Charlotte A. Howard v. the City of Elizabethtown Kentucky ( 2022 )

RENDERED: JULY 1, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0124-MR
CHARLOTTE A. HOWARD AND
JAMES G. HOWARD APPELLANTS
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 14-CI-01458
THE CITY OF ELIZABETHTOWN
KENTUCKY; AUTO OWNERS
INSURANCE COMPANY; JEREMY
STUBBS; KENTUCKY KAOS; AND
STEVEN WIDMER APPELLEES
AND
NO. 2020-CA-0133-MR
JEREMY STUBBS CROSS-APPELLANT
CROSS-APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 14-CI-01458
CHARLOTTE A. HOWARD AND
JAMES G. HOWARD CROSS-APPELLEES
OPINION
AFFIRMING APPEAL NO. 2020-CA-0124-MR AND
DISMISSING CROSS-APPEAL NO. 2020-CA-0133-MR
** ** ** ** **
BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Charlotte and James Howard (the “Howards”) appeal from
various orders of the Hardin Circuit Court dismissing their claims against
Kentucky Kaos (“Kaos”), Steven Widmer (“Widmer”), Jeremy Stubbs (“Stubbs”)
and the City of Elizabethtown, Kentucky (“City”). Stubbs cross-appeals from the
trial court’s August 14, 2018 order denying his motion for summary judgment.
Following our review, we affirm as to the appeal and dismiss the cross-appeal as
moot.
This is a personal injury action arising out of injuries Charlotte
allegedly sustained on August 30, 2013. According to the complaint, the Howards
were driving past Ring Road Softball Complex in Elizabethtown, Kentucky when a
softball broke the passenger side window of the Howards’ vehicle, striking
Charlotte. At the time of incident, Kaos, a recreational softball team comprised of
military and Department of Defense workers, was hosting a softball tournament at
the complex. They had leased the complex from the City for the day to host the
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tournament. Kaos did not play in the tournament, but was responsible for
managing concessions, serving as umpires, and tournament logistics.
On August 26, 2014, the Howards filed a complaint in Hardin Circuit
Court alleging negligence and loss of consortium against Kaos, the City, and
United States Specialty Sports Association, Inc. (“USSSA”).1 Subsequently, Kaos
moved to dismiss the Howards’ claims against it, arguing that it was an
unincorporated association incapable of being sued under Kentucky law. The trial
court granted the motion. On January 23, 2017, the Howards filed an amended
complaint naming Stubbs, Kaos’ coach, and Widmer, who helped purchase
liability insurance for the event, as defendants.
Shortly thereafter, Stubbs and Widmer filed a motion for summary
judgment, arguing that the Howards’ claims against them were barred by the
statute of limitations. Following an evidentiary hearing, the trial court granted the
motion as to Widmer, finding that the Howards’ claims against Widmer did not
relate back to the original complaint and were thus barred by the statute of
limitations. However, the trial court denied the motion as to Stubbs.
1
The Howards’ claims against USSSA were summarily dismissed on January 27, 2017, and are
not a subject of this appeal.
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The City also moved for summary judgment, arguing the Howards’
claims were barred by Kentucky’s recreational use statute, KRS2 411.190. The
trial court agreed and granted the motion. Finally, following additional discovery,
Stubbs again moved for summary judgment, arguing that the doctrine of res ipsa
loquitur was inapplicable to the Howards’ negligence claim and that their
negligence claim failed as a matter of law. The trial court granted the motion,
making the court’s previous orders final and appealable. This appeal followed.
The Howards argue the trial court erred in granting Kaos’ motion to
dismiss, and in granting summary judgment in favor of the City, Stubbs, and
Widmer. We will address each dismissal in turn. A motion to dismiss, pursuant to
CR3 12.02(f), for failure to state a claim is a question of law, and we review the
issue de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). The pleadings must
be liberally construed in a light most favorable to the nonmoving party, and the
allegations contained in the complaint are taken as true. Id. The trial court should
not grant the motion “unless it appears the pleading party would not be entitled to
relief under any set of facts which could be proved in support of his claim.” James
v. Wilson, 95 S.W.3d 875, 883 (Ky. App. 2002) (citation omitted).
2
Kentucky Revised Statutes.
3
Kentucky Rules of Civil Procedure.
