Mark Joseph Smith v. Heritage Hill Golf Club ( 2021 )

RENDERED: OCTOBER 15, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1442-MR
MARK JOSEPH SMITH APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 11-CI-00721
HERITAGE HILL GOLF CLUB APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Mark Joseph Smith (Smith), pro se,1 brings this appeal from a
July 16, 2019, Order of the Bullitt Circuit Court granting Heritage Hill Golf Club’s
1
Mark Joseph Smith (Smith) is a licensed practicing attorney in Kentucky.
(Heritage Hill) renewed motion for summary judgment and dismissing Smith’s
negligence complaint.2 For the reasons stated, we affirm.
BACKGROUND
This appeal arises from a golf cart accident on May 29, 2010, at
Heritage Hill in Shepherdsville, Kentucky.3 Smith was playing golf with five other
players (a sixsome) including Robert Buehner. The group was operating four
separate electric golf carts provided by Heritage Hill.4 Smith had been a member
of Heritage Hill for approximately two years and testified that he regularly played
the golf course as many as five times a week during the golf season.
On the day of the accident, the parties played the first hole without
incident. The second hole, a par three, has an elevated tee box, and the hole sloped
downward to the green. There was heavy foliage, including bushes and trees on
both sides of the fairway. Along the paved cart path to the green, there were
various rock formations adjacent to the path. The cart path weaved from the right
2
Smith’s motion to alter, amend, or vacate pursuant to Kentucky Rules of Civil Procedure 59.05
was denied by Order entered August 21, 2019. A timely Notice of Appeal was filed on
September 20, 2019.
3
The parties have referred to the golf club and course as Heritage Hills Golf Club throughout
this litigation although its actual name is Heritage Hill Golf Club. We have elected to reference
appellee in this Opinion as Heritage Hill Golf Club (Heritage Hill), its legal name, and will
correct the record accordingly.
4
Apparently, golf carts were required for all players playing the golf course. Two of the golf
carts were occupied by two players each, and two of the carts were occupied by one player each.
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side of the tee box down the hill adjacent to the rock formations up to the green
area, with at least one s-curve in the pathway.
After the six golfers teed off from the second hole, they proceeded
down the cart path toward the green. Buehner was alone in the front cart. Smith
and another passenger were following Buehner down the path. After Buehner
rounded an s-curve adjacent to a rock formation, he inexplicably lost control of the
cart. The cart pivoted or flipped over on its left front wheel and subsequently
landed on top of Buehner on the cart path. As Smith rounded the same curve, he
immediately observed Buehner’s cart and Buehner lying on the path before him.
To avoid a collision and running over Buehner, Smith swerved his cart to the left
of Buehner’s cart and Buehner. This evasive action by Smith caused his cart to
leave the cart path and also immediately overturn on top of Smith. The passenger
in Smith’s cart leaped out as the cart was overturning to avoid injury. As a result
of the accident, Smith suffered injuries, including a broken arm at the shoulder
socket. Smith was transported to a hospital by ambulance for treatment of his
injuries.5
On May 31, 2011, Smith initiated this negligence action in Bullitt
Circuit Court, naming as defendants Heritage Hill, Buehner, and Esurance
5
Robert Buehner also suffered injuries as a result of his golf cart overturning, but he did not file
an action seeking damages against Heritage Hill.
-3-
Insurance Services, Inc. (Esurance). Esurance was Smith’s automobile insurance
carrier and presumably he was seeking basic reparation benefits and uninsured or
underinsured policy benefits from the carrier. The claims against Esurance were
resolved during the litigation and are not relevant to this appeal. The claims
against Buehner remain pending in the Bullitt Circuit Court. Although Smith
asserted claims that the golf cart Buehner was driving was negligently designed,
the golf cart manufacturer was not named a party to this litigation. As concerns
Heritage Hill, Smith asserted that the golf cart was not the proper type of cart for
use on Heritage Hill’s golf course and that the golf course was negligently
designed by Heritage Hill, especially as concerns the layout of the second hole.
