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Johnson v. Bond

Court of Appeals of Kentucky

March 22, 2019

TIA JOHNSON, ADMINISTRATOR OF THE ESTATE OF CRISTIANO WAIDE APPELLANT
v.
JAYLEN BOND; BRAD CHAMBERS, FORMER LFUCG PARKS AND RECREATION DIRECTOR IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; GEOFF REED, COMMISSIONER OF GENERAL SERVICES IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; CHRIS COOPERRIDER, LFUCG PARKS AND RECREATION DEPUTY DIRECTOR MAINTENANCE IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; MICHELLE KOSIENIAK, LFUCG PARKS & RECREATION SUPERINTENDENT OF PARKS PLANNING AND DESIGN IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; DEWEY CROWE, DEPARTMENT OF BUILDING INSPECTION DIRECTOR IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; NANCY MARINARO, DEPARTMENT OF BUILDING INSPECTION ASSISTANT DIRECTOR IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; SALLY HAMILTON, CHIEF ADMINISTRATIVE OFFICER No. 2017-CA-001150-MR MARCH 22, 2019 IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; JERRY HANCOCK, FORMER DIRECTOR OF PARK MAINTENANCE IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; EVELYN BOLOGNA, FORMER INTERIM DIRECTOR OF PARK MAINTENANCE IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; ED CHANEY, SUPERINTENDENT OF PARKS IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; KATHY MOBLEY, PARKS MANAGER SENIOR IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; GUY STONE, EMPLOYEE OF LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; TIM CLARK, EMPLOYEE OF LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; AND UNKNOWN DEFENDANTS, EMPLOYEES OF LFUCG IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES APPELLEES

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY BUNNELL, JUDGE ACTION NO. 16-CI-00469

          BRIEFS FOR APPELLANT: A. Nicholas Naiser Louisville, Kentucky James M. Bolus, Jr. Louisville, Kentucky

          BRIEF FOR APPELLEES BRAD CHAMBERS, FORMER LFUCG PARKS AND RECREATION DIRECTOR IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; GEOFF REED, COMMISSIONER OF GENERAL SERVICES IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; CHRIS COOPERRIDER, LFUCG PARKS AND RECREATION DEPUTY DIRECTOR MAINTENANCE IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; MICHELLE KOSIENIAK, LFUCG PARKS & RECREATION SUPERINTENDENT OF PARKS PLANNING AND DESIGN IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; DEWEY CROWE, DEPARTMENT OF BUILDING INSPECTION DIRECTOR IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; NANCY MARINARO, DEPARTMENT OF BUILDING INSPECTION ASSISTANT DIRECTOR IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; SALLY HAMILTON, CHIEF ADMINISTRATIVE OFFICER IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; JERRY HANCOCK, FORMER DIRECTOR OF PARK MAINTENANCE IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; EVELYN BOLOGNA, FORMER INTERIM DIRECTOR OF PARK MAINTENANCE IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; ED CHANEY, SUPERINTENDENT OF PARKS IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; KATHY MOBLEY, PARKS MANAGER SENIOR IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY; GUY STONE, EMPLOYEE OF LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; TIM CLARK, EMPLOYEE OF LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; AND UNKNOWN DEFENDANTS, EMPLOYEES OF LFUCG IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES: Barbara A. Kriz Lexington, Kentucky

          BEFORE: K. THOMPSON AND L. THOMPSON, JUDGES; HENRY, SPECIAL JUDGE. [1]

          OPINION

          THOMPSON, K., JUDGE

         On July 17, 2014, two-year-old Cristiano Waide and his uncle, Jaylen Bond, went to Douglass Park. The park is owned and operated by the Lexington Fayette County Urban Government (LFUCG) and no admission is charged for entry.

         Cristiano was playing on a set of ten-foot-high bleachers constructed with pipe railing safety guards when he fell from the top and suffered a head injury. He died less than a week later.

         On February 8, 2016, Cristiano's mother, Tia Johnson, as Administrator of the Estate of Cristiano Waide (the Estate) filed this wrongful death action in the Fayette Circuit Court against a number of LFUCG employees and former employees in their individual and official capacities who oversaw or worked in the Division of Parks and Recreation (Parks and Rec): Director Monica Conrad, Brad Chambers who was Director when Cristiano fell, Commissioner of General Services Geoff Reed, Deputy Director Chris Cooperrider, Parks and Rec Superintendent Michelle Kosieniak, and Penny Ebel who it was alleged was the Deputy Director when Cristiano fell.[2] The complaint further named unknown employees of LFUCG.

         The Estate alleged the employees were negligent in maintaining and monitoring the bleachers to ensure the bleachers complied with applicable codes and regulations and warn of a dangerous condition in Douglass Park. It further alleged a claim for negligent hiring, training and supervision. In their answer, the named defendants raised the Recreational Use Statute as an affirmative defense and official governmental immunity.

