Bruce Shumake v. Sandra Miller ( 2022 )

RENDERED: AUGUST 19, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0616-MR
BRUCE SHUMAKE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 19-CI-006808
SANDRA MILLER AND
MARVIN MILLER APPELLEES
OPINION
AFFRIMING
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BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: Appellant Bruce Shumake (Shumake) challenges the summary
judgment order dismissing his claim for damages arising out of a fall which
occurred on the property owned by Appellees (the Millers) and leased to Shaleesha
Dixon (Dixon). Because this Court finds that the Jefferson Circuit Court did not
err in dismissing Shumake’s claim, we affirm.
The Millers have owned the property located at 1217 Lillian Avenue
in Louisville, Kentucky for over 25 years. They have earned rental income on the
property for more than 18 years. On October 1, 2018, they leased the property to
Dixon. On January 28, 2019, Shumake visited the property as the dinner guest of
Dixon. Upon exiting the premises through the backyard, he fell into a hole,
sustaining injuries. He filed suit in the Jefferson Circuit Court against the Millers,
alleging that they had negligently maintained the property.
The parties commenced discovery and the depositions of Shumake
and the Millers were taken on May 19, 2020. On October 2, 2020, the trial court
entered its order setting the matter for jury trial on June 1, 2021, and establishing
deadlines for expert disclosure, witness identification, the filing of dispositive
motions, the tendering of proposed jury instructions, and the filing of motions in
limine. Depositions were to be completed at least 14 days before the scheduled
trial date.
On January 20, 2021, the Millers moved for entry of summary
judgment, arguing that, absent a statutory provision to the contrary, liability for
Shumake’s injuries lies with Dixon. Rogers v. Redmond, 727 S.W.2d 874 (Ky.
App. 1987). On February 12, 2021, Shumake disclosed George Boehnlein as an
expert witness and relied upon the information contained in that disclosure to
support his response to the Millers’ motion for summary judgment. Shumake’s
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response also included photos which he claimed depicted the yard where he fell, as
it was in 2011 and as it was after his fall. He argued that the photos were sufficient
to demonstrate the existence of genuine issues of material fact regarding the
Millers’ knowledge of the hole’s existence. Oral arguments were scheduled and
heard on April 26, 2021. On April 28, 2021, the trial court granted the Millers’
motion for summary judgment, on the grounds that Shumake’s “action should lie
against the tenant[.]” Shumake timely appealed the trial court’s order.
“Appellate review of a summary judgment involves only legal
questions and a determination of whether a disputed material issue of fact exists.
So we operate under a de novo standard of review with no need to defer to the trial
court’s decision.” Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901,
905 (Ky. 2013).
In Rogers, 727 S.W.2d at 875, the Court held that “when a third
person is injured on rented premises his cause of action, except for certain
situations, lies against the tenant rather than the landlord.” See Starns v. Lancaster,
553 S.W.2d 696 (Ky. App. 1977). More recently, in Dutton v. McFarland, 199
S.W.3d 771 (Ky. App. 2006), the Court reiterated that where the landlord does not
retain possession or control over the leased property, the only claim for damages
must lie against the tenant.
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As stated in Jaimes v. Thompson, 318 S.W.3d 118, 119 (Ky. App.
2010) (citing Carver v. Howard, 280 S.W.2d 708, 711 (Ky. 1955)), the Court held
that “[w]hen a tenant maintains complete control and possession over the premises
and the landlord has no contractual or statutory obligation to repair, the landlord is
only liable for ‘the failure to disclose known latent defects at the time the tenant
leases the premises.’” In Warren v. Winkle, 400 S.W.3d 755, 762 (Ky. App. 2013),
the Court held that landlords “can only be liable if they had actual or constructive
notice of a defective condition. Pease v. Nichols, 316 S.W.2d 849, 851 (Ky.
1958).”
The Millers and Shumake submitted deposition testimony to the effect
that neither they nor Dixon knew of the existence of the hole. Shumake attempted
to demonstrate that the Millers knew of the defect by producing the photographs
submitted within his response to the Millers’ motion for summary judgment. The
first photograph is an aerial shot provided by Google Maps dating from 2011
which purports to show a cone covering the general area where the hole was
alleged to be located. Shumake claims that the second photograph represents the
hole as it appeared immediately after his fall. However, neither of those
photographs were properly authenticated. Therefore, the testimony that the Millers
had no knowledge of the hole’s existence remains uncontroverted.
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On appeal, Shumake also argues that the Millers had contractual and
statutory duties which would subject them to liability for his injuries. Paragraph 9
of the Lease of Property between the Millers and Dixon states that, “Bi-Monthly
inspections will be conducted on the 1st day of said month; notice to bi-
monthly inspections is given via contract.” In this case, there has been no
showing that the contractual obligations contained in the lease were ever intended
to extend beyond Dixon to her guests. Further, in Schneder v. Erdman, 752
S.W.2d 789 (Ky. App. 1988), the Court made clear that, even where there is an
agreement that the landlord was to perform repairs, the party seeking damages
must show that the landlord had “notice of the defect” which resulted in the injury.
While Shumake seems to argue that, had the Millers complied with their
contractual duty to inspect, they might have discovered the defect, no evidence of
such notice was presented to the trial court.
Finally, Shumake asserts that the Millers had a statutory duty pursuant
to the Uniform Residential Landlord Tenant Act, or URLTA. That Act sets forth
the duties of a landlord, including the duty to comply with building and housing
codes, to make repairs, to maintain the mechanicals associated with the premises,
and to furnish water. KRS1 383.595 (1)(a)-(e). However, as held in Miller v.
Cundiff, 245 S.W.3d 786 (Ky. App. 2007), there is no “clear intention on the part
1
Kentucky Revised Statutes.
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of the legislature to depart from the common-law standard for landlord liability.”
Id. at 789. See also Waugh v. Parker, 584 S.W.3d 748, 752 (Ky. 2019). Once
again, Shumake fails to demonstrate the existence of any genuine issue of material
fact which would demonstrate that the “common-law standard” has been met.
Accordingly, the order of the Jefferson Circuit Court granting
summary judgment dismissing Shumake’s complaint is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Brian Brownfield Robert L. Steinmetz
Kelly Brownfield Louisville, Kentucky
Sarah Jane Dufour
Louisville, Kentucky
ORAL ARGUMENT FOR ORAL ARGUMENT FOR
APPELLANT: APPELLEES:
Brian Brownfield Robert L. Steinmetz
Kelly Brownfield Louisville, Kentucky
Sarah Jane Dufour
Louisville, Kentucky
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