RENDERED: MAY 14, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-0144-MR
ROBERT RAGLE APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 18-CI-01509
LOUISVILLE ROAD VENTURES, LLC; AND COMMONWEALTH OF KENTUCKY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: Robert Ragle appeals from the Warren Circuit Court’s order
granting summary judgment to Louisville Road Ventures, LLC (LRV), in a slip
and fall case. We affirm.
Ragle is an investigator for the Commonwealth of Kentucky
Department of Workers’ Claims. His office is located in Bowling Green,
Kentucky, on premises leased by the Commonwealth from Louisville Road Ventures, LLC. On November 27, 2017, Ragle tripped on a loose threshold on his
way into the office, hitting the door frame. He was required to undergo surgery to
repair his injured knee.
On October 31, 2018, Ragle filed a complaint against the building’s
owner (LRV) and manager (J. Allen Builders, Inc.), alleging that they breached
their duty of care by failing to maintain the premises in a safe condition and by
failing to warn of an unreasonably dangerous condition on the property. Ragle
sought past and future medical expenses, lost wages, and compensation for
permanent impairment of his ability to earn wages. He additionally sought an
award for physical and mental anguish and emotional distress. J. Allen Builders,
Inc., was dismissed as a party per agreed order one month later.
On March 15, 2019, the Commonwealth moved for leave to intervene,
stating that Ragle’s injuries were incurred in the course and scope of his
employment, that compensation had been made to him pursuant to Kentucky
Revised Statutes (KRS) Chapter 342, and that the Commonwealth was entitled to
recover the amount it had paid should Ragle be successful in his complaint against
LRV. The Commonwealth filed an amended motion to intervene two weeks later.
The circuit court granted the motion on May 6, 2019. Ragle’s deposition was
taken on May 21, 2019.
-2- LRV filed a motion for summary judgment on July 2, 2019, arguing
that, because the property was leased in its entirety to the Commonwealth, LRV
had relinquished control of the property. LRV stated that the Commonwealth was
responsible for the premises. Furthermore, LRV continued, “multiple
Commonwealth employees were aware that the piece of trim had been loose prior
to the fall,” yet no one notified LRV of this dangerous condition; instead, the
lessee chose to make the repairs itself. Thus, LRV claimed it was entitled to
summary judgment because there was no hidden danger and the tenant was
responsible for any damages.
Ragle filed his first amended complaint on July 15, 2019, correcting
the date of injury (from November 22 to November 27, 2017). Two weeks later,
Ragle responded to the motion for summary judgment, stating that he was never
aware of the loose trim, that the lease agreement required LRV to maintain the
premises, and that there existed genuine issues of material fact which made
summary judgment inappropriate. Several exhibits, including photos of the
entranceway, Ragle’s medical records, and a copy of the lease agreement, were
appended to the response.
A hearing was held on August 5, 2019. The circuit court entered its
order granting LRV’s motion on January 9, 2020. Ragle filed his notice of appeal
on January 22, 2020.
-3- We begin by stating the standard of review for summary judgments,
namely:
“The standard of review on appeal of summary judgment is whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Summary judgment involves only legal questions; whether a fact is material and, if so, whether there is a genuine issue regarding that material fact are legal questions. Stathers v. Garrard County Bd. of Educ., 405 S.W.3d 473, 478 (Ky. App. 2012). Thus, we utilize a de novo review standard. Id.
Kentucky courts have repeatedly stated, and we continue to adhere to these bedrock principles, that summary judgment is an extraordinary remedy, it is to be “cautiously applied[,]” and it “should not be used as a substitute for trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991). “The trial court must review the evidence, not to resolve any issue of fact, but to discover whether a real fact issue exists.” Shelton v. Kentucky Easter Seals Soc’y, 413 S.W.3d 901, 905 (Ky. 2013) (footnote omitted). This requires both the trial court and this Court to review the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in [its] favor.” Steelvest, 807 S.W.2d at 480.
Joiner v. Kentucky Farm Bureau Mutual Insurance Company, 582 S.W.3d 74, 77-
78 (Ky. App. 2019). Here, the facts must be viewed in a light most favorable to
Ragle as we review the propriety of the circuit court’s ruling. Id. at 78.
