Johnson v. City of Versailles

• Decision Date: 12 June 2020
• Docket Number: NO. 2018-CA-001647-MR,2018-CA-001647-MR
• Parties: SHIRLEY JANE JOHNSON APPELLANT v. CITY OF VERSAILLES; BRIAN TRAUGOTT, IN HIS OFFICIAL CAPACITY; TERRY BROWN, IN HIS OFFICIAL CAPACITY; AND PAUL SIMMONS, IN HIS OFFICIAL CAPACITY APPELLEES
• Court: Kentucky Court of Appeals

SHIRLEY JANE JOHNSON APPELLANT v. CITY OF VERSAILLES; BRIAN TRAUGOTT, IN HIS OFFICIAL CAPACITY; TERRY BROWN,IN HIS OFFICIAL CAPACITY; AND PAUL SIMMONS, IN HIS OFFICIAL CAPACITY APPELLEES

NO. 2018-CA-001647-MR

Commonwealth of Kentucky Court of Appeals

JUNE 12, 2020

TO BE PUBLISHED

APPEAL FROM WOODFORD CIRCUIT COURT

HONORABLE BRIAN PRIVETT, JUDGE

ACTION NO. 14-CI-00364

OPINION

REVERSING AND REMANDING

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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.

MAZE, JUDGE: Shirley Jane Johnson (Johnson) appeals from a summary judgment order of the Woodford Circuit Court dismissing her negligence claims against the City of Versailles (the City), and Brian Traugott, Terry Brown, and Paul Simmons, each in their official capacities (collectively, "the individual defendants"). Johnson argues that the trial court incorrectly characterized her as a licensee and that the court should have determined the City's duties based upon her status as an invitee. We agree. We further find that there were genuine issues of material fact whether the City and the individual defendants breached their duties to Johnson and, if so, whether that breach was the proximate cause of Johnson's injuries. Hence, we reverse the summary judgment and remand for further proceedings on the merits of Johnson's claims.

I. Facts and Procedural History

Except where noted, the relevant facts of this action are not in dispute. When her son died in 1985, Johnson arranged to have him buried at Rose Crest Cemetery, then a privately-owned cemetery in Versailles, Kentucky. She purchased a monument from Duell-Clark Funeral Home, who installed it at the grave. The monument consists of two pieces of granite. The upper piece of the monument containing the inscriptions (the headstone) sits on top of a lower piece (the base). The headstone and the base are held together by an adhesive placed at the time the monument was set. The monument also has two decorative vases, or urns, attached to the base on either side of the headstone.

At some point in the following years, the City acquired ownership and assumed maintenance of Rose Crest Cemetery. In August 2012, Johnson noticedthat one of the two urns had broken off at the base of the monument. Johnson stated that the detached urn had black tire marks on the side and the stem was broken, leading her to conclude that the urn was broken off by mowing equipment. Johnson contacted then-Mayor Fred Seigelman, who volunteered to replace both urns. However, Johnson was not satisfied with the appearance of the replacement urns.

Shortly thereafter, Assistant Public Works Director Paul Simmons offered to repair and re-attach the original urns. Following that repair, Johnson accompanied Simmons to the monument to view the urns. Johnson testified in her deposition that she was satisfied with that repair. However, she also stated that Simmons noticed that the headstone was loose, and he offered to have it repaired. Simmons testified that he never knew the headstone was loose and did not offer to repair it.

On December 18, 2013, Johnson was visiting her son's grave to place a wreath on the monument. She testified that, sometime between 12:35 and 12:40 p.m., she placed her right hand on the headstone and pulled herself up from a squatting position. As she rose, the headstone toppled onto her right foot. She flagged down another visitor for help, who called for an ambulance. Firefighters removed the headstone from Johnson's foot and she was transported to thehospital. Johnson suffered a fractured foot, damaged knee, and she alleges that she has incurred permanent nerve damage.

