DIXON, JUDGE
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 15-CI-00486 OPINION
AFFIRMING
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BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. DIXON, JUDGE: Craig Bramlett and Stephanie M. Cline, as Co-Administrators of the Estate of Landon Bramlett, Craig Bramlett, individually, and Stephanie M. Cline, individually (collectively "the Estate"), appeal from the Pike Circuit Court order granting summary judgment in favor of Arnold J. Ryan, Jr., ("A. J.") and Pam Ryan entered on December 18, 2018. Following review of the record, briefs, and law, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Craig and Stephanie are Landon's parents.
On May 13, 2014, the Ryans hosted members of Landon's little league baseball team and their families for a batting practice, cookout, and swim party at their home. Tragically, during the swim party, seven-year-old Landon drowned in the shallow end of the pool. At least four adults were around the pool providing supervision during the swim party. Robert ("Rob") Clements, Landon's step-grandfather, brought him to the party and was in the Ryans' home at the time Landon was discovered underwater.
A. J. Ryan, Will Rowe, and Jeremy Hall, the team's coaches, were supervising the kids poolside, as was Jeremy's wife, Kristen Hall, who was also watching their son and four-year-old daughter.
On May 13, 2015, the Estate sued the Ryans. After discovery had been conducted, on January 8, 2018, the Ryans moved the trial court for summary judgment. After the matter was briefed and arguments heard, the trial court granted summary judgment to the Ryans, and this appeal followed.
Summary judgment is appropriate when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. CR 56.03. Summary judgment may be granted when "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 and against the movant." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (citation omitted). Whether summary judgment is appropriate is a legal question involving no factual findings; therefore, a trial court's grant of summary judgment is reviewed de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky. 2010).
Kentucky Rules of Civil Procedure.
While Kentucky's premises liability law has undergone some changes, "[t]he basic negligence tort paradigm has never changed: duty, breach, causation, damages." Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 298 (Ky. 2015). Thus, for a landowner to be held at fault for a visitor's injury, it must be established: (1) the landowner owed a duty to eliminate or warn of an unreasonable hazard; (2) the landowner breached his duty owed to the specific visitor; (3) such breach caused the slip, trip, fall, or otherwise harmful incident; and (4) the visitor was damaged by said incident. Summary judgment for a landowner is appropriate where "reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation[.]" Shelton v. Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901, 916 (Ky. 2013), as corrected (Nov. 25, 2013).
Duty
First, the Estate contends that the Ryans owed Landon a duty of reasonable care. A duty of reasonable care is owed to invitees. However, although Landon was invited to the Ryans' home, he was not an invitee in the legal sense. "An invitee is either a public invitee or a business visitor." RESTATEMENT (SECOND) OF TORTS § 332 (1965). "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public" and "[a] business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Id. Landon was neither of these and, therefore, is considered a licensee. "A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent." RESTATEMENT (SECOND) OF TORTS § 330 (1965). Concerning the duty owed to licensees, the Restatement (Second) of Torts § 342 (1965) provides:
[a] possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and
should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.
Moreover, the Estate further argues the Ryans accepted an additional duty of care by undertaking the duty to supervise Landon and the other children in the pool. It contends A. J. Ryan undertook the supervision of the children at the pool, "trying to keep the area safe." It further maintains that Landon's grandfather relied upon this assumption of the duty of supervision, permitting him to walk away from the pool area. The Estate maintains that when A. J. Ryan voluntarily assumed this duty he was not free to abandon it without incurring liability due to Landon's accidental death.
Breach of Duty
There is no doubt the Ryans owed at least a general duty of care to Landon. Consequently, we must determine whether the Ryans breached that duty, or any additional assumed duty.
The case herein is similar to Grimes v. Hettinger, 566 S.W.2d 769 (Ky. App. 1978), a case in which the estate of a twelve-year-old girl, who died in a residential swimming pool while attending a swimming party, sued the pool owner. Therein, summary judgment was granted in favor of the pool owner. On appeal, the court held:
Whether Mr. Hettinger was under a duty to Laura because of the condition of the swimming pool depends upon two factors. First, did a condition exist which Mr. Hettinger realized, or should have realized, would involve an unreasonable risk of death or serious bodily harm to Laura? Second, would a child of Laura's age and experience reasonably be expected to understand and appreciate the risk of any dangerous conditions in the swimming pool? . . .
Taking into consideration Laura's age and her swimming experience and skill, the existence of a swimming pool would not itself impose any duty on Mr. Hettinger to warn or protect Laura. Swimming pools do not present a special danger involving an unreasonable risk of death or serious bodily harm, and the hazards of water are generally appreciated even by children of tender years. See Hanners v. City of Ashland, [331 S.W.2d 729, 730 (Ky. 1959).] We are not dealing with a child who is too young to appreciate the dangers inherent in a swimming pool or other body of water. Laura was an experienced swimmer fully capable of understanding the risks involved in swimming. See Restatement (Second) of Torts s 339, Comment j, illustrations 6 & 7.
Id. at 772 (footnote omitted).
The Estate seeks to distinguish Grimes in that the child there was twelve years old and a strong and experienced swimmer. Here, however, Landon was seven years old and a novice, but experienced, swimmer. Nevertheless, this age difference does not mean Landon was too young to appreciate the hazards associated with swimming in a body of water—an open and obvious hazard—which would impose a duty on the Ryans to warn him of said dangers. In Hanners, the child who encountered water was only eight years old. See also Schauf's Adm'r v. City of Paducah, 106 Ky. 228, 50 S.W. 42 (1899) (child involved was seven years old). While both Hanners and Schauf involved the issue of attractive nuisance, their discussion concerning a child's ability to appreciate the dangers of water is relevant to the issue before us. In Hanners, following the precedent of Schauf, the court refused to extend liability of attractive nuisance to confined waters, reasoning, in part:
We do not use this term to indicate Landon was a strong or good swimmer but, rather, to indicate he had previous swimming experience. Stephanie testified Landon had gone swimming with her at a pool in Mexico and swam all over the pool. It is undisputed that Landon had prior experience swimming in a pool.
