Landlord/Tenant: DUTTON V. MCFARLAND (COA; 3/17/2006)

DUTTON V. MCFARLAND
LANDLORD/TENANT – 
2005-CA-000618
PUBLISHED 
AFFIRMING (VANMETER)
DATE:  3/17/2006

Warren Circuit Court, Hon. Steve A. Wilson
Dutton appeals TC’s entry of Summary Judgment for McFarland in a premises liability case. McFarland was the landlord of certain property leased by a dog grooming salon owner. Dutton was a customer of the salon who fell while exiting the shop when she slipped on a wet rug lying on the pavement that the salon owner had left there to dry. Dutton sued both the salon owner tenant and McFarland. McFarland moved for SJ arguing that it owed no duty to Dutton, and in the alternative arguing that the condition was open and obvious. TC granted the motion based on McFarland’s lack of knowledge of the wet rug, lack of control over the parking lot and lack of contractual obligation to repair defects in the leased premises.
On appeal, Dutton argues that McFarland was negligent per se due to Bowling Green’s adoption of the International Property Maintenance Code, which required all walkways, driveways, parking lots, etc. to be kept in good repair and free from hazardous conditions. Dutton relied on Rietze v. Williams, 458 S.W.2d 613 (Ky. 1970), to argue that this adopted administrative regulation has the same force and effect as enacted statutes pursuant to KRS 13.081, and that KRS 446.070 permits recovery for personal injuries suffered as a result of a violation of the adopted regulation.
Held: COA affirmed TC’s entry of SJ by noting that KRS 13.081 was repealed in 1974 and that Rietze v. Williams was overruled on this issue in Centre College v. Trzop, 127 S.W.3d 562 (Ky. 2003). The COA also noted that the safety regulation relied upon by Dutton was not adopted pursuant to an enabling statute enacted by the General Assembly. Finally, the COA noted the prior Kentucky court rulings that held KRS 446.070 does not apply to municipal ordinances or federal regulations.

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