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Harter v. Roetting12/12/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Kathleen Harter (hereinafter appellant) brings this appeal after the Campbell Circuit Court granted summary judgment to appellees Michael Roetting and the Estate of Suzzana Roetting in her suit for damages for personal injury after a fall. The trial court found that appellant was a social guest at appellees' home. The trial court concluded that appellant had a duty to exercise ordinary care for her own safety, and as a licensee on the premises of another was not relieved of the duty to protect herself. The court further concluded that the hazard in question was open and obvious and did not involve unreasonable risk of harm to appellant as a licensee so as to make appellees liable. Finally, the court found that appellees had no duty to warn appellant of the open and obvious condition which should or could have been observed by her in the exercise of ordinary care. Appellant appeals the order of summary judgment.
We review a summary judgment to determine 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. CR 56.03. On appeal, as in the trial court, the 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 that party's favor. Steelvest, Inc. v. Scansteel Service Ctr., Inc., Ky., 807 S.W.2d 476, 480 (1991). Summary judgment is only proper where "the movant shows that the adverse party could not prevail under any circumstances." Id. at 479, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985). Summary judgment should only be used to terminate litigation when, as a matter of law, it appears that it would be impossible for the non-moving party to produce evidence at the trial warranting a judgment in that party's favor and against the movant. Id. at 483.
Appellant's first argument is that the trial court erred because there were genuine issues of material fact. We disagree. Appellant argues that the questions of whether the hazard was open and obvious, the degree to which a person exercised ordinary care, and whether the step was in a reasonably safe condition were all issues of fact. Appellant ignores that the standard for a summary judgment is whether there were genuine issues of material fact. The trial court was correct in finding that there were not. The court correctly stated the rule in Kentucky that there is no duty to warn a licensee of any danger or condition which is open and obvious or which should or could be observed by the licensee in the exercise of ordinary care. Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996), citing Shipp v. Johnson, Ky., 452 S.W.2d 828, 829 (1969).
The trial court's conclusion that the hazard in this case was open and obvious was correct. Although appellant is right that this is an issue of fact, there was no genuine issue in this case as to whether it was an open and obvious hazard. It was a front porch step in daylight which appellant already had traversed once that day just twenty minutes before. There was no contrary evidence to dispute that it was open and obvious. We agree that the trial court correctly found no genuine issue as to the openness and obviousness of the hazard.
Appellant also argues that there were issues of fact as to duty of care, the condition of the step and the knowledge of appellees as to the hazard. However, since the trial court determined that appellant was a licensee and the hazard was open and obvious, there was no duty on the part of appellees to warn or to take any more precautions for her safety than they took for thei
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