Opinion
NO. 2011-CA-000788-MR
09-28-2012
EUGENE CASEY AND DENISE CASEY APPELLANTS v. CHARLES W. GRISSETT, SR; CAROL L. GRISSETT; CHARLES W. GRISSETT, JR.; CATHERINE S. GRISSETT; AND DAVID PAYTON APPELLEES
BRIEFS FOR APPELLANTS: Joseph T. Pepper Louisville, Kentucky George Schuhmann Louisville, Kentucky BRIEF FOR APPELLEES CHARLES W. GRISSETT, SR. AND CAROL L. GRISSETT: W. Douglas Kempler Louisville, Kentucky BRIEF FOR APPELLEES CHARLES GRISSETT, JR. AND CATHERINE GRISSETT: David G. Richardson Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 09-CI-007487
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND THOMPSON, JUDGES. COMBS, JUDGE: Eugene Casey and Denise Casey, his wife, appeal from the January 12, 2011, order of the Jefferson Circuit granting summary judgment in favor of Charles W. Grissett, Carol L. Grissett, Charles W. Grissett, Jr., and Catherine S. Grissett. We affirm.
On August 2, 2008, Charles Grissett, Jr. ("Chuck)" asked his nephew and one of his tenants, Eugene Casey, to help move a filing cabinet from Chuck's home to the home of his parents ("the Grissetts"). The two men agreed to help move the cabinet without compensation. Using a hand truck, Casey and Chuck's nephew maneuvered the cabinet up Chuck's basement stairs and loaded it onto a truck. Chuck's nephew then left. Chuck asked David Payton to help Casey unload the cabinet at his parents' home and to move it into the Grissetts' basement. While hauling the cabinet down the basement stairs, Payton let go of the hand truck. As the cabinet shifted, Casey, who had been beneath it, jumped from the stairs to avoid being crushed by it. Casey fell to the basement floor breaking his leg and hip.
On July 27, 2009, Eugene and Denise Casey filed a personal injury action against Chuck; his wife, Carol; his parents (Charles and Catherine Grissett); and David Payton. The Caseys alleged that the defendants had negligently hired, instructed, managed, and supervised the movers of the cabinet; failed to provide proper equipment, tools, and safety measures to them; and failed to inspect and maintain the property in a reasonably safe condition or to warn him of the dangerous conditions at the property. Casey alleged that he had exercised due care for his own safety and that the defendants' negligence alone caused him to suffer permanent injuries.
Chuck, his wife, and the Grissetts answered, denying the allegations. In September 2010, they filed motions for summary judgment. Evaluating the motions, the court concluded as follows:
Here, because the injurious event took place on the Grissetts['] property and because [Chuck] employed neither Mr. Casey nor Mr. Payton, the Grissetts are the only proper party who owed Mr. Casey a duty. Therefore, the Court must grant [Chuck's and his wife's] Motion for Summary Judgment.On January 12, 2011, the Jefferson Circuit Court granted summary judgment in favor of Chuck, his wife, and the Grissetts. By order entered April 7, 2011, the court denied the Caseys' motion to alter, amend, or vacate. This appeal followed.
* * * * *
Having concluded that Mr. Casey was an invitee, the Grissetts owed Mr. Casey a duty to discover unreasonably dangerous conditions on the land and to either correct them or warn of them, unless moving a 1,000 lb. [cabinet] down a flight of stairs was open and obvious. Perry 824 S.W.2d at 875; see also McIntosh, 319 S.W.3d at 388. Even in the light most favorable to Mr. Casey, the Court must at this time presume that voluntarily descending a flight of stairs with a 1,000 lb. [cabinet] was not an uncorrected unreasonably dangerous condition and that by the nature of the activity Mr. Casey knew of its risks and was further warned by Mrs. Grissett.
Therefore, the Court agree with the Grissetts that no genuine issues of material fact exists and that under the legal principles just stated, the Grissetts did not breach their duty of care toward Mr. Casey. The risk that the weight of a 1,000 lb. [cabinet] "hitched to a dolly" would shift while descending stairs and a person would be injured was or should have been as apparent to Mr. Casey as to the Grissetts. The Grissetts thus had no duty either to prevent the [cabinet] from falling onto Mr. Casey or to warn Mr. Casey that such accident was possible.
Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, stipulations, admissions, and/or affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03. Since no factual findings are at issue under such circumstances, we do not defer to the trial court. Instead, we undertake a de novo review of the legal issue. Baker v. Weinberg, 266 S.W.3d 827 (Ky.App. 2008).
