CHANEL LABAT v. BURWELL K. MARSHALL
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RENDERED: DECEMBER 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000968-MR
CHANEL LABAT
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN COREY, JUDGE
ACTION NO. 97-CI-02988
BURWELL K. MARSHALL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
Chanel Labat (Labat) appeals an order of the
Jefferson Circuit Court entered on March 20, 1998, granting
Burwell K. Marshall's (Marshall) motion for judgment on the
pleadings and dismissing Labat's claims against Marshall.
We
affirm.
The facts of this case are not in dispute.
resident of the Parish of Orleans, Louisiana.
Labat is a
On or about July
13, 1996, Labat was injured while crossing a manhole cover on the
sidewalk in front of 122 West Main Street, Louisville, Kentucky.
The manhole cover lid tilted striking her right knee and thigh as
she partially fell into the opening.
Marshall owns the premises
located at 122 West Main Street.
Labat filed her initial complaint against the
Louisville Water Company on June 2, 1997.
On June 30, 1997,
after learning that the Louisville Water Company may not have a
legal duty with respect to the manhole cover, Labat filed her
first amended complaint adding defendants Marshall; Mary K. Zena
(Zena), lessee of the said premises; the City of Louisville; and
John Doe, an unknown individual who is believed to have performed
repair work on the manhole cover prior to Labat's fall.
On March
19, 1998, the trial court dismissed Labat's action against the
City of Louisville because she failed to comply with the ninetyday notice requirement pursuant to KRS 411.110.
On April 2,
1998, the trial court dismissed Labat's action against the
Louisville Water Company for failure to state a cause of action
upon which relief could be granted.
On September 2, 1997, Marshall moved the trial court
for a judgment on the pleadings.
22, 1997.
Labat responded on September
On March 20, 1998, the trial court granted Marshall's
motion for judgment on the pleadings.
This appeal followed.
Labat argues on appeal that the owner or occupant of
the premises abutting the sidewalk is required to maintain a what
he now calls a “coal chute” that is constructed for the benefit
of said property pursuant to the decision of the Kentucky Supreme
Court in Kniffley v. Reid, 152 S.W.2d 615 (1941).
Kniffley and this case differ significantly.
The facts of
Kniffley, a
pedestrian, stepped onto a manhole cover and fell into the chute
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sustaining certain injuries.
The manhole cover had been placed
in the sidewalk by Reid's father, for the exclusive use of the
building owned by Reid, some thirty-five years prior to the
accident.
Although the manhole cover was no longer in use, Reid
acquired by succession a servitude in the sidewalk.
The Kentucky
Supreme Court held:
It was therefore her duty to exercise
ordinary care to maintain the manhole cover
and its covering in a condition reasonably
safe for pedestrians using the sidewalk, and,
if she had notice that said chute and its
covering were, or either of them was, in a
defective condition and had such knowledge
for a period of time sufficient to have
enabled her, in the exercise of ordinary
care, to have repaired it, it was her duty to
do so, and if she failed in such duty and the
defective condition caused the accident
complained of, she is liable to [Kniffley]
for the resulting damages.
Id. at 616 (citation omitted) (emphasis added).
Reid was held
liable for Kniffley's injuries because she had knowledge that the
manhole covering was defective prior to the accident.
In the case before us, Labat failed to allege any fact
to implicate Marshall as a negligent party in this action.
It is
undisputed that the alleged incident occurred on the sidewalk
adjacent to Marshall’s property.
Labat did not allege or produce
any evidence that Marshall had altered or created a dangerous
condition on the sidewalk.
Labat did not produce any evidence
that Marshall knew or could have known of any defective condition
existing in the sidewalk.
The trial court found, in its order
dismissing Labat’s claim, that “[Labat] does not have any
evidence that [Marshall] altered or created a dangerous condition
on the sidewalk.”
We agree.
Our review of the pleadings has
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failed to produce any evidence to the contrary.
As such, we
cannot say the trial court’s decision was an abuse of discretion
nor was it clearly erroneous.
"The general rule is that no common-law duty rests upon
the owner or occupant of premises abutting on a public street to
keep the sidewalk in repair. [citations omitted].
The duty to
keep sidewalks in reasonably safe condition for public travel
rests primarily upon the municipality."
Equitable Life Assur.
Soc. v. McClellan, Ky.App., 149 S.W.2d 730, 731 (1941).
Marshall
argues that he is not liable for Labat's injuries because the
duty to maintain a sidewalk rests with the municipality and not
the abutting property owner pursuant to the Kentucky Supreme
Court's recent decision in Schilling v. Schoenle, Ky., 782 S.W.2d
630 (1990).
Schoenle was injured while crossing a sidewalk that
abutted The Aldan Company, a business owned and operated by
Schilling.
At the time of her fall, a defect in the sidewalk was
covered with snow.
Schoenle sued Schilling in circuit court.
The basis of her complaint was an ordinance enacted by the City
of Newport requiring landowners to keep the sidewalks abutting
their property in good repair and free from snow, ice, mud and
other debris.
The Kentucky Supreme Court, following a similar line of
cases, held that ordinances requiring abutting property owners to
keep sidewalks clean and in good repair created only a financial
obligation on the landowners to bear the cost of maintenance and
repair but did not impose liability upon landowners to travelers
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injured on the sidewalk. Id. at 633.
See also Vissman v. Koby,
Ky., 309 S.W.2d 345 (1958); Webster v. Chesapeake O. Ry. Co.,
Ky.App., 105 S.W. 945, (1907); and Equitable Life Assur., supra.
In Webster, the then Court of Appeals reasoned:
If a municipality could, by placing the
liability upon the abutting property owner,
relieve itself from the duty of keeping its
streets in repair, it would have the effect
of relaxing its care and supervision of them.
The responsibility would be divided, to the
detriment of the public service. If, under
an ordinance authorized by the charter, the
city may require the property owner to keep
in repair the sidewalks in front of his
premises, the obligation to do so is one that
he owes to the city, and not to the
individual. It does not impose any duty the
breach of which would render him liable to
the traveler.
Webster, 105 S.W. at 946.
The modern theory of liability for sidewalk injuries,
as affirmed in Schilling, places the responsibility for sidewalk
maintenance and repair with the municipality and not with
abutting landowners.
As such, Marshall had no duty to maintain
the sidewalk or the manhole cover.
the City of Louisville.
This duty rests solely with
Therefore, the trial court appropriately
granted Marshall's motion for judgment on the pleadings.
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark B. Geller
Louisville, KY
Robert T. Watson
Louisville, KY
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