Resnick v. Patterson

515 S.W.3d 206, 2016 Ky. App. LEXIS 191, 2016 WL 6892588
CourtCourt of Appeals of Kentucky
DecidedNovember 23, 2016
DocketNO. 2011-CA-001657-MR
StatusPublished
Cited by1 cases

This text of 515 S.W.3d 206 (Resnick v. Patterson) 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
Resnick v. Patterson, 515 S.W.3d 206, 2016 Ky. App. LEXIS 191, 2016 WL 6892588 (Ky. Ct. App. 2016).

Opinion

J. LAMBERT, JUDGE:

Robert Resnick initially appealed from an August 2011 order of the Bullitt Circuit Court entering summary judgment in favor of Charles Patterson. Upon review, this Court affirmed the trial court’s entry of summary judgment in Patterson’s favor. Resnick filed a motion for discretionary review with the Supreme Court of Kentucky. By order dated March 13, 2013, the Supreme Court ordered this Court’s opinion be held in abeyance pending final resolution of Miami Management Company v. Bruner, 2012-SC-000318. On December 10, 2015, the Supreme Court granted Res-nick’s motion for discretionary review, vacated our prior opinion, and remanded the case to this Court for consideration in light of Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015); Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013); and Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013). After consideration of these cases, we vacate the trial court’s August 15, 2011, order granting summary judgment to Patterson and remand for proceedings consistent with this opinion.

On January 29, 2008, the appellant, Robert Resnick, received a phone call from his mother, Marilyn McQuillen, asking him to help her move out of the residence she shared with her boyfriend, Charles Patterson. McQuillen had been living with Patterson for approximately four years at that time, but their relationship and living situation appears to have been somewhat tumultuous. In the days prior to the phone call, McQuillen and Patterson had fought, and McQuillen had left to stay with a friend for a few days.

On January 29, 2008, McQuillen went to get some of her possessions from the house, including a change of clothes. Upon her arrival, she realized the locks had been changed and she was unable to get into the [208]*208residence. McQuillen then climbed through a window in the house, triggering an alarm. Police officers were dispatched to the home, and McQuillen discussed whether she had a lawful right to be on the premises with the responding officers. McQuillen was informed by the officers that she had a right to get her belongings and be at the residence.

While inside, McQuillen found a note from Patterson stating that if she did not get her possessions out of a shed in the backyard by the time he got home, he was going to have a bonfire with her belongings that night. Patterson also left a threatening note about the couple’s dog, Fred, and left a bullet laying on top of a Post-It note which read, “This is for Fred.” Patterson admitted to writing both notes, but testified at his deposition that he did not expect that McQuillen would be on the premises of his home after he changed the locks and that he thought she would call him to request permission to get her things. McQuillen testified at her deposition that Patterson intended for her to be in the house, or else he would not have left her a note about her belongings in the shed.

Upon seeing the note, McQuillen called her son and his wife, Deborah Resnick, for help packing her belongings.1 When they arrived, the Resnicks began packing and moving boxes from a storage shed in the backyard onto a trailer in the driveway adjacent to the yard. Resnick testified that prior to that day he had never been in the backyard of Patterson’s home.

As Resnick was carrying a box across the backyard, he stepped into a hole located next to some tree roots. This caused him to fall, and he landed directly on his right shoulder, which caused him serious injury. Approximately a month after the accident, Resnick went back to take photographs of the hole. He testified that it was hard for him to find the hole, and that he had to push the grass around with his feet to make it visible in order to get a picture. Resnick testified that at the time of his fall he did not think the hole was a new hole because it did not have fresh dirt around it. He believed the hole had been dug previously by a dog.

McQuillen had lived in the home with Patterson for several years when the accident occurred, and she testified that the yard looks flat, but it is deceptively “tilty” and has holes in it where the grass has grown up. She stated that the holes are not apparent until stepped into. At his deposition, Patterson testified that he had experience in lawn care and had worked for a landscaping company for approximately fourteen years. He testified that he was aware from mowing his own yard that there were some holes and protruding tree limbs in the yard, and he had filled some of the holes previously. At his deposition, Patterson admitted that there were some holes he had not filled.

On December 19, 2008, Resnick filed suit against Patterson, alleging negligence and failure to warn. Subsequently, Patterson wrote a letter to McQuillen “begging” her to return home, and in fact McQuillen was again living with Patterson when his deposition was taken on January 6, 2011. Since the accident, Patterson has removed the tree, ground the stump, and leveled the area where Resnick tripped and fell.

On August 15, 2011, the Bullitt Circuit Court entered summary judgment in favor of Patterson, finding that the hole and/or tree stump Resnick tripped on was an [209]*209open and obvious natural hazard, and, as such, Patterson had no duty to warn Res-nick of its existence. The trial court held that Patterson had no knowledge that Res-nick would be on the property and therefore could not anticipate the harm that befell him. The trial court also emphasized that the hazard that caused Resnick to fall was naturally occurring and that Patterson did not have a duty to warn of a naturally occurring obvious hazard. As stated above, an initial appeal to this Court followed, in which we affirmed the trial court’s entry of summary judgment.

In our initial opinion, we acknowledged the confusion the Supreme Court’s opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), created regarding the interplay of contributory negligence and comparative fault. Subsequent to our opinion, which was rendered on August 10, 2012, the Supreme Court rendered Shelton v. Kentucky Easter Seals Society, Inc. supra; Dick’s Sporting Goods v. Webb, supra; and Carter v. Bullitt Host, LLC, supra. We now reexamine whether summary judgment was appropriate in light of the Supreme Court’s more recent analysis of premises liability.

In McIntosh, the Kentucky Supreme Court held that the primary focus in determining whether a duty exists is on foreseeability. McIntosh, supra, at 390. The Court adopted the modern approach as embodied in the Restatement (Second) of Torts:

The modern approach is consistent with Kentucky’s focus on foreseeability in its analysis of whether or not a defendant has a duty. This Court has previously stated that “[t]he most important factor in determining whether a duty exists is foreseeability.” Pathways v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citing David J. Leibson, Kentucky Practice,

Tort Law § 10.3 (1995)).

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Bluebook (online)
515 S.W.3d 206, 2016 Ky. App. LEXIS 191, 2016 WL 6892588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resnick-v-patterson-kyctapp-2016.