Mary Lawson v. David Smith

• Court: Court of Appeals of Kentucky
• Decided: May 26, 2022
• Docket: 2021 CA 000816
• Status: Unknown

Opinion

RENDERED: MAY 27, 2022; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0816-MR

MARY LAWSON APPELLANT

APPEAL FROM CARROLL CIRCUIT COURT v. HONORABLE R. LESLIE KNIGHT, JUDGE ACTION NO. 19-CI-00029

DAVID SMITH APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.

CETRULO, JUDGE: This is an appeal from a decision of the Carroll Circuit

Court, which granted a summary judgment to a homeowner on a claim asserted by

a guest for injuries sustained while visiting. Having reviewed the entire record on

appeal and the relevant authorities, we conclude that the trial court’s decision

granting summary judgment was well reasoned, and therefore affirm. David Smith (“Smith”) is the owner of a three-bedroom ranch home

with a walkout basement located in Carroll County. Mary Lawson (“Lawson”) is

the mother of Smith’s girlfriend, Patty Murray (“Murray”). Smith and Murray

invited Lawson to use his home as a convenience to minimize her travel time to

work. Lawson worked in Carrollton and worked a night shift job that required her

to get up and go to work when Smith and Murray were still asleep. Lawson had

started “staying at the house” approximately three times a week, whatever was

convenient for her, a month or two before the incident that led to this lawsuit.

In the main hallway of the home, there was a door to the basement

and a door to the bathroom. Although the doors were hinged on opposite sides,

they were otherwise similar and near to one another. The testimony was that there

was a nightlight in the bathroom that was left on at all times. The door to the

basement opened to stairs with no landing at the top. There was a ceiling light

switch which generally was not turned on. Lawson and Smith agree that Lawson

had never gone to the basement at any time, although she had seen into the

basement when the door was open. She was aware of the stairs and of the

basement door’s proximity to the bathroom door.

On April 4, 2018, Lawson was found at the bottom of those basement

stairs. She has no memory of what occurred between going to bed and being found

later. Murray and Smith confirm that Lawson was found at the bottom of the

-2- basement stairs, conscious but with significant injuries. An EMS record reflects

that Lawson “advised she had gotten up to use the bathroom, and due to [the] short

time at [the] residence, patient opened [the] wrong door and fell into [the]

basement.” However, it is not clear that this information came from Lawson.

A lawsuit was filed, and Lawson provided an expert witness, Dr.

Thomas Huston. His opinion was that the stairwell was unreasonably dangerous

since the door opened inward with no landing at the top of the stairs and that the

Building Code in effect since the 1980s would require a landing. In response,

Smith identified an expert witness, David Johnson, who opined that the home was

built in 1968 in accordance with the requirements for that time. Per Smith’s

expert, the home was not required to be modified to comply with the 1980s Code,

since there had been no structural alterations to the original construction. All the

parties were deposed and the matter was ready for a trial setting when Smith filed

this motion for summary judgment. The court had expert disclosures from both

parties, but determined that their opinions were irrelevant to its determination of

the motion for summary judgment.

The trial court issued its opinion on June 23, 2021, granting Smith’s

motion for summary judgment, and this appeal followed.

-3- STANDARD OF REVIEW

The standard of review upon appeal of an order granting 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

CR1 56.03). Upon a motion for summary judgment, all facts and inferences in the

record are viewed in a light most favorable to the non-moving party 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). Thus, a summary judgment looks only to

questions of law, and we review a trial court’s decision to grant summary

judgment de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016); see

also Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky.

2010), as modified on denial of reh’g (Nov. 23, 2011). However, “[a] party

opposing a summary judgment motion cannot rely on the hope that the trier of

fact” would simply “disbelieve the movant’s denial of a disputed fact, but must

present affirmative evidence in order to defeat a properly supported motion for

summary judgment.” Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 790 (Ky. App.

2012) (citing Steelvest, 807 S.W.2d at 481). With this standard in mind, we turn to

Lawson’s two arguments on appeal.

1 Kentucky Rule of Civil Procedure.

-4- First, Lawson asserts that the trial court erred in concluding that there

was a different standard for residential premises than for commercial premises.

