RENDERED: DECEMBER 1, 2000; 2:00 p.m. NOT TO BE PUBLISHED NO CA MR GREG OAKLEY AND CONNIE OAKLEY OPINION AFFIRMING ** ** ** ** **

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1 RENDERED: DECEMBER 1, 2000; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth Of K entucky Court Of A ppeals NO CA MR GREG OAKLEY AND CONNIE OAKLEY APPELLANTS APPEAL FROM TRIGG CIRCUIT COURT v. HONORABLE BILL CUNNINGHAM, JUDGE ACTION NO. 98-CI WILLIAM PUGH APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, JOHNSON, AND KNOPF, JUDGES. KNOPF, JUDGE: This is an appeal from an order of the Trigg Circuit Court granting summary judgment and dismissing a premises liability action. Finding no error, we affirm. For purposes of the summary judgment motion, the facts of this action were not in dispute. The appellant, Greg Oakley, lived next door to the appellee, William Pugh, and he had previously done yard work for Pugh. On several occasions prior to the accident, Pugh asked Oakley if he would trim the pine trees in Pugh s yard. Finally, Oakley agreed to trim the trees for Pugh without payment.

2 Oakley arrived at Pugh s property during the afternoon of October 19, Oakley brought his own chain saw and a ladder which he had borrowed from his father. The row of trees which Oakley was to trim was on a downward slope. The weather was clear and the ground was dry. However, Oakley noticed that the trees were shedding real bad, and the ground under the trees was thick with pine needles. On his own initiative, Pugh held the ladder for Oakley as Oakley trimmed the first tree. Pugh continued to hold the 1 ladder while Oakley trimmed a number of the trees. On the last two trees, Oakley noticed that Pugh was no longer holding the ladder. Instead, Pugh was sitting in a chair watching Oakley work. Nonetheless, Oakley did not ask Pugh to resume his assistance. As Oakley completed his trimming of the last tree, the ladder slipped on the pine needles and kicked out from under him. Oakley rode the ladder to the ground, sustaining an injury to his left heel. Thereafter, Oakley brought this action, alleging that Pugh breached his duty to furnish a reasonably safe place for Oakley to work. Oakley sought to recover damages for medical expenses, lost wages and pain and suffering. Oakley s wife, Connie, also brought a claim against Pugh for loss of consortium. After the Oakleys depositions had been taken, Pugh moved for summary judgment. He argued that the pine needles were 1 The parties briefs both state that there were ten trees, while Oakley s deposition and the trial court s summary judgment order state that there were eight trees. For purposes of this appeal, the actual number of trees is not material. -2-

3 an open and obvious hazard against which Pugh had no duty to protect Oakley. The trial court agreed with Pugh, and dismissed Oakley s complaint. Oakley then filed a motion to reconsider pursuant to CR Oakley contended that Pugh had assumed a duty to hold the ladder for him, and could be liable for negligently abandoning that duty. The trial court denied the motion to reconsider without elucidation. This appeal followed. Oakley argues that the trial court erred in granting summary judgment for Pugh. The standard for granting summary judgment is well-established. Summary judgment is appropriate when there is no genuine issue of material fact and the moving 2 party is entitled to judgment as a matter of law. It should only be used to terminate litigation 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 her favor and 3 against the movant. The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in her favor. Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact. However, a party opposing a properly supported summary judgment motion cannot defeat it 2 CR Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255, 256 (1985). -3-

