RENDERED: JULY 1, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0124-MR

CHARLOTTE A. HOWARD AND 

JAMES G. HOWARD APPELLANTS 

v. 

APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE KEN M. HOWARD, JUDGE

ACTION NO. 14-CI-01458 

THE CITY OF ELIZABETHTOWN 

KENTUCKY; AUTO OWNERS 

INSURANCE COMPANY; JEREMY 

STUBBS; KENTUCKY KAOS; AND 

STEVEN WIDMER APPELLEES 

AND

NO. 2020-CA-0133-MR

JEREMY STUBBS CROSS-APPELLANT 

v. 

CROSS-APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE KEN M. HOWARD, JUDGE

ACTION NO. 14-CI-01458 
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CHARLOTTE A. HOWARD AND 

JAMES G. HOWARD CROSS-APPELLEES 

OPINION

AFFIRMING APPEAL NO. 2020-CA-0124-MR AND

DISMISSING CROSS-APPEAL NO. 2020-CA-0133-MR

**   **  **

BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Charlotte and James Howard (the “Howards”) appeal from 

various orders of the Hardin Circuit Court dismissing their claims against 

Kentucky Kaos (“Kaos”), Steven Widmer (“Widmer”), Jeremy Stubbs (“Stubbs”) 

and the City of Elizabethtown, Kentucky (“City”). Stubbs cross-appeals from the 

trial court’s August 14, 2018 order denying his motion for summary judgment. 

Following our review, we affirm as to the appeal and dismiss the cross-appeal as 

moot. 

This is a personal injury action arising out of injuries Charlotte 

allegedly sustained on August 30, 2013. According to the complaint, the Howards 

were driving past Ring Road Softball Complex in Elizabethtown, Kentucky when a 

softball broke the passenger side window of the Howards’ vehicle, striking 

Charlotte. At the time of incident, Kaos, a recreational softball team comprised of 

military and Department of Defense workers, was hosting a softball tournament at 

the complex. They had leased the complex from the City for the day to host the 
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tournament. Kaos did not play in the tournament, but was responsible for 

managing concessions, serving as umpires, and tournament logistics. 

On August 26, 2014, the Howards filed a complaint in Hardin Circuit 

Court alleging negligence and loss of consortium against Kaos, the City, and 

United States Specialty Sports Association, Inc. (“USSSA”).1 Subsequently, Kaos 

moved to dismiss the Howards’ claims against it, arguing that it was an 

unincorporated association incapable of being sued under Kentucky law. The trial 

court granted the motion. On January 23, 2017, the Howards filed an amended 

complaint naming Stubbs, Kaos’ coach, and Widmer, who helped purchase 

liability insurance for the event, as defendants. 

Shortly thereafter, Stubbs and Widmer filed a motion for summary 

judgment, arguing that the Howards’ claims against them were barred by the 

statute of limitations. Following an evidentiary hearing, the trial court granted the 

motion as to Widmer, finding that the Howards’ claims against Widmer did not 

relate back to the original complaint and were thus barred by the statute of 

limitations. However, the trial court denied the motion as to Stubbs. 

1 The Howards’ claims against USSSA were summarily dismissed on January 27, 2017, and are 

not a subject of this appeal. 
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The City also moved for summary judgment, arguing the Howards’

claims were barred by Kentucky’s recreational use statute, KRS2 411.190. The 

trial court agreed and granted the motion. Finally, following additional discovery, 

Stubbs again moved for summary judgment, arguing that the doctrine of res ipsa 

loquitur was inapplicable to the Howards’ negligence claim and that their

negligence claim failed as a matter of law. The trial court granted the motion, 

making the court’s previous orders final and appealable. This appeal followed. 

The Howards argue the trial court erred in granting Kaos’ motion to 

dismiss, and in granting summary judgment in favor of the City, Stubbs, and 

Widmer. We will address each dismissal in turn. A motion to dismiss, pursuant to 

CR3 12.02(f), for failure to state a claim is a question of law, and we review the 

issue de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). The pleadings must 

be liberally construed in a light most favorable to the nonmoving party, and the

allegations contained in the complaint are taken as true. Id. The trial court should 

not grant the motion “unless it appears the pleading party would not be entitled to 

relief under any set of facts which could be proved in support of his claim.” James

v. Wilson, 95 S.W.3d 875, 883 (Ky. App. 2002) (citation omitted).

