Nicholas J. Pendergrast v. Nicklaus Design, LLC

RENDERED: AUGUST 26, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0148-MR
NICHOLAS J. PENDERGRAST APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 20-CI-000111
NICKLAUS DESIGN, LLC APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Nicholas J. Pendergrast (“Pendergrast”) appeals from the
Jefferson Circuit Court’s order granting summary judgment in favor of Nicklaus
Design, LLC (“Nicklaus Design”). Finding no error, we affirm.
On January 22, 2019, Pendergrast, a maintenance worker at Valhalla
Golf Club in Louisville, Kentucky, was injured when the utility vehicle he was
driving hit a patch of ice and slid off the side of a pedestrian/cart bridge. Just
under a year later, Pendergrast filed a complaint in Jefferson Circuit Court alleging
that Nicklaus Design, a Florida limited liability company specializing in golf
course design, was negligent in failing “to maintain and keep the . . . bridge safe
for the use of Valhalla patrons and/or employees, to exercise reasonable care for
the safety of Plaintiff, and to eliminate or warn of dangerous conditions on the
premises.”1
After answering the complaint, Nicklaus Design filed a motion for
summary judgment alleging it had “never provided any design, renovation,
maintenance, or construction work or services pertaining to the bridges or cart
paths at Valhalla Golf Club.” Therefore, it argued it owed “no duty to Plaintiff
with respect to his accident in January 2019.” Accompanying the motion were
affidavits from James H. Schnare II, Vice President and General Counsel of
Nicklaus Design, and Martin C. Cochran, Senior Design Associate of Nicklaus
Design.
Schnare’s affidavit said that in 2011, Nicklaus Design entered into a
“design services agreement” with Valhalla to renovate the golf course. The
contract set forth the specific nature of the services to be performed: (1) rebuild
and re-grass 23 green complexes; (2) install a new irrigation system; (3) re-
1
The complaint’s other allegations of negligence against other parties are not relevant to this
appeal.
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construct approximately one-third of the bunker complexes and install new
drainage and sand; (4) re-construct the clubhouse end of the driving range facility,
specifically the tee boxes and short game area; (5) install drainage as necessary;
and (6) re-build all mounding where needed in order to improve the maintenance
and better accommodate the gallery.
The affidavit further stated that Nicklaus Design did not provide any
design services at Valhalla pertaining to bridges or cart paths, although the
company “did identify limited sections of the original cart paths on the boundaries
of certain golf holes which needed to be relocated due to changes in the design
made by the [c]ompany.” Schnare said the company generally excludes bridges
from their scope of work because bridges must be reviewed or certified by
professionals licensed under local law to produce such designs.
Cochran’s affidavit said he was responsible for managing the 2011
renovation at Valhalla. He affirmed that at no time during the 2011 renovation did
the company “provide any design or consulting services or otherwise participate in
any construction work pertaining to any of the bridges on the premises of Valhalla
Golf Club.” As to cart paths, the only work performed involved relocating small
portions affected by changes to the golf holes themselves. None involved changes
to cart paths near hole No. 2, where Pendergrast’s accident occurred.
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On May 1, 2020, Pendergrast tendered interrogatories and requests for
production to Nicklaus Design. It responded, consistent with its tendered
affidavits, that it did not design or construct any bridge at Valhalla, and specifically
provided no services in connection with the bridge where the accident occurred. It
denied being in possession of any documents related to the design or construction
of any bridges and objected to producing evidence unrelated to the incident.
Nicklaus Design also provided the names of all personnel who provided services at
Valhalla, and its Field Book designs for hole No. 2, showing its scope of work on
that hole during the 2011 redesign. The drawing does not depict the bridge where
the accident occurred.2
In response to the motion for summary judgment, Pendergrast moved
for additional time to conduct discovery on Nicklaus Design’s potential liability,
including the chance to depose Nicklaus Design representatives. The trial court
granted Pendergrast’s motion on July 9, 2020, ordering that all discovery be
completed by September 30, 2020 and that Pendergrast respond to the motion for
summary judgment by October 30, 2020. In late August, counsel for both parties
corresponded about Nicklaus Design’s objections to discovery requests, and on
2
This finding was made by the trial court in a footnote. Copies of the document in the record are
of poor quality and it is unclear to this Court whether the document depicts the site of the
accident. However, Pendergrast has not challenged this finding on appeal, therefore we assume
its veracity.
