*1
471
party
sor of
present Supreme
since. Neither
asserts
our
Court held
community
sought
has
to serve
else
the
that a special judge who
pre-
continued to
during
his
the office
tenure.
side over a
expired
trial
his term
acting
judge.
as a de
Because the
facto
agree
We
with the Commonwealth
special judge
lawfully
had been
appointed,
that,
recognize
will
general, courts
the
“his continued action ...
performed
[was]
valid.
acts of de
officers as
facto
Schaf
under color
authority
of
and
so as to
Hebel,
358,
84,
Ky.
801
v.
field
immunize it
attack
upon
based
the
(1946).
87
based on
reasoning
This
the
ground that it was
void
absolutely
ab ini-
public
interest
policy
preserving “the
tio.” Id. at 27.
rights
persons
general
of third
the
and
854,
public.” Healy
Ky.
v.
304
Covington,
The Gourleys сontend that Mantle’s lack
725,
(1947).
202
727
S.W.2d
qualification
rendered the warrant void
The
Court of
United
Supreme
However,
the
States
ab
persuaded
initio.
we are
recently
has more
the public pol-
discussed
authority
because of his de
as
facto
icy
underlying
justifying
interest
and
the
Feck,
described in Holland and
the war-
de
In
concept
Ryder
of a
officer.
v.
Therefore,
rant was indеed valid.
the trial
facto
U.S.,
177, 180,
2031,
515 U.S.
115 S.Ct.
court did not err in its
of the
denial
Gour-
(1995), the Supreme
precisely the same force effect as
acts of other.” v. Holland Stubble
field, supra. Gourleys contend JONES, Appellant, Mazie been appointed
Mantle had not and sworn in to current he signed “term” when v. warrant, he could not be de facto Billy ABNER, Lil' Abner d/b/a they rely officer. In so arguing, Motel, Appellee. Commonwealth, Creighton Ky. No. 2009-CA-001441-MR. Creighton, the of- legally ficer at issue had never entered Appeals Kentucky. contrast, office. at Mantle had one March time legally appointed and sworn into Commonwealth, Ky. office. In Feck (Ky.1936), predeces- *2 Billy Abner,
ment in favor of Lil’ d/b/a Abner her personal Motel as to injury lawsuit motel. Appellant *3 injured slipped when she and fell while getting into a bathtub at the Ap- motel. pellant asserts that was inappropriate a genuine because issue of material fact existed as to whether the condition of the bathtub was unreasonably dangerous and a substantial cause of her injuries. However, review, after our we affirm. History
Facts and Procedural husband, Appellant and her Arnold Jones, arrived at Lil’ Abner Motel on 21, 2006, Friday, July for a stay. weekend Appellant upon showered her arrival at the motel again the following day. On Sunday morning, went Appellant into the bathroom began and once again preparing to take a shower. With the running, water put she into foot the bathtub. foot, picked As she left up her she slipped and hit the side of her head end of the tub. She taken ambu- County lance to Regional Clark Hospital and later to the University transferred Kentucky Hospital. Appellant suffered a concussion as a of her result fall and was required a undergo number of dental surgeries, including procedures to attach Jackson, KY, Howard, Melissa G. for plates jawbone. to her appellant. Appellant subsequently filed a personal Dаvis, Stanton, KY, James appel- E. injury against Appellee lawsuit in which
lee. she cited the bathtub’s condition as an STUMBO, Before Judges; ACREE and unreasonably dangerous condition that she LAMBERT,1 Judge. Senior encountered as an invitee on the motel premises. Appellant specifically contend- OPINION ed that the bathtub was LAMBERT, Judge: Senior of the methods to clean it and that this slipperiness by Ap- Mazie Jones from the was exacerbated appeals Powell entry pellee’s Circuit Court’s judg- failure to install maintain and/or Judge Joseph sitting tucky Senior Kentucky E. Lambert as Constitution and Revised Special Judge by assignment (KRS) of the Chief Jus- Statutes 21.580. 