RENDERED: NOVEMBER 3, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1294-MR

GREGORY KAYS APPELLANT 

v. 

APPEAL FROM MERCER CIRCUIT COURT

HONORABLE DARREN WAYNE PECKLER, JUDGE

ACTION NO. 20-CI-00108

STRATEGIC HOLDINGS, LLC APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.

GOODWINE, JUDGE: Gregory Kays (“Kays”) appeals from the Mercer Circuit 

Court’s order granting summary judgment in favor of Strategic Holdings, LLC 

(“Strategic Holdings”). Based on our review, finding no error, we affirm.

The circuit court summarized the background of this case as follows: 

This case arises from an incident involving Plaintiff 

Gregory Kays which occurred on September 20, 2019, at 

an apartment unit owned by Strategic Holdings, LLC. At 

the time of the incident, [Kays] was a guest at an apartment 

that was being leased by his former girlfriend. [Kays] was 
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in the process of taking out the trash when he stepped on a 

soft spot inside the residence near the front door and his 

left foot went through the floor. The soft spot inside the 

apartment unit was noticeably discolored and [Kays] and 

the tenant had each been aware of the soft spot since 2017.

Strategic Holdings, LLC, moved for summary

judgment and argued that it bore no potential liability to 

[Kays] because under Kentucky Law, a defendant landlord 

cannot be liable for an injury caused by a condition inside 

the apartment which was known to the tenant or 

discoverable through reasonable inspection. Home Realty 

Co. v. Ca[r]ius, 224 S.W. 751, 752 (Ky. App. 1920);

Warren v. Winkle, 400 S.W.3d 755, 759 (Ky. Ct. App.

2013); True v. Fath Bluegrass Manor Apartment, 358 

S.W.3d 23, 27 (Ky. Ct. App. 2011). [Kays] filed a 

Response in Opposition to Strategic Holdings, LLC’s 

Motion for summary Judgment which argued summary 

judgment was improper because (1) while Plaintiff was 

aware of the discolored soft spot on the floor before the 

incident, he was not aware of the exact issue that was 

causing the defect; and (2) that the location of the defect 

in the floor constituted an area of the apartment that was 

under the control of the landlord and not the tenant.

Record (“R.”) at 293.

The circuit court heard the parties’ arguments on August 18, 2022. 

On October 5, 2022, the circuit court entered an opinion granting summary 

judgment in favor of Strategic Holdings and dismissing Kays’ claims against it 

with prejudice. The circuit court found Strategic Holdings presented evidence that 

Kays was aware of the defect before the incident. Kays “testified in his deposition 

that Strategic Holdings, LLC’s property manager had inquired about [Kays] fixing 

the issue that led to water intruding under the floor, which [Kays] believes caused 
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the soft spot, prior to the incident.” R. at 294. The circuit court was unconvinced 

by Kays’ rebuttal argument that Strategic Holdings “retain[ed] exclusive control 

over the area where the defect was located because the defect was to the unit’s 

foundation and/or its structural components” based “on a comment to the 

Restatement (Second) of Torts § 361 (1965).” R. at 194-95. The circuit court 

concluded the evidence clearly showed the incident “occurred inside the leased 

premises, where the tenant had exclusive possession[,]” and “the defect existed in 

the floor itself, rather than to the unit’s foundation and/or structural components[.]” 

R. at 295. This appeal followed. 

On appeal, Kays argues the circuit court erroneously found that, 

because the incident occurred inside the leased premises, the subfloor, floor joists, 

and other structural components under the apartment were in the exclusive control 

of the tenant. Our standard of review for a grant of 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). Summary judgment is proper “if 

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 
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law.” CR1 56.03. The record must be viewed in a light most favorable to the nonmoving party, and all doubts will be resolved in its favor. Steelvest, Inc. v. 

Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). “Because 

summary judgment involves only legal questions and the existence of any disputed 

material issues of fact, an appellate court need not defer to the trial court’s decision 

and will review the issue de novo.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 

(Ky. App. 2001).

