Opinion
Civil Action No. 3:04CV-80-H.
February 7, 2005
MEMORANDUM AND ORDER
Plaintiff, Wendy Jo Johnson, tripped over a step leading to the entrance of Defendant, Uptown Café Company. Her complaint alleges Defendant allowed a dangerous condition on its property to cause her injury. Defendant has now moved for leave to file a third party complaint against an architectural firm, Stengel-Hill, Inc., for negligent design of the entrance step. In addition, Defendant has moved for summary judgment.
Plaintiff filed her complaint in Jefferson Circuit Court on November 13, 2003. On February 5, 2004, Defendant removed the case to federal court. On April 7, 2004, the Court entered a litigation plan and discovery schedule that provided for amendment of the pleadings and adding additional parties to be completed September 1, 2004, and an end to discovery by December 1, 2004. The Court also set a trial date for April 5, 2005. On November 5, 2004, Defendant moved for leave to file its third party complaint adding Stengel-Hill, Inc., as an additional defendant. The third party complaint alleges Stengel-Hill was negligent in its design of the entrance step to the restaurant. The third party complaint asks for apportionment of liability and/or indemnity. Whether to grant such a motion lies in the sound discretion of the district court. General Electric Co. v. Irvin, 274 F.2d 175, 178 (6th Cir. 1960).
Defendant has filed its motion outside the time this Court originally set for adding parties. While such dates are not inflexible, to change them usually requires something more than an expert merely reconsidering his original opinion. Here, counsel initially consulted an expert to determine whether the design did not violate professional standards. Many months later, Defendant's insurance carrier asked for a re-evaluation. The same expert did so and has apparently changed his opinion. Such a scenario does not provide a compelling reason for ignoring the original litigation plan which this Court set. On the other hand, this case has existed in the federal court for barely a year. Even if the current trial date were extended a few months to accommodate a new party, the case would still be resolved in relatively short order.
Even if the Court allowed the filing of the third party complaint, the Court is not at all sure that Defendant would be entitled to an apportionment instruction. Rather, this case probably calls for Defendant to seek indemnity from the designer of the step. Apportionment applies where two tortfeasors have acted in pari delicto — "jointly or concurrently or contributorily in committing the tort." Brown Hotel Co. v. Pittsburgh Fuel Co., 224 S.W.2d 165, 167 (Ky. 1949). Indemnity, on the other hand, applies where "both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury." Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky. 2000). Indemnity reflects the equitable notion that even where two tortfeasors cause injury to another, in certain circumstances the more "responsible" or more "culpable" tortfeasor should bear the entire cost of the injury. Union Carbide Corp. v. Sweco, Inc., 610 S.W.2d 932, 934 (Ky.App. 1981). The Kentucky Supreme Court has expressly declared that common law indemnity survived the codification of apportionment of liability in KRS 411.182. Degener, 27 S.W.3d at 780-81. Some have questioned whether the legislature, having adopted a scheme that apportions liability according to the quantity of a party's fault, would also want liability fully shifted because of the "quality" of a party's fault. The doctrine clearly persists nonetheless. See, e.g., Garland v. Tennessee Valley Authority, 336 F.3d 455, 457 (6th Cir. 2003) (citing Brown Hotel, 224 S.W.2d at 167; Degener, 27 S.W.3d at 780).
Other forms of indemnity exist as well, of course. A party can contractually agree to indemnification. ARA Services, Inc. v. Pineville Community Hosp., 2 S.W.3d 104, 106 (Ky.App. 1999) (citation omitted). And a party who is only technically or constructively at fault, such as a master for the negligence of its servant, can also claim indemnity. Degener, 27 S.W.3d at 780 (citation omitted).
The Court stated: "To summarize, apportionment of liability arose from statutory provisions permitting contribution and several liability among joint tortfeasors in pari delicto. It has no application to the common law right of a constructively or secondarily liable party to total indemnity from the primarily liable party with whom he/she is not in pari delicto." Degener, 27 S.W.3d at 780.
In a vigorous dissent in Degener, Justice Keller argued that the majority decision abandoned the principle of comparative fault developed in Kentucky case law and adopted by statute. Degener, 27 S.W.3d at 786-87 (Keller, J., dissenting). Kentucky's adoption of comparative fault, he said, illustrates a "faith that juries can properly assess relative degrees of fault and, when appropriate, place the lion's share of liability on the principal wrongdoer." Id. at 786. The majority opinion, he argued, "withdraws that faith and holds that, even when a jury has determined that a defendant has engaged in tortious conduct and should be responsible for a proportional share of the plaintiff's damages," that tortfeasor can obtain indemnity from "a more culpable tortfeasor who is `really' responsible for the plaintiff's damages." Id.
Commenting on the Degener case, Professor Leibson largely agreed with Justice Keller's dissent:
"When the actions of multiple tortfeasors cause the plaintiff's injuries, there seems to be no room in the philosophy of comparative fault for any of them to be indemnified and thus insulated from any consequence based on the `quality' of their fault."
David J. Leibson, 13 Kentucky Practice: Tort Law § 10.59 n. 11 (1995 Supp. 2004).
There is no simple, categorical way to determine when indemnity applies. Although courts have devised labels to describe the kinds of tortfeasors to whom indemnity applies — active/passive, primary/secondary — the Kentucky Supreme Court has warned against focusing too closely on these labels rather than on the "underlying equitable principles and the operative facts behind these labels." Crime Fighters Patrol v. Hiles, 740 S.W.2d 936, 938 (Ky. 1987). Kentucky courts have also relied on the factual illustrations provided by the Restatement (Second) of Torts and the Restatement of Restitution as guideposts for determining when indemnity applies. See id. at 939; Eichberger v. Reid, 728 S.W.2d 533, 535 (Ky. 1987); Kanawha Steel and Equipment Co. v. Dorsey Trailers, Inc., 856 F.2d 780, 782-83 (6th Cir. 1988) (applying Kentucky law).
