MIRANDA BROOKS V. CITY OF LEITCHFIELD ET. AL. — NOT TO BE PUBLISHED - OPINION OTHER

RENDERED: OCTOBER 16, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1233-MR MIRANDA BROOKS APPELLANT v. APPEAL FROM GRAYSON CIRCUIT COURT HONORABLE KENNETH H. GOFF, II, JUDGE ACTION NO. 23-CI-00143 CITY OF LEITCHFIELD APPELLEE OPINION VACATING AND REMANDING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND CETRULO, JUDGES. CETRULO, JUDGE: Miranda Brooks (“Brooks”) appeals a Grayson Circuit Court order granting summary judgment in favor of the City of Leitchfield (“City”) and dismissing her negligence claim rooted in premise liability. After review, we find summary judgment improper and premature, and remand for further proceedings consistent with this Opinion.

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-2- FACTUAL & PROCEDURAL HISTORY In June 2022, Brooks was walking poolside at an aquatic center – a community pool owned and operated by the City – when her left foot and ankle fell through PVC deck grating, cutting her leg. This grating circled the zero-entry pool and people walked on it as they entered and exited the pool. In June 2023, Brooks filed suit in Grayson Circuit Court alleging the City negligently failed to inspect and/or maintain the grating thereby failing to ensure the safety of its invitees. Brooks asserted, due to the City’s negligence, she sustained serious injuries, including scarring and disfigurement. Brooks’s complaint alleged only negligence and sought compensatory and punitive damages. Discovery proceeded, and in June 2025, the City moved for summary judgment. Based on the deposition testimonies of Brooks and an aquatic center employee, the City asserted neither it nor Brooks were aware of any issues with the grating prior to the incident. Thus, without notice of the dangerous condition, the City argued it could not be liable for Brooks’s accident. Further, the City argued Brooks’s claim was barred by CALGA,1 which protects local governments from liability for “[f]ailure to make an inspection” and discretionary acts. 1 Claims Against Local Government Act, Kentucky Revised Statutes (KRS) 65.200 to 65.2006.

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-3- Brooks opposed the City’s motion. She stated that during discovery the City objected to identifying all the individuals responsible for inspecting, maintaining, and repairing the pool grating, and refused to state when, if ever, the pool grating was last inspected or replaced. Brooks asserted that in response to the specific question of when the grating was last inspected, the City “did not and/or could not provide a responsive answer” but instead answered generally that the grates were inspected “periodically” and from “time-to-time.” Contrary to the City’s argument, Brooks argued to succeed at trial she need not show the City knew the grating was broken and failed to repair it. Rather, she need only show the City’s failure to inspect and maintain the pool grating caused her injuries, a determination reserved for a jury. Brooks stated she could produce evidence that she was injured due to falling through the grating; that the City could not specify when the grate was last inspected or maintained; and that – although the circuit court had not set a deadline for expert witness disclosures – her expert on pool maintenance and repair “would likely testify that pool grating should be inspected daily and a professional pool maintenance team should conduct a thorough inspection of all pool infrastructure at the start of each swim/pool season.” Lastly, Brooks argued CALGA did not bar her claim against the City because those collective statutes do not immunize a local government from negligence claims arising from the exercise of ministerial duties.

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-4- In August 2025, the Grayson Circuit Court granted the City’s motion for summary judgment and dismissed the action. In that order, the circuit court determined there was no genuine issues of material fact yet made two factual findings: (1) there was no evidence that the City had actual or constructive notice of a problem with the PVC grating prior to Brooks’s accident; and (2) the City inspected the PVC grating “daily” and did repairs “as needed.” The order granting summary judgment stated Brooks failed to meet her burden of establishing the City improperly or negligently maintained the grating or that the City breached its duty of care. Additionally, the circuit court concluded CALGA barred Brooks’s claim as it arose from a discretionary act by the City (the alleged failure to inspect). Brooks timely appealed. STANDARD OF REVIEW Summary judgment is only appropriate when “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.” CR2 56.03. That rule must be cautiously applied, and we must be mindful that summary judgment is not a substitute for a trial. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Upon a motion for summary 2 Kentucky Rules of Civil Procedure.

