Opinion
NO. 2017-CA-001661-MR
06-26-2020
ANGELA PENIX APPELLANT v. MT. STERLING WATER & SEWER; JUDY O. MOORE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOUGLAS MOORE; PATRICIA HILLEBRANDT; AND KENTUCKY EMPLOYERS' MUTUAL INSURANCE COMPANY APPELLEES
BRIEFS FOR APPELLANT: Guy E. Hughes Lexington, Kentucky BRIEF FOR APPELLEE MT. STERLING WATER & SEWER: Erica K. Mack Lexington, Kentucky BRIEF FOR APPELLEE JUDY O. MOORE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOUGLAS MOORE: John J. Ellis Morehead, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM E. LANE, JUDGE
ACTION NO. 14-CI-90055 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. ACREE, JUDGE: Appellant, Angela Penix, appeals the order of the Montgomery Circuit Court granting separate summary judgments in favor of appellees, Mount Sterling Water & Sewer (MSWS) and Judy Moore, individually and as executrix of the estate of her late husband, Harold Douglas Moore. Penix injured her right foot and leg after stepping in a Mount Sterling city water meter box on property leased by the Moores. After careful review, we affirm both summary judgments.
Harold Douglas Moore was named as a defendant in this action, along with his wife Judy, but he passed away while the matter was pending before the circuit court. The circuit court revived the action in the name of Harold's estate.
FACTS AND PROCEDURE
On March 27, 2013, early in the morning, Angela Penix arrived at the home of Patricia Hillebrandt on Rice Drive in Mt. Sterling. She was working as a visiting teacher of homebound students for the Montgomery County Board of Education. This was not her first visit to the Hillebrandt home. As Penix left the home, around 9:00 AM, and was about to get in her vehicle, she stepped in an in-ground water meter box in the front yard. She seriously injured her foot and leg. Paramedics eventually arrived and transported Penix for medical treatment.
Hillebrandt called MSWS and workers were sent to secure the meter cap. They arrived at 10:30 AM and found the meter cap secured. They photographed the secured meter cap.
Hillebrandt occupied the premises where Penix was injured. It is a single-family residence she leased from the property owners, the Moores. She had occupied the residence since 2008 pursuant to a written lease agreement.
There is no dispute that the water meter box was last accessed by MSWS prior to Penix's accident on August 17, 2012. On that date, MSWS employee Brent Helton assisted a plumber in repairing a water leak at the property by turning the water line on and off. To do so, Helton acknowledged removing the lid from the water meter box but testified that he secured the lid over the water meter box before he left the property. In addition to having no records indicating the water meter box was accessed after August 17, 2012, MSWS also has no record of any calls, complaints, or notifications regarding the water meter box until the day of Penix's injury.
On March 26, 2014, Penix filed complaints against Hillebrandt, the Moores, and MSWS. There is no return of service on Hillebrandt and she did not appear in the action. The court granted Kentucky Employers' Mutual Insurance Company leave to file an intervening complaint to recover a workers' compensation benefit that it paid on Penix's behalf. After discovery concluded, the Moores and MSWS filed motions for summary judgment, which the circuit court granted. Penix appealed.
STANDARD OF REVIEW
The standard of review 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); CR 56.03. "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 Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
Kentucky Rules of Civil Procedure. --------
ANALYSIS
Penix is appealing two distinct summary judgments. We address each separately. Summary judgment in favor of Mount Sterling Water Services
Penix notes, as does this Court, that the specific reason for granting summary judgment is not fully clear from the order. Consequently, she argues that the record includes sufficient proof: (1) that MSWS had a duty to maintain its property (the water meter box) in a reasonably safe condition; (2) that MSWS breached that duty by leaving the water meter cap unsecured and by failing to follow its own policies and procedures concerning the schedule for checking water meters; and (3) that based upon the evidence and permissible inferences, there are more than sufficient grounds to allow a jury's determination whether MSWS's failures were a substantial factor in causing Penix's accident.
MSWS does not deny that it owes a duty. The law says, "[I]t is the duty of a water company to maintain in a reasonably safe condition its meters located in or near a street or sidewalk of a city, and that leaving a meter cap unlocked is violative of this duty." Louisville Water Co. v. Cook, 430 S.W.2d 322, 324 (Ky. 1968) (citing Lutz v. Louisville Water Co., 291 Ky. 31, 163 S.W.2d 29 (1942)). We understand the word "unlocked" to mean unsecured. Id. at 323 (issue was whether "appellant was negligent in its failure to have the meter cap securely fastened down"). The proof in this case is undisputed that the "meter cap" which covers the hole where this meter is housed is secured by a tightened hex bolt, not capable of locking. The duty owed is rather clear.
However, "liability depends on whether [the water company] had any actual notice of the condition or whether the condition had existed for a sufficient length of time to charge it with constructive notice." Id. at 324. This expression of how liability arises presumes the meter cap was not secured when the accident occurred. In this case, there is a genuine issue regarding this fact.
