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Estate of David v. Pounds

Court of Appeals of Kentucky

June 15, 2018

ESTATE OF UBONG DAVID APPELLANT
v.
DARREN POUNDS AND RICK POUNDS APPELLEES ESTATE OF UBONG DAVID APPELLANT
v.
SAMUEL BOONE APPELLEE

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE ERNESTO M. SCORSONE, JUDGE ACTION NO. 15-CI-01160

          BRIEF AND ORAL ARGUMENT FOR APPELLANT: Gregory E. J. Coulson Lexington, Kentucky.

          BRIEF AND ORAL ARGUMENT FOR APPELLEES, RICK AND DARREN POUNDS: R. Craig Reinhardt Lexington, Kentucky.

          BRIEF AND ORAL ARGUMENT FOR APPELLEE, SAMUEL BOONE: Susan L. Maines Lexington, Kentucky.

          BEFORE: CLAYTON, CHIEF JUDGE; MAZE, AND THOMPSON, JUDGES.

          OPINION

          MAZE, JUDGE.

         This appeal arises form a Fayette Circuit Court's granting of summary judgments pursuant to Kentucky Revised Statute (KRS) 150.645(1) in favor of Appellees, Rick Pounds, Darren Pounds, and Samuel Boone. The Appellant, the Estate of Ubong David ("Estate"), appeals on the basis of several arguments. After a careful review of the record, we affirm in part, reverse in part, and remand for additional proceedings.

         Background

         On April 6, 2014, Samuel Boone, an Appellee, gave permission to Rick Pounds, an Appellee, to fish on his property which included a large pond. Rick and his son Darren Pounds, an Appellee, invited Ubong David, and Ubong's girlfriend Christian Sterling, to fish on Boone's property. After a period of time, Rick left the property and Darren, Ubong, and Christian remained. At some point Ubong and Darren used a john boat from Boone's property to go out on the pond. Either both Ubong and Darren or one or the other stood up in the boat and the boat capsized throwing both Darren and Ubong into the water. Ubong could not swim and Darren attempted to rescue him. Tragically, however, Ubong drowned, resulting in his death.

         On March 31, 2015, Ubong's Estate initiated a wrongful death lawsuit against Boone, Darren, Rick, and Christian. The claims against Christian were voluntarily dismissed with prejudice. Darren and Rick filed for summary judgment, which was granted by the court based on the recreational use immunity provisions of KRS 150.645(1). Boone filed a motion to dismiss in lieu of an answer, which is permitted by CR[1] 12.01. The trial court treated the motion as a summary judgment motion in accordance with CR 12.03 and granted summary judgment based on the provisions of KRS 150.645(1). This appeal follows. Further facts about the incident and procedural history will be developed as necessary.

         Standard of Review

         The standard of review governing an appeal of a summary judgment is well-settled. Because a summary judgment involves no fact finding, this Court's review is de novo, in the sense that we owe no deference to the conclusions of the trial court. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).

         "[T]he proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). In essence, for summary judgment to be proper, the movant must show that the adverse party cannot prevail under any circumstances. Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). Therefore, we will find summary judgment appropriate only "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the ...


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