Curtis Grace v. Keith National Corporation ( 2022 )

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1101-MR
CURTIS GRACE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 20-CI-02113
KEITH NATIONAL CORPORATION APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: The Appellant, Curtis Grace, filed the underlying premises
liability claim against the Appellee, Keith National Corporation (“Keith
National”). The Fayette Circuit Court summarily dismissed Grace’s complaint on
the basis that Keith National did not own the property. Having reviewed the record
and being otherwise sufficiently advised, we affirm.
I. BACKGROUND
On July 19, 2019, at approximately 9:00 p.m., Curtis Grace was
walking near the corner of West Main Street and Newtown Pike in Lexington,
Kentucky, when he was struck with the urgent pangs of an overfilled bladder. In
short order, he left the sidewalk and his companion behind in search of a safe
location to relieve himself, and he thought that he found one. To reach the place in
question, Grace traversed a narrow, grassy area that hosted a few utility poles and
guy wires; to the right of it was a concrete wall perhaps three feet high, topped by a
line of thick, trimmed hedges several feet higher. Grace proceeded parallel to the
wall, where the grassy area continued to what was perhaps a five-foot gap between
the wall and, standing perpendicular to it, a long metal guardrail. The grass up to
the point of the guardrail had been mowed; and, as Grace represents to this Court
in his reply brief, the “trimming and mowing made the area look appealable [sic] to
Appellant to provide him a shielded area to relieve himself.”
As such, Grace ventured through the gap, into the slightly overgrown
vegetation beyond, and continued the few more yards toward his chosen spot – just
past where the wall and hedges on his right ended, where he believed a quick step
down from the slightly overgrown vegetation and a small ledge would lead him to
some leafy, private bushes. Unfortunately, what Grace regarded as leafy, private
bushes were the tops of trees; what he believed was a small ledge was the top of a
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retaining wall; and what he believed would be a quick step down was a thirteen-
foot drop. Grace fell, sustained injuries, and months later filed a negligence action
in Fayette Circuit Court against Keith National, whom he regarded as the property
owner.1
Following a period of motion practice and discovery, the circuit court
dismissed Grace’s case. In its order granting Keith National’s summary judgment
motion, it explained the unrebutted evidence of record demonstrated Keith
National was not the owner of the property in question, nor in legal control of it.
Rather, as demonstrated in an affidavit and map provided by Keith National’s
expert engineer and surveyor, Tom Hatfield, the land Grace had traversed and
eventually fallen upon was part of a recorded right-of-way in favor of the
Commonwealth of Kentucky, Department of Highways, which abutted Keith
National’s property. Furthermore, the circuit court rejected Grace’s alternative
argument that Keith National had effectively and voluntarily assumed
responsibility and liability for the condition of the right-of-way by maintaining
some of the grass in that location.2 This appeal followed.
1
Grace also filed suit against another entity, Keith Monuments Company. His suit against Keith
Monuments Company was dismissed and, as evident from the caption of this opinion, that entity
was not named as an appellee.
2
Keith National also moved for summary judgment on the basis that, assuming it could be
considered a landowner of the property in question, Grace was a trespasser. The circuit court did
not address this point, nor do we.
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II. STANDARD OF REVIEW
As discussed, Grace’s allegations of error emanate from the summary
dismissal of his negligence claim. In weighing the foregoing allegations of error:
“[t]he standard of review on appeal of a summary
judgment is whether the circuit judge correctly found that
there were no issues as to any material fact and that the
moving party was entitled to a judgment as a matter of
law.” Pearson ex rel. Trent v. Nat’l Feeding Systems,
Inc., 90 S.W.3d 46, 49 (Ky. 2002). Summary judgment
is only proper when “it would be impossible for the
respondent to produce any evidence at the trial
warranting a judgment in his favor.” Steelvest, Inc., v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). In Steelvest, the word “‘impossible’ is used in a
practical sense, not in an absolute sense.” Perkins v.
Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). In ruling
on a motion for summary judgment, the court is required
to construe the record “in a light most favorable to the
party opposing the motion . . . and all doubts are to be
resolved in his favor.” Steelvest, 807 S.W.2d at 480. A
party opposing a summary judgment motion cannot rely
on the hope that the trier of fact will disbelieve the
movant’s denial of a disputed fact, but must present
affirmative evidence in order to defeat a properly
supported motion for summary judgment. Id. at 481.
Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 789-90 (Ky. App. 2012).
“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 . . . .” Adams v. Sietsema, 533
S.W.3d 172, 177 (Ky. 2017) (quoting Shelton v. Ky.
Easter Seals Soc’y, Inc., 413 S.W.3d 901, 905 (Ky.
2013)).
Phelps v. Bluegrass Hospitality Mgt., LLC, 630 S.W.3d 623, 627 (Ky. 2021).
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III. ANALYSIS
On appeal, Grace maintains that Keith National was responsible for
the condition of the right-of-way, and his argument to that effect is three-fold.
First, Grace asserts Keith National should have foreseen that someone could have
been injured there. In support, he notes that one deposed3 witness had indicated
vagrants had been spotted in the area from which he fell; and he also points to a
picture of the area, which he believes depicts a “well-trodden path”4 created by the
vagrants. However, to prove premises liability negligence, the onus is upon the
claimant to prove “duty, breach, causation, damages.” Carter v. Bullitt Host, LLC,
471 S.W.3d 288, 298 (Ky. 2015). Here, the circuit court summarily dismissed
Grace’s claim against Keith National based upon what it deemed was his failure to
evince the “duty” aspect of his claim. And, if Keith National owed no legal duty to
Grace relative to the area of his fall, it is irrelevant whether Keith National should
have foreseen that someone could have been injured there.
