Belinda Tarpley-Sottung v. Anderson & Ramsey Park Plaza, LLC ( 2023 )

RENDERED: MARCH 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1173-MR
BELINDA TARPLEY-SOTTUNG APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 19-CI-02241
ANDERSON & RAMSEY PARK
PLAZA, LLC APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
MCNEILL, JUDGE: Belinda Tarpley-Sottung (“Belinda”) appeals from the
Fayette Circuit Court’s summary judgment dismissing her negligence claim against
Anderson and Ramsey Park Plaza, LLC (“Anderson”), finding that Anderson is not
liable for the injuries Belinda sustained when she allegedly slipped on a wet floor
inside her apartment. Finding no error, we affirm.
Belinda is a tenant in an apartment complex owned by Anderson. On
the afternoon of June 21, 2018, Belinda’s spouse, Sherri Tarpley-Sottung,
discovered water on the dining room floor of their apartment, which was later
identified as coming from the heating, ventilation, and air conditioning (HVAC)
unit. Sherri placed towels down to soak up the water and reported the issue to
Anderson. Around noon the next day, maintenance fixed the HVAC leak and
placed a fan inside the dining room to help dry the floor. It is undisputed that the
floor was completely dry within several days and that no other issues concerning
the HVAC unit were ever reported.
When Belinda arrived home from work that afternoon, she replaced
the wet towels on the floor with dry ones. She also moved the fan to the other side
of the room, concerned about the cord getting wet. That evening, Belinda went to
a baseball game, turning the fan off before she left. Belinda noticed the towels she
had put down were damp.
Belinda returned from the game around 9:00 p.m. While attempting
to walk through the dining room, she slipped and fell, injuring her right knee.1
Belinda testified in her deposition that the lights were on in the room, and that she
1
Other evidence in the record suggests that Belinda may have tripped over the fan cord. For
purposes of appeal, we must view the evidence in the light most favorable to Belinda. Therefore,
we will assume that Belinda slipped and fell on a wet floor.
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did not see any water on the floor. However, when she tried to get up, water
seeped from under the floor.
Subsequently, Belinda filed suit against Anderson in Fayette Circuit
Court, alleging that Anderson was negligent in repairing the water leak,
proximately causing her injuries. Belinda sought damages in the form of medical
expenses, lost wages, and pain and suffering. Anderson moved for summary
judgment, arguing that a landlord is only liable for injuries caused by defects
unknown to the tenant. It further argued that a landlord’s liability for failure to
repair is limited to the cost of the repair. Belinda countered that a landlord can be
liable where its negligent repair causes a tenant’s injuries or gives a deceptive
appearance of safety.
At a hearing on the motion for summary judgment, Belinda argued
that Anderson’s efforts to remedy the water leak were insufficient. Instead of
merely placing a fan, Belinda contended that Anderson should have taken up the
floor and removed the water underneath. In support, Belinda offered the testimony
of Jimmy Miller, a contractor with experience in water cleanup. Miller testified
that if he had performed the cleanup, he would have taken up the floor and then
removed the water underneath with vacuums, fans, and dehumidifiers.
However, Miller conceded that he could not say that water would
never dry on its own without these measures. He further acknowledged that before
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doing anything he would have assessed the severity of the leak. Finally, he
admitted that he had never been to Belinda’s apartment and did not know how
much water had been present.
Following the hearing, the trial court granted the motion for summary
judgment, finding that Anderson did not violate any standard of care it may have
owed to Belinda as a matter of law. The court noted that Anderson fixed the leaky
HVAC unit and provided a fan to dry the floor. Belinda made no further
complaints about the leak to suggest to Anderson that its repairs were insufficient.
In fact, she placed Anderson’s fan outside of the apartment, indicating that the
issue was resolved. Finally, Belinda was aware the floor was wet, changing the
towels several times and using her own fan to help dry the floor. This appeal
followed.
On appeal of a summary judgment, we must determine “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); CR2 56.03. The trial court must
view the record in a light most favorable to the non-moving party, and all doubts
must be resolved in his favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807
S.W.2d 476, 480 (Ky. 1991). “Because summary judgment involves only legal
2
Kentucky Rules of Civil Procedure.
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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.”
Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citations omitted).
Belinda argues the trial court erred in granting summary judgment
because there is an issue of fact as to whether Anderson negligently repaired the
water leak, citing Miller’s testimony. Belinda further argues the trial court failed
to properly consider the Supreme Court’s holding in Shelton v. Kentucky Easter
Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), which modified the open and
obvious doctrine so that it is no longer an absolute bar to recovery from a land
possessor.
Milby v. Mears, 580 S.W.2d 724 (Ky. App. 1979), sets forth the
general principles governing landlord-tenant liability:
It has been a longstanding rule in Kentucky that a tenant
takes the premises as he finds them. The landlord need
not exercise even ordinary care to furnish reasonably safe
premises, and he is not generally liable for injuries
caused by defects therein. Nevertheless, it is an
established principle that a landlord has a duty to disclose
a known defective condition which is unknown to the
tenant and not discoverable through reasonable
inspection.
Id. at 728 (citation omitted). “In summary, landlords generally do not owe any
duty to a tenant except to warn of any latent dangerous conditions that may exist
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on the property.” Waugh v. Parker, 584 S.W.3d 748, 752 (Ky. 2019) (citation
omitted).
