FALLER (RHODA) VS. ENDICOTT-MAYFLOWER, LLC , ET AL.

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RENDERED: NOVEMBER 20, 2009; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001506-MR RHODA FALLER v. APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 05-CI-010758 ENDICOTT-MAYFLOWER, LLC; PROFESSIONAL PROPERTY MANAGERS, LLC; AND RADER ENTERPRISES, INC., D/B/A BUCK’S RESTAURANT APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. NICKELL, JUDGE: Rhoda Faller (Rhoda) fell and sustained injuries while exiting Buck’s Restaurant in Louisville, Kentucky. She appeals from the Jefferson Circuit Court’s award of summary judgment to Rader Enterprises, Inc., d/b/a Buck’s Restaurant (Rader); Endicott-Mayflower, LLC (Mayflower); and Professional Property Managers, LLC (PPM) (collectively referred to as appellees). Because there are no genuine issues of material fact, and Rhoda cannot prove any act or omission by an appellee substantially caused her to fall, we affirm the circuit court judgment. I. Facts On the afternoon of December 30, 2004, Rhoda met colleagues for a belated holiday gathering at Buck’s Restaurant, a fine dining establishment and cigar room located on the first floor of the historic Mayflower Apartment Building in Old Louisville. Rader owns and operates Buck’s Restaurant in a location leased from Mayflower, owner of the Mayflower Apartment Building. After arriving at the Mayflower Apartment Building, her fourth or fifth such visit to Buck’s in recent years, Rhoda walked down the cobblestone path leading to Buck’s entryway, pulled open the door, and stepped up into Buck’s vestibule -- crossing the threshold from which she would later fall. Buck’s threshold is relatively common. Because it is the subject of Rhoda’s lawsuit, we describe it in detail. Construction of the Mayflower Apartment Building began in 1924 and was completed in 1926. Buck’s has a primitive doorsill – a single piece of stone the width of the door. Resting below the doorway, it protrudes about two inches from the building’s façade, and rises about four inches above a cobblestone path. Affixed to the stone doorsill, and abutting the tiled floor of the vestibule, is a modern, aluminum doorsill that is the same width as the door and about four inches deep. The modern doorsill is raised slightly, but flush with the door. When the door is closed, portions of the modern -2- doorsill extend from both sides of the door and are covered in yellow- and blackstriped caution tape. Rhoda maintains Buck’s threshold is defective because it is not as wide as the accompanying door. She expected the threshold to be wide enough for her to take two steps, but it was wide enough for only one step. She asserts the narrowness of the threshold is the reason she fell. After the gathering concluded, Rhoda walked through the vestibule, followed by her paralegal. Using her right hand, Rhoda pushed open the door which was hinged on her right, and stepped onto the threshold with her right foot. As she did, Rhoda twisted to her right, looking over her outstretched right arm and back into the vestibule to insure the door would not hit her paralegal when she released it. According to Rhoda’s deposition, when she stepped out of the vestibule with her left foot, it “unexpectedly dropped” to the cobblestone path, causing her to fall. As a result of her fall, Rhoda sustained a compound trimalleolar fracture of her left tibia and fibula. She was transported to Baptist East Hospital by ambulance where she underwent surgery on her lower leg. During the surgery, two pins were placed in her tibia and a plate was screwed into her fibula. She remained in the hospital for four days and three nights, and upon her release, was forbidden from placing any weight on her left leg for a month, practically confining her to bed or a wheelchair. Since recovering she has relied on a cane to walk and has experienced vascular problems causing increased swelling in her left ankle. Because her vascular problems are aggravated by flying, and air travel is essential -3- to her work as a medical malpractice attorney, Rhoda no longer handles medical malpractice cases. On December 16, 2005, Rhoda filed a complaint alleging Rader, Mayflower and PPM breached a duty owed to her by: (1) failing to reasonably design, construct and maintain the exit area of the property and business in a reasonably safe condition; (2) negligently constructing a step in an unreasonably dangerous area; and (3) failing to warn of the unreasonably dangerous exit area and step, thus creating a dangerous condition. After answering interrogatories, responding to requests for production and deposing Rhoda, Rader moved for summary judgment alleging Rhoda’s own words eliminated any genuine issue of material fact. Further, Rader argued it was entitled to judgment as a matter of law because: (1) there were no violations of the Kentucky Building Code; (2) the threshold’s condition was open and obvious; (3) Rhoda knew of the threshold’s