SMITH (SHAWN M.) VS. LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT , ET AL.
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001178-MR
SHAWN M. SMITH, ADMINISTRATOR
OF THE ESTATE OF MICHAEL SMITH,
DECEASED
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE IRV MAZE, JUDGE
ACTION NO. 06-CI-010320
LOUISVILLE AND JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT;
JAMES C. ADKINS AND GREG HICKS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, MOORE AND STUMBO, JUDGES.
STUMBO, JUDGE: Shawn M. Smith, Administrator of the Estate of Michael
Smith, (hereinafter “Appellant”) appeals from an Opinion and Order of the
Jefferson Circuit Court sustaining the Summary Judgment motion of the Louisville
and Jefferson County Metropolitan Sewer District (“MSD”). Appellant argues that
the circuit court improperly resolved a genuine issue of material fact by
determining that Michael Smith (hereinafter “Smith”) was a trespasser on the real
property of MSD when he fell to his death, thus precluding his estate from
recovery. In the alternative, Appellant maintains that even if Smith’s status at the
time of the fall was a question of law, the circuit court contravened Kentucky law
by finding that he was a trespasser. We conclude that Smith’s status as a trespasser
was a question of law properly determined by the circuit court, and accordingly
affirm the Opinion and Order granting Summary Judgment.
On the evening of September 17, 2006, or the early morning of
September 18, 2006, Smith was apparently walking on Lampton Street in
Louisville, Kentucky toward his home on Morton Street. It is believed that Smith
walked through an area of dense vegetation and accidentally fell head first into a
16-feet deep concrete drainage canal owned and maintained by MSD. The canal is
part of a drainage system referred to in the record as the Beargrass Creek
Improvement, and it is situated on an easement granted to MSD by the
Louisville/Jefferson County Metro Government. Smith died as a result of the fall,
and his body was discovered on the morning of September 18, 2006, by two MSD
employees. An autopsy indicated that Smith died of a closed head injury sustained
in a fall. He had alcohol and cocaine in his system at the time of death.
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Smith’s estate, acting through the Appellant, filed the instant wrongful
death action against MSD in Jefferson Circuit Court. The Appellant alleged that
the drainage canal was a hazard which MSD effectively concealed by failing to
erect any fence or barricade, failing to post warning signs, failing to provide any
lighting, and by allowing dense vegetation to grow along the banks of the hazard.
MSD responded with a general denial, and subsequently filed a motion for
Summary Judgment. In support of the motion, MSD argued that Smith was a
trespasser to whom it owed no legal duty to warn of potential hazards, that there
was no genuine issue of material fact and that it was entitled to a Judgment as a
matter of law.
Upon considering MSD’s motion and the Appellant’s response
thereto, the circuit court rendered an Opinion and Order on June 3, 2009, granting
Summary Judgment in favor of MSD. As a basis for the Judgment, the court
determined that Smith was a trespasser because he did not have permission to enter
the canal area nor did he enter the canal area for the purpose for which the canal
was maintained. The court concluded that Smith was a trespasser to whom MSD
owed no duty to warn. It found no genuine issue of material fact precluding the
entry of Summary Judgment in favor of MSD, and this appeal followed.
The Appellant now argues that the circuit court committed reversible
error in sustaining MSD’s motion for Summary Judgment. He argues that the
circuit court improperly resolved a question of material fact which should have
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been reserved for the jury, to wit, whether Smith was properly characterized as a
trespasser at the time of his death. He contends that Smith was a licensee to who
MSD owed a duty to warn, because it is clear that Smith did not intentionally enter
the canal area. Additionally, the Appellant argues that Smith could not be a
trespasser because the purported trespass occurred on public land.
For the same reasons, the Appellant goes on to argue that even if
Smith’s status at the time of his death were a question of law properly reserved for
the trial court’s determination, the trial court contravened Kentucky law by
improperly concluding that Smith was a trespasser. He again bases this argument
on his contention that Smith did not possess the requisite intent to be properly
characterized as a trespasser. He seeks an Order reversing the Summary Judgment
and remanding the matter for further proceedings.
