RENDERED: MAY 20, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1035-MR

TRACY WINDUS APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE BRIAN C. EDWARDS, JUDGE

ACTION NO. 17-CI-005976

BUFFALO CONSTRUCTION, INC. APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

MCNEILL, JUDGE: On January 25, 2017, Appellant, Tracy Windus (Tracy), was 

working a waitressing shift at Buffalo Wild Wings in Jeffersontown, Kentucky. 

Sometime during her shift while passing through the kitchen area of the restaurant, 

she tripped on a raised drain and pipe located on the floor in front of a counter. 

She fell and sustained injuries to her right arm, elbow, and face. As a result, Tracy

underwent four surgeries on her right arm and elbow and was unable to work for 
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six months. She subsequently filed suit alleging negligence against building 

contractor Buffalo Construction, Inc. (Buffalo), who Tracy claims is responsible 

for the drain’s installation and maintenance.

1

 The circuit court granted summary 

judgment in favor of Buffalo.2 Tracy appeals to this Court as a matter of right. 

Her primary argument is that Kentucky law permits causes of action against 

building contractors for negligent construction work. Having reviewed the record 

and the law, we reverse the circuit court and remand.

STANDARD OF REVIEW

A motion for summary judgment should be granted “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 

law.” CR3 56.03. In negligence cases, while duty is an issue of law, “[b]reach and 

injury, are questions of fact for the jury to decide.” Pathways, Inc. v. Hammons, 

113 S.W.3d 85, 89 (Ky. 2003) (citation omitted). 

1

 Tracy cites in her brief that a plumbing subcontractor, E&E Mechanical, Inc., installed the 

pipe and drain at issue here in accordance with plans and specifications provided by Buffalo. 

Tracy reached a settlement with E&E prior to this appeal. 

2 According to the circuit court’s order, the premises owner, Blazin Wings, Inc., was not joined 

in this action because Tracy collected workers’ compensation benefits from that entity. 

3

 Kentucky Rules of Civil Procedure. 
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ANALYSIS

It is undisputed that Buffalo was not the owner or possessor of the 

premises for purposes of traditional premises liability law. See, e.g., Grubb v.

Smith, 523 S.W.3d 409, 426 (Ky. 2017) (observing that “[t]he possessors of 

business premises . . . generally do have a non-delegable, affirmative duty to 

protect their invitees from unreasonably dangerous conditions on the premises 

however those dangerous conditions came to be”). On that basis, the circuit court 

granted Buffalo summary judgment. More precisely, the court reasoned that 

because Buffalo was not in possession or control of the premises at the time of 

Tracy’s injuries, it cannot be held liable. In so holding, the circuit court relied, in 

part, on Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 684 (Ky. 

App. 2009), concluding that “[Burnett] demonstrates that summary judgment is 

appropriate for a company or group that worked on constructing a building, even if 

injury later occurred on something said company built.” 

In Burnett, the circuit court granted summary judgment against the 

subcontractor that performed the underlying work at issue. The case proceeded to 

trial against the entity that subcontracted and supervised the work that caused the 

plaintiff’s injury – a contractor, against whom a judgment was entered and 

damages assessed. 302 S.W.3d at 684-85. It is unclear from the Burnett opinion 

on what specific grounds the circuit court relied in dismissing the subcontractor. 
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See id. at 687. Therefore, Burnett is of limited utility in resolving the present issue, 

other than the general observation that contractors may be held liable in cases 

similar to the present. 

In support of her argument, Tracy cites Martin v. St. Joseph Health

System, Inc., No. 2011-CA-000645-MR, 2012 WL 4036997, at *1-3 (Ky. App. 

Sep. 14, 2012). In that case, the plaintiff, Martin, fell while ascending a stairway

that was under construction at the time, and sustained serious injuries as a result. 

Id. at *1. Martin filed suit against the premises owner and the contractor who 

installed the stairway, specifically alleging that the contractor breached its duty to 

install sufficient lighting in and around the area where her injury occurred. Id. 

