LUCAS (REBECCA) VS. GATEWAY COMMUNITY SERVICES ORGANIZATION, INC., ET AL.
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RENDERED: JUNE 24, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001033-MR
REBECCA LUCAS
v.
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 08-CI-00087
GATEWAY COMMUNITY SERVICES
ORGANIZATION, INC., D/B/A
GATEWAY COMMUNITY ACTION
AGENCY; DENNIS GULLEY,
INDIVIDUALLY AND AS
EXECUTIVE DIRECTOR OF
GATEWAY COMMUNITY ACTION
AGENCY; AND MIKE STACEY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, NICKELL, AND WINE, JUDGES.
LAMBERT, JUDGE: In this personal injury action arising from a slip-and-fall in
a parking lot, Rebecca Lucas has appealed from the summary judgments entered
by the Morgan Circuit Court dismissing her claims against Gateway Community
Services Organization, Inc., d/b/a Gateway Community Action Agency, and
Dennis Gulley, both individually and as the Executive Director of Gateway
Community Action Agency (collectively “Gateway”), as well as Mike Stacey.
Because we agree with the circuit court that summary judgment was warranted in
this case, we affirm.
On March 25, 2008, Lucas and a friend went to Gateway, where her
grandchildren (of whom she had custody) attended a head start program. The
purpose of the trip was for Lucas’s friend, Wanda Davis, to sign forms which
would allow her to pick up the children if Lucas was unable to. The parking lot is
graveled, while portions close to the building as well as the driveway are
blacktopped. Lucas and Davis entered the main door to the building at about 11:00
a.m., spent a few minutes completing the necessary paperwork, and then left.
Rather than leaving through the same entrance, a Gateway employee guided them
to another door closer to the parking lot. The photographs in the record show that
this door is on the same side of the building as the main door Lucas used when she
entered the building. Lucas followed Davis as Davis stepped off of the sidewalk
next to the building and walked between two cars parked close to the building.
One car was parked on a blacktopped portion of the lot, and Lucas walked on this
portion until the blacktop ended just past where the car was parked. As she moved
from the blacktopped portion to the graveled area of the parking lot, Lucas stepped
on a piece of crumbling gravel and fell to the ground, severely injuring her arm.
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Less than one month later, Lucas filed suit against Gateway seeking
damages for negligent maintenance and construction of the parking lot and for
failure to maintain the premises in a safe and hazard-free condition. Gateway filed
a third-party complaint against Mike Stacey, from whom Gateway leased the
premises. Pursuant to the lease agreement, Stacey was responsible for maintaining
and repairing the parking lot. Lucas was also permitted to amend her complaint to
name Stacey as a defendant.
Following discovery, both Gateway and Stacey filed motions for
summary judgment, asserting that pursuant to premises liability law, they did not
owe a duty to Lucas because the allegedly dangerous condition was open and
obvious. They cited Lucas’s deposition testimony in which she admitted that she
was familiar with the premises, including the graveled and blacktopped portions of
the parking lot, due to her earlier visits; that there had been no change in the
condition of the lot; that she had used caution in the past due to her fear of falling;
that her vision had not been blocked; and that had she been looking at her feet, she
would not have fallen. In response, Lucas stated that she was unfamiliar with the
exit she took from the building, that photographs established that the hazard was
not open or obvious, and that she had not previously been warned of the hazard.
On May 3, 2010, the circuit court granted both motions, finding that the parking lot
surface was open and obvious to Lucas and that it was “not unreasonably unsafe.”
In so holding, the circuit court noted that Lucas had admitted she was familiar with
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the premises, the condition was unchanged, and she had exercised caution in the
past. This appeal follows.
Our standard of review is set forth in Scifres v. Kraft, 916 S.W.2d 779,
781 (Ky. App. 1996):
The 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.
Kentucky Rules of Civil Procedure (CR) 56.03. There is
no requirement that the appellate court defer to the trial
court since factual findings are not at issue. Goldsmith v.
Allied Building Components, Inc., Ky., 833 S.W.2d 378,
381 (1992). “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., Ky., 807
S.W.2d 476, 480 (1991). Summary “judgment is only
proper where the movant shows that the adverse party
could not prevail under any circumstances.” Steelvest,
807 S.W.2d at 480, citing Paintsville Hospital Co. v.
Rose, Ky., 683 S.W.2d 255 (1985). Consequently,
summary judgment must be granted “only when it
appears impossible for the nonmoving party to produce
evidence at trial warranting a judgment in his favor. . .”
Huddleston v. Hughes, Ky. App., 843 S.W.2d 901, 903
(1992), citing Steelvest, supra (citations omitted).
“Because summary judgment involves only legal questions and the existence of
any disputed material issues of fact, an appellate court need not defer to the trial
court’s decision and will review the issue de novo.” Lewis v. B & R Corp., 56
S.W.3d 432, 436 (Ky. App. 2001).
