Huddleston By and Through Lynch v. Hughes

Citation843 S.W.2d 901
Decision Date04 December 1992
Docket NumberNo. 91-CA-000976-MR,91-CA-000976-MR
Parties80 Ed. Law Rep. 412 Steven B. HUDDLESTON, a minor By and Through his parent and next friend, Pearl (Huddleston) LYNCH and Pearl (Huddleston) Lynch, Individually, Appellants, v. Most Reverend William A. HUGHES, Roman Catholic Bishop of the Diocese of Covington, Kentucky, Appellee.
CourtCourt of Appeals of Kentucky

Robert E. Sanders, John M. Dosker, Sanders, Dosker & Associates, Covington, for appellants.

Jeffrey C. Mando, Donald L. Stepner, Adams, Brooking, Stepner, Woltermann & Dusing, Covington, for appellee.

Before GUDGEL, HAYES and HUDDLESTON, JJ.

HUDDLESTON, Judge.

Steven Huddleston (a minor at the time this action was filed) and his mother Pearl (Huddleston) 1 Lynch appeal from a summary judgment dismissing their personal injury action against the Most Reverend William A. Hughes, Roman Catholic Bishop of the Diocese of Covington, Kentucky. Because we agree that Kentucky's "Recreational Use Statute" (KRS 411.190) has application to the defendant, we affirm that aspect of the judgment below. We however believe a jury question does exist regarding whether the defendant's actions were "willful or malicious" as described under the Recreational Use Statute, and therefore exempt from immunity. We accordingly reverse and remand for a jury trial on this question.

Covington Latin School is a Roman Catholic college preparatory school located at Eleventh Street and Madison Avenue in Covington, Kentucky, next to the Cathedral Basilica. In front of the school and immediately north of the cathedral is a parking lot/playground. This property is used as the school's outdoor recreation area during the school year, and as a parking lot for church services and other functions. All the aforementioned property is owned by the Diocese of Covington and titled in the name of Bishop Hughes.

At the time the incident in question occurred, there were two free-standing basketball goals located in the northwest corner of the playground. The basketball goals consisted of backboards with metal rims and nets erected on a tubular metal frame anchored by a heavy supporting apparatus. The goals were not cemented to the pavement. Evidently to prevent the goals from tipping forward or being pulled down, the Bishop's employees or agents placed large pieces of concrete at the base of each goal to serve as counter-weights. Chains were also used to secure the goals to an abutting wrought-iron fence. On the day Steven Huddleston was injured, however, no chain was in use.

Neighborhood children could enter the Covington School playground from an alley to the rear of the school and Basilica, and from separate gates located on Eleventh Street and Madison Avenue. Testimony revealed that the Covington School students and neighborhood children would often remove the counter-weights from the base of the basketball goals so that the assembly could be tilted forward and the rim lowered, facilitating "slam-dunking."

On June 16, 1988, Steven Huddleston and two friends went to the Covington School to play basketball. As was the custom, they removed the cement counter-weights from the goal's base so they could "dunk" more effectively. Huddleston was standing under the goal as his friends shot baskets. Evidently without warning, the goal and its supporting structure fell on Huddleston from behind. The goal struck Huddleston in the back and knocked him to the ground, pinning him between the apparatus and the pavement. Huddleston's back was broken in the incident.

In April 1989, Huddleston filed an action against Bishop Hughes on theories of premises liability and attractive nuisance. In February 1991, the Bishop moved for summary judgment based on Kentucky's "Recreational Use Statute" (KRS 411.190). After reviewing the record and hearing oral argument, the trial court granted the Bishop's motion.

The trial court found that there was no genuine issue as to any material fact and that, accordingly, KRS 411.190 barred Huddleston's claim. Huddleston filed a motion to alter, amend or vacate summary judgment, contending:

(1) Genuine issues of material fact exist regarding whether the Defendant's failure to guard or warn against the dangerous condition was willful or malicious, and also whether Defendant was actively negligent; (2) K.R.S. 411.190 does not apply to the facts of this case to protect the landowner and that the attractive nuisance doctrine should apply, and; (3) That K.R.S. 411.190 is unconstitutional.

The court denied Huddleston's motion. This appeal followed.

In Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), Kentucky's Supreme Court embraced the test articulated in Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985), as providing the authoritative standard for assessing summary judgment motions. Steelvest thereby establishes a rigorous burden that must be met by a party endeavoring to secure a summary judgment:

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.... Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact.... The trial judge must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists. It clearly is not the purpose of the summary judgment rule, as we have often declared, to cut litigants off from their right of trial if they have issues to try. * * * Only when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor should the motion for summary judgment be granted.

Steelvest, 807 S.W.2d at 480, 482 (Citations omitted).

KRS 411.190, Kentucky's "Recreational Use Statute," provides:

(2) The purpose of this section is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

(3) Except as specifically recognized by or provided in subsection (6), an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

(4) Except as specifically recognized by or provided in subsection (6), an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

(a) Extend any assurance that the premises are safe for any purpose.

(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.

Coursey v. Westvaco Corp., Ky., 790 S.W.2d 229, 232 (1990), has held that to enjoy the immunity provided by KRS 411.190, a landowner ... must show he knew and condoned the public making recreational use of his property, and by the landowner's words, actions or lack of action it must be able to be reasonably inferred the landowner intended to permit such use. * * * In lieu of a formal dedication, we hold that a landowner must at a minimum show he knew and condoned the public making use of his land for a recreational purpose, and by the landowner's words, actions or lack of action it must be able to be reasonably inferred the landowner intended to put his land to such use.

Bishop Hughes contends that as part of a "good neighbor policy" the gates to the Covington Latin School's parking lot/playground were left open continuously to allow free public access to the school's recreational facilities, thereby bringing the property into the protections provided by KRS 411.190. The trial court obviously agreed with Bishop Hughes. Huddleston did, however, endeavor to present evidence challenging the Bishop's position.

Father Edwin D. Heile, who worked at the Covington School from 1960 to 1983, serving as headmaster for the last ten years of his tenure, testified as follows:

Q In fact, you all, I gather, intentionally left the Latin school parking lot gates open recognizing kids were going to play on them anyway and just left the gates open to let them play on them, true?

A Well, I wouldn't say we left the gates open to let them play on them. They'd climb over if you closed them so it didn't make much difference. It was safer for them to walk in than it was to climb over.

Robert Larcher, principal at Covington School, provided this testimony:

Q. Jim Richter, your dean, did he claim to know anything about any of these topics, or anything else that directly or indirectly related to this case?

A. I think, I believe Jim was one of the--I believe Jim was telling me about sort of an open-playground policy, and that sometime during the period that he was at school--or, maybe it was another teacher, there was an attempt to close it off, but that created more problems, some vandalism, graffiti, so on and so forth, so that the playground was never closed off, barricaded, or anything like that.

In his answer to Huddleston's complaint, Bishop Hughes refers to Huddleston as a "trespasser"--

5. That the Plaintiff, Steven B. Huddleston, was a trespasser to the area in which his alleged injuries and/or damages occurred and therefore was owed no duty of reasonable care by the Defendant, pursuant to KRS 381.232[.]

An allusion to Huddleston's trespasser status is also found in the Bishop's answer to an interrogatory:

19. Describe any information you have indicating, or any reason you have to believe, that Plaintiff, Steven B. Huddleston, was a trespasser to the area where he was injured.

ANSWER: He did not have express permission to play on the lot (Emphasis supplied).

Huddleston also offered...

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