Kent E. Culp v. Si Select Basketball

RENDERED: MARCH 17, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1439-MR
KENT E. CULP APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE TIM KALTENBACH, JUDGE
ACTION NO. 20-CI-00283
SI SELECT BASKETBALL AND
PHILLIP R. SWINFORD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND COMBS, JUDGES.
CETRULO, JUDGE: Appellant Kent E. Culp appeals from a McCracken Circuit
Court Order granting summary judgment in favor of the Appellees and dismissing
his claims of negligence.
I. FACTUAL AND PROCEDURAL HISTORY
Appellee Phillip Riley Swinford (“Director Swinford”) was the
founder and director of Appellee SI Select Basketball (“SI Basketball”), a youth
basketball program based in Southern Illinois (collectively “Swinford”). To raise
money for SI Basketball’s five youth basketball teams, Swinford organized,
promoted, and hosted two or three youth basketball tournaments each year.
Swinford hosted two such tournaments at the Paducah Regional Sports Plex, LLC
(“the Sports Plex”),1 one in April 2018, and another in April 2019. This action
resulted from the events at the April 2019 tournament (“the Tournament”).
The Tournament included approximately 60 teams, with a total of 600
to 700 players between the ages of 14 and 17. One of the teams invited to the
Tournament was coached by Keyon Chavez Menifield (“Coach Menifield”). Prior
to the invitation, Director Swinford and Coach Menifield had had only one other
interaction; the two coached against each other in a 2018 Missouri basketball
tournament and their communication at that time was “cordial.” At the time
Director Swinford invited Coach Menifield’s team to participate, and at the time of
the Tournament, Coach Menifield had criminal convictions for assault and drug
1
The Sports Plex was an 80,000 square foot multi-use sports and recreation complex in
McCracken County, Kentucky.
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trafficking and was wanted on an active arrest warrant in Indiana.2 There was no
evidence that Director Swinford knew of this.
An agent of SI Basketball hired Appellant Kent E. Culp (“Referee
Culp”) to officiate at the Tournament. On April 6, Referee Culp officiated a game
between Coach Menifield’s team and a team from Edwardsville, Illinois (“the
Game”). Coach Menifield’s team lost in overtime. Deposition testimony later
indicated that there was no apparent hostility – before or during the game –
between Referee Culp and Coach Menifield. However, immediately after the
Game, Coach Menifield struck Referee Culp from behind, hitting him in the head
with his fist and knocking him unconscious and causing serious injury.3 Coach
Menifield then collected his team and left the Sports Plex. He was later
apprehended at a nearby hotel and charged with second-degree assault.
In March 2020, Referee Culp filed a complaint in McCracken Circuit
Court alleging four counts of negligence: 1) Swinford should have known of
Coach Menifield’s violent tendencies by conducting a criminal background check
on the invited coaches; 2) Swinford failed to establish safety policies and
procedures for the Tournament; 3) Swinford failed to use reasonable care to protect
2
The warrant was issued after Coach Menifield assaulted a clerk at a hotel he was staying at
during another youth basketball tournament.
3
Referee Culp was transported to Vanderbilt Medical Center in Nashville with injuries including
a brain bleed, broken collar bone, crack in his sinus cavity, concussion, and bruising to his face.
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invitees; and 4) Swinford failed to provide security guards for the Tournament.
Referee Culp alleged Swinford’s negligence was a substantial factor in causing the
personal injuries he suffered from the attack and that the risk of an altercation at
the Tournament was reasonably foreseeable. However, the trial court disagreed,
finding that
[a]s [a] promoter[] of the [T]ournament, [Director]
Swinford had a duty to protect [Referee Culp] from the
reasonably foreseeable criminal actions of a third party
. . . . Because the evidence is uncontroverted that [Coach
Menifield’s] assault of [Referee Culp] was not reasonably
foreseeable, [Referee Culp] cannot prove a breach of
[Director] Swinford’s standard of care.
