RENDERED: JUNE 4, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0843-MR
RICHARD JONES AND LASHUNDA JONES APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 19-CI-00130
CITY OF PADUCAH, MCCRACKEN COUNTY, KENTUCKY; AND RICK MURPHY, CITY OF PADUCAH ENGINEER, PADUCAH, MCCRACKEN COUNTY, KENTUCKY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Richard and Lashunda Jones appeal from a
memorandum and order granting summary judgment in favor of the City of
Paducah, McCracken County, Kentucky and Rick Murphy. The Joneses argue that
the McCracken Circuit Court erred in concluding that Richard Jones (“Appellant”) improperly failed to provide the City of Paducah, McCracken County, Kentucky
(“Appellee”) with notice of his injury pursuant to Kentucky Revised Statutes
(“KRS”) 411.110. For the reasons addressed below, we affirm the order granting
summary judgment.
FACTS AND PROCEDURAL HISTORY
The facts are not in dispute. On September 1, 2018, Appellant was
using a string trimmer in a residential front yard located at 1138 N. 14th Street in
Paducah, Kentucky. As Appellant was using the string trimmer on a grassy area
located between the sidewalk and the street, he stepped onto the round, metal cover
of a storm water overflow basin. The basin is situated in the grassy area next to the
street and is attached to and receives storm water runoff from the 14th Street curb.
When Appellant stepped on the cover, it flipped up allowing his right leg to fall
into the basin. As Appellant’s right leg entered the basin, he twisted his left knee
allegedly causing injury.
Three days later, Appellant telephoned Appellee to notify it of the
loose basin cover. The following day, Appellee dispatched a maintenance vehicle
to remove debris from the basin. Within about three weeks, Appellee had
performed maintenance on the cover and basin, including pouring new concrete
around the casting surrounding the cover.
-2- Appellant filed a complaint in McCracken Circuit Court on February
12, 2019, and a first amended complaint on February 22, 2019, alleging in relevant
part that Appellee breached a duty of care in failing to maintain the basin in a safe
condition proximately resulting in his injury. On February 28, 2019, Appellee
filed a motion to dismiss the action. In support the motion, Appellee argued that
Appellant improperly failed to provide written notice to Appellee of the incident as
required by KRS 411.110. This statute requires written notice to the city within 90
days of any injury sustained from a defect in the condition of any “bridge, street,
sidewalk, alley or other public thoroughfare[.]” The notice is a condition
precedent to the filing of an action to recover damages. Appellant responded that
his injury did not occur on a bridge, street, sidewalk, alley or other public
thoroughfare, and thus no statutory notice was required.
The matter proceeded in McCracken Circuit Court, culminating in a
memorandum and order granting summary judgment in favor of Appellee entered
on June 26, 2020. Citing Krietemeyer v. City of Madisonville, 576 S.W.3d 157,
159 (Ky. App. 2018), the circuit court concluded that because the basin was
adjacent to the street, attached to the curb, and served to make the street safe by
removing storm water, the basin and cover were part of the street for purposes of
KRS 411.110. The court determined that Appellant’s failure to notify Appellee of
-3- the incident in conformity with KRS 411.110 was fatal to Appellant’s claim. This
appeal followed.
ARGUMENT AND ANALYSIS
Appellant argues that the McCracken Circuit Court committed
reversible error in granting summary judgment in favor of Appellee. Specifically,
Appellant maintains that because he was injured by a basin cover in a residential
front yard and not by a defect to a bridge, street, sidewalk, alley or other public
thoroughfare, KRS 411.110 is not implicated and the circuit court erred in failing
to so conclude. Appellant notes that the basin cover is situated in the grassy area
between the sidewalk and the street, asserting it cannot reasonably be construed as
being part of the street. He asserts that no Kentucky court has ever given such an
expansive view to what constitutes a street or thoroughfare for purposes of KRS
411.110. While acknowledging that Kentucky cases have found hazards in the
street, on the street, and above the street to trigger the notice requirement of KRS
411.110, Appellant asserts that no Kentucky case has ever found that a hazard next
to the street – like the basin cover – triggers the notice requirement.
Appellant also directs our attention to the Missouri case of Williams v.
City of Kansas City, 782 S.W.2d 64 (Mo. 1990), which was cited with approval in
Krietemeyer. In Williams, the Missouri Supreme Court considered a notice statute
similar to KRS 411.110. The court found that the statute required a notice as to
-4- claims including “publicly maintained exterior improvements designed to facilitate
travel[.]” Williams, 782 S.W.2d at 65. Appellant argues that no person of ordinary
judgment could conclude that the drain cover at issue, which was located in a
residential front yard and not in or on the street, is a publicly maintained exterior
improvement designed to facilitate travel. In sum, Appellant seeks an opinion and
order reversing the summary judgment on appeal.
