RENDERED: MARCH 11, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0028-MR

WILMA STEPP AND KENNETH 

STEPP APPELLANTS 

v. 

APPEAL FROM PIKE CIRCUIT COURT

HONORABLE EDDY COLEMAN, JUDGE

ACTION NO. 18-CI-01263

CITY OF PIKEVILLE AND UTILITY 

MANAGEMENT GROUP, LLC APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Wilma and Kenneth Stepp appeal from the Pike Circuit 

Court’s order granting summary judgment to the City of Pikeville in the Stepps’ 

claim for personal injury (Wilma) and loss of consortium (Kenneth). After careful 

review of the record and applicable statutory and case law, we affirm.
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The incident leading to this litigation occurred on May 21, 2018, 

when the Stepp family (Wilma, Kenneth, and their son Carson) traveled to 

Pikeville for the Hillbilly Days festival and parade. At the time, Kenneth was a 

candidate for Congress, and the family’s intent was for Kenneth to make a stump 

speech and then participate in the parade, with Wilma there to photograph her 

husband and gauge the effect on the crowd. At some point prior to the parade, 

Wilma suffered a fall when her foot caught in some sod in a recently landscaped, 

bermed area between two city streets. Her resulting injuries included a fractured 

tibia and a compression fracture to a vertebra (L2) in her lower spine.

On October 30, 2018, Wilma and Kenneth Stepp filed their complaint 

in Pike Circuit Court against the City of Pikeville and Utility Management Group,

LLC (the company responsible for maintenance of the landscaped area). The 

Stepps sought compensatory and consequential damages for Wilma’s injuries and 

Kenneth’s loss of consortium. Answers were filed by each defendant, and 

discovery commenced.

In April 2020, the City filed a motion for summary judgment, arguing 

that the Stepps had failed to provide written notice within 90 days to the City of 

any defective condition of City property allegedly causing Wilma’s injury, citing 

Kentucky Revised Statute (KRS) 411.110. In their response to the City’s motion, 
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the Stepps did not contest the failure but instead maintained that the landscaped 

area did not fit the statute’s definition of included public property.

The circuit court granted the City’s motion by order entered 

November 18, 2020, finding that the landscaped area met the statutory definition of 

a public thoroughfare. Five weeks later, the circuit court denied the Stepps’ 

motion to alter, amend, or vacate the decision to grant summary judgment. The 

Stepps filed a timely notice of appeal, seeking reversal of the summary judgment 

and requesting that this Court remand the matter for a trial by jury.1

We begin by stating our standard of review of an order granting a 

motion for summary judgment:

Summary judgment is a device utilized by the 

courts to expedite litigation. Ross v. Powell, 206 S.W.3d 

327, 330 (Ky. 2006). It is deemed to be a “delicate 

matter” because it “takes the case away from the trier of 

fact before the evidence is actually heard.” Steelvest, Inc. 

v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 

(Ky. 1991). In Kentucky, the movant must prove no 

genuine issue of material fact exists, and he “should not 

succeed unless his right to judgment is shown with such 

clarity that there is no room left for controversy.” Id. 

The trial court must view the evidence in favor of the 

non-moving party. City of Florence v. Chipman, 38 

S.W.3d 387, 390 (Ky. 2001). The non-moving party 

must present “at least some affirmative evidence showing 

1

 Summary judgment was granted only to the City of Pikeville, and it contains the required 

finality language. Kentucky Rule of Civil Procedure 54.02. The record does not indicate any 

attempt by Utility Management Group, LLC, to join in the motion; the record is also silent at the 

appellate level regarding that appellee’s status other than as a named party according to the 

notice of appeal. Accordingly, this decision only determines the propriety of the summary 

judgment order in favor of the City of Pikeville.
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the existence of a genuine issue of material fact[.]” Id. 

On appeal, our standard of review is “whether the trial 

court correctly found that there were no genuine issues as 

to any material fact and that the moving party was 

entitled to judgment as a matter of law.” Scifres v. Kraft, 

916 S.W.2d 779, 781 (Ky. App. 1996). Furthermore, 

because summary judgments do not involve fact-finding, 

our review is de novo. Pinkston v. Audubon Area 

Community Services, Inc., 210 S.W.3d 188, 189 (Ky. 

