FROM JEFFERSON CIRCUIT COURT HONORABLE A. C. MCKAY CHAUVIN,
JUDGE ACTION NO. 14-CI-002507
FOR APPELLANT: Richard J. Head Louisville, Kentucky.
FOR APPELLEES: SEATON PLACE HOMEOWNERS ASSOCIATION, INC.,
JEFF SCHNEIDER, INDIVIDUALLY AND ALLIE RICHARSON,
INDIVIDUALLY AND COCOUNSEL FOR SANDY KENNEDY David Barnes
Louisville, Kentucky WILLIAM GREENWELL and TASHA GREENWELL
David L. Sage Louisville, Kentucky SANDY KENNEDY Michael E.
BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES.
case originated as a personal injury action arising out of
alleged negligence. Frances Brooks appeals from the summary
judgment of the Jefferson Circuit Court entered in favor of
William and Tasha Greenwell; Seaton Place Homeowners
Association, Inc. ("the HOA"); and Jeff Schneider,
Alli Richardson, and Sandy Kennedy - volunteer board members
of the neighborhood homeowners' association.
filed a negligence action against the Greenwells, the HOA,
and its directors and officers after she fell on a public
sidewalk adjacent to the Greenwells' property. The
circuit court determined that none of the defendants owed a
duty of care to Brooks under the circumstances and that they
were entitled to judgment as a matter of law. After our
review, we affirm.
morning of June 1, 2013, Brooks attended a community-wide
yard sale in the Seaton Place neighborhood, a planned
community developed in the 1990's by Barmore Development
and Construction, Inc. The Greenwells, homeowners in the
Seaton Place neighborhood, participated in the annual yard
sale by offering items for sale to the public in front of
their home. After Brooks had finished shopping at the
Greenwells' yard sale, she stepped onto the sidewalk in
front of their home to walk to the next-door neighbors'
yard sale. Brooks testified that as she traversed the
sidewalk, her foot "got caught" and she fell.
Brooks attributed her fall to an unevenness in the sidewalk.
She filed the personal injury action underlying this appeal
on May 8, 2014.
a period of discovery, the HOA and the association's
board members (who had been sued in their individual
capacity) filed a motion for summary judgment. In support of
the motion, the defendants argued that while they were
responsible to maintain those areas dedicated to the
neighborhood as open spaces and common areas, they were not
responsible to maintain the public sidewalk outside the
Greenwells' home. Upon this basis, they argued that they
did not owe a duty of care to Brooks.
Greenwells filed a separate motion for summary judgment. They
argued that there was no direct evidence to support
Brooks's assertion that she had stumbled over a defect in
the sidewalk outside their home. Thus, they argued that she
could not establish the necessary causal relationship between
an alleged breach of duty and the injury she suffered.
circuit court's summary judgment in favor of the
defendants was entered on July 21, 2016. The court concluded
that there was no evidence to suggest that the HOA or board
members owned, possessed, or had any control whatsoever over
the public sidewalk where Brooks fell. With respect to the
claims asserted against the Greenwells, the court observed
that the primary responsibility to keep public sidewalks in
reasonably safe condition for public travel resides with the
municipal government. The court determined that there had
been no proof that the Greenwells had -- by some affirmative
act of negligence -- created a dangerous condition on the
sidewalk. Consequently, the court concluded that the various
defendants were entitled to judgment as a matter of law. This
we address the issues raised on appeal, we must resolve a
preliminary procedural issue. The HOA and its board members
have moved to strike a portion of Brooks's brief. They
assert that while Brooks identified six issues to be raised
on appeal in her prehearing statement, she failed to identify
any errors related to the trial court's ruling dismissing
her claims against the association's individual board
members. They contend that Brooks is now precluded by
provisions of our civil rules from presenting any alleged
errors concerning those board members.
and its board members are correct that the provisions of
CR76.03 effectively limit the issues
on appeal to those designated in the prehearing statement
except upon a timely motion where good cause is shown.
Nevertheless, having carefully reviewed the prehearing
statement, we conclude that issues concerning the HOA board
members were sufficiently delineated. Consequently, by
separate order, we deny the motion to strike a portion of
Brooks's brief, and we shall consider it in its entirety.
judgment is appropriate where "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. In order to prevail in a
negligence action, a plaintiff "must prove the existence
of a duty, breach thereof, causation, and damages."
Boland-Maloney Lumber Co., Inc., v. Burnett, 302
S.W.3d 680, ...