2 Kentucky Revised Statutes.

3 Kentucky Rules of Civil Procedure. 
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The trial court granted Kaos’ motion to dismiss, finding that it was an 

unincorporated association incapable of being sued under Kentucky law. The 

Howards argue this was error because 1) Kaos denied it was an unincorporated 

association in its answer and the trial court relied on unsworn statements to the 

contrary in granting the motion to dismiss; 2) Kaos waived the issue of its capacity 

to be sued by failing to make a “specific negative averment” as required by CR 

9.01; and 3) Kaos should be estopped from asserting its lack of capacity to be sued 

because the Howards detrimentally relied on its answer denying that it was an 

unincorporated association. 

Concerning their first point, the Howards’ complaint alleged that Kaos 

“is an unincorporated association of persons, which is, and was at the time of the 

events set forth herein, present and doing business in the Commonwealth of 

Kentucky . . . as a softball team.” Kaos partly denied this allegation in its answer,

asserting that it “is not a legal entity doing any business in the Commonwealth of 

Kentucky, and does not have any agents, servants or employees.” The Howards 

read Kaos’ answer as denying its status as an unincorporated association. Based 

upon this reading, the Howards argue the trial court erred in relying upon unsworn 

statements in the motion to dismiss that Kaos is an informal association incapable 

of being sued. We disagree.
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First, Kaos’ assertion that it “is not a legal entity doing any business in 

the Commonwealth of Kentucky, and does not have any agents, servants or 

employees[,]” is clearly countering the complaint’s allegation that it was “doing 

business” in Kentucky. This statement would make no sense if the answer is read 

as denying Kaos’ unincorporated status. Further, the trial court did not rely on any 

unsworn statements in granting the motion, but on allegations in the Howards’ own 

complaint which specifically state that Kaos is an unincorporated association. We 

note that the Howards have not actually challenged Kaos’ status as such, but 

instead argue error on other bases. 

We also find that Kaos did not waive the defense of its capacity to be 

sued. CR 9.01 requires that “[w]hen a party desires to raise an issue as to the legal 

existence of any party or the capacity of any party to . . . be sued . . . he shall do so 

by specific negative averment, which shall include such supporting particulars as 

are peculiarly within the pleader’s knowledge.” Here, the Howards’ complaint 

alleged that Kaos was an unincorporated association. Kaos’ answer to the 

complaint asserted that it was “not a legal entity doing business in the 

Commonwealth of Kentucky, and does not have any agents, servants or 

employees.” Despite the Howards’ claim to the contrary, this was a “specific 

negative averment . . . [with] supporting particulars” which “raise[d] an issue as to 
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the legal existence” of Kaos as required by the rule. The Howards cite no case law 

interpreting CR 9.01 to require anything more. 

Finally, the Howards argue that Kaos should be estopped from 

asserting its lack of capacity to be sued because they were misled by Kaos’ denial 

of its status as an unincorporated association. We find this argument without 

merit. As noted above, Kaos never denied its status as an unincorporated 

association. It denied that it was doing business in Kentucky. Further, the 

Howards’ allegation that they were misled is unreasonable considering that their 

own complaint alleged that Kaos was an unincorporated association and that Kaos 

asserted that it was “not a legal entity doing any business . . . and does not have 

any agents, servants or employees.”

The Howards next argue the trial court erred in granting the City’s 

motion for summary judgment. The trial court determined that Kentucky’s 

Recreational Use Statute, KRS 411.190, barred the Howards’ claims against the 

City. “The standard of review on appeal of a summary judgment 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) (citing CR 56.03). “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 his favor.” Steelvest, Inc. v. 
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Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). “The circuit 

court’s decision to grant a motion for summary judgment is reviewed de novo.” 

Roach v. Hedges, 419 S.W.3d 46, 47 (Ky. App. 2013) (citation omitted). Issues of 

statutory interpretation are also reviewed de novo. Dolt, Thompson, Shepherd & 

Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607 S.W.3d 683, 687 (Ky. 

2020) (citation omitted).

“The cardinal rule of statutory construction is that the intention of the 

legislature should be ascertained and given effect.” Jefferson Cty. Bd. of Educ. v. 

Fell, 391 S.W.3d 713, 718 (Ky. 2012) (citations omitted). “All statutes of 

[Kentucky] shall be liberally construed with a view to promote their objects and 

carry out the intent of the legislature, and the rule that statutes in derogation of the 

common law are to be strictly construed shall not apply to the statutes of this 

state.” KRS 446.080(1).

