REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-001189-MR
CAMPBELL CIRCUIT COURT NO. 15-CI-00287.
COUNSEL FOR APPELLANTS: Anthony McIntosh .
COUNSEL FOR APPELLEE D.C.I. PROPERTIES - D KY, LLC: James
Moberly West, THE LAW OFFICE OF JAMES M. WEST.
COUNSEL FOR APPELLEE THE NELSON STARK COMPANY: Mark MacDonald
to property are classified according to one's purpose in
entering the property and whether such entry is with the
consent of the property's possessor. The standard of care
the possessor must exercise depends on whether the visitor is
present (a) without the possessor's consent,
i.e, a trespasser; (b) with the possessor's
consent, i.e, a licensee; or (c) with the possessor's
consent as a member of the public for whom the property is
held open or for the possessor's business, i.e.,
an invitee. In this case, Alex Hayes, age 16 years, 7 months,
was injured while a trespasser on D.C.I. Properties-DKY
LLC's construction site. The issue we must decide is
whether Alex's status is mitigated by the attractive
nuisance exception, such that the Campbell Circuit Court
erred in dismissing his personal injury action. We hold that
the trial court and the Court of Appeals did not err in their
respective analyses of this matter and therefore affirm the
trial court's judgment.
Factual and Procedural Background.
weekend evening in September 2014, Alex and several friends
entered a construction site owned by DCI without its
knowledge or permission. The site was being prepared for DCI
as a residential development by contractor, The Nelson Stark
Company ("NSC"), whose employees had left several
pieces of heavy equipment on the property. Alex and his
friends spent several hours there, on the banks of the Ohio
River, drinking whiskey and smoking marijuana. Alex, earlier
in the evening, had the foresight to remove keys from at
least one piece of machinery because he recognized that a
friend might get hurt if he started the machine.
and one of his friends started to walk back towards town,
Alex climbed on a sheepsfoot compactor owned by NSC, and
despite his friend's protests, started it and began
driving it up a floodwall. As Alex drove the compactor down
the floodwall, it tipped over, threw Alex off, and landed on
his right leg, severely injuring it. A paramedic who treated
Alex at the scene testified that Alex was lucid, and admitted
stealing the compactor and driving it before it flipped over
and landed on his leg.
through his parents as next friends and natural guardians,
filed this action against DCI and NSC alleging negligence
based on attractive nuisance. Following discovery, both
defendants filed motions for summary judgment. The trial
court granted the motions, noting Alex's age and his
awareness of the dangers inherent in heavy construction
equipment, including his action on the night in question in
removing the keys to another piece of equipment so his
friends would not get in trouble or hurt. Consequently, the
trial court held "no reasonable juror could find that
Alex, 'because of [his] youth,' could not
'realize the risk involved in intermeddling with' the
equipment at the construction site." Campbell Circuit
Court Opinion and Order, p. 6 (quoting Mason v. City of
Mi. Sterling, 122 S.W.3d 500, 506 (Ky. 2003)). The
Hayeses appealed to the Court of Appeals which affirmed the
trial court. We granted the Hayeses' motion for
Standard of Review.
our rules, summary judgment is appropriate when the
pleadings, depositions, answers to interrogatories,
stipulations, and any admissions on file demonstrate 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. All factual ambiguities are viewed
in a light most favorable to the nonmoving party. Hammons
v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010).
"Because summary judgment does not require findings of
fact but only an examination of the record to determine
whether material issues of fact exist, we generally review
the grant of summary judgment without deference to either the
trial court's assessment of the record or its legal
conclusions." Id. (citing Malone v.
Kentucky Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 658
Hayeses argue that the lower courts erroneously applied legal
concepts more appropriate to a time when contributory
negligence barred recovery in negligence cases, ignored
comparative fault, citing KRS 411.182 and Hilen v.
Hayes,673 S.W.2d 713 (Ky. 1984), and misapplied the
attractive nuisance doctrine. The Hayeses admit that Alex
bears fault for the accident, but argue that a jury should
have been permitted to weigh and ...