110(5)(b) pursuant tice to Section of the Ken- taken in 2007 photograph of the bathtub devices in the non-slippage appropriate non-slip eight including showing a handrail and there were bathtub — the bottom of the tub. safety strips at on the of the bathtub noted bottom Appellant’s allegations, Appellee denied knowledge, to the best of num- take a proceeded and the parties the tub changes made to since had been discovery depositions. ber of Appellant’s fall. claimed deposition, housekeeper Alberta at the fell the day motel, that she cleaned sub- testified two during had been slicker than it Saturday afternoon with a ject bathtub on *4 showers, “no idea” previous but she had spray and water while Joneses Clorox that why especially tub was slick According to waited outside. that morning. Appellant assumed dry a practice was to use bath genеral be- and tub had cleaned bathroom towel to bathtub down clean- wipe a Saturday and showers Friday tween her it, “always” ing and noted that she did she dirty no towels in the because there were on this occasion. She fur- including this— bathroom, made a similar infer- and she cleaning solution in ther indicated that the had been cleaned ence that the bathroom slick. Bow- question рarticularly was not Saturday Sunday show- between her en testified was “irritated” Appellant that many not recall how ers. could Appellant not been cleaned because the room had safety strips were the bathtub non-slip earlier, but that she cleaned she indicated on, was but she noted that there stand usual manner even bathtub in her in the tub. She also ac- safety rail though she Bowen also not- felt “rushed.” that she did consider knowledged in the ed that all the bathtubs motel prior unsafe her fall. bathtub to be safety strips “all over non-slip contained Jones, husband, Arnold tes- Appellant’s strips those were the bottom” and that person the first to hear tified that he was they ever replaced regularly if became
Appellant running that water fall and was loose. Bowen further testified that when he found When the bathtub her. prior again not cleaned was any whether there were non- asked about Appellant’s fall. bathtub, safety devices slippage filed mo- Appellee On June that “it had about four Jones indicated summary judgment asserting tion for that “just were strips” they that more Appellant not show that encoun- could less in the cеnter.” He further noted unreasonably dangerous tered an condition they were looked “old” and there Appellee’s at the motel or that actions side,” coming off the an indi- “strings in causing were a factor substantial they were worn. blamed cation that Jones injuries. argued that be- Appellant’s safety Appellee a lack of rails and further fall on of the “something better” bottom cause the of the bathtub was condition bathtub, acknowledged obvious, but he that he Appellant should be motel not told at the that he recovery. The trial court barred from safety the tub. concerned about summary judgment Appellee granted grounds only could Appellant disagreed with Arnold Jones’ Appellee her to fall speculate what caused as to strips. depiction He testified that she unable to show she had in the contained every bathtub motel unreasonably dangerous encountered slip-resistant strips and that the ones in This by Appellee. appeal condition caused Appellant’s replaced were room He followed. produced to her fall. also spring prior Analysis tions and the existence disputed material issues of appellate On appeal, Appellant argues that sum- court need not defer to the trial court’s mary judgment inappropriate decision and will review the issue de of the existence of genuine issues of mate- novo. rial fact. specifically contends
that questions existed as to whether the
(Internal
Id. at 436
footnotes and citations
number and
non-slip
safe-
condition
omitted).
ty
the bathtub and the solution
parties
agree that
guest
as a
used to clean the bathtub
created
dan-
motel,
Appellant was a business invi
gerous condition that
injuries.
caused her
tee.
generally
See
Lanier v. Wal-Mart
The standards for reviewing a trial court’s
Stores, Inc.,
(dis
party,
summary
judgment should be
ably safe condition for the use of busi-
granted only if
appears
it
impossible
ness invitees.
that the nonmoving party will be able to
produce evidence at trial warranting a Martin v. Mekanhart Corp., 113 S.W.3d
judgment in his favor. The moving par-
95, 98 (Ky.2003);
Lanier,
see also
99
ty bears the initial burden of showing S.W.3d at 435-36.
