CORDELIA PARKER v. JOE E. JOHNSON
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RENDERED: June 25, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000937-MR
CORDELIA PARKER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHELIA R. ISAAC, JUDGE
ACTION NO. 96-CI-2124
v.
JOE E. JOHNSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Cordelia Parker (Parker) appeals from an order
of the Fayette Circuit Court entered March 20, 1998, granting
summary judgment to the appellee, Joe E. Johnson (Johnson).
We
affirm.
The operative facts of this case are not in dispute.
In June of 1995, Parker resided in an apartment complex
maintained by Johnson Realty, which is owned and operated by
Johnson.
On June 23, 1995, Parker noticed water leaking from her
kitchen ceiling and phoned Johnson Realty to report the leak.
agent of Johnson told her that maintenance would be notified of
An
the leak.
However, repairs were not effected that day.
As the
leak worsened, Parker continually notified Johnson through
Johnson Realty from June 23, 1995, to June 25, 1995.
Each day
promises of maintenance were made but no service or inspection
followed.
On June 26, 1995, Parker again notified Johnson of the
leak.
By this time portions of the ceiling were bulging from a
build-up of water and a small piece of plaster had fallen.
Johnson’s agent told Parker to stay out of the area where the
leak occurred and to pack some items in preparation for temporary
relocation to an upstairs apartment.
As Parker was packing
dishes in the kitchen, the ceiling collapsed on her causing
injury.
On June 25, 1996, Parker filed a complaint in the
Fayette Circuit Court against Johnson alleging negligence by
Johnson for failure to maintain safe premises for residents of
the property occupied by her; failure to properly maintain the
ceiling; failure to exercise the standard of care owed to her;
and failure to warn her of the hazardous conditions of the
premises.
On December 10, 1997, after limited discovery, Johnson
filed a motion for summary judgment on the issue of liability.
This motion was heard by the trial court on March 17, 1998.
At
the hearing the trial court denied Johnson’s motion finding that
several issues of material fact had yet to be determined.
These
issues of material fact included whether Johnson’s failure to
address the leak for three (3) days was reasonable; whether
Parker’s presence in the kitchen was reasonable; and the content
and adequacy of Johnson’s alleged warning to Parker.
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However, on
March 29, 1998, the trial court entered an order granting
Johnson’s motion for summary judgment.
This appeal followed.
A moving party is entitled to summary judgment only
where 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.”
56.03.
Kentucky Rules of Civil Procedure (CR)
In the oft cited case Steelvest, Inc. v. Scansteel
Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991), the
Supreme Court of Kentucky stated:
[T]he proper function of summary judgment is
to terminate litigation when, as a matter of
law, it appears that it would be impossible
for the respondent to produce evidence at the
trial warranting a judgment in his favor.
[A] judgment is only proper where the movant
shows that the adverse party could not
prevail under any circumstances....
...
[T]he rule [CR 56.03] is to be cautiously
applied. 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. 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.
Further, in discussing when summary judgment is proper in a
negligence case, the Supreme Court of Kentucky in Adkins v.
Greyhound Corp., Ky., 357 S.W.2d 860, 862 (1962), stated:
CR 56.03 authorized summary judgment if it be
shown “that there is no genuine issue as to
any material fact and the moving party is
entitled to a judgment as a matter of law.”
-3-
That the evidence is not in conflict does
not, of course, preclude the existence of
issues as to material facts. In a negligence
case, such as this, whether a party conformed
to the standard of care required of him and,
if not, whether failure to do so had a
proximate or contributing causal connection
with the accident and injury are issues of
material fact unless the answer is so clear
that there is no room for difference of
opinion among reasonable minds. [citations
omitted]...A summary judgment is proper when
it is manifest that the party against whom
the judgment is sought could not strengthen
his case at a trial and the moving party
would be entitled ultimately and inevitably
to a directed verdict. (emphasis added).
The present case is indicative of the situation
described in Adkins.
dispute.
The operative facts of the case are not in
Instead the issue of causation is before this Court,
specifically, the narrow issue of “necessity.”
In this appeal,
Parker argues that the standard for summary judgment was not met.
She further argues that Johnson was negligent by failing to
repair the ceiling.
Finally, she argues that even is she was
negligent, the trial court should have applied the doctrine of
comparative negligence to apportion fault between her and
Johnson.