4 without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial. 4 Oakley s claim against Pugh is based on an allegation that Pugh was negligent. It is well-established that tort liability for negligence requires the plaintiff to establish: (1) a duty; (2) a breach of that duty; (3) which was the proximate cause of the injuries; and (4) which resulted in damages. The 5 absence of any one of these elements is fatal to the claim. The central question in this case concerns the duty which Pugh owed to Oakley. The parties agree that Oakley was an invitee on Pugh s property. Oakley came onto Pugh s property at Pugh s 6 invitation to do tree-trimming work for Pugh. The fact that Oakley agreed to perform the work for Pugh without compensation does not change his status as an invitee. 7 Since Oakley was an invitee, Pugh had the duty of: keeping those parts of the premises to which he is invited, or may reasonably be expected to use, in a condition reasonably safe for his use in a manner consistent with the purpose of the invitation. If the possessor knows, or by the exercise of ordinary care or reasonable diligence could discover a natural or artificial condition which, if known, he should realize involves an unreasonable risk to the invitee and does not remedy the 4 Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991). 5 Illinois Central Railroad v. Vincent, Ky., 412 S.W.2d 874, 876 (1967); Helton v. Montgomery, Ky. App. 595 S.W.2d 257, 258 (1980). In some cases, the element of damages is included in the element requiring proof that the plaintiff suffered an injury which was proximately caused by the breach of a duty. 6 7 Scuddy Coal Co. v. Couch, Ky., 274 S.W.2d 388, 390 (1954). Cozine v. Shuff, Ky., 378 S.W.2d 635, 637 (1964). -4-

5 condition or serve fair warning of peril, he is negligent. 8 Nevertheless, a property owner s duty to an invitee is not absolute. An invitee has a duty to exercise ordinary care for his own safety, and may not walk blindly into dangers that are obvious, known to him, or would be anticipated by one of 9 ordinary prudence. Natural outdoor hazards which are as obvious to an invitee as to the owner of the premises do not constitute an unreasonable risk which the owner has a duty to remove or warn 10 against. Oakley contends that the accident occurred when the ladder on which he was standing slipped on the pine needles and fell. The trial court found that the pine needles on the ground were a naturally occurring hazard which were open and obvious to Oakley. Consequently, the court concluded that Pugh had no duty to warn or to protect Oakley against the hazard. On appeal, Oakley does not challenge this finding. Rather, Oakley argues that Pugh assumed a duty to him by holding the ladder while he was trimming the trees. Oakley asserts that Pugh was negligent in abandoning that task while Oakley was trimming the last two trees. 8 City of Madisonville v. Poole, Ky., 249 S.W.2d 133, 135 (1952). 9 Smith v. Smith, Ky. 441 S.W.2d 165, 166 (1969). 10 Standard Oil Co. v. Manis, Ky., 433 S.W.2d 856, 858 (1968); See also Rogers v. Professional Golfers Association, Ky. App., No CA (September 22, 2000) (finality endorsement granted November 1, 2000). -5-

6 Pugh responds that Oakley failed to raise the issue of assumption of duty in his brief opposing the motion for summary judgment. Pugh asserts that Oakley first raised it in his motion to reconsider. A party cannot invoke CR to raise arguments and introduce evidence that could and should have been presented 11 during the proceedings before entry of the judgment. Consequently, Pugh contends that Oakley is precluded from raising this issue on appeal. From our review of the record, we disagree. In his response brief to Pugh s motion for summary judgment, Oakley argued that Pugh recognized his duty to exercise a degree of care by holding the ladder. However, Pugh abandoned and neglected that duty thereby causing Plaintiff s injuries. Although not expressly denominated so, this argument implies that Pugh assumed a duty to Oakley by holding the ladder, and was negligent in abandoning that duty. Considering the high standard for granting summary judgment under Steelvest, we conclude that this reference was sufficient to place the trial court on notice that assumption of duty was an issue in this case. Thus, this argument was raised in a timely manner before the trial court and is properly presented on appeal. A duty voluntarily assumed cannot be carelessly 12 abandoned without incurring liability for consequent damages. 11 Hopkins v. Ratliff, Ky. App. 957 S.W.2d 300, 301 (1997), (quoting Kurt A. Philipps, Jr., 7 Kentucky Practice Rules of Civil Procedure, CR 59.05, cmt. 6, p. 406 (5th ed.1995)). 12 Louisville Cooperage Co. v. Lawrence, 313 Ky. 75, 230 S.W.2d 103, 105 (1950); Estep v. B.F. Saul Real Estate Inv. (continued...) -6-

