DIXON (MARY BELLE) VS. MCGLONE CONSTRUCTION , ET AL.Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MARY BELLE DIXON
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 07-CI-00238
MCGLONE CONSTRUCTION, LLC;
AND 2375 NICHOLASVILLE, LLC
** ** ** ** **
BEFORE: STUMBO AND THOMPSON, JUDGES; GUIDUGLI,1 SENIOR
GUIDUGLI, SENIOR JUDGE: Mary Belle Dixon appeals from a summary
judgment granted against her on claims of negligence arising from a trip and fall
incident in a public parking lot. We affirm.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Dixon went to the Regency Center Shopping area in Lexington,
Kentucky, for the purpose of picking up a carry-out order at a Panera’s restaurant.
When she exited her vehicle, she took three or four steps and tripped over an
unmarked manhole cover that protruded from the pavement. Dixon fell and
sustained injuries to her hand as a result.
Dixon filed suit against 2375 Nicolasville, LLC, the owner of the
property where she was injured. 2375 Nicolasville filed a third-party complaint
against McGlone Construction, the paving contractor. Following the taking of
Dixon’s deposition, both 2375 Nicolasville and McGlone filed motions for
summary judgment. The trial court granted summary judgment finding that the
manhole cover constituted an open and obvious hazard. This appeal followed.
Dixon argues that the trial court erred by granting summary judgment
because it misapplied the law regarding premises liability and did not properly
apply the facts according to the proper standard of summary judgment.
The standard of summary judgment is well-established:
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 “[o]nly 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).
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).
In cases involving hazards created by property owners, the owners
owe no duty to warn or protect an invitee if the hazard is known or obvious to the
invitee. Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 368 (Ky.
2005). A hazard is obvious when “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.” Id. at 367 (quoting
Restatement (Second) of Torts § 343A cmt. b (1965)). Additionally, “[i]n
pedestrian fall-down cases arising out of defects in or obstructions on the walking
surface the visibility factor is vital.” Id. at 369 (quoting Jones v. Winn-Dixie of
Louisville, Inc., 458 S.W.2d 767, 769 (Ky.1970)).
The incident in the present case occurred during daylight. Dixon
testified that she did not see the manhole cover until she fell. However, she also
testified that the manhole cover was not obstructed by anything, vehicles or
otherwise. Dixon stated that she was not distracted at the time and that there was
nothing that would have prevented her from seeing the manhole cover. Further,
Dixon stated that nothing would have prevented her from taking an alternate
course through the parking lot. Based on this evidence, we agree with the trial
court that the manhole cover was an obvious hazard that should have been
recognized by an ordinary person exercising reasonable care. Therefore, summary
judgment was appropriate.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
BRIEF FOR APPELLANT:
Debra Ann Doss
BRIEF FOR APPELLEE, 2375
John L. Tackett
BRIEF FOR APPELLEE, MCGLONE
Daniel E. Murner