RENDERED: MARCH 4, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0216-MR
ANN WELLMAN APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE JEAN C. LOGUE, JUDGE ACTION NO. 19-CI-00467
ROBERT WAYNE BALDWIN; AND STATE FARM FIRE & CASUALTY COMPANY APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
MAZE, JUDGE: Appellant Ann Wellman challenges the summary dismissal of
her claim for damages stemming from an injury allegedly incurred on the property
of her neighbor, appellee Robert Wayne Baldwin. Wellman argues that entry of
summary judgment was premature due to the existence of genuine issues of material fact as to her status on the property at the time of her injury and as to the
nature of the dangerous condition Baldwin allowed to exist on his property.
Because we are convinced that the question of Wellman’s status falls squarely
within the analysis this Court set out in Carney v. Galt, 517 S.W.3d 507 (Ky. App.
2017), we reverse the entry of summary judgment and remand the case for further
proceedings.
The facts are not complex. Wellman and Baldwin own adjoining
property and have been neighbors for at least twenty years. In August 2018,
Wellman fell into a posthole Baldwin had dug to erect a fence between their
respective properties and sustained an injury to her knee which required surgery
for a kneecap replacement. At the time of the accident, Baldwin had been in the
process of building a fence between the parties’ properties for approximately two
years. Prior to commencing the project, Baldwin had the line surveyed and staked.
He thereafter consulted with Wellman about the location of the fence, with the pair
ultimately agreeing that Baldwin would construct the fence approximately two feet
inside the line to avoid any question of encroachment on Wellman’s land. Baldwin
then dug evenly-spaced postholes along the agreed upon line. At the time of
Wellman’s injury, the fence was not complete but there were postholes in a straight
line at regular intervals.
-2- Thereafter, in July 2019, Wellman filed a complaint alleging that
Baldwin had permitted a dangerous and defective condition to exist on his
property; that he failed to maintain his property in a reasonably safe condition; that
he failed to warn and protect Wellman from the dangerous and defective condition;
and that he failed to fix or repair a known dangerous and hazardous condition, all
of which were substantial factors in causing her injury.
In response, Baldwin asserted that Wellman’s claims were barred by
her status as a trespasser on his property and the fact that the alleged dangerous
condition of property was open and obvious. Baldwin subsequently moved for
summary judgment on the basis that Wellman’s own deposition testimony
established that she was a trespasser at the time of the accident and that she had
been aware of the open and obvious nature of the postholes along the fence line for
the previous two years.
This appeal follows the circuit court’s grant of summary judgment
dismissing Wellman’s complaint against Baldwin with prejudice. As an initial
matter, we acknowledge our Supreme Court’s reiteration of the well-settled rules
regarding entry of summary judgment:
We must first begin by reviewing the standards to be used when handling summary judgment. Summary judgment is to be “cautiously applied and should not be used as a substitute for trial.” Granting a motion for summary judgment is an extraordinary remedy and should only be used “to terminate litigation when, as a
-3- matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” The trial court must review the evidence, not to resolve any issue of fact, but to discover whether a real fact issue exists. This review requires the facts be viewed in the light most favorable to the party opposing summary judgment.
Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 905 (Ky. 2013)
(footnotes omitted). The Supreme Court also emphasized that the term
“impossible” is to be used in a practical, not an absolute sense. Id. at 905 n.4. In
this case, the facts must be viewed in a light most favorable to Wellman. Finally,
appellate review of a motion for summary judgment only involves questions of law
and “a determination of whether a disputed material issue of fact exists.” Id. at
905. Therefore, our review is de novo with no need to defer to the circuit court’s
decision. Id.
With these principles in mind, we turn to an examination of the circuit
court judgment. Although Wellman complains of the lack of specific findings
concerning the basis for its decision, it is well-settled that “there is no procedural
requirement for the court, in rendering a summary judgment, to attach findings of
fact or conclusions. CR[1] 52.01; CR 56.01.” Wilson v. Southward Investment
Company No. 1, 675 S.W.2d 10, 13 (Ky. App. 1984). While specific findings of
1 Kentucky Rules of Civil Procedure.
-4- fact and conclusions of law are preferable for purposes of appellate review, we are
nevertheless able to discern from the record the propriety of the circuit court’s
decision.
The focus of our analysis is Wellman’s contention that summary
judgment was premature. She insists that genuine issues of material fact exist as
to: 1) whether she was, in fact, a trespasser on Baldwin’s property; and 2) whether
Baldwin breached his duties to her. Wellman also maintains that the summary
judgment was granted before discovery had been completed.
We commence with Wellman’s argument that she was not a trespasser
at the time of her injury, but an invitee or licensee. She supports that contention by
citing her deposition testimony that the neighbors in the rural community had
established a sort of implied consent to access each other’s property, if necessary.
