Howard v. The City of Elizabethtown Ky.
| Decision Date | 01 July 2022 |
| Docket Number | 2020-CA-0124-MR,2020-CA-0133-MR |
| Parties | CHARLOTTE A. HOWARD AND JAMES G. HOWARD APPELLANTS v. THE CITY OF ELIZABETHTOWN KENTUCKY; AUTO OWNERS INSURANCE COMPANY; JEREMY STUBBS; KENTUCKY KAOS; AND STEVEN WIDMER APPELLEES AND JEREMY STUBBS CROSS-APPELLANT v. CHARLOTTE A. HOWARD AND JAMES G. HOWARD CROSS-APPELLEES |
| Court | Kentucky Court of Appeals |
CROSS-APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KEN M HOWARD, JUDGE ACTION NO. 14-CI-01458
BRIEFS FOR APPELLANTS/CROSS-APPELLEES: Harry B. O'Donnell IV Louisville, Kentucky
BRIEFS FOR APPELLEES KENTUCKY KAOS AND STEVEN WIDMER, AND APPELLEE/CROSS-APPELLANT JEREMY STUBBS: David S. Strite Rachel K. Dalton Louisville, Kentucky
BRIEF FOR APPELLEE THE CITY OF ELIZABETHTOWN: Jason Bell Elizabethtown, Kentucky
BEFORE: CALDWELL, MAZE, AND McNEILL, JUDGES.
Charlotte and James Howard (the "Howards") appeal from various orders of the Hardin Circuit Court dismissing their claims against Kentucky Kaos ("Kaos"), Steven Widmer ("Widmer"), Jeremy Stubbs ("Stubbs") and the City of Elizabethtown, Kentucky ("City"). Stubbs cross-appeals from the trial court's August 14, 2018 order denying his motion for summary judgment. Following our review, we affirm as to the appeal and dismiss the cross-appeal as moot.
This is a personal injury action arising out of injuries Charlotte allegedly sustained on August 30, 2013. According to the complaint, the Howards were driving past Ring Road Softball Complex in Elizabethtown, Kentucky when a softball broke the passenger side window of the Howards' vehicle, striking Charlotte. At the time of incident, Kaos, a recreational softball team comprised of military and Department of Defense workers, was hosting a softball tournament at the complex. They had leased the complex from the City for the day to host the tournament. Kaos did not play in the tournament, but was responsible for managing concessions, serving as umpires, and tournament logistics.
On August 26, 2014, the Howards filed a complaint in Hardin Circuit Court alleging negligence and loss of consortium against Kaos, the City, and United States Specialty Sports Association, Inc. ("USSSA").[1] Subsequently, Kaos moved to dismiss the Howards' claims against it, arguing that it was an unincorporated association incapable of being sued under Kentucky law. The trial court granted the motion. On January 23, 2017, the Howards filed an amended complaint naming Stubbs, Kaos' coach, and Widmer, who helped purchase liability insurance for the event, as defendants.
Shortly thereafter, Stubbs and Widmer filed a motion for summary judgment, arguing that the Howards' claims against them were barred by the statute of limitations. Following an evidentiary hearing, the trial court granted the motion as to Widmer, finding that the Howards' claims against Widmer did not relate back to the original complaint and were thus barred by the statute of limitations. However, the trial court denied the motion as to Stubbs.
The City also moved for summary judgment, arguing the Howards' claims were barred by Kentucky's recreational use statute, KRS[2] 411.190. The trial court agreed and granted the motion. Finally, following additional discovery, Stubbs again moved for summary judgment, arguing that the doctrine of res ipsa loquitur was inapplicable to the Howards' negligence claim and that their negligence claim failed as a matter of law. The trial court granted the motion, making the court's previous orders final and appealable. This appeal followed.