KRS 411.110 states that
No action shall be maintained against any city in this state because of any injury growing out of any defect in the condition of any bridge, street, sidewalk, alley or other public thoroughfare, unless notice has been given to the mayor, city clerk or clerk of the board of aldermen in the manner provided for the service of notice in actions in the Rules of Civil Procedure. This notice shall be filed within ninety (90) days of the occurrence for which damage is claimed, stating the time of and place where the injury was received and the character and circumstances of the injury, and that the person injured will claim damages therefor from the city.
Appellant has acknowledged that he did not give notice to Appellee in conformity
with KRS 411.110. The sole question for our consideration, then, is whether the
drain cover constitutes a “defect in the condition of any . . . street . . . or other
public thoroughfare . . . .” Id.
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RENDERED: JUNE 4, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0843-MR
RICHARD JONES AND LASHUNDA JONES APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 19-CI-00130
CITY OF PADUCAH, MCCRACKEN COUNTY, KENTUCKY; AND RICK MURPHY, CITY OF PADUCAH ENGINEER, PADUCAH, MCCRACKEN COUNTY, KENTUCKY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Richard and Lashunda Jones appeal from a
memorandum and order granting summary judgment in favor of the City of
Paducah, McCracken County, Kentucky and Rick Murphy. The Joneses argue that
the McCracken Circuit Court erred in concluding that Richard Jones (“Appellant”) improperly failed to provide the City of Paducah, McCracken County, Kentucky
(“Appellee”) with notice of his injury pursuant to Kentucky Revised Statutes
(“KRS”) 411.110. For the reasons addressed below, we affirm the order granting
summary judgment.
FACTS AND PROCEDURAL HISTORY
The facts are not in dispute. On September 1, 2018, Appellant was
using a string trimmer in a residential front yard located at 1138 N. 14th Street in
Paducah, Kentucky. As Appellant was using the string trimmer on a grassy area
located between the sidewalk and the street, he stepped onto the round, metal cover
of a storm water overflow basin. The basin is situated in the grassy area next to the
street and is attached to and receives storm water runoff from the 14th Street curb.
When Appellant stepped on the cover, it flipped up allowing his right leg to fall
into the basin. As Appellant’s right leg entered the basin, he twisted his left knee
allegedly causing injury.
Three days later, Appellant telephoned Appellee to notify it of the
loose basin cover. The following day, Appellee dispatched a maintenance vehicle
to remove debris from the basin. Within about three weeks, Appellee had
performed maintenance on the cover and basin, including pouring new concrete
around the casting surrounding the cover.
-2- Appellant filed a complaint in McCracken Circuit Court on February
12, 2019, and a first amended complaint on February 22, 2019, alleging in relevant
part that Appellee breached a duty of care in failing to maintain the basin in a safe
condition proximately resulting in his injury. On February 28, 2019, Appellee
filed a motion to dismiss the action. In support the motion, Appellee argued that
Appellant improperly failed to provide written notice to Appellee of the incident as
required by KRS 411.110. This statute requires written notice to the city within 90
days of any injury sustained from a defect in the condition of any “bridge, street,
sidewalk, alley or other public thoroughfare[.]” The notice is a condition
precedent to the filing of an action to recover damages. Appellant responded that
his injury did not occur on a bridge, street, sidewalk, alley or other public
thoroughfare, and thus no statutory notice was required.
The matter proceeded in McCracken Circuit Court, culminating in a
memorandum and order granting summary judgment in favor of Appellee entered
on June 26, 2020. Citing Krietemeyer v. City of Madisonville, 576 S.W.3d 157,
159 (Ky. App. 2018), the circuit court concluded that because the basin was
adjacent to the street, attached to the curb, and served to make the street safe by
removing storm water, the basin and cover were part of the street for purposes of
KRS 411.110. The court determined that Appellant’s failure to notify Appellee of
-3- the incident in conformity with KRS 411.110 was fatal to Appellant’s claim. This
appeal followed.
ARGUMENT AND ANALYSIS
Appellant argues that the McCracken Circuit Court committed
reversible error in granting summary judgment in favor of Appellee. Specifically,
Appellant maintains that because he was injured by a basin cover in a residential
front yard and not by a defect to a bridge, street, sidewalk, alley or other public
thoroughfare, KRS 411.110 is not implicated and the circuit court erred in failing
to so conclude. Appellant notes that the basin cover is situated in the grassy area
between the sidewalk and the street, asserting it cannot reasonably be construed as
being part of the street. He asserts that no Kentucky court has ever given such an
expansive view to what constitutes a street or thoroughfare for purposes of KRS
411.110. While acknowledging that Kentucky cases have found hazards in the
street, on the street, and above the street to trigger the notice requirement of KRS
411.110, Appellant asserts that no Kentucky case has ever found that a hazard next
to the street – like the basin cover – triggers the notice requirement.
