RENDERED: AUGUST 26, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0766-MR
JOI DENISE ROBY AND BLUE
CROSS BLUE SHIELD OF TEXAS APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 19-CI-001372
CHURCHILL DOWNS, INC.;
BRADLEY RACING STABLES, LLC;
KYLE MCGINTY; AND WILLIAM
“BUFF” BRADLEY APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, LAMBERT, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: On May 5, 2018, Appellant, Joi Denise Roby (Roby), was at
Churchill Downs in Louisville, Kentucky, where the 2018 Kentucky Derby was
being hosted on that day. She and her husband were guests of Appellee, Kyle
McGinty (McGinty), a licensed horse owner whose horses Roby claims were
training with Appellees, William “Buff” Bradley (Bradley) and Bradley Racing
Stables, LLC (Bradley Stables).1 While Roby was walking through the stables
located on the backside area of the Churchill Downs property, she was bit on the
breast by a horse owned by Bradley, causing serious injuries. The horse was
stabled pursuant to a “Stall Agreement” with Appellee Churchill Downs, Inc.
(Churchill Downs).
As a result, Roby filed a negligence suit in Jefferson Circuit Court
against Churchill Downs, Bradley, and Bradley Stables.2 The latter two Appellees
subsequently filed for summary judgment, which was granted. Churchill Downs
also filed for summary judgment, which was denied. Upon a motion for
reconsideration, however, the circuit court entered summary judgment in favor of
Churchill Downs. Roby appeals to this Court from both summary judgment orders
as a matter of right.
STANDARD OF REVIEW
A motion for summary judgment should be granted “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
1
For simplicity, both will be collectively referred to as “Bradley.”
2
According to Roby’s notice of appeal, McGinty became a party to this action by a third-party
complaint by Churchill Downs for indemnity and contribution. Blue Cross Blue Shield of Texas
has filed a derivative Employee Retirement Income Security Act (ERISA) subrogation and
recovery claim against Appellees.
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together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR3 56.03. “Because no factual issues are involved and only a legal issue is
before the court on the motion for summary judgment, we do not defer to the trial
court and our review is de novo.” Univ. of Louisville v. Sharp, 416 S.W.3d 313,
315 (Ky. App. 2013) (citation omitted). In negligence cases, while duty is an issue
of law, “[b]reach and injury, are questions of fact for the jury to decide.”
Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citation omitted).
With these standards in mind, we turn to the applicable law and the facts of the
present case.
ANALYSIS
Both summary judgments at issue here were issued mere months
before the rendition of Keeneland Association, Inc. v. Prather, 627 S.W.3d 878
(Ky. 2021). Therefore, the parties and the circuit court were without the benefit of
its guidance. Prather is highly instructive of the present issues, and is summarized
as follows:
During the 2016 September Yearling Sale at
Keeneland, a horse broke loose from its handler and
headed toward pedestrians who were crossing a path
between barns. One pedestrian, Roy J. Prather, fell while
attempting to flee and fractured his shoulder. Prather and
his wife, Nancy Prather, filed suit in Fayette Circuit
3
Kentucky Rules of Civil Procedure.
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Court alleging various negligence claims against
Keeneland and Sallee Horse Vans, Inc., the
transportation company that agreed with the horse’s
purchaser to transport it to its destination. Keeneland
Sallee argued that the Prathers’ claims were barred
by Kentucky Revised Statute (KRS) 247.402, a
provision of the Farm Animals Activity Act
(FAAA) that limits the liability of farm animal
activity sponsors and other persons as to claims for
injuries that occur while engaged in farm animal
activity.
Finding the FAAA applicable, the trial court
granted summary judgment in favor of Keeneland
and Sallee. On appeal, the Court of Appeals raised
a new legal theory sua sponte and reversed the trial
court’s decision. Noting that in a separate statute
the legislature recognized the sale of race horses as
integral to horse racing activities and that horse
racing activities are specifically exempted from the
FAAA, the appellate court concluded the trial
court erroneously dismissed the Prathers’ claims.
