RENDERED: AUGUST 26, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0148-MR

NICHOLAS J. PENDERGRAST APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MARY M. SHAW, JUDGE

ACTION NO. 20-CI-000111

NICKLAUS DESIGN, LLC APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Nicholas J. Pendergrast (“Pendergrast”) appeals from the 

Jefferson Circuit Court’s order granting summary judgment in favor of Nicklaus 

Design, LLC (“Nicklaus Design”). Finding no error, we affirm. 

On January 22, 2019, Pendergrast, a maintenance worker at Valhalla 

Golf Club in Louisville, Kentucky, was injured when the utility vehicle he was 

driving hit a patch of ice and slid off the side of a pedestrian/cart bridge. Just 
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under a year later, Pendergrast filed a complaint in Jefferson Circuit Court alleging 

that Nicklaus Design, a Florida limited liability company specializing in golf 

course design, was negligent in failing “to maintain and keep the . . . bridge safe 

for the use of Valhalla patrons and/or employees, to exercise reasonable care for 

the safety of Plaintiff, and to eliminate or warn of dangerous conditions on the 

premises.”1 

After answering the complaint, Nicklaus Design filed a motion for 

summary judgment alleging it had “never provided any design, renovation, 

maintenance, or construction work or services pertaining to the bridges or cart 

paths at Valhalla Golf Club.” Therefore, it argued it owed “no duty to Plaintiff 

with respect to his accident in January 2019.” Accompanying the motion were 

affidavits from James H. Schnare II, Vice President and General Counsel of 

Nicklaus Design, and Martin C. Cochran, Senior Design Associate of Nicklaus 

Design. 

Schnare’s affidavit said that in 2011, Nicklaus Design entered into a 

“design services agreement” with Valhalla to renovate the golf course. The 

contract set forth the specific nature of the services to be performed: (1) rebuild 

and re-grass 23 green complexes; (2) install a new irrigation system; (3) re1 The complaint’s other allegations of negligence against other parties are not relevant to this 

appeal.
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construct approximately one-third of the bunker complexes and install new 

drainage and sand; (4) re-construct the clubhouse end of the driving range facility, 

specifically the tee boxes and short game area; (5) install drainage as necessary; 

and (6) re-build all mounding where needed in order to improve the maintenance 

and better accommodate the gallery.

The affidavit further stated that Nicklaus Design did not provide any 

design services at Valhalla pertaining to bridges or cart paths, although the 

company “did identify limited sections of the original cart paths on the boundaries 

of certain golf holes which needed to be relocated due to changes in the design 

made by the [c]ompany.” Schnare said the company generally excludes bridges 

from their scope of work because bridges must be reviewed or certified by 

professionals licensed under local law to produce such designs. 

Cochran’s affidavit said he was responsible for managing the 2011 

renovation at Valhalla. He affirmed that at no time during the 2011 renovation did 

the company “provide any design or consulting services or otherwise participate in 

any construction work pertaining to any of the bridges on the premises of Valhalla 

Golf Club.” As to cart paths, the only work performed involved relocating small 

portions affected by changes to the golf holes themselves. None involved changes 

to cart paths near hole No. 2, where Pendergrast’s accident occurred. 
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On May 1, 2020, Pendergrast tendered interrogatories and requests for 

production to Nicklaus Design. It responded, consistent with its tendered 

affidavits, that it did not design or construct any bridge at Valhalla, and specifically 

provided no services in connection with the bridge where the accident occurred. It 

denied being in possession of any documents related to the design or construction 

of any bridges and objected to producing evidence unrelated to the incident. 

Nicklaus Design also provided the names of all personnel who provided services at 

Valhalla, and its Field Book designs for hole No. 2, showing its scope of work on 

that hole during the 2011 redesign. The drawing does not depict the bridge where

the accident occurred.2

In response to the motion for summary judgment, Pendergrast moved 

for additional time to conduct discovery on Nicklaus Design’s potential liability, 

including the chance to depose Nicklaus Design representatives. The trial court 

granted Pendergrast’s motion on July 9, 2020, ordering that all discovery be 

completed by September 30, 2020 and that Pendergrast respond to the motion for 

summary judgment by October 30, 2020. In late August, counsel for both parties 

corresponded about Nicklaus Design’s objections to discovery requests, and on 

2 This finding was made by the trial court in a footnote. Copies of the document in the record are 

of poor quality and it is unclear to this Court whether the document depicts the site of the 

accident. However, Pendergrast has not challenged this finding on appeal, therefore we assume 

its veracity. 
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September 23, 2020, seven days before the discovery deadline, Pendergrast’s 

counsel requested to take depositions of Nicklaus Design representatives, but 

beyond that, no attempts to conduct additional discovery appear to have been 

made.