In her brief, Lucas contends that because issues of material fact remain to be
decided in this case, the circuit court’s summary judgments were premature and
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inappropriate. Those issues include whether the hazardous state of the parking lot
was open and obvious and whether she exercised the care necessary for her own
safety as an invitee. She also argues that Gateway and Stacey failed to exercise
ordinary care to keep the premises in a reasonably safe condition or to warn her of
the dangerous condition. In their responsive briefs, Gateway and Stacey argue that
summary judgment was appropriate in this case and that the Supreme Court of
Kentucky’s recent changes to the law of premises liability enunciated in Kentucky
River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), did not affect this
case. Because McIntosh had not been rendered when Lucas filed her brief, she
appropriately addressed the application of this case in her reply brief.
Generally, premises liability is a sub-category of negligence law, and
in order to state a cause of action for negligence, “a plaintiff must establish a duty
on the defendant, a breach of the duty, and a causal connection between the breach
of the duty and an injury suffered by the plaintiff.” Lewis, 56 S.W.3d at 436-37.
For purposes of this case, the nature and scope of this duty is supplied by premises
liability law: “[T]he owner of a premises to which the public is invited has a
general duty to exercise ordinary care to keep the premises in a reasonably safe
condition and warn invitees of dangers that are latent, unknown or not obvious.”
Id. at 438.
In Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 36869 (Ky. 2005), the Supreme Court of Kentucky presented a comprehensive review
of premises liability law in the Commonwealth and identified three distinct
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categories that have emerged. “The first category holds that the owner of a
business premises has no duty to protect invitees from injuries caused by ‘natural
outdoor hazards which are as obvious to an invitee as to an owner of the
premises.’” Id. at 368, quoting Standard Oil Co. v. Manis, 433 S.W.2d 856, 858
(Ky. 1968). “The second category holds that if the invitee was injured because of
an encounter with a foreign substance or other dangerous condition on the business
premises, the owner can avoid liability by proving that the hazard was not caused
by the owner or the owner’s employees and that the hazard was not present for a
sufficient period of time before the accident to give the owner notice to remove it
or to warn invitees of its presence.” Horne, 170 S.W.3d at 368. Neither category
is at issue in the case present before this Court. Rather, the present case involves
the third category, which “involves hazards caused by the owner. If the hazard is
‘known or obvious to’ the invitee, the owner has no duty to warn or protect the
invitee against it.” Id. The Court held that “the plaintiff’s admission that the
hazard was both known and obvious to him or her pertains not only to the issue of
contributory fault, but also to whether the hazard was so known and obvious as to
obviate any duty on the part of the owner to warn or protect the invitee against the
hazard.” Id. at 369.
However, the Supreme Court of Kentucky has very recently modified
the open and obvious doctrine in McIntosh, supra, so that the doctrine is more
compatible with comparative fault rather than contributory negligence. Deciding
that the question of whether the doctrine applies is one of fact related to fault, the
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Supreme Court adopted the modern trend as expressed in the Restatement (Second)
of Torts § 343A(1) (1965) regarding open and obvious conditions:
A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or
condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.
See McIntosh, 319 S.W.3d at 389-90. The commentary to this section discusses
cases where a possessor of land would still have to anticipate potential harm
despite the fact that a danger is both known and obvious, such as in a case where
an invitee’s attention is distracted. Id. This approach, the Court held, comports
with Kentucky’s “focus on foreseeability in its analysis of whether or not a
defendant has a duty. . . . That harm from an open and obvious danger can
sometimes be foreseeable suggests that there should be some remaining duty on
the land possessor[.]” Id. at 390.
The Court concluded that “[t]he lower courts should not merely label a
danger as ‘obvious’ and then deny recovery. Rather, they must ask whether the
land possessor could reasonably foresee that an invitee would be injured by the
danger. If the land possessor can foresee the injury, but nevertheless fails to take
reasonable precautions to prevent the injury, he can be held liable.” Id. at 392.
The Court went on to address the position of the plaintiff under this modified
doctrine:
[T]his view also alters the position of the person injured
by an open and obvious danger to the extent that only
under extremely rare circumstances could a plaintiff
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avoid some share of the fault under comparative
negligence. While “open and obvious danger” is no
longer a complete defense under the Restatement, it is
nonetheless a heightened type of danger which places a
higher duty on the plaintiff to look out for his own safety.
Such a condition, being open and obvious, should usually
be noticed by a plaintiff who is paying reasonable
attention. Yet the plaintiff is not completely without a
defense to this: there could be foreseeable distraction, or
the intervention of a third party pushing the plaintiff into
the danger, for example. Even in such situations, a jury
could still reasonably find some degree of fault by the
plaintiff, depending on the facts.
Id.
Based upon the modification of the open and obvious doctrine, the
Supreme Court concluded that a duty was owed to the plaintiff. McIntosh, a
paramedic, was injured while she was transporting a patient to the hospital when
she tripped and fell over an unmarked curb outside of the emergency room
entrance. Although she had successfully navigated this entrance before (she had
helped transport about 400 patients to this hospital), the Court held that the injury
was foreseeable and that “[t]he Hospital had good reason to expect that a
paramedic, such as McIntosh, would be distracted as she approached the
emergency room entrance.” Id. at 393. The Court also recognized that “McIntosh,
in turn, had a duty to act reasonably to ensure her own safety, heightened by her
familiarity with the location and the arguably open and obvious nature of the
danger.” Id. at 395.
