Steven Coffman v. Ollie Steele

RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0787-MR
STEVEN COFFMAN APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO SCORSONE, JUDGE
ACTION NO. 18-CI-00416
OLLIE STEELE APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
JONES, JUDGE: Steven Coffman appeals an order of the Fayette Circuit Court
granting summary judgment in his action against his landlord, Ollie Steele.
Coffman alleged he sustained serious burn injuries to his feet when he placed them
in a foot bath he filled with hot water in his apartment. In his pleadings before the
trial court, Coffman argued Steele negligently installed a hot water heater, leading
to his injuries, and that Steele retaliated against him when he filed the present
action. He now alleges (1) the circuit court applied the incorrect standard of care;
(2) the circuit court erroneously granted summary judgment on Coffman’s
negligence per se claim; (3) the circuit court erroneously granted summary
judgment on Coffman’s claims under the URLTA;1 and (4) the circuit court
erroneously granted summary judgment on Coffman’s civil claim alleging Steele
tampered with physical evidence. Having carefully reviewed the record in
conjunction with all applicable law, we reverse and remand.
I. BACKGROUND AND PROCEDURAL HISTORY
Ollie Steele owns a number of rental properties. Steven Coffman has
been renting from Steele in various locations for the last twenty years. Coffman
currently resides with his girlfriend at one of Steele’s apartments located in a
multi-unit building at 142 East Fourth Street in Lexington. Up until the events
giving rise to this litigation, Coffman and Steele enjoyed a friendly relationship.
Coffman signed his current lease in 2006.
At 142 East Fourth Street, there are five units. The water heater is
housed in a cellar accessible from the outside of the building. According to
Coffman, the cellar door is typically locked, although Steele disputes this
characterization. All five units are serviced by one 50-gallon residential gas hot
1
Uniform Residential Landlord Tenant Act. Kentucky Revised Statute (KRS) 383.500
authorizes cities, counties, and urban-county governments to enact the provisions of the URLTA.
The Act has been adopted in Fayette County.
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water heater. Coffman’s apartment is located directly above the cellar housing the
water heater. His unit features a hot-water tap and a cold-water tap.
Coffman suffers from diabetes and neuropathy, causing numbness to
his feet.2 To alleviate his pain, he indulges in foot baths. Unfortunately, these foot
baths have resulted in at least two incidents whereby Coffman has burned his feet.
The first incident occurred in 2014. Coffman filled an electric foot bath with water
and soaked his feet for approximately ten minutes. The resulting burns required
Coffman to receive skin grafts, and he was treated for infection after being in the
hospital for nearly two weeks. Coffman’s girlfriend informed Steele of the
incident but stated it was her fault for not checking the temperature of the water.
Coffman’s burns eventually healed, and he elected not to pursue legal action
against Steele. Immediately after the incident, Steele had his regular plumber,
Mike Watson, check the water heater. Watson informed Steele everything was set
on the normal settings. Prior to 2014, Steele never received any complaints about
the water temperature in the building.
Steele replaced the water heater in 2015 and installed the new unit
himself. Using the instructions provided by the supply store, he set the
temperature control to “A,” the recommended setting, using the chart provided by
2
On one occasion, Coffman reportedly did not notice he had stepped on a nail.
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the store where he purchased the water heater. The “A” setting is 125 degrees
Fahrenheit (F). A plumber examined the water heater prior to Steele’s deposition
and recorded the temperature at 138 degrees F.
The second incident, the subject of the present action, occurred in
April of 2017. Coffman filled a foot bath with hot water from the bathroom sink.
He checked the temperature with his hand. Believing the water was a little too hot,
he added cold water and decided the temperature was acceptable. He only soaked
his feet for two to three minutes, but then he noticed his feet were burned the
following day. Coffman underwent follow-up treatments to address the burns.
Following the incident, Coffman informed Steele he had been burned.
Steele spoke to the other tenants, who informed him there was nothing wrong with
their water temperature. Steele did not test the water with his hand or a
thermometer. Watson inspected the heater and he reported everything appeared
normal, on the “A” setting. However, Watson did not check the temperature of the
water in Coffman’s apartment.
In May of 2017, Coffman sent a preservation of evidence letter to
Steele, notifying him legal action would be forthcoming. In February of 2018,
Steele replaced the pipes at the apartment after they purportedly froze; however,
other reports have stated the pipes burst. He also turned the water to the building
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off several times to replace a washer and the pipes.3 As a result, there is no proof
in the record showing the water heater’s setting at the time of the injury. Watson
testified the pipes had not burst but had been leaking in a few spots. He stated he
did not touch the actual water heater, other than connecting the new pipes to the
top of the heater. He further stated it was unnecessary for him to turn the water off
to accomplish this task. Coffman would later argue these activities constituted
tampering with the physical evidence relevant to his suit against Steele.
