MELANIE MOORE v. WILLIAM LINCKS AND JOANN LINCKS
Annotate this Case
Download PDF
RENDERED: JUNE 2, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2005-CA-001493-MR
MELANIE MOORE
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
ACTION NO. 04-CI-04018
v.
WILLIAM LINCKS
AND JOANN LINCKS
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND MINTON, JUDGES.
KNOPF, JUDGE:
Melanie Moore appeals from a July 12, 2005,
summary judgment of the Fayette Circuit Court dismissing her
claim for damages against William and Joann Lincks.
Moore
tripped and broke her wrist in the driveway of the Linckses’
Lexington home during a yard sale; she alleges that the Linckses
were negligent in failing to warn her of or to protect her
against the ridge formed where two of the driveway’s concrete
slabs come together unevenly.
The trial court ruled (1) that
Moore had failed to sustain her burden of coming forward with
significant evidence that the driveway defect caused her fall
and injury; (2) that the alleged defect was an open and obvious
hazard thus imposing no duty on the Linckses to say or do
anything about it; and (3) that the ridge, which Moore’s
evidence suggests was about an inch high, was de minimis, or not
unreasonably dangerous, as a matter of law.
Because we disagree
with all of these conclusions, we reverse and remand for
additional proceedings.
The well established rule in this state, of course, is
that summary judgment is proper if, but only if, there are no
issues of material fact and the moving party is entitled to
judgment as a matter of law.1
As the trial court correctly
noted, the plaintiff opposing a properly supported summary
judgment motion must come forward with significant evidence in
support of her claim.2
That evidence and the rest of the record,
however, are to be construed in a light most favorable to the
plaintiff/opponent, and summary judgment is not proper unless it
1
CR 56.03.
2
Wymer v. JH Properties, Inc., 50 S.W.3d 195 (Ky. 2001).
-2-
appears impossible for the plaintiff to produce evidence at
trial warranting a judgment in her favor.3
Construed favorably to Moore, the record indicates
that Moore’s accident occurred on October 11, 2003, when the
Linckses participated in a community wide yard sale organized by
their neighborhood association.
They had arranged sale items on
either side of their three-car driveway and down the center so
that shoppers could proceed up the aisle on one side, into the
garage, then out and back toward the street down the aisle on
the other side.
8:00 a.m.
Moore arrived at the Lincks’s sale at about
She began browsing on the right-hand side, selected a
few items in the garage, and paid for them as she exited the
garage on the left-hand side.
She was leaving down the left
hand aisle and looking ahead at another sale across the street
when something seemed to grab her toe and she tripped and fell.
Moore told the Linckses’ insurance adjuster and later testified
at her deposition that she was at first dazed by her fall and
did not even wonder what had caused it.
had just been clumsy.
She assumed that she
She had not been looking at her feet at
the time, and so, even at her interviews, could not say with
absolute certainty what the cause had been.
Mrs. Lincks had
brought a lawn chair to her, however, so that she might compose
3
Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364 (Ky. 2005)
(citing Steelvest, Inc. v. Scansteel Service Center, 807 S.W.2d 476 (Ky.
1991)).
-3-
herself, and sitting in the chair she had noticed the ridge
running across the driveway at about the place where her feet
had been.
While she was sitting there, she claims, two other
people stumbled, though they did not fall, at the same place.
She then inferred that she had tripped on the ridge, and because
it was apparent that she had seriously injured her wrist she
asked Mrs. Lincks for information about her insurer.
The
insurance company’s eventual denial of her claim led to this
action.
The trial court ruled that Moore’s claim must fail
because of her admission that she did not see and could not with
certainty say what caused her fall.
Moore’s burden at trial,
however, would not be proof beyond all doubt, but merely proof
by a preponderance of the evidence; i.e., proof on the basis of
which a rational juror could conclude that the elements of
Moore’s claim were more likely than not.4
She would be entitled,
furthermore, to establish those elements, including causation,
by circumstantial evidence.5
Construed favorably to her and
notwithstanding her admission of incertitude, the sensation that
something grabbed her toe, the fact that her feet landed near
the ridge, the fact that others appeared to stumble on the
ridge, and the fact that no other reason for her fall appeared,
4
Huffman v. SS. Mary and Elizabeth Hospital, 475 S.W.2d 631 (Ky. 1972).
5
Id.