that no genuine issue of material fact
Appellant claims that
the motel
exists, and then the burden shifts to the
bathtub was unreasonably dangerous for
party opposing summary judgment
to
First,
two reasons.
argues
present “at least some affirmative evi-
bottom of the bathtub
overly
slick and
dence showing that
there
genuine
is a
thаt this slickness was attributable to the
issue of material fact for trial.” The
practices
cleaning
Appellee’s employ
of.
evidence,
trial court “must examine the
specifically, that cleaning residue was
not
ees—
to decide
issue of
but to
left on the
bottom the tub when it was
if
discover
a real issue exists.” While
cleaned the day
before her fall.
Steelvest2 usеd the word
Appellant’s argument
nothing
amounts to
“impossible” in describing the strict
more,
pure
than
conjecture because she
standard for summary judgment,
provides nothing of substance to
support
later stated that
her position.
sense,
word was “used in a
Alberta
practical
the motel
not
in an
housekeeper,
absolute sense.” Because sum-
testified that she cleаned the
mary judgment
only
involves
legal ques- bathtub on Saturday morning with Clorox
Steelvest,
Center,
Inc.,
Inc. v. Scansteel
(Ky.1991).
Service
spray and that her it wipe rinse the bathtub and remains the fact that then out there further She dry towels. down the bathtub without previously twice pro- this same claimed that she followed have and must be assumed to incident Appellant’s bathtub. cleaning cess the condition of the fully aware of only specu- offers response, Appellant part “Reasonable care tub. a “slick residue” hypothesis lative premises of business does possessor after it was cleaned.3 left even ordinarily require precaution or our satisfy standards This does not warning against dangers that are known opposing “The summary party judgment. or to him that he the visitor so obvious rely on their cannot may expected to discover them.” John be signifi- arguments claims without own or & v. Lone Star Steakhouse Saloon son prevent a sum- cant in order Inc., 490, (Ky. Kentucky, 997 S.W.2d Wymer Proper- mary judgment.” v. JH Sears, Bonn v. Roe App.1999), quoting Inc., ties, (Ky.2001). 50 S.W.Sd Co., (Ky.1969). buck & S.W.2d Accordingly, “speculation supposition” Moreover, Appellant produced has no evi motion for are not to survive a enough showing if the that even dence Cave, O’Bryan judgment. frayed, they failed to worn and nonetheless (Ky.2006), quoting Chesa- to her job their somehow contributed do Yates, Ry. & peake Ohio Co. Appellant provided fall. substantive Appellant essentially way the strips gave or slid out proof something caused assumes *6 feet or were so worn from beneath her to fall evidence providing without they trac provide adequate that failed to Thus, claim assumption. this support Instead, Appellant simply tion. assumes to the trial provides no basis reverse allegedly their deteriorated state was that summary judgment. entry court’s of above, of her fall. As noted this a cause that a lack Appellant next asserts enough is to overcome a speculation not non-slippage adequate of devices summary judgment. for proper motion unreasonably danger bathtub created that We further note the risks The ous condition that caused her fall. bathing open, or are showering inherent summary judgment trial court’s order of that to who has apparent, that obvious Appellee noted establishеd safety strips in the tub non-slippage taken a or shower. See Kutz v. ever bath good changed regu were condition Koury Corp., N.C.App. 377 S.E.2d larly. Appellant’s husband dis (1989) (“It knowledge is common events, testifying this that puted version of surfaces, wa especially that bathtub when strips frayed. Appel were worn added, soap ter and are are testimony argues conflicting lant that the taken when that care should be one bathes genuine issue of on this issue creates showers.”). this, or Because of we decline to we are inclined but not material law, assume, as of motels to a matter agree. duty pro hotels have an automatic to or such precautions against vide conditions. testi Appellant’s
Even if husband’s Appellant seems to assume a bathtub mony about the condition of the grant safety strips and we to or equipped accurate that is fall, deposition although in her We also con- she admitted note employees on the water in the bathtub imme- tends that of the motel ob- she turned none get soap diately attempting to before in. served water or the bathtub STUMBO, inherently dangerous is an con Judge, hand-hоlds concurs. dition, produce to but she failed ACREE, Judge, concurs and flies standard, any type industry statutory separate opinion.
