RENDERED: OCTOBER 20, 2022

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0435-DG

THE CITY OF BARBOURVILLE, KENTUCKY;

AND BARBOURVILLE WATER & 

RECREATION PARK A/K/A 

BARBOURVILLE WATER PARK

APPELLANTS

ON REVIEW FROM COURT OF APPEALS

V. NO. 2019-CA-1622

KNOX CIRCUIT COURT 2017-CI-00229

EVELYN HOSKINS AND HAROLD HOSKINS APPELLEES

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING IN PART AND REVERSING IN PART

Evelyn Hoskins sustained burns on the bottom of her feet after visiting 

Barbourville Water Park, which is owned by the City of Barbourville (“the City”). 

Hoskins sued the City under theories of premises liability, strict liability, and 

breach of contract.1 The trial court granted summary judgment in favor of the 

City on all claims. The Court of Appeals affirmed the trial court on the strict 

liability and breach-of-contract claims but reversed the trial court’s judgment

on the premises-liability claim, concluding that the questions of reasonability 

1 Harold Hoskins also brought a claim for loss of spousal consortium with 

Evelyn, his wife. Because we ultimately affirm the trial court’s grant of summary 

judgment for the City on all of Evelyn Hoskins’s claims, Harold Hoskins’s claim fails as 

a matter of law. See Daley v. Reed, 87 S.W.3d 247, 248 (Ky. 2002); see also Metzger v. 

Auto-Owners Ins. Co., 607 S.W.3d 695, 698 (Ky. 2020).
2

and foreseeability required submission to the jury. Finding the reasoning of 

the trial court to be sound, we now affirm the Court of Appeals’ decision on the 

strict-liability and breach-of-contract claims, but we reverse the Court of 

Appeals and reinstate the trial court’s grant of summary judgment to the City 

on Hoskins’s premises-liability claim.

I. FACTUAL AND PROCEDURAL HISTORY

Evelyn Hoskins visited the Barbourville Water and Recreation Park for 

approximately two hours on July 27, 2016. She claims to have spent about ten 

minutes that day walking on the concrete sidewalks and walkways at the water 

park. 

Hoskins suffers from diabetic neuropathy, which causes a loss of 

protective sensation in her feet. While at the water park, Hoskins did not 

experience any discomfort in her feet. But when she returned home, her 

daughter remarked that blisters appeared on the soles of Hoskins’s feet. 

Hoskins self-treated the affected areas, but after four days, she sought 

professional medical treatment for her feet. Because the blistered area became 

infected, Hoskins’s left small toe and a portion of her foot required amputation.

Hoskins sued the City, bringing strict-liability, premises-liability, and 

breach-of-contract claims. The trial court granted summary judgment for the 

City on all claims, finding no disputes of material fact and no breach by the 

City of any duty owed to Hoskins. The trial court found that operation of a 

water park was not an ultra-hazardous activity that created strict-liability for 

the City. The trial court also held that Hoskins’s payment of admission to the 
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waterpark did not create a contract upon which breach-of-contract claims 

could arise. Lastly, the trial court ruled that Hoskins’s premises-liability claim 

failed because the allegedly sun-heated sidewalks did not pose an 

unreasonable risk of harm and the injury she sustained was not foreseeable.

The Court of Appeals affirmed the decision of the trial court on strict 

liability and breach of contract.2 But the Court of Appeals reversed the trial 

court’s grant of summary judgment on the premises-liability claim. The Court 

of Appeals stated that “breach of duty is an issue of fact to be decided by the 

jury, not the trial court” and concluded that a jury must assess both the 

reasonability of the risk and the foreseeability of the harm. Lastly, the Court of 

Appeals stated that “we cannot conclude that the hazard at issue here could 

not be corrected by any means or that it is beyond dispute that the landowner 

did all that was reasonable to correct or warn of the situation.”

II. STANDARD OF REVIEW

“The proper standard of review on appeal when a trial judge has granted 

a motion for summary judgment is whether the record, when examined in its 

entirety, shows there is no genuine issue of material fact and the moving party 

is entitled to a judgment as a matter of law.”3 “Because summary judgment 

2 The City’s Motion for Discretionary Review only sought this Court’s review of 

the Court of Appeals’ decision on premises liability. Because Hoskins failed to file a 

Cross-Motion for Discretionary Review addressing the Court of Appeals’ affirmation of 

the trial court’s grants of summary judgment on strict liability and breach of contract, 

we do not review those issues in this opinion. See Fischer v. Fischer, 348 S.W.3d 582, 

597 (Ky. 2011). 

