Opinion
NO. 2015-CA-000851-MR
04-29-2016
RICHARD LAMB APPELLANT v. TIMOTHY FOLEY (DECEASED); and WANDA FOLEY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF TIMOTHY FOLEY AND BERT MCINTOSH APPELLEE
BRIEF FOR APPELLANT: J. Gregory Joyner Tyler F. Stebbins Louisville, Kentucky BRIEF FOR APPELLEES: Daniel A. Simons Michael S. Fore Richmond, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE JR., JUDGE
ACTION NO. 12-CI-00496 OPINION
AFFIRMING
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BEFORE: CLAYTON, KRAMER, AND J. LAMBERT, JUDGES. KRAMER, JUDGE: Richard Lamb appeals an order of the Madison Circuit Court summarily dismissing his premises liability claims against the above-captioned appellees. Finding no error, we affirm.
The underlying facts of this action are not in dispute. Timothy and Wanda Foley leased a house and certain real property to Bert McIntosh in Madison County, conveying to him complete control and possession of the premises during the lease period. McIntosh constructed and installed a CB radio tower on the property. The Foleys were not involved in the construction of the tower. During the term of the lease, on or about October 2, 2011, McIntosh requested Lamb to attach an antenna to the top of the radio tower. Lamb climbed onto the tower; the tower collapsed; and Lamb sustained injuries as a consequence.
Lamb filed suit in Madison Circuit Court against the Foleys based upon negligence and premises liability. Specifically, he contended the Foleys owed non-delegable duties to (1) inspect the CB tower of their tenant, McIntosh; (2) set, implement, or request limitations to its size; and (3) require or perform safety reviews or implement rules of use or regulations for its maintenance, repair, or replacement. He contended that he was injured because the Foleys had breached these duties and that the Foleys were accordingly liable to him for damages.
The Foleys subsequently moved for summary judgment, arguing Lamb's negligence claims lacked an essential element because they owed him no such duties. The circuit court granted their motion on May 4, 2015, and this appeal followed.
Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rule of Civil Procedure (CR) 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Summary judgment "is proper where the movant shows that the adverse party could not prevail under any circumstances." Id. at 480 (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)).
On appeal, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). Because summary judgment involves only questions of law and not the resolution of disputed material facts, an appellate court does not defer to the circuit court's decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky. 1992). Likewise, we review the circuit court's interpretations of law de novo. Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).
A claim of negligence requires a showing of four elements: duty; breach; causation; and injury. Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 906 (Ky. 2013). The focus of this case is whether the Foleys owed a duty to Lamb and, if so, the extent of that duty. This is a question of law. Id. at 908. Upon review, we find no reason to depart from the circuit court's decision to dismiss on the basis that no actionable duty existed in this case. We adopt the circuit court's reasoning as follows:
Kentucky courts have long held that "[w]hen a tenant maintains complete control and possession over the premises and the landlord has no contractual or statutory obligation to repair, the landlord is only liable for 'the failure to disclose known latent defects at the time the tenant leases the premises.'" Jaimes v. Thompson, 318 S.W.3d 118 (Ky. App. 2010) (citing Carver v. Howard, 280 S.W.2d 708, 711 (Ky. App. 1955)). At the time the Foleys leased the premises to McIntosh, there was no tower on the land. McIntosh constructed the tower without any direction or assistance from the Foleys. The tenant had complete control and possession of the premises when he constructed the tower. There was no agreement between McIntosh and the Foleys concerning the maintenance and repair of the tower. Thus, the only duty the landlords owed to McIntosh was the duty to disclose any latent defects that existed at the time the premises was leased to him.
As for the duty owed to Lamb, Kentucky courts have consistently held that guests and invitees of a tenant are owed the same duties as the tenant. "[T]he duties and liabilities of a landlord to persons on the leased premises by the consent of the tenant are the same as those owed to the tenant himself. For this purpose they stand in his shoes." Jaimes at 776 (citing Clary v. Hayes, 190 S.W.2d 657, 659 (Ky. 1945)). Where the tenant has no redress against the landlord, those on the premises in the tenant's right are likewise barred." Id. Consequently, since the Foleys owed no duty of care to the tenant beyond a duty to disclose known latent defects at the time the premises was leased to him, they owed no duty to the tenant's invitee or guest.
Lamb also argues that three recent cases from the Kentucky Supreme Court abrogated the ruled discussed above. Those cases, according to Lamb, are Shelton, supra; Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010); and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015).
Lamb is incorrect. Collectively, those cases do not discuss, much less abrogate, this rule. Rather, they stand for the general proposition that land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them. Shelton, 413 S.W.3d at 907; McIntosh, 319 S.W.3d at 388; Carter, 471 S.W.3d 299. Here, the Foleys did not have possession of the land where Lamb's injury occurred. Those cases, therefore, have no relevance.
For these reasons, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: J. Gregory Joyner
Tyler F. Stebbins
Louisville, Kentucky BRIEF FOR APPELLEES: Daniel A. Simons
Michael S. Fore
Richmond, Kentucky