MARIA OLIVAS v. MUIR STATION, LLC; ANGELA LEVY-BECK; AND ANTHONY BECK
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RENDERED:
OCTOBER 21, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-001885-MR
MARIA OLIVAS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NOS. 04-CI-00462
AND 03-CI-03028
v.
MUIR STATION, LLC; ANGELA LEVY-BECK;
AND ANTHONY BECK
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Maria Olivas appeals from a summary judgment of
the Fayette Circuit Court, entered August 20, 2004, dismissing
her claim for damages against Muir Station, LLC; Angela LevyBeck; and Anthony Beck.
The Becks reside on property, owned by
the corporation, known as Gainesway Farm in Lexington.
In
February 2003, while working at the Becks’ home as a part-time
nanny, Olivas found herself stranded on a second-floor balcony
when the balcony doors closed and locked behind her.
After
about twenty minutes of fruitlessly calling for help, she tried
to extricate herself by climbing over the balcony railing and
down an adjacent wall by means of window ledges and a rain
gutter.
Unfortunately, she lost hold of the icy gutter, fell,
and broke several bones in her left arm and leg.
In July 2003, she brought suit against the Becks, and
in February 2004, brought a separate but virtually identical
action against the Becks and the corporation.
The two actions
were consolidated by order entered March 1, 2004.
Olivas
contends that the Becks negligently failed to warn her that the
balcony doors were specially designed to close and lock
automatically.
In granting the Becks’ motion for summary
judgment, the trial court ruled that the Becks did not have a
duty to warn Olivas about the self-locking doors both because
such a duty would be impracticably burdensome and because the
risk of unexpected locking was an obvious risk posed by all
exterior doors against which people could be expected to protect
themselves.
In addition to maintaining that the court’s legal
conclusions were erroneous, Olivas insists that the court’s
order denied her a meaningful opportunity for discovery since it
came the day before she was scheduled to inspect the doors and
before she had deposed the Becks.
Agreeing with Olivas that
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summary judgment was inappropriately granted, we reverse and
remand.
The standard of review on appeal of a summary judgment
is whether the circuit court correctly found that there were no
issues as to any material fact and that the moving party was
entitled to a judgment as a matter of law. 1
Summary judgment is
only proper when, after an ample opportunity for discovery, it
appears virtually certain that the non-movant will not be able
to produce evidence at trial warranting a judgment in his or her
favor. 2
In ruling on a motion for summary judgment, the court is
required to construe the record in a light most favorable to the
party opposing the motion. 3
“The duty owed by the person in possession of land to
others whose presence might reasonably be anticipated, is the
duty to exercise reasonable care in the circumstances.” 4
As the
parties note, Olivas was an invitee on the premises the Becks
occupied, and the Becks owe a duty to their invitees to discover
the existence of dangerous conditions on the premises to which
1
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476 (Ky. 1991).
2
Hoke v. Cullinan, 914 S.W.2d 335 (Ky. 1995); Steelvest, Inc. v.
Scansteel Service Center, Inc., supra; Pendleton Brothers
Vending, Inc. v. Commonwealth Finance and Administration
Cabinet, 758 S.W.2d 24 (Ky. 1988).
3
Steelvest, Inc. v. Scansteel Service Center, Inc., supra.
4
Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992).
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the invitee is apt to be exposed and either to correct them or
to warn of them. 5
As her employer, moreover, the Becks owed
Olivas the duty to provide a reasonably safe place to work and
to warn Olivas of the dangers inherent in the place of
employment. 6
On the other hand, an occupier of premises
generally need not take precautions or even warn against dangers
that are known to the invitee or are so obvious that the invitee
may be expected to discover them and protect herself. 7
The trial court thought it impractical to expect the
Becks to warn their invitees of the self-closing balcony doors
when most invitations would not extend to the bedroom off of
which the balcony extended.
For most invitees this is no doubt
true, and for those invitees we agree with the trial court that
the Becks would have no duty to warn them of a risk to which
they would not be apt to be exposed.
visitor to the home, however.
Olivas was not a mere
Her invitation extended to the
bedroom where the children were accustomed to watch television
and it is not unreasonable to suppose that it extended to the
attached balcony as well.
Olivas testified at least that her
invitation extended to anywhere in the house where the children
5
Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997
S.W.2d 490 (Ky.App. 1999) (citing Perry, supra).
6
Theresa Ludwig Kruk, “Employer’s Liability for Injury to
Babysitter in Home or Similar Premises,” 29 ALR4th 304 (1984).
7
Bonn v. Sears, Roebuck & Company, 440 S.W.2d 526 (Ky. 1969).
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might go, including the balcony, and for summary judgment
purposes we are obliged to accept that testimony as true.
Because Olivas could thus be expected to encounter the doors, if
they posed a hidden risk of harm then the Becks owed her a
warning.
The trial court ruled, however, that whatever risk the
doors posed was obvious inasmuch as any door might swing shut
behind one.
We do not agree, first, that just any door poses an
appreciable risk of unexpectedly closing and locking, since most
doors, at least most residential doors, will not do so without a
person’s intervention.
Be that as it may, the court’s ruling
ignores the fact, conceded by the Becks, that these were not
ordinary doors but security doors designed to close and latch
themselves.
Clearly, such doors markedly increase the risk that
one will be unexpectedly and unintentionally locked out as
occurred in this case.
Such a risk was a risk of harm, not only
because of the likely exposure to winter weather, but also
because a babysitter, stranded on the balcony apart from her
charges, was likely to feel compelled, as Olivas did, to attempt
the climb down. 8
Unless their special nature was apparent to
someone unfamiliar with such doors, a fact which only further
8
See Restatement (Second) of Torts § 445 (1965): “If the actor’s
negligent conduct threatens harm to another’s person, land, or
chattels, the normal efforts of the other . . . to avert the
threatened harm are not a superseding cause of harm resulting
from such efforts.”
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discovery could reveal, the trial court erred by deeming the
heightened risk they posed obvious and thus not within the
Becks’ duty to warn.
Because it is not clear from the record as it has thus
far been developed that the heightened risk posed by the
security doors was obvious, summary judgment should not have
been awarded.
If, on remand, it appears that reasonable minds
could believe the risk hidden, then Olivas’s claim should
proceed to trial.
Accordingly, we reverse the August 20, 2004,
order of the Fayette Circuit Court and remand for additional
proceedings consistent with this opinion.
TACKETT, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Teddy L. Flynt
Flynt Law Offices
Salyersville, Kentucky
Donald Killian Brown
Jeri Barclay Poppe
Krauser & Brown
Louisville, Kentucky
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