Opinion
NO. 2019-CA-000203-MR
04-10-2020
BRANDY WILLIAMS AND KARL WILLIAMS APPELLANTS v. DEBORAH NIEHAUS APPELLEE
BRIEF FOR APPELLANTS: Brain T. Canupp Paris, Kentucky BRIEF FOR APPELLEE: J. Stan Lee Langdon Ryan Worley Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 17-CI-00455 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. CLAYTON, CHIEF JUDGE: Karl and Brandy Williams ("Appellants") appeal from the Pulaski Circuit Court's order granting summary judgment in favor of Deborah Niehaus on the Appellants' premises liability claim.
On appeal, Appellants primarily argue that genuine issues of fact remain concerning the status of Appellants on the property as licensees versus trespassers. Based upon our review of the record and applicable law, and because we agree that Appellants were trespassing on Ms. Niehaus' property, we affirm the Pulaski Circuit Court.
BACKGROUND
This case arose from a trip and fall incident that occurred on June 26, 2016 at a cabin owned by Ms. Niehaus. Ms. Niehaus was out of the state for much of the summer of 2016 and requested that her co-worker, Judy Stacy, who is now deceased, help with maintaining the cabin throughout that timeframe. Ms. Niehaus had, in previous summers, had a similar arrangement with Tad and LaDonda Porter, but had discontinued the relationship with the Porters for the summer of 2016.
Without Ms. Niehaus' knowledge, Ms. Stacy granted permission for the Porters to use the cabin for the week of June 20-26, 2016. However, unbeknownst to both Ms. Niehaus or Ms. Stacy, the Porters had invited Appellants and their two children to Ms. Niehaus' cabin as well. The Appellants arrived at the cabin on June 25, 2016. The following morning, as Ms. Williams was stepping off the back porch of the cabin, she fell and sustained injuries to both of her ankles.
Appellants filed a complaint against Ms. Niehaus, alleging negligence, negligent repair and maintenance, and loss of consortium claims. Specifically, Appellants alleged that the transition between the porch and the ground was "in excess of what a person would normally expect when stepping off the edge of a porch onto the ground." They further alleged that the step was more than 8.25 inches, which was the maximum height of a step allowed under the Kentucky Residential Building Code. Appellants claimed economic damages, physical damages, pain and suffering damages, and punitive damages.
The parties conducted preliminary discovery, including the depositions of Appellants. Ms. Williams testified to the following regarding Ms. Niehaus:
Q.: Did you know who owned the cabin when you went to visit?Additionally, Mr. Williams testified as follows:
A.: I did not.
Q.: Have you ever communicated directly with Ms. Niehaus?
A.: No, ma'am.
Q.: Did Ms. Niehaus every directly invite you to stay at her cabin?
A.: No, ma'am.
Q.: Have you ever texted, e-mailed, or otherwise communicated in any way with Ms. Niehaus, as we sit here today?
A.: No, ma'am.
Q.: Do you know Debbie Niehaus?
A.: No.
Q.: Did you ever ask her whether you could go to her cabin?As to Ms. Stacy, Ms. Williams testified:
A.: I've never spoken to her.
Q.: Did you know that Ms. Niehaus owned the cabin before you and your wife and children went to stay there?
A.: I knew that somebody owned it. I didn't necessarily know that it was her. I don't remember hearing her name.
Q.: Did you ever communicate directly with a Ms. Judy Stacy?Mr. Williams testified:
A.: No, ma'am.
Q.: Did Judy Stacy ever invite you to stay at . . . Deborah Niehaus' cabin?
A.: No, ma'am.
. . . .
Q.: . . . You don't have any personal knowledge of Judy Stacy, correct?
A.: I don't.
Q.: And you never communicated with her about using the cabin?
A.: I didn't.
Q.: And you were never told that Judy Stacy gave permission for you to stay there?
A.: No, ma'am.
Q.: Do you know Judy Stacy?Regarding whether Appellants had any reason to believe that the Porters had any authority or permission to act on Ms. Niehaus' behalf in extending an invitation to stay, Ms. Williams testified:
A.: No.
. . . .
Q.: You never communicated directly with Judy Stacy; is that correct?
A.: Correct.
Q.: Do you have any information indicating that Tad and Ladonda Porter ever advised Ms. Niehaus that you were going to stay there?Further, Mr. Williams testified:
A.: I do not.
Q.: Did Tad and Ladonda Porter ever indicate to you that Ms. Niehaus had given permission for you to be there?
A.: No.
. . . .
Q.: . . . [W]as anything ever said to you that made you believe that Mr. and Ms. Porter could act on Ms. Niehaus' behalf?
A.: As to inviting us down? No. No. Nothing's ever been told to me the - to that, no.
. . . .
Q.: As we sit here today, Brandy, do you have any evidence or any information that Ms. Niehaus had any idea you were in her cabin on the date of the accident?
A.: No.
Q.: And did Tad Porter ever give you any indication or reason to believe that he had authority to act on Debra [sic] Niehaus' behalf?