-4-
was circumstantial evidence sufficient to permit a rational
juror to infer that the ridge caused Moore’s fall.
The trial
court erred, therefore, by ruling that Moore’s claim failed for
a lack of significant evidence on that issue.
Even if Moore can prove that she tripped on the ridge,
however, she must also be able to establish that the Linckses
were responsible.
As our Supreme Court recently summarized in
Horne v. Precision Cars of Lexington, Inc.,6 the possessor of
land is subject to liability for physical harm caused to his or
her invitees by a condition on the land if, but only if, he or
she
(a) knows or by the exercise of reasonable
care would discover the condition, and
should realize that it involves an
unreasonable risk of harm to such invitees,
and (b) should expect that they will not
discover or realize the danger, or will fail
to protect themselves against it, and (c)
fails to exercise reasonable care to protect
them against the danger. . . . A possessor
of land is not liable to his [or her]
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.7
The trial court ruled that Moore’s claim failed elements (a) and
(b) as a matter of law.
6
170 S.W.3d 364 (Ky. 2005).
7
Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d at 367 (quoting
Restatement (Second) of Torts §§ 343 and 343A (1965); internal quotation
marks and emphasis omitted).
-5-
First, relying on Ohio cases applying that state’s
two-inch de minimis rule, the court held that the approximately
one-inch ridge in this case did not pose an unreasonable risk of
harm to Moore.
In Ohio, apparently, sidewalk and other exterior
walkway irregularities amounting to less than two inches are
generally deemed de minimis as a matter of law and will not
support a negligence action.8
The Illinois courts have adopted a
similar per se rule, but have distinguished public from private
walkways and apply the rule only to the former.9
Municipalities,
those courts reason, would incur an intolerable economic burden
if required to repair or warn against every slight defect in
their miles of sidewalks.10
The burden on the possessors of
private walkways is generally much less, however, so that a
presumption with respect to the risk posed by defects in private
walkways is not warranted.
At the opposite end of the spectrum, the New York
courts apply no presumption even with respect to public walks:
Whether a particular height difference
between sidewalk slabs constitutes a
dangerous or defective condition depends on
the particular facts and circumstances of
each case, including the width, depth,
elevation, irregularity, and appearance of
8
Cash v. City of Cincinnati, 421 N.E.2d 1275 (Ohio 1981). See Annotation,
“Degree of Inequality in Sidewalk which Makes Question for Jury or for Court,
as to Municipality’s Liability,” 37 ALR2d 1187 (1954).
9
10
Putman v. Village of Bensenville, 786 N.E.2d 203 (Ill.App. 2003).
Id.
-6-
the defect as well as the time, place, and
circumstances of the injury. . . . There is
no “minimal dimension test” or per se rule
that a defect must be of a certain minimum
height or depth in order to be actionable. .
. . Whether a particular condition gives
rise to liability for negligent maintenance
is generally an issue of fact for the jury.
. . . In some cases, however, the []trivial
nature of the defect may loom larger[] than
any other element, thus justifying a court’s
refusal to submit the issue to a jury. . . .
In such cases, a small difference in
elevation between slabs of pavement will be
considered too trivial to be actionable
unless the defect has the characteristics of
a “trap”, “snare”, or nuisance.11
In City of Nicholasville v. Scott,12 this state’s
highest court “refused to set a limit in respect to a defect in
a sidewalk beyond which the question of negligence would be one
for the jury and under which it would be held as a matter of law
that the City was not negligent.”13
The Court applied what was
essentially New York’s totality of the circumstances approach to
walkway-defect cases.
Although Scott is not recent, it appears
still to be good law.
It’s insistence that all the
circumstances be considered is consistent with this state’s
conservative summary judgment standard14 and with recent
11
Tesak v. Marine Midland Bank, N.A., 678 N.Y.S.2d 226, 226-27 (N.Y.App.
1998) (citations and internal quotation marks omitted). Thomas v. City of
New York, 753 N.Y.S.2d 468 (N.Y.App. 2003).
12
388 S.W.2d 612 (Ky. 1965).
13
City of Nicholasville v. Scott,
14
Steelvest, Inc. v. Scansteel Service Center, 807 S.W.2d 476 (Ky. 1991).
388 S.W.2d at 613.
-7-
decisions by our Supreme Court requiring or upholding jury
determinations of negligence.15
The trial court erred,
therefore, by presuming, without considering the surrounding
circumstances, that the one-inch ridge across the Linckses’
private walkway was not unreasonably dangerous as a matter of
law.