Subsequent to the filing of the complaint, the parties began
exchanging discovery requests in accordance with Kentucky Rules of Civil
Procedure (CR) 26.02. On December 30, 2013, Heritage Hill filed its first motion
for summary judgment, arguing in part that Smith had failed to timely provide his
expert witnesses’ report and supporting documents to establish Smith’s negligence
claims against Heritage Hill. This motion was denied by order entered February
19, 2014, as Smith had provided a report from his expert, Stephen Eisenberg, in
January 2014, prior to the hearing on the motion.
The case was mediated in May of 2014, which resulted in the
settlement with Esurance. However, the record of this case reflects no activity
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after the mediation until the court issued a CR 77.02 notice in October of 2015.
Thereafter, the parties apparently spent much of 2016 attempting to depose
Stephen Eisenberg, resulting in a motion to compel being filed by Heritage Hill in
September of 2016. The parties ultimately agreed to depose Eisenberg in Florida
on February 17, 2017. However, at the deposition, Eisenberg failed to produce
various documents that he relied upon in giving his expert opinion. When Smith
failed to subsequently produce the documents as promised after the deposition,
Heritage Hill filed another motion to compel on August 15, 2017. By order
entered August 21, 2017, the motion was granted, but Smith failed to timely
comply. Pursuant to CR 37.02, Heritage Hill then filed a motion to dismiss on
October 17, 2017. After hearing arguments of counsel in February of 2018, the
court entered an order on May 9, 2018, denying the motion to dismiss but striking
Eisenberg as an expert witness per CR 37.02(2).
Approximately six months later, in November of 2018, Heritage Hill
renewed its motion for summary judgment, as Smith had failed to identify another
expert witness to establish the negligence claims asserted against the golf club. In
response, in January of 2019, Smith identified a new expert, Charles Heath. The
renewed motion for summary judgment was then denied by order entered February
5, 2019.
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In Smith’s expert witness disclosure identifying Heath, his opinion
report and supporting documentation were attached therewith. In response,
Heritage Hill filed another motion, on February 27, 2019, to reconsider its renewed
motion for summary judgment along with a motion to strike Heath as an expert
witness. The primary basis for these motions was that Heath’s report and opinion
were premised primarily upon Eisenberg’s opinion report and discovery
deposition, which had previously been stricken by the court. Heath had also not
inspected the golf course or the alleged defective golf cart. Heritage Hill argued
that this conduct was a continuing violation of CR 26.02, as well as numerous
orders entered by the court dating back to July 9, 2013. The court conducted
another hearing on April 17, 2019, and by order entered July 16, 2019, granted the
motion to strike Heath as an expert witness and also granted the renewed motion
for summary judgment dismissing the action against Heritage Hill. This appeal
followed. Additional facts will be addressed as needed.
STANDARD OF REVIEW
The standard of review upon appeal of an order granting 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
CR 56.03). Upon a motion for summary judgment, all facts and inferences in the
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record are viewed in a light most favorable to the nonmoving party and “all doubts
are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc.,
807 S.W.2d 476, 480 (Ky. 1991). Thus, a summary judgment looks only to
questions of law and we review a trial court’s decision to grant summary judgment
de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016); see also
Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010), as
modified on denial of reh’g (Nov. 23, 2011). Additionally, when a trial court
grants summary judgment based on insufficient evidence, as in this case, review on
appeal is also de novo. Ashland Hosp. Corp. v. Lewis, 581 S.W.3d 572, 577 (Ky.
2019).
ISSUES ON APPEAL
Smith presents a total of three pages of argument in his appellate
brief. Based on our review, he appears to be raising two issues on appeal. First,
that the court erred in striking his expert witness, Charles Heath, pursuant to CR
37.02.6 Second, that upon striking Heath as an expert witness, the circuit court
erred in granting Heritage Hill’s renewed motion for summary judgment pursuant
to CR 56. Our review proceeds accordingly.
6
The first expert witness identified by Smith, Stephen Eisenberg, was stricken by order entered
May 9, 2018. That order was not raised as an issue in this appeal.
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ANALYSIS
We begin our analysis by noting several deficiencies in Smith’s brief.
