553 S.W.3d 262
Ky. Ct. App.2018Background
- On April 6, 2014, Boone permitted Rick Pounds to fish on his property; Rick and his son Darren invited Ubong David and David's girlfriend to join.
- Darren and Ubong used Boone's john boat; the boat capsized, Ubong (a non-swimmer) drowned despite Darren's rescue attempt.
- Estate of Ubong David sued Boone, Darren, Rick, and Christian Sterling (Sterling later dismissed); Darren and Rick moved for summary judgment; Boone filed a motion treated as summary judgment.
- Trial court granted summary judgments for Boone, Darren, and Rick based on KRS 150.645(1) recreational-use immunity; Estate appealed.
- Appellate court reviewed de novo and affirmed immunity for Boone but reversed as to Darren and Rick, remanding for further proceedings on duty and breach as to the Pounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of KRS 150.645(1) | Estate: statute unconstitutional | Defendants: statute constitutional and analogous to KRS 411.190 | Statute constitutional; court extended Sublett to KRS 150.645(1) |
| Applicability of recreational-use immunity to Boone | Estate: genuine issues (willful/malicious; lack of discovery) preclude summary judgment | Boone: invited persons to fish; statute bars duty to warn or keep premises safe | Affirmed: Boone entitled to immunity; no duty to warn or provide life jackets when owner not present |
| Applicability of immunity to Darren and Rick Pounds | Estate: Pounds were occupants/controlling persons or acted willfully/maliciously; failure to provide life preserver defeats immunity | Pounds: relied on KRS 150.645(1) protections as occupants/permitters | Reversed and remanded: Pounds are not "occupants"/in control under statute; immunity does not apply; trial court must address duty and breach |
| Sufficiency of discovery for summary judgment | Estate: lack of discovery prevented resolution of factual disputes | Defendants: no genuine material facts to prevent judgment under statute | Court: discovery issue moot for Boone; for Pounds, remand permits further factual development regarding duty |
Key Cases Cited
- Blevins v. Moran, 12 S.W.3d 698 (Ky. App. 2000) (summary-judgment de novo review)
- Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476 (Ky. 1991) (summary judgment terminates cases lacking evidentiary support)
- Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky. 1985) (movant must show respondent cannot prevail)
- Sublett v. U.S., 688 S.W.2d 328 (Ky. 1985) (upholding recreational-use statute constitutionality)
- Huddleston By & Through Lynch v. Hughes, 843 S.W.2d 901 (Ky. App. 1992) (interpreting "willful and malicious" exception)
- Collins v. Rocky Knob Assocs., Inc., 911 S.W.2d 608 (Ky. App. 1995) (further discussion of willful/malicious standard)
- Roach v. Hedges, 419 S.W.3d 46 (Ky. App. 2013) (statute protects persons in control of premises)
- Bryant v. Jefferson Mall Co., L.P., 486 S.W.3d 310 (Ky. App. 2015) (KRS 150.645(1) supersedes common-law duty distinctions)