         By amended complaint, the Estate joined additional employees alleging negligence against Dewey Crowe and Nancy Marinaro, both LFUCG Division of Building Inspections employees, LFUCG Chief Administrator Officer Sally Hamilton, former Director of Parks and Rec Maintenance Jerry Hancock, former Interim Director of Parks and Rec Maintenance Evelyn Bologna, Superintendent of Parks and Rec Ed Chaney, Parks and Rec Manager Senior Kathy Mobely, Guy Stone and Tim Clark in their individual and official capacities. In addition to negligence claims, the Estate alleged the defendants named in the original and amended complaint engaged in conduct that was willful and malicious. The defendants' answer again raised the Recreational Use Statute and official governmental immunity as defenses. Collectively, we refer to those named as defendants in the complaint and amended complaint as "the employees."[3]

         Discovery commenced. Cooperrider and Marinaro were deposed.[4]

         Although the precise date the Douglass Park bleachers were installed is unknown, it was sometime in the 1970s, prior to the time before any of the employees were employed by LFUCG. There is no evidence that when the bleachers were installed, any applicable building code required that the bleachers have any specific guards at the top of those bleachers.

         Cooperrider oversees LFUCG employees responsible for performing visual inspections of Douglass Park twice a month to identify any hazardous situation. If found, any such condition is documented on an inspection form. Cooperrider testified Parks and Rec employee Stone was responsible for inspecting Douglass Park but that Stone was not qualified to determine whether the bleachers were code compliant and such a determination was not part of his job duties. During the year prior to Cristiano's fall, no problems were reported by Stone with the bleachers at Douglass Park.

         Cooperrider testified that in 2013, after learning children played on bleachers at another Lexington public park, he asked LFUCG Division of Risk Management to investigate risks associated with bleachers and prepare a report. Risk Management recommended that LFUCG establish a plan to upgrade all LFUCG bleachers. Although Cooperrider requested funding for the upgrade, the funding was not approved. Further requests for funding were put on hold pending the hiring of a new permanent Director. After Chambers was hired in June 2014, Chambers decided to postpone any discussion about purchasing new bleachers until after the baseball season ended. Cristiano fell from the bleachers before the end of that season.

         After Cristiano's fall, Commissioner Reed asked Cooperrider to prepare a bleacher mitigation program. Cooperrider recommended that all 10-15 row bleachers be removed. In September 2014, the bleachers from which Cristiano fell were removed.

         Stone was hired as a Parks and Rec Public Service Supervisor after being interviewed by a panel that included Parks and Rec employees Cooperrider, Chaney, Mobley and Clark and was employed by LFUCG. Cooperrider testified Stone was not responsible for inspecting park structures for compliance with building codes. His duties included inspecting the bleachers to determine whether they were broken or in disrepair, and to report those issues. Any maintenance problems were reported and then funds had to be budgeted for any work to be performed.

         Within Parks and Rec, Mobley supervised Stone and was responsible for making sure he performed regular inspections and reported the results of those inspections. Mobley was supervised by Chaney who reported to Cooperrider. Cooperrider reported to Hancock, Bologna or Brad Chambers during their service as Director of Parks and Rec. At the time of Cristiano's fall, Hancock and Bologna were not employed by LFUCG and Chambers had only been hired a few weeks earlier. The Director reported to Commissioner of General Services Geoff Reed, who reported to LFUCG Chief Administrative Officer Sally Hamilton, who reported to the Mayor.

         Nancy Marinaro is employed in the LFUCG Division of Building Inspection and reported to Dewey Crowe, the Director over the Division of Building Inspection. She oversees the LFUCG inspectors of commercial structures to ensure compliance with the applicable building code.

         Marinaro began working in Building Inspection in 1998. She testified that during her tenure, no inspections were performed on the bleachers at Douglass Park for code compliance because they were existing structures which did not require any work for which a building permit was needed. She testified that if a building permit had been required, Building Inspection was responsible for inspecting the structure for code compliance. She testified that on the date of Cristiano's fall, the 2013 Kentucky Building Code (KBC) was in effect and the existing bleachers in Douglass Park were grandfathered into compliance with that Code.

         On March 27, 2017, the employees filed a motion for summary judgment arguing that Kentucky's Recreational Use Statute grants them immunity for any negligence and, in the absence of evidence that any or all of them engaged in willful or malicious conduct, summary judgment was appropriate. Alternatively, the employees argued the Estate's claims were barred by official governmental immunity.

         The Estate responded, arguing that there was evidence of willful or malicious conduct when the employees ignored the dangerous condition of the bleachers. It attached to its response a series of emails sent in 2005 between the Parks and Rec Superintendent Planning, Design & Landscape, Michelle Kosieniak, and a LFUCG employee. As an attachment to a November 17, 2005 email, Kosieniak attached plans and estimates for improvements at Douglass Park. Included in those plans and estimates was the "demolition and disposal" of existing bleachers with three new sets to be installed.

         Although the Estate did not present any witness to dispute Marinaro's testimony that the bleachers were compliant when built and grandfathered into the 2013 KBC, the Estate responded to the employees' motion for summary judgment by submitting provisions of the 2013 KBC the employees allegedly violated. It argued that the 2013 KBC in effect when Christiano fell, by incorporation of the International Building Code (IBC), requires that existing bleachers be inspected and maintained in accordance with that Code. The Estate admits its conclusion requires "wading through a variety of labyrinthine cross references within the 2012 International Building Code, the 2013 Kentucky ...


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