Regarding the installation of the water heater, Watson testified a
master plumber must install a water heater, pull a permit, and have a site inspector
inspect it and mark it with a tag, according to the Kentucky State Plumbing Code
(KRS 318.010 et seq.). The water heater at 142 East Fourth Street does not contain
such a tag. Watson further testified there are no rules or regulations requiring a
water heater to be set at any particular temperature setting.
Coffman filed suit in Fayette Circuit Court alleging various tort-based
claims against Steele. First, Coffman claimed Steele was negligent regarding the
installation, choice of setting, and/or maintenance of the hot water heater. Second,
Coffman claimed negligence per se, asserting Steele violated the regulations and
statutes required for the installation of a hot water heater. Third, Coffman claimed
3
The replacement of the washer occurred the day prior to Coffman’s inspection of the water
heater.
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violations, including retaliation, under the URLTA. Fourth, and finally, Coffman
claimed in the alternative that Steele committed a civil tort amounting to tampering
with physical evidence. After the taking of depositions, Steele moved for
summary judgment. The trial court granted summary judgment, relying on the
common law rule that landlords do not owe a duty for known conditions of the
land. This appeal followed.4
II. STANDARD OF REVIEW
Our standard of review on a motion for summary judgment is well-
established.
Summary judgment is to be “cautiously applied and
should not be used as a substitute for trial.” Granting a
motion for summary judgment is an extraordinary
remedy and should only be used “to terminate litigation
when, as a matter of law, it appears that it would be
impossible for the respondent to produce evidence at the
trial warranting a judgment in his favor and against the
movant.” The trial court must review the evidence, not
to resolve any issue of fact, but to discover whether a real
fact issue exists.
4
While Coffman’s brief contains citations to the record, an appellant’s brief must also “contain at
the beginning of the argument a statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner.” Kentucky Rules of Civil
Procedure (CR) 76.12(4)(c)(v). “A brief may be stricken for failure to comply with any
substantial requirement” of the appellate rules for briefing. CR 76.12(8). In this case, we have
elected not to strike Coffman’s brief because the record is relatively short and the citations
provided throughout have allowed us to conduct a meaningful review. However, counsel is
reminded that “[i]t is not the function or responsibility of this court to scour the record on appeal
to ensure that an issue has been preserved.” Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App.
2019). Other panels may not exercise such leniency should counsel fail to follow the briefing
requirements in future appeals.
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Higdon v. Buisson Investment Corporation, 485 S.W.3d 752, 756 (Ky. App. 2016)
(quoting Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901, 905 (Ky.
2013)). Furthermore,
a trial court must view the record in a light most
favorable to the non-moving party, resolving all doubts in
its favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807
S.W.2d 476, 480 (Ky. 1991). The trial court may grant
summary judgment only if it concludes that no disputed
issues of material fact exist for trial. Id. On appeal of a
summary judgment, we must determine whether the trial
court correctly found that the moving party was entitled
to a judgment as a matter of law. Id. Because summary
judgment involves questions of law, we need not defer to
the trial court’s conclusions; accordingly, we review the
record de novo. Blevins v. Moran, 12 S.W.3d 698, 700-
01 (Ky. App. 2000).
Waugh v. Parker, 584 S.W.3d 748, 750-51 (Ky. 2019).
III. ANALYSIS
The general rule with respect to landlord-tenant relationships is that
there is no obligation upon the landlord to repair the leased premises in the absence
of a special agreement to do so. True v. Fath Bluegrass Manor Apartment, 358
S.W.3d 23, 26 (Ky. App. 2011). Nor will a landlord be liable for personal injuries
“caused by defects in the leased premises unless the condition is unknown to the
tenant and not discoverable through reasonable inspection.” Id. (quoting Pinkston
v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 190 (Ky. App. 2006)
(internal citations omitted)); Milby v. Mears, 580 S.W.2d 724 (Ky. App. 1979).
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Upon granting summary judgment, the circuit court relied on this general rule.
However, as with every general rule, there are exceptions. One of the exceptions is
the common area exception.
When determining whether a residential landlord is liable
for injuries sustained on leased property, there is a
critical distinction between properties leased wholly by
one tenant, and properties leased by numerous tenants.
When 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.” However, when a
portion of the premises is retained by the landlord for the
common use and benefit of numerous tenants, the
landlord must exercise ordinary care to keep common
areas in a reasonably safe condition.
Jaimes v. Thompson, 318 S.W.3d 118, 119-20 (Ky. App. 2010) (quoting Carver v.
Howard, 280 S.W.2d 708, 711 (Ky. 1955)).