condition; (4) Rader had satisfied any duty to warn of the threshold’s condition by placing yellow- and black-striped caution tape over the aluminum doorsill; (5) the proximate cause of Rhoda’s fall was her own inattentiveness in failing to look where she was walking; and (6) Rhoda failed to articulate any cause for her fall warranting judgment in her favor. Before responding, Rhoda deposed Curtis Rader, a representative of Rader, and John Endicott, a representative of Mayflower. Thereafter, Mayflower and PPM jointly moved for summary judgment. In doing so, they adopted Rader’s arguments, but alternatively argued that the terms of the lease between Mayflower -4- and Rader made Rader solely responsible for any building code violations at the site of Rhoda’s fall. In response to both motions for summary judgment, Rhoda tied the appellees’ liability for her injury to one of two conditions: either the threshold violated the Kentucky Building Code, or the appellees failed to anticipate that an invitee could be harmed by the threshold’s allegedly dangerous condition. Further, Rhoda alleged that there were genuine issues of material fact regarding whether the threshold was open and obvious, whether acts or omissions of the appellees substantially caused her injury, and whether Rader or Mayflower exercised control over the threshold. Finally, she claimed jurors should decide whether: the caution tape provided a sufficient warning; the motion for summary judgment was premature; and statements in her deposition constituted judicial admissions. On July 9, 2008, the circuit court granted summary judgment in favor of each appellee, finding the threshold’s condition was open and obvious; Rhoda knew of the threshold’s condition before she fell; and she failed to exercise ordinary care for her own safety when leaving Buck’s. Furthermore, after considering testimony from the previous owner of Buck’s, as well as from Rader and Mayflower, the circuit court concluded Rhoda had not produced, and could not produce, sufficient affirmative evidence of a code violation to overcome the presumption created by KRS1 198B.135 which states: 1 Kentucky Revised Statutes. -5- [i]n any action alleging defective building design, construction, materials, or supplies where the injury, death, or property damage occurs more than five (5) years after the date of completion of construction or incorporation of materials or supplies into the building, there shall be a presumption that the building was not defective in design, construction, materials, or supplies. This presumption may be overcome by a preponderance of the evidence to the contrary. According to testimony from Rader and Endicott, and an affidavit from Buck’s previous owner,2 the threshold had not been changed for at least a dozen years before Rhoda’s fall. As a result, the circuit court concluded the appellees were entitled to summary judgment as a matter of law because their actions did not substantially cause Rhoda’s fall. On appeal, Rhoda alleges the trial court erroneously reached four factual conclusions and two legal conclusions. First, she claims there were genuine issues of material fact regarding whether the threshold’s condition was open and obvious. Second, she argues that even if the threshold’s condition was open and obvious, the appellees should have anticipated that an invitee would be harmed. Third, she claims the adequacy of the warning, the yellow- and blackstriped caution tape, was a question of fact reserved for the jury. Fourth, she alleges that the circuit court analyzed the claim under a theory of contributory negligence, contrary to our Supreme Court’s abolition of that doctrine as a total bar to recovery by a tort plaintiff in Hilen v. Hays. 673 S.W.2d 713 (Ky. 1984). Fifth, 2 Hensel “Buck” Heath, Buck’s previous owner and a Buck’s employee when Rhoda fell, prepared an affidavit stating the threshold had not been changed since he opened the restaurant in 1992. -6- she claims there was a genuine issue of material fact regarding whether the dimensions of the threshold violated the Kentucky Building Code. Finally, she claims that the trial court granted summary judgment prematurely because discovery was incomplete. Because Rhoda did not demonstrate the existence of any genuine issue of material fact, and because her own testimony prevented her from prevailing as a matter of law, we affirm the circuit court’s award of summary judgment in favor of all three appellees. II. Applicable Law Before granting a motion for summary judgment, the circuit court must consider the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with any affidavits. CR3 56.03; Cabinet for Families and Children v. Cummings, 163 S.W.3d 425, 427-28 (Ky. 2005) (citing Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991)). Considering the evidence in the light most favorable to Rhoda, the nonmoving party, summary judgment in favor of the appellees is appropriate only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. Therefore, to