Therefore, in November 2021, the McCracken Circuit Court
dismissed Referee Culp’s claims and granted Director Swinford’s motion for
summary judgment, pursuant to Kentucky Rules of Civil Procedure (“CR”) 56.03.4
Referee Culp appealed.
II. STANDARD OF REVIEW
The standard of review upon appeal of an order granting 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
4
CR 56.03 allows for summary judgment if “the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.”
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a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing
CR 56.03). Upon a motion for summary judgment, all facts and inferences in the
record are viewed in a light most favorable to the non-moving party and “all
doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,
807 S.W.2d 476, 480 (Ky. 1991). The trial court “must examine the evidence, not
to decide any issue of fact, but to discover if a real issue exists.” Id. Thus, a
summary judgment looks only to questions of law, and we review de novo. Brown
v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016).
III. ANALYSIS
Under Kentucky law, a negligence action requires proof of “the
existence of a duty, breach thereof, causation, and damages.” Boland-Maloney
Lumber Co. v. Burnett, 302 S.W.3d 680, 686 (Ky. App. 2009) (citations omitted).
Duty is a question of law for the courts to determine, while breach and injury are
questions of fact for a jury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky.
2003). Our Kentucky Supreme Court has explained that
[n]o liability is imposed when the defendant is deemed to
have acted reasonably under the given circumstances. So
a more precise statement of the law would be that a
landowner’s duty to exercise reasonable care or warn of or
eliminate unreasonable dangers is not breached. “When
courts say the defendant owed no duty, they usually mean
only that the defendant owed no duty that was breached
or that he owed no duty that was relevant on the facts.”
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And without breach, there can be no negligence as a matter
of law.
Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 911-12 (Ky. 2013)
(citations omitted).
Here, the parties agree that all persons have a duty to use care to
prevent foreseeable injury. See Kendall v. Godbey, 537 S.W.3d 326, 331 (Ky.
App. 2017) (citation omitted). On appeal, the parties actually agree a duty existed.
However, they disagree as to whether a duty was breached. More specifically,
Referee Culp argues that (a) issues of material fact exist; (b) foreseeability is a
question of fact for the jury, not a question of law for the court; and (c) assuming
foreseeability is an issue for the court, the trial court erred in granting summary
judgment because “assaultive conduct” was reasonably foreseeable.
To the contrary, Director Swinford argues the trial judge appropriately
determined that (a) there was no issue of material fact; (b) precedent does not
prevent summary judgment in issues of foreseeability; and (c) Director Swinford
did not breach a duty to Referee Culp to protect him from Coach Menifield’s
assault because the attack was not reasonably foreseeable.
While the basic criteria for a negligence action have remained
consistent in Kentucky, Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 289 (Ky.
2015), the application of the rule of foreseeability has evolved in the last decade.
See Shelton, 413 S.W.3d at 908.
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In Shelton, the Kentucky Supreme Court clarified Kentucky tort law
to “modernize” the analysis and to “eliminate unfair obstacles to the presentation
of legitimate claims.” Shelton, 413 S.W.3d at 904. The Shelton Court shifted the
conversation around foreseeability: instead of being an aspect of the existence of a
duty, the Court determined that foreseeability should be treated as a factor within
the breach analysis. Id. at 903-04. However, that shift is limited to open-and-
obvious cases, not cases involving third-party criminal actions, like the matter
before us. Walmart, Inc. v. Reeves, ___ S.W.3d ___, 2023 WL 2033691, at *3
(Ky. Feb. 16, 2023) (not yet final) (“Shelton’s cabining of foreseeability to a
breach analysis is thus limited only to open-and-obvious cases.”).5
In Reeves, there was an attack upon a customer in a parking lot of a
Lexington area Walmart. Id. at *1. The customer had exited the store and reached
her car safely before two unknown men attempted to rob her. Id. She filed suit
against Walmart, alleging negligence for not protecting against the assault and for
not having a security presence to protect patrons. Id. Walmart moved for
summary judgment which the trial court granted, noting that discovery had not
shown other alleged criminal acts at or near the location, or of sufficient character
5
Reeves, 2023 WL 2033691, at *3 (not yet final) was published well after the parties filed briefs
in this matter. The parties relied on Shelton’s applicability, but as stated, the recent Supreme
Court decision in Reeves makes Shelton inapplicable to the facts before us. A petition for
rehearing was filed on March 8, 2023.
