MILDRED E. CHAMBERLIN NEXT FRIEND OF SHERRA CHAMBERLIN V. MADISON GROCERY COMPANY, INC.
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RENDERED: May 1, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2911-MR
MILDRED E. CHAMBERLIN
and RUSSELL CHAMBERLIN AS
NEXT FRIEND OF SHERRA
CHAMBERLIN
V.
APPELLANTS
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JULIA HYLTON ADAMS, JUDGE
ACTION NO. 95-CI-49
MADISON GROCERY COMPANY, INC.
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
BUCKINGHAM, GARDNER and SCHRODER, Judges.
GARDNER, JUDGE:
Appellants appeal from an order of the Madison
Circuit Court granting summary judgment for the appellee, Madison
Grocery, Inc. (Madison), in this negligence action.
The issue
presented in this case concerns the legal duty owed by a truck
driver for Madison, who had parked legally in a store's parking
lot, to drivers travelling on an adjacent highway.
Appellants
claim the driver breached his duty to keep the exits visible for
drivers pulling out of the store's lot.
After carefully reviewing
the record and the applicable law, we affirm.
This case arose from events occurring on July 27, 1994
near Lamb's Grocery (Lamb's) on Scaffold Cane Road in Madison
County, Kentucky.
Lamb's is a small rural grocery with gas pumps
located directly in front of the store next to the road, and
parking located on the south side of the store.
A truck driver for
Madison arrived at Lamb's on this day and because the parking lot
was apparently full, parked his vehicle on the south side of the
gas pumps, adjacent to the roadway.
Michael Banks (Banks) was a
patron of the store who attempted to pull out of Lamb's parking
lot.
Banks has contented that the only place to pull out of the
lot when he left was beside Madison's truck.
He maintains that the
truck obscured his vision of the southbound lane of Scaffold Cane
Road.
Banks turned left and pulled out into the road and struck a
car driven by Mildred Chamberlin (Mildred) in which her daughter,
Sherra
(Sherra),
was
a
passenger.
Mildred
and
Sherra
both
sustained injuries as a result of the accident.
In January 1995, Mildred filed a civil action in Madison
Circuit Court against Banks and Madison alleging negligence by
Banks for negligently, carelessly, and recklessly operating his
motor vehicle and alleging negligence on the part of Madison for
negligently parking its delivery vehicle so as to obstruct Banks'
view.
Mildred settled her case against Banks, and an order
dismissing that suit was entered.
In August 1996, Madison filed a
motion for summary judgment, and a hearing was heard on the matter
on September 6, 1996.
-2-
In an order of September 30, 1996, the circuit court
granted
summary
judgment
for
Madison.
The
court
found
that
Madison's driver could not have reasonably foreseen that the
parking lot area immediate to the truck would have become the only
possible exit opportunity from the parking lot.
The court noted
that the parking maneuvers of the other drivers of the vehicles in
the lot which effectively sealed off all other potential avenues
for exit, controlled the situation.
The court therefore concluded
that the truck driver did not fail in his duty of diligence to
others on the roadway when he parked the truck within the confines
of Lamb's lot.
Therefore, it held there was no breach of duty owed
to Mildred or Sherra by Madison. Appellants have appealed from the
circuit court's order.
Appellants maintain that the circuit court incorrectly
granted summary judgment for Madison.
They argue that the driver
of the delivery truck parking near a roadway owed a duty to all
persons using the street not to park as to block the view of
oncoming traffic from the parking lot's only exit. After carefully
reviewing the facts of this case and examining the law from
Kentucky and other jurisdictions, we have concluded that the
circuit court correctly ruled as a matter of law that Madison and
its driver did not owe a specific duty or breach any duty to
appellants based upon the unique facts of this case.
Actionable negligence consists of a duty, a violation
thereof, and a consequent injury.
Commonwealth of Kentucky,
Transportation Cabinet Department of Highways v. Shadrick, Ky., 956
-3-
S.W.2d 898 (1997); Howard v. Fowler, 306 Ky. 567, 207 S.W.2d 559,
561 (1947).
The absence of any of these elements is fatal to the
claim. Commonwealth of Kentucky, Transportation Cabinet Department
of Highways v. Shadrick, 956 S.W.2d at 900.
The concept of
liability for negligence expresses a universal duty owed by all.