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The trial court granted Kaos’ motion to dismiss, finding that it was an
unincorporated association incapable of being sued under Kentucky law. The
Howards argue this was error because 1) Kaos denied it was an unincorporated
association in its answer and the trial court relied on unsworn statements to the
contrary in granting the motion to dismiss; 2) Kaos waived the issue of its capacity
to be sued by failing to make a “specific negative averment” as required by CR
9.01; and 3) Kaos should be estopped from asserting its lack of capacity to be sued
because the Howards detrimentally relied on its answer denying that it was an
unincorporated association.
Concerning their first point, the Howards’ complaint alleged that Kaos
“is an unincorporated association of persons, which is, and was at the time of the
events set forth herein, present and doing business in the Commonwealth of
Kentucky . . . as a softball team.” Kaos partly denied this allegation in its answer,
asserting that it “is not a legal entity doing any business in the Commonwealth of
Kentucky, and does not have any agents, servants or employees.” The Howards
read Kaos’ answer as denying its status as an unincorporated association. Based
upon this reading, the Howards argue the trial court erred in relying upon unsworn
statements in the motion to dismiss that Kaos is an informal association incapable
of being sued. We disagree.
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First, Kaos’ assertion that it “is not a legal entity doing any business in
the Commonwealth of Kentucky, and does not have any agents, servants or
employees[,]” is clearly countering the complaint’s allegation that it was “doing
business” in Kentucky. This statement would make no sense if the answer is read
as denying Kaos’ unincorporated status. Further, the trial court did not rely on any
unsworn statements in granting the motion, but on allegations in the Howards’ own
complaint which specifically state that Kaos is an unincorporated association. We
note that the Howards have not actually challenged Kaos’ status as such, but
instead argue error on other bases.
We also find that Kaos did not waive the defense of its capacity to be
sued. CR 9.01 requires that “[w]hen a party desires to raise an issue as to the legal
existence of any party or the capacity of any party to . . . be sued . . . he shall do so
by specific negative averment, which shall include such supporting particulars as
are peculiarly within the pleader’s knowledge.” Here, the Howards’ complaint
alleged that Kaos was an unincorporated association. Kaos’ answer to the
complaint asserted that it was “not a legal entity doing business in the
Commonwealth of Kentucky, and does not have any agents, servants or
employees.” Despite the Howards’ claim to the contrary, this was a “specific
negative averment . . . [with] supporting particulars” which “raise[d] an issue as to
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the legal existence” of Kaos as required by the rule. The Howards cite no case law
interpreting CR 9.01 to require anything more.
Finally, the Howards argue that Kaos should be estopped from
asserting its lack of capacity to be sued because they were misled by Kaos’ denial
of its status as an unincorporated association. We find this argument without
merit. As noted above, Kaos never denied its status as an unincorporated
association. It denied that it was doing business in Kentucky. Further, the
Howards’ allegation that they were misled is unreasonable considering that their
own complaint alleged that Kaos was an unincorporated association and that Kaos
asserted that it was “not a legal entity doing any business . . . and does not have
any agents, servants or employees.”
The Howards next argue the trial court erred in granting the City’s
motion for summary judgment. The trial court determined that Kentucky’s
Recreational Use Statute, KRS 411.190, barred the Howards’ claims against the
City. “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.” Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing CR 56.03). “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.
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Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). “The circuit
court’s decision to grant a motion for summary judgment is reviewed de novo.”
Roach v. Hedges, 419 S.W.3d 46, 47 (Ky. App. 2013) (citation omitted). Issues of
statutory interpretation are also reviewed de novo. Dolt, Thompson, Shepherd &
Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607 S.W.3d 683, 687 (Ky.
2020) (citation omitted).
“The cardinal rule of statutory construction is that the intention of the
legislature should be ascertained and given effect.” Jefferson Cty. Bd. of Educ. v.
Fell, 391 S.W.3d 713, 718 (Ky. 2012) (citations omitted). “All statutes of
[Kentucky] shall be liberally construed with a view to promote their objects and
carry out the intent of the legislature, and the rule that statutes in derogation of the
common law are to be strictly construed shall not apply to the statutes of this
state.” KRS 446.080(1).
The legislature enacted the Recreational Use Statute to “encourage
owners of land to make land and water areas available to the public for recreational
purposes by limiting their liability[.]” KRS 411.190(2). To that end, the
“Recreational Use Statute displaces the common law duties with which the
landowner would be charged in the statute’s absence[.]” Collins v. Rocky Knob
Associates, Inc., 911 S.W.2d 608, 612 (Ky. App. 1995), discretionary review
denied (Jan. 10, 1996).