(1) such places do not create a condition of unnatural, concealed, or special danger, nor do they involve an unreasonable risk of death or serious bodily harm; (2)
the possible hazard of use is generally appreciated even by children of tender years . . . . Therefore, negligence cannot be predicated simply upon the failure of a landowner to prevent a trespasser from taking a commonly known and appreciated risk in the customary use of such a facility.
Hanners, 331 S.W.2d at 730 (emphasis added). Thus, children aged seven or eight are considered old enough to appreciate the possible hazards of use of "confined waters,"
i.
e., swimming pools. Our highest court has consistently held there is no
duty to warn children as young as seven concerning the hazards of bodies of water, such as private swimming pools, as in this case. Nor is there evidence the Ryans' pool created an unreasonable risk triggering a duty to warn Landon. Consequently, the Ryans may not be held liable for Landon's death under a general duty to licensees since they had no obligation to specifically warn him of the hazards of swimming in a private swimming pool.
However, as discussed previously, the Estate contends that the Ryans undertook an additional duty to supervise Landon. This duty was also discussed in Grimes.
In this case, we are not concerned with Mr. Hettinger's activities in and around the swimming pool. The question to be determined is the nature and extent of any duty on the part of Mr. Hettinger to supervise the activities of Laura and the other ten girls.
. . .
Mr. Hettinger was under a duty to control the conduct of the girls to prevent an unreasonable risk of harm to any of them. In the Restatement (Second) of Torts s 318, the duty of an owner of land to control the conduct of a licensee is stated as follows:
If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if the actor
(a) knows or has reason to know that he has the ability to control the third person and
(b) knows or should know of the necessity and opportunity for exercising such control.
Under section 318, the owner of a residential swimming pool was held to owe a duty to control the boisterous conduct of two guests which involved unreasonable risk of bodily harm to other guests. Mangione v. Dimino, 39 A.D.2d 128, 332 N.Y.S.2d 683 (1972).
566 S.W.2d at 773, 774.
While the Estate maintains that A. J. Ryan assumed a duty of supervision, there is no evidence to indicate he verbally assumed such supervision to Landon's grandfather or to anyone else. The Estate's evidence consists of A. J.'s actions in preventing known risks by the other swimmers. However, there is no evidence that any activity of the Ryans' guests involved an unreasonable risk of harm to Landon at the Ryans' pool or resulted in injury to him. Nevertheless, the Estate claims a jury could reasonably conclude the Ryans breached their duty to "supervise" and "protect" Landon because they did not see or prevent him from drowning.
In support of its argument, the Estate hired Gerald M. Dworkin, an "aquatics safety" and "water rescue" consultant. Dworkin's report claims the Ryans violated several nebulous duties without referring to any legal precedent to support his assertions. As previously stated, the Ryans only had the duty to prevent their guests from engaging in activities that would create an unreasonable risk of harm to Landon. Concerning the duty to control the conduct of their guests, Dworkin's report states:
Mr. and Mrs. Ryan failed to maintain order in and around the pool while the children were using the pool. Several witnesses mentioned that the children were running around the pool and jumping in the water from the fountain. Both [of] these activities put the children at
heightened risk.
Mr.
Ryan stated that he would correct the children when he observed this type of activity. But, without the constant and dedicated supervision, he failed to observe many of these dangerous actions as witnessed by other parents. Mr. and Mrs. Ryan should have been aware of the
heightened risk these children were at, especially considering the age and number of children participating in the pool party.
(Emphasis added.) Dworkin failed to define the "heightened" risk in such terms as to qualify these activities as creating an
unreasonable risk of harm. The critical information that is missing from this report is evidence that the Ryans' guests were engaged in activities that created an
unreasonable risk of harm to Landon. Such evidence would have enabled the Estate to overcome the Ryans' motion for summary judgment; however, absent this evidence, the Estate could not survive the motion for summary judgment.
The trial court acknowledged that one parent, Kristen Hall, stated the children were "horseplaying." Her deposition testimony was, "[t]here was splashing and there was—I don't remember seeing anyone dunking anyone; pushing, maybe splashing, but nothing out of the way." The trial court further stated:
it's important to distinguish between the colloquial sense of that word and its legal definition. Legally, horseplay is that which "poses a physical risk to the involuntary or unsuspecting victim or innocent bystander." [
Scifres v.
Kraft, 916 S.W.2d 779, 782 (Ky. App. 1996),
as modified (Feb. 2, 1996).] That Mrs. Hall did not believe the behavior she observed to rise to this level is obvious. She had assumed a role as a general supervisor of the pool and had previously intervened in an argument between two children over swimming goggles. That she would have observed dangerous or unreasonably risky behavior that posed a physical threat and done nothing is an improbable proposition. Other testimony also confirms that no unreasonably risky behavior was taking place as Will Rowe stated that he could not recall any instance of "roughhousing" among the children. The other two adults by the pool did not testify to any behavior that would have shown the Ryan's [sic] were negligent in their duty to control the behavior of the children.
Finally, there is no need to address the Estate's contention that the Ryans proximately caused Landon's death. Because the issue of proximate causation was not decided by the trial court, we are without authority to review it. Moreover, "[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (citations omitted).
Therefore, and for the foregoing reasons, the order entered by the Pike Circuit Court granting summary judgment is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANTS: Mark A. Weis
Louisville, Kentucky BRIEF FOR APPELLEES: Jonathan C. Shaw
Paintsville, Kentucky