Plaintiff Jewell was injured when she slipped and fell inside the Members Tent at the Rolex Three-Day Event in the Kentucky Horse Park. She fell when she stepped in a puddle of water on a platform in the tent that was to be used to serve brunch. She sued the United States Combined Training Association, that sanctioned the event, Equestrian Events, Inc, that leased the space from the State of Kentucky and operated the event as show manager, Nolan Brothers, that provided the tent and Silver Spoon Catering, that provided catering services inside the tent.
The trial court granted summary judgment in favor of all defendants on the ground the conditions causing the fall were open and obvious to the plaintiff. In this opinion, the Court of Appeals agrees with the trial court that the United States Combined Training Association had no liability since it merely sanctioned the event and had nothing to do with its operation. It also agrees that Nolan Brothers had no liability since there was no evidence that the tent it provided was defective. However, it found that because plaintiff was a business invitee, Equestrian Events, the show manager, owed a duty of inspection for latent defects that may have been breached in this case. It also found that Silver Spoons catering may have been liable because it was contractually responsible for running the activities inside the tent and its employees may have tracked water onto the platform from the sodden soil inside the tent. Accordingly the Court of Appeals sent the case back to the trial court for trial against the two remaining defendants.
Pat Lacey Jewell appeals from a summary judgment entered by the Fayette Circuit Court in favor of Equestrian Events, Inc. (EEI); The United States Combined Training Association, Inc. (USCTA); The Silver Spoon, Inc., d/b/a The Silver Spoon Catering; and Nolan Brothers, Inc., d/b/a Chattanooga Tent Company. The case arose out of Jewell's slip and fall at the Kentucky Horse Park. We conclude that the circuit court properly awarded summary judgment in favor of USCTA and Nolan Brothers. However, we conclude that the circuit court erred in awarding summary judgment to EEI and Silver Spoon. Thus, we affirm in part, reverse in part, and remand.
The Rolex Three‑Day Event was held in late April 1997 at the Kentucky Horse Park. The event involves equestrian competition and was organized by EEI. USCTA sanctioned the competition and provided rules and standards for its governance. Nolan Brothers was a tent company that provided tents and rental equipment, including the tent that served as the "Members' Tent." Silver Spoon provided all catering services for the event, including catering services for the Members' Tent.
On Sunday, April 27, 1997, Jewell attended the event. She had purchased a "Members' ticket" from EEI that provided her with, among other things, tickets to a Sunday brunch inside the Members' Tent. When Jewell arrived at the park that morning, it was raining. She first attended a special worship service at 8:00 a.m. in another tent. Coffee was supposed to be available for serving in the Members' Tent at 9:00 a.m., and a brunch was scheduled to begin therein at 10:00 a.m.
Jewell was allowed entrance into the tent at approximately 9:15 a .m. by an EEI security guard positioned at the entrance to restrict entry to only those persons possessing Members' tickets. Upon entering the tent, Jewell was advised by a Silver Spoon employee that the coffee was not ready at that location, and the employee advised her to go to the other side of the tent where the coffee pots were full. A large platform area was located between the two coffee pot locations, and the brunch buffet area was on the platform. Rather than walk around the platform to the other side of the tent to get coffee, Jewell proceeded to step onto the platform so as to walk across it to get to the other side. While doing so, she allegedly slipped and fell on a puddle of water.
As a result of the incident, Jewell claimed that she was injured due to the alleged negligence of the four appellees. She filed a civil complaint against the appellees in the Fayette Circuit Court. Pursuant to the appellees' motions for summary judgment, her complaint was dismissed. In granting the summary judgment motions, the court reasoned as follows:
There is indication in the record that the Plaintiff initially blamed her fall on her poor choice of footwear. The Court notes that the rainy conditions and consequences thereof were, or should have been, obvious to everyone. Plaintiff spent much time walking around the park while it was raining and was aware of the wet and saturated conditions. The Court holds that the Plaintiff's failure to exercise reasonable diligence resulted in Plaintiff's injury.
This appeal by Jewell followed.
The parties agree that the court's reasoning was based on its finding as a matter of law that the condition was open and obvious and that the appellees had no liability for that reason. In this appeal Jewell contends that there is a fact issue regarding whether the condition was open and obvious. She also argues that she was an invitee on the premises and was not a licensee as argued by the appellees. Further, because the circuit court referred to "her poor choice of footwear," she maintains that there is also a fact issue regarding causation.
