Opinion
NO. 2019-CA-000052-MR
03-13-2020
NICOLE WALKER, ADMINISTRATRIX OF THE ESTATE OF FELICIA WALKER, DECEASED; AUSTIN MCGHEE; PARKER MCGHEE, AN INFANT, BY HIS AUNT AND NEXT FRIEND, NICOLE WALKER; AND COURTNEY MCGHEE APPELLANTS v. RAGURAI, LLC, D/B/A AMERICA'S BEST VALUE INN APPELLEE
BRIEFS FOR APPELLANTS: Albert B. McQueen, Jr. Lexington, Kentucky BRIEF FOR APPELLEE: Judd R. Uhl R. Morgan Salisbury Fort Wright, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 16-CI-01551 OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND MAZE, JUDGES. MAZE, JUDGE: Nicole Walker, Administratrix of the Estate of Felicia Walker (the Estate), and the surviving children of Felicia Walker appeal from a summary judgment dismissing their wrongful-death and loss-of-consortium claims against Ragurai, LLC (Ragurai). The Estate and the surviving children argue that the trial court erred in finding as a matter of law that Walker's death was not a foreseeable consequence of Ragurai's alleged negligence. We conclude that Ragurai did not have a duty to protect Walker from criminal conduct by a third party which it had no reason to foresee. Hence, we affirm the order granting summary judgment.
I. Facts and Procedural History
For purposes of this appeal, the following facts are not in dispute. On May 2, 2014, Felicia Walker and her husband Michael Crowe checked into the America's Best Value Inn on Versailles Road in Lexington, Kentucky. The following afternoon, the front desk clerk, Bartley McQueary (McQueary) found Walker's body in the room which they had rented. Crowe admitted to suffocating Walker with a pillow while in the hotel room. He subsequently pleaded guilty to first-degree manslaughter for Walker's death, although a sentencing issue remains pending on appeal. See Crowe v. Commonwealth, No. 2016-CA-000134-MR, 2017 WL 3129204 (Ky. App. July 21, 2017), discr. rev. granted sub nom Commonwealth v. Crowe, No. 2019-SC-000231-DG (Ky. Sept. 18, 2019).
On April 26, 2016, the Estate and Walker's surviving children filed this action against Ragurai, the owner of the hotel. The Estate and the surviving children asserted claims for wrongful death, while the surviving children asserted claims for loss of consortium. In their complaint, they alleged that McQueary was negligent for failing to contact police and seek assistance after he received calls from Walker which suggested that domestic violence was occurring. The complaint further alleged Ragurai was negligent for failing to instruct its employees how to properly respond to domestic violence and that this negligence was a proximate cause of Walker's death.
The complaint also asserted claims against Shreeji Hospitality, LLC, Vantage Hospitality Group (the franchisor of America's Best Value Inns), and against Crowe individually. The claims against Shreeji Hospitality were dismissed by agreed order entered on November 22, 2016. The claims against Vantage were dismissed by summary judgment entered on October 24, 2018, which was not appealed. The claims against Crowe were not dismissed and remain pending.
Following an extended period of discovery, Ragurai moved for summary judgment, arguing that the Estate failed to present evidence either that it breached a duty owed to Walker or that its alleged negligence was a foreseeable and proximate cause of Walker's death. After considering the briefs and arguments of counsel, as well as the evidence of record, the trial court granted Ragurai's motion on November 26, 2018. The court also designated its order dismissing the claims against Ragurai to be final and appealable pursuant to CR 54.02. Thereafter, the trial court denied the Estate's motion to alter, amend or vacate the summary judgment pursuant to CR 59.05. This appeal followed. Additional facts will be set forth below as necessary.
Kentucky Rules of Civil Procedure. --------
II. Standard of Review
The Estate primarily argues that the trial court erred by granting summary judgment to Ragurai. "The proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is appropriate "if 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." CR 56.03. The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor. Steelvest, 807 S.W.2d at 480.