Ragle first argues that summary judgment was improperly granted
because LRV breached its duty to maintain and repair the premises under the terms
-4- of the lease. In order to succeed under this theory of recovery, it was incumbent
upon Ragle to prove that LRV “owed a duty to [Ragle], breached that duty, and
consequent injury followed.” Shelton, 413 S.W.3d at 906 (citation omitted). Ragle
concedes that whether LRV owed him a duty was a question of law to be
determined by the circuit court. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89
(Ky. 2003).
Ragle’s contention here is that the lease agreement between LRV and
the Commonwealth included express language requiring LRV to maintain and
repair the premises. Therefore, Ragle continues, the circuit court erred in holding
thus in its order granting summary judgment:
When a contractual duty to repair exists, landlords are liable only for the costs of repair. Miller v. Cundiff, 245 S.W.3d 786, 788 (Ky. App. 2007). If the defect is obvious and known, recovery is precluded. Pinkston v. Audubon Area Comm. Serv., Inc., 210 S.W.3d 188, 190 (Ky. App. 2006). While it is arguable that the lease in this case contained a contractual duty to repair, the loose rubber flooring joint was known to be an issue by other employees of Tenant [Commonwealth]; Defendant [LRV] was never informed of the defect; and Tenant [Commonwealth] had full control over the area in which the defect was located.
But Joiner v. Tran & P Properties, LLC, holds similarly: “Kentucky
law provides that the remedy for breach of an agreement to repair is the cost of the
repair. Because the [tenants] did not pay for the repairs, they cannot assert a claim
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 14, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-0144-MR
ROBERT RAGLE APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 18-CI-01509
LOUISVILLE ROAD VENTURES, LLC; AND COMMONWEALTH OF KENTUCKY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: Robert Ragle appeals from the Warren Circuit Court’s order
granting summary judgment to Louisville Road Ventures, LLC (LRV), in a slip
and fall case. We affirm.
Ragle is an investigator for the Commonwealth of Kentucky
Department of Workers’ Claims. His office is located in Bowling Green,
Kentucky, on premises leased by the Commonwealth from Louisville Road Ventures, LLC. On November 27, 2017, Ragle tripped on a loose threshold on his
way into the office, hitting the door frame. He was required to undergo surgery to
repair his injured knee.
On October 31, 2018, Ragle filed a complaint against the building’s
owner (LRV) and manager (J. Allen Builders, Inc.), alleging that they breached
their duty of care by failing to maintain the premises in a safe condition and by
failing to warn of an unreasonably dangerous condition on the property. Ragle
sought past and future medical expenses, lost wages, and compensation for
permanent impairment of his ability to earn wages. He additionally sought an
award for physical and mental anguish and emotional distress. J. Allen Builders,
Inc., was dismissed as a party per agreed order one month later.
On March 15, 2019, the Commonwealth moved for leave to intervene,
stating that Ragle’s injuries were incurred in the course and scope of his
employment, that compensation had been made to him pursuant to Kentucky
Revised Statutes (KRS) Chapter 342, and that the Commonwealth was entitled to
recover the amount it had paid should Ragle be successful in his complaint against
LRV. The Commonwealth filed an amended motion to intervene two weeks later.
The circuit court granted the motion on May 6, 2019. Ragle’s deposition was
taken on May 21, 2019.
-2- LRV filed a motion for summary judgment on July 2, 2019, arguing
that, because the property was leased in its entirety to the Commonwealth, LRV
had relinquished control of the property. LRV stated that the Commonwealth was
responsible for the premises. Furthermore, LRV continued, “multiple
Commonwealth employees were aware that the piece of trim had been loose prior
to the fall,” yet no one notified LRV of this dangerous condition; instead, the
lessee chose to make the repairs itself. Thus, LRV claimed it was entitled to
summary judgment because there was no hidden danger and the tenant was
responsible for any damages.
Ragle filed his first amended complaint on July 15, 2019, correcting
the date of injury (from November 22 to November 27, 2017). Two weeks later,
Ragle responded to the motion for summary judgment, stating that he was never
aware of the loose trim, that the lease agreement required LRV to maintain the
premises, and that there existed genuine issues of material fact which made
summary judgment inappropriate. Several exhibits, including photos of the
entranceway, Ragle’s medical records, and a copy of the lease agreement, were
appended to the response.
A hearing was held on August 5, 2019. The circuit court entered its
order granting LRV’s motion on January 9, 2020. Ragle filed his notice of appeal
on January 22, 2020.