Grayson
Fraternal
Order
of
Eagles,
Aerie
No.
3738,
Inc.
v.
Claywell, Ky., 736 S.W.2d 328, 330 (1987); Sheehan v. United
Services Auto. Ass'n., Ky. App., 913 S.W.2d 4, 6 (1996).
a
duty
to
exercise
ordinary
care
There is
commensurate
with
the
circumstances and the potential harm encountered that does not turn
on and off depending on who is negligent. North Hardin Developers,
Inc. v. Corkran, by Corkran, Ky., 839 S.W.2d 258, 261 (1992);
Grayson
Fraternal
Order
of
Claywell, 736 S.W.2d at 330.
Eagles,
Aerie
No.
3737,
Inc.
v.
In order to apply a universal duty of
care to a particular circumstance, it must appear that the harm was
foreseeable, and the facts must be viewed as they reasonably
appeared
to
the
parties
charged
with
negligence.
Harrison, Ky., 896 S.W.2d 908, 909 (1995).
Fryman
v.
If the ultimate
injuries were not foreseeable to the defendants, and if the victim
of the injury was not identifiable, there was no duty to prevent
such an injury.
probable.
a
duty
is
Id.
The duty is limited to the natural and the
Howard v. Fowler, 207 S.W.2d at 562.
an
determination
issue
of
regarding
law,
and
such
existence,
essentially a policy determination.
Auto. Ass'n., 913 S.W.2d at 6.
-4-
the
court
The existence of
when
engages
making
in
what
the
is
Sheehan v. United Services
Prior to the application of a
universal duty of care to a particular set of facts, it must appear
that the harm was foreseeable and the facts must be viewed as they
reasonably appeared to the party charged with negligence, not as
they appear based on hindsight.
Corkran, 839 S.W.2d at 261.
North Hardin Developers, Inc. v.
No person can be expected to guard
against harm from events which are not reasonably to be anticipated
at all, or are so unlikely to occur that the risk, although
recognizable, would commonly be disregarded.
Id., at 262, quoting
W. Prosser, Torts, ยง 31 (1978).
In general, summary judgment should only be used to
terminate litigation when as a matter of law it appears that it
would be impossible for the respondent to produce evidence at trial
warranting a judgment in his or her favor against the movant.
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d
476, 483 (1991), quoting Paintsville Hospital Co. v. Rose, Ky., 683
S.W.2d 255 (1985); Farmer v. Heard, Ky. App., 844 S.W.2d 425
(1992). Summary judgment is properly granted only when there is no
genuine issue as to any material fact, and the movant is entitled
to prevail as a matter of law.
Mullins v. Commonwealth Life Ins.
Co., Ky., 839 S.W.2d 245, 247 (1992); Kentucky Rule of Civil
Procedure (CR) 56.03.
The granting of a summary judgment for
failure to state a cause of action in negligence cases is proper in
the absence of a legal duty.
Sheehan v. United Services Auto.
Ass'n., 913 S.W.2d at 6.
We have reviewed Kentucky authorities and have found no
cases which are directly similar to the instant case; however, they
-5-
are
helpful
in
determining
whether
travelling public in the case at bar.
237
S.W.2d
520
distinguishable.
(1951),
relied
on
a
duty
was
owed
to
the
Bosshammer v. Lawton, Ky.,
by
appellants
is
factually
The driver in that case had left his vehicle
unattended on an icy highway in violation of a state statute.
The
court concluded that leaving a car unattended under such conditions
created a situation which involved an unreasonable risk to other
users of the highway because of the expectable actions of another
driver or of a third person.
Howard v. Fowler, supra, appears to
be the closest Kentucky case in point to the case at hand.
The
court in that case found that the driver of a bus which was parked
off a highway in a parking area had not failed to exercise proper
care and had not breached a duty towards a pedestrian standing by
the bus when a driver on the adjacent roadway hit a truck parked by
the bus which struck the pedestrian.
The court concluded that the
bus played no part in the accident except that it was present in
the vicinity. Finally, in Commonwealth of Kentucky, Transportation
Cabinet
Department
of
Highways
v.
Shadrick,
supra,
the
Transportation Cabinet, Department of Highways had permitted a
truck to remain for some time on the shoulder of a highway,
approximately eight feet from the travelled roadway, and another
vehicle went out of control and struck the stranded vehicle.