Second, the appellant simply argues that the trial court substituted its opinion for a

jury. We disagree with both of these premises.

In its detailed opinion, the trial court initially noted that in any

negligence case, the plaintiff must prove the existence of a duty, breach of duty,

and the injury and damages. Pointing out that the existence of the duty is a

question of law for the court, the court below went on to discuss the rather tortured

progression of cases addressing premises liability in this Commonwealth since

2010, and the decision of Kentucky River Medical Center v. McIntosh, 319 S.W.3d

385 (Ky. 2010).

Nonetheless, “Kentucky law [has remained] steadfast in its adherence

to the traditional notion that duty is associated with the status of the injured party

as an invitee, licensee, or trespasser.” Smith v. Smith, 563 S.W.3d 14, 17 (Ky.

2018) (citation omitted). For instance, in Smith, the dissent argued for

abandonment of distinctions between licensees and invitees in favor of a general

duty of reasonable care owed to all non-trespassing persons. Id. at 20 (Minton,

C.J., dissenting). However, the majority held that the “status” of the injured party

is still largely determinative of the duty upon the landowner. Id. at 17.

-5- Numerous cases since McIntosh have attempted to explain and

analyze the Courts’ holdings on premises liability cases. The one thing that is clear

from the sheer volume of cases that have followed is that it is not at all clear where

our Supreme Court will ultimately land on the classification issue. But, it has been

proposed that in many of these cases where no duty is found, the Courts are really

saying “that the defendant owed no duty that was breached or that he owed no

duty that was relevant on the facts[,]” not that the defendant owed no

duty. Shelton v. Ky. Easter Seals Society, Inc., 413 S.W.3d 901, 911-12 (Ky.

2013). “And without breach, there can be no negligence as a matter of law.” Id. at

912.

The court below reviewed all of the aforementioned case law and

noted that the majority of cases dealt with a business owner’s duty to a business

invitee, not a homeowner’s duty to a licensee. The trial court similarly considered

several cases from other jurisdictions with residential settings, noting that other

courts have generally found no liability when the guest was familiar with the house

and aware of the staircase. For example, in Buchholz v. Steitz, 463 S.W.2d 451

(Tex. Civ. App. 1971), a licensee plaintiff was injured when she fell into the

basement after entering what she thought was a bathroom door. There, plaintiff

testified she had been in the house about five times. Id. at 452. The court found

the defendants were not negligent because plaintiff had been to the home “on

-6- several occasions” and “knew about the stairway but had forgotten about it” on the

day of the fall. Id. at 454.

We have similarly reviewed the authorities and agree that there is only

one reported Kentucky decision that discusses the duty of a homeowner to a

licensee. That case is the aforementioned decision of Smith v. Smith. Therein, a

homeowner had mopped her back deck and a guest slipped and fell. Smith, 563

S.W.3d at 15. That matter went on to a jury verdict with the jury being given only

a general “ordinary care” instruction. Id. at 16. The jury actually found the

homeowner 100% at fault and this Court affirmed. Id. However, our Supreme

Court reversed, due to faulty instructions. Id. at 18.

In Smith, the majority of our Supreme Court reiterated that “[a]

possessor of land owes a licensee a duty to ‘not knowingly let[ ] her come upon a

hidden peril or willfully or wantonly caus[e] her harm.’” Id. at 17 (quoting Terry

v. Timberlake, 348 S.W.2d 919, 920 (Ky. 1961)). The Court further outlined how

the duties of a possessor are quite different based on whether the guest is an invitee

or a licensee. Id. at 17-18. Finally, as stated above, the majority rejected the plea

to abolish the classifications of trespasser, licensee, and invitee, again, to the

consternation of the dissenting justices. Id. at 20 (Minton, C.J., dissenting). The

Smith case was remanded to the circuit court with the caveat that two factual issues

-7- existed, 1) whether the “soapy” condition of the deck was open and obvious; and,

2) whether the guest was a licensee or an invitee. Id. at 19.

Here, there is no such factual dispute as to the status of Lawson nor as

to the open and obvious nature of the basement door in the hallway of the home.

