RENDERED: DECEMBER 23, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-1601-MR

ESTATE OF KAREN BURDEN,

BY MICHAEL HOSKINS,

PERSONAL REPRESENTATIVE APPELLANT

APPEAL FROM BULLITT CIRCUIT COURT

v. HONORABLE RODNEY BURRESS, JUDGE

ACTION NO. 13-CI-01276

LAWRENCE HARDISON 

AND LINDA HARDISON APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.

TAYLOR, JUDGE: The Estate of Karen Burden, by Michael Hoskins, Personal 

Representative (the Estate), brings this appeal from a July 10, 2018, Order of the 

Bullitt Circuit Court granting summary judgment for Lawrence Hardison and 
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Linda Hardison (the Hardisons) and dismissing the Estate’s negligence claim. We 

affirm.

BACKGROUND

Karen Burden (Karen) resided with the Hardisons in their home in 

Shepherdsville, Kentucky. On June 30, 2013, Karen assisted Lawrence and Linda 

in collecting brush on their property and assembling it into a large pile. Linda 

decided to burn the brush pile and poured gasoline on the brush. At her deposition, 

Linda testified that she poured gasoline on the brush pile, in Karen’s presence. 

Linda also testified that Karen directed her to pour additional gasoline on at least 

two other spots in the pile. Linda then testified she had left her matches to light the 

pile at the house which she went to retrieve. Before leaving for the house, Karen 

suggested to Linda that she could light the pile with her cigarette lighter. Linda 

testified that she adamantly told Karen not to light the pile with her cigarette 

lighter and continued walking away. Linda further testified that shortly after 

telling Karen not to light the pile, Linda heard a “boom” and saw Karen rolling 

downhill away from the fire. Karen had lit the brush pile with her lighter which 

exploded. As a result, Karen suffered serious burns and injuries.

On December 20, 2013, Karen filed a negligence action against the 

Hardisons in Bullitt Circuit Court. The complaint alleged that Karen had no 

knowledge that the brush had been soaked with gasoline by Linda and that Linda 
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instructed Karen to light the brush. On December 27, 2013, Karen died. On 

March 31, 2014, the Estate filed an amended complaint alleging Karen died from 

her burn injuries.1

The circuit court granted summary judgment to the Hardisons by 

order entered July 10, 2018. By order entered October 18, 2018, the court denied 

the Estate’s Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend, 

or vacate the summary judgment. This appeal follows.

STANDARD OF REVIEW

In Kentucky, 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. Scansteel Service Ctr, Inc., 807 S.W.2d 476, 480 (Ky. 1991). 

Summary judgment is not a substitute for trial. Id.

 

1 Lawrence Hardison and Linda Hardison (the Hardisons) state in their brief that Karen Burden 

(Karen) died from cancer. The amended complaint filed by the Estate of Karen Burden (the 

Estate) alleges Karen died from the injuries she sustained from the fire. Record on Appeal at 22. 

The Estate’s appellate brief does not reference a claim for wrongful death or that Karen died 

from her burn injuries. The order granting summary judgment found that Karen died “from 

health issues not related to this incident.” Record on Appeal at 232. 
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And, relevant to our review in this appeal as will be discussed, is the 

sufficiency of evidence presented by a party in opposition to a properly supported 

motion for summary judgment. Such a motion will not be defeated without the 

responding party presenting some affirmative evidence establishing that there 

exists a genuine issue of material fact. Steelvest, 807 S.W.2d at 482; Hubble v. 

Johnson, 841 S.W.2d 169, 171 (Ky. 1992). This affirmative evidence must also be 

admissible. Walker v. Commonwealth, 503 S.W.3d 165, 177 (Ky. App. 2016).

ANALYSIS

A. Evidence Admissibility Issues

In responding to the Hardisons’ motion for summary judgment, the 

Estate relied on a videotaped statement by Karen taken under oath on November 

18, 2013, prior to the filing of the complaint and Karen’s death. The circuit court 

concluded this was inadmissible hearsay evidence. The Estate also responded to 

the motion with two recorded statements of neighbors living near the Hardisons 

who were working nearby when the explosion occurred. The statements were 

taken by an investigator retained by the Estate. The statements were not taken 

under oath nor in the presence of counsel. As with Karen’s statement, the circuit 
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court declined to consider these statements, since the witnesses gave no sworn 

testimony that was part of the record before the court.2 

The Estate argues that the circuit court erred in failing to consider this

evidence to rebut the motion for summary judgment. Accordingly, we will review 

this issue first.