The Howards argue the trial court erred in granting Kaos' motion to dismiss, and in granting summary judgment in favor of the City, Stubbs, and Widmer. We will address each dismissal in turn. A motion to dismiss, pursuant to CR[3] 12.02(f), for failure to state a claim is a question of law, and we review the issue de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). The pleadings must be liberally construed in a light most favorable to the nonmoving party, and the allegations contained in the complaint are taken as true. Id. The trial court should not grant the motion "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." James v. Wilson, 95 S.W.3d 875, 883 (Ky. App. 2002) (citation omitted).
The trial court granted Kaos' motion to dismiss, finding that it was an unincorporated association incapable of being sued under Kentucky law. The Howards argue this was error because 1) Kaos denied it was an unincorporated association in its answer and the trial court relied on unsworn statements to the contrary in granting the motion to dismiss; 2) Kaos waived the issue of its capacity to be sued by failing to make a "specific negative averment" as required by CR 9.01; and 3) Kaos should be estopped from asserting its lack of capacity to be sued because the Howards detrimentally relied on its answer denying that it was an unincorporated association.
Concerning their first point, the Howards' complaint alleged that Kaos "is an unincorporated association of persons, which is, and was at the time of the events set forth herein, present and doing business in the Commonwealth of Kentucky . . . as a softball team." Kaos partly denied this allegation in its answer, asserting that it "is not a legal entity doing any business in the Commonwealth of Kentucky, and does not have any agents, servants or employees." The Howards read Kaos' answer as denying its status as an unincorporated association. Based upon this reading, the Howards argue the trial court erred in relying upon unsworn statements in the motion to dismiss that Kaos is an informal association incapable of being sued. We disagree.
First, Kaos' assertion that it "is not a legal entity doing any business in the Commonwealth of Kentucky, and does not have any agents, servants or employees[,]" is clearly countering the complaint's allegation that it was "doing business" in Kentucky. This statement would make no sense if the answer is read as denying Kaos' unincorporated status. Further, the trial court did not rely on any unsworn statements in granting the motion, but on allegations in the Howards' own complaint which specifically state that Kaos is an unincorporated association. We note that the Howards have not actually challenged Kaos' status as such, but instead argue error on other bases.
We also find that Kaos did not waive the defense of its capacity to be sued. CR 9.01 requires that "[w]hen a party desires to raise an issue as to the legal existence of any party or the capacity of any party to . . . be sued . . . he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge." Here, the Howards' complaint alleged that Kaos was an unincorporated association. Kaos' answer to the complaint asserted that it was "not a legal entity doing business in the Commonwealth of Kentucky, and does not have any agents, servants or employees." Despite the Howards' claim to the contrary, this was a "specific negative averment . . . [with] supporting particulars" which "raise[d] an issue as to the legal existence" of Kaos as required by the rule. The Howards cite no case law interpreting CR 9.01 to require anything more.
Finally, the Howards argue that Kaos should be estopped from asserting its lack of capacity to be sued because they were misled by Kaos' denial of its status as an unincorporated association. We find this argument without merit. As noted above, Kaos never denied its status as an unincorporated association. It denied that it was doing business in Kentucky. Further, the Howards' allegation that they were misled is unreasonable considering that their own complaint alleged that Kaos was an unincorporated association and that Kaos asserted that it was "not a legal entity doing any business . . . and does not have any agents, servants or employees."
The Howards next argue the trial court erred in granting the City's motion for summary judgment. The trial court determined that Kentucky's Recreational Use Statute, KRS 411.190, barred the Howards' claims against the City. "The standard of review on appeal of a summary judgment is 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 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). "The circuit court's decision to grant a motion for summary judgment is reviewed de novo." Roach v. Hedges, 419 S.W.3d 46, 47 (Ky. App. 2013) (citation omitted). Issues of statutory interpretation are also reviewed de novo. Dolt, Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607 S.W.3d 683, 687 (Ky. 2020) (citation omitted).
"The cardinal rule of statutory construction is that the intention of the legislature should be ascertained and given effect." Jefferson Cty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky. 2012) (citations omitted). "All statutes of [Kentucky] shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state." KRS 446.080(1).
The legislature enacted the Recreational Use Statute to "encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability...
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