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Roach v. Hedges

Court of Appeals of Kentucky

February 15, 2013

DAVID ROACH, APPELLANT
v.
RHONDA HEDGES; DR. MARY L. GREENLEE; DON ZETTWOCH; AND KEVIN KNOTT, APPELLEES

APPEAL FROM JEFFERSON CIRCUIT COURT. HONORABLE FREDERIC COWAN, JUDGE. ACTION NO. 10-CI-000657.

AFFIRMING

BRIEFS FOR APPELLANT: Brian D. Cook, Louisville, KY.

BRIEF FOR APPELLEE: C. Tyson Gorman, Louisville, KY.

BEFORE: CLAYTON, COMBS, AND THOMPSON, JUDGES. ALL CONCUR.

OPINION

CLAYTON, JUDGE

The appellant, David Roach, appeals the Jefferson Circuit Court's entry of summary judgment in favor of the appellees, Rhonda Hedges, Dr. Mary L. Greenlee,

Page 47

Don Zettwoch, and Kevin Knott. The circuit court determined that Kentucky's Recreational Use Statute, Kentucky Revised Statutes (" KRS" ) 411.190(3)-(4), is applicable, rendering the appellees immune from suit. We agree and the decision of the circuit court is affirmed.

On October 13, 2009, Roach was injured when he fell from a swing on the playground of the Alfred Binet School (" Binet" ), which is located on the same premises as Seneca High School (" Seneca" ). The accident occurred after school hours when Roach was using the playground with his minor daughter. There were no witnesses to the accident, but Roach alleges that he fell to the ground when a metal " S" hook connecting the swing to the seat broke. The fall caused Roach to land on his left ankle, breaking it in several places. At the time of Roach's fall, Hedges served as principal of Binet and Greenlee served as principal of Seneca. Knott and Zettwoch served both schools, Knott as a plant operator and Zettwoch as a maintenance worker.

On January 29, 2010, Roach filed suit in Jefferson Circuit Court alleging negligence in the maintenance of the playground by each of the appellees. On March 9, 2011, the appellees filed a motion for summary judgment. The appellees' motion set forth three grounds for relief: 1) they were entitled to qualified official immunity; 2) Roach failed to establish a breach of the duty of care; and 3) KRS 411.190(3)-(4) applies to remove any duty of care that might exist. The circuit court determined that the statute is applicable and did not reach the appellees' other arguments. Roach then filed a motion under Kentucky Rules of Civil Procedure (" CR" ) 59.05 to alter, vacate, or amend the circuit court's decision. The motion was denied on September 21, 2011, and this appeal followed.

Our review of the circuit court's grant of summary judgment requires us to determine " 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." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). The circuit court's decision to grant a motion for summary judgment is reviewed de novo. 3d Enterprises Contracting Corp. v. Louisville and Jefferson County Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005). Likewise, issues of statutory interpretation are reviewed de novo. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011). With this standard in mind, we turn to the application of KRS 411.190.

Roach does not challenge the recreational nature or public use of the property. Instead he challenges the applicability of KRS 411.190 by asserting that the appellees are not " owners" as defined by KRS 411.190(1)(b).

In order to fully understand the impact of KRS 411.190, it is helpful to consider its effect on premises liability. As a general rule, " land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them." Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385, 388 (Ky. 2010). However, in order to " encourage owners of land to make land and water areas available to the public for recreational purposes[,]" the statute limits " liability toward ...


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