She testified that she had been on Baldwin’s property at least 10 times without him
voicing objection, once to rescue his puppy which had become trapped and was
whining, other times to retrieve her grandchild’s toys which had ended up on
Baldwin’s property, and other times to converse with Baldwin and his wife. On
the other hand, Baldwin’s deposition testimony disputed Wellman’s depiction of
the neighborly “implied-consent” arrangement stating that the two neighbors had
little to do with each other over the years, and alleging it was more of a “you stay
on your side and I’ll stay on mine” arrangement. He specifically cited one incident
-5- in which he mowed a portion of Wellman’s grass as a neighborly gesture and she
informed him she did not appreciate him being on her property or mowing her
grass.
In Carney, 517 S.W.3d at 511, this Court set out the traditional rule
applicable to premises liability cases:
Kentucky classifies a visitor upon property as one of the following: trespasser, licensee, or invitee. Scifres [v. Kraft], 916 S.W.2d 779 [(Ky. App. 1996)].
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RENDERED: MARCH 4, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0216-MR
ANN WELLMAN APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE JEAN C. LOGUE, JUDGE ACTION NO. 19-CI-00467
ROBERT WAYNE BALDWIN; AND STATE FARM FIRE & CASUALTY COMPANY APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
MAZE, JUDGE: Appellant Ann Wellman challenges the summary dismissal of
her claim for damages stemming from an injury allegedly incurred on the property
of her neighbor, appellee Robert Wayne Baldwin. Wellman argues that entry of
summary judgment was premature due to the existence of genuine issues of material fact as to her status on the property at the time of her injury and as to the
nature of the dangerous condition Baldwin allowed to exist on his property.
Because we are convinced that the question of Wellman’s status falls squarely
within the analysis this Court set out in Carney v. Galt, 517 S.W.3d 507 (Ky. App.
2017), we reverse the entry of summary judgment and remand the case for further
proceedings.
The facts are not complex. Wellman and Baldwin own adjoining
property and have been neighbors for at least twenty years. In August 2018,
Wellman fell into a posthole Baldwin had dug to erect a fence between their
respective properties and sustained an injury to her knee which required surgery
for a kneecap replacement. At the time of the accident, Baldwin had been in the
process of building a fence between the parties’ properties for approximately two
years. Prior to commencing the project, Baldwin had the line surveyed and staked.
He thereafter consulted with Wellman about the location of the fence, with the pair
ultimately agreeing that Baldwin would construct the fence approximately two feet
inside the line to avoid any question of encroachment on Wellman’s land. Baldwin
then dug evenly-spaced postholes along the agreed upon line. At the time of
Wellman’s injury, the fence was not complete but there were postholes in a straight
line at regular intervals.
-2- Thereafter, in July 2019, Wellman filed a complaint alleging that
Baldwin had permitted a dangerous and defective condition to exist on his
property; that he failed to maintain his property in a reasonably safe condition; that
he failed to warn and protect Wellman from the dangerous and defective condition;
and that he failed to fix or repair a known dangerous and hazardous condition, all
of which were substantial factors in causing her injury.
In response, Baldwin asserted that Wellman’s claims were barred by
her status as a trespasser on his property and the fact that the alleged dangerous
condition of property was open and obvious. Baldwin subsequently moved for
summary judgment on the basis that Wellman’s own deposition testimony
established that she was a trespasser at the time of the accident and that she had
been aware of the open and obvious nature of the postholes along the fence line for
the previous two years.
This appeal follows the circuit court’s grant of summary judgment
dismissing Wellman’s complaint against Baldwin with prejudice. As an initial
matter, we acknowledge our Supreme Court’s reiteration of the well-settled rules
regarding entry of summary judgment:
We must first begin by reviewing the standards to be used when handling summary judgment. Summary judgment is to be “cautiously applied and should not be used as a substitute for trial.” Granting a motion for summary judgment is an extraordinary remedy and should only be used “to terminate litigation when, as a
-3- matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” The trial court must review the evidence, not to resolve any issue of fact, but to discover whether a real fact issue exists. This review requires the facts be viewed in the light most favorable to the party opposing summary judgment.
Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 905 (Ky. 2013)
(footnotes omitted). The Supreme Court also emphasized that the term
“impossible” is to be used in a practical, not an absolute sense. Id. at 905 n.4. In
this case, the facts must be viewed in a light most favorable to Wellman. Finally,
appellate review of a motion for summary judgment only involves questions of law
and “a determination of whether a disputed material issue of fact exists.” Id. at
905. Therefore, our review is de novo with no need to defer to the circuit court’s
decision. Id.