The trial court must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists. Id. On the other hand, a party opposing a properly supported summary judgment motion cannot defeat it without presenting some affirmative evidence showing that there is a genuine issue of material fact for trial. Id. at 481. Since a summary judgment involves no fact-finding, this Court's review is de novo, in the sense that we owe no deference to the conclusions of the trial court. Scrifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
III. Elements of Negligence
The claims at issue on appeal are based upon the alleged negligence of Ragurai in failing to protect Walker. It is well-established that a plaintiff seeking to establish a cause of action for negligence in Kentucky must prove the existence of a duty, breach thereof, proximate causation, and damages. Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. App. 2009) (citing Illinois Central Railroad v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967); and Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992)). The existence of a duty is a question of law for the court, while breach and injury are questions of fact for the jury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003). Causation presents a mixed question of law and fact. Id.
IV. Existence of a Duty
The Estate argues that the trial court erred by finding that Crowe's criminal conduct was not foreseeable, thus precluding any breach of duty by Ragurai. Under Kentucky law, there is a "universal duty of care, [whereby] 'every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury.'" James v. Meow Media, Inc., 300 F.3d 683, 690 (6th Cir. 2002) (quoting Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 332 (Ky. 1987)). See also Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999). However, the "'universal duty of care,' is not boundless." Grand Aerie Fraternal Or. of Eagles v. Carneyhan, 169 S.W.3d 840, 849 (Ky. 2005). While a "duty to all" is the analytical point of departure, it should be focused, "and consideration must be given to public policy, statutory and common law theories in order to determine whether a duty existed in a particular situation." Id. (quoting Fryman v. Harrison, 896 S.W.2d 908, 909 (Ky. 1995)).
In Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901 (Ky. 2013), our Supreme Court cautioned that the foreseeability of the risk of harm is an inherently factual question which is not well-suited to the legal question regarding the existence of a duty. Id. at 914. Accordingly, the foreseeability of the risk of harm normally should be left to the jury as a factor under the breach and causation analysis. Id. However, Shelton reached this conclusion in the context of an open-and-obvious hazard existing on the premises. Under the prior rule, a possessor of the premises was not liable for injuries caused to an invitee by an open-and obvious condition unless the possessor had reason to expect that the invitee's attention may be distracted or would otherwise be subjected to the risk despite its obviousness. Id. at 907. Shelton held that an open-and-obvious condition does not eliminate the landowner's duty but is merely a factor in determining whether the duty was breached. Id. at 911-12.
In contrast, Walker's death was not caused by Ragurai's direct conduct, but by Crowe's independent criminal conduct. Generally, 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. Carneyhan, 169 S.W.3d at 849 (Ky. 2005). A duty can arise to exercise reasonable care to prevent harm by controlling a third person's conduct where: "(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection." Id. (quoting RESTATEMENT (SECOND) OF TORTS § 315 (1965)). Such a special relationship may arise based upon the defendant's enhanced ability to observe the conditions under which the person causing the harm might be expected to be especially dangerous. Id. Consequently, "[e]ven an intervening criminal act does not relieve one for liability for his or her negligent acts or omissions, where the criminal act is a reasonably foreseeable consequence of the defendant's negligent act." Waldon v. Housing Authority of Paducah, 854 S.W.2d 777, 779 (Ky. App. 1991).
For example, in Waldon, a tenant in a public housing project was shot and killed outside her apartment. The tenant's estate alleged that the Housing Authority's negligence caused the victim's death because it knew that threats had been made against the victim but did nothing to prevent the shooting. The Housing Authority moved for summary judgment and argued that the intervening criminal act superseded its liability. Id. at 778. While the trial court granted summary judgment for the Housing Authority, this Court reversed. The Court noted that the Housing Authority knew of the threats to the tenant and the frequent crime in the complex. Based on this knowledge, this Court held that the landlord had a duty to take reasonable steps to prevent injury to the tenant from foreseeable criminal acts. Id. at 779.
Similarly, in Murphy v. Second Street Corp., 48 S.W.3d 571 (Ky. App. 2001), a patron brought a negligence action against a bar after she was assaulted by another customer. Id. at 572-73. On appeal, a panel of this Court noted that a business owner has a duty to prevent an assault upon a patron only where: (1) the proprietor had knowledge that one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent the injury if he reasonably could; or (2) the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests. Id. at 574. This Court found no breach of duty because neither the bar nor the plaintiff had any warning of the assailant's propensity to be violent. Id. at 574-75. See also Rose v. Wal-Mart Stores E., LP, No. 2013-CA-000591-MR, 2014 WL 4523980 (Ky. App. Sept. 12, 2014).