7 In Louisville Cooperage, the defendant contracted with the plaintiff and was under instructions to wet down dry shavings which accumulated around a tower. The defendant successfully wetted down the shavings for several days. However, the defendant failed to wet down the shavings on the day that a fire broke out. The former Court of Appeals held that the defendant had assumed the duty to keep the shavings wet, and thus [i]t could well be found by a jury that the plaintiff was justified in its reliance upon the defendant performing its undertaking to the 13 degree the evidence showed it did rely. Similarly, in Estep, a store patron was injured when she slipped and fell on a sidewalk near the entrance to a department store in a mall. The mall owner and a store owner undertook to remove snow and ice from the parking lot and sidewalks after a snow storm. However, a thin skiff of new snow concealed the ice which was still on the sidewalk. While an owner cannot be held liable for a natural accumulation of snow, this Court held that when an owner chooses to remove ice and snow, he must act reasonably. The question of whether a party acted reasonably is a classic jury question, which precludes summary judgment (...continued) Trust, Ky. App., 843 S.W.2d 911 (1992). 13 Louisville Cooperage, 230 S.W.2d at Estep. 943 S.W.2d at In the just released to-be published case of PNC Bank, Kentucky, Inc. v. Green, No SC DG (October 26, 2000), (finality endorsement granted November 16, 2000), our Supreme Court reiterated that a property owner has no liability to an invitee for natural outdoor hazards which are open and obvious. The Court also acknowledged that a duty voluntarily assumed cannot be carelessly undertaken without (continued...) -7-

8 Oakley contends that he proceeded with trimming the trees despite the condition of the ground under the ladder in reliance upon Pugh holding the ladder for him. As a result, Oakley argues that Pugh assumed a duty, and can be held liable for negligently abandoning the task. Pugh responds that Oakley became aware that Pugh was no longer holding the ladder, yet he still continued to trim the last two trees. Even when a party has assumed a duty to act, a person must still exercise ordinary care for his own safety. Due care must yield to the realities of a situation to the extent that if one observes a violation of duty which imperils him, he must be vigilant in trying to avoid 15 that injury. Pugh notes that Oakley continued to trim the trees after he became aware that Pugh was no longer holding the ladder. Therefore, Pugh asserts that summary judgment was still appropriate because the danger from the pine needles was still open and obvious and because Oakley had ceased to rely on Pugh s assistance in trimming the trees. We agree. There is no dispute that the pine needles were an open and obvious condition and that Oakley was aware of the danger which they posed to the stability of the ladder. Clearly, he relied on Pugh to ameliorate that risk by holding the 14 (...continued) incurring liability therefore. However, the Supreme Court distinguished Estep, holding that a property owner will only be liable based on an assumption of duty theory if the owner undertakes measures which, in fact, heighten or conceal the nature of the dangerous condition.... Slip Op. at Louisville Cooperage, 230 S.W.2d at 105 (citing Peerless Manufacturing Corp. v. Davenport, 281 Ky. 654, 136 S.W.2d 779 (1940)). -8-

9 ladder while he trimmed the trees. However, once he became aware that Pugh was no longer performing that task, Oakley was obligated to exercise reasonable care for his own safety. By continuing to trim the trees without assistance from Pugh, we find as a matter of law that Oakley failed to exercise reasonable care given the open and obvious condition of the ground under his 16 ladder. Even given our strict summary judgment standard, we agree with the trial court that there was no breach of duty and no actionable negligence. Therefore, Pugh was entitled to judgment as a matter of law. affirmed. Accordingly, the judgment of the Trigg Circuit Court is ALL CONCUR. BRIEF FOR APPELLANTS: H.B. Quinn Woodall & Quinn Cadiz, Kentucky BRIEF FOR APPELLEE: John J. Chewning Chewning & Chewning Hopkinsville, Kentucky 16 See also Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., Ky. App., 997 S.W.2d 490 (1999). -9-