As for Karen’s sworn statement taken prior to the litigation, the Estate 

appears to concede that her statement was hearsay evidence but argues it is still 

admissible under the exception set out in Kentucky Rules of Evidence (KRE) 

804(b)(1), which reads as follows:

(1) Former Testimony. Testimony given as a witness at 

another hearing of the same or a different proceeding, 

or in a deposition taken in compliance with law in the 

course of the same or another proceeding, if the party 

against whom the testimony is now offered, or, in a 

civil action or proceeding, a predecessor in interest, had 

an opportunity and similar motive to develop the 

testimony by direct, cross, or redirect examination.

The Estate contends Karen’s statement falls under this hearsay 

exception because she is unavailable as a witness and the Hardisons’ insurance 

carrier was notified that the statement was being taken and thus, the carrier became 

the Hardisons’ predecessor in interest. What qualifies as a predecessor in interest 

under Kentucky law is unsettled. However, we need not determine here whether 

 

2 For some unexplained reason, these witnesses had not been deposed during the four-year 

history of the case.
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the Hardisons’ insurance carrier was their predecessor in interest because KRE 

804(b)(1) applies only to testimony given in a court or similar legal proceeding. 

When Karen made her statement, there was no pending litigation and, thus, there 

were no pending legal proceedings at that time. See BLACK’S LAW DICTIONARY

(11th ed. 2019) (defining “proceeding” as “[t]he regular and orderly progression of 

a lawsuit, including all acts and events between the time of commencement and the 

entry of judgment.”). Additionally, taking a sworn statement in contemplation of 

litigation falls outside the usual parameters of testimony admissible under KRE 

804(b)(1). See TRIAL HANDBOOK FOR KY. LAW § 29:12 (2020 ed.) (noting that 

“[t]he most common uses of the exception will be the following: (1) the trial and 

retrial of a single case; (2) the sequential trial of multiple causes of action with 

common issues of fact, including a civil case and a criminal trial arising from the 

same transaction; and (3) a preliminary hearing and trial of a criminal charge”).3 

Karen’s recorded statement does not fall within the hearsay exception.

The Estate also makes a short argument that Karen’s statement was a 

dying declaration, admissible under KRE 804(b)(2). However, this rule also 

requires the statement to be made in a criminal prosecution, civil action, or legal 

 

3 Neither the Hardisons nor their legal representative were notified of the taking of Karen’s 

sworn statement. The record reflects that the Hardisons’ insurance carrier was only notified of 

the planned statement the day before it was to be given, which would not constitute a 

“reasonable notice” for a deposition required by Kentucky Rule of Civil Procedure 30.02. 

Moreover, there is no indication that the Hardisons’ insurer was told Karen’s statement would be 

taken orally or under oath. 
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proceeding, which as previously discussed, did not occur in this case. Likewise, 

the rule is limited to testimony about the cause or circumstances of the declarant’s 

impending death. The record reflects that Karen died from other medical causes, 

not from injuries incurred in the explosion. Thus, this exception is not available to 

the Estate under the facts of this case. Turner v. Commonwealth, 5 S.W.3d 119, 

121 (Ky. 1999).

Therefore, we agree with the circuit court that Karen’s statement was 

inadmissible hearsay and otherwise not affirmative evidence sufficient to defeat 

the motion for summary judgment.

As concerns the two unsworn statements by the Hardisons’ neighbors, 

we must emphasize neither statement was given under oath. Furthermore, both 

statements were taken by an investigator hired by the Estate, without the presence 

of the Hardisons or their counsel. The statements thus are hearsay and the Estate 

has not shown that either meets any of the exceptions to the general rule against the 

admissibility of hearsay evidence set forth in KRE 803 and KRE 804. 