3 Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010).
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does not require findings of fact but only an examination of the record to 

determine whether material issues of fact exist, we generally review the grant of 

summary judgment without deference to either the trial court’s assessment of 

the record or its legal conclusions.”4 In such cases, this Court reviews the 

issue de novo.5

III. ANALYSIS

In any negligence case, the plaintiff must prove the following elements in 

order to prevail over the defendant: “(1) the defendant owed the plaintiff a duty 

of care, (2) the defendant breached the standard by which his or her duty is 

measured, and (3) consequent injury.”

6 A negligence claim brought under a 

theory of premises liability asserts that a land possessor has violated his duty 

to maintain his premises in a reasonably safe manner.7 Historically, the scope 

of the duty owed by a land possessor was dependent upon the status of one 

claiming injury as either a trespasser, a licensee, or an invitee.8

In this case, Hoskins was an invitee at the water park because she was 

“an individual present on the premises at the explicit or implicit invitation of 

4 Id. (citing Malone v. Ky. Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky.

2009)).

5 Id. (citing Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 

S.W.3d 644, 647 (Ky. 2007)).

6 Pathways v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003) (internal citations 

omitted). 

7 Smith v. Smith, 563 S.W.3d 14, 16 (Ky. 2018) (citing Shelton v. Ky. Easter 

Seals Soc’y, Inc., 413 S.W.3d 901, 909 n.28 (Ky. 2013)).

8 Bramlett v. Ryan, 635 S.W.3d 831, 836 (Ky. 2021) (citing Kentucky & W. Va. 

Power Co. v. Stacy, 164 S.W.2d 537, 539 (Ky. 1942)).
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the property owner to do business or otherwise benefit the property owner.”

9 

When the facts of a case are undisputed, the determination of the duty owed by 

a landowner to a guest is a question of law to be determined by the court.10 In 

this case, neither party disputes the classification of Hoskins as an invitee and 

the resulting duty owed by the City to her—a duty “to discover unreasonably 

dangerous conditions on the land and either eliminate or warn of them.”11 

A. The sun-heated walkway did not constitute an unreasonably 

dangerous condition.

It is generally a question of fact to be presented to the jury whether an 

unreasonably dangerous condition existed on the land possessor’s premises 

sufficient to trigger the duty to warn or ameliorate.12 But “summary judgment 

still remains a viable concept[.]”13 “If reasonable minds cannot differ or it 

would be unreasonable for a jury to find breach or causation, summary 

judgment is still available to a landowner. And when no questions of material 

fact exist or when only one reasonable conclusion can be reached, the litigation 

may still be terminated.”

14

9 Bramlett, 635 S.W.3d at 837.

10 Id.

11 Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385, 388 (Ky. 2010). 

Unreasonably dangerous conditions are sometimes referred to by this Court and 

others as “unreasonable risks of harm.” See Shelton, 413 S.W.3d at 914; Perry v. 

Williamson, 824 S.W.2d 869, 874 (Ky. 1992).

12 See City of Cynthiana v. Sersion, 88 S.W.2d 672, 672–73 (Ky. 1935).

13 Shelton, 413 S.W.3d at 916.

14 Id. (internal citations omitted).
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An unreasonably dangerous condition is “one that is ‘recognized by a 

reasonable person in similar circumstances as a risk that should be avoided or 

minimized’ or one that is ‘in fact recognized as such by the particular 

defendant.’”

15 One indication that a risk is not unreasonable is that “a 

reasonable person in the defendant’s shoes would not take action to minimize 

or avoid the risk.”16 Further, at common law, “conditions on the land could not 

be deemed unreasonably dangerous if they were ‘known to the visitor or so 

obvious to him that he may be expected to discover them.’”

17 And if the 

conditions on the premises are not unreasonably dangerous, the land 

possessor’s duty of care is not implicated, and thus “injuries arising from such 

conditions cannot give rise to the possessor's liability.”

