LEWIS (PHILLIP) VS. FAULKNER REAL ESTATE CORPORATION , ET AL.
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RENDERED: AUGUST 13, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001224-MR
PHILLIP LEWIS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 08-CI-006216
FAULKNER REAL ESTATE CORPORATION;
CENTRAL RETAIL, LLC; AND
CENTRAL RETAIL OUTLOT, LLC
APPELLEES
OPINION
AFFIRMING
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BEFORE: TAYLOR, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES.
CLAYTON, JUDGE: While walking his dog, Phillip Lewis was injured when he
stepped into a hole on the retail property of Faulkner Real Estate Corporation,
Central Retail, LLC, and Central Retail Outlot, LLC (hereinafter “Faulkner”).
Lewis appeals from the grant of Faulkner’s summary judgment motion wherein the
trial court determined, as a matter of law that he would be unable to prove that
Faulkner breached a duty of care owed to him. After careful consideration, we
affirm the decision of the trial court.
On the date of the accident, which Lewis is unable to specifically
recall, in the early afternoon, Lewis and his roommate were each walking a dog.
They were engaged in conversation. The area was familiar to Lewis because it was
his neighborhood, and he often walked down this particular street. On that day,
during the walk, Lewis stepped off the sidewalk and into a hole, which caused
injury to his foot. Lewis does not know what caused him to step off the sidewalk
and into the hole, but when he put his left foot into the hole, he fell forward and
landed in the grass on his hands and knees. After a few seconds, he got up and
returned home. He did not seek medical attention until the following day. Lewis
provided additional information that the weather was clear and that he was wearing
slide-on sandals. Furthermore, he indicated that nothing on the sidewalk
obstructed him nor were any other pedestrians who caused him to move off of the
sidewalk.
On June 10, 2008, Lewis filed a complaint in Jefferson Circuit Court
alleging negligence on the part of Faulkner. After both written discovery and
depositions were conducted, on March 27, 2009, Faulkner filed a motion for
summary judgment alleging that because the condition of the hole where Lewis
caught his foot was an “open and obvious” condition, there were no genuine issues
of material fact. Lewis filed a response and Faulkner a reply to this response. On
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June 3, 2009, the trial court granted the summary judgment on the basis that the
condition was open and obvious. Thereafter, Lewis appealed the trial court’s grant
of the summary judgment motion.
The standard of review on appeal of summary judgment is whether
the trial court correctly found that there were no genuine issues as to any material
fact, and hence, the moving party was entitled to judgment as a matter of law.
Kentucky Rules of Civil Procedure (CR) 56.03; Scifres v. Kraft, 916 S.W.2d 779
(Ky. App. 1996). Moreover, a summary judgment is reviewed de novo because
factual findings are not at issue. Pinkston v. Audubon Area Community Services,
Inc., 210 S.W.3d 188 (Ky. App. 2006), citing Blevins v. Moran, 12 S.W.3d 698,
700 (Ky. App. 2000). In reviewing a grant of summary judgment, we, like the trial
court, must consider the facts in the light most favorable to the non-moving party,
in this case, Lewis. Steelvest, Inc. v. Scansteel Service Center., Inc., 807 S.W.2d
476 (Ky. 1991). Keeping this in mind, we consider the salient facts giving rise to
Lewis’s complaint to determine whether Faulkner has established its right to
judgment “with such clarity that there is no room left for controversy.” Id. at 482.
The issue herein is whether the grant of summary judgment was
proper. In particular, we must discern whether any material fact exists precluding
the court’s assessment that the condition on the premises was “open and obvious.”
On appeal, Lewis argues that the condition of the hole, from his perspective, was
not open and obvious, and therefore, Faulkner owed him a duty. Faulkner counters
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that the condition of the hole was noticeable, and thus, under the “open and
obvious” doctrine, it did not owe a duty to warn an invitee.
This case involves a negligence-based premises liability action. The
parties do not dispute that Lewis’s status on the premises was that of an invitee. In
Kentucky, the possessor of land has a duty to an invitee to maintain property in a
reasonably safe condition. City of Madisonville v. Poole, 249 S.W.2d 133, 135
(Ky. 1952). The landowner, however, does not have a duty to warn an invitee of
any conditions that are open and obvious to a reasonable person. Bonn v. Sears,
Roebuck & Co., 440 S.W.2d 526, 528 (Ky. 1969); Johnson v. Lone Star
Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 492 (Ky. App. 1999).
