Elisha Havens v. City of Middlesboro

Opinion

RENDERED: AUGUST 28, 2026; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2025-CA-1371-MR

ELISHA HAVENS APPELLANT

APPEAL FROM BELL CIRCUIT COURT v. HONORABLE KEITH A. NAGLE, JUDGE ACTION NO. 25-CI-00015

CITY OF MIDDLESBORO APPELLEE

OPINION

AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND CETRULO, JUDGES.

CETRULO, JUDGE: This appeal arises from an award of summary judgment in a negligence action and raises only one issue: the interpretation and application of KRS1 411.110. The Bell Circuit Court held that the failure of appellant Elisha Havens (“Havens”) to notify the City of Middlesboro (“the City”) of her injuries within 90 days from a fall, as required by KRS 411.110, barred her lawsuit filed

1 Kentucky Revised Statute.

one year after the fall. Havens asks us to reverse, arguing that KRS 411.110 does not apply because snow and ice are not defects in the condition of the sidewalk. Upon review of the applicable law, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND The facts are largely undisputed. On January 20, 2024, Havens was a patron of Shades Cafe and Steakhouse (“Shades Café”) in Middlesboro, Kentucky. She fell just outside of the establishment, allegedly due to slippery or icy conditions on the sidewalk. Havens sustained injuries from the fall. One year later, in January 2025, she filed suit against Shades Cafe and the City. The City responded with a motion for summary judgment on the grounds that, pursuant to KRS 411.110, Havens was required to provide notice to the City within 90 days of the incident. It is uncontested that notice was not provided. Rather, Havens argued she was not required to provide such notice under these circumstances. The circuit court disagreed and granted summary judgment to the City on September 23, 2025, stating only that:

It is undisputed the Plaintiff did not give the 90-day notice required by KRS 411.110. Because compliance with KRS 411.110 is a condition precedent to filing suit, the claims against the City of Middlesboro are hereby dismissed, with prejudice. The claims against the other defendant remains.

[sic] This is a final and appealable order. There is no just cause for delay.

This appeal followed.

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ANALYSIS

Our review of the grant of summary judgment herein is de novo.

Phelps v. Bluegrass Hosp. Mgmt., LLC, 630 S.W.3d 623, 627 (Ky. 2021) (quoting Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017)). Likewise, an issue concerning the interpretation of a statute is a question of law and is subject to de novo review. Wheeler v. City of Pioneer Village, 723 S.W.3d 764, 771 (Ky. 2025) (citing Kentucky Emp. Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007)).

The statute at issue in this case, KRS 411.110, is clear and concise, and holds that no action shall be maintained against any city, without notice as set forth in the statute. The statute further provides that such notice is mandated for “any injury growing out of any defect in the condition of any bridge, street, sidewalk, alley or other public thoroughfare[.]” KRS 411.110 (emphasis added). The injured party must provide the notice to the mayor, city clerk, or clerk of the board of aldermen. Id. This notice must be provided within 90 days of the occurrence for which damages are claimed. Id. The notice must include: (1) the time of and place where the injury was received; (2) the character and circumstances of the injury; and (3) a statement as to whether the person injured will claim damages from the city. Id.

Here, no notice was given to any of the above-mentioned individuals.

The first notice of injury was apparently the filing of the complaint, nearly one

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year later. Havens argues that the statute does not apply because her injury did not result from a “defect in the condition of a sidewalk” but rather from a natural accumulation of snow and ice on the sidewalk. She asserts that there would be no defective condition to repair and, therefore, the purpose of the statute does not apply. In response, the City argues that the legislature’s use of the word “any” in KRS 411.110 encompasses all conditions that might result in any claim that a sidewalk is unsafe.

Our courts have consistently and uniformly held that a plaintiff must strictly comply with the notice requirement of KRS 411.110. See City of Elsmere v. Brown, 180 S.W.2d 86, 87 (Ky. 1944) (citations omitted) (“The statute must be strictly complied with and even the filing of an action within the 90-day period, without giving the notice, is insufficient.”); City of Louisville v. Verst, 213 S.W.2d 517, 518 (Ky. 1948) (citation omitted) (“The statute providing for notice is mandatory, and must be strictly complied with . . . .”); City of Louisville v. O’Neill, 440 S.W.2d 265, 266 (Ky. 1969) (“The statute dealing with notices to cities must be strictly complied with.”). As succinctly stated in Berry v. City of Louisville, “[t]he giving of notice as required by the statute is mandatory and is a condition precedent to the bringing of a suit against the City. Moreover, the City’s actual or constructive notice of the defect . . . is not a substitute for notice. Literal

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compliance with KRS 411.110 is necessary.” 249 S.W.2d 818, 819 (Ky. 1952) (emphasis added) (citations omitted).

While the requirement to provide notice is firmly established by this precedent, Havens is arguing that ice is not a defect. However, our case law has clearly given a broad interpretation of the statute, including what constitutes a “defect.” In Galloway v. City of Winchester, the word “defect” was construed to mean “any defect, whether overhead or underfoot, which it is the duty of the city to correct to render the street or thoroughfare in a reasonably safe condition for travel by the public.” 184 S.W.2d 890, 893 (Ky. 1944).

In Hancock v. City of Anchorage, the injured party similarly asserted that the statute was confined to the protection of the city against defects inherent in the sidewalk and not applicable to a situation which might be temporary or the result of negligence by the city to maintain part of the public thoroughfare. 299 S.W.2d 794, 795 (Ky. 1957). There, the injured party argued that a loose lid on a city-owned water meter box was not a defect or condition that required statutory notice. Id. The appellate court upheld the summary judgment in favor of the city. Id. at 796.

In the more recent case of Stepp v. City of Pikeville, this Court held that notice was required and the city was properly granted summary judgment, despite the claim that the injury resulted from a temporary and recently landscaped

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area. 642 S.W.3d 741, 742 (Ky. App. 2022). In Denton v. City of Florence, the required notice was given within 90 days of the incident, even though the “defect” was allegedly slipping on rock salt. 301 S.W.3d 23, 25 (Ky. 2009).

Havens next argues that the purpose of the statute is to give cities the opportunity to investigate the scene of the accident and correct any defective condition that exists. She asserts that it would serve no purpose to give notice of any icy condition that would not exist by the time of the notice. As we explained in O’Neill, the purposes of KRS 411.110 are many. 440 S.W.2d at 266. It also serves to enable the City to investigate and evaluate the case so that if liability exists, it might have an opportunity to settle it without long and expensive litigation, and to give the City an opportunity to protect its funds against unjust and illegal claims. Id. The fact that there might be nothing for the City to do to remedy the icy condition alleged here does not negate the applicability of the statute, nor the overwhelming authorities requiring strict compliance with the same.

CONCLUSION

We have found no precedent to support Havens’s argument on appeal and rely upon well-established precedent to support the circuit court’s ruling that notice was a condition precedent to this claim against the City. Accordingly, the judgment is AFFIRMED.

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ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Thomas P. Miceli Bridget L. Dunaway Barbourville, Kentucky Christopher D. Gregory London, Kentucky