Kays’ single-paragraph argument solely relies on one case that cites 

Restatement (Second) of Torts § 361 (1965):

A possessor of land who leases a part 

thereof and retains in his own control any 

other part which is necessary to the safe use 

of the leased part, is subject to liability to his 

lessee and others lawfully upon the land 

with the consent of the lessee or a sublessee 

for physical harm caused by a dangerous 

condition upon that part of the land retained 

in the lessor’s control, if the lessor by the 

exercise of reasonable care.

(a) could have discovered the condition and 

the risk involved, and

(b) could have made the condition safe.

Comment b states the rule “applies to the maintenance of 

walls, roofs, and foundations of an apartment house or 

office building.”

1 Kentucky Rules of Civil Procedure.
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Warren v. Winkle, 400 S.W.3d 755, 760 (Ky. App. 2013) (quoting Restatement 

(Second) of Torts § 361 (1965)). Based on Comment b, Kays argues “[b]ecause 

neither the tenant, nor [Kays] had access to, or control of, the sub-floor, floor joists 

or other structural components of the floor, these would fall into this same 

category. As such, Strategic Holdings is liable to [Kays] for his damages.” 

Appellant’s Brief at 7. 

Aside from citing one case and making a conclusory argument that we 

should extend the Restatement in this case; Kays articulates no specific or detailed 

arguments in his brief. “[A] terse, conclusory assertion wholly unaccompanied by 

meaningfully developed argument or citation to authority is insufficient to merit 

appellate relief.” Schell v. Young, 640 S.W.3d 24, 32 (Ky. App. 2021). 

Additionally, Kays’ argument is unsupported by Kentucky case law. 

Strategic Holdings is not liable for Kays’ injuries because the incident occurred 

inside the tenant’s townhome:

When determining whether a residential landlord is 

liable for injuries sustained on leased property, there is a 

critical distinction between properties leased wholly by 

one tenant and properties leased by numerous tenants. 

When a tenant maintains complete control and possession 

over the premises and the landlord has no contractual or 

statutory obligation to repair, the landlord is only liable 

for “the failure to disclose known latent defects at the 

time the tenant leases the premises.” Carver v. Howard, 

280 S.W.2d 708, 711 (Ky. App. 1955). However, when a 

portion of the premises is retained by the landlord for the 

common use and benefit of numerous tenants, the 
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landlord must exercise ordinary care to keep common 

areas in a reasonably safe condition. Id.

Jaimes v. Thompson, 318 S.W.3d 118, 119-20 (Ky. App. 2010). Furthermore, 

“under the common-law negligence standard,” landlords “are not liable to” tenants

“for damages in connection with [their] personal injuries” when the tenant knew 

about the dangerous condition. Waugh v. Parker, 584 S.W.3d 748, 754 (Ky. 

2019).

Kays was injured inside the tenant’s leased townhome. Kays’ injury 

was caused by a soft spot in the floor by the front door caused by water damage, 

which Kays testified in his deposition that he was aware of before the incident. 

Kays testified in his deposition that Strategic Holdings’ property manager asked 

him to fix “the problem with the water coming in through the doors.” R. at 335. 

Kays further testified he became aware of the soft spot “just as soon as [his exgirlfriend] moved in.” R. at 342. Kays was an “ex-builder,” and he knew water 

was “draining . . . between the subfloor and the hardwood.” Id. The water was 

“discoloring the floor,” causing “a little divot,” and it finally “got weak enough” 

that his foot went through the floor. R. at 342-43. Therefore, based on our record 

review and applicable case law, the circuit court correctly found Strategic Holdings 

was not liable for Kays’ injuries. 

For the foregoing reasons, we affirm the judgment of the Mercer 

Circuit Court. 
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ALL CONCUR.

BRIEF FOR APPELLANT:

Jeffrey R. Morgan

Hazard, Kentucky

BRIEF FOR APPELLEE:

Zachary L. Turpin

Joshua J. Leckrone

Lexington, Kentucky