In contravention of CR 76.12(4)(c)(i), (ii), and (iii), Smith’s brief does not contain
an “introduction,” “statement concerning oral argument,” or “statement of points
and authorities.” Coupled with the meager three-page argument presented by
Smith in this appeal, this Court easily could have stricken Smith’s brief pursuant to
CR 76.12(8)(a). See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (“It is
a dangerous precedent to permit appellate advocates to ignore procedural rules.”).
We do not take these appellate rules violations lightly. However, given this case
has procedurally labored in the circuit court for over eight years, and there remain
other unresolved claims against another party below, we have elected at our
discretion to consider the merits of the appeal based upon the record presented on
appeal. See Krugman v. CMI, Inc., 437 S.W.3d 167, 171 (Ky. App. 2014).
Smith’s first argument looks to the striking of Heath as his expert
witness regarding the alleged defective design of the Heritage Hill golf course and
its alleged defective golf carts. In May of 2018, after some five years of protracted
discovery maneuvering and delays regarding Smith’s first expert, Stephen
Eisenberg, the circuit court struck Eisenberg as an expert witness. The court
concluded that Eisenberg and Smith had failed to timely provide various
documentation supporting Eisenberg’s opinion, as ordered by the court on August
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21, 2017. Smith took no actions in obtaining another expert until Heritage Hill
renewed its motion for summary judgment in November of 2018. In January of
2019, prior to the hearing on the motion, Smith identified Heath as his new expert.
The renewed motion for summary judgment was denied. However, as previously
noted, in February of 2019, Heritage Hill renewed its motion for summary
judgment again and also filed a motion to strike Heath as an expert, on the premise
that Heath’s opinion was based upon Eisenberg’s opinion report and deposition,
which had previously been stricken by the circuit court. Like Eisenberg, Heath
was stricken as an expert witness pursuant to CR 37.02(2)(b).
In Kentucky, it is well-established that a trial court has broad
discretion in addressing the violation of a discovery order. Turner v. Andrew, 413
S.W.3d 272, 279 (Ky. 2013) (citing Wilson v. Commonwealth, 381 S.W.3d 180,
191 (Ky. 2012)). This Court reviews a trial court’s imposition of sanctions for an
abuse of discretion. Turner, 413 S.W.3d at 279. An abuse of discretion occurs
where the trial court’s decision is “arbitrary, unreasonable, unfair, or unsupported
by sound legal principles.” Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App.
2007) (citations omitted).
Permissible sanctions for violation of a trial court’s discovery order
are set forth in CR 37.02, which is entitled “Failure to comply with order.” CR
37.02(2) provides, in relevant part, as follows:
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(2) Sanctions by Court in Which Action Is Pending.
If a party . . . fails to obey an order to provide or permit
discovery, including an order made under Rule 37.01
[Motion for Order Compelling Discovery] or Rule 35, the
court in which the action is pending may make such
orders in regard to the failure as are just, and among
others the following:
(a) An order that the matters regarding which the order
was made or any other designated facts shall be taken to
be established for the purposes of the action in
accordance with the claim of the party obtaining the
order;
(b) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or
prohibiting him from introducing designated matters in
evidence;
(c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof,
or rendering a judgment by default against the
disobedient party[.]
In this case, the circuit court granted a discovery sanction to disqualify
Heath from testifying. Smith makes a one paragraph argument in his brief that
Heath was not disqualified for cause under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert is clearly not applicable to
this appeal as Heath’s qualifications were not an issue in the case below. Rather,
Heath was disqualified by the circuit court because his opinion was based
primarily upon Eisenberg’s opinion and deposition testimony, which had been
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previously stricken by the circuit court. Heath had never visited or inspected the
golf course or the two golf carts involved in the accident. And, his flawed opinion
was generated in response to several court discovery orders dating back for almost
six years. Effectively, the circuit court grew weary of the continuous discovery
delays by Smith in complying with CR 26.02 and struck Heath as an expert
witness. Given these circumstances and the facts of this case, we find no abuse of
discretion by the circuit court in striking Heath as an expert witness. Curiously,
Smith has not raised, nor will we address, some of the factors this Court has
previously reviewed regarding the imposition of CR 37.02 sanctions. See R.T.
