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Breedlove v. Smith Custom Homes, Inc.

Court of Appeals of Kentucky

September 22, 2017

CAROLYN BREEDLOVE APPELLANT
v.
SMITH CUSTOM HOMES, INC.; JOHN SMITH; MARK ARMSTRONG; AND TRINA ARMSTRONG APPELLEES

         APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 14-CI-00889

          BRIEF FOR APPELLANT: Brooks Stumbo Richmond, Kentucky

          BRIEF FOR APPELLEES MARK AND TRINA ARMSTRONG: Donald Killian Brown Jeri Barclay Poppe Louisville, Kentucky

          BRIEF FOR APPELLEES SMITH CUSTOM HOMES, INC., AND JOHN SMITH: Jon A. Woodall Brendan R. Yates Jason R. Hollon Lexington, Kentucky

          BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES.

          OPINION

          LAMBERT, J., JUDGE.

         Carolyn Breedlove has appealed from the order of the Fayette Circuit Court granting summary judgment and dismissing her complaint as well as from the order denying her motion to alter, amend or vacate that order. Finding no error in the circuit court's orders, we affirm.

         On March 11, 2014, Breedlove filed a complaint with the Fayette Circuit Court in which she sought damages for personal injuries she sustained in June 2013 when she fell off the front porch of a Lexington residence on Belmere Drive owned by Mark and Trina Armstrong. Breedlove was at the Armstrongs' residence to perform work for them through her employment at a moving company. As defendants, she named the Armstrongs as well Smith Custom Homes, Inc., the company she alleged built the home in 2002. She alleged that Smith Custom Homes was negligent in designing and/or building the home, which caused the entryway to the home to be in an unsafe condition and led to her injury, and that the Armstrongs were negligent in maintaining the home, causing the entryway to be in an unsafe condition. She sought damages for medical expenses, lost wages, future impairment to earn money, and pain and suffering. The court later permitted Breedlove to file an amended complaint to add John Smith as a defendant. As with Smith Custom Homes, she alleged that Smith was negligent in designing and/or building the Armstrongs' home. The defendants filed answers seeking dismissal of the complaint, and discovery commenced.

         In January 2015, the Armstrongs filed a motion for summary judgment, arguing that there were no issues of material fact to be decided and that they were entitled to a judgment as a matter of law. In the attached memorandum, the Armstrongs explained that the entryway to the house is made up of three concrete steps. On the day of her injury, Breedlove walked up the steps to the front door, spoke with Trina in the doorway, and turned to walk down the steps. At that point, Breedlove fell from the top step and landed on the sidewalk. Breedlove stated in her deposition that her foot bumped into the top step when she was walking toward the front door. She had expected the surface to be flat. As she was preparing to walk back to her car in the driveway, she fell. The Armstrongs asserted that Breedlove had failed to introduce evidence to establish that an unreasonably dangerous condition existed that caused her injury or that any actions or inaction by them caused her injury, meaning that they had not breached their duty.

         Breedlove objected to the motion, arguing that she had introduced sufficient evidence to defeat the Armstrongs' motion and that a question of material fact existed regarding whether the residence was unsafe and, if so, whether the Armstrongs had been negligent in maintaining it. In support of her argument, Breedlove relied upon the report of her expert, certified home inspector John Bain. Mr. Bain determined that the landing did not meet the requirements of the applicable building code. She also argued that discovery had not yet been completed. In a separate filing, Breedlove made a preliminary expert disclosure pursuant to Kentucky Rules of Civil Procedure (CR) 26, identifying Mr. Bain as an expert and detailing the results of his inspection of the Armstrongs' Belmere Drive residence.

         In July 2015, Breedlove filed a motion for summary judgment against Smith and Smith Custom Homes on her claim for negligent construction. She argued that they ignored the applicable building code in effect in 2002 when the residence was constructed and built the landing on the front porch smaller than called for by the code, which constituted a trip hazard.

         Smith and Smith Custom Homes filed a response in opposition to Breedlove's motion and their own cross-motion for summary judgment. They argued that Smith Custom Homes did not build the Belmere Drive home and that Breedlove had not established that the alleged building code violation was the proximate cause of her injuries under a negligence per se theory. In addition, Smith and Smith Custom Homes moved for leave to file an amended answer and cross-claim against the Armstrongs for contribution and indemnification.

         In August 2015, the Armstrongs moved for leave to file a cross-claim against Smith Custom Homes to allege a claim for contribution and indemnification against it. The circuit court granted the motion on August 21, 2015.

         Later that month, the Armstrongs moved for summary judgment against Breedlove and co-defendants Smith and Smith Custom Homes. Regarding Breedlove, they argued that the top step was not an unreasonable risk based upon two passed home inspections and the issuance of a final certificate of occupancy by the city and that the condition was open and obvious. Regarding their co-defendants, the Armstrongs argued that Smith and Smith Custom Homes' claims for contribution and indemnification must fail as a matter of law. Various responses were filed to the pending motions, raising such defenses as statute of limitations violations. In October 2015, ...


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