Opinion
NO. 2016-CA-000194-MR
06-16-2017
BARBARA SMITH APPELLANT v. BONNIE SMITH APPELLEE
BRIEF FOR APPELLANT: Darrell L. Saunders Corbin, Kentucky Michael D. Risley Louisville, Kentucky BRIEF FOR APPELLEE: Brien G. Freeman Corbin, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 14-CI-00185 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: This is a premises liability appeal from the Knox Circuit Court. A jury returned a verdict for a mother who slipped and fell at her daughter's home. The daughter now challenges the substance of the jury instructions. After review, we affirm.
I. BACKGROUND
In May 2013, Bonnie Smith slipped and fell while visiting her daughter, Barbara Smith, at Barbara's home. Specifically, Bonnie fell down the steps of Barbara's back deck, which Barbara had just cleaned and mopped with a mixture of bleach and liquid soap. Bonnie sustained injury and sued Barbara. A jury trial was held in October 2015.
Upon conclusion of the evidence, the court instructed the jury as follows:
The jury answered Question No. 1 in the affirmative and ultimately found for Bonnie. Barbara subsequently moved the court to enter a judgment notwithstanding the verdict (JNOV) or alternatively, for a new trial. According to Barbara, the jury instructions incorrectly outlined the applicable standard of care owed to Bonnie. In a proposed jury instruction at trial, Barbara had instead offered that "[n]o duty was owed to the Plaintiff by the Defendant other than that of not knowingly letting her come upon a hidden peril or willfully or wantonly causing her harm." Barbara maintained this standard applied because of Bonnie's status as "a social visitor in the home of the Defendant at the time of her alleged fall."
INSTRUCTION NO. 1
It was the duty of the Defendant, Barbara Smith, to exercise ordinary care to maintain her premises in a reasonably safe condition for use of her guests, including the Plaintiff, Bonnie Smith. "Ordinary care" as used in this instruction generally means such care exercised by a reasonable and prudent person under similar circumstances.
QUESTION NO. 1
Do you find from the evidence that the Defendant, Barbara Smith, violated her duty as set for the in Instruction No. 1, and that such failure was a substantial factor in causing the accident?
In January 2016, the circuit court overruled Barbara's motion for new trial. This appeal followed.
II. STANDARD OF REVIEW
"[A] motion for JNOV shall not be granted unless 'there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.'" Carter v. Coalfield Lumber Co., Inc., 331 S.W.3d 271, 275 (Ky. App. 2010) (quoting Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998)). Absent clear error, we will defer to the trial court's decision. Wright v. Carroll, 452 S.W.3d 127, 132 (Ky. 2014). Alleged errors with respect to jury instructions, however, are reviewed de novo. Reece v. Dixie Warehouse & Cartage Co., 188 S.W.3d 440, 449 (Ky. App. 2006).
III. DISCUSSION
On appeal, Barbara again contends the jury instructions provided the wrong legal standard. She argues that because Bonnie was a social guest, and thus a "licensee" at the time of her fall, the jury instructions should have required the jury to find whether a heightened standard of care was breached. Barbara also confronts our Supreme Court's decisions in Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010); Shelton v. Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901 (Ky. 2013); and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015). Barbara argues these decisions to do not apply when the plaintiff is a "licensee" under Kentucky law. For the following reasons, we disagree.
While it is true that Kentucky courts traditionally categorized visitors on land and "reasoned from that label to determine whether the possessor of land exercised reasonable care[,]" Bryant v. Jefferson Mall Co., L.P., 486 S.W.3d 310, 312 (Ky. App. 2015), that is no longer the case. Their traditional status is now considered "along with other circumstances such as 'foreseeability, the gravity of the potential harm, and the possessor's right to control his property' to determine the extent of the duty. Id. (citing Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992)). In other words, "every person has a duty of ordinary care in light of the situation . . . ." Bullitt Host, 471 S.W.3d at 298. "[I]f a landowner has done everything that is reasonable under the circumstances, he has committed no breach, and cannot be held liable to the plaintiff." Id.
Here, the jury instruction at issue reflects the current state of Kentucky premises liability law. Jury instructions provide nothing more than a framework of the applicable law for counsel to later flesh out, Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 230 (Ky. 2005), and the language of Instruction No. 1 clearly enabled the jury to determine whether Barbara acted reasonably for her guests. The jury answered this question in the negative, and that decision was not flagrantly against the evidence. Accordingly, we must affirm the judgment of the Knox Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Darrell L. Saunders
Corbin, Kentucky Michael D. Risley
Louisville, Kentucky BRIEF FOR APPELLEE: Brien G. Freeman
Corbin, Kentucky