Vanderbilt Co., Inc. v. Franklin, 290 S.W.3d 654, 662 (Ky. App. 2009).
As concerns the granting of summary judgment, Smith argues there
were genuine issues of material fact as to whether the two golf carts in question
were defective and whether the golf course was negligently designed.
Interestingly, Smith does not argue on appeal that the granting of summary
judgment, which dismissed his case against Heritage Hill, was a sanction under CR
37.02. And, our review indicates that the circuit court granted summary judgment
because Smith was not able to prove that Heritage Hill violated its standard of care
or was otherwise liable for Smith’s injuries. We observe that if entry of the
judgment was in fact a discovery sanction, we would be duty bound to remand the
case back to the circuit court for specific findings and conclusions of law in
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accordance with Turner v. Andrew, 413 S.W.3d 272, 279 (Ky. 2013) and
Greathouse v. American National Bank & Trust Company, 796 S.W.2d 868, 870
(Ky. App. 1990). Smith has not raised this issue on appeal.
Thus, our review proceeds under CR 56. The alleged defective golf
cart issue can be easily dispensed. First, based on Smith’s deposition testimony, he
admits that his cart was not defective as he intentionally drove off the cart path to
avoid hitting Buehner. Smith’s Deposition at 217-18. However, he does allege
that Buehner’s cart brake was defective and contributed to his accident, which
ultimately triggered Smith’s accident. Smith’s Deposition at 217-18.
Notwithstanding, at no time during this litigation was Buehner’s cart inspected by
Smith or any representative on his behalf. Buehner’s cart overturned ahead of
Smith, causing Smith to leave the cart path and also overturn. There is not one
shred of evidence in this record to implicate a defect in Buehner’s cart brake.
Mere speculation and conjecture about an alleged defect, including the alleged lack
of an “auto deceleration feature,” do not create a genuine issue of material fact in
this case. As a general rule, Smith was obligated to introduce evidence which
afforded a reasonable basis for the conclusion that it was more likely than not that
the conduct of Heritage Hill was a substantial factor in bringing about Smith’s
injuries. “A mere possibility of such causation is not enough and when the matter
remains one of pure speculation or conjecture, or the probabilities are at best
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evenly balanced it becomes the duty of the court to direct a verdict for the
defendant.” Texaco, Inc. v. Standard, 536 S.W.2d 136, 138 (Ky. 1975).
And, we again note that neither the manufacturer of the golf cart nor
the brake system were named parties to this action, which has contributed to the
speculative nature of the allegations regarding the golf cart. Absent any competent
evidence of the brake defect, including expert testimony, the circuit court properly
rendered summary judgment on the defective golf cart claim.
As concerns the defective design of the golf course, we are faced with
a more difficult question. The circuit court effectively held that expert testimony
was necessary to establish Heritage Hill’s standard of care and subsequent liability
for Smith’s injuries. In other words, an expert witness was necessary for Smith to
go forward with his case. When the standard of care is not within the scope of
common experience of jurors, it is within the trial court’s discretion to require
expert testimony. Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 680
(Ky. 2005). Heritage Hill supports this supposition, citing this Court to numerous
cases, including, Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93 (Ky.
2008); Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676; and
Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010), to name a few. However, all
of these cases look to medical or professional malpractice by licensed
professionals. Nothing in the record on appeal indicates that licensed professionals
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were involved in the design or the construction of the golf course. Thus, the
question arises whether under Kentucky Rules of Evidence (KRE) 702, expert
testimony is appropriate or necessary to assist the trier of fact in this case to
understand the evidence or determine any factual issue in regards to the negligent
design of the course. The circuit court’s order of July 16, 2019, does not address
this issue. The necessity of expert testimony obviously was Heritage Hill’s
position from the outset of the case, which Smith never objected to or otherwise
challenged below, or in this appeal. If expert testimony is not necessary in this
case, then the striking of Smith’s expert would not have warranted summary
judgment on the standard of care or liability issues and reversal would be
warranted. Again, Smith did not raise this issue below or in this appeal.