Instead, the Estate argues the circuit court’s ruling was premature in 

excluding the statements because the neighbors were willing to testify at trial. 

However, as the judge noted, the case lingered before the circuit court for more 

than four years before summary judgment was granted to the Hardisons, which was 

more than ample time for the neighbors to be deposed. “[A] party responding to a 
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motion for summary judgment cannot complain of the lack of a complete factual 

record when it can be shown that the respondent has had an adequate opportunity 

to undertake discovery.” Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 

69 (Ky. App. 2006) (citation omitted). Consequently, the Estate’s promise to 

present admissible evidence later, at trial, is insufficient. Equally important, we 

must question the relevance of this testimony to rebut the granting of summary 

judgment since neither neighbor was an eyewitness to the events which led to 

Karen’s injuries, including the explosion. And, neither witness could have offered 

relevant proof as to any discussions that occurred between Karen and Linda

immediately before the explosion.

4

 Again, we believe the circuit court correctly 

excluded the neighbors’ statements in considering the summary judgment motion.

B. Premises Liability

We agree with the Estate that the complaint, as amended, sets out a 

premises liability claim against the Hardisons for alleged injuries sustained by 

Karen in the burning of the brush pile on the Hardisons’ property. However, we do 

 

4 One neighbor, Michael Johnson, meanderingly answered in relevant part as follows when asked 

if he saw who lit the fire or poured the gasoline: “No sir, the only thing that I heard was that, me 

and, when I was with me and Glen we just heard a giant explosion from the reprocussion of the 

lighting the gas and then when we went over there, we looked up and we seen that woman.” 

Record on Appeal at 206. The other neighbor, Glen Flemming, said “I have no idea” when 

asked if he knew who “dumped the gas” and similarly answered “[n]o, I did not” when asked if 

he saw Karen light the fire. Record on Appeal at 213.
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not agree that the Hardisons’ conduct was the reason for Karen sustaining injuries 

from the fire.

Prior to 2010, the facts of this case would have easily fit into an open 

and obvious doctrine analysis that would have precluded any liability by the 

Hardisons to Karen for injuries from the explosion. Under this doctrine, a land 

possessor could not be held liable to a visitor on his property, regardless of the 

visitor’s status, who was injured by open and obvious dangers that were known to 

the visitor or otherwise so obvious that the visitor would be expected to discover 

them. Rogers v. Prof’l Golfers Ass’n of Am., 28 S.W.3d 869 (Ky. App. 2000).

However, the Kentucky Supreme Court has modified the open and 

obvious doctrine beginning with Kentucky River Medical Center v. McIntosh, 319 

S.W.3d 385 (Ky. 2010) and its progeny.5 In McIntosh, the Kentucky Supreme 

Court adopted the position of the RESTATEMENT (SECOND) OF TORTS with respect 

to open and obvious conditions. That position is stated as follows: 

A possessor of land is not liable to his invitees for 

physical harm caused to them by any activity or 

condition on the land whose danger is known or obvious 

to them, unless the possessor should anticipate the harm 

despite such knowledge or obviousness.

RESTATEMENT (SECOND) OF TORTS § 343A(1) (1965).

 

5

See also Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013); Shelton v. Kentucky 

Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013); Carter v. Bullitt Host, LLC, 471 S.W.3d 

288 (Ky. 2015); and Goodwin v. Al J. Schneider Co., 501 S.W.3d 894 (Ky. 2016).
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The Supreme Court further expounded upon its position in McIntosh 

in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013). In 

explaining the retreat from the open and obvious doctrine, the Court stated: 

Traditionally, the open-and-obvious doctrine 

stated, “land possessors cannot be held liable to invitees 

who are injured by open and obvious dangers.” As a 

result, if a plaintiff was injured by an open and obvious 

hazard, the landowner, regardless of any negligent 

conduct on its part, had a complete defense to any 

asserted liability. But, in McIntosh, we noted that a 

growing majority of states has moved “away from the 

traditional rule absolving, ipso facto, owners and 

occupiers of land from liability for injuries resulting from 

known or obvious conditions” and, instead, adopted the 

Restatement (Second) of Torts’s approach to allow the 

jury to assess comparative fault.

