COLLEEN SARAH PINKSTON v. AUDUBON AREA COMMUNITY SERVICES, INC; AND LINCOLNSHIRE NORTH APARTMENTS, INC.
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RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000473-MR
COLLEEN SARAH PINKSTON
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 03-CI-00411
v.
AUDUBON AREA COMMUNITY
SERVICES, INC; AND LINCOLNSHIRE
NORTH APARTMENTS, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND WINE, JUDGES; BUCKINGHAM, 1 SENIOR JUDGE.
WINE, JUDGE:
Colleen Sarah Pinkston appeals from a summary
judgment by the Daviess Circuit Court dismissing her personal
injury claim against her landlord, Lincolnshire North
Apartments, Inc., and Audubon Area Community Services, Inc.
She
argues that the trial court erred in finding that Lincolnshire
could not be liable for personal injuries caused by a breach of
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
its agreement to repair her leased premises.
Finding no error
as to this conclusion, we affirm.
The underlying facts of this action are not in
dispute.
On January 31, 2002, Pinkston signed a residential
apartment lease with Lincolnshire, a subsidiary of Audubon Area
Community Services, Inc.
The lease agreement did not
specifically require Lincolnshire to maintain the premises, but
did provide that Lincolnshire would “make necessary repairs with
reasonable promptness.”
(Lease Agreement, p.4).
On or about February 26, 2002, Pinkston moved into the
apartment.
Shortly after moving into the apartment, she noticed
an oily substance on the stair steps and discovered that the
handrail on the stairway leading to the upper floor of her
apartment was loose.
She made several requests to Lincolnshire
staff to repair the handrail, but Lincolnshire took no action.
Pinkston and other family members attempted to tighten the loose
screw on the handrail.
However, Pinkston stated that the screw
appeared to be stripped.
On the morning of March 30, 2002, Pinkston slipped
while stepping onto the top step.
As she fell, she grabbed the
handrail but it came loose from the wall.
As a result of the
fall, Pinkston suffered bruises and an injury to her right
ankle.
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Thereafter, Pinkston brought this action against
Lincolnshire and Audubon Area Community Services, alleging that
her injuries were caused by Lincolnshire’s failure to properly
maintain the premises in a safe and habitable condition.
Following discovery, Lincolnshire moved for summary judgment,
arguing that it had no duty to repair the handrail.
Lincolnshire also argued that it was entitled to tort immunity
because it is a subsidiary of a charitable corporation.
The
trial court agreed with both grounds and dismissed Pinkston’s
complaint on February 1, 2006.
This appeal followed.
The proper function of summary judgment is to
terminate litigation when, as a matter of law, it appears that
it would be impossible for the respondent to produce evidence at
the trial warranting a judgment in his favor.
Steelvest, Inc.
v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991).
On appeal, this Court must determine whether the trial
court erred in concluding that there was no genuine issue as to
any material fact and that the moving party was entitled to a
judgment as a matter of law.
781 (Ky.App. 1996).
Scifres v. Kraft, 916 S.W.2d 779,
Because summary judgments involve no fact
finding, this Court reviews them de novo, in the sense that we
owe no deference to the conclusions of the trial court.
v. Moran, 12 S.W.3d 698, 700 (Ky.App. 2000).
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Blevins
In support of summary judgment, Lincolnshire primarily
relies on the general rule that a tenant takes the premises as
she finds them.
In the absence of a special agreement to do so,
made when the contract is entered into, there is no obligation
upon the landlord to repair the leased premises.
Shauntee, 664 S.W.2d 512, 518 (Ky. 1983).
Miles v.
Likewise, a landlord
will not be liable for injuries caused by defects in the leased
premises unless the condition is unknown to the tenant and not
discoverable through reasonable inspection.
Milby v. Mears, 580
S.W.2d 724, 728 (Ky.App. 1979), citing Parson v. Whitlow, 453
S.W.2d 270 (Ky. 1970); Carver v. Howard, 280 S.W.2d 708 (Ky.
1955); Larkin v. Baker, 308 Ky. 364, 214 S.W.2d 379 (1948);
Consolidation Coal Co. v. Zarirs, 222 Ky. 238, 300 S.W. 615
(1927); and Speckman v. Schuster, 183 Ky. 326, 209 S.W. 372
(1919).
Since the condition was obvious and was known to
Pinkston for several weeks before she fell, Lincolnshire argues
that it had no liability for the injuries caused by the loose
handrail.
Pyburn v. Fourseam Coal Co., 303 Ky. 443, 197 S.W.2d
921 (Ky. 1946).
In response, Pinkston notes that Lincolnshire agreed
in the lease to “make necessary repairs with reasonable
promptness.”
Consequently, she contends that Lincolnshire
assumed a duty to repair the premises and is liable for damages
arising from the breach of its duty.
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But in Spinks v. Asp, 192
Ky. 550, 234 S.W. 14 (1921), the former Court of Appeals held
that a landlord is not liable for injuries caused by breach of a
covenant to make repairs to a leased premises.
Rather, the
remedy for breach of an agreement to repair is the cost of
repair.
Id. at 16.
Curiously, Spinks has never been cited in a published
Kentucky case since it was rendered in 1921.
As a result,
Pinkston suggests that the case is no longer good law.
However,
we note that Spinks relies on established Kentucky precedent
holding that a landlord is not liable for personal injuries
growing out of the failure to repair.
As in any other contract,
the breach of a repair agreement does not extend the landlord’s
liability beyond damages outside of the reasonable contemplation
of the parties.
Dice’s Administrator v. Zweigart’s
Administrator, 161 Ky. 646, 171 S.W. 195 (1914).
This holding
remains a generally accepted principle for recovering damages
arising from a breach of contract.
See University of Louisville
v. RAM Engineering & Construction, Inc., 199 S.W.3d 746, 748
(Ky.App. 2005).
Thus, even assuming that the lease provision
imposes an affirmative duty on Lincolnshire to make repairs, we
cannot find that Lincolnshire is liable for personal injuries
arising from its breach of the agreement to repair.
Although we find that the trial court properly granted
summary judgment on this ground, we disagree with the trial
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court that Lincolnshire and Audubon Area Community Services are
entitled to immunity as a charitable corporation.
Kentucky
abrogated the charitable immunity rule in Mullikin v. Jewish
Hospital Association of Louisville, 348 S.W.2d 930 (Ky. 1961).
Furthermore, neither Lincolnshire nor Audubon Area Community
Services have made a showing that they are entitled to any form
of governmental immunity.
This issue is moot, however, because
Lincolnshire and Audubon Area Community Services were entitled
to summary judgment on another basis.
Accordingly, the summary judgment granted by the
Daviess Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
David M. Taylor
Owensboro, KY
Max S. Hartz
McCarroll, Nunley & Hartz
Owensboro, KY
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