This Court has spent numerous hours reviewing the record below,
including twelve volumes of pleadings, two lengthy deposition transcripts, and
numerous video hearings. While not addressed by the parties or the circuit court in
its judgment, the case alleged against Heritage Hill, regarding Smith’s injuries
while playing golf thereon, clearly looks to a premises liability negligence action
under applicable Kentucky law. As an appellate court, we are always mindful that
a judgment of a lower court can be affirmed for any reason found in the record.
Fischer v. Fischer, 348 S.W.3d 582, 591 (Ky. 2011), abrogated on other grounds
by Nami Resources Co., L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323,
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339 n.10 (Ky. 2018). Likewise, if we become aware of another reason to affirm
the trial court, even if based upon different grounds, we are obligated to do so.
Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 496
(Ky. 2014). Thus, a premises liability analysis is warranted.
We begin by noting that Smith was an invitee on Heritage Hill golf
course on May 29, 2010. Smith alleges this in the first sentence of his brief, and
Heritage Hill has not denied or disputed this fact. Also, as a member, Smith had
played the course on numerous occasions without incident.7
Prior to 2010, the facts of this case might have easily fit into an open
and obvious doctrine analysis that would have precluded any liability by Heritage
Hill to Smith for injuries from the golf cart accident. Under this doctrine, a land
possessor could not be held liable to a visitor on his property, regardless of the
visitor’s status, who was injured by open and obvious dangers that were known to
the visitor or otherwise so obvious that the visitor would be expected to discover
them. Rogers v. Prof’l Golfers Ass’n of Am., 28 S.W.3d 869 (Ky. App. 2000).
However, the Kentucky Supreme Court has modified the open and
obvious doctrine beginning with Kentucky River Medical Center v. McIntosh, 319
7
In this case, Smith has admitted that he played the course, including the second hole, on
numerous occasions and was familiar with the layout of the hole, including the cart path.
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S.W.3d 385 (Ky. 2010) and its progeny.8 In McIntosh, the Kentucky Supreme
Court adopted the position of the Restatement (Second) of Torts with respect to
open and obvious conditions. That position is stated as follows:
A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or
condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.
RESTATEMENT (SECOND) OF TORTS § 343A(1) (2020).
The Supreme Court further expounded upon its position in McIntosh
in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013). In
explaining the retreat from the open and obvious doctrine, the Court stated:
Traditionally, the open-and-obvious doctrine
stated, “land possessors cannot be held liable to invitees
who are injured by open and obvious dangers.” As a
result, if a plaintiff was injured by an open and obvious
hazard, the landowner, regardless of any negligent
conduct on its part, had a complete defense to any
asserted liability. But, in McIntosh, we noted that a
growing majority of states has moved “away from the
traditional rule absolving, ipso facto, owners and
occupiers of land from liability for injuries resulting from
known or obvious conditions” and, instead, adopted the
Restatement (Second) of Torts’s approach to allow the
jury to assess comparative fault.
Id. at 906 (citations omitted).
8
See also Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013); Shelton v. Kentucky
Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013); Carter v. Bullitt Host, LLC, 471 S.W.3d
288 (Ky. 2015); and Goodwin v. Al J. Schneider Co., 501 S.W.3d 894 (Ky. 2016).
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In Shelton, 413 S.W.3d 901, the Supreme Court went on to explain:
A target for criticism for well over fifty years, the
open-and-obvious doctrine persists in our jurisprudence.
