Opinion
NO. 2019-CA-000300-MR
01-24-2020
MARCUS CAUDILL AND KAREN CAUDILL, INDIVIDUALLY AND AS CO-ADMINISTRATORS OF THE ESTATE OF AMBER CAUDILL APPELLANTS v. VERDURE, LLC APPELLEE
BRIEFS FOR APPELLANTS: L. Dustin Riddle Teddy L. Flynt Salyersville, Kentucky BRIEF FOR APPELLEE: Bradly E. Moore R. Tracy Starnes Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLARK CIRCUIT COURT
HONORABLE BRANDY OLIVER BROWN, JUDGE
ACTION NO. 15-CI-00495 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES. CLAYTON, CHIEF JUDGE: Appellants, Marcus and Karen Caudill, individually and as co-administrators of the Estate of Amber Caudill, appeal the Clark Circuit Court's order granting summary judgment to Appellee, Verdure, LLC, finding the landlord owed no duty to a tenant killed by a stray bullet. For the following reasons, we affirm.
BACKGROUND
On December 23, 2014, Amber Caudill was shot and killed in her apartment by a stray bullet that came through her ceiling from a gun being fired into the floor of the apartment above hers during an attempted robbery/home invasion. Amber was a tenant in the Summit Apartment complex, owned and operated by Verdure. Amber became a resident at Summit about three months before the incident. Her apartment was directly below the apartment of Justin Meadows and Kaitlin Campbell, who began renting at Summit about two months before the incident.
On the evening of the incident, Meadows was in his apartment when three masked men knocked on his door and obscured the peephole. Meadows got a firearm and cracked open the door. At that point, the intruders forced a gun into the crack and fired into the floor of Meadows' apartment. The intruders gained full entry into Meadows' apartment and a gunfight ensued. The intruders subsequently fled to a waiting getaway car, although they were ultimately apprehended. The three armed men, as well as their accomplice, were all arrested, indicted, and each subsequently pled guilty to multiple charges in connection with the attempted robbery in Meadows' apartment and the murder of Amber.
A ballistics investigation confirmed that Amber was shot with a bullet from the gun that was wedged in Meadows' door and fired into the floor of Meadows' apartment. The bullet came through the ceiling of Amber's apartment, struck her in the head, and killed her. The police believe the intruders were attempting to steal one ounce of marijuana, worth approximately $300, from Meadows' apartment.
In November 2015, the Caudills filed suit against Verdure alleging Amber's death was caused by Verdure's negligence in failing to maintain safe and secure premises; renting to Meadows and Campbell; failing to take reasonable steps to deter criminal activity, creating a hazardous and dangerous condition; and failing to warn Amber of the hazardous and dangerous condition.
In discovery, the parties took the depositions of three witnesses: (1) Michael Mackin, Verdure's owner; (2) Sgt. Tom Bealls of the Winchester Police Department; and (3) Gina Elkins, Verdure's property manager. The parties also exchanged written discovery.
In August 2018, Verdure moved for summary judgment arguing the criminal acts which led to Amber's death were not reasonably foreseeable and, therefore, it had no duty to prevent these criminal acts on its premises. In response, the Caudills argued that there was a genuine issue of material fact whether the criminal acts were reasonably foreseeable, noting evidence of prior criminal activity on the premises. Within their response to Verdure's motion for summary judgment, the Caudills requested additional time to take discovery. Although the record contains no order denying that request, the Caudills' reply brief states the circuit court denied their motion. Regardless, the Caudills argued the facts known at that time in discovery proved Verdure should have foreseen the incident.
Although both parties reference a hearing on the motion for summary judgment, no videos were made part of the record and neither party cites to a video record. The Court assumes the circuit court orally denied the Caudills' request for additional time to take discovery.
On October 24, 2018, the circuit court granted summary judgment to Verdure, finding it had no duty to prevent the intentional criminal acts of non-resident third parties. Further, the circuit court held the criminal acts were not reasonably foreseeable and Amber's death, while tragic, was wholly unforeseeable.
The Caudills then filed a Kentucky Rule of Civil Procedure (CR) 59.05 motion to alter, amend, or vacate, citing "new evidence" in the form of an open records request to the Winchester Police Department and the report of Michael Gerard, a police practices and premises security expert. In response, Verdure argued this was not "new" evidence because the Caudills requested the open records and obtained Gerard's expert report after the summary judgment ruling. Moreover, Verdure asserted this evidence was available for nearly three years before Verdure moved for summary judgment and, thus, was not "newly discovered evidence." The circuit court summarily denied the Caudills' CR 59.05 motion. This appeal followed.