The legislature enacted the Recreational Use Statute to “encourage 

owners of land to make land and water areas available to the public for recreational 

purposes by limiting their liability[.]” KRS 411.190(2). To that end, the 

“Recreational Use Statute displaces the common law duties with which the 

landowner would be charged in the statute’s absence[.]” Collins v. Rocky Knob 

Associates, Inc., 911 S.W.2d 608, 612 (Ky. App. 1995), discretionary review 

denied (Jan. 10, 1996).
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KRS 411.190 provides in pertinent part:

(3) Except as specifically recognized by or provided in 

subsection (6) of this section, an owner of land owes 

no duty of care to keep the premises safe for entry or 

use by others for recreational purposes, or to give any 

warning of a dangerous condition, use, structure, or 

activity on the premises to persons entering for such 

purposes.

(4) Except as specifically recognized by or provided in 

subsection (6) of this section, an owner of land who 

either directly or indirectly invites or permits without 

charge any person to use the property for recreation 

purposes does not thereby:

. . .

(c) Assume responsibility for or incur liability for any 

injury to person or property caused by an act or 

omission of those persons.

KRS 411.190(3)-(4). “The words of the statute are absolute and unqualified” and 

qualifying property owners owe “no duty to anyone” except under the 

circumstances provided in subsection 6. Coursey v. Westvaco Corp., 790 S.W.2d 

229, 232 (Ky. 1990).

The Howards argue that the Recreational Use Statute does not apply 

because Charlotte’s injury did not occur on the land subject to immunity and she 

was not engaged in recreational activity at the time of her injury. The trial court 

disagreed, finding that KRS 411.190(4)(c) grants immunity to owners of 

recreational use land even when the injury occurs off-premises. The court relied 
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upon the Recreational Use Statute’s broad public policy and the specific language 

of KRS 411.190(4)(c). We agree with the trial court and find that Kentucky’s 

Recreational Use Statute applies under the facts of this case. 

No Kentucky case has considered whether Kentucky’s Recreational 

Use Statute applies under these specific circumstances. In Poore v. 21st Century 

Parks, Inc., 619 S.W.3d 409 (Ky. App. 2020), discretionary review denied (Apr. 

20, 2021), a panel of this Court held that the Recreational Use Statute applied to 

injuries occurring on off-premises waterways. Plaintiff had gone on a kayaking 

trip and had entered the waterway using an access point located on land owned by 

the defendant. However, plaintiff was injured at a point on the river not located on 

defendant’s land. Plaintiff argued that the Recreational Use Statute did not apply 

because defendant did not own the waterway where plaintiff was injured. 

Relying upon the implicit holding of Collins v. Rocky Knob 

Associates, Inc., and authority from other states, the Court of Appeals held that 

Kentucky’s Recreational Use Statute applied to bar plaintiff’s claims because his 

claims were “inextricably interwoven with the recreational purpose for which [he]

used the [defendant’s property].” Poore, 619 S.W.3d at 422. Therefore, there is 

precedent that the Recreational Use Statute can apply to injuries occurring offpremises, at least where plaintiff’s use of that property is “inextricably interwoven” 

with her use of adjacent property for recreational purposes. 
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However, Poore did not consider the issue of whether the 

Recreational Use Statute applies to an off-premises injury when the plaintiff is not 

engaged in recreational activity. We have located one case from another state 

addressing this exact scenario and find its analysis persuasive. In Wang v. 

Nibbelink, 208 Cal. Rptr. 3d 461, 464 (Cal. Ct. App. 2016), in a case of first 

impression, the California Court of Appeals held that their version of the 

Recreational Use Statute applied in situations “where [] recreational users of the 

land cause injury to persons outside the premises who are uninvolved in the 

recreational use of the land[.]” 

In Wang, a horse escaped from property owned by defendants and 

trampled plaintiffs as they exited their car to dine at a restaurant on adjacent 

property. Plaintiffs sued defendants, but their claim was dismissed when the trial 

court granted summary judgment, finding that California’s recreational use statute 

barred plaintiffs’ claims. On appeal, plaintiffs argued that the statute did not apply 

to off-premises injury to a person not participating in recreational use of the land.

In finding the statute applicable, the Court began its analysis by

observing that California Civil Code § 846 “contains separate immunities shielding 

landowners from liability for (1) injuries to recreational users and (2) 

injuries caused by recreational users.” Wang, 208 Cal. Rptr. 3d at 470 (citing 

Klein v. United States, 235 P.3d 42, 49 (Cal. 2010)). Subsection (a) of the statute 
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“absolves landowners of two separate and distinct duties: (1) The duty to keep the 

premises safe for recreational users; and (2) the duty to warn recreational users of 

hazards.” Id. at 471 (citation omitted). The Court then noted that subsection (c) 

“adds an additional immunity that shields the landowner from liability for injuries 

caused by (rather than to) recreational users.” Id. (internal quotation marks and 

citation omitted).

