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Parents and Personal Representatives on Behalf of April Pennington v. Rocky Knob Associates Inc.6/9/1995
AFFIRMING
JOHNSON, JUDGE: Sharon Collins and Jewell Stambaugh appeal from a summary judgment entered in favor of Rocky Knob Associates, Inc., by the Johnson Circuit Court. We affirm.
This is a wrongful death case. The undisputed facts are that on the late evening of May 18, 1991, April Pennington, age sixteen, and Timothy Stambaugh, age twenty-four, were with a group of other young people in the parking lot of the marina at Paintsville Lake at a time when the marina was closed and deserted. It was prom night and, for some, the evening's activities included the consumption of alcohol. Sometime after midnight, when their friends were still in the parking lot, Stambaugh and Pennington entered the water, presumably for the purposes of swimming. Approximately twenty minutes later, one of their friends ventured down to the water to check on them and discovered Pennington's body floating face down twenty feet from the shoreline. Rescue workers were summoned and Pennington's body was recovered as was Stambaugh's, the latter being recovered from the lake bottom thirty-five feet from shore in twelve to fifteen feet of water. Autopsies attributed the cause of death of each decedent to drowning. Further, it was determined that Pennington had a blood alcohol content of .10 and Stambaugh had a blood alcohol content of .03.
A wrongful death action was filed by the appellants, parents of the decedents, on May 18, 1992. The complaint alleged that Rocky Knob Associates, Inc. (Rocky Knob), breached its duty of care owed to the decedents. The appellants advanced the theory that Rocky Knob had knowledge that certain hazardous conditions existed on or about the marina, including deep water; unlit shoreline consisting of jagged rocks, submerged obstacles and entanglements; and hazards such as boats, boat wakes, and drunken or vicious third parties present on the premises. It was further alleged that having notice of these dangerous conditions, Rocky Knob acted willfully and maliciously by failing to post no swimming signs, to light the shoreline, and to provide round-the-clock security patrols or rescue equipment, and that such failure was the proximate cause of the deaths of the two young people.
The trial court determined that even if Rocky Knob were negligent, such negligence did not rise to the level of willful or malicious indifference to the rights of the decedents, and therefore Rocky Knob was entitled to judgment as a matter of law under Kentucky Revised Statutes (KRS) 411.190, also known as the Recreational Use Statute. Summary judgment was entered in favor of Rocky Knob and this appeal followed. The appellants argue that Rocky Knob is not exempted by KRS 411.190 from any standard of care imposed by common law for the protection of those using its premises and facilities, and that even if KRS 411.190 is applicable, a jury question exists as to whether Rocky Knob's conduct was willful or malicious.
The standard by which motions for summary judgment are to be assessed is set forth in Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), which adopted the test articulated in Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985).
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 his favor. . . . Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact. . . . The trial Judge must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists. It clearly is not the purpose of the summary jud
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