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and number, as to have made this assault foreseeable to Walmart. Id. On appeal, a
panel of this Court reversed, holding that Shelton’s foreseeability shift was
intended to apply to all negligence claims, relying on Carter, 471 S.W.3d at 297.
Reeves, supra. However, in Reeves, our Supreme Court clarified that our reliance
on Carter was based on dicta and in error. Id. at *3.
To clarify, our Supreme Court stated in Reeves:
Shelton’s cabining of foreseeability to a breach
analysis is thus limited only to open-and-obvious cases.
Even if it were to extend beyond open-and-obvious cases,
however, it certainly could not extend so far as cases
involving third-party criminal actions. Landowners
cannot control the actions of third parties on their property,
making these cases markedly different from those
involving the man-made or naturally occurring aspects of
a property capable of maintenance or curative measures.
Additionally, extending Shelton to third-party
criminal activity would create an economically untenable
reality for business owners and, ultimately, their
customers.
....
[A] landowner has a duty to protect patrons from third-
party acts only if he or she “knows of activities or conduct
of other patrons or third persons which would lead a
reasonably prudent person to believe or anticipate that
injury to a patron might be caused,” and if he or she can
reasonably safeguard against them. [Napper v. Kenwood
Drive-In Theatre Co., 310 S.W.2d 270, 271 (Ky. 1958)].
Reeves, 2023 WL 2033691, at *3 (not yet final).
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The Court held that Reeves needed to provide evidence that a third-
party criminal act involving attempted robbery and assault was reasonably
foreseeable to Walmart. Id. at *4. Reeves’s evidence was unable to reach this
threshold because the criminal acts she presented were too distinct factually,
occurred too distantly in time, and failed to establish a pattern that could lead
Walmart to anticipate the kind of crime committed against Reeves. Id. Moreover,
the Court stated that “foreseeability is specific to the premises at issue[.]” Id.
Thus, in the matter before us, whether Director Swinford had a duty to protect
Referee Culp from Coach Menifield’s assault hinges upon whether the assault was
reasonably foreseeable or could have been anticipated.
Here, in 10 years of coaching and promoting tournaments at the
Sports Plex, Director Swinford had never experienced a fight among participants.
The owner/operator of the Sports Plex testified that there had been four or five
instances of verbal arguments between fans at previous events, but he knew of no
physical assaults. Referee Culp produced “run reports” to the Sports Plex from
local law enforcement; however, those reports included only one account of an
assault by one participant upon another player in January 2017. That was not at an
event promoted by Director Swinford, but rather at a league game promoted by
some other renter of the facility. Referee Culp testified that he had refereed
between 10 and 15 tournaments at the Sports Plex; he had never been concerned
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about violence there previously; nor, had he seen any assaults on other participants
or other referees. In 20 years as a referee, he had never experienced a fight or
assaultive behavior. Finally, he stated that the punch from Coach Menifield was
not signaled by anything that occurred during the game or the entire day. He had
no clue that the punch was coming. Consistent with Reeves, the evidence
presented does not establish a pattern that could have led Director Swinford and/or
SI Basketball to anticipate the assault on Referee Culp. Since Coach Menifield’s
criminal acts were not reasonably foreseeable, the trial court did not err in granting
summary judgment.
IV. CONCLUSION
Accordingly, we AFFIRM the judgment of the McCracken Circuit
Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Brian S. Katz William E. Pinkston
Paducah, Kentucky Paducah, Kentucky
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