After her injury, Johnson contacted Mayor Brian Traugott (who succeeded Mayor Seigelman) to ask the City to repair the monument. Mayor Traugott answered that the City had no duty to repair the headstone. Rather, he took the position that, since Johnson had purchased it and it was installed by Duell-Clark Funeral Home prior to the City's purchase of Rose Crest Cemetery, any repairs were the responsibility of Johnson and Duell-Clark. Despite this position, Mayor Traugott instructed Simmons to re-secure the headstone to the base.

Johnson filed this action on December 12, 2014, asserting negligence claims against the City, Mayor Traugott, Simmons, Cemetery Supervisor Terry Brown, and "unknown employees" of the City. The City and individual defendants filed a motion for summary judgment in 2016, which the trial court denied on April 21, 2017. On November 30, 2017, Johnson filed a motion for partial summary judgment on liability. Shortly thereafter, the City and individual defendants filed a motion to dismiss based on Kentucky's recreational use statute. They also requested summary judgment on Johnson's claims for punitive damages and against the individual defendants in their personal capacities.

On April 21, 2017, the trial court entered an order denying the motion for summary judgment. Subsequently, the City and individual defendants filed amotion to clarify that order, as well as a renewed motion for summary judgment and a motion to dismiss. Additionally, Johnson filed a motion for partial summary judgment on the issue of liability.

On June 4, 2018, the trial court entered an order clarifying its prior order denying summary judgment and denying Johnson's motion for summary judgment. The court explained that it did not intend to make a finding that the City violated its statutory or common-law duties of care or to make a finding regarding causation. However, the court concluded that there were genuine issues of material fact on the issues of breach of duty and causation.

Shortly thereafter, the City and individual defendants filed a new motion for summary judgment. On October 11, 2018, the trial court granted the motion, finding that Johnson failed to establish that the City or the individual defendants owed a duty to maintain or repair the headstone, or that any actions on their part caused Johnson's injuries. After finding that Johnson was a licensee at the time of her injury, the court concluded that the City and individual defendants only had a duty to protect or warn against defects in the headstone of which they had knowledge. The court found no evidence that the City and the individual defendants were aware of the instability of the headstone before it fell. The court also found no evidence that any action by the City or the individual defendants caused or contributed to the headstone's fall. Consequently, the court determinedthere were no genuine issues of material fact concerning their liability. This appeal followed. Additional facts will be set forth below as necessary.

II. Summary Judgment Standard

Our 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 CR¹ 56.03). Appellate review of summary judgment does not involve fact-finding since only legal questions must be resolved. Davis v. Scott, 320 S.W.3d 87, 90 (Ky. 2010) (citing 3D Enterprises Contracting Corp. v. Louisville and Jefferson County Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005)). Consequently, this Court's review of the trial court's decision on summary judgment is de novo. See Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citations omitted).

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show 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." 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 Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id.

Summary judgment is an extraordinary remedy that should be "cautiously applied and should not be used as a substitute for trial." Id. at 483. Instead, summary judgment is only appropriate "to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985) (quoting Roberson v. Lampton, 516 S.W.2d 838, 840 (Ky. 1974)). "Impossible," of course, should be interpreted in "a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992).

III. Elements of Negligence

As discussed above, the trial court granted summary judgment after finding that Johnson failed to show that there were genuine issues of material fact on the essential elements of her negligence claim. It is well-established that a plaintiff seeking to establish a cause of action for negligence in Kentucky must prove the existence of a duty, breach thereof, proximate causation, and damages. Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. App. 2009) (citing Illinois Central Railroad v. Vincent, 412 S.W.2d 874, 876 (Ky.1967), and Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992)). The existence of a duty is a question of law for the court, while breach and injury are questions of fact for the jury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citations omitted). Causation presents a mixed question of law and fact. Id. (citation omitted).

IV. Extent of Statutory Duties

Johnson argues that KRS² 381.697(2) imposed an affirmative duty on the City to prevent tombstones and monuments from becoming "displaced." That provision provides:

(2) The owner or owners of public or private burial grounds,

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