succeed, the appellees must show that Rhoda could not prevail under any circumstances and that it would be impossible for her to produce any evidence at trial justifying a judgment in her favor. Id. On the other hand, for Rhoda to defeat a properly supported motion for summary judgment, she must present “some affirmative evidence showing that there is a 3 Kentucky Rules of Civil Procedure. -7- genuine issue of material fact for trial.” City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). To prove actionable negligence, Rhoda must establish three elements: (1) an appellee owed her a duty; (2) that appellee breached the standard of care by which its duty is measured; and (3) she was injured as a consequence of the breach. Illinois Central Railroad v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967). The third element, “‘[c]onsequent injury’ consists of . . . two distinct elements: actual injury or harm to the plaintiff and legal causation between the defendant's breach and the plaintiff's injury.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003) (citations omitted). Whether appellees owed Rhoda a duty is a question of law we review de novo. Id. at 89. Whether appellees breached a duty and whether that breach caused injury to Rhoda are questions of fact for a jury to decide. Id. Legal causation, or proximate cause, is a mixed question of law and fact that we review de novo. Id. “Generally every person owes a duty to every other person to exercise ordinary care in their activities to prevent foreseeable injury.” Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999) (emphasis added). However, a possessor of land owes an invitee, like Rhoda, the additional duty of discovering “the existence of dangerous conditions on its premises and either correct[ing] them or warn[ing] of them.” Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 492 (Ky. App. 1999) (restaurant did not breach duty to and was not liable for injuries suffered by invitee where she admitted observing patrons throw peanut -8- shells on floor and considered the open and obvious practice to be hazardous) (citing Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992)). However, Buck’s would not be liable to Rhoda for physical harm caused by a condition on its premises so long as its dangerous nature was known or obvious to her unless Buck’s should have anticipated the danger. Johnson, 997 S.W.2d at 492 (citing Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 528 (Ky. 1969)). Stated otherwise, a possessor of land is liable for an injury caused by a known or obvious hazard, but only if the possessor knew or should have known such a hazard would injure the invitee. Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 368-9 (Ky. 2005). An invitee’s assumption that a premises “he has been invited to use [is] reasonably safe does not relieve him of the duty to exercise ordinary care for his own safety nor license him to walk blindly into dangers which are obvious, known to him, or that would be anticipated by one of ordinary prudence.” J.C. Penney Co. v. Mayes, 255 S.W.2d 639, 643 (Ky. 1953) (citing Lachat v. Lutz, 94 Ky. 287, 22 S.W. 218, 15 Ky.Law Rep. 75 (1893), and Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598 (1937)). III. Analysis of Rhoda’s Claims on Appeal First, Rhoda claims there is a genuine issue of material fact as to whether the threshold’s condition was known or obvious. “Known” means “not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” Restatement (Second) of Torts § 343A cmt. b. (1965). “Obvious” denotes that “both the condition and the risk are -9- apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Id. Comparative fault typically requires a jury to decide whether a condition was known to the appellee or would be obvious to a reasonable person. Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 450 (Ky. App. 2006). However, Rhoda’s deposition confirmed that she was aware of the threshold’s condition. As an initial matter, we are asked to determine whether Rhoda’s deposition testimony constitutes a judicial admission. A judicial admission is a formal act done in the course of a judicial proceeding that conclusively removes a question of fact from the proceeding, thereby waiving or dispensing with the necessity of producing evidence on that issue. Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021, 1024 (1941). For trial testimony to constitute a judicial admission, it must be “deliberate and unequivocal and unexplained or uncontradicted.” Bell v. Harmon, 284 S.W.2d 812, 815 (Ky. 1955) (citations omitted). While judicial admissions are not to be taken lightly, they “should be narrowly construed.” Lewis v. Kenady, 894 S.W.2d 619, 622 (Ky. 1994). Finally, the conclusiveness of a judicial admission should be considered “in the light of all the conditions and circumstances proven in the case.” Hamby v. University of Kentucky Medical Center, 844 S.W.2d 431, 436-37 (Ky. App. 1992) (citations omitted). After reviewing the evidence, we deem statements contained in Rhoda’s deposition to be judicial admissions since that testimony was a formal act -10- done in the course of a judicial proceeding and it was uncontradicted. Rhoda twice testified there was no break in the threshold that caused or contributed to her fall. Twice she admitted she was not looking where she was going as she crossed the threshold. Thrice she stated that prior to falling she knew the elevation changed at the threshold. Finally, she admitted she was aware of the yellow- and black-striped caution tape before she fell and had she been looking at where she was going she would not have fallen. With no contradictory account of her fall, we must consider her account to be a judicial admission. Thus, in light of Rhoda’s own testimony, we agree with the circuit court’s finding that the condition of the threshold was known to Rhoda when she fell. Having been to Buck’s at least three times before the day she fell, Rhoda had crossed the threshold at least seven times prior to falling and admitted knowing before her fall that the elevation of the walking surface changed at the threshold. The Supreme Court of Kentucky recently addressed whether a condition was known or obvious. In Horne, an invitee to a car dealership exited the showroom to view a vehicle immediately outside the showroom door. The vehicle had been backed into a parking spot so its driver’s side door was immediately adjacent to the showroom door. After sitting in the driver’s seat, the invitee exited the vehicle and proceeded to walk around the rear of the vehicle to get into the passenger seat. However, as he rounded the rear passenger side of the vehicle, he tripped over a parking barrier protruding from the rear passenger side -11- and fell. Our Supreme Court found the parking barrier was neither known nor obvious. Although Horne is similar, it is factually distinct from the case sub judice in three ways. The first is visibility. In Horne, the parking barrier could not be seen from the driver’s side of the vehicle because the car had been parked at an angle, covering the barrier. Conversely, Rhoda testified that Buck’s vestibule was well lit and that photographs of the threshold show that the yellow- and blackstriped caution tape was visible from both sides of the closed door. The second distinction is the nature of the plaintiff’s preoccupation. In Horne, the invitee fell as a salesman from the dealership was engaging him in sales talk as he walked around the vehicle. Here, Rhoda was not distracted by any outside force, only her own carelessness and precarious posture while exiting the door. The third distinction is the plaintiff’s familiarity with the premises. The invitee in Horne fell during his first visit to the dealership and stated he had not seen the parking barriers before tripping over one. In contrast, Rhoda had crossed Buck’s threshold at least seven times before falling and admitted knowing of the threshold’s condition before she fell. Therefore, our conclusion is consistent with the rationale of Horne. Next, we address Rhoda’s second contention that although the threshold’s condition was known to her, the appellees were liable because they should have expected that an invitee could be harmed by the character of the threshold. In support, Rhoda cites Curtis Rader’s testimony that he knew of -12- approximately ten instances in which invitees stumbled over the threshold during his nine-year tenure in the building, but none of them suffered injury. Comment e to Restatement § 343A expands on the relationship between invitees and possessors, stating that ordinarily, an invitee is entitled to nothing more than knowledge of the actual condition of the land because an invitee with knowledge of the actual condition of land is free to make an intelligent choice as to whether the advantage to be gained by entering the land justifies the accompanying risk. Further, it says the possessor may reasonably assume that an invitee with actual knowledge of the condition of the land will protect herself from known risks by exercising ordinary care, or voluntarily assume the risk of harm if she fails to do so. Here, Rhoda’s previous visits to Buck’s and her admission that she knew the elevation changed at the threshold left her free to choose whether Buck’s fine dining and cold drink were worth the risk of crossing the threshold. The appellees had no reason to expect that Rhoda would fall at the threshold after her numerous visits, without incident, and her admitted knowledge of the condition of the threshold. Her continued patronage of Buck’s indicates that she assumed the risk of crossing the threshold. Rhoda’s third claim is that only a jury could decide whether the warning provided by Buck’s was sufficient. We comment only briefly on this claim because the sufficiency of any warning need not be decided on this appeal. As previously explained, the appellees had no reason to anticipate that the -13- threshold would be harmful to Rhoda. Therefore, they had no duty to warn her and we have no reason to comment further. Fourth, Rhoda alleges that the trial court should not have considered whether her own conduct caused her to fall because the Supreme Court of Kentucky abolished contributory negligence as a total bar to recovery in Hilen. Rhoda’s contention is ill-founded and confuses multiple doctrines which are at play in this case. While it is true that Kentucky abolished contributory negligence as a total bar to tort recovery in 1984 and adopted comparative negligence in its place, these doctrines become relevant only when deciding respective fault and the damages arising therefrom. There can be no award of damages in this case without a showing of a duty and a breach of that duty – neither of which has been established. The appellees can be held liable for Rhoda’s fall and injuries only if they had a duty to Rhoda. That duty turns upon whether the allegedly dangerous nature of the threshold was open and obvious to Rhoda. If it was, the appellees had no duty to warn her of an open and obvious condition. To determine whether the threshold’s condition was open and obvious, the trial court had to consider what Rhoda knew and what Rhoda did. Contrary to her assertion, the court’s consideration of her behavior was separate and distinct from any analysis under contributory negligence or comparative fault. Because the trial court found that no duty was owed and that no duty was breached, it never reached the issues of comparative fault or damages, and Rhoda’s contention that the trial court misapplied the doctrine of contributory negligence is without merit. -14- Fifth, we address Rhoda’s contention that a genuine issue of material fact exists regarding whether the premises violated the Kentucky Building Code. In reviewing the record we see no proof of a code violation and testimony from the appellees and Buck’s previous owner created a presumption of non-deficiency under KRS 198B.135. According to Heath’s affidavit, the threshold was unchanged from the time he opened the restaurant in 1992 until the time of Rhoda’s fall in 2004. Further, the most recent Kentucky Building Code, published in 2007, requires compliance of existing structures only when additions or alterations are made, or an inspector finds dangerous violations. Kentucky Building Code § 3403.1 (2007). Because the Mayflower Apartment Building was completed in 1926, compliance with the current code provisions was not mandatory. After almost three years of litigation Rhoda had not retained any experts, filed any affidavits or even submitted the applicable building code provision she claims the appellees had violated. Because Rhoda presented no evidence of a genuine issue of material fact regarding any applicable code violation, she would be unable to prevail at trial under this theory and thus, granting all three appellees summary judgment was appropriate. Steelvest, 807 S.W.2d at 480. Finally, we address Rhoda’s assertion that awarding summary judgment was premature because discovery was incomplete. A party “cannot complain of the lack of a complete factual record when it can be shown that the -15- respondent has had an adequate opportunity to undertake discovery.” Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 69 (Ky. App. 2006). “It is not necessary to show that the respondent has actually completed discovery, but only that respondent has had an opportunity to do so.” Hartford Ins. Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979) (six months between filing of complaint and granting motion for summary judgment was sufficient opportunity to complete discovery). Rhoda had nearly three years to complete discovery before summary judgment was entered. During that time, significant discovery had occurred. All three appellees had answered interrogatories, responses had been filed to requests for production of documents, representatives of the parties had been deposed, and Rhoda’s explanation of her fall was recorded and uncontradicted. Moreover, even after Rader filed a notice of submission for final adjudication, no additional discovery was sought. Thus, the record confirms that Rhoda had adequate opportunity to undertake discovery. Therefore, entry of summary judgment was not premature due to lack of opportunity to undertake discovery. Because there were no genuine issues of material fact, and the actions or omissions of the appellees were not a substantial factor in causing Rhoda’s fall, the decision of the Jefferson Circuit Court is affirmed. ALL CONCUR. -16- BRIEFS FOR APPELLANT: Glenn A. Cohen Lynn M. Watson Louisville, Kentucky BRIEF FOR APPELLEES, ENDICOTT-MAYFLOWER, LLC AND PROFESSIONAL PROPERTY MANAGERS, LLC: Robert E. Stopher Robert D. Bobrow Louisville, Kentucky BRIEF FOR APPELLEE, RADER ENTERPRISES, INC. D/B/A BUCK’S RESTAURANT: R. Hite Nally Russell H. Saunders Louisville, Kentucky -17-

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