COMBS (SHIRLEY) VS. GEORGETOWN COLLEGE, ET AL.
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RENDERED: AUGUST 26, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000846-MR
SHIRLEY COMBS
v.
APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 08-CI-00240
GEORGETOWN COLLEGE;
AND HAPPY OSBORNE
D/B/A OSBORNE BASKETBALL
CAMP
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; CAPERTON AND WINE, JUDGES.
TAYLOR, JUDGE: Shirley Combs brings this appeal from an April 12, 2010,
summary judgment of the Scott Circuit Court dismissing her premises liability
action against Georgetown College and Happy Osborne, d/b/a Osborne Basketball
Camp (collectively referred to as appellees). We affirm.
Combs was injured when she fell while descending from a platform
on the second floor of the Scott County High School gymnasium. Apparently,
Combs tripped on a “lip” that surrounded the edge of the platform. Combs’
grandson was attending a basketball camp conducted by appellees at the gym, and
she was present at the gym for the sole purpose of watching her grandson play
basketball. Numerous high school basketball teams paid a fee to participate in the
camp.
When Combs was injured, there were approximately fifty people in
the gym. The bleachers were not pulled out, and the only available seating was
folding chairs. It is undisputed that no entrance fee was charged to the gym and
that concessions were not sold. And, appellees neither advertised to the public nor
directly invited the public to attend the basketball camp’s activities.
Combs filed a premises liability action against appellees seeking
damages as a result of injuries she suffered in the fall at the gym. She claimed to
be an invitee and that appellees breached their duty to keep the gym in a
reasonably safe condition and to warn of obvious dangers. Appellees moved for
summary judgment. They argued that Combs was a mere licensee and that they
breached no duty of care to her.
The circuit court granted appellees’ motion for summary judgment.
The circuit court agreed that Combs was a licensee at the time of her injury and
that appellees breached no duty of care. This appeal follows.
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Summary judgment is proper where there exists no material issue of
fact and movant is entitled to judgment as a matter of law. Kentucky Rules of
Civil Procedure 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476 (Ky. 1991). In this case, the relevant facts are uncontroverted; thus, our
review proceeds de novo.
The disposition of this appeal depends upon whether Combs was an
invitee or licensee at the time of her injury. Thus, the distinction between an
invitee and licensee is pivotal.
Under the law of this Commonwealth:
A person is an invitee if: “(1) he enters by
invitation, express or implied, (2) his entry is connected
with the owner's business or with an activity the owner
conducts or permits to be conducted on his land and (3)
there is mutuality of benefit or benefit to the owner.”
Johnson v. Lone Star Steakhouse & Saloon of Kentucky,
Inc., 997 S.W.2d 490, 491-492 (Ky. App. 1999) (quoting
Black's Law Dictionary, 827 (6th ed. 1990)).
West v. KKI, LLC, 300 S.W.3d 184, 190-191 (Ky. App. 2008). A premises owner
or occupant owes a duty to an invitee to exercise ordinary care to maintain the
premises in a reasonably safe condition and to warn of latent, unknown, or obvious
dangers. West, 300 S.W.3d 184.
By contrast, a licensee:
[I]s one whose presence upon land is solely for his own
purpose, in which the possessor has no interest, either
business or social, and to whom the privilege of entering
the premises is extended as mere favor by express
consent or by general or local custom.
-3-
Collins v. Rocky Knob Assocs., Inc., 911 S.W.2d 608, 612 (Ky. App. 1995). A
premises owner or occupant owes a duty to a licensee not to willfully or wantonly
injure the licensee and to warn of dangerous conditions known by the
owner/occupant.
In concluding that Combs was a licensee and that appellees’ breached no
duty of care to her, the circuit court reasoned:
No person who came to watch practice [was]
charged a fee nor [was] any concession available. There
was no organized seating for participants to watch the
practice and everyone was required [to] find a seat where
ever they could. [Combs] found a seat on the second
floor in a folding chair on top of a small platform
approximately one foot high. She stepped upon the
platform and took a seat in the folding chair. After
watching her grandson play [a] basketball game she got
up to leave and as she did she tripped over a lip
approximately an inch tall on the edge of the platform.