Having closely examined the record and the law, and having heard the
oral arguments of counsel, we find no basis for reversing the Summary Judgment
on appeal. Historically, visitors upon property have been placed in one of three
categories which determine the scope of the duty owed by the land possessor to the
visitor. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). These categories are
trespasser, licensee and invitee. Id. A trespasser is one who comes upon the land
without any legal right to do so. Id. See also, KRS 381.231. A licensee is one
who comes upon land with the consent of the land owner, and an invitee is
generally defined as one who comes upon the land in some capacity connected
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with the business of the possessor. Id. Other case law has defined a licensee as a
person entering the land with permission but not for the purpose for which the
property is maintained. Scuddy Coal Company Inc. v. Couch, 274 S.W.2d 388
(Ky. App. 1955).
Kentucky law limits the ability of persons to recover for injuries
sustained while trespassing. KRS 381.232 provides that the owner of real estate
shall not be liable to a trespasser for injuries sustained by the trespasser on the real
estate of the owner, except for injuries that were intentionally inflicted by the
owner or his agent. Conversely, a possessor of land owes a licensee the duty of
reasonable care either to make the land as safe as it appears, or to disclose the fact
that it is as dangerous as he knows it to be. Perry v. Williamson, 824 S.W.2d 869,
874 (Ky. 1992). And finally, the possessor owes an invitee the duty to discover
and warn of dangerous conditions. Id.
The Appellant argues that the circuit court erred in failing to conclude
that a question of fact existed as to whether Smith was a trespasser or licensee at
the time of his death. We are not persuaded by this argument. Evidence was
adduced that MSD is the possessor of the Beargrass Creek Canal, and that Smith
entered the parcel without any lawful authority or invitation from MSD. This
evidence, which is set out in the record, provides a rational basis for the circuit
court’s conclusion that Smith was trespassing at the time of his death. Similarly,
we find no support in the case law or statutory law for the Appellant’s argument
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that Smith may not properly be characterized as a trespasser unless evidence is
adduced that he intended to trespass. That is to say, intent is not an element of
trespass. See generally, Chesapeake & Ohio Railway Company v. Butcher’s
Administrator, 263 Ky. 45, 91 S.W.2d 551 (Ky. App. 1936), wherein a decedent
killed by a passing train was found to be a trespasser even though evidence was
produced that he was placed on the railroad track after an assault.
The determination of whether Smith was a trespasser or licensee is a
question of law because “. . . the relevant facts are undisputed and the issue . . .
becomes the legal effect of those facts.” Revenue Cabinet v. Comcast Cablevision
of the South, 147 S.W.3d 743 (Ky. App. 2003). The circuit court properly
adjudicated Smith’s status as a question of law, and we are not persuaded by the
Appellant’s contention that the circuit court improperly resolved a question of fact,
nor contravened Kentucky law by determining that he was a trespasser.
Summary judgment “shall be rendered forthwith if 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.” CR 56.03. “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.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). “Even though a trial court may believe the party opposing the motion may
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not succeed at trial, it should not render a summary judgment if there is any issue
of material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres at 781.
When viewing the record in a light most favorable to the Appellant
and resolving all doubts in his favor, we must conclude that the circuit court
properly determined that MSD was entitled to Summary Judgment. The circuit
court’s conclusion that Smith was a trespasser to whom no duty was owed is
supported by the facts and the law. No genuine issue of material fact remains for
adjudication, and the circuit court properly determined that MSD was entitled to a
judgment as a matter of law. As such, we find no error.
For the foregoing reasons, we affirm the Opinion and Order of the
Jefferson Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
Mat A. Slechter
Louisville, Kentucky
BRIEF FOR APPELLEE,
LOUISVILLE AND JEFFERSON
COUNTY METROPOLITAN
SEWER DISTRICT:
Laurence J. Zielke
Nancy J. Schook
Louisville, Kentucky
Gerald A. Neal
Louisville, Kentucky
NO BRIEFS WERE FILED FOR
APPELLEES, JAMES C. ADKINS
AND GREG HICKS
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