All appellees agree with the circuit court that the condition was open and obvious as a matter of law and assert that they were entitled to summary judgment for that reason. EEI, USCTA, and Nolan Brothers further argue that they had no duty to Jewell in connection with her walk across the platform. Silver Spoon, while relying on the court's conclusion regarding the open and obvious issue, alternatively argues that any duty owed by it to Jewell relates to her status as a licensee rather than an invitee. We will examine the court's summary judgment as it relates to each appellee.
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56.03. In determining whether summary judgment is appropriate, "[t]he record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr. Inc., Ky., 807 S.W.2d 476, 480 (1991). The party moving for summary judgment has the burden of establishing the nonexistence of any issue of material fact. Robert Simmons Constr. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901, 905 (1965). "The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
First, we agree that summary judgment in favor of USCTA was proper. USCTA merely sanctioned the competitive events and provided rules or standards to judge them. It presented evidence by affidavit that it had no involvement with the organization of the event or with the catering or social events. Jewell failed to present any evidence to counter this.
USCTA owed no duty to Jewell in connection with her activities inside the Members' Tent. "If no duty is owed by the defendant to the plaintiff, there can be no breach thereof, and therefore no actionable negligence." Ashcraft v. People's Liberty Bank & Trust Co., Inc., Ky.App., 724 S.W.2d 228, 229 (1987). Because no duty was owed, Jewell could not maintain any action against USCTA. Summary judgment in its favor was correct.
Nolan Brothers argues that summary judgment in its favor was also appropriate because it owed no duty to Jewell since the tent and platform it provided were not in its custody and control at the time of the accident. On the other hand, Jewell argues that summary judgment in favor of Nolan Brothers was not appropriate because there was evidence that Nolan Brothers provided a defective tent that either leaked or was prone to dripping with condensation and evidence that the platform was defective as being concave and bowing in an area so as to allow water to puddle.
We conclude there is no evidence indicating a leak in the tent sufficient to create a fact issue in this regard. There was testimony that following Jewell's fall, she stated that there must have been a leak. However, her statement was based on nothing more than the fact that there may have been water on the platform. Further, Jewell notes that in answers to interrogatories, Jane Atkinson, executive director for EEI, stated that she was informed "third hand" that the water was from a leak in a seam in the tent. However, it was never established where this information originated. Jewell also states that Willie May, executive assistant of EEI, was aware of a leaking seam in the tent. However, May stated in her deposition that her information came from Jewell herself. In short, the only indication that the tent leaked was Jewell's speculation that it must have.
As for a problem with condensation, Jewell asserts that all of the appellees, including Nolan Brothers, were aware that this was a recurring problem. What Jewell overlooks is that condensation is a natural event and is not a tent maintenance problem. Any moisture accumulating within the tent due to condensation would not have been attributable to any negligence by Nolan Brothers. Rather, condensation problems would have been the responsibility of the party or parties responsible for the activities within the tent.
As for the allegation that the platform was defective in that it may have been concave in one area, there was simply no indication in the record that the platform was bowed or defective in any manner. Furthermore, even if the platform had become bowed due to water puddling on it during the event, that would have been a maintenance problem and not Nolan Brothers' responsibility. In short, for the foregoing reasons, we conclude that summary judgment in favor of Nolan Brothers was appropriate.
Having concluded that the circuit court correctly granted summary judgment in favor of USCTA and Nolan Brothers, we turn to the issue of whether summary judgment was also correctly granted in favor EEI and Silver Spoon. We conclude hereinafter that EEI and Silver Spoon owed a duty to Jewell as a business invitee and that there are fact issues concerning the breach of that duty. However, before addressing those issues, we must address the applicability of the open and obvious rule to the facts of this case. If the rule is applied in a manner favorable to EEI and Silver Spoon, then summary judgment in their favor was also correct.
The Members' Tent was 80 feet by 140 feet and was made of vinyl. The tent had sides to it, but it had no artificial flooring. The platform where the buffet area was located was elevated and was made of wood. The wood was painted.
When Jewell entered the tent to get coffee, the buffet was not open because it was not scheduled to begin being served until 10:00 a.m. Silver Spoon employees had prepared the buffet for opening and had continually walked on and off the platform while doing so. Because the ground around the platform was wet due to the rain, the Silver Spoon employees had tracked water, wet grass, and mud onto it. According to the deposition of Silver Spoon's catering manager, Dina Maupin, Silver Spoon employees had swept water, grass, and mud from the platform prior to Jewell's fall.
The parties have debated whether the puddled water on the platform was a natural outdoor hazard or an indoor hazard. We conclude that it was clearly an indoor hazard. The puddle was on an artificial platform within the enclosed tent area.