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KRS 411.190 provides in pertinent part:
(3) Except as specifically recognized by or provided in
subsection (6) of this section, an owner of land owes
no duty of care to keep the premises safe for entry or
use by others for recreational purposes, or to give any
warning of a dangerous condition, use, structure, or
activity on the premises to persons entering for such
purposes.
(4) Except as specifically recognized by or provided in
subsection (6) of this section, an owner of land who
either directly or indirectly invites or permits without
charge any person to use the property for recreation
purposes does not thereby:
...
(c) Assume responsibility for or incur liability for any
injury to person or property caused by an act or
omission of those persons.
KRS 411.190(3)-(4). “The words of the statute are absolute and unqualified” and
qualifying property owners owe “no duty to anyone” except under the
circumstances provided in subsection 6. Coursey v. Westvaco Corp., 790 S.W.2d
229, 232 (Ky. 1990).
The Howards argue that the Recreational Use Statute does not apply
because Charlotte’s injury did not occur on the land subject to immunity and she
was not engaged in recreational activity at the time of her injury. The trial court
disagreed, finding that KRS 411.190(4)(c) grants immunity to owners of
recreational use land even when the injury occurs off-premises. The court relied
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upon the Recreational Use Statute’s broad public policy and the specific language
of KRS 411.190(4)(c). We agree with the trial court and find that Kentucky’s
Recreational Use Statute applies under the facts of this case.
No Kentucky case has considered whether Kentucky’s Recreational
Use Statute applies under these specific circumstances. In Poore v. 21st Century
Parks, Inc., 619 S.W.3d 409 (Ky. App. 2020), discretionary review denied (Apr.
20, 2021), a panel of this Court held that the Recreational Use Statute applied to
injuries occurring on off-premises waterways. Plaintiff had gone on a kayaking
trip and had entered the waterway using an access point located on land owned by
the defendant. However, plaintiff was injured at a point on the river not located on
defendant’s land. Plaintiff argued that the Recreational Use Statute did not apply
because defendant did not own the waterway where plaintiff was injured.
Relying upon the implicit holding of Collins v. Rocky Knob
Associates, Inc., and authority from other states, the Court of Appeals held that
Kentucky’s Recreational Use Statute applied to bar plaintiff’s claims because his
claims were “inextricably interwoven with the recreational purpose for which [he]
used the [defendant’s property].” Poore, 619 S.W.3d at 422. Therefore, there is
precedent that the Recreational Use Statute can apply to injuries occurring off-
premises, at least where plaintiff’s use of that property is “inextricably interwoven”
with her use of adjacent property for recreational purposes.
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However, Poore did not consider the issue of whether the
Recreational Use Statute applies to an off-premises injury when the plaintiff is not
engaged in recreational activity. We have located one case from another state
addressing this exact scenario and find its analysis persuasive. In Wang v.
Nibbelink, 208 Cal. Rptr. 3d 461, 464 (Cal. Ct. App. 2016), in a case of first
impression, the California Court of Appeals held that their version of the
Recreational Use Statute applied in situations “where [] recreational users of the
land cause injury to persons outside the premises who are uninvolved in the
recreational use of the land[.]”
In Wang, a horse escaped from property owned by defendants and
trampled plaintiffs as they exited their car to dine at a restaurant on adjacent
property. Plaintiffs sued defendants, but their claim was dismissed when the trial
court granted summary judgment, finding that California’s recreational use statute
barred plaintiffs’ claims. On appeal, plaintiffs argued that the statute did not apply
to off-premises injury to a person not participating in recreational use of the land.
In finding the statute applicable, the Court began its analysis by
observing that California Civil Code § 846 “contains separate immunities shielding
landowners from liability for (1) injuries to recreational users and (2)
injuries caused by recreational users.” Wang, 208 Cal. Rptr. 3d at 470 (citing
Klein v. United States, 235 P.3d 42, 49 (Cal. 2010)). Subsection (a) of the statute
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“absolves landowners of two separate and distinct duties: (1) The duty to keep the
premises safe for recreational users; and (2) the duty to warn recreational users of
hazards.” Id. at 471 (citation omitted). The Court then noted that subsection (c)
“adds an additional immunity that shields the landowner from liability for injuries
caused by (rather than to) recreational users.” Id. (internal quotation marks and
citation omitted).
