatement (Second) of Torts with respect to open and obvious conditions. That position is stated as follows: A possessor of land is not liable to his invitees fop physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts § 343A(1) (1965). The Supreme Court further expounded upon its position in McIntosh in Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013). In explaining the retreat from the open and obvious doctrine, the Court stated: Traditionally, the open-and-obvious doctrine stated, “land possessors cannot be held liable to invitees who are injured by open and obvious dangers.” As a result, if a plaintiff was injured by an open and obvious hazard, the landowner, regardless of any negligent conduct on its part, had a complete defense to any asserted liability. But, in McIntosh, we noted that a growing majority of states has moved “away from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions” and, instead, adopted the Restatement (Second) of Torts’s approach to allow the jury to assess comparative fault. Id. at 906 (citations omitted). In Shelton, 413 S.W.3d 901, the Supreme Court went on to explain: A target for criticism for well over fifty years, the open-and-obvious doctrine persists in our jurisprudence. In McIntosh, we took steps to ameliorate the harsh effect of the open-and-obvious doctrine for injured persons seeking recovery. We adopted the Restatement (Second) of Torts Section 343A and held that “lower courts should not merely label a danger as ‘obvious’ and then deny recovery. Rather [the courts] must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger.” According to Section 343A, harm to the invitee is reasonably foreseeable despite the obviousness of the condition “where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious or will forget what he has discovered, or — 511 — fail to protect himself against it” and, also, “where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” Under this modern approach to cases dealing with open-and-obvious dangers, there is no duty for the land possessor to warn of the dangers; but this “does not mean there is no duty at all[.]” Indeed, “even where the condition is open and obvious, a landowner’s duty to maintain property in a reasonably safe condition is not obviated[.]” [[Image here]] [T]he existence of an open and obvious danger does not pertain to the existence of duty. Instead, Section 343A involves a factual determination relating to causation, fault, or breach but simply does not relate to duty. Id. at 907 (citations omitted). Additionally, in Shelton, the Supreme Court noted that it did not speak “clearly enough” in McIntosh and emphasized that an open and obvious danger did not pertain to the existence of a duty, and at the very least a land possessor’s duty of care was not eliminated because of the obviousness of the danger. Shelton, 413 S.W.3d 901; McIntosh, 319 S.W.3d 385. The Supreme Court went on to explain in Shelton the land possessor’s duty of care as follows: First and foremost, a land possessor is subject to the general duty of reasonable care. “The concept of liability for negligence expresses a universal duty owed by all to all.” And “every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury.” Of course, possessors of land are not required to ensure the safety of individuals invited onto their land; but possessors of land are required to maintain the premises in a reasonably safe condition. Shelton, 413 S.W.3d at 908 (citations omitted). Based upon the Supreme Court’s modification of the open and obvious doctrine to conform to comparative fault principles, we do not believe, albeit reluctantly, that the doctrine precludes liability against Galt under the facts of this case, and thus we must look to Carney’s status upon entering Galt’s property in determining whether summary judgment was properly granted for Galt. Kentucky classifies a visitor upon property as one of the following: trespasser, licensee, or invitee. Scifres, 916 S.W.2d 779. A person who comes upon the property of another without any legal right to do so is a trespasser. Hardin v. Harris, 507 S.W.2d 172 (Ky. 1974). A person who comes on the land of another with the possessor’s consent is a licensee. Id. And, a person with business dealings with the possessor who comes upon the property is an invitee. Id. As noted, the circuit court concluded that Carney was a trespasser upon Galt’s property at the time of his injuries and thus could not recover damages from Galt, as a matter of law. KRS 381.232.3 The court relied in part on a video that established that Carney and Galt were not on “good terms” at the time of the alleged trespass. However, the circuit court did not address what would appear to be most — 512 — relevant in this analysis—the relationship of Galt with his next door neighbor, Sherri Moore, and her guests, specifically as pertains to their ongoing relationship regarding access to Galt’s property, given the proximity of the basketball court on Moore’s property to Galt’s property. In other words, was it customary for those who routinely used Moore’s basketball court, including other neighbors, to have regular access to Galt’s property to retrieve basketballs that left Moore’s property during its use? The record clearly establishes that Galt had not posted “no trespassing” signs on his property to give notice that entry was prohibited on his property by all. Customary or routine access by guests of Sherri Moore to Galt’s property could look to an implication of consent or acquiesce and otherwise create the status of licensee for those utilizing such access. Bradford v, Clifton, 379 S.W.2d 249 (Ky. 1964); see also, Louisville Baseball Club v. Butter, 289 Ky, 785, 160 S.W.2d 141 (1942). Based upon our thorough review of the record on appeal, the status of Carney as a trespasser or licensee on Galt’s property is clearly a disputed fact that must be determined by the trier of fact.4 Perry v. Williamson, 824 S.W.2d 869 (Ky. 1992) (citing John S. Palmore, Kentucky Instructions To Juries, Civil § 24.09 (2d ed. 1989)).5 There being disputed facts regarding Carney’s status on Galt’s property, summary judgment was prematurely granted by the circuit court in favor of Galt. On remand, if the trier of fact determines Carney was a trespasser, then there would be no duty owed nor could any liability for damages accrue against Galt. KRS 381.232. However, if Carney’s status is held to be that of licensee, then the trier of fact will be required to determine if Galt breached his duty of care to Carney to maintain his premises in a reasonably safe condition and to award damages, if any, under a comparative fault analysis. CONCLUSION In conclusion, we affirm the circuit court’s grant of summary judgment to Ju-lita Nord as landlord of Galt; we reverse the summary judgment in favor of Galt and remand for proceedings consistent with this opinion. If the trier of fact concludes that Carney was a trespasser, there shall be no liability for Carney’s damage claim against Galt in accordance with KRS 381.232. Otherwise, the case shall proceed as a traditional comparative fault tort case. NICKELL, JUDGE, CONCURS. ACREE, JUDGE, CONCURS AND WRITES SEPARATE OPINION. Footnotes [1] Julita Nord is Trustee for 12019 Rock Spring Drive Land Trust which owns the real property where Stuart Dale Carney’s injuries occurred. This property was being leased by the Trust to Rusty Galt at the time of the incident that resulted in Carney’s injuries. [2] See also: Dick's Sporting Goods, Inc., v. Webb, 413 S.W.3d 891 (Ky. 2013); Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013); and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015). [3] Under Kentucky Revised Statutes (KRS) 381.231(2), the definition of an owner of real estate includes one who possesses any interest in the real estate or is a lawful occupant of the same. Galt would thus be protected against claims by trespassers under KRS 381.232. [4] The distinction between a licensee and an invitee is often times shadowy and indistinct. Scuddy Coal Co., Inc. v. Couch, 274 S.W.2d 388 (Ky. 1954). However, as noted by the Supreme Court in Shelton, 413 S.W.3d 901 (quoting Hardin v. Harris, 507 S.W.2d 172, 175-76 (Ky. 1974)): In such a case whether the person injured was in invitee or a licensee should not have any bearing upon the standard of care required of the possessor of the premises. His duty in either event was to conduct his activities with reasonable care for the safety of the appellant. Shelton, at 909, n. 28. [5] The current version is now found in John S. Palmore and Donald P. Cetrulo, Kentucky Instructions To Juries, Civil § 24.12 (5th ed. 2014).