There is no evidence that [appellees] knew of the
platform or anything about the platform because it is on
the second floor and [appellees] used only the basketball
courts on the first floor during the four day camp.
Combs believes that the circuit court erred by deciding that she was a
licensee at the time of her injury. Instead, Combs maintains that she was clearly an
invitee and particularly argues:
In this situation, it is also apparent that [appellees]
solicited high school basketball players for a basketball
camp held at Scott County High School and that, as part
of this camp, [appellees] knew or should have known that
said camp attracted spectators, such as family and friends
of the participants. In fact, Defendant Happy Osborne
admits that spectators did enter the gym during the camp,
showing actual knowledge. Youth playing organized
basketball and unlocked doors of the gymnasium together
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create an implied invitation for spectators, especially
family members of the youth, such as Shirley Combs, to
enter the gymnasium to watch games. (Citations
omitted.)
Therefore, the implied invitation to Shirley Combs
to attend her grandson’s basketball games at the
gymnasium, coupled with her attendance being in
connection with the business interests of [appellees],
make [Combs] an invitee as a matter of law.
Combs’ Brief at 5-6. Essentially, Combs maintains that appellees impliedly
invited her to enter the gym, that her entry was connected with appellees’ business,
and her attendance was beneficial to appellees. Upon review of the record, we do
not think that appellees impliedly invited Combs to enter the gym or that Combs
was an invitee of appellees.
The Restatement (Second) of Torts § 332 (1965) provides a definition of
“invitee.” More important to our case is “Comment b and c.” Comment b and c
discuss the fine distinction between an “invitation,” which is necessary for an
invitee, and “permission,” which is given to a licensee, to enter a premises:
An invitation differs from mere permission in this: an
invitation is conduct which justifies others in believing
that the possessor desires them to enter the land;
permission is conduct justifying others in believing that
the possessor is willing that they shall enter if they desire
to do so. Any words or conduct of the possessor which
lead or encourage the visitor to believe that his entry is
desired may be sufficient for the invitation. A common
form of invitation is preparation of the land for the
obvious purpose of receiving the visitor, and holding it
open for that purpose. . . .
....
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In determining whether a particular person is an invitee,
the important thing is the desire or willingness to receive
that person which a reasonable man would understand as
expressed by the words or other conduct of the possessor.
It is immaterial that the person is one whom the
possessor is not willing to receive as an invitee if the
possessor's words or other conduct are understood, and
would be understood by a reasonable man, as indicating
the possessor's willingness. The nature of the use to
which the possessor puts his land is often sufficient to
express to the reasonable understanding of the public, or
classes or members of it, a willingness or unwillingness
to receive them.
Restatement (Second) of Torts § 332 cmt. b, c (1965).1
The undisputed facts of this case lead to the inescapable conclusion
that Combs was a licensee at the time of her injury. As recited by the circuit court,
the facts failed to demonstrate that appellees impliedly invited Combs’ attendance
or that Combs’ attendance benefited appellees. Rather, the facts demonstrated that
her attendance was merely by permission of appellees. In support thereof, the
record reveals that the bleachers at the gym were not prepared for spectators, no
advertising was undertaken, and Combs did not pay an entrance fee. As a licensee,
appellees only owed Combs the duty to warn her of dangers known to them and to
not willfully cause her injury. The uncontroverted facts reveal that appellees
breached neither duty to Combs.
In sum, we conclude that the circuit court properly rendered summary
judgment dismissing Combs’ premises liability action against appellees.
1
We observe that the Supreme Court has cited the Restatement (Second) of Torts approving in a
premises liability action. Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364 (Ky.
2005).
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For the foregoing reasons, the summary judgment of the Scott Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
C. Graham Martin
Salyersville, Kentucky
Michael S. Maloney
A. Pete Pullen
Louisville, Kentucky
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