Id. at 880. Of specific importance is Prather’s application of the “horse racing
activities” exemption under KRS 247.4025 (hereafter referred to as the
Exemption). Pursuant to the provision, the protections otherwise afforded property
owners and others under the FAAA do not apply if the injury resulted from “horse
racing activities,” which is defined as “the conduct of horse racing activities within
the confines of any horse racing facility licensed and regulated by KRS 230.070 to
230.990, but shall not include harness racing at county fairs[.]” KRS 247.4015.
The Court in Prather ultimately concluded that the Exemption was
inapplicable under the facts. In so holding, the Court provided a thorough analysis
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of the FAAA, its legislative history, and its application – which is very fact
specific. Prather, 627 S.W.3d at 886. Accordingly, we granted oral argument in
the present case in order to more closely address the unique facts at issue here, and
for the parties to have an opportunity to address Prather. For the following
reasons, we reverse the circuit court and remand.
We need not saddle this Opinion with unnecessary legal baggage. It
is undisputed that if the Exemption does not apply here, then Appellees would be
relieved from liability pursuant to the affirmative provisions of the FAAA.
Therefore, our primary concern is the applicability of the Exemption. To reiterate
for purposes of clarity:
KRS 247.401 to 247.4029 shall not apply to farm animal
activity sponsors, farm animal activity professionals,
persons, or participants when engaged in horse racing
activities.
KRS 247.4025(1) (emphasis added); and
“Horse racing activities” means the conduct of horse
racing activities within the confines of any horse racing
facility licensed and regulated by KRS 230.070 to
230.990, but shall not include harness racing at county
fairs . . . .
KRS 247.4015(8) (emphasis added). Clearly, the General Assembly has provided
a very broad, if not redundant, definition. And its plain language appears to
encompass the activity at issue in the present case. However, as the Court
discussed in Prather, this is not an unbridled Exemption:
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Nothing in the record supports a conclusion
that Keeneland, Sallee or Prather were engaged in
the “conduct of horse racing activities” under any
reasonable meaning of the phrase. The only
activities occurring on the Keeneland premises
were the transport of horses, by hand, to and from
the backside, sales arena, and transport vans where
the horses were loaded and taken off the premises
after being purchased. No live racing was
occurring, Keeneland’s racing meets being
confined to April and October of each year. Horse
sales and horse racing are entirely different
activities and the FAAA treats them as such.
While the Court of Appeals’ classification of
Keeneland as a horse racing facility is proper,
Keeneland was not operating as a horse racing
facility during the September Yearling Sale.
Therefore, the blanket exemption of horse racing
activity from the FAAA in KRS 247.4025(1) is
inapplicable.
Prather, 627 S.W.3d at 886.
Accordingly, the Exemption and Prather are the twin spires framing
our analysis. Yet, these beacons are far from narrow. For the following three
reasons, we believe that the undisputed underlying activity in the present case is
distinguishable from the horse sales in Prather and is therefore covered by the
Exemption: 1) It was Derby Day at Churchill Downs. Indeed, live racing was
occurring; 2) Roby was injured after being bit by a horse located on the premises;
3) that horse, or more precisely, a “stable pony,” was a ten-year-old non-racing
thoroughbred employed for the purpose of escorting racehorses to and from the
track in order to keep them calm and under control. If such events are not
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considered the “conduct of horse racing activities,” it begs the question of what
does? Indeed, a wide girth of conduct and accompanying injuries would be
rendered unactionable if this Court were to unilaterally limit an otherwise broad
legislative Exemption. For example, the class of persons with the highest
likelihood of injury are a small cadre who assume an immense risk – i.e., jockeys.
A distant second are employees involved in the handling of horses. Unless
otherwise exempted as agricultural employees, their remedy would likely be a
workers’ compensation claim. See KRS 342.650; and RONALD W. EADES, 18 KY.
PRAC., WORKERS’ COMP. § 3:2 (2021). That leaves everyone else. If the only
actionable injuries remaining are those that occur during, and as a direct result of
the “the fastest two minutes in sports,” the class of potential plaintiffs would be de
minimis.4
In that same vein, the circuit court determined that the Exemption
does not apply since the “stabling of horses” is included in the definition of farm
animal activities under KRS 247.4015(3) and (5) and, therefore, the FAAA
operates to bar Roby’s claim. This is incorrect. Applying the circuit court’s logic,
anything included under the definition of farm animal activity in KRS 247.4015(3)
cannot also be horse racing activity, which would render the Exemption
4
We are cognizant that the Exemption is not limited to the Derby or even injuries caused by
horses. The examples provided herein are merely instructive and not dispositive of future cases.