The Wang Court relied upon the plain language of subsection (c) in 

finding that California’s recreational use statute applied to off-premises injury to 

non-recreational users:

Subpart (c) of the third paragraph of section 846 is 

not limited to injuries to persons on the premises and 

therefore on its face encompasses persons off-premises 

such as Ms. Wang and her husband. It is not limited to 

injuries to recreational participants. Had the Legislature 

wanted to narrow the third paragraph’s immunity to 

injured recreational users, it could have done so, as it did 

in the first paragraph.

Wang, 208 Cal. Rptr. 3d at 474.

The Court further explained its reasoning:

It thus appears section 846, paragraph 3, subpart 

(c) eliminates, in the recreational land use context, the 

landowners’ otherwise-existing “permission-liability” or 

“licensee-control” liability for the conduct of third parties 

on the land. Since that liability applied not only to onpremises injury, but also to off-premises injury to persons 

uninvolved in the activity occurring on the defendant’s 

land, logic dictates that section 846’s elimination of that 

liability should be coextensive with both aspects of that 
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liability. Plaintiffs proffer no reason why not. As the 

trial court noted, it would make no sense for a landowner 

to be immunized from liability toward a bystander inches 

within the property line, yet be liable for injury to a 

bystander standing inches outside the property line.

Id. at 474-75.

Finally, the Court concluded that this interpretation furthered the

statute’s purpose of encouraging landowners to make their land available for 

recreational use by removing the risk of gratuitous tort liability. Id. at 475 

(citations omitted). It noted that “[m]aking landowners liable when a recreational 

user injures an uninvolved person on adjacent property would undermine this 

legislative purpose to encourage private landowners to allow recreational use of 

their land.” Id.

We agree with Wang’s reasoning and find it determinative. KRS 

411.190 is substantially similar to California Civil Code § 846. Like § 846(c), 

KRS 411.190(4)(c) absolves landowners of liability for “any injury to person or 

property caused by an act or omission” of a recreational user. (Emphasis added.) 

This is distinct from KRS 411.190(3)’s liability protection for injuries to

recreational users. By its plain language, KRS 411.190(4)(c) is not limited to 

persons engaged in recreation. 

The subsection provides that a landowner shall not be liable for “any

injury to person” caused by a recreational user. (Emphasis added.) The legislature 
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chose the words “any injury” and “we assume that the [legislature] meant exactly 

what it said, and said exactly what it meant.” Univ. of Louisville v. Rothstein, 532 

S.W.3d 644, 648 (Ky. 2017) (internal quotation marks and citation omitted). 

Under this subsection, whether the person was engaged in recreation is irrelevant. 

If the legislature wanted such limiting language, it could have added it. 

Further, this interpretation is consistent with the statute’s purpose, 

which is “to encourage owners of land to make land and water areas available to 

the public for recreational purposes by limiting their liability[.]” KRS 411.190(2).4 

Here, Charlotte alleges she was injured when a softball hit from the 

City park crashed into her car window.5 At least under the facts of this case, we 

hold the Recreational Use Statute applies. The Howards have not argued that the 

City is liable under either of the exceptions in KRS 411.190(6). Therefore, the trial 

4 We are aware KRS 411.190(2) provides it will accomplish this purpose by limiting recreational 

use landowners’ liability “toward persons entering thereon for such purposes.” However, as 

noted above, KRS 411.190(4)(c) is not limited to persons engaged in recreation. When 

interpreting statutes, “[w]e presume that the General Assembly intended for the statute to be

construed as a whole, for all of its parts to have meaning, and for it to harmonize with 

related statutes.” Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) 

(citations omitted). Limiting landowners’ liability for injuries caused to persons off-premises 

and not engaged in recreation furthers the statute’s overall scheme “to encourage owners of land 

to make land and water areas available to the public for recreational purposes[.]” KRS 

411.190(2).

5 We assume that playing softball qualifies as a “recreational purpose” under the statute. The 

Howards have not raised this issue on appeal. 
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court did not err in finding that the Recreational Use Statute bars the Howards’

claims against the City and in granting summary judgment. 

The Howards next argue the trial court erred in granting summary 

judgment in favor of Widmer. The trial court determined that the Howards’ claims 

against Widmer did not relate back to the original complaint and were thus barred 

by the statute of limitations. The Howards do not challenge the trial court’s 

substantive ruling, but instead argue it improperly held an evidentiary hearing prior 

to granting summary judgment. We find this argument without merit. 

