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Dexter v. Hanks

Court of Appeals of Kentucky

May 10, 2019

JAMES DEXTER APPELLANT
v.
JAMES HANKS APPELLEE

          APPEAL FROM MARION CIRCUIT COURT HONORABLE SAMUEL TODD SPALDING, JUDGE ACTION NO. 14-CI-00184

          BRIEF FOR APPELLANT: Stacey Hardin Hibbard Amber Brahm Eubank Danville, Kentucky

          BRIEF FOR APPELLEE: Robert Spragens, Jr. Lebanon, Kentucky

          BEFORE: GOODWINE, JONES AND NICKELL, JUDGES.

          OPINION

          JONES, JUDGE:

         This is a premises liability case. James Dexter ("Dexter"), the Appellant, filed a negligence claim against the Appellee, James Hanks ("Hanks"), in Marion Circuit Court seeking compensation for injuries he sustained when he fell off the roof of Hanks's home while applying sealer to it. The Marion Circuit Court granted summary judgment in favor of Hanks after concluding that there were no disputed issues of material fact, Hanks did not breach any duty of care owed to Dexter, and Dexter was an independent contractor. Following an unsuccessful CR[1] 59.05 motion, Dexter filed this appeal.[2] Having reviewed the record in conjunction with all applicable legal authority, we affirm.

         I. Background

         Hanks, a retired educator, owns a two-story, nineteenth century home located at 2435 Campbellsville Road, Lebanon, Kentucky. For several years prior to the incident in question, Hanks hired out various home improvement projects he needed help completing, especially those involving any kind of roof work because he was no longer able to climb a ladder. Hanks generally hired Tim McQueary ("McQueary") for his home maintenance projects. Eventually, however, McQueary became too busy to do odd jobs for Hanks. Sometime around 2012, McQueary told Hanks he should contact Dexter if he needed work done at his house and gave him Dexter's phone number. Dexter had previously assisted McQueary with various handyman projects in the area, including some work at Hanks's home. From that point forward, Hanks began hiring Dexter. Prior to the incident in question, Dexter had performed several different kinds of work for Hanks including cutting trees, mowing, raking, painting and caulking. One such project was in 2012, when Dexter painted the roof of Hanks's free-standing garage.

         Sometime in 2013, Hanks contacted Dexter about a leak in an upstairs window. Dexter believed the leak might be coming from Hanks's roof. The roof of the house is like the roof of the garage Dexter had previously painted for Hanks; it is pitched with a standing-seam metal construction. The house roof, however, is divided into four sections; the parties refer to the section at issue in this case as the Campbellsville side because it faces Campbellsville Road. While trying to find the area of the roof causing the leak, Dexter went onto the house's roof at least two or three times before the incident in question.[3]

         Dexter was not able to identify any distinct area of the roof that was allowing water to leak into the house. As a result, he recommended that Hanks paint the entire roof with sealer. Hanks agreed to the recommendation and asked Dexter to perform that work for him. They agreed that Hanks would pay Dexter ten dollars per hour with Hanks to purchase the sealer. The two men then traveled together to Lebanon Lumber and Hardware to purchase the sealer. Hanks purchased the sealer recommended by an employee of the hardware store. Dexter used a combination of his own tools and tools supplied by Hanks, including ladders, a broom, a paint roller, and a paint tray.[4]

         Dexter began the work on July 13, 2013. Hanks testified that he and Dexter read the directions on the packaging of the sealer together.[5] Hanks retired to the inside of the home to watch television while Dexter worked. Dexter used two of ladders get onto the roof. He carried all the tools and supplies he required onto the roof himself without any assistance from Hanks. Dexter testified in his deposition that once he was on the roof, he noticed some moisture on parts of it. Dexter then swept the area of the roof where he planned to begin applying the sealer. When he found it to be clean and dry enough to begin, he proceeded to paint the sealer on the roof. Dexter had to stand on the pitched portion of the Campbellsville side roof to apply sealer on the entire roof. After working for about ten minutes, Dexter turned to dip the paint roller in sealer. He had both hands on the roller. When Dexter went to turn back around, his feet slipped out from under him, and he fell onto his stomach and face. Dexter proceeded to slide down the roof. Unable to catch hold of anything, he fell twenty feet to the ground, landing on his feet.

         Dexter found himself unable to walk after the fall so he called his wife and daughter to help him. Additionally, Dexter called Fred Minnie ("Minnie") to come get the supplies that were left on the roof. Minnie came to Hanks's home, climbed onto the roof, and retrieved the tools. Minnie left the supplies that belonged to Hanks at the home, and took the tools belonging to Dexter to Dexter's house and left them on the porch. Minnie could not recall the exact tools he returned to Dexter; he described them as a few "hand tools" such as hammers and the like.

         In the meantime, Dexter's wife and daughter transported Dexter to Spring View Hospital for treatment. At the hospital, Dexter was diagnosed with a broken left foot and broken right ankle. He was admitted to the hospital where he underwent two surgeries. According to the record, Dexter incurred medical expenses of $70, 953.67, missed thirty-seven weeks of work, and lost approximately $27, 000 of income due to his injuries.[6]

         On or about July 8, 2014, Dexter filed a civil negligence action against Hanks in Marion Circuit Court. In his complaint, Dexter alleged that Hanks was liable for his fall and resulting injuries "due to a dangerous condition on [Hanks's] property of which [Hanks] created, knew, or should have known." Dexter characterized himself as an "invitee" to Hanks's property, and that Hanks had a duty to discover, warn and/or protect Dexter from the dangerous condition of his property. In his answer, Hanks asserted that Dexter was an independent contractor and that he did not breach any duty to him. For the next few years, the parties engaged in discovery, which included the depositions of Dexter, Hanks, Minnie, McQueary, and Dexter's treating physician, Dr. Daniel Hunt.

         Although not entirely clear from the pleadings alone, it appears that Dexter's initial theory was that Hanks created a dangerous condition because he sprayed the roof with water right before Dexter began his work. Dexter explained that the roof was wet when he started his work and he saw Hanks hooking up the garden hose while he was carrying his supplies up the ladders. Dexter explained he believed that Hanks was intending to spray the roof because the instructions on the sealer said the surface had to be cleaned before application. Dexter, however, admitted he never saw Hanks spray the roof and did not know for certain that he did so. Dexter also admitted that there was not a great deal of water on the roof and that it could have just been moisture from the morning dew. In any event, it is clear he knew the roof was wet before he started his work on it.

         For the most part, Hanks did not remember a great deal about the incident by the time his deposition was taken.[7] Hanks testified that he had been using Dexter to do odd jobs for some time, although he was not exactly sure how long. When Hanks needed a job done at one of his properties, either he, his wife, or his son would call Dexter. Hanks always paid Dexter ten dollars per hour in cash for his work. Hanks testified that he did not have "a plan" regarding how Dexter was going to paint the roof and relied on Dexter "to know what to do." Hanks denied that he sprayed the roof on the day in question. He further testified that he never intended to go up on the roof ...


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