LAKESHORE VILLAGE, INC. v. DON R. BUNDY DON R. BUNDY v. LAKESHORE VILLAGE, INC.
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RENDERED:
DECEMBER 21, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002470-MR
LAKESHORE VILLAGE, INC.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 95-CI-04009
v.
DON R. BUNDY
APPELLEE
AND:
NO. 2000-CA-002558-MR
DON R. BUNDY
CROSS-APPELLANT
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 95-CI-04009
v.
LAKESHORE VILLAGE, INC.
CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY, MILLER, AND TACKETT, JUDGES.
MILLER, JUDGE:
These appeals spring from a judgment of the
Fayette Circuit Court entered August 30, 2000 upon a jury
verdict.
Lakeshore Village, Inc. brings Direct Appeal No. 2000-
CA-002470-MR.
Don R. Bundy brings Cross-Appeal No. 2000-CA-
002558-MR.
We affirm on Direct Appeal 2000-CA-002470-MR, and
affirm as moot Cross-Appeal No. 2000-CA-002558-MR.
The facts of the case are these.
The appellee/cross-
appellant, Don R. Bundy, was the owner of Unit 131 in the
Lakeshore Village, Inc. (Lakeshore) Condominium Complex located
in Lexington, Kentucky.
On January 6, 1995 at approximately 5:30
p.m., Bundy returned from work and parked his vehicle in the
carport.
He commenced traversing the walkway between the carport
and his condominium.
the day.
It had been raining and freezing throughout
The walkway was laden with ice.
Bundy slipped and
fell, receiving very severe injuries.
Through arrangements with the owners of the
condominiums, Lakeshore was responsible for external maintenance
of the complex, including walkways and common areas.
For this
service, the condominium owners, including Bundy, paid a
maintenance fee of $137.00 per month.
Maintenance was carried on
under the supervision of a property manager, to wit, Carol Del
Bello.
Lawn Works, a company owned and operated by one Mike
Clarkson, was employed by Lakeshore as a snow removal contractor.
Clarkson came on the morning of January 6, at the hour of 6:30
a.m. and applied a urea compound as an ice melt to certain areas
of the driveway.
He discussed the grave weather conditions and
the matter of deicing the walkways with Del Bello.
Apparently,
he decided that deicing would be futile inasmuch as it was still
raining.
It was thought that the falling rain would wash the ice
melt down the storm drain without effect.
There is evidence that
Clarkson appeared again about 11:00 a.m. and a final time at
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approximately 4:00 p.m.
In neither event were measures taken to
deice or prevent ice from forming on the walkways.
Within an
hour or so after Clarkson's final departure, and under the same
icy conditions, Bundy's mishap occurred.
On December 15, 1995, Bundy filed the instant
litigation against Lakeshore alleging negligence in maintaining
the exterior premises as a causative factor in his falling on the
icy walkway.
The matter came on for trial on August 21, 2000,
resulting in the jury verdict and judgment from which this appeal
is taken.
Lakeshore contends that it should be exonerated from
liability under the principle enunciated in Standard Oil Company
v. Manis, Ky., 433 S.W.2d 856 (1968), Corbin Motor Lodge v.
Combs, Ky., 740 S.W.2d 944 (1987), and Ashcraft v. Peoples
Liberty Bank & Trust Co. Inc.,
Ky. App., 724 S.W.2d 228 (1987).
Under the rule of those cases, the owner of real property is not
liable to a business invitee who is injured by natural outdoor
hazards, which are as obvious to him as the owner.
The owner is
said to have no duty to the invitee.
We reject the appellant's contention.
We are not of
the opinion that the facts at hand come within the purview of the
foregoing authorities.
We think, rather, it comes within the
purview of Daviess v. Coleman Management Co., Ky. App., 765
S.W.2d 37 (1989).
Clearly, we have before us a situation where
Lakeshore, as owner of the condominium complex, retained control
of the sidewalks and common areas of the external premises.