-3- We begin by stating the standard of review for summary judgments,
namely:
“The standard of review on appeal of summary judgment is whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Summary judgment involves only legal questions; whether a fact is material and, if so, whether there is a genuine issue regarding that material fact are legal questions. Stathers v. Garrard County Bd. of Educ., 405 S.W.3d 473, 478 (Ky. App. 2012). Thus, we utilize a de novo review standard. Id.
Kentucky courts have repeatedly stated, and we continue to adhere to these bedrock principles, that summary judgment is an extraordinary remedy, it is to be “cautiously applied[,]” and it “should not be used as a substitute for trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991). “The trial court must review the evidence, not to resolve any issue of fact, but to discover whether a real fact issue exists.” Shelton v. Kentucky Easter Seals Soc’y, 413 S.W.3d 901, 905 (Ky. 2013) (footnote omitted). This requires both the trial court and this Court to review the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in [its] favor.” Steelvest, 807 S.W.2d at 480.
Joiner v. Kentucky Farm Bureau Mutual Insurance Company, 582 S.W.3d 74, 77-
78 (Ky. App. 2019). Here, the facts must be viewed in a light most favorable to
Ragle as we review the propriety of the circuit court’s ruling. Id. at 78.
Ragle first argues that summary judgment was improperly granted
because LRV breached its duty to maintain and repair the premises under the terms
-4- of the lease. In order to succeed under this theory of recovery, it was incumbent
upon Ragle to prove that LRV “owed a duty to [Ragle], breached that duty, and
consequent injury followed.” Shelton, 413 S.W.3d at 906 (citation omitted). Ragle
concedes that whether LRV owed him a duty was a question of law to be
determined by the circuit court. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89
(Ky. 2003).
Ragle’s contention here is that the lease agreement between LRV and
the Commonwealth included express language requiring LRV to maintain and
repair the premises. Therefore, Ragle continues, the circuit court erred in holding
thus in its order granting summary judgment:
When a contractual duty to repair exists, landlords are liable only for the costs of repair. Miller v. Cundiff, 245 S.W.3d 786, 788 (Ky. App. 2007). If the defect is obvious and known, recovery is precluded. Pinkston v. Audubon Area Comm. Serv., Inc., 210 S.W.3d 188, 190 (Ky. App. 2006). While it is arguable that the lease in this case contained a contractual duty to repair, the loose rubber flooring joint was known to be an issue by other employees of Tenant [Commonwealth]; Defendant [LRV] was never informed of the defect; and Tenant [Commonwealth] had full control over the area in which the defect was located.
But Joiner v. Tran & P Properties, LLC, holds similarly: “Kentucky
law provides that the remedy for breach of an agreement to repair is the cost of the
repair. Because the [tenants] did not pay for the repairs, they cannot assert a claim
for damages.” 526 S.W.3d 94, 102 (Ky. App. 2017). Ragle does not contend, nor
-5- did he offer proof of any kind in that regard, that LRV was made aware of the
danger concerning the loose threshold material. The Commonwealth, as lessee of
the building, had control over the premises and did not alert LRV to any hazards.
The circuit court properly ruled that LRV did not breach a duty to Ragle. Joiner v.
Kentucky Farm Bureau, 582 S.W.3d at 77-78.
Ragle secondly maintains that there was a genuine issue of material
fact regarding whether the dangerous condition was open and obvious. Again, we
disagree. In his deposition testimony, Ragle stated that other employees in his
building were aware of the loose threshold material. And he only insists that LRV
should have known of the defect, not that it actually did know. The question also
remains one of damages: it was a question of law, not fact, that damages were
limited to the cost of repair, not any personal injuries to Ragle (who was
compensated for his injuries through his workers’ compensation claim). Pinkston,
supra; Miller, supra; Joiner v. Kentucky Farm Bureau, supra. See also True v.
Fath Bluegrass Manor Apartment, 358 S.W.3d 23, 28 (Ky. App. 2011).
The judgment of the Warren Circuit Court is affirmed.
ALL CONCUR.
-6- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE LOUISVILLE ROAD VENTURES: Richard M. Guarnieri Frankfort, Kentucky James P. Freel Brian M. Gudalis Lexington, Kentucky
NO BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY
-7-