The Restatement of Restitution provides:
Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other's duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.Restatement of Restitution § 95 (1937). The comment states that the rule applies "to situations in which a person has a non-delegable duty with respect to the condition of his premises but has entrusted the performance of this duty to a third person, either a servant or an independent contractor." Id. The comment recognizes, however, that the right of the landowner to claim indemnity is limited by the degree to which the landowner "not only knew of the condition but acquiesced in its continuance." Id. Kentucky case law likewise provides that the right of indemnity ends when a party, although exposed to liability through another's tortious conduct, nevertheless "proceed[s] with actual knowledge" that he is also violating someone's rights. Ohio River Pipeline Corp. v. Skilton Construction Co., 580 S.W.2d 713, 721 (Ky.App. 1979) (project developer not entitled to indemnity from architect whose plans encroached another's easement because project developer proceeded with actual knowledge of the encroachment).
Similarly, the Restatement (Second) of Torts makes indemnity applicable as follows:
(1) If two persons are liable in tort to a third person for the same harm and one of them discharges the liability of both, he is entitled to indemnity from the other if the other would be unjustly enriched at his expense by the discharge of the liability.
(2) Instances in which indemnity is granted under this principle include . . .
(d) The indemnitor supplied a defective chattel or performed defective work upon land or buildings as a result of which both were liable to the third person, and the indemnitee innocently or negligently failed to discover the defect;
(e) The indemnitor created a dangerous condition of land or chattels as a result of which both were liable to the third person, and the indemnitee innocently or negligently failed to discover the defect;
The comment to clause (e) provides:
i. This provision . . . applies, for example, to a case in which the indemnitor has wrongfully dug a ditch across the indemnitee's road or has left a dangerous obstruction on the sidewalk in front of the indemnitee's home and the latter has negligently failed to correct the situation.Restatement (Second) of Torts § 886B (1979).
The well-known Brown Hotel case seems to fit within these general rules. Brown Hotel Co. v. Pittsburgh Fuel Co., 224 S.W.2d 165 (Ky. 1949). There, a Pittsburgh Fuel employee working on the premises of the Brown Hotel left a manhole lid insecure and a pedestrian was injured when he stepped on the lid. Id. at 166. Although the Brown Hotel was negligent in failing to discover and remedy the condition, it was entitled to indemnity from Pittsburgh Fuel whose negligence was the "primary, efficient and direct cause of the accident." Id. at 167.
In light of these general principles, the present facts likely sound in indemnity rather than apportionment. Defendant's potential liability exists because it operated its restaurant and the surrounding property with an allegedly unsafe and dangerous condition. It is responsible for any violation of its duties as a property owner for that reason. On the other hand, it has a claim of indemnity against the architects if they placed Defendant in a position of being primarily responsible by their own mistake. The Defendant and the third party defendant do not appear to be in pari delicto or having participated together in the wrongdoing or being jointly at fault. Thus, Defendant is entitled to claim indemnity either in the current action or after its own primary liability has been determined. It would be easier for the parties and the Court should that liability or indemnity be determined during the current proceedings rather than afterwards.
The Court concludes that it will allow the filing of the third party complaint. The Court has by no means determined, however, that it will ultimately allow an apportionment instruction which would include both Defendants. Quite to the contrary, such an instruction appears unlikely.
Defendant has also moved for summary judgment on the grounds that the alleged dangerous condition in question was open and obvious and that in the exercise of ordinary care Plaintiff should have noticed the step and avoided injury. See Bonn v. Sears, Roebuck Co., 440 S.W.2d 526, 528-529 (Ky. 1969). Plaintiff responds that under the conditions that existed at the time of the accident, the step was not open and obvious. Plaintiff says that the step may not have been illuminated or clearly visible to pedestrians approaching from a certain vantage point. Also, Plaintiff questions whether Defendant's pictures fairly and accurately show the structure as it existed at the time of the accident.
Undoubtedly, the step and the approach to it were clearly observable from many vantage points. It is probably true that many patrons have approached the restaurant from the same direction and have navigated the steps without injury. The existence of these facts will raise a difficult and perhaps unanswerable question of why this particular individual did not observe and avoid the steps.
On the other hand, there seems to be confusion as to the exact look of the steps at the time of the accident. Moreover, the Court cannot determine from the evidence how difficult it was to observe the step under the circumstances that existed at the time of the accident. Plaintiff has an expert who will testify in some fashion that the step entrance created a dangerous condition. Whether a step is open and obvious depends on the facts and circumstances at issue. See Rutledge v. Legrande's Auto Collision Center, No. 2002-CA-000473-MR, 2003 WL 21512248 (Ky.App. July 3, 2003) (jury question presented when reasonable minds could differ over danger posed by step); Harter v. Roetting, No. 2002-CA-001040-MR, 2003 WL 22927750 (Ky.App. Dec. 12, 2003) (front porch step in daylight that plaintiff had traversed twenty minutes earlier was open and obvious); Conley v. Nikken, Inc., No. 2002-CA-001849-MR, 2004 WL 1047225 (Ky.App. May 7, 2004) (conflicting evidence about lighting and carpeting presented jury question about step). Without seeing and hearing the live evidence, the Court cannot determine whether a reasonable jury could find that the conditions existing at the time of the accident created a dangerous condition. Consequently, the Court must deny the motion for summary judgment at this time.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion for leave to file a third party complaint is SUSTAINED and the third party complaint is deemed filed. The Court makes no ruling at this time as to the relief it will allow Defendant to assert against the third party defendant.
IT IS FURTHER ORDERED that Defendant's motion for summary judgment is DENIED at this time.