Aug. 26, 2011 COA Minutes — Nos. 757-780 (24 decisions; None published)

 Aug. 26, 2011 COA Minutes —      Nos. 757-780 (24 decisions; None published)

No decisions marked for publication.

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767.  TORTS.  PREMISES LIABILITY.  DUTIES OWED LICENSEE VS. INVITEE.
COMBS (SHIRLEY)
VS.
GEORGETOWN COLLEGE, ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
CAPERTON (CONCURS) AND WINE (CONCURS)
2010-CA-000846-MR
NOT TO BE PUBLISHED
SCOTT

TAYLOR, JUDGE: Shirley Combs brings this appeal from an April 12, 2010, summary judgment of the Scott Circuit Court dismissing her premises liability action against Georgetown College and Happy Osborne, d/b/a Osborne Basketball Camp (collectively referred to as appellees). We affirm.
Combs was injured when she fell while descending from a platform on the second floor of the Scott County High School gymnasium. Apparently, Combs tripped on a “lip” that surrounded the edge of the platform. Combs’ grandson was attending a basketball camp conducted by appellees at the gym, and she was present at the gym for the sole purpose of watching her grandson play basketball. Numerous high school basketball teams paid a fee to participate in the camp.
When Combs was injured, there were approximately fifty people in the gym. The bleachers were not pulled out, and the only available seating was folding chairs. It is undisputed that no entrance fee was charged to the gym and that concessions were not sold. And, appellees neither advertised to the public nor directly invited the public to attend the basketball camp’s activities.
Combs filed a premises liability action against appellees seeking damages as a result of injuries she suffered in the fall at the gym. She claimed to be an invitee and that appellees breached their duty to keep the gym in a reasonably safe condition and to warn of obvious dangers. Appellees moved for summary judgment. They argued that Combs was a mere licensee and that they breached no duty of care to her.
The circuit court granted appellees’ motion for summary judgment. The circuit court agreed that Combs was a licensee at the time of her injury and that appellees breached no duty of care. This appeal follows.

The undisputed facts of this case lead to the inescapable conclusion
that Combs was a licensee at the time of her injury. As recited by the circuit court, the facts failed to demonstrate that appellees impliedly invited Combs’ attendance or that Combs’ attendance benefited appellees. Rather, the facts demonstrated that her attendance was merely by permission of appellees. In support thereof, the record reveals that the bleachers at the gym were not prepared for spectators, no advertising was undertaken, and Combs did not pay an entrance fee. As a licensee, appellees only owed Combs the duty to warn her of dangers known to them and to not willfully cause her injury. The uncontroverted facts reveal that appellees breached neither duty to Combs.
In sum, we conclude that the circuit court properly rendered summary judgment dismissing Combs’ premises liability action against appellees.

BLACK LETTER LAW ON LICENSEE AND INVITEES:

Under the law of this Commonwealth:
A person is an invitee if: “(1) he enters by invitation, express or implied, (2) his entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner.” Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 491-492 (Ky. App. 1999) (quoting Black's Law Dictionary, 827 (6th ed. 1990)).
West v. KKI, LLC, 300 S.W.3d 184, 190-191 (Ky. App. 2008). A premises owner or occupant owes a duty to an invitee to exercise ordinary care to maintain the premises in a reasonably safe condition and to warn of latent, unknown, or obvious dangers. West, 300 S.W.3d 184.    By contrast, a licensee:
[I]s one whose presence upon land is solely for his own purpose, in which the possessor has no interest, either business or social, and to whom the privilege of entering the premises is extended as mere favor by express consent or by general or local custom.  Collins v. Rocky Knob Assocs., Inc., 911 S.W.2d 608, 612 (Ky. App. 1995). A premises owner or occupant owes a duty to a licensee not to willfully or wantonly injure the licensee and to warn of dangerous conditions known by the owner/occupant.

