FROM FAYETTE CIRCUIT COURT HONORABLE ERNESTO M. SCORSONE,
JUDGE ACTION NO. 15-CI-01160
AND ORAL ARGUMENT FOR APPELLANT: Gregory E. J. Coulson
AND ORAL ARGUMENT FOR APPELLEES, RICK AND DARREN POUNDS: R.
Craig Reinhardt Lexington, Kentucky.
AND ORAL ARGUMENT FOR APPELLEE, SAMUEL BOONE: Susan L. Maines
BEFORE: CLAYTON, CHIEF JUDGE; MAZE, AND THOMPSON, JUDGES.
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.
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
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
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 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).
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 ...