"A possessor of business premises is not liable to his invitees for physical harm caused to them by any condition on the premises whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness." Bonn v. Sears, Roebuck & Co., Ky., 440 S.W.2d 526, 528 (1969). See also Johnson v. Lone Star Steakhouse & Saloon, Ky.App., 997 S.W.2d 490, 492 (1999). "[T]he term 'obvious' means that both the condition and the risk are apparent to and would be recognized by a reasonable man in the position of the visitor exercising ordinary perception, intelligence and judgment." Bonn, 444 S.W.2d at 529. Whether a condition is an open and obvious danger is generally a fact issue that should be presented to a jury. Wal‑Mart Stores, Inc. v. Lawson, Ky.App., 984 S.W.2d 485, 489 (1998).
The circuit court herein based its decision that the condition was open and obvious as a matter of law on the ground that "the rainy conditions and consequences thereof were, or should have been, obvious to everyone" and that Jewell "spent much time walking around the park while it was raining and was aware of the wet and saturated conditions." However, the very purpose of the tent was to provide protection from the elements. Further, the intended purpose of the platform included having patrons walk across it, particularly when participating in the buffet. While Jewell surely knew of the wet conditions both outside the tent and on the ground surrounding the platform, it does not necessarily follow that the elevated platform would be wet and slick or that the puddle of water would be open and obvious for Jewell to observe.
The court concluded that because the rainy and wet conditions were obvious to Jewell, it was her "failure to exercise reasonable diligence" that caused her fall. We believe that reasoning is faulty. Merely because it was rainy and wet outside and because the ground around the platform was wet does not mean no duty was owed by any party to Jewell when she mounted the platform and walked across it. For example, the fact that a person enters a store from the outside during rainy or snowy weather does not mean that the store owner owes no duty to the person when he or she slips and falls on water or slush that has been tracked in from the outside. See Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598 (1937).
As we have noted, the tent was enclosed with walls, and it was rainy and overcast outside. There were electric lights inside the tent, but the record indicates that those lights were in the vicinity of the bar area and were not over the platform and buffet area. Furthermore, Jewell claims that she fell in a puddle of water which would obviously have been clear. Under these circumstances we conclude that the circuit court erred in its conclusion that the condition was open and obvious as a matter of law. In other words, there is a fact issue in this regard. [FN2]
FN2. Even if the condition is determined to be open and obvious, a possessor of premises may still have liability for a fall "if the possessor should anticipate the harm despite such knowledge or obviousness." Bonn, 440 S.W.2d at 528; Lone Star, 997 S.W.2d at 492.
Having determined that there is a fact issue concerning whether the condition was open and obvious, we turn our attention to the duties, if any, owed by EEI and Silver Spoon to Jewell in connection with her walk across the platform. This duty is determined by whether Jewell was an invitee or a licensee of EEI and Silver Spoon. A licensee is one who is present on the property of another "(a) as a matter of privilege by virtue of the possessor's consent, or (b) a gratuitous licensee, for one's own convenience, pleasure or benefit pursuant to permission or acquiescence, express or implied, and without interest, profit or benefit to the possessor of the place." City of Madisonville v. Poole, Ky., 249 S.W.2d 133, 134 (1952). On the other hand, a person is an invitee if "(1) he enters by invitation, express or implied, (2) his entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner." Lone Star, 997 S.W.2d at 491‑92, quoting BLACK'S LAW DICTIONARY 827 (6th Ed.1990).
We conclude that Jewell was an invitee of both EEI and Silver Spoon as a matter of law. Jewell was present at the event organized by EEI at its express or implied invitation, and she purchased a Members' ticket which granted her certain privileges, including access to the Members' Tent. In addition, she was an invitee as to Silver Spoon in that she accepted its express or implied invitation to enter the tent and partake of their food and drink services.
Further, we are not persuaded that her status changed from invitee to licensee when she stepped onto the buffet service platform prior to 10:00 a.m., the time the buffet was to open. First, she was directed by the Silver Spoon employee to the coffee pots on the other side of the tent, and the buffet service platform stood between her and those coffee pots. Second, she was not in an area, such as a kitchen area, where she was not supposed to be. See Poole, 249 S.W.2d at 136. As in the Poole case, the place of the accident "was a prominent part of the premises to which the plaintiff was invited." Id.
The duty owed by an owner or possessor of property to a business invitee was set forth by the court in the Poole case as follows:
The owner or possessor of the property owes him the active, positive duty of keeping those parts of the premises to which he is invited, or may reasonably be expected to use, in a condition reasonably safe for his use in a manner consistent with the purpose of the invitation. If the possessor knows, or by the exercise of ordinary care or reasonable diligence could discover a natural or artificial condition which, if known, he should realize involves an unreasonable risk to the invitee and does not remedy the condition or serve fair warning of peril, he is negligent.