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meaningless. The Exemption negates what is otherwise provided in KRS 247.401
to 247.4029. Since KRS 247.4015(3) falls within KRS 247.401 to 247.4029, the
Exemption applies to that section. Whatever the legislature intended here, it
certainly did not intend a toothless law. If a narrower Exemption is to exist, then
the General Assembly or our Supreme Court may so instruct.
However, our analysis does not end here. Having determined that
liability is not foreclosed under the FAAA, we must now consider the common law
of premises liability. In the present case the circuit court further determined that
Roby was a licensee, not an invitee. The duty owed a licensee is to “not
knowingly let her come upon a hidden peril or willfully or wantonly cause her
harm.” Smith v. Smith, 563 S.W.3d 14, 17 (Ky. 2018) (citation, footnote, and
brackets omitted). Therein, a divided Court reaffirmed that “Kentucky law
remains steadfast in its adherence to the traditional notion that duty is associated
with the status of the injured party as an invitee, licensee, or trespasser.” The
Court ultimately reversed and remanded determining that:
a dispute exists as to whether [plaintiff] was a licensee or
an invitee. [Defendant] argues that [plaintiff] came over
to her house on her own accord. [Plaintiff] argues that
she was invited over to babysit her great-granddaughter,
albeit gratuitously. This Court has previously held that a
family member invited to assist another whether
gratuitously or on a monetary basis was an invitee.
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Id. at 18 (internal quotation marks and citations omitted). In a more recent and
unanimous decision, however, the Court clarified the relevant law as follows:
Distinguishing guests as either licensees or invitees has
proven particularly challenging for the court because the
mutuality of benefit between a property owner and a
guest required for an invitee is difficult to demonstrate in
the context of a social visit. Because the benefit received
by a property owner in hosting a guest is not easily
quantified in the way an economic or business profit is
measured, the distinction created by mutuality of benefit
is not useful in distinguishing a licensee from an invitee
in a social context. The result of this difference in
relational dynamics leads to unpredictability for both
property owners and entrants and often leads to
inequitable results.
....
The determination of the existence of a duty is still
a legal question for the court to determine. But the court
need only consider 1) if the property owner invited or
ratified the presence of the guest on the premises, and
2) if the guest was injured or harmed in the course of
or as a result of an activity taking place on the
premises. If both requirements are met, the property
owner owes a duty of reasonable care to the guest as a
matter of law.
Bramlett v. Ryan, 635 S.W.3d 831, 837, 839 (Ky. 2021), reh’g denied (Dec. 16,
2021) (emphasis added).5
5
Like Prather, both summary judgments at issue here were issued mere months before the
rendition of Bramlett. Therefore, the parties and the circuit court were without the initial benefit
of its guidance. However, the parties were permitted to address both cases at oral argument.
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For the following three reasons, we believe that Churchill Downs
owed Roby a duty of reasonable care: 1) Roby and her husband were invited by
McGinty to enter property owned and controlled by Churchill Downs; 2) they
entered the property through a rear gate; and 3) upon entry, McGinty was required
by the grounds staff to present an owner’s identification badge and to escort Roby
and her husband onto the property as guests. Therefore, because Churchill Downs
staffed the entrances, provided a credential identification/guest system of entry,
and was aware that guests were on the property, it ratified Roby’s presence on the
premises. The absence of such a finding would compel a conclusion that Roby
was a trespasser, which is entirely unsupported by the record or the parties here.
As to the second prong of our analysis, Bramlett provided the
following examples:
Although this Court’s opinion in Hardin [v. Harris, 507
S.W.2d 172 (Ky. 1974)] did not expressly define what
constitutes an activity for the purposes of this rule, the
Court’s use of broad language – “activities conducted on
the premises” – has been properly interpreted by both this
Court and the Court of Appeals to encompass a wide
range of possible circumstances, including children
swimming in a pool, Grimes v. Hettinger, 566 S.W.2d
769 (Ky. 1978), adults swimming in a pool, Scifres v.