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-5- judgment, all facts and inferences in the record are viewed in a light most favorable to the non-moving party and “all doubts are to be resolved in [her] favor.” Id. (citations omitted). The circuit court “must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists.” Id. (emphasis added). Thus, a summary judgment looks only to questions of law and is subject to de novo review on appeal. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016) (citing Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky. 2010)). Accordingly, we offer no deference to the circuit court’s assessment of the record or its legal conclusions. Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (citing Malone v. Kentucky Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)). Lastly, we review questions of law, such as statutory construction and application, de novo. Richardson v. Louisville/Jefferson Cnty. Metro Gov’t, 260 S.W.3d 777, 779 (Ky. 2008) (citing Osborne v. Commonwealth, 185 S.W.3d 645, 648 (Ky. 2006)). ANALYSIS On appeal, Brooks argues summary judgment was improper due to the existence of a genuine issue of material fact. Moreover, Brooks claims that the circuit court misidentified the City’s duty, improperly adjudicated breach, and misapplied CALGA. Conversely, the City asserts CALGA bars Brooks’s claim and Brooks did not meet her burden of proving negligence. We agree with Brooks.

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-6- A. The circuit court erred in determining there existed no issue of material fact and that lack of notice negated the City’s duty to discover an unreasonably dangerous condition on the land and either eliminate or warn invitees of it. Under Kentucky law, a negligence action requires proof of “the existence of a duty, breach thereof, causation, and damages.” Boland-Maloney Lumber Co. v. Burnett, 302 S.W.3d 680, 686 (Ky. App. 2009) (citations omitted). “A negligence claim brought under a theory of premises liability asserts that a land possessor has violated his duty to maintain his premises in a reasonably safe manner.” City of Barbourville v. Hoskins, 655 S.W.3d 137, 141 (Ky. 2022) (citing Smith v. Smith, 563 S.W.3d 14, 16 (Ky. 2018)). “Historically, the scope of the duty owed by a [landowner] was dependent upon the status of one claiming injury as either a trespasser, a licensee, or an invitee.” Id. (citing Bramlett v. Ryan, 635 S.W.3d 831, 836 (Ky. 2021)). Here, the parties agreed Brooks was an invitee. “Generally speaking, a possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 909 (Ky. 2013) (citing Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385, 388 (Ky. 2010)). Therefore, the City owed a duty “to discover unreasonably dangerous conditions on the land and to either correct them or warn of them.” McIntosh, 319 S.W.3d at 388 (citing Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992)) (emphasis added). The City both admits and refutes that duty.

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-7- The City admits it had a duty to discover an unreasonably dangerous condition at the aquatic center and either eliminate or warn of that condition. However, the City asserts it was relieved of that duty because it did not have notice of the dangerous condition. In essence, the City argues that instead of having a duty to discover the unreasonably dangerous condition (the broken and/or damaged grating), it only had a duty to correct or warn about the unreasonably dangerous condition if it had notice of the hazard. The City relies upon our Supreme Court’s opinion in City of Barbourville v. Hoskins to support this claim. In Hoskins, an invitee suffered burns on the bottom of her feet from walking on sun-heated walkways at a water park. 655 S.W.3d at 140. The invitee was initially unaware of the burns and the temperature of the walkways due to her diabetic neuropathy, which caused a loss of protective sensation in her feet. Id. The trial court granted the landowner’s motion for summary judgment and concluded that no reasonable juror could determine the sun-heated walkways at the water park were an unreasonably dangerous condition. Id. at 139-42. Ultimately, on appeal, our Supreme Court agreed with the trial court and held the invitee’s injury was so unforeseeable that the landowner could not have reasonably done more to prevent her injury. Id. at 143. Hoskins is significantly distinct both legally and factually from the case before us.

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-8- In Hoskins, the high temperature of the walkways was apparent and likely to be recognized by a reasonable person in the position of the visitor. Simply, the temperatures of the walkways were readily attainable to the invitees. Essentially, the invitee had all the relevant information she needed to form an opinion as to the safety of the walkways. Her diabetic neuropathy prevented her from realizing the walkways had reached unsafe temperatures. Under those circumstances, the issue turned less on the landowner’s diligence in keeping its property in a safe condition, but rather, more on the invitee’s failure to avoid a danger that would have been fully recognizable and avoidable but for her ailment. Hoskins’s sun-heated walkways are quite distinguishable from the pool grating herein. As the City admits, Brooks did not see a crack in the grating nor have reason to believe it would not hold her weight. In fact, the grating was intended to be walked upon and presumably was walked upon throughout that day. Simply, grating that was intended to be walked upon broke when it was walked upon. It was not Brooks, the invitee, who failed to avoid a recognizable danger. However, we are not making a finding that the grating constituted an unreasonably dangerous condition sufficient to trigger the duty to warn or ameliorate; under these circumstances, such is a question of fact for the jury. Generally, whether an unreasonably dangerous condition existed is a question for the jury. Id. at 141. Summary judgment is possible on this question,