With these principles in mind, we turn to an examination of the circuit
court judgment. Although Wellman complains of the lack of specific findings
concerning the basis for its decision, it is well-settled that “there is no procedural
requirement for the court, in rendering a summary judgment, to attach findings of
fact or conclusions. CR[1] 52.01; CR 56.01.” Wilson v. Southward Investment
Company No. 1, 675 S.W.2d 10, 13 (Ky. App. 1984). While specific findings of
1 Kentucky Rules of Civil Procedure.
-4- fact and conclusions of law are preferable for purposes of appellate review, we are
nevertheless able to discern from the record the propriety of the circuit court’s
decision.
The focus of our analysis is Wellman’s contention that summary
judgment was premature. She insists that genuine issues of material fact exist as
to: 1) whether she was, in fact, a trespasser on Baldwin’s property; and 2) whether
Baldwin breached his duties to her. Wellman also maintains that the summary
judgment was granted before discovery had been completed.
We commence with Wellman’s argument that she was not a trespasser
at the time of her injury, but an invitee or licensee. She supports that contention by
citing her deposition testimony that the neighbors in the rural community had
established a sort of implied consent to access each other’s property, if necessary.
She testified that she had been on Baldwin’s property at least 10 times without him
voicing objection, once to rescue his puppy which had become trapped and was
whining, other times to retrieve her grandchild’s toys which had ended up on
Baldwin’s property, and other times to converse with Baldwin and his wife. On
the other hand, Baldwin’s deposition testimony disputed Wellman’s depiction of
the neighborly “implied-consent” arrangement stating that the two neighbors had
little to do with each other over the years, and alleging it was more of a “you stay
on your side and I’ll stay on mine” arrangement. He specifically cited one incident
-5- in which he mowed a portion of Wellman’s grass as a neighborly gesture and she
informed him she did not appreciate him being on her property or mowing her
grass.
In Carney, 517 S.W.3d at 511, this Court set out the traditional rule
applicable to premises liability cases:
Kentucky classifies a visitor upon property as one of the following: trespasser, licensee, or invitee. Scifres [v. Kraft], 916 S.W.2d 779 [(Ky. App. 1996)]. 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.
The Carney Court also cited KRS2 381.232 which provides that owners of land
“shall not be liable to any trespasser for injuries sustained by the trespasser on the
real estate of the owner, except for injuries which are intentionally inflicted by the
owner or someone acting for the owner[,]” before applying the classifications and
the statute to a factual situation not dissimilar from the case at bar.
Carney was injured while attempting to retrieve a basketball which
had rolled onto Galt’s property from a court in Galt’s neighbor’s driveway. It was
undisputed that at the time Carney was injured, Galt was constructing a fence on
his leased property. Carney admitted in his deposition that he was aware that Galt
2 Kentucky Revised Statute.
-6- was constructing a fence on his property and further stated that he could see the
fence being built from his home. On the evening the incident occurred, Carney
was playing basketball and drinking beer when the ball rolled into Galt’s yard and
Carney chased after it. As he grabbed for the ball, Carney tripped on posts and
2x4s that were part of the fence construction project and landed on a concrete
driveway, allegedly sustaining permanent injuries.
The circuit court entered summary judgment on Carney’s claim for
damages on the basis that Carney was a trespasser on Galt’s property and thus Galt
owed Carney no duty of care. The circuit court also concluded that the fact that the
fence was an open and obvious condition precluded liability even if Galt had owed
a duty to Carney. However, upon review, this Court found particularly relevant to
its analysis the fact that at the time of the accident, Carney was a guest on property
owned by Sherri Moore. The basketball court in question was located in Moore’s
driveway, immediately adjacent to Galt’s property where the fence was under
construction.
In reversing the entry of summary judgment, the Carney Court
concluded that a genuine issue of material fact existed as to Carney’s status on
Galt’s property at the time of his injury:
However, the circuit court did not address what would appear to be most relevant in this analysis–the relationship of Galt with his next door neighbor, Sherri Moore, and her guests, specifically as pertains to their
-7- 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.
517 S.W.3d at 511-12 (citations omitted) (emphasis added).
Because the depositions in this record disclose disputed facts
regarding Wellman’s status on Baldwin’s property at the time of her injury, we are
convinced that summary judgment was prematurely granted. On remand, if the
trier of fact determines that Wellman was a trespasser on Baldwin’s property, then
there would be no duty owed and no liability for damages. KRS 381.232.
However, if Wellman is found to have been a licensee, then the trier of fact will be
required to determine if Baldwin breached his duty of care to maintain his premises
in a reasonably safe condition and to award Wellman damages, if any, under a
comparative fault analysis.
Accordingly, the summary judgment dismissing Wellman’s complaint
is hereby reversed and the case remanded for further proceedings consistent with
this Opinion.
-8- ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE ROBERT WAYNE BALDWIN: Christopher Lee Coffman Liberty, Kentucky J. Stan Lee Katie Bouvier Robert Morrin Lexington, Kentucky Richmond, Kentucky
-9-