Kraft, 916 S.W.2d 779 (Ky. App. 1996), riding ATVs,
Mathis v. Lohden, No. 2007-CA-00824-MR, 2008 WL
399814 (Ky. App. Feb. 15, 2008), and driving people in a
car, Helton v. Montgomery, 595 S.W.2d 257 (Ky. App.
1980).
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Id. at 839 n.32. The scope of activities occurring at Churchill Downs on Derby
Day is self-evident. Even if Roby’s presence was limited to touring the stables,
this certainly constitutes “an activity taking place on the premises.” Id. at 839.
Lastly, but significantly, Bradley owned and controlled the horse that
bit Roby. Accordingly, Bramlett, et al., are not dispositive here because Bradley’s
potential liability need not be viewed as a premises issue. Because it is undisputed
that Bradley was aware that guests were permitted in the stable area and that he
owned and controlled the personal property that caused the underlying injury,
ordinary negligence principles apply. Therefore, both Churchill and Bradley owed
Roby a duty of reasonable care. Accordingly, “[w]ith the scope of the [Appellees’]
duty determined, the determination of breach of such duty should be left to the
discretion of the jury.” Bramlett, 635 S.W.3d at 839.
CONCLUSION
For the foregoing reasons, we REVERSE the circuit court’s summary
judgments, and REMAND this case for trial.
LAMBERT, JUDGE, CONCURS.
CETRULO, JUDGE, CONCURS IN RESULT AND FILES
SEPARATE OPINION.
CETRULO, JUDGE, CONCURRING IN RESULT: Respectfully, I
concur in result. The majority Opinion primarily relies upon two decisions
rendered by the Supreme Court since the trial court issued the ruling on appeal. In
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Prather, 627 S.W.3d 878, the Court provided a thorough analysis of the FAAA
and, based upon that analysis, the majority found that the Exemption applies and
liability was not foreclosed under the FAAA. With that portion of the Opinion, I
agree and would remand the matter to the trial court in keeping with the holding in
Prather.
However, Prather also stands for the principle that while “[d]esigned
to be narrow and exacting so as to preserve one’s right to trial by jury, summary
judgment is nevertheless appropriate in cases where the nonmoving party relies on
little more than ‘speculation and supposition’ to support his claims.” Id. at 890.
In reviewing the record and the orders below, it is abundantly clear
(and the parties agree to this), that the trial court’s summary judgment was
primarily based upon general premises liability law. The lower court opinion
found that the plaintiff was a licensee and not an invitee because she was not there
to benefit Churchill Downs. The trial court specifically found no breach of duty
owed because the only duty owed to a licensee is to not knowingly let her come
upon a hidden peril or wantonly cause her harm. Again, this ruling was before the
Supreme Court decision in Bramlett v. Ryan, 635 S.W.3d 831, as the majority
Opinion notes.
However, the facts seem to confirm that Bradley was only a licensee
of Churchill Downs, and that Roby only had permission to enter the premises from
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the licensee. Likewise, it is undisputed that Roby approached the horse while it
was in its stall and did so with full knowledge and experience with horses. Since
the trial court did not have the benefit of the Bramlett opinion, when it rendered its
ruling, I would simply remand for the trial court to examine the facts and for
possible further proceedings consistent with that opinion.
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BRIEF AND ORAL ARGUMENT BRIEF FOR APPELLEE
FOR APPELLANTS: CHURCHILL DOWNS, INC.:
Larry D. Ashlock Katherine T. Watts
Elizabethtown, Kentucky John F. Parker, Jr.
Louisville, Kentucky
BRIEF FOR APPELLEES WILLIAM
“BUFF” BRADLEY AND
BRADLEY STABLES:
Neil P. Baine
James P. Nolan, II
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEE CHURCHILL DOWNS,
INC.:
Katherine T. Watts
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEES WILLIAM “BUFF”
BRADLEY AND BRADLEY
STABLES:
Neil P. Baine
Louisville, Kentucky
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Joi Denise Roby v. Churchill Downs, Inc.
Combined Opinion