PHILLIP E. LEWIS APPELLANT
FAULKNER REAL ESTATE CORPORATION; CENTRAL RETAIL, LLC; AND CENTRAL RETAIL OUTLOT, LLC APPELLEES
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE ACTION NO. 08-CI-006216
BRIEF FOR APPELLANT: Finis R. Price, III Prospect, Kentucky.
BRIEF FOR APPELLEES: Brian H. Stephenson Noelle J. Bailey Louisville, Kentucky.
BEFORE: CLAYTON, TAYLOR, AND THOMPSON, JUDGES.
Philip E. Lewis moved for discretionary review of the original decision of the Kentucky Court of Appeals. The Kentucky Supreme Court granted the motion, vacated our original decision, and remanded for our consideration in light of their decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). The decision was handed down thirteen days after our original decision. For the reasons stated below, we again affirm the trial court's summary judgment.
FACTS AND PROCEDURAL HISTORY
One day in early June 2007, while walking his dog, Lewis was injured when he stepped into a hole on the retail property of Faulkner Real Estate Corporation, Central Retail, LLC, and Central Retail Outlot, LLC (hereinafter "Faulkner"). Lewis is unable to specifically recall the actual date of the accident but he does remember that it occurred in the early afternoon. On that day, Lewis and his roommate were engaged in conversation as they walked their dogs. Lewis, who was familiar with the area because it was his neighborhood, often walked down this particular street. For some inexplicable reason, Lewis stepped off the sidewalk and into a hole, which ostensibly caused injury to his foot.
Lewis could not provide any reason for stepping off the sidewalk. And he admitted that there was nothing on the sidewalk that obstructed his path and he was not forced to walk off the sidewalk. In fact, he indicated that nothing obstructed his view nor were any other pedestrians walking on the sidewalk. Furthermore, Lewis conveyed that the weather was clear, and he was wearing slide-on sandals. When it happened, he fell forward and landed in the grass on his hands and knees. After a few seconds, he got up and returned home. Lewis did not seek medical attention until the following day.
On June 10, 2008, Lewis filed a complaint in Jefferson Circuit Court alleging negligence on the part of Faulkner. Then, on March 27, 2009, after both written discovery and depositions were conducted, Faulkner filed a motion for summary judgment alleging that because the hole where Lewis fell was an "open and obvious" condition, there were no genuine issues of material fact. On June 3, 2009, the trial court granted Faulkner summary judgment because it concurred with the assessment that the condition was "open and obvious."
Thereafter, Lewis filed an appeal with our court in which he maintained that the trial court erred in granting summary judgment. On August 13, 2010, we affirmed the trial court's grant of summary judgment. Within two weeks of our decision being rendered, however, the Kentucky Supreme Court decided McIntosh, which addressed a similar issue. At this juncture, Lewis filed a petition for rehearing with the Court of Appeals because of McIntosh. We denied the motion. Next, he filed a motion for discretionary review with the Supreme Court, which was granted, and the case was remanded for further consideration in light of McIntosh.
STANDARD OF REVIEW
On appeal, the standard of review for summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact, and if so, the moving party is entitled to summary judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03; Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). Moreover, a summary judgment is reviewed de novo because factual findings are not at issue. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 189 (Ky. App. 2006), citing Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).
In reviewing a grant of summary judgment, we, like the trial court, must consider the facts in the light most favorable to the nonmoving party, which in this case would be Lewis. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Keeping this in mind, we consider the salient facts giving rise to Lewis's complaint to determine whether Faulkner has established its right to judgment "with such clarity that there is no room left for ...