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September 23, 2020, seven days before the discovery deadline, Pendergrast’s
counsel requested to take depositions of Nicklaus Design representatives, but
beyond that, no attempts to conduct additional discovery appear to have been
made.
On September 28, 2020, Pendergrast filed a motion to compel and for
an extension of time to complete discovery. In the motion, Pendergrast
specifically objected to Nicklaus Design not offering “full responses” to its
Interrogatory No. 5 and Requests for Production Nos. 6, 15, 21, and 24. These
requests generally sought photos of the bridge near hole No. 2 and any documents
relating to work performed by Nicklaus Design near hole No. 2 and more generally
at Valhalla. Nicklaus Design had objected to providing any documents not related
to the area of the accident, but generally asserted that it did not possess any
responsive documents. As noted above, it did provide its Field Book designs for
hole No. 2.
Thereafter, Pendergrast responded to the motion for summary
judgment, arguing that Nicklaus Design had not adequately responded to its
discovery requests, and that promotional materials on its website created an issue
of fact as to whether its scope of work has included bridges and cart paths in the
past. On January 7, 2021, the trial court granted the motion for summary
judgment, finding that Nicklaus Design owed no duty to Pendergrast concerning
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the allegedly dangerous condition since there was no evidence it had performed
any services relating to the design, construction, or maintenance of the subject
bridge and adjacent cart path. This appeal followed.
“The standard of review on appeal of a 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.” Coomer v. CSX Transp. Inc., 319 S.W.3d 366, 370 (Ky. 2010). “The record
must be viewed in a light most favorable to the party opposing the motion
for summary judgment 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).
“Because summary judgment involves only legal 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 Corporation,
56 S.W.3d 432, 436 (Ky. App. 2001).
Pendergrast argues on appeal that genuine issues of material fact exist
as to Nicklaus Design’s duty precluding summary judgment. Because the
existence of a legal duty is a question of law, Pathways, Inc. v. Hammons, 113
S.W.3d 85, 89 (Ky. 2003), we construe his argument to be that the trial court erred
in finding Nicklaus Design owed no duty to Pendergrast. We disagree.
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“Before a defendant can be held liable on a theory of negligence, there
must exist a duty owed to the plaintiff by the defendant.” Sheehan v. United Servs.
Auto. Ass’n, 913 S.W.2d 4, 6 (Ky. App. 1996) (citing Mullins v. Commonwealth
Life Insurance Co., 839 S.W.2d 245, 247 (Ky. 1992)). “If no duty is owed by the
defendant to the plaintiff, there can be no breach thereof, and therefore no
actionable negligence.” Jenkins v. Best, 250 S.W.3d 680, 688 (Ky. App. 2007)
(citation omitted).
Pendergrast argued below, and does now on appeal, that as an
architect, Nicklaus Design “owe[s] a duty to patrons, premises owners, their
workers and other invitees exposed to their creations to prevent foreseeable
injuries.” He also cites the general rule that “every person owes a duty to every
other person to exercise ordinary care in his activities to prevent foreseeable
injury.” Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 908 (Ky.
2013) (citations omitted). However, implicit in these statements is the assumption
that Nicklaus Design was involved in the design or construction of the dangerous
condition. The trial court found the evidence of Nicklaus Design’s involvement in
the design or construction of the bridge where Pendergrast’s accident occurred
insufficient to impose a duty upon it to warn of the bridge’s potential risk.
On a motion for summary judgment, “[t]he moving party bears the
initial burden of showing that no genuine issue of material fact exists, and then the
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burden shifts to the party opposing summary judgment to present at least some
affirmative evidence showing that there is a genuine issue of material fact for
trial.” 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) (internal quotation marks
and citation omitted). Here, Nicklaus Design presented the affidavits of its vice-
president and lead designer of the 2011 Valhalla renovation. Both testified that the
company performed no services pertaining to the bridge where Pendergrast’s
accident occurred. These statements were consistent with Nicklaus Design’s
discovery responses and were uncontradicted by the evidence of record.