3
Grace and other witnesses were apparently deposed below, but none of their depositions were
made a part of the certified appellate record. All that is available to this Court in that regard are
pages of depositions that the parties attached to their various motions and responses as exhibits.
4
The picture of what Grace characterizes as a “well-trodden path” depicts a close-up of a utility
pole to the left; the concrete wall and hedgerow approximately three feet to the right; and a thick
ground covering of brown and green crabgrass stretching perhaps six feet beyond that point.
Proceeding from there, the “path” is several feet long, consisting of several more feet of ankle-
to-shin-high weeds and scrub, terminating in a location where two guy wires are hooked into the
ground, and where the top of the retaining wall – from which Grace fell – presumably is found.
A canopy of foliage is beyond it. From the angle of the picture, the top of the retaining wall is
apparently covered with the same consistency of weeds and scrub leading up to it.
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Second, Grace argues that “Unbeknownst to Appellant, the mowing,
trimming, and maintenance of the area was performed by Keith National and had
been performed by Keith National since its purchase of the property in 1997.”
(Emphasis added.) It is without question that a landowner owes certain common
law duties to individuals on its property. However, the unrebutted evidence of
record demonstrates Keith National was not the record landowner of the property
at issue in this matter, and there is no contention of adverse possession. The
ownership of the property is not in dispute for purposes of this appeal, and the
maintenance of rights-of-way held by the Department of Highways is a
responsibility devolving upon that agency. Indeed, removing or pruning
vegetation on a right-of-way held by the Department of Highways requires
permission from that agency.5٫6 Apart from that, Grace presents no authority
supporting that a decades-long practice of sporadic mowing on another’s property
can imbue a non-owner with ownership responsibilities.7
5
See generally 603 Kentucky Administrative Regulation (KAR) 5:155.
6
Jim Stamper was the contractor who performed landscaping for Keith National since it
acquired ownership of its abutting property. Stamper testified he mowed the grassy area at issue
up to the guardrail once every Sunday; that he trimmed the hedgerow topping the concrete wall
“once a year probably, maybe twice;” but that he was unaware of who owned the grassy area or
hedgerow, and that no representative of Keith’s ever told him to do that work. As Grace
represents on page 7 of his appellate brief, those areas “would also be in the right-of-way,
according to Keith National’s surveyor.”
7
Even in the adverse possession context, sporadic mowing – even when paired with the
payment of taxes on the property – “has been held insufficient adverse holding to acquire title[.]”
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Third, Grace asserts “[b]y continued maintenance of the area in
question, Keith National not only gave the impression of a safe area free of
hazards, its landscaping also hid the dangerous drop off.” Grace is arguing Keith
National created a hazard on public property by mowing the grassy area up to the
guardrail and trimming the hedgerow that topped the concrete wall. In other
words, Grace’s contention is that this level of groundskeeping created a
particularly enticing area to one such as himself in search of a safe and private
outdoor area to urinate.
We disagree. As an aside, our courts have long held that the owner of
property abutting a public right-of-way is liable to persons injured in consequence
of a dangerous condition of the right-of-way created by some affirmative act of the
owner or by some act of negligence on his part constituting a nuisance. Equitable
Life Assur. Soc. of United States v. McClellan, 286 Ky. 17, 149 S.W.2d 730, 732
(1941); see also Rollins v. Satterfield, 254 S.W.2d 925, 927 (Ky. 1953); Reibel v.
Woolworth, 301 Ky. 76, 190 S.W.2d 866, 867 (1945); Hippodrome Amusement
Co. v. Carius, 175 Ky. 783, 195 S.W. 113, 115-16 (1917); Stephens’ Adm’r v.
Deickman, 158 Ky. 337, 164 S.W. 931, 933 (1914); Covington Saw Mill & Mfg.
Co. v. Drexilius, 120 Ky. 493, 87 S.W. 266, 267, 27 Ky. L. Rptr. 903 (1905).
Phillips v. Akers, 103 S.W.3d 705, 709 (Ky. App. 2002) (citing Noland v. Wise, 259 S.W.2d 46,
48 (Ky. 1953); Vaughan v. Holderer, 531 S.W.2d 520, 522 (Ky. 1975)).
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Accordingly, there are occasions in which a property owner may be held liable for
injuries occurring on adjoining public property.
Here, Grace is effectively inviting this Court to engage in speculation
regarding his mental and other processes, asking us to assume that, but for Keith
National’s mowing and trimming, he would not have gone where he went.8
However, assuming the law previously cited above applies in this context, it cannot
be said that Keith National’s sporadic mowing of the grassy area up to the
guardrail and trimming of the hedges created a dangerous or defective condition,
increased its risk, or placed Grace in a more vulnerable position. The dangerous
condition at issue in this instance was the sheer drop-off from a retaining wall on
public property abutting Keith National’s property. And, while Keith National’s
mowing and trimming may have made the general area somewhat more
aesthetically pleasing to passersby, Grace cites nothing of record demonstrating its
work “hid” the drop-off or made it less visible than it would have been otherwise.
IV. CONCLUSION
The circuit court committed no error in dismissing Grace’s premises
liability negligence claim against Keith National, as Keith National neither owned
8
To the extent it is pertinent, it is unknown what Grace believed or was thinking at any relevant
time. He cites no evidence to that effect in his brief, nor is any such evidence part of the
appellate record.
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the premises upon which Grace was injured, nor created any injurious hazard upon
it. We therefore affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kellie M. Collins R. Craig Reinhardt
Taylor M. Shepherd Lexington, Kentucky
Lexington, Kentucky
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