STANDARD OF REVIEW
In reviewing a grant of summary judgment, our inquiry focuses on "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." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. Only when the nonmoving party appears to be unable to produce evidence at trial warranting a judgment in their favor should summary judgment be granted. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Further, "a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Id. at 482. "An appellate court need not defer to the trial court's decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). Accordingly, we review the circuit court's order granting summary judgment to Verdure de novo.
At this juncture, we address Verdure's argument that the Caudills failed to request reversal of the circuit court's denial of their CR 59.05 motion to alter, amend, or vacate, which Verdure contends would be subject to an abuse of discretion standard of review. This appears to be a confusing issue to both parties. To clarify, there is no appeal from the denial of a CR 59.05 motion. Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019). "Orders denying CR 59.05 relief 'are interlocutory, i.e., non-final and non-appealable and cannot be made so by including the finality recitations.'" Hoffman v. Hoffman, 500 S.W.3d 234, 236 (Ky. App. 2016) (quoting Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 103 (Ky. App. 2011)). Here, simply because the circuit court included finality language in its order denying the Caudills' motion for CR 59.05 relief does not make that order appealable. In other words, the denial of a CR 59.05 motion does not alter the summary judgment. The Caudills' appeal is from the underlying judgment, not the denial of the CR 59.05 motion. As a matter of substantial compliance, we disregard the Caudills' designation of the order denying their CR 59.05 motion and consider the appeal properly taken from the final summary judgment order, which they properly designated in their notice of appeal. As stated, we review that order de novo.
ANALYSIS
To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff's damages. Lee v. Farmer's Rural Elec. Co-op. Corp., 245 S.W.3d 209, 211-12 (Ky. App. 2007). The primary issue for this appeal is whether Verdure owed a duty to Amber.
The Caudills assert that Verdure had a duty to take reasonable measures to prevent reasonably foreseeable intentional criminal acts of non-resident third parties, and Amber's death was reasonably foreseeable to Verdure. They claim the Summit Apartment complex had a history of criminal activity. They also claim reports exist of drug activity on the premises, including drug dealing which led to a gun being pulled. Therefore, the Caudills argue Verdure knew or should have known about criminal activity on its property and failed to take any steps to prevent Amber's death.
In support of their argument, the Caudills cite Waldon v. Housing Authority of Paducah, 854 S.W.2d 777 (Ky. App. 1991). In Waldon, Magdalene Smith, a tenant at an apartment complex owned and operated by the Housing Authority, was shot and killed outside her apartment by Albert Williams. Smith's estate filed suit against the Housing Authority alleging negligence. The circuit court granted the Housing Authority's motion for summary judgment, which argued the action was barred as a matter of law by Kentucky Revised Statute (KRS) 411.155. That statute limited liability resulting from the criminal use of a firearm by a third person. On appeal, this Court reversed, holding KRS 411.155 unconstitutional and stating: "a landlord's conduct can make him liable to his tenant for the criminal acts of third persons, if the landlord fails to take reasonable steps to avoid injury from reasonably foreseeable criminal acts." Id. at 779. The Court held that whether the Housing Authority's failure to remove Williams from the apartment complex and provide security guards, as it previously had done, proximately caused Smith's death was a jury question, which precluded summary judgment. Id.
Verdure, on the other hand, distinguishes Waldon from the present case, noting whether a duty exists is a question for the court. Citing Waldon, Verdure asserts that a landlord is not a guarantor of a tenant's safety. Id. at 779. While every person owes a general duty to every other person to exercise ordinary care, this duty is limited to foreseeable injuries. Id. at 778. Thus, Verdure argues its duty was limited to preventing reasonably foreseeable criminal acts and, because the criminal acts of the intruders in this case were not foreseeable, it owed no duty to Amber.
We agree that Waldon is distinguishable from the Caudills' action. First, in Waldon, Smith was shot and killed in a common area of her public housing facility by an individual occupying another apartment in that building illegally. Also, before the shooting, Smith and others advised the Housing Authority that Williams (the assailant) repeatedly threatened to kill Smith. Moreover, the Housing Authority knew Williams was occupying the premises without permission but took no efforts to remove him. Further, the Housing Authority had discontinued regular security guards previously provided due to frequent criminal activity at the complex. With those facts, the Court held a genuine issue of material fact existed for a jury to determine the proximate cause of Smith's death.