This is a negligence action which requires proof that: (1) the defendants owed the plaintiff a duty of care, (2) the defendants breached the standard by which their duty is measured, and (3) consequent injury followed (actual harm coupled with legal causation). Pathways, Inc. v. Hammons, 113 S.W.3d 85 (Ky. 2003), citing Mullins v. Commonwealth Life Insurance Co., 839 S.W.2d 245 (Ky. 1992).
On appeal, the Caseys argue that the trial court erred by concluding that neither Chuck nor the Grissetts owed a duty of care to Eugene Casey. They contend that Chuck and the Grissetts could reasonably have foreseen that Casey would be injured "when Chuck chose to entrust David Payton with [Casey's] safety." Brief at 7. They argue that the defendants had a duty "to secure competent help before the move" and that it was obvious that a negligent act by Payton could pose an unreasonable risk of harm to Casey. Brief at 8. The Caseys also contend that the defendants' decision to substitute David Payton for Chuck's nephew during the move was the legal cause of their injuries. We disagree.
Assuming that Chuck and the Grissetts owed a duty of care to Casey under these circumstances and that they breached that duty in the manner that the Caseys allege, we conclude that the breach was not a substantial factor in causing the injuries for which the Caseys are claiming damages in this action. Consequently, neither Chuck nor the Grissetts could be held liable to the Caseys as a matter of law.
Although the trial court did not address the question of legal causation, a question of law remains where the facts are undisputed. See Pathways, Inc. v. Hammons, 113 S.W.3d 85 (Ky.2003). It is appropriate to review the issue on appeal in this case given the evidence that constitutes the record. Moreover, we can affirm the trial court on any basis supported by the record. Lee v. Farmer's Rural Elec. Co-op Corp., 245 S.W.3d 209 (Ky.App. 2007).
In Deutsch v. Shein, 597 S.W.2d 141 (Ky.1980), the Supreme Court of Kentucky adopted the substantial factor test for causation set forth in § 431 of the Restatement (Second) of Torts. In pertinent part, the section provides that the "actor's negligent conduct is a legal cause of harm to another if his conduct is a substantial factor in bringing about the harm." Comment (a) to § 431 explains that "[t]he word 'substantial' is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there always lurks the idea of responsibility[.]"
In his deposition, Casey testified that he had seen the cabinet in Chuck's basement many times and that he was aware that it weighed about 1,000 pounds. Casey indicated that he had worked as a bouncer, that he had been a regular weight lifter, that he was not concerned about the weight of the cabinet, and that he was prepared to move the cabinet to the Grissetts' home by strapping it to a hand truck. He described Chuck's nephew as a slight man and explained that the two of them had had no trouble getting the cabinet out of Chuck's basement and onto the back of a truck. Casey indicated that David Payton was nearly the same build as Chuck's nephew and that he had no reservations about Payton's helping him to unload the cabinet and moving it to the Grissetts' basement. Casey stated that he foresaw no problem getting the cabinet to the basement and that he decided to bear the weight of the cabinet as he and Payton maneuvered the hand truck down the steps. He admitted that "[s]afety was on everybody's mind," specifically including Chuck and the Grissetts. Casey testified that he was not worried in the least, that he did not need any instruction or supervision, and that he knew what he was doing. He indicated that the hand truck was suitable for the task and that the cabinet had been properly secured to it. He stated that the cabinet fell because David Payton let go of the hand truck, and he wondered whether the incident would have happened if Chuck's nephew had helped instead of David Payton.
Assuming that the defendants' decision to substitute David Payton as an assistant to Casey constituted a breach of the duty to Casey, there is no evidence from which to conclude that the substitution constituted a substantial factor in causing Casey's injuries. The evidence indicated that David Payton was no slighter in build than Chuck's nephew, that he was no less qualified than Chuck's nephew to assist Casey, and that no one had any reservation about Payton's ability to perform the task. The decision to substitute David Payton was not the legal cause of Casey's injuries. Consequently, the trial court did not err by granting the defendants' motion for summary judgment.
We affirm the decision of the Jefferson Circuit Court.
THOMPSON, JUDGE, CONCURS.
CLAYTON, JUDGE, CONCURS IN RESULT. BRIEFS FOR APPELLANTS: Joseph T. Pepper
Louisville, Kentucky
George Schuhmann
Louisville, Kentucky
BRIEF FOR APPELLEES CHARLES
W. GRISSETT, SR. AND CAROL L.
GRISSETT:
W. Douglas Kempler
Louisville, Kentucky
BRIEF FOR APPELLEES CHARLES
GRISSETT, JR. AND CATHERINE
GRISSETT:
David G. Richardson
Lexington, Kentucky