Klinglesmith v. Estate of Pottinger

445 S.W.3d 565, 2014 Ky. App. LEXIS 151, 2014 WL 4476515
CourtCourt of Appeals of Kentucky
DecidedSeptember 12, 2014
DocketNo. 2013-CA-001737-MR
StatusPublished
Cited by8 cases

This text of 445 S.W.3d 565 (Klinglesmith v. Estate of Pottinger) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565, 2014 Ky. App. LEXIS 151, 2014 WL 4476515 (Ky. Ct. App. 2014).

Opinion

[566]*566 OPINION

STUMBO, Judge:

, Stella Klinglesmith appeals from an Order of the Jefferson Circuit Court dismissing via Summary Judgment her personal injury action against the Estate of Reba Pottinger. Klinglesmith contends that the court erred in concluding that the open and notorious doctrine barred her recovery, and that she would be unable to demonstrate causation if the matter proceeded to trial. She also argues that Summary Judgment was improperly rendered before she had the opportunity to disclose an expert witness. We find no error, and AFFIRM the Order on appeal.

On May 27, 2011, Klinglesmith arrived at the residence of Reba Pottinger to return a baking pan. On prior visits, Klin-glesmith would approach a side door located in the garage in order to enter the house. However, on this occasion there were two cars in the driveway which obstructed Klinglesmith from using the side door. Because the cars obstructed her approach, Klinglesmith proceeded to walk up two steps to the front porch. While standing on the porch, she knocked on the front door. When no one answered, Klin-glesmith bent down to place the baking pan by the door. She would later testify that when she stood up, she felt that she was going to fall over backwards. While she was able to avoid falling down the two steps, she did fall over the corner of the landing and injured her shoulder. Klin-glesmith was transported to Norton Hospital and later underwent surgery to repair her shoulder.

Pottinger died sometime thereafter and the home was sold to a third-party. After Pottinger’s death, Klinglesmith filed the instant negligence action against the Estate on April 19, 2012, alleging that Pot-tinger failed to keep the porch in a safe condition. Discovery was undertaken, and the Estate’s initial Motion for Summary Judgment was denied after Klinglesmith produced photographs of the porch allegedly showing a crack in the concrete and an uneven surface.

After a trial date was set, Klinglesmith was granted additional time, until September 27, 2013, to disclose expert witnesses. On September 19, 2013, the Court granted the Estate’s second Motion for Summary Judgment. As a basis for the Order granting Summary Judgment, the Court noted that Klinglesmith testified in her deposition that she did not observe any defect in the porch and was not sure why she fell. After discussing Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky.2010), and the exception to the open and obvious doctrine, the Court determined that Klinglesmith had over a year since the filing of this action to .conduct discovery, and had not established that the condition of the porch was a substantial factor in causing her injury. The Court rendered Summary Judgment, and this appeal followed.

Klinglesmith now argues that the Jefferson Circuit Court erred in sustaining the Estate’s Motion for Summary Judgment. She contends that the trial court improperly failed to conclude that Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901 (Ky.2013), modified McIntosh, supra, and that under the new analysis the open and obvious doctrine is no longer a bar to recovery. Specifically, Klinglesmith contends that under Shelton, an open and obvious condition does not eliminate a landowner’s general duty to maintain premises in reasonably safe condition or the duty to warn of or eliminate unreasonably dangerous conditions, but, rather, is factor in determining whether landowner fulfilled his or her duty of care. Klingles-mith appears to contend that the Jefferson [567]*567Circuit Court erred in absolving the Estate of liability because the defect in the porch, if any, was open and obvious, when the Court should have regarded the open and obvious nature of the alleged defect as merely a factor in determining whether the Estate satisfied its duty of care. Additionally, Klinglesmith argues that the entry of Summary Judgment was premature because as of the entry date of the Order, she still had about one week remaining to produce an expert witness. In sum, Klin-glesmith seeks an Order reversing the Summary Judgment and remanding the matter for a jury trial.

In a negligence action, the plaintiff must demonstrate that a duty was owed, that it was breached and that that breached caused injury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky.2003). A landowner has a general duty to maintain the premises in a reasonably safe manner, and the scope of that duty is based on the status of the plaintiff. Shelton, 413 S.W.3d at 909. A person is characterized an invitee if: “(1) he enters by invitation, express or implied, (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner.” Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 491-492 (Ky.App.1999) (quoting Black’s Law Dictionary, 827 (6th ed.!990))(internal quotation marks omitted).

The Restatement (Second) of Torts § 332 (1965) provides a definition of “invitee.” ... Comment b and c discuss the fine distinction between an “invitation,” which is necessary for an invitee, and “permission,” which is given to a licensee, to enter a premises:
An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.

Combs v. Georgetown College, 2011 WL 3793410 (Ky.App.2011).

Conversely, a licensee is one whose presence upon land is solely for his own purpose, in which the possessor has no interest, either business or social, and to whom the privilege of entering the premises is extended as mere favor by express consent or by general or local custom. Collins v. Rocky Knob Assocs., Inc., 911 S.W.2d 608, 612 (Ky.App.1995). The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klingles-mith engage in an activity of the type that the owner conducts or permits to be conducted on his land. Johnson, supra.

We need not enter into a protracted analysis of McIntosh and Shelton, as these cases address the somewhat evolving duty owed by possessors of land to invitees rather than licensees. Suffice it to say that the general principle espoused in McIntosh, and reiterated in Shelton, is that the open and obvious nature of a hazard does not necessarily absolve the possessor of liability as to an invitee. Rather, it is but one factor to be considered in determining whether the landowner or occupier satisfied his duty of care to the plaintiff. The Shelton Court determined that

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445 S.W.3d 565, 2014 Ky. App. LEXIS 151, 2014 WL 4476515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klinglesmith-v-estate-of-pottinger-kyctapp-2014.