APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 09-CI-007018
BRIEFS FOR APPELLANT: Jasper D. Ward, IV A. Layne Stackhouse Louisville, Kentucky.
ORAL ARGUMENT FOR APPELLANT: A. Layne Stackhouse Louisville, Kentucky.
BRIEF AND ORAL ARGUMENT FOR APPELLEES: Deanna M. Tucker Louisville, Kentucky.
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES.
Rosyln Warren appeals a summary judgment of the Jefferson Circuit Court in her action against Karen and Joseph Winkle as a result of injuries she allegedly sustained when the ceiling in an apartment she rented from the Winkles collapsed. She alleges that: (1) the circuit court improperly applied the summary judgment standard; (2) the circuit court erred when it found that the Winkles could not be liable for injuries caused by a defect in the area between the apartment's ceiling and roof; and (3) the circuit court erred when it concluded that under Kentucky law, a tenant cannot recover damages for personal injuries caused by a landlord's failure to repair. After careful consideration of the applicable law, we reverse and remand.
In the spring of 2008, Warren entered into an oral week-to-week lease with the Winkles for a one-bedroom apartment in a seven-unit apartment complex. All seven units were within a one-story building and shared a common roof. Each apartment had ceiling tiles suspended from the ceiling with metal tees and ells that covered the area between the ceiling and roof that consisted only of rafters and was not a space useable by tenants.
Warren alleges that on July 19, 2008, part of the bedroom ceiling collapsed while she was in bed, causing injuries to her cervical spine and a torn rotator cuff. In her deposition, Warren testified that when she moved in, she noticed that the ceiling and a light fixture above her bedroom were sagging and notified Karen who assured her it would be repaired. On several subsequent occasions, she requested that the defect be repaired and also notified Karen that when it rained, other portions of the ceiling sagged, indicating a leak in the roof.
Karen was deposed and denied that there was any conversation between her and Warren concerning the ceiling and testified she had no knowledge of a problem with the roof leaking. However, she recalled that just days prior to the alleged ceiling collapse, she and Joseph were in Warren's unit to replace a toilet and noticed one of the ceiling tiles sagging. Neither believed it to be a dangerous condition and advised Warren that they would return to tighten the wire for that area of the ceiling.
After the alleged incident, Warren notified Karen of the collapsed ceiling. Karen testified that when she went to the apartment she noticed tiles, dust, and insulation on the floor.
Warren testified that she was moved to another apartment in the same building and that its ceiling also sagged when it rained. She further testified that Karen told her that the ceiling would not be repaired until the entire roof was replaced. Karen denied making any statement regarding the roof needing repair. However, the entire roof was replaced in 2009, which Karen attributed to age and storm damage.
In addition to the parties' depositions, the record also contains a report submitted by John Schoering, a certified safety professional retained by Warren as an expert. His report indicated that the ceiling collapsed because of the lack of a vapor barrier, which allowed rainwater from the leaky roof to accumulate in the area between the roof and ceiling.
Warren filed her complaint against the Winkles alleging that the Winkles failed to maintain the roof in a reasonably safe condition causing moisture to accumulate between the roof and ceiling resulting in the collapse of the ceiling and requested damages for personal injuries. Following the parties' depositions, the Winkles moved for summary judgment arguing that the collapsed ceiling occurred in Warren's apartment, an area under her exclusive control and, therefore, as a matter of law, they were not liable. Warren filed a response arguing that the roof and the area between the roof and ceiling were in the Winkles' exclusive control requiring them to maintain it in a reasonably safe condition and repair any known and dangerous defects. Following a hearing, the circuit court issued a summary judgment in the Winkles' favor holding that, as matter of law, the Winkles had no duty to maintain the roof or the area between it and the ceiling. The question on appeal "when a trial court grants a motion for summary judgment is whether the trial court correctly found there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 704 (Ky.App. 2004). Summary judgment is not a ...