The circuit court granted summary judgment in favor of the contractor, reasoning 

that only the premises owner had a duty to safely maintain the premises. Id. The 

Court of Appeals reversed the circuit court and remanded for trial. Id. at *3. In so 

holding the Court reasoned as follows: 

in what appears to be a case of first impression, we hold 

that Section 384 of the Restatement of the Law of Torts, 

Second, applies. Pursuant to Section 384,

One who on behalf of the possessor of land erects 

a structure or creates any other condition on the 

land is subject to the same liability, and enjoys the 

same freedom from liability, as though he were the 

possessor of the land, for physical harm caused to 

others upon and outside of the land by the 

dangerous character of the structure or other 

condition while the work is in his charge.
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Id. at *2-3. “Based on the preceding, and because [owner] had not accepted the 

stairway, [contractor] had the same liability and the same freedom from liability as

[owner]. Thus, [contractor] had the same duty to prevent harm as [owner].” Id. at 

*3. While we recognize that this case is unpublished, we consider it to be 

instructive of the present issue. 

Furthermore, both parties cite to Saylor v. Hall, 497 S.W.2d 218 (Ky. 

1973), as did the Court in Martin, wherein it discussed and distinguished Saylor as 

follows: 

In Saylor, E.H. Hall built a house containing a fireplace 

and mantel in 1955. Hall sold the house to Thomas and 

Kathlyn Johnson in 1955 and they resided there until 

1969, when they rented the house to the Saylors. One of 

the Saylors’ children was killed and another was 

seriously injured when the fireplace and mantel 

collapsed. The Saylors brought suit against the Johnsons 

and Hall. Id. at 220-21. With regard to Hall’s liability, 

the Court adopted Section 385 of the Restatement of the 

Law of Torts, Second, which addresses contractor 

liability after work has been accepted by the owner. Id.

at 224. Neither Saylor nor Section 385 of the 

Restatement of the Law of Torts, Second, applies herein, 

because there is no evidence that St. Joseph “accepted” 

the temporary stairway.

 

Martin, 2012 WL 4036997, at *2. Although Martin’s analysis here is correct, it is 

incomplete. In abrogating its old line of cases disclaiming liability for 

“manufacturers” and adopting Section 385 of the Restatement of the Law of Torts, 
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Second, the Court of Appeals – Kentucky’s highest Court at the time – further 

opined as follows: 

Prosser says: It is now the almost universal rule 

that the contractor (builder) is liable to all those who 

may foreseeably be injured by the structure, not only 

when he fails to disclose dangerous conditions known to 

him, but also when the work is negligently done. . . . See

Prosser, Handbook of the Law of Torts, section 104, p. 

681 (4th Ed. 1971).

Returning now to the principle that we discussed in 

the opening of this opinion, we conclude that it is 

unnecessary in this case to delineate or define the outer 

limits of a builder’s liability in 1964 in Kentucky to a 

third party injured by the negligence of the builder whose 

work had been completed and accepted by the owner.

We are satisfied that, under the precise facts of this 

case, the builder at that time was at the least subject 

to liability to third parties for negligent construction, 

though completed and accepted, that created a latent 

defect in a stone mantel and fireplace in a home where 

innocent third parties on the property could foreseeably 

be injured by such dangerous and concealed condition.