Penix says "her foot dropped into what she now knows was an open water meter box." (Appellant's brief, at 1.) MSWS workers dispute that fact. When they arrived on the scene, about an hour and a half after Penix's accident, they found the meter cap secure and took photographs as proof. However, although this fact is genuinely disputed, it is not a fact that is material to whether summary judgment was properly granted in favor of MSWS.
As noted, liability depends upon whether MSWS had actual or constructive notice that the meter cap was unsecured. Penix alleges it was unsecured. Analysis of whether MSWS had notice of that fact can proceed by taking that allegation as true and presuming that at the moment of the accident the meter cap was not secured. The circuit court did proceed on that presumption, as does this Court.
There is no question on this record that MSWS had no actual notice. Penix presented no such evidence. She asserts, however, that the circuit court should have found constructive notice. We disagree.
To establish constructive notice, Penix needed to present evidence showing how long the meter cover was unsecured. Louisville Water, 430 S.W.2d at 324. Penix presents no such evidence. Although her testimony is sufficient to create a genuine issue whether the meter cap was unsecured on the date of her injury, it establishes nothing about the condition of the meter cap prior to the date of the accident.
When constructive notice was the issue in Louisville Water Co. v. Cook, the plaintiff's key evidence on the notice issue that prevented summary judgment was: (1) the testimony of four witnesses who established the meter cap was unsecured for a minimum of nine days, and (2) that "no one from the water company had visited, examined, or inspected the meter" for more than a month before the accident. Id. Penix focuses on the second part of that equation, emphasizing that MSWS had not examined the meter cap for more than seven months. She misunderstands the nature of that second part. It is direct evidence of the lack of actual notice. Its value as evidence to support a finding of constructive notice is entirely dependent on establishing the first part - how long the condition of the unsecured meter cap went unattended by the water company.
In each of the cases on constructive notice cited in Louisville Water, there was proof of how long the condition existed before causing the plaintiff's injury. Louisville Water, 430 S.W.2d at 324. In Commonwealth, Dep't of Highways v. General & Excess Ins. Co., a road hazard case the Court in Louisville Water cited regarding constructive notice, "[t]here was sufficient probative evidence produced . . . that the hole had been in the road for a month or longer[.]" 355 S.W.2d 695, 697 (Ky. 1962). Similarly, in Freeport Transport, Inc. v. Commonwealth, Dep't of Highways, the "condition had existed . . . eight months." 408 S.W.2d 193, 194 (Ky. 1966). And in Commonwealth, Dep't of Highways v. Maiden, "[t]here was evidence that the hole had been there for some six months." 411 S.W.2d 312, 313 (Ky. 1966).
MSWS's evidence is that the meter cap was secured after its worker temporarily shut off the water to allow a plumber's repair in the residence. That was on August 17, 2012. Penix acknowledges that "was the last time anyone accessed the water meter box at 621 Rice Drive." (Appellant's brief, at 4.) She also "acknowledges that she cannot tell this Court who [subsequent to August 17, 2012,] removed the water meter lid or when the same occurred." (Appellant's brief, at 6 (emphasis added).) That accurately portrays the state of this record after the discovery period ended - there is no evidence that the meter cap was unsecure prior to the date of Penix's accident. As stated in another meter cap case, City of Elizabethtown v. Baker:
[U]nless it is proved that the [water utility] had knowledge of the defect or unless such knowledge can be imputed by the length of time the defect had existed, the city is not liable for the injury.373 S.W.2d 593, 595 (Ky. 1963) (emphasis added).
The order granting summary judgment references the lack of MSWS's constructive knowledge and notes there was "no evidence of when [the meter cap] became unsecured." Again, MSWS's liability is dependent upon its actual or constructive notice. Penix presented no evidence of actual notice. More pertinent to this case, she presented no evidence to support that the meter cap was unsecured earlier than the date of her accident; therefore, she cannot prove MSWS had constructive notice. Summary judgment for MSWS was appropriate. Summary judgment in favor of Judy Moore
The circuit court granted summary judgment in favor of Judy Moore, individually and as executrix of her husband's estate, after finding the Moores, as lessors of the property, relinquished all control of the premises to their tenant, Hillebrandt. Penix says the Moores' evidence was insufficient to eliminate all genuine issue regarding that material fact; therefore, summary judgment was improper. We disagree.
In granting summary judgment, the circuit court stated the law in this area as follows:
In Kentucky[,] courts have made a clear and significant distinction in regard to a landlord[']s liability depending on whether the owner retains control over a part of the property, or leased the entire property. When a landlord has leased the property in its entirety[,] a landlord's duty is only to warn the tenant of latent defects known at the time the property is leased. Carney v. Galt, [517 S.W.3d 507 (Ky. App. 2017)].