In McIntosh, we took steps to ameliorate the harsh effect
of the open-and-obvious doctrine for injured persons
seeking recovery. We adopted the Restatement (Second)
of Torts Section 343A and held that “lower courts should
not merely label a danger as ‘obvious’ and then deny
recovery. Rather [the courts] must ask whether the land
possessor could reasonably foresee that an invitee would
be injured by the danger.” According to Section 343A,
harm to the invitee is reasonably foreseeable despite the
obviousness of the condition “where the possessor has
reason to expect that the invitee’s attention may be
distracted, so that he will not discover what is obvious or
will forget what he has discovered, or fail to protect
himself against it” and, also, “where the possessor has
reason to expect that the invitee will proceed to encounter
the known or obvious danger because to a reasonable
man in his position the advantages of doing so would
outweigh the apparent risk.” Under this modern
approach to cases dealing with open-and-obvious
dangers, there is no duty for the land possessor to warn of
the dangers; but this “does not mean there is no duty at
all[.]” Indeed, “even where the condition is open and
obvious, a landowner’s duty to maintain property in a
reasonably safe condition is not obviated[.]”
Id. at 907 (citations omitted).
Despite these modifications to the open and obvious doctrine, the
Supreme Court has not closed the door to summary judgment in premises liability
actions. As explained in Shelton, 413 S.W.3d at 904, “a court no longer makes a
no-duty determination but, rather, makes a no-breach determination, dismissing a
claim on summary judgment or directed verdict when there is no negligence as a
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matter of law, the plaintiff having failed to show a breach of the applicable duty of
care.” Thus, “when the open-and-obvious doctrine relieves a defendant of liability,
it is not because damages are not recoverable as a matter of policy (as the case with
contributory negligence). Instead, the defendant is not liable because he has
satisfied the standard of care in the given factual scenario.” Id. at 910.
The Supreme Court further stated in Shelton that:
It is important to emphasize that summary judgment
remains a viable concept under this approach. The
court’s basic analysis remains the same because, on a
motion for summary judgment, a court must still examine
each element of negligence in order to determine the
legitimacy of the claim. But the question of
foreseeability and its relation to the unreasonableness of
the risk of harm is properly categorized as a factual one,
rather than a legal one. This correctly “examines the
defendant’s conduct, not in terms of whether it had a
‘duty’ to take particular actions, but instead in terms of
whether its conduct breached its duty to exercise the
care” required as a possessor of land. If reasonable
minds cannot differ or it would be unreasonable for a
jury to find breach or causation, summary judgment is
still available to a landowner. And when no questions of
material fact exist or when only one reasonable
conclusion can be reached, the litigation may still be
terminated.
Id. at 916 (citations omitted); see also Goodwin v. Al J. Schneider Co., 501 S.W.3d
894, 898-99 (Ky. 2016).
In this case, the unrefuted evidence in the record below establishes
that Smith lost control of his golf cart when he intentionally left the cart path to
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avoid hitting Buehner and his cart. Smith has alleged no defects of the premises,
other than course design, which caused his accident and injuries. And, there is
absolutely no evidence in the record to support any allegation of defective course
design. Based on the record before this Court and the unrefuted facts, we cannot
conclude that Heritage Hill breached any duty of care or otherwise acted
unreasonably in regard to Smith on May 29, 2010. The only reasonable conclusion
we can reach is that Heritage Hill was not the legal cause of injuries suffered by
Smith and was entitled to a summary judgment on Smith’s claims. However, we
caution that this Opinion does not address or affect any claims against Buehner,
including any alleged negligence by Buehner in the operation of his golf cart at the
Heritage Hill golf course on May 29, 2010.
Finally, we will address Smith’s one paragraph argument that
Heritage Hill’s motion to reconsider its motion for summary judgment filed on
February 27, 2019, was improper and in violation of CR 59.05, having been filed
more than ten days after the February 5, 2019, order. We reject this argument as
being totally without merit. The application of CR 59.05 is limited to judgments.
The February 5, 2019, order was not a judgment, but rather an interlocutory order
addressing a CR 56 motion and a discovery motion. The civil rules do not prohibit
a court from considering meritorious motions filed during the course of litigation,
nor has Smith cited any legal authority to the contrary.
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CONCLUSION
In conclusion, we affirm the circuit court’s July 16, 2019, order
striking Charles Heath as an expert witness pursuant to CR 37.02 for the reasons
stated. We also affirm the entry of summary judgment for Heritage Hill, albeit
based upon different grounds from that of the circuit court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Mark Joseph Smith, Pro Se David K. Barnes
Louisville, Kentucky Louisville, Kentucky
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