We disagree.
Under Kentucky tort law, each person has the duty to
exercise ordinary care for his own safety and is not licensed to
walk blindly into dangers which are obvious, are known to him, or
would be anticipated by a person of ordinary prudence.
Allen Const. Co., Ky., 416 S.W.2d 733 (1967).
Morton v.
“An individual who
exposes himself to a known danger that is imminent and obvious to
a person with ordinary prudence, has acted negligently as a
matter of law.”
Smith v. Louis Berkman Co., 894 F.Supp. 1084,
-4-
1094 (W.D. Ky. 1995).
Further, “when parties act with full
knowledge of the prevailing conditions,...there is no duty to
warn nor is there an actionable claim against a third party for
injuries that involve the condition itself.”
Peak v. Barlow
Homes, Inc., Ky. App., 765 S.W.2d 577, 579 (1988)(citations
omitted).
Parker admits in her brief that she was aware of the
hazardous condition present in the kitchen.
She stated that she
noticed “portions of the ceiling exhibited bulges from a build-up
of water, and a small piece of plaster had fallen.”
In addition,
Parker admits that Johnson’s agent warned her to “stay out of the
area where the leak occurred.”
Under these circumstances, we
believe that the dangerous condition of the ceiling was open and
obvious and that Parker was fully aware of that danger.
However,
Parker chose to expose herself to that danger and the pivotal
question before the trial court was whether that exposure
occurred out of necessity.
In granting Johnson’s motion for summary judgment, the
trial court stated:
The question for the Court is whether as a
matter of law Parker has failed to make a
showing of “substantial necessity or urgency”
to pack her dishes at the time she was
injured. Davis v. Coleman Management Co., KY
765 S.W.2d 37, 40 (1989). Two older cases,
Fuhs v. Ryan, Ky. App., 571 S.W.2d 627 (1978)
and Houchin v. Willow Ave. Realty Co., Ky.,
453 S.W.2d 560 (1970) are instructive on what
constitutes a necessity. Although both were
decided before Kentucky adopted comparative
fault, their analyses [sic] of the doctrine
of necessity remain helpful to the Court.
The Fuhs court reversed the trial court’s
entry of summary judgment for the landlord.
-5-
Id., 571 S.W.2d at 629. In that case, the
tenant was injured while descending an icy
staircase, which was the only way to access
the ground from her third-floor apartment.
She had been ordered to report to work. On
these facts, the court was not prepared to
hold her decision “per se unreasonable.” Id.
On the other hand, the Houchin plaintiff was
injured while walking down an unlit stairway
to wash her curtains. The light bulb in the
stairway had burned out some two weeks prior
to her injury.
In this case, the Court finds that the
situation is more akin to that in Houchin
than that in Fuhs. Although Parker had been
warned about the fragile state of the ceiling
and told to vacate the premises, she took the
time to wash and then begin packing her
dishes. This is not the sort of pressing
circumstance which constitutes a necessity.
As a matter of law the court therefore holds
that it would be impossible at trial for
Parker to prove a necessity existed.
We agree with the trial court’s reasoning in this
matter and believe that there is no room for difference of
opinion among reasonable minds.
Thus, because Parker exposed
herself to an open and obvious danger, which was admittedly known
to her, without necessity, she is liable for the injuries she
sustained when the ceiling collapsed.
Under these circumstances
we do not reach the doctrine of comparative negligence.
Had
necessity justified Parker’s presence in the kitchen when the
ceiling collapsed, application of the doctrine of comparative
negligence might be appropriate to apportion fault between Parker
and Johnson if Johnson were found negligent.
The issue of
whether or not Johnson was negligent in failing to effectuate
repairs in four days time was not decided by the trial court and
is not properly before us at this time.
However, Johnson’s
negligence is questionable under present authority in this state.
-6-
See Mahan-Jellico Coal Co. V. Dulling, Ky., 139 S.W.2d 749 (1940)
(holding where contract exists for landlord to effect repairs,
landlord liable for cost of repairs but generally not liable for
damage to persons or goods resulting from unrepaired defects).
We believe summary judgment was proper in this case.
For the foregoing reasons, the decision of the trial court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shirley Allen Cunningham, Jr.
Rosanna L. Peace
W. Robert Farmer
Lexington, KY
Paul F. Guthrie
Errol Cooper
Lexington, KY
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