18 

The trial court in this case found that no reasonable jury could conclude 

that the sun-heated concrete walkways at the water park were an 

unreasonably dangerous condition. And we agree. Hoskins provided no 

evidence that the walkways at the water park were negligently maintained or 

defectively designed. She provided no evidence that other water parks take 

steps to minimize the sun-generated heat of their concrete walkways. She 

provided no expert testimony regarding industry standards or practices with 

which Barbourville Water Park failed to comply. Hoskins simply produced no 

15 Id. at 914 (citing DOBBS, THE LAW OF TORTS § 143, p. 335 (2001)).

16 Id. (citing DOBBS at 336).

17 Id. (citing Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 528 (Ky. 1969)).

18 Grubb v. Smith, 523 S.W.3d 409, 417 (Ky. 2017) (citing RESTATEMENT 

(SECOND) OF TORTS § 343 (1965)).
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evidence that a reasonable person in the place of the City would have taken 

any action to eliminate the alleged risk created by the sun heating the concrete 

walkways. As such, the trial court did not err in deciding that only one 

reasonable conclusion could be reached: the sun-heated walkways at the 

water park were not an unreasonably dangerous condition.

B. Hoskins’s injuries were not foreseeable to the City.

Historically, a land possessor could not be held liable for injury to an 

invitee caused by an open and obvious hazard.19 But after this Court adopted 

a comparative-fault scheme, the identification of an open-and-obvious hazard 

was no longer a total bar to the plaintiff’s recovery.20 Under comparative fault, 

when an open-and-obvious hazard is identified, the land possessor is only 

liable for injuries caused by the hazard that are foreseeable.21 Only if such 

injury was foreseeable did the land possessor have a duty to eliminate the 

hazard.22

Hoskins argues that, even if the sun-heated concrete walkways only 

constituted an open-and-obvious hazard, the City still had a duty to eliminate 

that hazard if it was foreseeable that an invitee would be injured by the harm, 

despite the “warning” that an open-and-obvious hazard inherently provides.

Thus, she concludes that the case should have been submitted to the jury for 

19 Kentucky River Med. Ctr., 319 S.W.3d at 388 (citing RESTATEMENT (FIRST) OF 

TORTS § 340 (1934)).

20 Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 297 (Ky. 2015).

21 Kentucky River Med. Ctr., 319 S.W.3d at 393.

22 Id. at 392.
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determination of the foreseeability of her injury and a subsequent 

apportionment of fault.

Hoskins produced no evidence that she alerted the City to the existence 

of her underlying medical condition. She provided no evidence that any 

previous patron of the water park had sustained injuries like hers as a result of 

walking on its sun-heated walkways. So the trial court found the 

circumstances of Hoskins’s injury to be so unusual and unique that the City 

could not have anticipated her injury nor could it have reasonably done more 

to prevent her injury. 

This Court has generally considered the foreseeability of the plaintiff’s 

injury to be a part of the breach analysis, presenting a question of fact for the 

jury.23 As such, “the foreseeability of harm becomes a factor for the jury to 

determine what was required by the defendant in fulfilling the applicable 

standard of care.”

24 But questions of breach may be properly decided by 

summary judgment “when a [hazard] cannot be corrected by any means or 

when it is beyond dispute that the landowner had done all that was 

reasonable.”25

This case presents such a circumstance. Hoskins produced no evidence 

of any feasible means the City could have undertaken to lessen the alleged risk 

created by heat radiating from sidewalks warmed by the summer sun. She did 

23 Shelton, 413 S.W.3d at 914.

24 Id.

25 Carter, 471 S.W.3d at 297.
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not produce any evidence that the City acted outside of industry standard 

practices. And she did not provide any evidence why the City would anticipate 

injuries like hers to take place. So we hold that the trial court appropriately 

concluded that Hoskins’s injuries were not foreseeable to the City, and thus the 

City had no duty to eliminate the allegedly dangerous condition.

IV. CONCLUSION

We find this to be a rare circumstance in which a plaintiff provided no 

evidence of the existence of an unreasonably dangerous condition such that 

summary judgment was appropriate. We agree with the trial court that no 

reasonable jury could find the sun-heated walkways at the water park 

constituted an unreasonably dangerous condition and that Hoskins’s injury 

was so unforeseeable that the City could not have reasonably done more to 

prevent her injury. Thus, we affirm the decision of the Court of Appeals on

Hoskins’s strict-liability and breach-of-contract claims, and we reverse the 

Court of Appeals on Hoskins’s premises-liability claim and reinstate the trial 

court’s grant of summary judgment in favor of the City.

All sitting. All concur. 

COUNSEL FOR APPELLANTS:

Licha H. Farah, Jr.

Whitney N. Williams

Ward, Hocker & Thornton, PLLC

COUNSEL FOR APPELLEES:

C. Bishop Johnson

C. Bishop Johnson, PLLC