Erika Boyd v. Tates Creek Crossings

• Court: Court of Appeals of Kentucky
• Decided: March 21, 2024
• Docket: 2023 CA 000321
• Status: Unknown

Opinion

RENDERED: MARCH 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-0321-MR

ERIKA BOYD APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 21-CI-02714

TATES CREEK CROSSINGS; AND PARKWAY APARTMENTS, L.L.C. APPELLEES

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND TAYLOR, JUDGES.

ECKERLE, JUDGE: Appellant, Erika Boyd (“Boyd”), appeals from a summary

judgment by the Fayette Circuit Court dismissing her premises-liability claims

against Appellees, Tates Creek Crossings (“Tates Creek”) and Parkway

Apartments, L.L.C. (“Parkway”). She argues that summary judgment was

inappropriate under the current standard for open-and-obvious conditions. We agree, determining that the current state of the law, which has changed measurably

over the decades, provides that dismissal based on an open-and-obvious condition

is warranted only when the evidence clearly establishes that Boyd’s conduct in the

face of an open-and-obvious hazard was the only cause of her injury, or when it is

beyond dispute that the landowner took all reasonable steps to address or warn of

the dangerous condition. Because there were genuine issues of material fact on

both issues, we conclude that summary judgment was improper. Hence, we

reverse and remand for further proceedings on the merits of Boyd’s claims.

For purposes of this appeal, the following facts are not in dispute.

Boyd leased an apartment at Tates Creek in Lexington, Fayette County, Kentucky.

Parkway has an ownership interest in the apartment complex. In February 2021,

Lexington experienced several days of snow and ice. Parkway had previously

contracted with Grassmasters for turf maintenance and snow removal. Pursuant to

this contract, Grassmasters undertook the responsibility to remove snow and ice

from the Tates Creek parking lot and walkways.

During the early morning of February 21, 2021, several days after the

snowfall ended, some snow and ice remained on the ground and portions of the

parking lot at Tates Creek. The air temperature remained below freezing for much

of this time as well. In her deposition testimony, Boyd stated that she was walking

to her car when she encountered ice on the walkway. She also observed ice on the

-2- parking lot near her car’s passenger-side door. To avoid the ice, Boyd walked

through an area of snow-covered grass bordering the parking lot. While

approaching the rear of her car, Boyd slipped and fell, allegedly sustaining injuries.

On September 8, 2021, Boyd filed a complaint against Tates Creek

and Parkway, asserting claims of negligence based on premises liability.

Specifically, Boyd alleged that Tates Creek and Parkway breached their duties to

keep the premises in a reasonably safe condition. After a period of discovery,

Tates Creek and Parkway moved for summary judgment on three related grounds.

First, they argued that they had no duty to protect Boyd against an “open and

obvious” danger, such as snow and ice. Second, they asserted that they exercised

due care between the time of snow event and Boyd’s fall. And third, they argued

that comparative negligence was not appropriate in the absence of showing of

negligence.

After considering the parties’ arguments and briefs, the Trial Court

granted the motion for summary judgment. The Trial Court agreed with Tates

Creek and Parkway that the accumulation of snow and ice was a natural outdoor

hazard that was obvious to Boyd. The Trial Court held that, by choosing to cut

through the grassy area, Boyd failed to take action to avoid the hazard.

Consequently, the Trial Court concluded that Tates Creek and Parkway could not

-3- have breached any duty they owed to Boyd. Boyd now appeals from the judgment

dismissing her claims. Additional facts will be set forth below as necessary.

The sole question presented on appeal is whether Tates Creek and

Parkway were entitled to summary judgment as a matter of law. “The proper

function of summary judgment is to terminate litigation when, as a 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.” Steelvest, Inc. v. Scansteel Service

Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is appropriate

“if the pleadings, depositions, answers to interrogatories, stipulations, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” CR1 56.03. 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 her favor. Steelvest, 807 S.W.2d at 480. The Trial

Court must examine the evidence, not to decide any issue of fact, but to discover if

a real issue exists. Id. Because a summary judgment involves no fact-finding, this

Court’s review is de novo, in the sense that we owe no deference to the conclusions

of the Trial Court. Scrifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

1 Kentucky Rules of Civil Procedure.

-4- In any cause of action based on negligence, a plaintiff bears the

burden of establishing a duty on the part of a defendant, breach of that duty, and a

causal connection between the breach of the duty and an injury suffered by the

plaintiff. Mullins v. Commonwealth Life Insurance Co., 839 S.W.2d 245, 247 (Ky.