With the above statement of the law in mind, we shall now consider
the case sub judice.
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The main thrust of Lucas’s argument on appeal is that issues of fact
remain related to both whether the condition of the parking lot was open and
obvious and whether she exercised ordinary care for her own safety. She
maintains that both of these factual issues should be decided by a jury rather than
via summary judgment. In conjunction with this, she asserts that Gateway and
Stacey did not exercise ordinary care to keep the parking lot in a reasonably safe
condition or warn her of its dangerous condition. In his brief, Stacey counters
Lucas’s open and obvious argument by pointing out that the dispute below was
whether she was responsible for her own carelessness, not whether the parking lot
constituted an open and obvious hazard.
Despite Stacey’s argument, our first consideration must be whether
the circuit court properly held that no disputed issues of material fact existed
concerning the open and obvious nature of the parking lot. The term “obvious” has
been defined 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 v. Sears, Roebuck & Co.,
440 S.W.2d 526, 529 (Ky. 1969). Here, we must agree with Gateway and Stacey
that there are no disputed facts on this issue that would prevent the entry of a
summary judgment. As stated by the circuit court in its order,
[T]he Plaintiff, Rebecca Lucas, has admitted in
deposition testimony that . . . she was familiar with the
Gateway premises from earlier visits, including the
blacktopped and graveled portions of the lot, that the
condition of the lot did not change from her earlier visits,
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that on previous visits she specifically exercised caution
in crossing the lot due to a fear of walking on the gravel
surface, that the surface of the lot was open and obvious
on the day she fell, that . . . nothing was blocking her
vision of the area where she fell, that the fall occurred in
daylight and good weather and she was not distracted,
that if she had been looking down to see where she was
stepping she would not have fallen, and that Defendant
Stacey did nothing to contribute to Plaintiff’s injuries
save failing to blacktop the Gateway lot.
Based upon her own testimony, Lucas was well aware of the condition of the lot,
going so far as to admit that she used caution when walking in the parking lot on
the several occasions that she visited Gateway.
Kentucky law is clear that in summary judgment matters, “[t]he moving
party bears the initial burden of showing that no genuine issue of material fact
exists, and then the burden shifts to the party opposing summary judgment to
present ‘at least some affirmative evidence showing that there is a genuine issue of
material fact for trial.’” Lewis, 56 S.W.3d at 436. Here, Lucas attempts to meet
her burden by stating that the area where she fell was hidden and that she had
never seen crumbling blacktop in the parking lot prior to this date. However, this
is simply not enough to constitute affirmative evidence sufficient to defeat
Gateway’s and Stacey’s respective motions. The photographs attached to Lucas’s
deposition show that the area where she fell was not at all hidden by the parked
cars, but rather was a short distance past them.
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Therefore, we hold that the circuit court did not commit error in finding that
there were no disputed issues of material fact regarding the open and obvious
nature of the parking lot. But this holding does not conclude our analysis.
We must next look to whether an issue of fact remains concerning the
foreseeability of the injury pursuant to McIntosh. While McIntosh had not been
rendered when the circuit court entered the summary judgments, the parties have
been able to argue on appeal whether that decision applies in this case. Lucas
contends that the jury should consider whether the parking lot constituted an open
and obvious danger when allocating fault and that the jury could reasonably
conclude that she was distracted while looking for her car or that her view had
been obstructed. On the other hand, Gateway and Stacey assert that McIntosh is
distinguishable from the matter at hand because there was no distraction so as to
make Lucas’s injury foreseeable. We agree with Gateway and Stacey that
McIntosh does not apply to alter the result in this case.
Despite Lucas’s claims that the jury could have found that she was distracted
while looking for her car or her view was obstructed, her own testimony provides
otherwise. Because her testimony does not match these claims, Lucas’s assertions
in her reply brief that she was distracted are not supported by affirmative evidence
in the record, but are merely unsupported claims. As such, those assertions cannot
work to defeat Gateway’s and Stacey’s argument that no disputed issues of
material fact exist. Unlike the plaintiff in McIntosh, Lucas was not distracted by
some outside force, such as rushing an ill patient into the hospital. As Gateway
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and Stacey point out, Lucas was not acting under time-sensitive or stressful
circumstances. Rather, she was following her friend into the parking lot that she
admitted she was familiar with and that she admitted to using caution to walk on
when she visited the premises. While it might ordinarily be appropriate to remand
a case such as this to the circuit court to consider McIntosh’s application, we need
not do so here because of the evidence that is already in the record.
For the foregoing reasons, the summary judgments in favor of
Gateway and Stacey entered by the Morgan Circuit Court are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Teddy L. Flynt
Salyersville, Kentucky
BRIEF FOR APPELLEES,
GATEWAY COMMUNITY
SERVICES ORGANIZATION, INC.,
AND DENNIS GULLEY:
Jeffrey M. Baldwin
Paintsville, Kentucky
BRIEF FOR APPELLEE, MIKE
STACEY:
Sandra Spurgeon
William W. Tinker III
Lexington, Kentucky
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