The case upon which the circuit court relied, Carney v. Galt, was primarily a premises liability case that first readily dispensed with the landlord liability issue simply by citing Carver v. Howard, 280 S.W.2d 708 (Ky. 1955). Carver was most recently cited by our Supreme Court for the following well-settled rule of law: "Where the tenant is put in complete and unrestricted possession and control of the premises, as here, the landlord is liable only for the failure to disclose known latent defects at the time the tenant leases the premises." Waugh v. Parker, 584 S.W.3d 748, 752 (Ky. 2019) (quoting Dutton v. McFarland, 199 S.W.3d 771, 773 (Ky. App. 2006) (citing Carver, 280 S.W.2d at 711)). The circuit court was correct in holding that law applies here.
Whether the Moores relinquished complete possession and control of the premises is the material issue of fact. Penix asserts that Moore failed to present sufficient evidence to eliminate all genuine dispute regarding that material fact. Specifically, Penix says the Moores were required to produce the original executed lease with Hillebrandt to eliminate that dispute. We disagree.
Before he passed away, Mr. Moore gave his deposition and testified that for the previous thirty-nine years he leased fourteen properties, most of which were single-family residences. One of his single-family residences was Rice Drive that he leased to Hillebrandt, beginning in 2008. Although he did not locate the original, executed lease agreement with Hillebrandt (nor could Mrs. Moore after Mr. Moore passed away), he did provide the form rental contract he used to rent his single-family residences. He identified the version of the form Hillebrandt signed to lease the Rice Drive property and it describes a complete relinquishment of control of the premises to Hillebrandt. (Dep. of Harold Douglas Moore, Nov. 15, 2016, pp. 8-9, 11-15.) Mrs. Moore's affidavit corroborated this testimony.
Penix focuses her argument on Mrs. Moore's affidavit. Citing Hill v. Fiscal Court of Warren Cty., Penix says, "Affidavits filed in support of a motion for summary judgment are ordinarily examined not to decide any issue of fact, but to discover if a real issue exists." 429 S.W.2d 419, 420 (Ky. 1968). We agree.
However, the circuit court was not limited to examining Mrs. Moore's affidavit. The court followed CR 56.03, which requires that summary judgment be granted to a party 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." CR 56.03. Certainly, Mr. Moore's deposition was a part of the circuit court's examination.
Furthermore, Hill quotes at length an opinion rendered two years earlier that explains the role of affidavits more thoroughly, as follows:
On the whole affidavits are the least satisfactory form of evidentiary materials on which to base a summary judgment * * *. Nevertheless it is well settled that a summary judgment may be rendered solely on the basis of affidavits or other evidentiary materials. The affidavits themselves are 'proof' sufficient to warrant summary judgment in the absence of countervailing affidavits or the existence of some reason why the opposing party is presently unable to present by affidavit facts essential to justify his opposition. * * * Since on the whole the deposition and discovery rules provide effective means of obtaining evidentiary materials, unless the opposing party is unduly hurried to a hearing on a motion for summary judgment he has access to proof, as a general proposition, even where the essential facts are within the knowledge or control of the movant. In such a case, it has been aptly said, the affidavits "pierce the pleadings."429 S.W.2d at 422 (Ky. 1968) (internal quotation marks and citations omitted) (quoting Smith v. Hilliard, 408 S.W.2d 440, 442 (Ky. 1966)). As Hill further says:
After the moving party has made a prima facie showing that would entitle him to summary judgment, the question arises concerning the obligation of the adverse party to counter such showing. . . . [I]f uncontroverted affidavits fairly disclosing the facts show that a genuine issue does not exist, the adverse party has an obligation to do something more than rely upon the allegations of his pleading.Id. at 423 (citation omitted).
In effect the burden would shift to the adverse party and he would be required by counteraffidavit or otherwise to show that evidence is available justifying a trial of the issue involved.
We conclude that Moore, as the moving party, placed in the record sufficient evidence by affidavit, deposition, exhibits, and otherwise to "pierce the pleadings" and shift the burden to Penix to show by counteraffidavit or otherwise that there is evidence available to refute the Moores' proof. Penix failed to meet that burden; i.e., failed to create a genuine issue regarding the material fact that the Moores, as lessors, totally relinquished control of the premises to Hillebrandt, as lessee. That entitled the Moores to judgment as a matter of law.
CONCLUSION
Based on the foregoing analyses, we affirm both September 12, 2017, orders of the Montgomery Circuit Court affirming summary judgment for MSWS and for Judy Moore, in her capacity as an individual and as the executrix of Harold Douglas Moore's estate.
ALL CONCUR. BRIEFS FOR APPELLANT: Guy E. Hughes
Lexington, Kentucky BRIEF FOR APPELLEE MT.
STERLING WATER & SEWER: Erica K. Mack
Lexington, Kentucky BRIEF FOR APPELLEE JUDY O.
MOORE, INDIVIDUALLY AND
AS EXECUTRIX OF THE ESTATE
OF DOUGLAS MOORE: John J. Ellis
Morehead, Kentucky