RAYMOND HAYES and DENA HAYES, individually and as parent and natural guardian of ALEX HAYES, a minor APPELLANTS
D.C.I. PROPERTIES - DKY, LLC and THE NELSON STARK COMPANY APPELLEES
FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE V, JUDGE
ACTION NO. 15-CI-00287
FOR APPELLANT: Bruce B. McIntosh Cincinnati, Ohio A. Brian
McIntosh Cincinnati, Ohio.
FOR APPELLEE: Mark A. MacDonald, Esq. Cincinnati, Ohio James
M. West, Esq. Fort Mitchell, Kentucky.
BEFORE: COMBS, D. LAMBERT AND NICKELL, JUDGES.
action for personal injury arising out of alleged negligence,
Raymond and Dena Hayes, individually, and as the parents of
Alex Hayes, a minor, appeal from the summary judgment of the
Campbell Circuit Court entered in favor of D.C.I. Properties
- DKY LLC ("DCI") and The Nelson Stark Company
("Nelson Stark)." The Hayeses filed a negligence
action against DCI and Nelson Stark after their son, Alex,
overturned a piece of heavy equipment parked at a residential
construction site. The circuit court determined that the
defendants did not owe a duty of care to Alex under the
circumstances and concluded that they were, therefore,
entitled to judgment as a matter of law. Following our
review, we affirm.
a.m. on Sunday, September 14, 2014, Alex climbed into a
sheepsfoot roller - a piece of heavy equipment used to
compact soil for site development projects. The roller
belonged to Nelson Stark, who was preparing the construction
site on property owned by DCI. The construction site bordered
the Ohio River at Dayton, Kentucky. Alex started the
roller's ignition, and he then scaled the north side of a
flood wall adjacent to the construction site. As he descended
the south side of the flood wall, the roller flipped, ejected
Alex, and pinned his right leg beneath it.
hours before the incident, Alex had been drinking whiskey and
smoking marijuana with his friends on the riverbank. At the
time of the incident, Alex was sixteen years and seven months
of age. The paramedic who treated Alex at the scene testified
that he was completely lucid following his injury. However,
at the time of his own deposition, Alex indicated that he had
no recollection of the events that immediately preceded the
April 1, 2015, the Hayeses filed the personal injury action
underlying this appeal. They alleged that despite the
circumstances, DCI and Nelson Stark were responsible -- at
least in part -- for Alex's injury. The Hayeses'
theory of liability was based upon the attractive nuisance
a period of discovery, DCI and Nelson Stark filed motions for
summary judgment. The Hayeses resisted the motions.
circuit court's summary judgment in favor of the
defendants was entered on July 22, 2016. The court concluded
that the Hayeses could not establish that the defendants owed
Alex a duty of care under the attractive nuisance doctrine,
holding that, at 16 ½ years of age, Alex was beyond
the protection afforded by the tender-years element of the
doctrine. Consequently, the court concluded that DCI and
Nelson Stark were entitled to judgment as a matter of law.
This appeal followed.
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, 686 (Ky. App. 2009). Whether a duty of care
exists is a question of law for the court. Therefore, it is
reviewed de novo. Id.
general negligence law requires the existence of a duty,
premises liability law supplies the nature and scope of that
duty when dealing with . . . injuries on realty."
Lewis v. B & R Corp., 56 S.W.3d 432, 437-38 (Ky.
App. 2001). Ordinarily, "[t]he status of the person
coming onto the land determines the degree of care required
by the land possessor." Miracle v. Wal-Mart Stores
East, LP, 659 F.Supp.2d 821, 825 (E.D.Ky. 2009).
classifies a visitor upon property as one of the following:
trespasser, licensee, or invitee. Scifres v. Kraft,916 S.W.2d 779, 781 (Ky. App. 1996). A person who comes upon
the property without any legal right to do so is a
trespasser. Hardin v. Harris, 507 S.W.2d 172 (Ky.
1974). Pursuant to the provisions of KRS 381.232, "[t]he owner of real estate
shall not be liable to any trespasser for injuries sustained
by the trespasser on the real estate of the owner, except for
injuries which are intentionally inflicted by the owner or
someone acting for the owner." Interpreting this
provision, the Supreme Court of Kentucky has construed the
phrase "injuries which are intentionally inflicted"
to mean injuries inflicted by "willful, wanton, or
reckless conduct." Kirschner by Kirschner v.
Louisville Gas & Elec. Co.,743 S.W.2d 840, 842 (Ky.
1988) (emphasis omitted). Thus, an owner or occupant of land
owes no duty to a "trespasser to keep the premises safe
for [the trespasser's] use, but [the owner or occupant]
must refrain from inflicting or exposing him to wanton or
willful injury or from setting a trap for him."
Id. at 844 (citation omitted). However our courts
have historically recognized a ...