The Howards cite no law in support of their argument, but instead 

make an argument from silence that “[n]o provision of CR 56 references or allows 

for disposition of a motion for summary judgment by a court conducting an 

evidentiary hearing.” A quick search of Kentucky case law reveals no instance of 

a trial court being reversed for granting an evidentiary hearing on a motion for 

summary judgment. In fact, it reveals the opposite. See City of Shepherdsville v. 

Nichols Fire Prot. Dist., Nos. 2004-CA-001259-MR and 2004-CA-001261-MR, 

2006 WL 1509008, at *4 (Ky. App. June 2, 2006), discretionary review denied

(Nov. 15, 2006) (reversing summary judgment and remanding for an evidentiary 

hearing to resolve genuine issue of material fact).6 We find no error.

6 Cited for purposes of illustration, not as persuasive authority per CR 76.28(4)(c).
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Lastly, the Howards argue the trial court erred in granting summary 

judgment in favor of Stubbs on their res ipsa loquitur claim. We disagree. Res 

ispa loquitur “is an evidentiary doctrine which allows a jury to infer negligence on 

the part of the defendant.” Sadr v. Hager Beauty School, Inc., 723 S.W.2d 886, 

887 (Ky. App. 1987). “Reliance upon the doctrine of res ipsa loquitur is predicated 

upon a showing that (1) the defendant had full control of the instrumentality which 

caused the injury; (2) the accident could not have happened if those having control 

had not been negligent; and (3) the plaintiff’s injury resulted from the accident.” 

Id. Whether to apply this doctrine “is within the trial court’s sound discretion.” Id. 

The trial court determined that the Howards could not prevail on a res 

ipsa loquitur theory because they could not prove that Stubbs had full control of 

the instrumentality that caused Charlotte’s injuries. It is undisputed that Stubbs did 

not hit the baseball that allegedly stuck the Howards’ car window. Instead, the 

Howards argue that Stubbs, as lessee, had control of the softball field. The trial 

court disagreed, finding that there was no evidence that “Stubbs was in full control 

of the softball field, that he was able to make any changes to the design of the field 

or [that] he was able to do any maintenance if needed.” 

On appeal, the Howards cite no evidence that Stubbs had full control 

over the softball field; instead, they simply argue that a genuine issue of material 

fact exists as to this question. However, the burden is on the Howards to prove all 
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three elements of res ipsa loquitur. On a more fundamental level, “there is no 

evidence as to what the instrumentality was that caused [Charlotte’s] injury, and 

there is no evidence that it was under the control or management of [Stubbs].” 

Helton v. Forest Park Baptist Church, 589 S.W.2d 217, 219 (Ky. App. 1979). The 

complaint alleges that a softball from Ring Road Softball Complex struck the 

Howards’ vehicle window. But Charlotte had no cuts or bruises on her head and 

the Howards never saw a softball strike the window. “Under Kentucky law, the 

doctrine of res ipsa loquitur is inapplicable where the instrumentality producing the 

injury or damage is unknown or is not in the exclusive control of the defendant.” 

Id. (citation omitted). Because the Howards cannot prove that Stubbs had full 

control of the instrumentality that caused Charlotte’s injury, the trial court did not 

err when it declined to apply the doctrine of res ipsa loquitur.

We would further note that even assuming Stubbs had full control of 

the softball field, and accepting the Howards’ allegations as true, Stubbs would 

still be entitled to summary judgment, albeit for a different reason. Under this 

hypothetical, Stubbs would fall under the definition of “owner” set out in KRS 

411.190(1)(b) as an “occupant . . . in control of the premises[.]” Therefore, Stubbs 

would be entitled to immunity pursuant to Kentucky’s Recreational Use Statute, 

for the same reasons set forth above pertaining to the City.
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As a final matter, Stubbs cross-appeals from the trial court’s August 

14, 2018 order denying his first motion for summary judgment. Because we have 

found that Stubbs was entitled to summary judgment above, Stubbs’ cross-appeal 

is moot, and we will not address its merits.

Based upon the foregoing, the orders of the Hardin Circuit Court 

dismissing the Howards’ claims are affirmed. Stubbs’ cross-appeal is dismissed as 

moot. 

ALL CONCUR.

BRIEFS FOR 

APPELLANTS/CROSSAPPELLEES:

Harry B. O’Donnell IV

Louisville, Kentucky

BRIEFS FOR APPELLEES 

KENTUCKY KAOS AND STEVEN 

WIDMER, AND 

APPELLEE/CROSS-APPELLANT 

JEREMY STUBBS:

David S. Strite

Rachel K. Dalton

Louisville, Kentucky

BRIEF FOR APPELLEE THE CITY 

OF ELIZABETHTOWN:

Jason Bell

Elizabethtown, Kentucky