Id. at 135. Stated another way, the duty owed to a business invitee by the owner and possessor "is to discover the existence of dangerous conditions on its premises and either correct them or warn of them." Lone Star, 997 S.W.2d at 492.
EEI argues that it had no duty to Jewell because it neither owned nor possessed the premises on which the tent was located. It asserts that it was not responsible for the operation of the Members' Tent and that it had no duties to maintain the serving facility or platform within the tent. Rather, EEI states that it had contracted with Silver Spoon to provide the catering and that Silver Spoon had agreed to organize and maintain the space within the tent it operated. The contract further provided that Silver Spoon would indemnify EEI for injuries occurring in spaces which it controlled where such injuries arose as the result of Silver Spoon's negligence.
We reject these arguments. EEI contracted with the Kentucky Tourism Development Cabinet for the use of the Kentucky Horse Park. It possessed the entire property, including the area on which the tents were located. In fact, EEI determined the location of the various tents erected during the event. It also provided mulch for use throughout the area in the event of rain, and mulch had been delivered to the tent.
In Louisville Cooperage Co. v. Lawrence, 313 Ky. 75, 230 S.W.2d 103 (1950), the court stated that "[a] contract by which one party delegates and the other party assumes a duty in respect to safety to persons or property serves as a criterion and measure of the rights of the parties thereto as between themselves although such contract will not be permitted to avoid personal responsibility to third persons." Id. at 105. Brown Hotel Co., Inc. v. Sizemore, 303 Ky. 431, 197 S.W.2d 911 (1946), is factually similar to the case sub judice. The facts in Brown were that the plaintiff therein was injured when he stepped onto the lid covering a coal chute in a public alley at the rear of the hotel. The lid tilted and caused the plaintiff's leg to plunge into the hole. The lid had not been properly replaced over the coal chute by a fuel company worker who had dumped a load of coal into the chute. In the plaintiff's action against the fuel company and the hotel, the trial court had granted a directed verdict in favor of the hotel. On appeal, the appellate court reversed the trial court and held as follows:
Although it has always been considered settled law that an employer of another as an independent contractor is not liable for his collateral negligence, it is also quite well settled that where one causes something to be done, the doing of which casts on him a duty, he cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to the contractor, and cannot relieve himself from liability to any person injured by a failure to perform it.
Id. at 303 Ky. 435. See also 62 AM.JUR. 2D Premises Liability § 11 (1990), wherein it is stated as follows:
The duty which an owner or occupant of property is under to keep the premises in a reasonably safe condition for the use of certain entrants cannot generally be delegated by the owner so as to avoid personal responsibility, even if an independent contractor has control of the premises at the time of the injury.
In short, we hold that EEI could not escape its duty to Jewell as a business invitee despite the fact that the food service was operated by an independent contractor (Silver Spoon). Thus, the circuit court erred in awarding summary judgment to EEI.
We further conclude that Silver Spoon owed Jewell a duty as a business invitee and that the circuit court erred in granting summary judgment in its favor. Jewell was on the Kentucky Horse Park premises as a business invitee of EEI. While EEI possessed the entire premises, it granted control of the portion of the premises within the tent to Silver Spoon. Pursuant to contract with EEI, Silver Spoon was in charge of the activities within the tent. Jewell came into the tent as a business invitee for the purpose of utilizing the food and drink services of Silver Spoon. Its liability is pursuant to the general rule stated at 62 AM.JUR. 2D Premises Liability § 10 (1990) as follows:
A person put in control of premises or a part thereof by the owner is under the same duty as the owner to keep the premises under his control in safe conditions. To similar effect, it has been said that one who does an act or carries on an activity on land on behalf of the possessor is subject to the same liability, and enjoys the same freedom from liability, for physical harm caused thereby to others on or outside of the land as though he were the possessor of the land. In such cases, the decisive test of liability is control of the work, and not the actual transfer of possession by contract.
Finally, we address the argument that Jewell's choice of footwear caused her injury. The circuit court mentioned, and the evidence supports, the fact that Jewell initially blamed her fall on her choice of footwear. We conclude that at best the issue over Jewell's choice of footwear merely creates a fact dispute over causation. Where reasonable minds could differ on the question of causation, the issue is one for the jury to decide. See Woosley v.. Smith, Ky., 471 S.W.2d 737, 738 (1971).
The judgment of the Fayette Circuit Court is affirmed in part, reversed in part, and remanded.
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