Opinion
NO. 2017-CA-000255-MR
06-29-2018
SUZANNE WAUGH APPELLANT v. JOHN PARKER AND CAROL PARKER APPELLEES
BRIEFS FOR APPELLANT: John C. Dodson Rebecca D. Northup Louisville, Kentucky BRIEF FOR APPELLEE: Joseph P. Hummel Berlin Tsai Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 14-CI-004970 OPINION AND ORDER
AFFIRMING
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BEFORE: DIXON, D. LAMBERT, AND MAZE, JUDGES. DIXON, JUDGE: Suzanne Waugh appeals from a summary judgment of the Jefferson Circuit Court dismissing her claims for personal injuries against her landlords, John Parker and Carol Parker. We affirm.
Waugh and her boyfriend rented a single-family home owned by the Parkers. Waugh sustained injuries when a railing surrounding the porch gave way, causing her to fall to the ground below. Waugh filed a complaint in Jefferson Circuit Court alleging the Parkers were liable for the injuries she sustained pursuant to the Uniform Residential Landlord and Tenant Act (URLTA). Following a period of discovery, the court granted summary judgment in favor of the Parkers. This appeal followed.
In considering a motion for summary judgment, a trial court must view the record in a light most favorable to the non-moving party, resolving all doubts in her favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). The trial court may grant summary judgment only if it concludes no disputed issues of material fact exist for trial. Id. On appeal of a summary judgment, we must determine whether the trial court correctly found that the moving party was entitled to a judgment as a matter of law. Id. Because summary judgment involves questions of law, we need not defer to the trial court's conclusions; accordingly, we review the record de novo. Blevins v. Moran, 12 S.W.3d 698, 700-01 (Ky. App. 2000).
First, we address two pending procedural motions. After briefing was complete, the Parkers filed a motion requesting that the Court consider the recently rendered case, Joiner v. Tran & P Properties, LLC, 526 S.W.3d 94 (Ky. App. 2017), as supplemental authority supporting their arguments. Waugh responded to the motion and asserted she had no objection. After review, we grant the Parkers' motion. In turn, Waugh filed a motion to supplement her reply brief with an argument addressing the Joiner case. No response was filed by the Parkers; accordingly, we grant Waugh's motion to supplement her reply brief.
In Milby v. Mears, 580 S.W.2d 724 (Ky. App. 1979), the Court summarized the general principles relating to a tenant's claim for personal injury against a landlord:
It has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein. Nevertheless, it is an established principle that a landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection.Id. at 728 (citation omitted). In the case at bar, it is undisputed Waugh was aware of the condition of the porch railing, having testified she had previously inspected the railing and described it as "wobbly, flimsy, [and] old." Pursuant to the common law negligence standard, the Parkers were not liable for Waugh's personal injuries because Waugh knew of the condition of the railing. See id.
Despite the common law rule, Waugh asserts she has a viable cause of action for personal injury pursuant to the URLTA. Under the URLTA, a landlord shall "[c]omply with the requirements of applicable building and housing codes materially affecting health and safety[.]" KRS 383.595(1)(a). To support her argument, Waugh relies on the affidavit of Dennis Martin, a code enforcement supervisor for Louisville Metro government. According to Martin, the condition of the porch railing violated the Louisville Metro Government Property Maintenance Code. Waugh contends her evidence established the Parkers violated KRS 383.595(1)(a) because the condition of the porch railing failed to comply with the building code.
In Miller v. Cundiff, 245 S.W.3d 786, 787 (Ky. App. 2007), a tenant fell on a piece of loose carpet she had previously asked the landlord to repair. The tenant sought damages for personal injuries, alleging the landlord breached a duty imposed by the URLTA requiring a landlord to make repairs to the premises. Id. at 787-88. The tenant argued the URLTA abrogated the common-law rule that shielded a landlord from liability for injuries resulting from known defects on the property. Id. at 788. In analyzing the issue, the Court considered the legislative intent behind Kentucky's version of the URLTA, concluding:
KRS 383.510 states that '[u]nless displaced by provisions of [the URLTA], the principles of law and equity . . . supplement [the URLTA's] provisions.' This language clearly indicates that the URLTA was intended to supplement, not replace the common law. Therefore, . . . we cannot find that Kentucky's version of the URLTA demonstrates a clear intention on the part of the legislature to depart from the common-law standard for landlord liability.
Moreover, unlike other jurisdictions which have enacted the URLTA on a state-wide basis, Kentucky
merely authorizes individual counties and cities to adopt the provisions of the URLTA. Such a limited and local adoption of the URLTA does not lend itself to a conclusion that the legislature intended a sweeping modification of the common law.Id. at 789 (internal citations omitted).
Waugh argues Miller is distinguishable because the specific provision at issue there was the landlord's duty to repair pursuant to KRS 383.595(1)(b); in contrast, Waugh's claim is premised on KRS 383.595(1)(a), which imposes a duty to comply with building codes materially affecting health and safety.
Waugh's attempt to distinguish Miller is unpersuasive. The well-reasoned decision in Miller clearly states the URLTA does not replace the common law rules of landlord liability. Id. We conclude, regardless of the specific provision of the URLTA allegedly violated, Waugh's claim for personal injury is controlled by common law and not the URLTA. Under the common law negligence standard, the Parkers were not liable for Waugh's personal injuries because Waugh knew of the condition of the railing. See Milby, 580 S.W.2d at 728. The trial court correctly concluded the Parkers were entitled to summary judgment on this issue.
Waugh also argues she is entitled to recover damages pursuant to KRS 446.070 because the URLTA imposes a statutory duty of care requiring a landlord to deliver and maintain the premises in compliance with building codes. KRS 383.590; KRS 383.595(1)(a).
KRS 446.070 provides: "A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation." --------
KRS 446.070 codifies the doctrine of negligence per se and allows an injured party to recover "for a violation of a statutory standard of care if the statute in question provides no inclusive civil remedy and if the party is within the class of persons the statute is intended to protect." Young v. Carran, 289 S.W.3d 586, 589 (Ky. App. 2008).
Here, Waugh's claim fails as a matter of law because the URLTA includes remedies for a landlord's noncompliance with KRS 383.595 that materially affects health and safety. KRS 383.625 and KRS 383.635 provide the tenant with the option of terminating the lease or repairing the damage at the landlord's expense when the landlord fails to cure a violation of KRS 383.595. "Where the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute." Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). After careful review, we conclude summary judgment was proper on this issue.
For the reasons stated herein, we affirm the Jefferson Circuit Court's order of summary judgment.
ALL CONCUR. Entered: June 29, 2018
/s/ Donna Dixon
Judge, Court of Appeals BRIEFS FOR APPELLANT: John C. Dodson
Rebecca D. Northup
Louisville, Kentucky BRIEF FOR APPELLEE: Joseph P. Hummel
Berlin Tsai
Louisville, Kentucky