The
obvious purpose of retaining control of those areas was to have
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central responsibility for their maintenance, thus ensuring the
safety and habitability of the complex.
Moreover, we are convinced that by undertaking to
maintain the external premises of the condominium complex,
Lakeshore has exposed itself to liability.
It is a fundamental
principle that one who undertakes to act must act free of
negligence.
See Estep v. B.F. Saul Real Estate Investment Trust,
Ky. App., 843 S.W.2d 911 (1992).
As the facts demonstrate,
Lakeshore not only undertook to act in maintaining the external
premises, but actually contracted to perform the maintenance in
exchange for a monthly fee paid by members of the condominium
complex.
Lakeshore, by this undertaking, clearly created a duty
to the respective owners of the condominiums.
We think the
applicable law, therefore, is whether Lakeshore acted in an
ordinary prudent manner in performing this duty and ensuring the
safety of residents of the condominium complex, including Bundy.
On this issue, we think the matter was properly submitted to the
jury.
Lakeshore complains that Bundy's case should have
failed because he did not demonstrate that application of
chemicals upon the sidewalk would have been effective.
Thus,
Lakeshore contends there was no causal relation between its
failure to apply chemicals and Bundy's fall.
argument.
We reject this
It is common knowledge that application of salt or
other compounds upon icy walkways is a reasonably effective
measure to combat slippery conditions.
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It is also common
knowledge that slippery walkways are a fertile source of slip and
fall accidents.
Lakeshore complains that Instruction No. 2 setting
forth the general duty of Lakeshore violated the “bare-bones”
concept of Kentucky Law relating to instructions.
Instruction
No. 2 provided as follows:
You will find for Don Bundy if you are
satisfied from the evidence as follows:
A)
that by reason of inclement weather the
sidewalk was not in a reasonably safe
condition for use by pedestrians;
B)
that such condition had existed for a
sufficient length of time before the
accident that in the exercise of
ordinary care the employees of
Lakeshore Village should have remedied
it; AND
C)
that their failure to do so was a
substantial factor in causing Don
Bundy's injuries.
We do not interpret the foregoing instruction as
placing specific duties upon Lakeshore in violation of any
authority to which we have been directed. Cf. Rogers v. Kasdan,
Ky., 612 S.W.2d 133 (1981).
In fact, Instruction No. 2 defining
the duty of Lakeshore is no more onerous than Instruction No. 5,
which imposes a similar duty upon Bundy.
Instruction No. 5
provided as follows:
It was the duty of the Plaintiff, Don
Bundy, to exercise ordinary care for his own
safety and protection, including generally
observing the surface upon which he was about
to walk.
You will find for Lakeshore Village
Inc., if you are satisfied from the evidence
that Don Bundy did not exercise ordinary care
for his own safety and protection and that
-5-
this was a substantial factor in causing his
injuries.
Finally, the only other issue preserved for review is
whether the verdict and judgment is supported by the evidence.
There is a presumption in favor of a jury verdict.
See Pope's
Administrator v. Terrill, 308 Ky. 263, 214 S.W.2d 276 (1948).
On
appeal, we are bound to review the evidence most favorable to the
prevailing party.
See Horton v. Union Light, Heat & Power
Company, Ky., 690 S.W.2d 382 (1985).
Upon these premises, we
perceive no merit in appellant's contention.
CROSS-APPEAL NO. 2000-CA-002558-MR
Bundy brings this cross-appeal complaining that the
trial court erroneously excluded certain expert testimony.
In
view of our decision in the direct appeal, it seems to us that
this issue is now moot.
For the foregoing reasons, the judgment of the Fayette
Circuit Court in Direct Appeal No. 2000-CA-002470-MR is affirmed.
Cross-Appeal No. 2000-CA-002558-MR is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSSAPPELLEE, LAKESHORE VILLAGE,
INC.:
BRIEF FOR APPELLEE/CROSSAPPELLANT, DON R. BUNDY:
Douglas T. Logsdon
Lexington, Kentucky
Robert E. Stopher
Louisville, Kentucky
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