In contrast, here, Amber was shot and killed, while inside her apartment, by a stray bullet fired during an attempted robbery/home invasion of the apartment above hers. Also, contrary to Waldon, the intruders to Meadows' apartment were not residents of the Summit. Verdure did not know about the intruders or their planned crime. The Caudills presented no evidence that Verdure received complaints or reports of any kind regarding Meadows or his apartment before the incident. In addition, Verdure performed a criminal background check on both Meadows and Campbell, which revealed no criminal history that would make the incident foreseeable. Meadows' background check only showed traffic violations and a DUI. Moreover, Property Manager Elkins testified no tenant expressed any safety concerns about the property or complained about a lack of security. Sgt. Bealls had been an officer in Winchester for eighteen years and was familiar with the Summit Apartment complex. This was the only homicide he knew of at the property. In addition, Sgt. Bealls testified the Summit Apartment complex was "no more susceptible to a heightened level of criminal activity" than other similar apartment complexes, and its security was no different than similar properties.
While the Caudills emphasize that the intruders conducted a "test run" of their crime the day before the incident, which could make the act foreseeable, they have no evidence that Verdure or anyone else knew of this "test run." And, the police run sheets relied upon by the Caudills fail to create a genuine issue of material fact that the criminal actions of the non-resident third parties were reasonably foreseeable to Verdure. Based on the facts of this case, Verdure owed no duty to Amber to prevent these criminal acts and summary judgment was appropriate.
For the purpose of illustration, other jurisdictions have addressed a similar fact pattern as this case. See, e.g., Williams v. Gorman, 214 N.J. Super. 517, 520 A.2d 761 (1986) (holding landlord not liable as a matter of law for tenant injured by shotgun blast from upstairs apartment that blew a hole in her ceiling, as criminal act was not foreseeable based on earlier incident of fighting in upstairs apartment); see also Johnson v. Slocum Realty Corp., 191 A.D.2d 613, 595 N.Y.S.2d 244 (N.Y. App. Div. 1993) (upholding summary judgment to landlord when tenant shot in head by another tenant inside the other tenant's apartment, as landlord had no knowledge that BB guns were being fired on the premises and it received no complaints of such); Tedder v. Raskin, 728 S.W.2d 343 (Tenn. Ct. App. 1987) (holding landlord not liable for injuries sustained by tenant's son from a bullet that came through the wall of his bedroom from adjoining apartment during a struggle between next-door neighbor, who allegedly dealt drugs, and a man attempting to rob him, even though landlord received notice of parking problems and uncorroborated suspicion of drug dealing in neighboring apartment).
As the Kentucky Supreme Court stated in Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 849 (Ky. 2005), "an actor whose own conduct has not created a risk of harm has no duty to control the conduct of a third person to prevent him from causing harm to another." Here, the Caudills have no evidence that Verdure's conduct created the risk of an attempted robbery/home invasion by non-resident third persons who would fire a bullet into the floor of an upstairs apartment causing harm to a resident below.
Finally, the Caudills argue that summary judgment was granted prematurely because discovery was ongoing. However, a party "cannot complain of the lack of a complete factual record when it can be shown that the respondent has had an adequate opportunity to undertake discovery." Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 69 (Ky. App. 2006). This case had been pending for three years before Verdure moved for summary judgment. The record reflects depositions were taken and discovery was exchanged. The Caudills presented no affidavit detailing additional discovery or depositions they needed to justify their opposition to summary judgment. See CR 56.06. While the Caudills argue that the depositions of "tenants" have not been taken, they fail to identify these tenants or what testimony these tenants may offer to have opposed summary judgment or why they were unable to take these depositions previously. The Caudills also complain they obtained additional evidence "that was previously unavailable" before the circuit court granted summary judgment. Again, however, they offer no reason why this evidence was unavailable other than the unattested statement that their expert witness told them "there should be additional police reports for each incident on the police call logs." "[T]he hope that something will come to light in additional discovery is not enough to create a genuine issue of material fact." Benningfield v. Pettit Environmental, Inc., 183 S.W.3d 567, 573 (Ky. App. 2005).
The curtain must fall at some time upon the right of a litigant to make a showing that a genuine issue as to a material fact does exist. If this were not so, there could never be a summary judgment since "hope springs eternal in the human breast." The hope or bare belief, like Mr. Micawber's, that something will "turn up," cannot be made basis for showing that a genuine issue as to a material fact exists.Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968) (citation omitted). "'Belief' is not evidence and does not create an issue of material fact." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990). "A party's subjective beliefs about the nature of the evidence is not the sort of affirmative proof required to avoid summary judgment." Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007).
CONCLUSION
For the foregoing reasons, we affirm the Clark Circuit Court's order granting summary judgment to Verdure.
ALL CONCUR. BRIEFS FOR APPELLANTS: L. Dustin Riddle
Teddy L. Flynt
Salyersville, Kentucky BRIEF FOR APPELLEE: Bradly E. Moore
R. Tracy Starnes
Lexington, Kentucky