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Jones v. Hanna8/16/1991
This is an appeal from a summary judgment which denied Appellant/Plaintiff Deborah Jones' claim for loss of personal property valued at $16,241.00 that was stored in a "mini-warehouse" owned by Appellee Ernie Hanna, d/b/a Econo-Self Storage.
On September 2, 1987, Deborah Jones, along with her father, signed a "Storage Rental Space Agreement" with Econo-Self Storage. Jones needed to store her personal belongings and furniture because of the flooding of her apartment. By deposition Jones testified that Econo-Self Storage was selected because its manager, Robert Ziegler, assured her that twenty-four hour security was provided at the facility. She admitted that she did not read the agreement very well.
On May 2, 1988, Deborah Jones learned that the lock to her storage unit had been cut and that virtually all of her possessions were stolen. The date and time and other circumstances of the theft are not known by any of the parties.
Deborah Jones filed suit alleging that appellees failed to maintain a safe and secure storage area for her goods.
Summary judgment was entered in favor of the appellees based on the signed agreement between the parties. The self-storage agreement is written as a lease and designates the parties as landlord and tenant. Deborah Jones as tenant leased a warehouse storage space which was 10 feet by 10 feet, on a monthly term of $45. The agreement, in part, provides:
2. Use: The premises may be used and occupied only for the purpose of storing personal property . . . All property kept, stored or maintained within the premises by Tenant shall be at Tenant's sole risk.
3. Insurance and Indemnity:. . . Each party hereby waives its right of subrogation against the other party. Landlord shall not be liable to Tenant or to any other person on the premises for any loss or damage to Tenant, its employees, agents or guests, to the personal property of Tenant or such other person, caused by any acts of negligence whatsoever, . . . .
The trial court dismissed the complaint, thereby rejecting the argument that the facts created a bailment. The trial court construed the contract as creating a lease between the parties.
The first issue on appeal is that summary judgment was inappropriate in this case.
The argument fashioned is the traditional one that a summary judgment, being a drastic remedy, takes away the right to have factual issues resolved by a jury. Naturally, we agree with Jones' argument as far as it goes, and the latest pronouncement by our Supreme Court in Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), does give a great amount of comfort to the appellant. Steelvest reaffirms the Kentucky standard for granting summary judgments, ". . . as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor . . . is only proper where the movant shows that the adverse party could not prevail under any circumstances." See also, Paintsville Hospital Company v. Rose, Ky., 683 S.W.2d 255 (1985).
We would agree with Jones if the circumstances created a bailment. However, if the circumstances and agreement made a lease, then the summary judgment was proper because the lease agreement placed all the risk of loss on Jones, the tenant. If a lease be established, then summary judgment was warranted.
Public Policy Argument
Jones argues that the agreement by virtue of the provision that waived each party's right of subrogation along with the landlord's future negligence is against the public policy of the
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