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Hayes v. D.C.I. Properties-DKY, LLC

Supreme Court of Kentucky

December 13, 2018

RAYMOND HAYES AND DENA HAYES APPELLANTS
v.
D.C.I. PROPERTIES-DKY, LLC AND THE NELSON STARK COMPANY APPELLEES

          ON 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 REMINGERCO., LPA.

          OPINION

          VANMETER, JUSTICE

         Visitors 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.

         I. Factual and Procedural Background.

         One 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.

         As Alex 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.

         Alex, 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 discretionary review.

         II. Standard of Review.

         Under 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[1] 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 (Ky. 2009)).

         III. Analysis.

         The 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[2] 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 ...


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