This distinction is perhaps best illustrated by comparing Waugh,
supra, and Warren v. Winkle, 400 S.W.3d 755 (Ky. App. 2013). In Waugh, the
tenant of a rented single-family home fell off the porch due to a poorly maintained
railing. 584 S.W.3d at 750. The tenant, from her prior inspection of the home,
was aware of the condition of the railing. She sued her landlord for personal
injuries, alleging a statutory duty under the URLTA constituted negligence per se,
and for violations of the common law. Id. at 751, 753. Significantly, the Waugh
Court noted that the facts of the case did not involve a common area. Id. at 754.
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The Kentucky Supreme Court ultimately found the landlord was not liable to the
tenant because she was well aware of the condition of the railing. Id. at 754.
In contrast, in Warren, an apartment dweller brought a negligence
action against her landlords, claiming they had failed to keep the roof in a
reasonably safe condition when the ceiling collapsed inside her rented apartment.
400 S.W.3d at 756. We found the ceiling inside her rented apartment was not a
common area. Id. at 759-60. However, we found the area between the roof and
the ceiling was a common area, and the tenant did not have a responsibility to
maintain that area. Id. at 761.
The Restatement (Second) of Torts § 361 extends liability to “[a]
possessor of land who leases a part thereof and retains in his own control any part
which is necessary to the safe use of the leased part[.]” The lessor is liable if he or
she “(a) could have discovered the condition and the risk involved, and (b) could
have made the condition safe.” Id.; see also Warren, 400 S.W.3d at 760; Higdon,
485 S.W.3d 752. Comment b of the Restatement (Second) of Torts § 361 extends
to the maintenance of water systems. A water heater that services all units within a
multi-unit building falls squarely within that category.
Furthermore, Comment a of the Restatement (Second) of Torts § 361
provides that “a tenant’s knowledge of a dangerous condition will not absolve the
landlord from liability.” Warren, 400 S.W.3d at 761; see also Davis v. Coleman
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Management Co., 765 S.W.2d 37, 39 (Ky. App. 1989). This reasoning applies
when a landlord retains exclusive control of an area. Warren, 400 S.W.3d at 761.
Moreover, we find Comment b, Illustration 2 of the Restatement
(Second) of Torts § 361 to be particularly persuasive:
A leases to B, a dentist, an office in which A supplies hot
and cold water from a central heating plant. Through the
carelessness of A’s janitor, to whom A entrusts the
repairing of the heating system, the hot water is permitted
to run in the cold water pipes. C, a patient of B, goes to
the washstand to wash his hands and turns on the cold
water spigot, which admits boiling hot water, scalding
C’s hands. A is subject to liability to C.
Based on the foregoing, we are of the opinion that the trial court
should have allowed this matter to proceed to a jury given Steele’s duty as a
landlord over common areas, the common nature of the water heater, and its
location. There is a question of fact that remains as to whether the cellar door was
locked or unlocked. Coffman might be able to control the two water taps within
his apartment; however, the pipes and the water heater are not under his exclusive
control. The pipes and the water heater are under the exclusive control of the
landlord, for the common benefit of all tenants. The landlord has a duty to exercise
ordinary care with respect to common areas and to keep them in a reasonably safe
condition. Higdon, 485 S.W.3d at 756.
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We express no opinion as to the underlying merits of the case. A jury,
as the trier of fact, can decide whether Steele exercised ordinary care with respect
to the water heater maintenance, repair, or installation. That Coffman had
knowledge of his susceptibility to burns and was on notice due to his prior burns is
likewise a matter for the jury to consider. We therefore reverse and remand to
allow this matter to proceed toward a jury trial.
Because we have determined the trial court erroneously applied the
common law landlord-tenant rule and reverse on that basis, we do not need to
address Coffman’s remaining claims. However, as guidance to the trial court we
note the following. The trial court, for unknown reasons, did not address
Coffman’s claims for retaliation. Instead, the trial court appeared to mislabel this
claim as one for personal injuries under the URLTA. On remand, the trial court is
directed to address whether Steele’s actions amounted to “unlawful ouster,
exclusion, or diminution of services” (Record at 335) as pleaded in the complaint.
We would also note on remand that the trial court properly addressed
Coffman’s claim for spoliation of evidence. Coffman pleaded a civil claim for
tampering with physical evidence under a negligence per se theory. See KRS
524.100. Coffman pleaded this claim in the alternative, in the event he is unable to
prevail on his claim at trial. It has long been held there is no tort for spoliation of
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evidence in Kentucky. Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997).
Rather, the proper remedy, when applicable, is a missing evidence instruction. Id.IV. CONCLUSION
For the foregoing reasons, we reverse the Fayette Circuit Court’s
order granting summary judgment and remand for further proceedings consistent
with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jessica Winters Katherine Hornback
Lexington, Kentucky Lexington, Kentucky
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