Saylor, 497 S.W.2d at 224 (internal quotation marks and citations omitted)

(emphasis added). We also consider the application of this principle by federal 

courts to be instructive. For example, in Dotson v. Scotty’s Contracting, Inc., the 

United States Court of Appeals for the Sixth Circuit affirmed the jury’s verdict in a 

case where, “[p]rior to trial the defendants moved for summary judgment on the 

ground that they had been insulated from liability by the Commonwealth’s 

acceptance of the repaving work as being in substantial conformity with the 
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contract specifications.” 86 F.3d 613, 615 (6th Cir. 1996). Although summary 

judgment was not an issue before the Sixth Circuit on appeal, the Court explained 

the underlying reason for the district court’s denial of summary judgment, by 

quoting from the district court’s opinion as follows: 

Under Kentucky law, contractors are not liable for 

injuries resulting from road construction that conforms to 

specifications of a contract with the Department of 

Highways. City of Louisville v. Padgett, 457 S.W.2d 485 

(Ky. 1970); Hollars v. Gilreath Dairy Co. et al., 253 

S.W.2d 62[0] (Ky. 1952). The court infers from the 

language of these opinions that Kentucky’s highest court 

would hold that the converse is also true: contractors are 

liable for injuries resulting from construction that does 

not conform to specifications. Padgett at 488; Hollars at 

620; see also Saylor v. Hall, 497 S.W.2d 218 (Ky. 1973)

(citing Restatement of Torts, Second § 385 and Prosser to 

the effect that contractor is liable for all foreseeable 

injuries, even if the landowner has accepted the work 

and dangerous conditions are not concealed.) The 

issues of whether the defendants’ work conformed to 

contract specifications and whether any such failure 

caused the plaintiff’s injuries are therefore material to 

this dispute. The plaintiff has raised genuine questions of 

fact as to these issues.

Id. (internal quotation marks omitted) (emphasis added). Surprisingly, Martin and

Dotson appear to be the most relevant cases citing Saylor for this issue. See also

Emmanuel S. Tipon, Annotation, Modern Status of Rules Regarding Tort Liability 

of Building or Construction Contractor for Injury or Damages to Third Person 

Occurring After Completion and Acceptance of Work, 75 A.L.R.5th 413 § 3 

(originally published in 2000) (citing Saylor): 
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The courts held in the following cases that a building or 

construction contractor is liable for injury or damage to a 

third person even after completion of the work and its 

acceptance by the owner where it was reasonably 

foreseeable that a third person would be injured by such 

work on account of the contractor’s negligence or failure 

to disclose a dangerous condition known to such 

contractor.

The parties have not cited to any additional authority that is dispositive here, and 

we have discovered none. Therefore, although Kentucky law does not abound on 

these issues, a fair application of Saylor, Dotson, Burnett, and Martin supports the

proposition that a building contractor, or similarly situated person or entity

performing such work, may be held liable for negligence resulting from work

performed, whether the underlying work/condition at issue was “accepted” or not. 

In other words, Kentucky law does not automatically insulate Buffalo from 

potential liability, which appears to be the reasoning relied upon by the circuit 

court in granting summary judgment. 

The question remains whether Buffalo breached a duty here, and

whether that breach caused Tracy’s injury. For example, Tracy cites to the 

affidavit of Patrick Harrison, General Manager of Buffalo Wild Wings, wherein he 

claims that he complained to Buffalo’s foreman that the drain and pipe area was a 

hazard and that the foreman agreed to make the necessary modifications, which 

allegedly did not occur prior to Tracy’s injury. Mr. Harrison also attests that 
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Buffalo subsequently placed metal strips and caution tape around the drain and 

pipe.

Buffalo cites to the affidavit of Senior Project Manager, Eric

Whitlatch, which provides a contradictory/contrasting account to that of Affiant

Harrison. Therefore, we conclude that there are genuine issues of material fact 

here. However, it is not our position here to assess this, or any other evidence. We

cannot overemphasize that we are not making a judgment as to whether Buffalo is 

liable. Nevertheless, summary judgment was improper. 

CONCLUSION

Having considered the record and the law, we REVERSE the circuit 

court’s summary judgment and REMAND for trial. 

LAMBERT, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY. 

BRIEFS FOR APPELLANT:

Damon B. Willis

Louisville, Kentucky 

BRIEF FOR APPELLEE:

David E. Crittenden

Robert D. Bobrow

Seth J. Singleton 

Louisville, Kentucky