On September 28, 2020, Pendergrast filed a motion to compel and for 

an extension of time to complete discovery. In the motion, Pendergrast 

specifically objected to Nicklaus Design not offering “full responses” to its 

Interrogatory No. 5 and Requests for Production Nos. 6, 15, 21, and 24. These 

requests generally sought photos of the bridge near hole No. 2 and any documents 

relating to work performed by Nicklaus Design near hole No. 2 and more generally 

at Valhalla. Nicklaus Design had objected to providing any documents not related 

to the area of the accident, but generally asserted that it did not possess any 

responsive documents. As noted above, it did provide its Field Book designs for 

hole No. 2. 

Thereafter, Pendergrast responded to the motion for summary 

judgment, arguing that Nicklaus Design had not adequately responded to its 

discovery requests, and that promotional materials on its website created an issue 

of fact as to whether its scope of work has included bridges and cart paths in the 

past. On January 7, 2021, the trial court granted the motion for summary 

judgment, finding that Nicklaus Design owed no duty to Pendergrast concerning 
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the allegedly dangerous condition since there was no evidence it had performed 

any services relating to the design, construction, or maintenance of the subject 

bridge and adjacent cart path. This appeal followed. 

“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.” Coomer v. CSX Transp. Inc., 319 S.W.3d 366, 370 (Ky. 2010). “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 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 Corporation, 

56 S.W.3d 432, 436 (Ky. App. 2001).

Pendergrast argues on appeal that genuine issues of material fact exist 

as to Nicklaus Design’s duty precluding summary judgment. Because the 

existence of a legal duty is a question of law, Pathways, Inc. v. Hammons, 113 

S.W.3d 85, 89 (Ky. 2003), we construe his argument to be that the trial court erred 

in finding Nicklaus Design owed no duty to Pendergrast. We disagree. 
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“Before a defendant can be held liable on a theory of negligence, there 

must exist a duty owed to the plaintiff by the defendant.” Sheehan v. United Servs. 

Auto. Ass’n, 913 S.W.2d 4, 6 (Ky. App. 1996) (citing Mullins v. Commonwealth 

Life Insurance Co., 839 S.W.2d 245, 247 (Ky. 1992)). “If no duty is owed by the 

defendant to the plaintiff, there can be no breach thereof, and therefore no 

actionable negligence.” Jenkins v. Best, 250 S.W.3d 680, 688 (Ky. App. 2007)

(citation omitted). 

Pendergrast argued below, and does now on appeal, that as an 

architect, Nicklaus Design “owe[s] a duty to patrons, premises owners, their 

workers and other invitees exposed to their creations to prevent foreseeable 

injuries.” He also cites the general rule that “every person owes a duty to every 

other person to exercise ordinary care in his activities to prevent foreseeable 

injury.” Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 908 (Ky. 

2013) (citations omitted). However, implicit in these statements is the assumption

that Nicklaus Design was involved in the design or construction of the dangerous 

condition. The trial court found the evidence of Nicklaus Design’s involvement in 

the design or construction of the bridge where Pendergrast’s accident occurred 

insufficient to impose a duty upon it to warn of the bridge’s potential risk.

On a motion for summary judgment, “[t]he moving party bears the 

initial burden of showing that no genuine issue of material fact exists, and then the 
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burden shifts to the party opposing summary judgment to present at least some 

affirmative evidence showing that there is a genuine issue of material fact for 

trial.” Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 

2010), as modified on denial of reh’g (Nov. 23, 2011) (internal quotation marks 

and citation omitted). Here, Nicklaus Design presented the affidavits of its vicepresident and lead designer of the 2011 Valhalla renovation. Both testified that the 

company performed no services pertaining to the bridge where Pendergrast’s 

accident occurred. These statements were consistent with Nicklaus Design’s 

discovery responses and were uncontradicted by the evidence of record. 

Therefore, it was incumbent upon Pendergrast to present at least some 

affirmative evidence that Nicklaus Design was involved in the design or 

construction of the bridge. Pendergrast cites to promotional materials on Nicklaus 

Design’s website referencing work performed on cart paths, specifically an 

interview with Nicklaus Design founder Jack Nicklaus discussing the 2006 

renovation the company performed at Valhalla which mentions relocating a cart 

path, as enough evidence to impose a duty and withstand summary judgment. 

