Grace v. Keith Nat'l Corp.
| Decision Date | 09 December 2022 |
| Docket Number | 2021-CA-1101-MR |
| Parties | CURTIS GRACE APPELLANT v. KEITH NATIONAL CORPORATION APPELLEE |
| Court | Kentucky Court of Appeals |
The Appellant, Curtis Grace, filed the underlying premises liability claim against the Appellee, Keith National Corporation ("Keith National"). The Fayette Circuit Court summarily dismissed Grace's complaint on the basis that Keith National did not own the property. Having reviewed the record and being otherwise sufficiently advised, we affirm.
On July 19, 2019, at approximately 9:00 p.m., Curtis Grace was walking near the corner of West Main Street and Newtown Pike in Lexington, Kentucky, when he was struck with the urgent pangs of an overfilled bladder. In short order, he left the sidewalk and his companion behind in search of a safe location to relieve himself, and he thought that he found one. To reach the place in question, Grace traversed a narrow, grassy area that hosted a few utility poles and guy wires; to the right of it was a concrete wall perhaps three feet high, topped by a line of thick, trimmed hedges several feet higher. Grace proceeded parallel to the wall, where the grassy area continued to what was perhaps a five-foot gap between the wall and, standing perpendicular to it, a long metal guardrail. The grass up to the point of the guardrail had been mowed; and, as Grace represents to this Court in his reply brief, the "trimming and mowing made the area look appealable [sic] to Appellant to provide him a shielded area to relieve himself."
As such, Grace ventured through the gap, into the slightly overgrown vegetation beyond, and continued the few more yards toward his chosen spot - just past where the wall and hedges on his right ended, where he believed a quick step down from the slightly overgrown vegetation and a small ledge would lead him to some leafy, private bushes. Unfortunately, what Grace regarded as leafy, private bushes were the tops of trees; what he believed was a small ledge was the top of a retaining wall; and what he believed would be a quick step down was a thirteen-foot drop. Grace fell, sustained injuries, and months later filed a negligence action in Fayette Circuit Court against Keith National, whom he regarded as the property owner.[1]
Following a period of motion practice and discovery, the circuit court dismissed Grace's case. In its order granting Keith National's summary judgment motion, it explained the unrebutted evidence of record demonstrated Keith National was not the owner of the property in question, nor in legal control of it. Rather, as demonstrated in an affidavit and map provided by Keith National's expert engineer and surveyor, Tom Hatfield, the land Grace had traversed and eventually fallen upon was part of a recorded right-of-way in favor of the Commonwealth of Kentucky, Department of Highways, which abutted Keith National's property. Furthermore, the circuit court rejected Grace's alternative argument that Keith National had effectively and voluntarily assumed responsibility and liability for the condition of the right-of-way by maintaining some of the grass in that location.[2] This appeal followed.
As discussed, Grace's allegations of error emanate from the summary dismissal of his negligence claim. In weighing the foregoing allegations of error:
"[t]he standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Pearson ex rel. Trent v. Nat'l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002). Summary judgment is only proper when "it would be impossible for the respondent to produce any 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). In Steelvest, the word "'impossible' is used in a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). In ruling on a motion for summary judgment, the court is required to construe the record "in a light most favorable to the party opposing the motion . . . and all doubts are to be resolved in his favor." Steelvest, 807 S.W.2d at 480. A party opposing a summary judgment motion cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Id. at 481.
Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 789-90 (Ky. App. 2012).
Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017) (quoting Shelton v. Ky. Easter Seals Soc'y, Inc., 413 S.W.3d 901, 905 (Ky. 2013)).
Phelps v. Bluegrass Hospitality Mgt., LLC, 630 S.W.3d 623, 627 (Ky. 2021).
On appeal, Grace maintains that Keith National was responsible for the condition of the right-of-way, and his argument to that effect is three-fold. First, Grace asserts Keith National should have foreseen that someone could have been injured there. In support, he notes that one deposed[3] witness had indicated vagrants had been spotted in the area from which he fell; and he also points to a picture of the area, which he believes depicts a "well-trodden path"[4] created by the vagrants. However, to prove premises liability negligence, the onus is upon the claimant to prove "duty, breach, causation, damages." Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 298 (Ky. 2015). Here, the circuit court summarily dismissed Grace's claim against Keith National based upon what it deemed was his failure to evince the "duty" aspect of his claim. And, if Keith National owed no legal duty to Grace relative to the area of his fall, it is irrelevant whether Keith National should have foreseen that someone could have been injured there.
Second, Grace argues that "Unbeknownst to Appellant, the mowing, trimming, and maintenance of the area was performed by Keith National and had been performed by Keith National since its purchase of the property in 1997." (Emphasis added.) It is without question that a landowner owes certain common law duties to individuals on its property. However, the unrebutted evidence of record demonstrates Keith National was not the record landowner of the property at issue in this matter, and there is no contention of adverse possession. The ownership of the property is not in dispute for purposes of this appeal, and the maintenance of rights-of-way held by the Department of Highways is a responsibility devolving upon that agency. Indeed, removing or pruning vegetation on a right-of-way held by the Department of Highways requires permission from that agency.[5], [6] Apart from that, Grace presents no authority supporting that a decades-long practice of sporadic mowing on another's property can imbue a non-owner with ownership responsibilities.[7] Third, Grace asserts "[b]y continued maintenance of the area in question, Keith National not only gave the impression of a safe area free of hazards, its landscaping also hid the dangerous drop off." Grace is arguing Keith National created a hazard on public property by mowing the grassy area up to the guardrail and trimming the hedgerow that topped the concrete wall. In other words, Grace's contention is that this level of groundskeeping created a particularly enticing area to one such as himself in search of a safe and private outdoor area to urinate.
We disagree. As an aside, our courts have long held that the owner of property abutting a public right-of-way is liable to persons injured in...
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