Id. at 906 (citations omitted).

In Shelton, 413 S.W.3d 901, the Supreme Court went on to explain:

A target for criticism for well over fifty years, the 

open-and-obvious doctrine persists in our jurisprudence. 

In McIntosh, we took steps to ameliorate the harsh effect 

of the open-and-obvious doctrine for injured persons 

seeking recovery. We adopted the Restatement (Second) 

of Torts Section 343A and held that “lower courts should 

not merely label a danger as ‘obvious’ and then deny 

recovery. Rather [the courts] must ask whether the land 

possessor could reasonably foresee that an invitee would 

be injured by the danger.” According to Section 343A, 

harm to the invitee is reasonably foreseeable despite the 

obviousness of the condition “where the possessor has 

reason to expect that the invitee’s attention may be 

distracted, so that he will not discover what is obvious or 

will forget what he has discovered, or fail to protect 

himself against it” and, also, “where the possessor has 
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reason to expect that the invitee will proceed to encounter 

the known or obvious danger because to a reasonable 

man in his position the advantages of doing so would 

outweigh the apparent risk.” Under this modern 

approach to cases dealing with open-and-obvious 

dangers, there is no duty for the land possessor to warn of 

the dangers; but this “does not mean there is no duty at 

all[.]” Indeed, “even where the condition is open and 

obvious, a landowner’s duty to maintain property in a 

reasonably safe condition is not obviated[.]” 

. . . [T]he existence of an open and obvious danger does 

not pertain to the existence of duty. Instead, Section 

343A involves a factual determination relating to 

causation, fault, or breach but simply does not relate to 

duty. . . . 

Id. at 907 (citations omitted).

Despite these modifications to the open and obvious doctrine, the 

Supreme Court has not closed the door to summary judgment in premises liability 

actions. As explained in Shelton, 413 S.W.3d 901, “a court no longer makes a noduty determination but, rather, makes a no-breach determination, dismissing a 

claim on summary judgment or directed verdict when there is no negligence as a 

matter of law, the plaintiff having failed to show a breach of the applicable duty of 

care.” Id. at 904. Thus, “when the open-and-obvious doctrine relieves a defendant 

of liability, it is not because damages are not recoverable as a matter of policy (as 

the case with contributory negligence). Instead, the defendant is not liable because 

he has satisfied the standard of care in the given factual scenario.” Id. at 910.

The Supreme Court further stated in Shelton that: 
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It is important to emphasize that summary judgment 

remains a viable concept under this approach. The 

court’s basic analysis remains the same because, on a 

motion for summary judgment, a court must still examine 

each element of negligence in order to determine the 

legitimacy of the claim. But the question of 

foreseeability and its relation to the unreasonableness of 

the risk of harm is properly categorized as a factual one, 

rather than a legal one. This correctly examines the 

defendant’s conduct, not in terms of whether it had a duty 

to take particular actions, but instead in terms of whether 

its conduct breached its duty to exercise the care required 

as a possessor of land. If reasonable minds cannot differ 

or it would be unreasonable for a jury to find breach or 

causation, summary judgment is still available to a 

landowner. And when no questions of material fact exist 

or when only one reasonable conclusion can be reached, 

the litigation may still be terminated. 

Id. at 916 (citations and quotation marks omitted). See also Goodwin v. Al J. 

Schneider Co., 501 S.W.3d 894, 898-99 (Ky. 2016).

In this case, the unrefuted evidence in the record below established 

that Karen was living with the Hardisons at the time of the accident; that Karen 

was assisting Linda with placing brush and tree limbs in a huge brush pile on the 

Hardisons’ property; that Karen was present and participated with Linda in pouring 

gasoline on the brush pile; that Linda specifically warned Karen not to light the 

brush pile with a cigarette lighter and further told her she was going to light the 

brush with matches that she was retrieving from the house; and finally, despite the 

warning, Karen lit the fire with the cigarette lighter, resulting in serious burns and 
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injuries to Karen.6 Based on this evidence, we cannot conclude that the Hardisons 

breached any duty of care or otherwise acted unreasonably in regard to Karen

under the facts of this case. In fact, Karen participated in creating the dangerous 

condition on the Hardisons’ property that she now complains of. And, it certainly 

was not foreseeable that Karen would light the fire with a cigarette lighter after 

Linda specifically instructed her not to.7 In other words, the only reasonable 

conclusion that can be reached in this case is that the Hardisons were not the legal 

cause of the injuries suffered by Karen. 