Therefore, it was incumbent upon Pendergrast to present at least some
affirmative evidence that Nicklaus Design was involved in the design or
construction of the bridge. Pendergrast cites to promotional materials on Nicklaus
Design’s website referencing work performed on cart paths, specifically an
interview with Nicklaus Design founder Jack Nicklaus discussing the 2006
renovation the company performed at Valhalla which mentions relocating a cart
path, as enough evidence to impose a duty and withstand summary judgment.
However, none of this evidence pertains to pedestrian/cart bridges, only cart paths,
much less the specific bridge in question.
Pendergrast claims this evidence contradicts statements in Nicklaus
Design’s affidavits that it does not provide services relating to cart paths.
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Therefore, he argues, because these statements are unreliable, Nicklaus Design’s
claims of not designing or constructing the bridge at Valhalla are called into
question. However, this evidence is not inconsistent with statements in both
affidavits that Nicklaus Design relocated portions of certain cart paths to
accommodate changes to hole design. The fact remains there is no evidence
Nicklaus Design had any role in designing or constructing the bridge in question.
“[S]peculation and supposition” are not enough to survive a motion for summary
judgment. O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citation omitted).
Further, “the party opposing summary judgment 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 587 (internal quotation marks and citation omitted).
Pendergrast also argues that granting summary judgment was
premature and he should have been given additional time to conduct discovery,
including taking depositions, to further determine the extent of Nicklaus Design’s
work at Valhalla. In determining whether summary judgment was properly
granted, we “must also consider whether the trial court gave the party opposing
the motion an ample opportunity to respond and complete discovery before the
court entered its ruling.” Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010).
This decision is reviewed for abuse of discretion. Id. “Under our abuse of
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discretion standard of review, we will disturb a ruling only upon finding that the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014)
(internal quotation marks omitted) (quoting Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999)).
“The question is not whether the nonmoving party ‘has
actually completed discovery’ – rather, the question is whether the nonmoving
party ‘has had an opportunity to do so.’” Bowlin Grp., LLC v. Rebennack, 626
S.W.3d 177, 188 (Ky. App. 2020), review denied (Aug. 18, 2021) (citing Hartford
Ins. Group v. Citizens Fidelity Bank & Tr. Co., 579 S.W.2d 628, 630 (Ky. App.
1979)). Here, the trial court gave Pendergrast the opportunity to complete any
discovery he desired. In response to Nicklaus Design’s motion for summary
judgment, Pendergrast requested an additional two months “to complete the
discovery he deems necessary[.]” The trial court granted the motion and extended
discovery an additional two months. In total, Pendergrast had eight months from
the initiation of the lawsuit until the discovery deadline to conduct discovery. For
five of those months he was aware that Nicklaus Design denied it performed any
services relating to the bridge and thus, any liability. We believe this was enough
time to conduct discovery on the limited issue of Nicklaus Design’s duty.
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Therefore, we find no abuse of discretion and summary judgment was properly
granted.
Finally, Pendergrast claims the trial court erred in effectively denying
his motion to compel and request for additional discovery time by ruling on the
motion for summary judgment. “We review a trial court’s denial of a motion to
compel discovery for abuse of discretion.” Louisville & Jefferson Cty. Metro.
Sewer Dist. v. T+C Contracting, Inc., 570 S.W.3d 551, 572 (Ky. 2018) (citation
omitted).
In ruling on the motion for summary judgment, the trial court noted
that it had reviewed the motion to compel and was “comfortable that [Nicklaus
Design’s] answers to interrogatories are substantively responsive and complete . . .
[and] give rise to no issue of material fact as to its involvement with the bridge in
question.” Nicklaus Design responded substantively to each of the disputed
discovery requests, either by stating it had no responsive documents to produce
(based upon its denial of its involvement in designing or constructing bridges) or
by producing responsive documents (the Field Book designs for hole No. 2). Its
only objection was to producing evidence unrelated to the area of the accident and
thus not relevant to whether it owed a duty of care to Pendergrast. Pendergrast
makes no argument as to how these documents would be “reasonably calculated
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to lead to the discovery of admissible evidence.” CR3 26.02(1). We find no abuse
of discretion.
Based upon the foregoing, the order of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Shea W. Conley James M. Burd
Josh Autry Christopher Piekarski
Lexington, Kentucky Louisville, Kentucky
3
Kentucky Rules of Civil Procedure.
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