Standard of Review Motion for Summary Judgment on Appeal
902. Summary Judgment Reversed on Appeal; Torts. Sideslip and Autumn, Premises Liability, Ice and Natural Hazards
Ollie Barker vs. John D. Northcutt
Rowan County, Estimate William Evans Lane
Not to be Published, ix/20/2013
Here is the summary judgment portion of the opinion detailing the standard and the opposing party's burden:
At the outset we annotation that the applicable standard of review on appeal of a summary judgment is, "whether the trial court correctly plant that there were no genuine bug as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres five. Kraft, 916 S.West.2d 779, 781 (Ky. App. 1996). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if whatsoever, show that there is no 18-carat result as to any material fact and that the moving party is entitled to judgment as a matter of law." Kentucky Rules of Ceremonious Procedure (CR) 56.03. The trial courtroom must view theecord "in a light well-nigh favorable to the political party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Service Center, Inc., 807 Due south.Westward.second 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the agin party could not prevail under any circumstances." Id. However, "a party opposing a properly supported summary judgment move cannot defeat that movement without presenting at least some affirmative testify demonstrating that there is a genuine issue of textile fact requiring trial." Hubble v. Johnson, 841 S.W.second 169, 171 (Ky. 1992), citing Steelvest, supra. Run into also O'Bryan 5. Cave, 202 S.West.3d 585, 587 (Ky. 2006); Hallahan five. The Courier Journal, 138 Due south.W.3d 699, 705 (Ky. App. 2004).
Since summary judgment involves simply legal questions and the being of whatever disputed fabric issues of fact, an appellate courtroom need not defer to the trial court'south decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001). With this in mind we at present turn to the issues raised by the parties.
CAPERTON, Gauge: Ollie Barker appeals from the grant of summary judgment in favor of John D. Northcutt and Northcutt & Son Home For Funerals, Inc. (hereinafter "Northcutt"). Afterwards our review of the parties' arguments, the record, and the applicable law, nosotros hold with Barker that a genuine outcome as to a material fact exists precluding summary judgment. Thus, we reverse and remand this matter for further proceedings.
The facts of this case revolve around a slip and fall outside of Northcutt'south Home for Funerals.
On entreatment, Barker argues that the trial court erred in granting summary judgment. Northcutt argues: (1) based on longstanding Kentucky law regarding naturally occurring outdoor hazards, the grant of summary judgment was correct; and (2) Barker's interpretation of Kentucky River Medical Heart v. McIntosh, 319 Due south.W.3d 385 (Ky. 2010) is misplaced.ane With these arguments in mind we turn to our jurisprudence.
In Kentucky, a danger is "obvious" when "both the condition and the risk are apparent to and would be recognized by a reasonable man in the position of the company exercising ordinary perception, intelligence, and judgment." Bonn five. Sears, Roebuck & Co., 440 S.W.2d 526, 529 (Ky. 1969) (citations omitted). "Whether a natural chance like ice or snow is obvious depends upon the unique facts of each example." Schreiner 5. Humana, Inc., 625 S.W.2d 580, 581 (Ky. 1981).
Barker was aware of the choppy weather. Contrary to the arguments of Northcutt this awareness by itself does not mandate summary judgment. Unlike the plaintiff in Green, it was non until later he barbarous that Barker could encounter that ice was present, that it had mounded2 up and that information technology was plainly visible. We believe that under these facts summary judgment was premature because in that location is an event regarding the obviousness of the hazard prior to Barker's falling. As such, nosotros opposite and remand this matter for further proceedings.
Source: https://kycourtreport.com/std-of-review-summary-judgment-on-appeal-and-opposing-party-presenting-some-affirmative-evidence/
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