Collins v. Newport On the Levee, LLC
| Decision Date | 01 May 2015 |
| Docket Number | NO. 2013-CA-000033-MR,2013-CA-000033-MR |
| Parties | DANIEL COLLINS APPELLANT v. NEWPORT ON THE LEVEE, LLC APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
NOTL operates the Newport on the Levee Entertainment Complex (the Levee) located in Campbell County, Kentucky. On March 25, 2011, Collins and his young son visited a restaurant on the Levee's premises. During their meal, Collins's son became ill. Collins picked up his child, who weighed approximately 65 pounds, and carried him out of the restaurant. Exiting into the common area, Collins proceeded down the hallway at a brisk pace, still carrying his child, and turned the corner to his right. After Collins rounded the corner, he took four or five strides in the middle of the corridor when he felt something under his feet. Collins fell, dropping his child and injuring his knees, back, and neck.
After the fall, Collins observed two teenagers scurry to their feet. He surmised that he had tripped over them because they were "laying down in the middle of the floor . . . in some type of very relaxed capacity[.]" In his deposition, Collins described the individuals as wearing normal clothing (jeans and jackets). He admitted that the teenagers were not concealed or camouflaged, and nothing was blocking his view of them. Collins further stated he was paying attention to the path in front of him and he was not distracted. Nevertheless, he did not see the teenagers in the hallway.
Collins filed this premises liability action against NOTL and others1 seeking damages for his injuries. Collins claimed NOTL breached its duty to keep the Levee in a reasonably safe condition by failing to provide adequate seating for patrons, and failed to properly monitor and secure the premises to prevent patrons from loitering or lying in heavily traversed areas creating a tripping hazard.
A period of discovery ensued during which Collins deposed Jim Craycroft, NOTL's Customer Experience Manager. Craycroft handles the Levee's day-to-day operations, including security. Craycroft testified that, at the time of Collins's fall, Valor Security Services was responsible for the Levee's security. Valor's security officers served as the "eyes and ears" of the premises; the officers constantly patrolled the Levee's common areas, including the vicinity where Collins fell. Between two and nine security officers were on patrol at any given time. Craycroft also testified that security personnel monitored for loitering despite the fact that, prior to Collins's incident, no injuries attributable to loitering had occurred at the Levee.
Craycroft further explained there were at least three benches in the area where Collins fell. Thus, when Collins left the restaurant, he would have passed two benches when he exited the restaurant and then a third bench would have been directly in front of him right before he turned the corner. Craycroft testified he hadnever observed patrons sitting on the floor of the Levee and NOTL had received no complaints of inadequate seating at the Levee. No patrons complained to NOTL or the security officers about the teenagers over whom Collins tripped.
Following discovery, NOTL moved for summary judgment, first arguing Collins had failed to present any evidence demonstrating NOTL breached its duty of protecting Collins from harm caused by the accidental, negligent, or intentional acts of third persons. Alternatively, NOTL argued the tripping hazard - the teenagers in the hallway - was an open-and-obvious condition which NOTL owed no duty to minimize or warn against. The circuit court agreed with both arguments and granted NOTL's summary-judgment motion. Collins promptly appealed.
Summary judgment is appropriate if the record indicates "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." CR2 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, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
We review the trial court's grant of summary judgment to determine whether the court "correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Summary judgment involves no fact-finding; itencompasses only legal queries, and the existence of disputed material facts. Mitchell v. University of Kentucky, 366 S.W.3d 895, 898 (Ky. 2012) (citation omitted). Our review is de novo. Id.
Collins argues that the teenagers lounging in the hallway did not constitute an open-and-obvious hazard because he could not see them and NOTL failed in its duty to warn against them. Therefore, summary judgment was improper. Collins also argues that summary judgment was improper because genuine issues of material fact exist concerning whether NOTL provided adequate seating and properly monitored the premises.
Collins's legal theory of NOTL's liability is based on premises liability law, a subcategory of general negligence law. Lucas v. Gateway Cmty. Servs. Org., Inc., 343 S.W.3d 341, 343 (Ky. App. 2011). To sustain a cause of action, Collins must establish that: (1) NOTL owed him a duty of care; (2) NOTL breached that duty; and (3) that the breach caused his injuries. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). The existence of a duty is a question of law to be decided by the court. See id. at 89. And, when the injury occurs on realty, "premises liability law supplies the nature and scope of that duty[.]" Lewis v. B&R Corp., 56 S.W.3d 432, 437-38 (Ky. App. 2001); Lucas, 343 S.W.3d at 343. The particular duty owed depends largely on the status of the person venturing onto the premises. Miracle v. Wal-Mart Stores East, LP, 659 F.Supp.2d 821, 825 (E.D. Ky. 2009); West v. KKI, LLC, 300 S.W.3d 184, 190 (Ky. App. 2008).
In the matter before us, the parties agree that Collins entered the premises as a restaurant patron, and is therefore an invitee. Hardin v. Harris, 507 S.W.2d 172, 174 (Ky. 1974) (). Under Kentucky premises liability law, a property owner, such as NOTL, owes a duty to invitees to exercise ordinary care to maintain its premises "in a reasonably safe condition and to warn invitees of dangers that are latent, unknown, or not obvious." Lucas, 343 S.W.3d at 343-44.
We begin by agreeing, in substance, with Collins that the open-and-obvious doctrine need not have been the basis of the circuit court's ruling. See Summy v. City of Des Moines, 708 N.W.2d 333, 340-41 (Iowa 2006) (). There is a more directly applicable rule of Kentucky law.
Collins's injuries were caused by the accidental, negligent, or intentional act of a third person on NOTL's premises. In Ferrell v. Hellems, our highest court recognized that Kentucky law was consistent with the Restatement (Second) of Torts § 344, which states that, under certain circumstances, a premises owner is liable to an invitee for the accidental, negligent, or intentional acts of a third person on the premises. 408 S.W.2d 459, 463 (Ky. 1966). Specifically, Ferrell says: "[W]hen an unsafe condition of the premises is caused by a third person, the plaintiff must show that the defendant property owner knew, or withreasonable care could have known, of the unsafe condition in time to prevent the mishap." Id.
We can see from the record that there is no evidence that NOTL knew the teenagers were there. Furthermore, just as the circuit court concluded, we also conclude there was "no evidence as to how long the patrons [teenagers] were actually lying there." (Order, R. 88). Therefore, there can be no proof that, with reasonable care, NOTL could have discovered the hazard posed by the teenagers. Collins presented no proof of these facts - proof necessary under Ferrell to survive a summary judgment motion.
In Lanier v. Wal-Mart Stores, Inc., Justice Cooper embraced the Restatement version of this theory of liability more directly, stating:
if the possessor of the property holds it open to the public for entry for his business purposes, he is subject to liability to members of the public while they are on the property for business purposes for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons if the possessor failed to exercise reasonable care to either: a) discover that such acts are being done or are likely to be done, or b) give warning adequate to enable the business visitors to avoid the harm, or otherwise protect them against it.
99 S.W.3d 431, 433 (Ky. 2003) (citing Restatement (Second) § 344) (emphasis added). We will apply that analysis here.
As for NOTL's failure under § 344(a) to exercise reasonable care to discover the third persons lying on the floor, we have already noted that Collins presented no proof whatsoever as to how long the teenagers were there. The most Collinshas been able to assert is that the teenagers should have been discovered...
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