All agree that she was “staying” at the home for her own benefit, to minimize her

drive for work. She was clearly a licensee. In Smith, the Supreme Court further

confirmed that Kentucky continues to adhere to the Restatement (Second) of

Torts,2 which provides:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he [or she] fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

RESTATEMENT (SECOND) OF TORTS § 342 (1965) (emphasis added).

2 Smith, 563 S.W.3d at 17.

-8- While many states have expressly declined to adopt that Restatement

(Second) of Torts section, our Supreme Court has adopted it. Thus, we agree with

the Carroll Circuit Court that Smith’s only duty to Lawson was to not let her come

upon a hidden peril or willfully or wantonly cause her harm. This duty he did not

violate. Pursuant to the Restatement (Second) of Torts, and specifically the last

subsection, this homeowner could only be subject to liability if the licensee did not

know or have any reason to know of the risk of harm. RESTATEMENT (SECOND)

OF TORTS § 342(c) (1965).

Lawson admitted she was aware of the location of the basement stairs

and had seen the door opened on prior occasions. Her testimony confirms that she

knew the difference in the hinging and opening of the two different doors.

Regardless of whether the stairs constituted a peril or dangerous condition, it was

not hidden from Lawson, and the homeowner did not breach any duty owed. The

“open and obvious” doctrine traditionally has maintained that land possessors

cannot be held liable even to invitees who are injured by open and obvious

dangers. See Breedlove v. Smith Custom Homes, Inc., 530 S.W.3d 481, 488 (Ky.

App. 2017).

Moreover, we agree that the court below did not make a “no-

duty” determination that Smith did not owe a duty of care to Lawson. Rather, the

court made a “no breach” determination when it dismissed the claim on summary

-9- judgment finding that there was no negligence as a matter of law as Lawson failed

to show a breach of the applicable duty of care. RESTATEMENT (SECOND) OF TORTS

§ 343A (1965).

In Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 298 (Ky. 2015), the

Court elaborated that under comparative fault, “every person has a duty of ordinary

care” considering the situation, “and that duty applies equally to plaintiffs and

defendants. For fault to be placed on either party, a party must have breached his

duty; and if there is a breach, fault must be apportioned based on the extent a

party’s breach caused or helped cause harm to the plaintiff.” Id. While summary

judgment is to be cautiously granted, it is just as true, even under comparative

fault, “that if a landowner has done everything that is reasonable under the

circumstances, he has committed no breach, and cannot be held liable to the

plaintiff.” Id.

Similarly, in Phelps v. Bluegrass Hospitality Management, LLC, 630

S.W.3d 623 (Ky. 2021), our Supreme Court upheld summary judgment in favor of

a restaurant owner who was sued by a patron who alleged some possible waxy

substance might have existed, but who had no proof or testimony to support that

allegation nor any testimony of any breach of duty by the landowner. As the Court

stated therein, the invitee “failed to submit proof of a material fact – that being . . .

a hazardous condition upon [the] business premises” and therefore summary

-10- judgment was appropriate. Id. at 630. We believe that this licensee similarly

failed to submit any proof of a breach of duty by the homeowner that caused her to

fall down steps that she knew were there. As was argued in Phelps, the only real

assertion on appeal herein is that the foreseeability of some unproven risk of harm

should be a question normally left to the jury under the breach analysis. We

disagree where, as here, the injured party was a licensee who failed to submit proof

of a violation of a duty breached.

Based upon our review of the record below and the holdings of the

prior cases, we do not agree that the trial court erred in this instance in concluding

the matter without a jury. In short, Lawson is simply arguing that Smith could

have illuminated the hallway or the basement stairs; that he could have reversed

the basement door to open outward; or that he could have moved the light switches

or constructed a landing at the top of the stairs, and that any of these actions might

have prevented the injuries to Lawson. While all of those actions may have been

options available to the possessor or landowner in this case, the case law is clear

that these were not duties owed nor duties breached so as to have required the case

to be presented to a jury. Accordingly, we affirm the summary judgment of the

Carroll Circuit Court.

ALL CONCUR.

-11- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

David L. Sage Charles J. Davis Louisville, Kentucky Stephen M. Yeager Cincinnati, Ohio

-12-