Under this common-law standard, Anderson would not be liable for
Belinda’s injuries as a matter of law. The water leak was not a latent dangerous
condition but one that was known to Belinda. Belinda knew the floor was wet,
having replaced the wet towels on the floor with dry ones. These towels were later
found damp, suggesting that water was still present on the floor. She turned off the
fan when she left for the ballgame, slowing the drying process. Thus, Belinda
should have known or at least could have known through reasonable inspection
that the floor was still wet at the time she slipped and fell.
Perhaps foreseeing this result, Belinda argues that her claim is one for
negligent repair, and therefore the above law does not apply.3 In True v. Fath
Bluegrass Manor Apartment, 358 S.W.3d 23 (Ky. App. 2011), this Court
recognized a potential cause of action for negligent repair where a landlord’s
repairs were the proximate cause of the tenant’s injuries, citing Mahan-Jellico
Coal Co. v. Dulling, 139 S.W.2d 749 (Ky. 1940) and the RESTATEMENT (SECOND)
3
In general, a landlord has no obligation to repair the leased premises in absence of a special
agreement to do so. True v. Fath Bluegrass Manor Apartment, 358 S.W.3d 23, 26 (Ky. App.
2011). Here, Belinda’s complaint alleges that pursuant to the parties’ lease agreement, Anderson
was responsible for making certain necessary repairs to the premises. Anderson, at least
partially, admitted as much in its answer to the complaint. Further, it is undisputed that
Anderson repaired the HVAC unit. Therefore, for purposes of appeal, we presume that
Anderson had a duty to repair, either pursuant to the lease agreement, or because it assumed such
duty.
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OF PROPERTY: LANDLORD AND TENANT, § 17.7 (1977). Such a claim, we held, was
“premised on the tenant’s reliance that a defect has been remedied[]” and
“[r]ecovery is permitted only if a repair resulted in an increased danger that was
unknown to the tenant or if the negligent repair gave the deceptive appearance of
safety.” True, 358 S.W.3d at 27.
However, any negligent repair claim also fails as a matter of law
because here there was no negligent repair. It is undisputed that Anderson fixed
the HVAC leak and that the water on the floor completely dried within several
days. Belinda admits in her deposition that there were no further issues with water
in the dining room area.
Anderson’s repairs were also not the proximate cause of Belinda’s
injuries. There is no evidence the repairs resulted in an increased danger unknown
to Belinda, or that the repairs gave the deceptive appearance of safety. Anderson’s
repairs consisted of fixing the leaky HVAC unit and supplying a large fan to help
dry the floor. Neither of these actions resulted in any increased danger to Belinda.
As noted above, Belinda was aware the floor was wet, having changed the wet
towels on the floor that afternoon. When she returned from the ballgame that
evening, at a minimum, she should have been aware of the possibility of water on
the floor. While Belinda claims she saw no water, nothing Anderson did led to any
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deceptive appearance of safety. Anderson made no representation that the floor
was dry, and in fact, provided a fan, indicating the opposite.
Further, Miller’s opinion that he would have cleaned up the water
differently did not create an issue of fact as to Anderson’s negligence to avoid
summary judgment. Miller admitted that he had never been to the apartment to
assess the leak and did not know how much water had been present. In fact, Miller
never actually testified that Anderson’s failure to remove the floor and dry the
water underneath was negligent. He conceded the water might dry on its own.
Simply put, there is no evidence to support a negligent repair claim.
Belinda also argues the trial court failed to properly consider Shelton,
supra, when ruling on the motion for summary judgment.4 We disagree. In
Shelton, our Supreme Court shifted the focus in open-and-obvious cases away
from duty towards breach of duty. Shelton, 413 S.W.3d at 910. In the process,
“the question of foreseeability and its relation to the unreasonableness of the risk of
harm [was] properly categorized as a factual one, rather than a legal one.” Id. at
4
We have serious doubts whether Shelton is applicable to Belinda’s case. Shelton concerned
land possessor/invitee liability and premised its reasoning on the Restatement (Second) of Torts,
Section 343A, which by its language, pertains to land possessors and invitees. Neither
Anderson, as a landlord, nor Belinda, as a tenant, meet the definition of land possessor or invitee
under the Restatement. Further, the nature of the relationship between a business owner and
invitee is different than that between a landlord and tenant. At least one other panel of this court
has held that Shelton does not apply to landlord/tenant liability cases. See McCombs v. Mitts
Rentals, LLC, No. 2018-CA-000930-MR, 2019 WL 2713048, at *3 (Ky. App. Jun. 28, 2019).
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916. Although her argument is a little unclear, Belinda apparently misreads
Shelton as precluding summary judgment in any open-and-obvious case.
However, Shelton was clear that under its approach “summary judgment remains a
viable concept[.]” Id. If reasonable minds could not differ on whether a defendant
breached its duty of care or it would be unreasonable to find breach or causation,
summary judgment is still proper. Id.Further, the trial court did, in fact, consider Shelton and its antecedent,
Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 388 (Ky. 2010),
when ruling on the motion for summary judgment and determined that Anderson
did not breach the duty it owed (as a landlord) as a matter of law. Therefore, we
find no error.
Based upon the foregoing, the Fayette Circuit Court’s order granting
summary judgment in favor of Anderson is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
David A. Weinberg R. Craig Reinhardt
Lexington, Kentucky Lexington, Kentucky
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