A.: I guess I assumed that everything was okay because of the - over the many years that he's asked me to go and, you know, other people has went, and I just thought it was okay.
. . . .
Q.: But you had no reason to believe that Ms. Niehaus had invited you, correct?
A.: Correct.
Q.: And you didn't have any reason to believe that Mr. Porter got permission from Ms. Niehaus for you to be there; is that correct?Additionally, Ms. Williams' testimony further confirmed that she, her husband, and her children did not pay to use the cabin and did not in any other way rent the cabin.
A.: Correct. I never knew if he got permission, I just thought he had - I thought he was in control or had permission.
Q.: Well, why did you think that?
A.: Because over the many years he's asked me to come there, and other people -
Q.: Because he's invited you before.
A.: Yeah, because he - you know, yeah.
Q.: And did Tad Porter every say anything to you along the lines of, Ms. Niehaus told us to invite whoever we want over here?
A.: No. We never had that conversation.
Ms. Niehaus moved for summary judgment in January 2018 based primarily on the foregoing testimony and argued that the Appellants were trespassers at the cabin. After a hearing on the motion for summary judgment, the trial court denied the motion, noting that, while neither Ms. Niehaus or Ms. Stacy ever made any written or oral representations directly to the Appellants, a remaining issue of fact existed as to whether the conduct of either Ms. Niehaus or Ms. Stacy could be considered a representation upon which Appellants could reasonably rely that was sufficient to create apparent authority in the Porters.
The parties thereafter proceeded with the depositions of Ms. Niehaus and the Porters. Particularly, Ms. Niehaus testified to the following:
Q.: Before the plaintiff's fall occurred, did you ever tell or make any representation to the Porters that they had permission to come to your cabin?Additionally, Ms. Porter testified as follows:
. . . .
A.: No, I did not.
Q.: Before the plaintiff's fall occurred, did you ever tell or make any representation to Judy Stacy that the Porters had permission to come to your cabin in the summer of 2016?
A.: No, I did not.
Q.: Did the Porters ever reach out to you directly and ask whether they could come to the cabin in the summer of 2016?
A.: No. No.
Q.: In the summer of 2016, did you ever tell the Porters that they were free to invite other people to come to your cabin?
A.: No. I certainly did not.
Q.: If they had asked you that, what would your answer have been?
A.: That would have been no.
Q.: Did you ever tell Judy Stacy or make any representation to Judy Stacy that the Porters were welcome to invite the plaintiffs to your cabin in the summer of 2016?
A.: No. I had never even heard of them before.
Q.: Did you ever tell Karl and Brandy Williams that you were given permission by Debbie Niehaus to have them to the cabin?Finally, Ms. Niehaus produced a copy of a text message sent to both Mr. Porter and Ms. Stacy, stating the following:
A.: No.
Q.: Did you ever tell the Williams that you had authority to extend an invitation to the cabin?
A.: No.
I'm not sure exactly what is going on, but Tad [Porter] never contacted me about using the cabin and I therefore did not give him permission. Also, the cabin is only to be used by immediate family even when permission is given.The foregoing text message was sent on June 25, 2016, one day before the incident at issue.
Ms. Niehaus subsequently renewed her motion for summary judgment, which the trial court granted in an order entered on January 7, 2019. The trial court found that Appellants failed to provide sufficient evidence to create a genuine issue of fact as to whether either Ms. Niehaus' or Ms. Stacy's conduct manifested any apparent authority that the Porters may have had to enter into transactions on Ms. Niehaus' or Ms. Stacy's behalf and upon which Appellants could have relied and, therefore, that Appellants were trespassers at the time of the incident. This appeal followed.
ISSUES
On appeal, Appellants argue the following: (1) the trial court erred in finding that the Porters did not have apparent authority to invite Appellants to the cabin and (2) that Ms. Niehaus had a duty to maintain the public areas of her property free of hazardous defects.
ANALYSIS
As a preliminary matter, we note that the front cover of the Appellants' brief is not signed. Kentucky Rule of Civil Procedure (CR) 76.12(6) necessitates that "[e]very brief shall bear on the front cover a signed statement . . . by the attorney or party that service has been made as required by this Rule[.]" A brief may be stricken for failure to comply with these rules. CR 76.12(8)(a). The purpose of the signature is for the author of the brief to designate that all necessary parties have been served. Here, although the front cover of the Appellants' brief was not signed, the last page of their brief was signed. Further, Ms. Niehaus was clearly served, as she responded to the Appellants' brief and, accordingly, suffered no cognizable harm or prejudice by the failure to sign the front cover of the brief. Given our discretion in such cases, we choose to ignore the deficiency primarily because Ms. Niehaus was not prejudiced by the noncompliance.
a. Standard of Review
In reviewing a grant of summary judgment, our inquiry focuses on "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing CR 56.03). The trial court must view the record "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, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). Further, "a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Id. at 482 (citations omitted). On appeal, this Court "need not defer to the trial court's decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004) (citations omitted).
b. Discussion
Appellants first argue that the Porters had the apparent authority to invite Appellants to use the cabin, thereby providing the consent needed to classify Appellants as licensees rather than trespassers. Because this is primarily a case regarding Ms. Niehaus' claimed negligence in maintaining and/or repairing the step at her cabin, however, our analysis must begin with a description of the applicable elements necessary for a plaintiff to prove in a negligence case, namely "the existence of a duty, breach of that duty, causation between the breach of duty and the plaintiff[']s injury and damages." Hayes v. D.C.I. Properties-D KY, LLC, 563 S.W.3d 619, 622 (Ky. 2018).
