RENDERED: FEBRUARY 5, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0036-MR

BRIAN BOWEN APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE

ACTION NO. 17-CI-006899 

OLHMANN PROPERTIES, LLC; 

SUSAN G. OLHMANN; AND 

TRACEY E. THOMPSON APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

COMBS, JUDGE: Brian Bowen appeals the summary judgment of the Jefferson 

Circuit Court entered in favor of his landlord, Olhmann Properties, LLC, and its 

owners, Susan Olhmann and Tracey Thompson, in the lawsuit that he filed for 

personal injuries that he sustained during a fire at his apartment. Bowen contends 

that the circuit court erred by concluding that Olhmann Properties did not breach a 
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duty owed to him and that, consequently, it was entitled to judgment as a matter of 

law. After our review, we affirm. 

On January 30, 2014, Bowen entered into a lease agreement with 

Olhmann Properties for the rental of his apartment – a unit in a converted, multifamily dwelling in the Old Louisville neighborhood. Pursuant to the terms of the 

lease agreement, Bowen accepted the property “as is.” He acknowledged that he 

had inspected the premises, that he agreed that the apartment was in satisfactory 

condition, and that no repairs were necessary. The lease agreement provided that 

the “[t]enant will notify Manager (in writing) of any maintience [sic] problems 

within 24 hrs.” Tracey Thompson was designated as the property manager, and 

Thompson’s mailing address was provided in the agreement. 

In 2017, Bowen indicated in his deposition that several of the 

electrical receptacles in the apartment would not hold the prongs of a plug tightly 

and that cords plugged into those outlets would sometimes simply “hang loose.” 

Bowen admitted that he never reported a problem with the outlets; he largely 

avoided using them instead. 

On the morning of Saturday, January 14, 2017, Bowen awoke to 

discover flames at the corner of his bed. He tried to put out the fire to no avail. 

Convinced that the fire was inside his mattress, he tried dragging it out the door but 
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could not. Bowen gave up and alerted the neighbors. He sustained serious burns 

fighting the fire and was taken to the hospital by ambulance. 

On December 28, 2017, Bowen filed a complaint against Olhmann 

Properties, LLC, Susan Olhmann, and Tracey Thompson, alleging that his landlord 

knew or should have known about the faulty electrical outlet in his bedroom but 

failed to repair it. He alleged that this negligence led to the fire which caused his 

personal injuries. Olhmann Properties denied liability. Following discovery,

Olhmann Properties filed a motion for summary judgment and argued that it was 

entitled to judgment as a matter of law. After a review of the undisputed facts and 

the applicable law, the circuit court granted the motion for summary judgment and 

dismissed the case. This appeal followed.

Summary judgment serves to terminate litigation where:

the pleadings, depositions, answers to interrogatories, 

stipulations, and admissions on file, 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. 

CR1 56.03. On appeal, we must determine whether the trial court correctly 

determined that there were no genuine issues of material fact and that the movant 

was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. 

App. 1996).

 

1 Kentucky Rules of Civil Procedure. 
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Bowen contends that the circuit court erred by granting summary 

judgment because the landlord assumed the duty to maintain the electrical wiring 

in good working order pursuant to the terms of the lease agreement, and he 

presented sufficient evidence to show that the fire was caused by the failure to do 

so. We disagree. 

A common law negligence claim requires proof of a duty of care, a 

breach of the duty, an injury, and legal causation between the breach and injury. 

Patton v. Bickford, 529 S.W.3d 717 (Ky. 2016). Whether the defendant owed a

duty to the plaintiff is a question of law for the court while breach and injury are

typically questions of fact for a jury. Howard v. Spradlin, 562 S.W.3d 281 (Ky.

App. 2018) (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85 (Ky. 2003)). 

Causation is a mixed question of law and fact. Id. The Jefferson Circuit Court 

determined that Bowen could not, as a matter of law, establish negligence because 

he could not show that his landlord breached a duty of care nor could he prove 

proximate causation.

A landlord does not breach a duty of care and is not liable for an 

injury to its tenant because of a defect arising during the tenancy except where: the 

defect pre-existed the tenancy; the landlord was aware of the defect; and the 

landlord concealed the defect. Spinks v. Asp, 192 Ky. 550, 234 S.W. 14 (1921). 

There is no evidence to show that Ohlmann Properties was aware of the inadequate 
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condition of the electrical outlets or that it concealed the problem from Bowen. 

However, Bowen himself was aware of the condition of the outlets throughout the 

term of his three-year tenancy. But he never complained to the landlord about any 

of the outlets, nor did he notify the landlord. 

In True v. Fath Bluegrass Manor Apartment, 358 S.W.3d 23 (Ky.

App. 2011), we held that where a tenant takes the premises in an “as is” condition, 

the landlord is not liable for injuries caused by the defect known to the tenant or 

discoverable by him through a reasonable inspection. Moreover, we observed that 

even where a landlord assumes a contractual duty to make repairs to leased 

premises, the landlord has no liability to a tenant beyond contract damages. 

We applied the same reasoning in Joiner v. Tran & P Properties,

LLC, 526 S.W.3d 94, 102 (Ky. App. 2017), where we considered whether tenants 

could recover for alleged physical injuries caused by the presence of mold in their 

apartment. The tenants were aware of the existence and danger of the mold in their 

home, and the landlord was responsible for maintaining the property in a safe and 

habitable condition. The tenants alleged that the landlord failed to remediate the 

mold despite requests to do so and that they suffered respiratory illness as a result. 

Based on the precedents of Pinkston v. Audubon Area Community Services, Inc., 

210 S.W.3d 188 (Ky. App. 2006), and Spinks, supra, we held that the landlord was 

entitled to judgment as a matter of law. We observed that Kentucky law provides 
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that a landlord is not liable for personal injuries arising from a failure to repair. 

Instead, the sole legal remedy for breach of a lease agreement to repair is the cost 

of the repair itself. 

Additionally, we are not persuaded that the circuit court erred by 

concluding that Bowen could not prove causation. An investigator for the 

Louisville Fire Department testified in his deposition that Bowen admitted to him 

that he had disabled the apartment’s smoke detector and that he had been drinking 

and smoking in his bed shortly before discovering the fire. The fire investigator 

indicated that this information matched his observations at the scene. The 

investigator explained that he did not closely examine the outlet in Bowen’s 

bedroom. However, he did confirm that there was no obvious damage to the 

receptacle. He indicated that if even Bowen were to retract his statement 

concerning smoking in bed, he could not determine the specific cause of the fire 

within a reasonable degree of scientific probability. 

 Bowen failed to offer proof of the alleged outlet malfunction; he failed 

to establish a causal connection between the receptacle and the fire; and he failed 

to establish legal causation between an alleged breach and his personal injury. 

Thus, Bowen cannot prevail as a matter of law. Even if we were to assume that 

Ohlmann Properties breached a duty of care owed to Bowen, he would be unable 
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to show that the breach was the proximate cause of his injury under the 

circumstances of this case.

We AFFIRM the summary judgment of the Jefferson Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT:

Mark A. Weis

Louisville, Kentucky

BRIEF FOR APPELLEES:

Marc L. Breit

Louisville, Kentucky

Scott E. Miller 

Louisville, Kentucky