law, argu or common-law rule that could ACREE, Judge, concurring: ably part duty Appellee reflect a Respectfully, separately I write equip with such safety to motel bathtubs I believe it to important consider Kentucky The of a motel devices. owner or hotel McIntosh, River Medical Center duty degree has “the to exercise that S.W.3d 385 judi- case sub careful, ordinarily generally care ce summary judgment demonstrates that prudent operators hotel circumstances is still available in proper despite cases case, proven to those to similar analysis fact that under McIntosh does not accommodations,” provide reasonably safe stop with a determination that a hazard is guest’s he is not an of a safety. but insurer open and obvious. See Blue Grass Restaurant Co. Frank allow or “[T]o known obvious conditions lin, (Ky.1968); 424 S.W.2d Brown always to possessors absolve land from Marx, Hotel Co. v. any liability to ‘wouldbe resurrect contrib- (Ky.1967). Appellant simply did not pro ” utory McIntosh, negligence[.]’ anything vide the trial court with of sub S.W.3d at 391. “[t]he With focus on fore- to meet stance this burden. seeability!,]” our Court embraced reasoning underlying Restatement finally We note that while “[a]n (Second) 343A(1) § of Torts cmt. f invitee has a to assume that possessor “sometimes ‘the has reason premises he has been invited to use are expect may that the invitee’s attention reasonably doеs not safe this relieve distracted, be he will not so that discover duty ordinary him of the care exercise obvious, what forget or will what he has safety, his own does it nor license him discovered, to protect fail himself ” walk blindly dangers into that are obvi Id., it.’ quoting Restatement *7 ous, him, known to be anticipated or would (Second) 343A(1) § cmt. f. Torts by one of ordinary prudence.” Rogers v. Supremе thereby recognized Court what it America, Ass’n 28 refers to as a plaintiffs “defense fore- Professional Golfers (Ky.App.2000), quoting seeable distraction” that undermines the Smith, (Ky. Smith v. formerly open-and-obvious determinative 1969). such, if doctrine. non-slip As and even the Id. at 394. safety not in
page good repair, McIntosh, record the demonstrated Appellant knew or should have known of (an рlaintiff emergency medical harm, potential duty and she had a moving patient technician from an emer- take because of care for her own hospital’s emergency gency vehicle to the room) using risks attendant bathtub. distracted from the foreseeably Accordingly, of an uneven curb open we believe and obvious hazard appropriate this сase. between the ambulance dock and the judgment
emergency Noting room doors. Id. it was “important to stress context in which Conclusion McIntosh her injury!,]” sustained reasons, For the foregoing her “dire need to emphasized that by entered the Powell critically through Circuit rush ill patients emergency should be self- affirmed. room entrance ard, focus, evident”; necessarily, should hаve unques- Jones’ such a distraction was Obviously, it on the hazard itself. tionably hospital foreseeable which presented was not. Jones expect that the invi- every “reason to distracted from whatsoever that she was the known or proceed tee will to encounter reasonably to ensure her “duty to act the advan- danger because obvious familiarity heightеned by safety, own health and tages doing [preserving so arguably the location and outweigh apparent would saving lives] Id. at danger.” nature of and obvious (Internal marks and quotation risk.” Id.- omitted). citation clearly distinguish- this case- is Because McIntosh, plaintiff “the Consequently, McIntosh, concur. able from I distraction, of foreseeable
had the defense Id. attending patient.” as she
Mazie Jones had no such defense. Where- properly focus was and fore-
as McIntosh’s than the haz-
seeably something other