Regarding the requirement that Appellants prove the existence of a duty owed to them by Ms. Niehaus, "[a]s the law stands currently, a landowner has a general duty to maintain the premises in a reasonably safe manner; and the scope of that duty is outlined according to the status of the plaintiff." Shelton v. Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901, 909 n.28 (Ky. 2013). As explained by the Kentucky Supreme Court in Shelton, "Kentucky law remains steadfast in its adherence to the traditional notion that duty is associated with the status of the injured party as an invitee, licensee, or trespasser." Id. at 909.
Specifically, one "who comes on the land of another with the possessor's consent is a licensee." Carney v. Galt, 517 S.W.3d 507, 511 (Ky. App. 2017) (citation omitted). A landowner "owes a licensee the duty of reasonable care either to make the land as safe as it appears, or to disclose the fact that it is as dangerous as he knows it to be." Scifres, 916 S.W.2d at 781 (citation omitted).
Alternatively, under Kentucky Revised Statutes (KRS) 381.231(1), a trespasser is "any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied[.]" Further, KRS 381.232 provides that "[t]he owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner." Therefore, the primary issue in this case is whether Appellants had the consent of Ms. Niehaus or her agents to be at the cabin, thus classifying them as licensees.
We agree with the trial court that the issue of consent centers around whether the Porters possessed the apparent authority to invite Appellants to Ms. Niehaus' cabin. The Kentucky Supreme Court recently gave the following definition of apparent authority, which contained three elements: "[a]pparent authority . . . is created by [(1)] a person's manifestation that another has authority to act with legal consequences for the person who makes the manifestation, [(2)] when a third party reasonably believes the actor to be authorized and [(3)] the belief is traceable to the manifestation." Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 500 (Ky. 2014) (internal quotation marks and citation omitted).
Particularly - and importantly - "apparent authority arises not from the purported agent's manifestations of authority, but rather from manifestations by the principal." Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581, 594 (Ky. 2012) (emphasis added). Stated another way, under Kentucky law, "[w]hen an apparent authority is claimed to arise from representation or conduct, the acts or statements of the principal must be looked to for the requisite foundation and not to those of the agent." Savannah Sugar Refinery, Division of Savannah Foods and Industries, Inc. v. RC Canada Dry Bottling Co., Division of Beatrice Foods Co., 593 S.W.2d 880, 883 (Ky. App. 1979) (emphasis added).
As a result, the analysis for apparent authority focuses on whether there were manifestations or representations on the part of the principal - here Ms. Niehaus - that the Porters were authorized to invite the Appellants to the cabin. We find the answer to that question to be in the negative. In each of their depositions, the Appellants admitted that they did not know and had never met Ms. Niehaus, had no reason to believe that Ms. Niehaus was aware that Appellants were on her property, and in fact had no idea who owned the cabin. Further, Mr. Williams' testimony indicated that, far from Ms. Niehaus manifesting in some way that the Porters had the authority to invite the Appellants to Ms. Niehaus' cabin or to otherwise act on her behalf, he merely "assumed" that "everything was okay." Finally, the Appellants testified to their own knowledge and admitted that Ms. Niehaus had given them no reason to believe that the Porters had authority to invite people to the property. Appellants offered no evidence to rebut any of the foregoing testimony or to create a genuine issue of fact as to whether Ms. Niehaus manifested or represented through her conduct that the Porters had apparent authority.
Because the Appellants were trespassers at the time of the subject accident, Ms. Niehaus' liability was limited to those damages "intentionally inflicted by the owner or someone acting for the owner." KRS 381.232. Further, the Kentucky Supreme Court has held that "intentionally inflicted" means "inflicted by willful, wanton, or reckless conduct." Kirschner by Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840, 842 (Ky. 1988) (emphasis in original).
Here, the Appellants' complaint only included claims against Ms. Niehaus for negligence, negligent repairs and maintenance, and loss of consortium and did not allege any intentional behavior on the part of Ms. Niehaus. Moreover, we can discern no evidence from the record that Ms. Niehaus intentionally caused Ms. Williams' fall or injury, and Ms. Niehaus was not even present when the incident occurred. In conclusion, we can see no intentional behavior on the part of Ms. Niehaus sufficient to impose liability under KRS 381.232.
CONCLUSION
For the foregoing reasons, we affirm the Pulaski Circuit Court's order granting summary judgment in favor of Ms. Niehaus.
ALL CONCUR. BRIEF FOR APPELLANTS: Brain T. Canupp
Paris, Kentucky BRIEF FOR APPELLEE: J. Stan Lee
Langdon Ryan Worley
Lexington, Kentucky