1992). Duty presents a question of law, while breach and injury are fact questions

for a jury to decide. Causation is a mixed question of fact and law. Pathways, Inc.

v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003). “If no duty is owed by the

defendant to the plaintiff, there can be no breach thereof, and therefore no

actionable negligence.” Ashcraft v. Peoples Liberty Bank & Trust Co., Inc.,724

S.W.2d 228, 229 (Ky. App. 1986).

While the basic law regarding negligence requires the existence of a

duty, the law regarding premises liability supplies the nature and scope of that

duty. Lewis v. B & R Corporation, 56 S.W.3d 432 (Ky. App. 2001). Generally

speaking, a possessor of land owes a duty to an invitee2 to discover unreasonably

dangerous conditions on the land and either eliminate or warn of them. See Dick’s

2 A person is an invitee if: (1) she enters by invitation, express or implied; (2) her entry is connected to the owner’s business or an activity the owner conducts or permits to be conducted on his land; and (3) there is mutuality of benefit to the owner. West v. KKI, L.L.C., 300 S.W.3d 184, 190 (Ky. App. 2008) (citing Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 491-92 (Ky. App. 1999)). As a tenant of Tates Creek, there is no question that Boyd was an invitee on the property.

-5- Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, 897 (Ky. 2013); Shelton v.

Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 909 (Ky. 2013).

In this case, the Trial Court relied heavily on PNC Bank, Kentucky,

Inc. v. Green, 30 S.W.3d 185 (Ky. 2000), which involved similar factual and legal

issues. The plaintiff in PNC Bank slipped and fell on an icy sidewalk in front the

defendant’s bank. In affirming the dismissal of the plaintiff’s negligence claims,

our Supreme Court first noted that “the current state of the law in Kentucky

regarding outdoor natural hazards . . . establishes that ‘natural outdoor hazards

which are as obvious to an invitee as to the owner of the premises do not constitute

unreasonable risks to the former which the landlord has a duty to remove or warn

against.’” Id. at 186 (citing Standard Oil Company v. Manis, 433 S.W.2d 856, 858

(Ky. 1968)). Because the risk of snow and ice on the sidewalk was open and

obvious to the plaintiff, the Court held that the bank was entitled to summary

judgment. Id. at 187.

However, in Shelton v. Kentucky Easter Seals Society, supra, the

Kentucky Supreme Court subsequently rejected the foundations of the holding of

PNC Bank. That Court held that, for open-and-obvious premises-liability cases,

the foreseeability analysis formerly conducted under both the duty and breach

elements of a claim of negligence would instead apply only to the breach element.

Id., 413 S.W.3d at 914. That Court emphasized that a land possessor’s general

-6- duty of ordinary care is not eliminated simply because a hazard is obvious. Id. at

911. The question rather, is whether the landowner could reasonably foresee a

land entrant proceeding in the face of the danger, which is relevant to the broader

question whether the landowner breached the universal duty of reasonable care.

(“[T]he foreseeability of the risk of harm should be a question normally left to the

jury under the breach analysis.” Id. at 914.) In so holding, that Court reasoned

that owners of premises always have a legal duty due to “the landowner-invitee

relationship and general duty of reasonable care applicable to landowners.” Id. at

908. Therefore, instead of starting with addressing whether harm caused by an

obvious hazard was foreseeable enough to create a duty, the “analysis will almost

always begin with the breach question, given the broad sweep of the general duty

of reasonable care.” Id.

And in Carter v. Bullitt Host, L.L.C., 471 S.W.3d 288 (Ky. 2015), the

Kentucky Supreme Court extended the holding in Shelton from only man-made

open-and-obvious cases to naturally-occurring open-and-obvious cases. Id. at 297.

As in the present case, the plaintiff in Carter suffered injury by slipping on ice that

had accumulated on a parking lot. Id. at 290. The Supreme Court emphasized that

the language in Standard Oil v. Manis3 (relied upon in PNC Bank) was no longer

valid in light of the adoption of comparative negligence and the ruling set forth in

3 433 S.W.2d 856 (Ky. 1968).

-7- Shelton. Carter, 471 S.W.3d at 298-99. Consequently, while the holding of PNC

Bank has never been explicitly overruled, the substantive basis for its holding has

been substantially abrogated. Therefore, the Trial Court erred by relying on that

holding in this case.