The circumstances in this case include the fact that
invitees such as Moore were apt to be distracted by sale items,
by other shoppers, and by the unusual commotion in the
neighborhood.
Our Supreme Court has recently noted that
foreseeable distractions such as these may render an otherwise
obvious hazard unreasonably dangerous and thus impose a duty on
the possessor to the property to warn or to take other
precautions.16
Whether the Linckses breached such a duty in
these circumstances is a question for the jury.
For the same reason, the trial court erred by deeming
the walkway defect so open and obvious as to relieve the
Linckses as a matter of law of all responsibility to protect
their yard-sale invitees against it.
The trial court relied on
contributory negligence cases holding that while an invitee may
15
Horne v. Precision Cars of Lexington, Inc., supra; Bartley v. Educational
Training Systems, Inc., 134 S.W.3d 612 (Ky. 2004); Martin v. Mekanhart
Corpration, 113 S.W.3d 95 (Ky. 2003); Lanier v. Wal-Mart Stores, Inc., 99
S.W.3d 431 (Ky. 2003).
16
Horne v. Precision Cars of Lexington, Inc., supra.
-8-
assume that the premises she has been invited to use are
reasonably safe, that “does not relieve [her] of the duty to
exercise ordinary care for [her] own safety nor license [her] to
walk blindly into dangers which are obvious, known to [her], or
that would be anticipated by one of ordinary prudence.”17
Although these cases have been superceded somewhat by the
adoption of comparative fault, it remains true that open hazards
that are known or should be obvious to the invitee give rise to
no duty on the part of the owner to warn or to protect the
invitee against them.18
As noted above, however, our Supreme
Court has recently explained that otherwise obvious hazards may
give rise to a duty of reasonable care if the circumstances are
such that the owner “has reason to expect that the invitee’s
attention may be distracted, so that he will not discover what
is obvious, or will forget what he has discovered, or fail to
protect himself against it.”19
In such a case under our current
comparative negligence regime, even if the invitee breached her
17
Humbert v. Audubon Country Club, 313 S.W.2d 405, 408 (Ky. 1958).
18
Horne v. Precision Cars of Lexington, Inc., supra (citing Bonn v. Sears,
Roebuck & Co., 440 S.W.2d 526 (Ky. 1969) and Johnson v. Lone Star Steakhouse,
997 S.W.2d 490 (Ky.App. 1999)).
19
Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d at 367 (quoting from
Restatement (Second) of Torts § 343A comment f (1965); internal quotation
marks omitted).
-9-
own duty of care, her recovery could be limited, but her claim
would not be barred.20
Moore testified that she did not see the ridge across
her path because she was watching the crowd and looking ahead to
the next sale.
She also testified that after her fall as she
sat regaining her composure she saw two other people stumble at
the same place.
Because the hazard was thus not known to her
and because in these distracting circumstances it was not so
obvious as to eliminate the Linckses’ duty of care as a matter
of law, Moore is entitled to present her claim to a jury.
In sum, although property owners are not required to
maintain perfect walkways, even relatively minor defects may
give rise to a duty of care in circumstances, such as those
presented in this case, where a large number of invitees will
encounter the defect amid distractions and obstacles apt to
render them oblivious to it.
The trial court erred by ruling
that the defect in the Linckses’ walkway was, as a matter of
law, too minor and too obvious to require precautions, and by
ruling that Moore had failed to present significant evidence
that the defect caused her fall.
Accordingly, we reverse the
July 12, 2005, summary judgment of the Fayette Circuit Court and
remand the matter for trial.
20
Regenstreif v. Phelps, 142 S.W.3d 1 (Ky. 2004) (citing Hilen v. Hays, 673
S.W.2d 713 (Ky. 1984)). See also Reece v. Dixie Warehouse and Cartage
Company, _S.W.3d_ (Ky.App. 2006) 2006 WL 57281 (holding that the obviousness
of a hazard may become a jury issue if the material evidence is conflicting).
- 10 -
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Hay
Rhonda Hatfield-Jeffers
Law Office of Richard Hay
Somerset, Kentucky
J. Dale Golden
Lynsie T. Gaddis
Golden & Walters, PLLC
Lexington, Kentucky
- 11 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