The Wang Court relied upon the plain language of subsection (c) in
finding that California’s recreational use statute applied to off-premises injury to
non-recreational users:
Subpart (c) of the third paragraph of section 846 is
not limited to injuries to persons on the premises and
therefore on its face encompasses persons off-premises
such as Ms. Wang and her husband. It is not limited to
injuries to recreational participants. Had the Legislature
wanted to narrow the third paragraph’s immunity to
injured recreational users, it could have done so, as it did
in the first paragraph.
Wang, 208 Cal. Rptr. 3d at 474.
The Court further explained its reasoning:
It thus appears section 846, paragraph 3, subpart
(c) eliminates, in the recreational land use context, the
landowners’ otherwise-existing “permission-liability” or
“licensee-control” liability for the conduct of third parties
on the land. Since that liability applied not only to on-
premises injury, but also to off-premises injury to persons
uninvolved in the activity occurring on the defendant’s
land, logic dictates that section 846’s elimination of that
liability should be coextensive with both aspects of that
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liability. Plaintiffs proffer no reason why not. As the
trial court noted, it would make no sense for a landowner
to be immunized from liability toward a bystander inches
within the property line, yet be liable for injury to a
bystander standing inches outside the property line.
Id. at 474-75.
Finally, the Court concluded that this interpretation furthered the
statute’s purpose of encouraging landowners to make their land available for
recreational use by removing the risk of gratuitous tort liability. Id. at 475
(citations omitted). It noted that “[m]aking landowners liable when a recreational
user injures an uninvolved person on adjacent property would undermine this
legislative purpose to encourage private landowners to allow recreational use of
their land.” Id.
We agree with Wang’s reasoning and find it determinative. KRS
411.190 is substantially similar to California Civil Code § 846. Like § 846(c),
KRS 411.190(4)(c) absolves landowners of liability for “any injury to person or
property caused by an act or omission” of a recreational user. (Emphasis added.)
This is distinct from KRS 411.190(3)’s liability protection for injuries to
recreational users. By its plain language, KRS 411.190(4)(c) is not limited to
persons engaged in recreation.
The subsection provides that a landowner shall not be liable for “any
injury to person” caused by a recreational user. (Emphasis added.) The legislature
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chose the words “any injury” and “we assume that the [legislature] meant exactly
what it said, and said exactly what it meant.” Univ. of Louisville v. Rothstein, 532
S.W.3d 644, 648 (Ky. 2017) (internal quotation marks and citation omitted).
Under this subsection, whether the person was engaged in recreation is irrelevant.
If the legislature wanted such limiting language, it could have added it.
Further, this interpretation is consistent with the statute’s purpose,
which is “to encourage owners of land to make land and water areas available to
the public for recreational purposes by limiting their liability[.]” KRS 411.190(2).4
Here, Charlotte alleges she was injured when a softball hit from the
City park crashed into her car window.5 At least under the facts of this case, we
hold the Recreational Use Statute applies. The Howards have not argued that the
City is liable under either of the exceptions in KRS 411.190(6). Therefore, the trial
4
We are aware KRS 411.190(2) provides it will accomplish this purpose by limiting recreational
use landowners’ liability “toward persons entering thereon for such purposes.” However, as
noted above, KRS 411.190(4)(c) is not limited to persons engaged in recreation. When
interpreting statutes, “[w]e presume that the General Assembly intended for the statute to be
construed as a whole, for all of its parts to have meaning, and for it to harmonize with
related statutes.” Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)
(citations omitted). Limiting landowners’ liability for injuries caused to persons off-premises
and not engaged in recreation furthers the statute’s overall scheme “to encourage owners of land
to make land and water areas available to the public for recreational purposes[.]” KRS
411.190(2).
5
We assume that playing softball qualifies as a “recreational purpose” under the statute. The
Howards have not raised this issue on appeal.
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court did not err in finding that the Recreational Use Statute bars the Howards’
claims against the City and in granting summary judgment.
The Howards next argue the trial court erred in granting summary
judgment in favor of Widmer. The trial court determined that the Howards’ claims
against Widmer did not relate back to the original complaint and were thus barred
by the statute of limitations. The Howards do not challenge the trial court’s
substantive ruling, but instead argue it improperly held an evidentiary hearing prior
to granting summary judgment. We find this argument without merit.
