Midwestern, Inc. v. Northern Kentucky Community Center, s. 86-CA-961-
| Citation | 736 S.W.2d 348 |
| Decision Date | 12 June 1987 |
| Docket Number | 86-CA-1004-S,Nos. 86-CA-961-,s. 86-CA-961- |
| Parties | MIDWESTERN, INC., S.R. Smith Company, and Auble, Mitchell and Burgess, d/b/a AMB & Associates, Appellants, v. NORTHERN KENTUCKY COMMUNITY CENTER and City of Covington, Kentucky, Appellees. Charles J. ABNER, Appellant, v. CITY OF COVINGTON, Kentucky and Northern Kentucky Community Center, Appellees. |
| Court | Court of Appeals of Kentucky |
Kurt Philipps, Covington, Stephen A. Bailey, Cincinnati, Ohio, Beverly R. Storm, William J. Dupree III, Covington, Stephen T. MacConnell, Deborah A. Nellis, Jay R. Langenbahn, Cincinnati, Ohio, for appellants.
Arnold Taylor, Stephen T. McMurtry, Covington, for appellees.
Before HOWERTON, C.J., and HAYES and REYNOLDS, JJ.
The appellant, Charles Abner, appeals from a summary judgment entered by the Kenton Circuit Court in favor of appellees, City of Covington and the Northern Kentucky Community Center. In the companion case the appellants, Midwestern, Inc., and AMB & Associates, co-defendants in the action below, also challenge the dismissal. The only issue on appeal concerns the applicability of KRS 411.190 to the facts of this case. After an exhaustive review of the relevant case law, we affirm.
On August 12, 1981, Abner was catastrophically injured when he dove from a three-meter board and hit the bottom of the Randolph Pool, located at the community center. He suffered a spinal fracture which rendered him quadriplegic. At the time of the accident Abner was 17 years old. When suit was brought, negligence was alleged on the part of the City of Covington, the owner of the land upon which the pool had been constructed; the Northern Kentucky Community Center, which was paid annually by the City to manage the pool; Midwestern, Inc., the construction company which had built the pool seven years before the appellant's accident; AMB & Associates, the architectural firm which designed the center and pool; and S.R. Smith Company, manufacturer of the diving board.
In the course of discovery, the City of Covington and the community center moved for summary judgment which was granted, without specific findings, by the circuit court. Presumably, the court found the City and the community center were entitled to immunity under KRS 411.190, Kentucky's version of what are commonly referred to as Recreational User Statutes.
KRS 411.190 states, in pertinent part:
(1) As used in this section:
(a) "Land" means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(b) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(c) "Recreational purpose: includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(d) "Charge" means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
(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 owned.
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.
....
(6) Nothing in this section limits in any way liability which otherwise exists:
(a) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for recreational use thereof, except that in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.
In challenging the applicability of KRS 411.190 to the case at hand, the appellants contend, but do not strenuously argue, that the existence of a contract between the City and the center, said contract being termed a "lease," exempts them from being "owners" within the meaning of the statute. Despite the fact that the contract purports to be a lease, it is clear from the language of the contract itself and the monetary arrangement between the City and the center that the document is essentially an employment contract pursuant to which the center was paid to manage and oversee the day-to-day operation of the facility. Therefore, with regard to the question of ownership of the property in question, the City and center fall squarely within the provision of KRS 411.190(1)(b), defining an owner as "a possessor of a fee interest" or one "in control of the premises."
The appellants make a more persuasive argument in asserting that the City and the community center...
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