As the Supreme Court noted in Carter v. Bullitt Host, LLC, 471

S.W.3d 288, 297 (Ky. 2015), “[u]nder the right circumstances, the plaintiffs[ʼ]

conduct in the face of an open-and-obvious hazard may be so clearly the only fault 

of his injury that summary judgment could be warranted against him[.]” We 

believe these are the right circumstances where summary judgment was warranted. 

It is beyond dispute that the Hardisons had done everything reasonable under the 

circumstances to warn Karen not to light the fire. By acting reasonably, the 

Hardisons committed no breach and were not at fault for Karen’s injuries. See id.

 

6 The crux of the evidence presented by the Hardisons below in support of their motion for 

summary judgment comes from the deposition of Linda Hardison. Her testimony stands 

unrefuted in the record on appeal before this Court. 

7 The Supreme Court reaffirmed in Grubb v. Smith, 523 S.W.3d 409, 419-20 n.11 (Ky. 2017), 

that “[n]egligent invitees still are not entitled to recover for their own negligence.”
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at 298-99. See also Goodwin, 501 S.W.3d at 900. Thus, the circuit court properly 

granted summary judgment for the Hardisons.

C. Dangerous Instrumentality Argument

The Estate also argues on appeal that Linda’s use of gasoline to burn 

the brush created a heightened duty of care to take exceptional precautions to 

prevent Karen’s injuries. However, the Estate did not raise this argument before 

the circuit court in response to the motion for summary judgment. Rather, the 

Estate raised this issue for the first time in its CR 59.05 motion to alter, amend, or 

vacate the judgment. This Court has previously held that a party cannot invoke CR 

59.05 to present arguments or evidence that should have been raised before entry 

of the judgment. Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky. App. 1997). 

Accordingly, the circuit court correctly declined to consider this argument on the 

Estate’s CR 59.05 motion and, likewise, we will not consider it in this appeal. 

Notwithstanding, even if the Hardisons had a heightened duty because of the use of 

gasoline, absent physically removing the lighter from Karen’s possession, we are 

not aware of any other actions Linda could have taken to prevent Karen from 

lighting the fire, other than instructing her not to light it.

D. Spoiled Evidence Issue

The Estate’s final argument on appeal is that the Hardisons’ failure to 

call for an ambulance to transport Karen to the hospital or otherwise notify the fire 
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department of her injuries from the fire has resulted in the destruction or loss of 

evidence that would support the Estate’s negligence claim. Based upon our ruling 

that the Hardisons breached no duty owed to Karen, this argument is moot.8 

However, we agree with the circuit court’s analysis that the failure of the Estate to 

identify any specific evidence that is missing or destroyed, coupled with the lack of 

any evidence to establish that the Hardisons acted in bad faith, renders this 

argument meritless.

CONCLUSION

In conclusion, the uncontroverted facts establish that Karen was 

injured by her own actions after being specifically instructed not to light the 

gasoline soaked brush pile with her cigarette lighter. Under the facts of this case, 

the Hardisons acted reasonably as it was not foreseeable or reasonable to believe 

that Karen would light the fire with a cigarette lighter after being instructed to the 

contrary. Thus, we find no error in the granting of summary judgment in favor of 

the Hardisons.

For the foregoing reasons, the Order of the Bullitt Circuit Court 

granting summary judgment and dismissing the Estate’s complaint, as amended, is 

affirmed. 

 

8 The complaint, as amended, does not assert any claims of negligence in the failure of the 

Hardisons to call 911 for emergency assistance after Karen was injured by the fire.
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GOODWINE, JUDGE, CONCURS.

THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT:

Michael Nisbet

Jeffersonville, Indiana

BRIEF FOR APPELLEES:

Ryan D. Nafziger

Joseph M. Effinger

Louisville, Kentucky