App. 2006).

Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 542 (Ky. App. 

2013). See also Western Surety Company v. City of Nicholasville, 552 S.W.3d 

101, 108 (Ky. App. 2018).

The statute at issue states thus:

No action shall be maintained against any city in this 

state because of any injury growing out of any defect in 

the condition of any bridge, street, sidewalk, alley or 

other public thoroughfare, unless notice has been given to 

the mayor, city clerk or clerk of the board of aldermen in 

the manner provided for the service of notice in actions

in the Rules of Civil Procedure. This notice shall be filed 

within ninety (90) days of the occurrence for which 

damage is claimed, stating the time of and place where 

the injury was received and the character and 

circumstances of the injury, and that the person injured 

will claim damages therefor from the city.

KRS 411.110.

And finally: “As a matter of application, all statutes are to be liberally 

construed to promote the objects and carry out the intent of the General Assembly. 

KRS 446.080(1). Because the construction and application of a statute is a 
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question of law, it is subject to de novo review. Osborne [v. Commonwealth], 185 

S.W.3d [645,] 648 [(Ky. 2006)].” Richardson v. Louisville/Jefferson County 

Metro Government, 260 S.W.3d 777, 779 (Ky. 2008).

As we explained in City of Louisville v. O’Neill, the 

purposes of KRS 411.110 are:

to give the city an opportunity to investigate 

the scene of an accident and correct any 

defective condition, if such exists, to enable 

the city to investigate and evaluate the case 

so that if liability exists it might have an 

opportunity to settle it without long and 

expensive litigation, and to give the city an 

opportunity to protect its funds against 

unjust and illegal claims.

440 S.W.2d 265, 266 (Ky. 1969).

Denton v. City of Florence, 301 S.W.3d 23, 25 (Ky. 2009).

The Stepps argue that summary judgment was improper because the 

area where Wilma fell was not a “public thoroughfare” as contemplated by the 

statute. They cite to Krietemeyer v. City of Madisonville, 576 S.W.3d 157 (Ky. 

App. 2018), which held that, “in context, the term ‘public thoroughfare’ includes 

only those exterior improvements that are similar to the named items [in the 

statute].” Id. at 161. The Stepps liken their situation to that in Krietemeyer

because the landscaped area likewise did not fit the definition of “public 

thoroughfare” and, therefore, no notice was required to the City.
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But the Krietemeyer Court went on to say, “In this case, the record is 

clear that the stairs do not merely provide a means of access to the Police 

Department building. The exterior stairs are physically part of that structure. To 

this extent, they are not a public thoroughfare in the same way as are bridges, 

streets, sidewalks, or alleys.” Id. And it limited its holding to the particular facts 

of the case, stating: 

This Court’s function is to draw a line where the statute 

clearly requires notice prior to bringing an action, and 

where it clearly does not. If Krietemeyer’s injury had 

occurred in an interior hallway or stairwell inside the 

building, then no notice would be required. If 

Krietemeyer’s injury had occurred on the sidewalk in 

front of the building, then notice would be required.

Because the stairs were physically part of the 

building, we conclude that they are more similar to 

the former situation than the latter.

Id. (emphasis added). Here the entire area in controversy was exterior public land 

not physically part of any building.

When viewing the record in a light most favorable to the Stepps and 

resolving all doubts in their favor, we conclude that the circuit court correctly 

found that there were no genuine issues as to any material fact and that the City of 

Pikeville was entitled to judgment as a matter of law. Keaton, 436 S.W.3d at 542. 

The landscaped area is physically connected to the two parallel streets and is not 

connected to any interior structure. As such, and in accordance with Krietemeyer

and related case law, the allegedly defective area is part of both streets and is 
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subject to the notice provision of KRS 411.110. The Pike Circuit Court properly 

so concluded, and we find no error. 

Accordingly, we affirm the order of the Pike Circuit Court granting 

summary judgment.

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Jonah L. Stevens

Pikeville, Kentucky

BRIEF FOR APPELLEE CITY OF 

PIKEVILLE:

Russell H. Davis, Jr.

Pikeville, Kentucky