The Restatement (Second) of Torts § 332 (1965) provides a definition of “invitee.” More important to our case is “Comment b and c.” Comment b and c discuss the fine distinction between an “invitation,” which is necessary for an invitee, and “permission,” which is given to a licensee, to enter a premises:
An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation. A common form of invitation is preparation of the land for the obvious purpose of receiving the visitor, and holding it open for that purpose. . . .
… .
In determining whether a particular person is an invitee, the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor. It is immaterial that the person is one whom the possessor is not willing to receive as an invitee if the possessor's words or other conduct are understood, and would be understood by a reasonable man, as indicating the possessor's willingness. The nature of the use to which the possessor puts his land is often sufficient to express to the reasonable understanding of the public, or classes or members of it, a willingness or unwillingness to receive them.
Restatement (Second) of Torts § 332 cmt. b, c (1965).

770.  TORTS.  DISCOVERY SANCTIONS (PRO SE PLAINTIFF)
ISON (TERESA K.)
VS.
MCDONALD'S #12237
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
NICKELL (CONCURS) AND ISAAC (CONCURS)
2010-CA-001137-MR
NOT TO BE PUBLISHED
LETCHER

THOMPSON, JUDGE: Teresa K. Ison appeals from the Letcher Circuit Court’s judgment awarding her $5,500 in monetary damages. She contends that the trial court’s judgment failed to adequately compensate her for her injuries resulting from McDonald’s #12237’s (McDonald’s) negligence. For the reasons stated, we affirm.

Having addressed Ison's claim, we turn to McDonald’s argument that sanctions should be imposed against Ison pursuant to Kentucky Rules of Civil Procedure (CR) 11. It argues that Ison's argument is not well-grounded in fact or warranted by existing law and is only meant to harass McDonald’s. Under our sanctioning authority, we can only issue sanctions when an appeal is so lacking of merit that it appears to have been pursued in bad faith. Kenton County Fiscal Court v. Elfers, 981 S.W.2d 553, 559 (Ky.App. 1998). However, we conclude that the record does not support a finding that Ison's appeal was prosecuted in bad faith. The record is more suggestive of the two parties having a mere disagreement over the nature and quality of the evidence. While McDonald’s did not desire to litigate this matter in this Court, we cannot declare that Ison's appeal was egregious, frivolous, and warranting of sanctions. Id. Accordingly, we reject McDonald’s request to impose sanctions against Ison.

778.  JURISDICTION. PERSONAL.
OWENS (MICHELE)
VS.
ANDREW CLOONEY; COMPLETE LEGAL, LTD.; AND COMPLETE LEGAL SUPPORT, INC.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
TAYLOR (DISSENTS) AND ACREE (CONCURS)
2010-CA-002067-MR
NOT TO BE PUBLISHED
JEFFERSON

VANMETER, JUDGE:    Michele Owens appeals from the Jefferson Circuit Court order dismissing her claims against Complete Legal for lack of personal jurisdiction. For the following reasons, we affirm.

This action stems from Complete Legal’s subpoenaing and its procurement of Owens’ confidential academic records from the Court Reporting Institute (“CRI”) in Dallas, Texas. At the time, Owens was involved in a civil action against her former employer, Kentuckiana Reporters, in Jefferson Circuit Court (No. 07-CI-8322). During the damages phase of that suit, counsel for Kentuckiana, Andrew Clooney, hired Complete Legal to obtain Owens’ CRI records in connection with that lawsuit. The records were ultimately deemed inadmissible by the trial court.
Owens then brought the underlying suit against Clooney and Complete Legal alleging invasion of privacy, forgery, fraud, unauthorized practice of law and negligence based on the manner in which her records were obtained in Texas. Specifically, Owens alleges that Complete Legal forged fraudulent documents that purported to be a subpoena issued by court order to obtain her records from CRI. The trial court dismissed her claims against Complete Legal for lack of personal jurisdiction. This appeal followed.

NOTE:  Case is an interesting read as it involves a law firm's use of a third party to obtain records, jurisdiction over the out of state third party business, and sanctions sought against the defense attorney in the underlying litigation against plaintiff's former employer Kentuckiana Reporters.