Nevertheless, Tates Creek and Parkway maintain that they were still

entitled to summary judgment. First, they correctly note that the premises owner is

not an insurer of the safety of invitees, and their only duty is to exercise reasonable

care for the protection of the invitees. Bartley v. Educ. Training Systems, Inc., 134

S.W.3d 612, 614-15 (Ky. 2004) (citing William Prosser and W. Page Keeton,

Prosser and Keeton on Torts, § 61 (5th ed. 1984)). See also Walmart, Inc. v.

Reeves, 671 S.W.3d 24, 28 (Ky. 2023). In this case, Tates Creek and Parkway

contracted with Grassmasters to remove snow and ice from the walkways and

parking lot. Grassmasters cleared the area and applied salt several times in the

week before Boyd’s fall. In addition, several days had passed since the most-

recent snow, and the temperature had been near freezing for at least part of that

time. Under these circumstances, Tates Creek and Parkway argue that they

satisfied their duty of reasonable care.

Second, Tates Creek and Parkway point out that Boyd chose to cut

through the uncleared, grassy area as a short-cut to her car. On several occasions

in her deposition, Boyd stated that she did so to take the shortest route to her car.

-8- And when asked why she did not walk in areas where there was no ice or snow,

she answered, “it’s not the shortest distance.” Tates Creek and Parkway argue that

her decision to deviate from the walkway and parking lot areas was not foreseeable

as a matter of law. Consequently, they maintain that, even under the Shelton

standard, they were still entitled to summary judgment on her claims of premises

liability.

Boyd responds that the issues of reasonable care and foreseeability are

issues of fact for the jury to decide. She asserts that Tates Creek and Parkway had

non-delegable duties to maintain the premises in a reasonably safe condition.

Grubb v. Smith, 523 S.W.3d 409, 422 (Ky. 2017). Thus, she concludes that Tates

Creek and Parkway are not excused from liability simply because they hired

Grassmasters to conduct the snow removal.

Furthermore, Boyd claims that Tates Creek and Parkway selectively

quoted from portions of her deposition to mischaracterize her testimony. Boyd

testified that she observed snow and ice on the walkway and the parking lot near

her car. As noted, she specifically testified that she cut through the grass because

of the presence of ice on the walkway and near her car. Her statements on cross-

examination that she cut through the grass to take the shortest route were based on

the presence of ice and snow on the walkways and parking lot near her car. Under

these circumstances, she argues that there was a genuine issue of material fact

-9- whether Tates Creek and Parkway should have foreseen that a tenant would cut

through the grass in an effort to avoid icy conditions on the walkway and parking

lot.

We agree. In Grubb v. Smith, supra, the Supreme Court noted the

current, high standard for dismissal of negligence claims in an open-and-obvious

situation:

Our [Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010)] line of cases, including Dick’s Sporting Goods, Shelton, and now Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015), reflect our determined effort to effect that restoration and to limit holdings, at trial or on appeal, that an obvious, risk-posing condition on the property is “not unreasonable as a matter of law,” to those rare instances where they are justified. For example, public policy may require that a frequently recurring type of risk-creating condition be deemed not unreasonable and thus excepted from a land possessor’s general duty of care. Similarly, in some, albeit rare, instances summary judgment or a directed verdict is appropriate because “the plaintiff’s conduct in the face of an open and obvious hazard [was] . . . clearly the only fault [sic] of his injury . . . [as] for example when a situation [a risk-creating condition on the property] cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable.” Carter, 471 S.W.3d at 297 (citing generally Shelton, 413 S.W.3d at 911-918).

Grubb, 523 S.W.3d at 418 (footnote omitted).

The proof submitted by Tates Creek and Parkway failed to meet this

standard. Although they submitted significant evidence concerning their efforts to

-10- mitigate the icy conditions, Boyd’s testimony was sufficient to establish that at

least some ice and snow remained on the walkways and parking lot. In particular,

she testified about the presence of ice on the walkways and parking lot on the

most-likely path to her car. This testimony was sufficient to raise a factual

question about the foreseeability of her decision to cut through the grassy area to

avoid the ice and reach her car. Therefore, we conclude that the Trial Court erred

by granting the motion for summary judgment.

Accordingly, we reverse the summary judgment of the Fayette Circuit

Court, and we remand for further proceedings on the merits of Boyd’s claims.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

John S. Friend Daniel E. Murner Louisville, Kentucky Estee Rose Lexington, Kentucky

-11-