However, none of this evidence pertains to pedestrian/cart bridges, only cart paths, 

much less the specific bridge in question. 

Pendergrast claims this evidence contradicts statements in Nicklaus 

Design’s affidavits that it does not provide services relating to cart paths. 
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Therefore, he argues, because these statements are unreliable, Nicklaus Design’s 

claims of not designing or constructing the bridge at Valhalla are called into 

question. However, this evidence is not inconsistent with statements in both 

affidavits that Nicklaus Design relocated portions of certain cart paths to 

accommodate changes to hole design. The fact remains there is no evidence

Nicklaus Design had any role in designing or constructing the bridge in question. 

“[S]peculation and supposition” are not enough to survive a motion for summary 

judgment. O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citation omitted). 

Further, “the party opposing summary judgment cannot rely on the hope that the 

trier of fact will disbelieve the movant’s denial of a disputed fact, but must present 

affirmative evidence in order to defeat a properly supported motion for summary 

judgment.” Id. at 587 (internal quotation marks and citation omitted). 

Pendergrast also argues that granting summary judgment was 

premature and he should have been given additional time to conduct discovery, 

including taking depositions, to further determine the extent of Nicklaus Design’s 

work at Valhalla. In determining whether summary judgment was properly 

granted, we “must also consider whether the trial court gave the party opposing 

the motion an ample opportunity to respond and complete discovery before the 

court entered its ruling.” Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010). 

This decision is reviewed for abuse of discretion. Id. “Under our abuse of 
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discretion standard of review, we will disturb a ruling only upon finding that the 

trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound 

legal principles.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014)

(internal quotation marks omitted) (quoting Commonwealth v. English, 993 S.W.2d 

941, 945 (Ky. 1999)). 

“The question is not whether the nonmoving party ‘has 

actually completed discovery’ – rather, the question is whether the nonmoving 

party ‘has had an opportunity to do so.’” Bowlin Grp., LLC v. Rebennack, 626 

S.W.3d 177, 188 (Ky. App. 2020), review denied (Aug. 18, 2021) (citing Hartford 

Ins. Group v. Citizens Fidelity Bank & Tr. Co., 579 S.W.2d 628, 630 (Ky. App. 

1979)). Here, the trial court gave Pendergrast the opportunity to complete any 

discovery he desired. In response to Nicklaus Design’s motion for summary 

judgment, Pendergrast requested an additional two months “to complete the 

discovery he deems necessary[.]” The trial court granted the motion and extended 

discovery an additional two months. In total, Pendergrast had eight months from 

the initiation of the lawsuit until the discovery deadline to conduct discovery. For 

five of those months he was aware that Nicklaus Design denied it performed any 

services relating to the bridge and thus, any liability. We believe this was enough 

time to conduct discovery on the limited issue of Nicklaus Design’s duty. 
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Therefore, we find no abuse of discretion and summary judgment was properly 

granted. 

Finally, Pendergrast claims the trial court erred in effectively denying 

his motion to compel and request for additional discovery time by ruling on the 

motion for summary judgment. “We review a trial court’s denial of a motion to 

compel discovery for abuse of discretion.” Louisville & Jefferson Cty. Metro. 

Sewer Dist. v. T+C Contracting, Inc., 570 S.W.3d 551, 572 (Ky. 2018) (citation 

omitted). 

In ruling on the motion for summary judgment, the trial court noted 

that it had reviewed the motion to compel and was “comfortable that [Nicklaus 

Design’s] answers to interrogatories are substantively responsive and complete . . . 

[and] give rise to no issue of material fact as to its involvement with the bridge in 

question.” Nicklaus Design responded substantively to each of the disputed 

discovery requests, either by stating it had no responsive documents to produce 

(based upon its denial of its involvement in designing or constructing bridges) or 

by producing responsive documents (the Field Book designs for hole No. 2). Its 

only objection was to producing evidence unrelated to the area of the accident and 

thus not relevant to whether it owed a duty of care to Pendergrast. Pendergrast 

makes no argument as to how these documents would be “reasonably calculated 
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to lead to the discovery of admissible evidence.” CR3 26.02(1). We find no abuse 

of discretion. 

Based upon the foregoing, the order of the Jefferson Circuit Court is 

affirmed. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Shea W. Conley

Josh Autry

Lexington, Kentucky

BRIEF FOR APPELLEE:

James M. Burd

Christopher Piekarski

Louisville, Kentucky

3 Kentucky Rules of Civil Procedure.