Scifres v. Kraft

• Decision Date: 12 January 1996
• Docket Number: No. 94-CA-002618-MR,94-CA-002618-MR
• Parties: James Martin SCIFRES and Humana Health Plans, Appellants, v. Bill KRAFT and Karen Kraft, Appellees.
• Court: Kentucky Court of Appeals

Page 779

916 S.W.2d 779

James Martin SCIFRES and Humana Health Plans, Appellants, v. Bill KRAFT and Karen Kraft, Appellees.

No. 94-CA-002618-MR.

Court of Appeals of Kentucky.

Jan. 12, 1996.

As Modified Feb. 2, 1996.

F. Thomas Conway, Louisville, for appellants.

Chester A. Vittitow, Jr., Bennett, Bowman, Triplett & Vittitow, Louisville, for appellees.

Before: DYCHE, JOHNSON and GUDGEL, JJ.

JOHNSON, Judge:

This appeal raises the question of the liability of homeowners for damages sustained by a social guest from a swimming pool injury. The Jefferson Circuit Court found a lack of a legal duty and granted summary judgment in favor of the homeowners. We affirm.

On August 15, 1992, Bill and Karen Kraft (the Krafts) hosted a pool party at their home in Jefferson County. The couple had invited approximately forty friends and coworkers to attend the party by distributing a flyer. The invitation described the event as a "luau" party, and informed those invited that it was a "BYOB" or "bring your own bottle" affair.

Several of the guests prepared an alcoholic beverage called "jungle juice" by mixing several clear liquors, including vodka, gin, and tequila, in a plastic garbage can. The Krafts observed the mixing of this concoction but did not participate in its making or distribution. Several of the guests were drinking alcohol, including Scifres, who stated in his deposition that he consumed approximately two glasses of the jungle juice and three or four beers while at the Krafts' home. Scifres also had consumed several beers at a local bar prior to arriving at the party. He claimed, however, to have always been "in control" while at the party and there is some support for this statement from other guests.

As the party progressed, activities included music and a hula dance complete with grass skirts and wigs for some of the men. Later in the evening, two of the men got into the pool with proper swimming attire. On a dare, another man jumped into the water naked. After being teased about being afraid to get his hair wet, Scifres dove into the water and struck his head on the opposite side of the pool. The force of the impact with the pool wall broke Scifres' neck and severed his spinal cord rendering him a quadriplegic.

Scifres brought a negligence action against the Krafts contending that the hosts failed to warn him of the dangers of the pool and failed to adequately supervise the guests in the use of the pool while creating a dangerous environment involving the known hazards of alcohol and a swimming pool. Humana Health Plans, under Scifres' insurance policy's subrogation rights for expenses paid on Scifres' behalf, intervened. The trial court granted summary judgment in favor of the Krafts stating that they "... were not negligent as they owed no duty to Scifres to either warn him of any dangers of the pool nor control the activities of their guests." This appeal followed.

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. Kentucky Rules of Civil Procedure (CR) 56.03. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue. Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381 (1992). "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., Ky., 807 S.W.2d 476, 480 (1991). Summary "judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances." Steelvest, 807 S.W.2d at 480, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985). Consequently, summary judgment must be granted "[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor ..." Huddleston v. Hughes, Ky.App., 843 S.W.2d 901, 903 (1992), citing Steelvest, supra (citations omitted).

Historically visitors upon property have been placed in one of three categories, viz., trespassers, licensees or invitees. A trespasser is one who comes upon the land without any legal right to do so, a licensee is one who comes upon land with the consent of the possessor of the land and an invitee is generally defined as one who comes upon the land in some capacity connected with the business of the possessor.

The liability of the possessor of land for injuries sustained by visitors upon the land depends in some degree upon whether the injury arises from a defect in the condition of the premises or from an activity conducted upon the premises. Though it has been said frequently that the possessor of land owes no duty to a licensee except to refrain from wilful or wanton injury and to warn of known defects this rule has been gradually eroded with respect to injuries caused by activities conducted upon the premises.

Hardin v. Harris, Ky., 507 S.W.2d 172, 174-175 (1974).

We will address Scifres' allegations of negligence in two parts. Scifres alleged that the Krafts were negligent in failing to warn him of the dangers...