Stepp v. Mem'l Hosp.

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WILMA STEPP APPELLANT v. MEMORIAL HOSPITAL, INC., D/B/A WILLOWBROOK WOMEN'S CENTER AND FAMILY PRACTICE, INC. APPELLEE

No. 2022-CA-0614-MR

Court of Appeals of Kentucky

June 9, 2023

NOT TO BE PUBLISHED

Appeal from Clay Circuit Court Honorable Oscar G. House, Judge Action No. 14-CI-00224

Briefs and Oral Argument for Appellant: Kenneth S. Stepp Manchester Kentucky

Brief for Appellee: Joseph M. Effinger Ryan D. Nafzinger Matthew A Piekarski Louisville, Kentucky

Oral Argument for Appellee: Matthew A. Piekarski Louisville Kentucky

Before: Easton, Goodwine, and Taylor, Judges.

OPINION

TAYLOR, JUDGE

Wilma Stepp brings this appeal from a September 18, 2019, order of the Clay Circuit Court granting summary judgment and dismissing Stepp's premises liability action against Memorial Hospital, Inc., d/b/a Willowbrook Women's Center and Family Practice, Inc. (Memorial Hospital). We affirm.

The underlying facts are rather straightforward. On the morning of August 8, 2013, Wilma and her husband, Kenneth Stepp,^[1] went to the medical office building of Willowbrook Women's Center and Family Practice. It is uncontroverted that Wilma and Kenneth visited the premises for the express purpose of taking photographs of the outside of the medical office building. Apparently, Stepp's mother had previously fallen there and had been injured. After taking the photographs, Wilma was walking down the steps of the office building, when she slipped and fell, resulting in a broken leg.

As a result, on August 5, 2014, Wilma filed a complaint in the Clay Circuit Court against Memorial Hospital. She filed an amended complaint on August 8, 2014. In the complaint, as amended, Wilma asserted that she was an invitee on the business premises at the time of her injury, that Memorial Hospital was negligent in maintaining the premises, and such negligence caused her fall. Wilma asserted claims for damages for pain and suffering and physical injuries. Memorial Hospital answered the complaint and generally denied any negligence.

In April of 2018, Memorial Hospital filed a motion for summary judgment. Therein, Memorial Hospital argued that Wilma was on the medical office premises without express or implied invitation. Memorial Hospital claimed that Wilma's sole purpose was to take photographs, and her presence there was not related to its business. As a result, Memorial Hospital maintained that Wilma was a trespasser at the time of her fall. As a trespasser, Memorial Hospital argued that it could only be liable for injuries intentionally inflicted upon Wilma, which undisputedly did not occur.

Wilma filed a response and pointed out that the steps to the office building did not have "yellow stripes, black stripes, or other painting," thereby rendering the steps unsafe and dangerous.

By order entered September 18, 2019, the circuit court granted Memorial Hospital's motion for summary judgment and dismissed Wilma's premises liability action. It reasoned:

This Court finds that [Wilma] was a trespasser onto Memorial Hospital's property, and therefore, liability is precluded by statute under the facts of this case. Further, even if [Wilma] were not a trespasser, Memorial Hospital breached no duty to her, as the subject set of stairs are not unreasonably dangerous. Accordingly, Memorial Hospital is entitled to summary judgment and dismissal of all claims against it.

September 18, 2019, Order Granting Summary Judgment at 1.

Thereafter, on September 24, 2019, Wilma filed a motion to alter, amend or vacate the summary judgment. In the multiple pleadings and memoranda that Wilma would file in the days and months after filing the motion, she argued that she was not a trespasser as the stairs were open to the public. Wilma also submitted various building codes as to stairs, submitted multiple affidavits and pictures taken at a local zoo, and also filed an expert report authored by an architect. In addition, she also served additional requests for interrogatories and document production requests.

The circuit court ultimately denied Wilma's motion to vacate by order entered May 10, 2022. The court reiterated that Wilma was a trespasser at the time of her fall and that the stairs were not unreasonably dangerous. This appeal follows.

Wilma contends that the circuit court erred by rendering summary judgment dismissing her premises liability action against Memorial Hospital.

To begin, summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). All facts and inferences therefrom are viewed in a light most favorable to the nonmoving party. And, our review of summary judgment is always de novo. Seiller Waterman, LLC v. Bardstown Cap. Corp., 643 S.W.3d 68, 74 (Ky. 2022); Cunningham v. Kroger Ltd. P'ship I, 651 S.W.3d 199, 202 (Ky. App. 2022).

Wilma asserts that the circuit court erroneously determined that she was a trespasser at the time of her fall. For the following reasons, we agree.

In Kentucky, an individual who enters upon the real property of another is classified as either an invitee, licensee, or trespasser. Carney v. Galt, 517 S.W.3d 507, 511 (Ky. App. 2017). An invitee is one who "enters upon the premises at the express or implied invitation of the owner or occupant on behalf of mutual interest to them both, or in connection with the business of the owner or occupant." Shelton v. Ky. Easter Seals Soc'y, Inc., 413 S.W.3d 901, 909 (Ky. 2013). A licensee is one "whose presence upon land is solely for his own purpose, in which the possessor has no interest, either business or social, and to whom the privilege of entering the premises is extended as mere favor by express consent or by general or local custom." Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565, 567 (Ky. App. 2014) (citation omitted). Finally, a trespasser is one who enters property without permission, consent, or legal right to do so. Kentucky Revised Statutes (KRS) 381.231; Howard v. Spradlin, 562 S.W.3d 281, 285 (Ky. App. 2018); Carney, 517 S.W.3d at 511. As to summary judgment, the determination of whether an individual is an invitee, licensee, or trespasser presents an issue of law if the material facts are undisputed. City of Barbourville v. Hoskins, 655 S.W.3d 137, 141 (Ky. 2022). If the material facts are disputed, such facts must be submitted to a jury. Carney, 517 S.W.3d at 512.

In this case, the material facts are undisputed. On the day of her fall, Wilma had entered upon the front porch of the medical office building for the sole purpose of taking photographs related to her mother's fall days earlier. It is clear that Memorial Hospital did not grant Wilma express permission or consent to do so. In fact, Wilma entered upon the front porch before the medical clinic operating in the building opened for business.

From the above uncontroverted facts, Wilma would not qualify as an invitee as her entry was neither connected to Memorial Hospital's business nor for the mutual benefit of Memorial Hospital and Wilma. Rather, Wilma qualifies as a licensee as her entry was for her own benefit and the exterior steps and front porch of the building were freely open to and customarily accessible by the public. For these reasons, Wilma is not a trespasser. However, our inquiry does not end here.

As to a licensee, the possessor of land owes the licensee "a duty . . . to [not] willfully or wantonly injure the licensee and to warn of dangerous conditions known by the" possessor. Klinglesmith, 445 S.W.3d at 568. To prevail, the licensee must demonstrate that the possessor breached the duty of care and that such breach, in fact caused his injury. Id. It must be...