The term “obvious” has been explained to mean “that both the condition and the
risk are apparent to and would be recognized by a reasonable man in the position
of the visitor exercising ordinary perception, intelligence and judgment.” Bonn,
440 S.W.2d 529. Thus, the Court has described the invitee’s responsibilities as a
visitor in the following manner:
An invitee has a right to assume that the premises
he has been invited to use are reasonably safe, but this
does not relieve him of the duty to exercise ordinary care
for his own safety, nor does it license him to walk blindly
into dangers that are obvious, known to him, or would be
anticipated by one of ordinary prudence.
Smith v. Smith, 441 S.W.2d 165, 166 (Ky. App. 1969). See Restatement 2d of
Torts § 343A. To summarize then, typically no recovery may be expected by the
invitee for conditions known to him or so obvious that the invitee may reasonably
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be expected to discover and appreciate the danger Sales v. Bradley, 356 S.W.2d
588 (Ky. 1962).
To counter Faulkner’s argument that the condition of the hole was
“open and obvious,” Lewis contends that it is necessary to address the issue of his
vantage point as he approached the hole to ascertain whether the hole was “open
and obvious”. In support of this contention, appellant cites Layman v. Ben Snyder,
Inc., 305 S.W.2d 319 (Ky. 1957), wherein the Supreme Court affirmed the trial
court in directing a verdict for defendant.
In the Layman case the plaintiff, a customer in defendant's store, while
examining merchandise, stepped backward two or three feet and fell down the
stairs. There was no defect in the stairs, or top step, or in the areaway at the head
of the stairs. The Court stated:
We cannot escape the conclusion that from the vantage
point of appellant, had she watched where she was going,
she would have seen the stairway either before she got to
it or at the very least as she crossed in front of the head of
it.
....
We believe the accident was solely caused by
appellant's own inattention and heedlessness of her
surroundings. In the light of the evidence presented the
court properly took the case from the jury and directed a
verdict for appellee.
Id. at 321-322. Notwithstanding the above statements of the Court, Lewis
maintains that Layman’s discussion of vantage point is relevant to his case.
According to Lewis, the case demonstrates that the invitee’s vantage point may be
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a reason to find that the condition of the hole herein is not an “open and obvious”
condition. Additionally, Lewis proffered photographs that he says show that,
given his vantage point, he could not have seen the hole. But Faulkner also
provided a photograph, which it maintains shows that, if Lewis had been looking,
the condition of the hole would have been within his sight, and also, “open and
obvious.” We, however, we do not read Layman as rendering the “open and
obvious” condition” of the hole as dependent on Lewis’s vantage point in
approaching the hold. Although Layman does say that the vantage point of a party
may be a factor to consider, ultimately it reinforces that persons are required to
watch where they go. Id.
During his deposition, Lewis said several times that the hole was large
and not obstructed. On page 42 of his deposition the following exchange is found:
Q. How big was the hole?
A. A little bigger than a laptop.
Q. When you went back to look for it, did you have any
problems finding it?
A. No.
Q. Was it a big enough hole that if you’d been looking
for it you could have seen it?
A. Oh yeah, if you were looking.
Q. Had the grass grown up around it in a way that –
A. It was well-manicured.
So that, Lewis admits that, if he had been watching where he was going, he would
have seen the hole. Furthermore, he noted that the area was well manicured and
the hole was larger than the size of the laptop. Bolstering these statements is
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Lewis’s statement that no reason (another person or obstruction) existed for him to
veer off the sidewalk.
A similar situation was found in Humbert v. Audubon Country Club,
313 S.W.2d 405 (Ky. 1958). In that case, the Court upheld the lower court’s grant
of summary judgment and said:
He admits that he wasn't looking at the floor. He
admits that he could have seen the condition that caused
his injury if he had been looking. Yet he contends that
the question of his contributory negligence should have
been submitted to the jury. We cannot agree. His failure
to look where he was walking would not alone preclude
his recovery but, when his own evidence positively
discloses that he could have seen the offending
conditions by looking, then recovery is so precluded.
Id. at 407. Lewis disclosed that he “wasn’t looking down” (Lewis Deposition,
page 38) and that, as highlighted above in his deposition, that if he had been
looking for it, he would have seen it. (Lewis Deposition, page 42). So, Lewis, by
his own statements, is precluded from recovery because he admitted not watching
where he was going and acknowledging that, had he looked, he would have seen it.
Even given our strict summary judgment standard, we are persuaded
that the trial court did not err by refusing to submit this case to a jury. Lewis
concedes that had he been looking he would have seen the “laptop” size hole,
which he described as not obscured. Therefore, the lower court was correct in
granting Faulkner’s summary judgment motion as Lewis failed to present any
evidence of genuine issues of material fact. The judgment is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Finis R. Price, III
Prospect, Kentucky
Brian H. Stephenson
Noelle J. Bailey
Louisville, Kentucky
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