358 S.W.3d 23
Ky. Ct. App.2011Background
- True leased a second-floor apartment from Fath Bluegrass Manor on May 13, 2008.
- Premises were inspected; balcony railing was noted as very loose on move-in checklist.
- True knew the railing was loose and the landlord had not repaired it before the fall.
- The landlord had prior repair activity (tightened spindle) but not to the loose railing as of move-in.
- True was injured when the balcony railing collapsed; evidence later showed railing damage and missing screws.
- Fath moved for summary judgment, which the circuit court granted on negligence theories, leading to dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there a genuine issue of material fact on liability for open and obvious danger? | True argues material facts about open/obvious danger and foreseeability require trial. | Fath contends the hazard was open/obvious and no duty to repair absent unknown defects. | Open/obvious exception not applied; no liability as risks were known. |
| Does the case fall under negligent repair claims or landlord's duty when premises are taken as is? | True contends negligent repair theories; tenant relied on repairs. | Fath argues no negligent-repair claim because railing was already known loose and not repaired; premises taken as is. | Not a negligent repair claim; liability precluded by as-is doctrine. |
| Whether McIntosh alters the outcome and requires remand for application of its rule? | True seeks remand to apply McIntosh open/obvious modification. | Fath asserts McIntosh does not apply to these facts. | McIntosh does not apply; remand unnecessary. |
| Did True’s remembered facts (intoxication, fault, and control) create jury issues? | Disputed facts exist that would go to a jury. | Disputed facts are immaterial under governing law; no liability. | Material disputed facts do not survive open/obvious and as-is analysis; no trial needed. |
Key Cases Cited
- Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188 (Ky.App.2006) (landlord not liable for injuries absent unknown or non-discoverable defects; breach of repair covenant generally not extend liability)
- Miller v. Cundiff, 245 S.W.3d 786 (Ky.App.2007) (tenant aware of condition; URLTA not a statewide replacement of common law)
- Mahan-Jellico Coal Co. v. Dulling, 282 Ky. 698, 139 S.W.2d 749 (1940) (negligent repairs may raise liability if repairs create danger; but premises taken as is otherwise)
- Lucas v. Gateway Community Services Organization, Inc., 843 S.W.3d 341 (Ky.App.2011) (reasonably foreseeable distraction required for open/obvious risk exception)
- Spinks v. Asp, 192 Ky. 550, 234 S.W. 14 (1921) (breach of repair covenant not extending landlord liability; damages limited to repair costs)
- University of Louisville v. RAM Engineering & Construction, Inc., 199 S.W.3d 746 (Ky.App.2005) (URLTA supplementing, not replacing, common law)
- Carver v. Howard, 280 S.W.2d 708 (Ky.1955) (landlord must exercise ordinary care for common-use premises; control analysis discussed)