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Autry v. Western Kentucky University3/4/2005
f SLF. Thus, there is no support for SLF's claim that it was WKU's agent for the purpose of managing student housing.
SLF next asserts that Autry's claims against it were properly dismissed regardless of immunity because the criminal attack on Katie by Soules and Goodrum was a superseding cause of her injuries and death. SLF argues that since it had no direct contractual agreement with Katie, and since WKU was solely responsible for the operations of Poland Hall, SLF owed her no duty of care. Further, SLF argues that, since there is no dispute that intervening criminal acts caused Katie's death, it is a question of law as to whether the criminal acts constitute a superseding cause. SLF relies on James v. Meow Media, Inc., where the United States Court of Appeals for the Sixth Circuit held that a school shooting was not a foreseeable consequence of the viewing of the movies and the playing of the video games the defendants produced. As stated above, we conclude under Waldon that there was no superseding cause that shielded SLF from liability.
As its third ground for dismissal of Autry's claims against it, SLF argues that Autry's failure to join the alleged criminal assailants, Soules and Goodrum, requires dismissal because they are indispensable parties to the action. In reviewing the record, it appears that the trial court found no merit in this argument, and we agree.
SLF bases its argument on KRS 411.182(1), which establishes that fault should be apportioned among those responsible for the injuries claimed and that CR 19 establishes that Soules and Goodrum are "indispensable parties." In Cabinet for Human Resources v. Kentucky State Personnel Board, this
Court discussed the law on indispensable parties as follows:
When one litigant believes there to be an indispensable party it should request the court to order joinder by the simple expedient of filing a motion. If the court concurs then service of process shall issue, but in any event, it should be accomplished by a pleading or motion and a brief is neither. CR 7.01. Therefore, appellant did not preserve the issue in the trial court ....
Similarly, SLF had the opportunity to request the joinder of Soules and Goodrum, but did not do so; and thus, it failed to preserve this claim for appellate review in the trial court. While Soules and Goodrum could perhaps be joined as parties for apportionment, that obligation falls on SLF and not Autry.
For SLF to be entitled to a judgment as a matter of law, it must show (1) that it was impossible for Autry to produce any evidence in her favor on one or more of the genuine issues of material fact, (2) that under the undisputed facts of the case, it owed no duty to Katie, or (3) that, as a matter of law, any breach of a duty it owed to Katie was not a legal cause of her injuries. Even though WKU was the manager and operator of Poland Hall, all its actions were under the ultimate authority of SLF. Before the trial court entered the orders of dismissal, very limited discovery had occurred. After viewing the facts in this case in the light most favorable to the party opposing summary judgment, we conclude that the trial court failed to consider the appropriate issues and improperly dismissed Autry's claims against SLF.
Accordingly, the orders of the Warren Circuit Court dismissing Autry's claims against WKU and the WKU employees in their official capacities are affirmed. The order of the Warren Circuit Court dismissing Autry's claims against SLF is reversed and this matter is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
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