Roach v. Hedges

419 S.W.3d 46, 2013 WL 562877, 2013 Ky. App. LEXIS 36
CourtCourt of Appeals of Kentucky
DecidedFebruary 15, 2013
DocketNo. 2011-CA-001856-MR
StatusPublished
Cited by6 cases

This text of 419 S.W.3d 46 (Roach v. Hedges) 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
Roach v. Hedges, 419 S.W.3d 46, 2013 WL 562877, 2013 Ky. App. LEXIS 36 (Ky. Ct. App. 2013).

Opinion

OPINION

CLAYTON, Judge:

The appellant, David Roach, appeals the Jefferson Circuit Court’s entry of summary judgment in favor of the appellees, Rhonda Hedges, Dr. Mary L. Greenlee, [47]*47Don Zettwoch, and Kevin Knott. The circuit court determined that Kentucky’s Recreational Use Statute, Kentucky Revised Statutes (“KRS”) 411.190(3)-(4), is applicable, rendering the appellees immune from suit. We agree and the decision of the circuit court is affirmed.

On October 13, 2009, Roach was injured when he fell from a swing on the playground of the Alfred Binet School (“Bi-net”), which is located on the same premises as Seneca High School (“Seneca”). The accident occurred after school hours when Roach was using the playground with his minor daughter. There were no witnesses to the accident, but Roach alleges that he fell to the ground when a metal “S” hook connecting the swing to the seat broke. The fall caused Roach to land on his left ankle, breaking it in several places. At the time of Roach’s fall, Hedges served as principal of Binet and Greenlee served as principal of Seneca. Knott and Zettwoch served both schools, Knott as a plant operator and Zettwoch as a maintenance worker.

On January 29, 2010, Roach filed suit in Jefferson Circuit Court alleging negligence in the maintenance of the playground by each of the appellees. On March 9, 2011, the appellees filed a motion for summary judgment. The appellees’ motion set forth three grounds for relief: 1) they were entitled to qualified official immunity; 2) Roach failed to establish a breach of the duty of care; and 3) KRS 411.190(3)-(4) applies to remove any duty of care that might exist. The circuit court determined that the statute is applicable and did not reach the appellees’ other arguments. Roach then filed a motion under Kentucky Rules of Civil Procedure (“CR”) 59.05 to alter, vacate, or amend the circuit court’s decision. The motion was denied on September 21, 2011, and this appeal followed.

Our review of the circuit court’s grant of summary judgment requires us to determine “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.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001). The circuit court’s decision to grant a motion for summary judgment is reviewed de novo. 3D Enterprises Contracting Corp. v. Louisville and Jefferson County Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky.2005). Likewise, issues of statutory interpretation are reviewed de novo. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky.2011). With this standard in mind, we turn to the application of KRS 411.190.

Roach does not challenge the recreational nature or public use of the property. Instead he challenges the applicability of KRS 411.190 by asserting that the ap-pellees are not “owners” as defined by KRS 411.190(l)(b).

In order to fully understand the impact of KRS 411.190, it is helpful to consider its effect on premises liability. As a general rule, “land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them.” Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385, 388 (Ky.2010). However, in order to “encourage owners of land to make land and water areas available to the public for recreational purposes[,]” the statute limits “liability toward persons entering thereon for such purposes.” KRS 411.190(2). To this end, KRS 411.190(3) dictates that:

Except as specifically recognized by or provided in subsection (6) of this section, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous eon-[48]*48dition, use, structure, or activity on the premises to persons entering for such purposes.

KRS 411.190(4) further narrows the potential for liability by stating that:

[A]n owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreation purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose;
(b) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed; or
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of those persons.

The duty of care is not completely eliminated, however; KRS 411.190(6) sets forth limited circumstances where a duty is preserved, for example, in the case of a “willful or malicious failure to guard or warn[.]” (KRS 411.190(6)(a)). This language, considered in light of the statute’s express purpose, is helpful to determine whom the legislature was attempting to protect by enacting KRS 411.190.

KRS 411.190(l)(b) defines an “owner” as “the possessor of a fee, reversionary, or easement interest, a tenant, lessee, occupant, or person in control of the premises[.]” By adopting a broad definition of “owner” and including the provision “in control of the premises,” we believe the legislature intended to eliminate negligence liability, under the circumstances set forth in the statute, by removing the duty of care from individuals who have sufficient control to render them liable absent the statute’s application.

This interpretation is consistent with this Court’s holding in Midwestern, Inc. v. Northern Kentucky Community Center, where we determined that, while the community center did not own title to the land, it was considered an “owner” under ICRS 411.190. 736 S.W.2d 348, 349 (Ky.App. 1987).

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Cite This Page — Counsel Stack

Bluebook (online)
419 S.W.3d 46, 2013 WL 562877, 2013 Ky. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roach-v-hedges-kyctapp-2013.