The
court concluded that the Board of Claims correctly found that no
duty had been breached.
The court held that no duty is imposed
upon the Department with respect to maintenance of roads to guard
against all reasonably foreseeable and reasonably preventable harm
-6-
to travellers, including those who are not exercising due care but
whose lack of due care is not so extreme as to be unforeseeable.
The court found that it would be unreasonable and impractical to
hold the department responsible for the negligence of others.
Courts from other jurisdictions appear divided on the
question of the duty by landowners and those parked on private
property or public ways to drivers on adjacent streets in cases
involving poor visibility.
In Shaw v. Soo Line Railroad Co., 463
N.W.2d 51 (Iowa 1990), an occupant of a motor vehicle was killed by
a
train.
The
plaintiffs
alleged
that
the
nearby
landowner
obstructed the view of a railroad crossing by having two trailers
parked on his land.
The appellate court upheld the trial court's
entry of summary judgment, because the landowner had breached no
statutory or common law duty.
The court held that the presence of
obstructions to the view at a railroad crossing is a circumstance
which bears upon the degree of care required to be exercised by
both the railroad and the motoring public but does not provide a
basis for a cause of action in tort against the landowner.
Id.
In
Adame v. Munoz, 678 N.E.2d 26 (Ill. App. 1997), the plaintiff's son
who was riding a bicycle was struck by the driver of an automobile.
The plaintiff sued the owner of a nearby apartment building who
controlled the parking lot and the nearby cul-de-sac where the
accident occurred.
She contended that the owner was negligent for
placing trash dumpsters in an area which obstructed the view of
bicyclists, motorists and others in the vicinity.
The appellate
court upheld the trial court's dismissal of the complaint, because
-7-
there was simply no duty in Illinois on the part of the landowners
to maintain their property in such a way that property conditions
do not obstruct the view of travelers on an adjacent highway, and
this rule applied where the obstruction is an artificial condition.
The court concluded that the driver was in the best position to
prevent the injury by slowing down and driving cautiously.
In
reaching its decision, the court relied on Ziemba v. Mierza, 566
N.E.2d
1365
(Ill.
1991)
(holding
that
in
a
case
where
the
plaintiff, a bicyclist who was struck when a truck pulled out of
the defendant's driveway, and claimed that the defendant had a duty
to trim the foliage on his land near the driveway so that the
driveway was visible to travellers on the street, no duty existed
because the condition alone was not dangerous and the accident was
a reasonably foreseeable event of the foliage only if it was
reasonably foreseeable that the driver would violate his statutory
duties when pulling out of the defendant's driveway and that the
defendant had a right to expect that the truck driver would check
for oncoming traffic and could not have reasonably foreseen that a
driver would exit a driveway without first ascertaining whether any
traffic was approaching on the adjacent road.) See also Manning v.
Hazekamp, 569 N.E.2d 1168 (Ill. App. 1991).
In the instant case, the circuit court correctly held
that Madison did not violate its duty of reasonable and ordinary
care to motorists travelling upon Scaffold Cane Road.
The court
properly noted that it would not impose a specific duty upon
Madison and its driver, because the driver had parked legally and
-8-
could not reasonably have foreseen that the spot at which Banks
exited the grocery's parking lot beside his vehicle would become
the only exit from the lot.
We agree that based upon the specific
facts involved, Madison's driver could not have anticipated or
foreseen that the only exit from the lot would be directly beside
his truck at the time that he legally parked his truck and went
into the grocery to make deliveries.
Appellants have cited no
cases which would impose such a duty upon Madison.
clearly no statutory duty breached here.
There was
Again, the parking
maneuvers of other drivers in the lot which effectively sealed off
all other potential avenues for exit controlled this situation.
Further, because Madison's driver could not have foreseen this
circumstance, he also could not have foreseen that someone would
exit beside his truck without obtaining help in getting a clear
view of the roadway.
Since the trial court correctly concluded as
a matter of law that there was no such duty owed and no breach of
the duty of reasonable and ordinary care, summary judgment was
appropriate, since it would have been impossible for plaintiffs to
produce evidence at trial warranting a judgment in their favor.
For
the
foregoing
reasons,
judgment of the Madison Circuit Court.
ALL CONCUR.
-9-
this
Court
affirms
the
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James T. Gilbert
Richmond, Kentucky
Douglas L. Hoots
Lexington, Kentucky
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