The Howards cite no law in support of their argument, but instead
make an argument from silence that “[n]o provision of CR 56 references or allows
for disposition of a motion for summary judgment by a court conducting an
evidentiary hearing.” A quick search of Kentucky case law reveals no instance of
a trial court being reversed for granting an evidentiary hearing on a motion for
summary judgment. In fact, it reveals the opposite. See City of Shepherdsville v.
Nichols Fire Prot. Dist., Nos. 2004-CA-001259-MR and 2004-CA-001261-MR,
2006 WL 1509008, at *4 (Ky. App. June 2, 2006), discretionary review denied
(Nov. 15, 2006) (reversing summary judgment and remanding for an evidentiary
hearing to resolve genuine issue of material fact).6 We find no error.
6
Cited for purposes of illustration, not as persuasive authority per CR 76.28(4)(c).
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Lastly, the Howards argue the trial court erred in granting summary
judgment in favor of Stubbs on their res ipsa loquitur claim. We disagree. Res
ispa loquitur “is an evidentiary doctrine which allows a jury to infer negligence on
the part of the defendant.” Sadr v. Hager Beauty School, Inc., 723 S.W.2d 886,
887 (Ky. App. 1987). “Reliance upon the doctrine of res ipsa loquitur is predicated
upon a showing that (1) the defendant had full control of the instrumentality which
caused the injury; (2) the accident could not have happened if those having control
had not been negligent; and (3) the plaintiff’s injury resulted from the accident.”
Id. Whether to apply this doctrine “is within the trial court’s sound discretion.” Id.The trial court determined that the Howards could not prevail on a res
ipsa loquitur theory because they could not prove that Stubbs had full control of
the instrumentality that caused Charlotte’s injuries. It is undisputed that Stubbs did
not hit the baseball that allegedly stuck the Howards’ car window. Instead, the
Howards argue that Stubbs, as lessee, had control of the softball field. The trial
court disagreed, finding that there was no evidence that “Stubbs was in full control
of the softball field, that he was able to make any changes to the design of the field
or [that] he was able to do any maintenance if needed.”
On appeal, the Howards cite no evidence that Stubbs had full control
over the softball field; instead, they simply argue that a genuine issue of material
fact exists as to this question. However, the burden is on the Howards to prove all
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three elements of res ipsa loquitur. On a more fundamental level, “there is no
evidence as to what the instrumentality was that caused [Charlotte’s] injury, and
there is no evidence that it was under the control or management of [Stubbs].”
Helton v. Forest Park Baptist Church, 589 S.W.2d 217, 219 (Ky. App. 1979). The
complaint alleges that a softball from Ring Road Softball Complex struck the
Howards’ vehicle window. But Charlotte had no cuts or bruises on her head and
the Howards never saw a softball strike the window. “Under Kentucky law, the
doctrine of res ipsa loquitur is inapplicable where the instrumentality producing the
injury or damage is unknown or is not in the exclusive control of the defendant.”
Id. (citation omitted). Because the Howards cannot prove that Stubbs had full
control of the instrumentality that caused Charlotte’s injury, the trial court did not
err when it declined to apply the doctrine of res ipsa loquitur.
We would further note that even assuming Stubbs had full control of
the softball field, and accepting the Howards’ allegations as true, Stubbs would
still be entitled to summary judgment, albeit for a different reason. Under this
hypothetical, Stubbs would fall under the definition of “owner” set out in KRS
411.190(1)(b) as an “occupant . . . in control of the premises[.]” Therefore, Stubbs
would be entitled to immunity pursuant to Kentucky’s Recreational Use Statute,
for the same reasons set forth above pertaining to the City.
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As a final matter, Stubbs cross-appeals from the trial court’s August
14, 2018 order denying his first motion for summary judgment. Because we have
found that Stubbs was entitled to summary judgment above, Stubbs’ cross-appeal
is moot, and we will not address its merits.
Based upon the foregoing, the orders of the Hardin Circuit Court
dismissing the Howards’ claims are affirmed. Stubbs’ cross-appeal is dismissed as
moot.
ALL CONCUR.
BRIEFS FOR BRIEFS FOR APPELLEES
APPELLANTS/CROSS- KENTUCKY KAOS AND STEVEN
APPELLEES: WIDMER, AND
APPELLEE/CROSS-APPELLANT
Harry B. O’Donnell IV JEREMY STUBBS:
Louisville, Kentucky
David S. Strite
Rachel K. Dalton
Louisville, Kentucky
BRIEF FOR APPELLEE THE CITY
OF ELIZABETHTOWN:
Jason Bell
Elizabethtown, Kentucky
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