Therefore, a party seeking to impose a duty to control the conduct of a third person must show that the defendant had knowledge that harm to the victim was a foreseeable consequence of the actions of a third party. James v. Wilson, 95 S.W.3d 875, 893-94 (Ky. App. 2002). In such cases, the facts must be viewed as they reasonably appeared to the parties charged with negligence. Fryman, 896 S.W.2d at 909. We recognize that, as in Shelton, the foreseeability of harm is a factual question which is not well-suited to the legal determination of whether a duty existed. Nevertheless, it appears that foreseeability remains an element to determine the existence of a duty in this context.
As a result, the threshold inquiry is whether the Estate has alleged sufficient facts to impose on Ragurai a duty to protect Walker from a foreseeable risk of harm from Crowe. In making this determination, we must view the evidence in the light most favorable to the Estate. As discussed above, Walker and Crowe checked into Room 114 of the America's Best Value Inn sometime during the evening hours on May 2. Several hours later, a female, later identified as Walker, called the front desk from Room 114. Walker asked how to make a long-distance call from her room. McQueary, who was working the desk that evening, informed her that outside long-distance calls were blocked. Walker asked McQueary if he would place the call and ask the person to return the call at the hotel.
There are some discrepancies in McQueary's descriptions of that call. Shortly after the murder was discovered, McQueary told Lexington Police Sergeant Allen Culver that Walker was crying and he could hear a male yelling in the background. In Sergeant Culver's report, McQueary asked Walker if she wanted him to call the police, and Walker replied that "they fight all the time and had been drinking." Sergeant Culver's report also states that McQueary asked Walker if she wanted him to call the police, and Walker was adamant that she did not. In his 911 call after the murder, McQueary reported that the couple had been "arguing and quarrelling" the night before. But in his deposition, McQueary testified only that he noticed "sniffling" in her voice and asked if she was alright. McQueary further testified that Walker stated that they had been arguing and everything was "fine."
Based on Walker's request, McQueary placed the outside call to a Florida number and asked the person answering the phone to call back. The person at the Florida number immediately returned the call, and McQueary transferred the call to Walker's room. A short time later, McQueary called back to the room to check on the situation. According to the police report, McQueary stated that a male (presumably Crowe) answered the phone, who reported that everything was alright and that they had made up. Lexington Police Officer Dawn Dunn stated McQueary told her that the male said that Walker was upset because a friend or loved one had cancer.
McQueary testified that he called back to Room 114 because he was "concerned" by his previous discussion with Walker. He also stated that he looked into the room the following day to make sure that there had been no damage. On the other hand, McQueary testified that he was not concerned for Walker's safety or that she was in any physical danger. A paramedic who responded to the hotel after the murder reported that guests in neighboring rooms heard people arguing the night before. However, there was no evidence that any of these guests called the front desk to complain.
Based on this evidence, we agree with the trial court that the risk of harm to Walker was not reasonably foreseeable given the information available to McQueary and Ragurai at the time. McQueary had no reason to believe that Crowe had been violent or that a physical altercation was occurring between Crowe and Walker. At most, McQueary could have believed that the two had been arguing but it had not escalated further than mere words. While McQueary had a suspicion that the situation could get worse, neither McQueary nor the management of the hotel had any other indications from Room 114 that the argument resumed or progressed.
Given these facts, we must conclude that Ragurai did not have a duty to take any additional actions to protect Walker. Therefore, its failure to act cannot be deemed to be a breach of a duty or a proximate cause of Walker's death. Consequently, we find that the trial court properly granted summary judgment for Ragurai on the claims brought by the Estate and the surviving children.
Accordingly, we affirm the summary judgment of the Fayette Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANTS: Albert B. McQueen, Jr.
Lexington, Kentucky BRIEF FOR APPELLEE: Judd R. Uhl
R. Morgan Salisbury
Fort Wright, Kentucky