Stewart v. Tafel, No. 2009-CA-000225-MR (Ky. App. 5/14/2010)
| Decision Date | 14 May 2010 |
| Docket Number | No. 2009-CA-000225-MR.,2009-CA-000225-MR. |
| Parties | Samuel STEWART, Appellant, v. George L. TAFEL, Appellee. |
| Court | Kentucky Court of Appeals |
Joseph M. Longmeyer, Louisville, Kentucky, Briefs for Appellant.
Ryan N. Pogue, Louisville, Kentucky, Brief for Appellee.
Before: DIXON and NICKELL, Judges; KNOPF,1 Senior Judge.
Not to be Published
Samuel Stewart appeals from the Jefferson Circuit Court's entry of summary judgment in favor of George L. Tafel. Stewart filed a negligence action against Tafel after falling into an uncovered water utility hole on a public right-of-way adjacent to Tafel's property. The circuit court determined that Tafel did not owe any duty to Stewart since it was not Tafel's responsibility to maintain that right-of-way. After our review, we reverse and remand for further proceedings.
The incident leading to this litigation took place on March 4, 2006, while Stewart was attempting to access the sidewalk in front of Tafel's property at 603 and 605 Caldwell Street in Louisville, Kentucky. Upon leaving the street and crossing over an area of grass located between the street and the sidewalk, Stewart stepped into an uncovered water meter hole and suffered injuries to his left leg, groin, lower back, and neck.
Stewart subsequently filed a personal injury action against Tafel in the Jefferson Circuit Court on October 24, 2006, claiming that Tafel was negligent for failing to replace the cover on the water meter hole. Although Stewart did not specifically allege in his complaint that Tafel was originally responsible for removing the cover, the remaining record reflects that Stewart believed that this was the case. At the time of the subject incident, Tafel's properties were vacant, but Stewart alleges that it appeared that construction work was being done there and that his injuries resulted from Tafel's negligent failure to maintain his property during this work.
On October 22, 2008, Tafel filed a motion for summary judgment against Stewart. In support of his motion, Tafel asserted that Stewart was a trespasser at the time of the subject incident and was consequently not owed a legal duty by Tafel. Tafel further argued that to his knowledge no construction work was being done on his property at the time of Stewart's injuries and that even assuming that the water meter hole was uncovered, such was the responsibility of the local water utility and any liability ultimately lay with that entity.
In response to Tafel's motion for summary judgment, Stewart produced photographs taken on the day of the subject incident that purported to show that construction work was being done or had been done on Tafel's property. The photographs provided images of areas of the property that had been excavated and marked with caution tape. Stewart argued that these images, at the very least, demonstrated that a genuine issue of material fact existed as to the question of whether work was being done on Tafel's property. Stewart also asserted that the area on which he was injured was part of a public right-of-way and that he therefore was not trespassing at the time of his injuries. Stewart further cited a number of Louisville Metro ordinances for the proposition that Tafel had a duty to maintain the right-of-way abutting his property, with this duty including an obligation to ensure that the water meter hole thereon was covered.
On January 6, 2009, the circuit court entered an "Opinion and Order" granting Tafel's motion for summary judgment. In so doing, the court first rejected Tafel's contention that Stewart was a trespasser and found that he was injured in a public right-of-way. However, the court then concluded that Stewart had failed to show that it was Tafel's duty to maintain that right-of-way, instead finding that if a duty to Stewart had been breached, it had most likely been done by the local utility responsible for maintaining water meters, i.e., the Louisville Water Company. This appeal followed.
The standards for reviewing a circuit court's entry of summary judgment are well-established and were concisely summarized by this Court in Lewis v. B & R Corp., 56 S.W.3d 432 (Ky. App. 2001):
The standard of review on appeal when a trial court grants a motion for 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." The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial." The trial court "must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists." While the Court in Steelvest2 used the word "impossible" in describing the strict standard for summary judgment, the Supreme Court later stated that that word was "used in a practical sense, not in an absolute sense." Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo.
Id. at 436 (internal footnotes and citations omitted).
As an initial matter, we note that Stewart's reply brief contains a number of attached exhibits that were not presented to the circuit court and are not contained within the record. Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(vii) clearly sets forth that "[e]xcept for matters of which the appellate court may take judicial notice, materials and documents not included in the record shall not be introduced or used as exhibits in support of briefs." CR 76.12(8)(a) permits, but does not require, a brief to be stricken for failure to comply substantially with this rule. In lieu of this penalty, we elect not to strike Stewart's entire brief but instead to disregard that portion therein that relies on the aforementioned exhibits as well as the exhibits themselves. See U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 542 (Ky. App. 2007); Baker v. Jones, 199 S.W.3d 749, 753 (Ky. App. 2006); Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky. App. 1985).
With this established, we now turn to the question of whether the circuit court erred in granting Tafel's motion for summary judgment. As noted above, the court concluded that Tafel did not owe Stewart any duty with respect to the uncovered water meter hole in the public right-of-way abutting Tafel's property. In order for a plaintiff to prevail in a negligence action, he "must prove the existence of a duty, breach thereof, causation, and damages." Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680,...
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