Appellant also directs our attention to the Missouri case of Williams v.
City of Kansas City, 782 S.W.2d 64 (Mo. 1990), which was cited with approval in
Krietemeyer. In Williams, the Missouri Supreme Court considered a notice statute
similar to KRS 411.110. The court found that the statute required a notice as to
-4- claims including “publicly maintained exterior improvements designed to facilitate
travel[.]” Williams, 782 S.W.2d at 65. Appellant argues that no person of ordinary
judgment could conclude that the drain cover at issue, which was located in a
residential front yard and not in or on the street, is a publicly maintained exterior
improvement designed to facilitate travel. In sum, Appellant seeks an opinion and
order reversing the summary judgment on appeal.
KRS 411.110 states that
No action shall be maintained against any city in this state because of any injury growing out of any defect in the condition of any bridge, street, sidewalk, alley or other public thoroughfare, unless notice has been given to the mayor, city clerk or clerk of the board of aldermen in the manner provided for the service of notice in actions in the Rules of Civil Procedure. This notice shall be filed within ninety (90) days of the occurrence for which damage is claimed, stating the time of and place where the injury was received and the character and circumstances of the injury, and that the person injured will claim damages therefor from the city.
Appellant has acknowledged that he did not give notice to Appellee in conformity
with KRS 411.110. The sole question for our consideration, then, is whether the
drain cover constitutes a “defect in the condition of any . . . street . . . or other
public thoroughfare . . . .” Id. As the construction and application of KRS 411.110
is a question of law, it is subject to de novo review. Richardson v.
Louisville/Jefferson County Metro Government, 260 S.W.3d 777, 779 (Ky. 2008)
(citation omitted). In construing a statute, the goal of the appellate tribunal is to
-5- determine the intent of the General Assembly. Id. In order to determine legislative
intent, we must give the statutory language its plain and ordinary meaning. Id.
Where the statute is unambiguous, we may not look to extrinsic evidence of
legislative intent. Id.
While the words “street” and “sidewalk” in the context of KRS
411.110 would at first blush appear to be subject to but one interpretation, the case
law has shown the application of this language to be somewhat nuanced. For
example, claims arising from water meter covers in the street and sidewalk, as well
as landscaping within the boundaries of a sidewalk, have each been found
sufficient to trigger the notice provisions of KRS 411.110. See City of Dawson
Springs v. Reddish, 344 S.W.2d 826 (Ky. 1961); Hancock v City of Anchorage,
299 S.W.2d 794 (Ky. 1957); and Sylvester v. Oak Street Hardware Store Inc., No.
2002-CA-0432-MR, 2003 WL 22416712 (Ky. App. Oct. 24, 2003). Conversely, a
water meter cover in the grass between the street and sidewalk, though not
physically connected to either, and the steps between a sidewalk and a police
department building, did not implicate KRS 411.110. See City of Elizabethtown v
Baker, 373 S.W.2d 593 (Ky. 1963), and Krietemeyer, supra. The application of
KRS 411.110 is fact-specific.
It is uncontroverted that the storm water basin in question is
physically connected to the street curb with a drainage opening in the curb.
-6- Further, one may reasonably conclude that the drain’s purpose, in whole or in part,
is to remove storm water from the street surface thus rendering it safe for the
travelling public. The alleged defect in the basin cover, if any, is of the type
envisioned by Krietemeyer, “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.”
Krietemeyer, 576 S.W.3d at 159 (citation omitted).
Summary judgment “shall be rendered forthwith 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.” Kentucky Rule of Civil Procedure (CR) 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 his favor.” Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment should be
granted only if it appears impossible that the nonmoving party will be able to
produce evidence at trial warranting a judgment in his favor. Id. “Even though a
trial court may believe the party opposing the motion may not succeed at trial, it
should not render a summary judgment if there is any issue of material fact.” Id.
Finally, “[t]he standard of review on appeal of a summary judgment is whether the
trial court correctly found that there were no genuine issues as to any material fact
-7- 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).
CONCLUSION
When viewing the record in a light most favorable to Appellant and
resolving all doubts in his favor, we conclude that that the circuit court correctly
found that there were no genuine issues as to any material fact and that Appellee
was entitled to judgment as a matter of law. The drainage basin at issue, including
its cover, is physically connected to the curb and serves the purpose of keeping the
street in a reasonably safe condition for travel by the public. As such, and in
accordance with Krietemeyer and the related case law, the basin is part of the street
and is subject to the notice provision of KRS 411.110. The McCracken Circuit
Court properly so concluded, and we find no error. Accordingly, we affirm the
order of the McCracken Circuit Court granting summary judgment.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT BRIEF AND ORAL ARGUMENT FOR APPELLANTS: FOR APPELLEES:
Brian S. Katz William E. Pinkston Paducah, Kentucky Paducah, Kentucky
-8-