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-9- but only if no issue of material fact exists and reasonable minds cannot differ (i.e., if it would be unreasonable for a jury to find breach or causation). Here, there exists an issue of material fact, and breach and causation are not foregone conclusions. Again, we must view the record “in a light most favorable to the party opposing the motion for summary judgment[,]” in this case Brooks, and resolve all doubts in her favor. See Steelvest, 807 S.W.2d at 480 (citation omitted). It is unclear what steps, if any, the City took to maintain the grating surrounding the community pool in a safe condition. The City may have inspected the grating “daily” or “periodically” or “from time-to-time,” but the record is unclear. The circuit court determined the grating was inspected “daily,” but the court did not elaborate upon that finding. According to Brooks, (a) when she asked the City when the grating was last inspected, the City “could not provide a responsive answer and instead generally stated ‘[a]ll grates at the Leitchfield Aquatic Center are inspected periodically’”; (b) when she requested documentation of inspections, the City indicated “none”; and (3) when she requested grating maintenance/repair records, the City indicated “none.” The City claims liability should not attach because Brooks has not sufficiently supported her negligence claim. Yet, we do not believe a landowner may refuse requests for maintenance reports, then argue the invitee failed to present evidence the grating was not properly maintained.

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-10- Moreover, focusing specifically on the standard of review for summary judgment, reasonable minds could differ as to breach and causation. A reasonable juror could conclude that failing to inspect and maintain reliable grating around a public pool could create an unreasonably dangerous risk to its invitees. A reasonable juror could believe that people walking around a community pool could be injured by grating that was not properly maintained. A reasonable juror could conclude Brooks fell through grating (that should have withstood her weight) but for a defect such as a crack or damage that escaped detection by the City. A reasonable juror could agree with Brooks that the fact that cracks, fractures, or fissures were not readily noticeable to a casual observer highlights the need for the City to timely and properly inspect the grating for issues. Additionally, the grating in question does not present an open and obvious hazard. The open and obvious doctrine implicates different duties from hazards that are not open and obvious. See Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, 895-97 (Ky. 2013), and Grubb v. Smith, 523 S.W.3d 409, 416-21 (Ky. 2017) (both discussing open-and-obvious doctrine within comparative fault). “An open-and-obvious condition is found when the danger is known or obvious.” Webb, 413 S.W.3d at 895. The condition is known to a plaintiff when, subjectively, she is aware not only. . . of the existence of the condition or activity itself, but also appreciate[s] . . . the danger it involves. And the condition is obvious when, objectively,

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-11- both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment. It is important to note that Restatement (Second) § 343A does not require both elements to be found. The defendant will not be subject to liability if the condition is either known or obvious. Id. at 895-96 (internal quotation marks and citations omitted). The evidence suggests the grating was either broken or damaged and that condition was neither obvious nor known. “The open-and-obvious doctrine merely eliminates the [landowner’s] duty to warn of a condition because the condition itself serves as ample warning.” Id. at 897-98. The City cannot avail itself of this doctrine when the condition precedent is absent; that is, the grating deficiency was not open-and- obvious, so it did not eliminate the City’s duty to warn. Again, the City does not argue Brooks failed to avoid a readily discernable hazard, so it cannot be protected by the open-and-obvious doctrine. As this case lies outside of the open-and- obvious line of cases, it is more appropriately viewed through the lens of traditional negligence principles. Further, the City improperly attempts to shift its duty to Brooks. The City appears to argue that Brooks’s failure to notice a crack or defect in the grate before walking upon it somehow alleviates the City of its burden to discover the unreasonably dangerous condition. Yet, again, Brooks, the invitee, does not bear the burden of discovering the unreasonable risk of harm; the City, the landowner,

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-12- bears that burden. Kentucky law assigns the duty to detect hidden dangers to property owners and businesses, not its invitees. Shelton, 413 S.W.3d at 909 (citation omitted). The City was responsible for the condition of its pool. The burden was on the City to assess the safety, security, and maintenance needs of the grating. “While [an invitee is] required to exercise ordinary care for her own safety, . . . [she is] not required to look directly down at her feet with each step taken.” Winn-Dixie Louisville, Inc. v. Smith, 372 S.W.2d 789, 792 (Ky. 1963) (citing Humbert v. Audubon Country Club, 313 S.W.2d 405 (Ky. 1958)). “To be sure, ‘[t]here is in general no duty to anticipate and take precautions against the negligence of another person.’” Grubb, 523 S.W.3d at 419 (quoting Davis v. Consol. Rail Corp., 788 F.2d 1260, 1265 (7th Cir. 1986)). In its attempts to shift its burden to Brooks, the City also cites four water meter cases, three of which are unpublished: Carucci v. Northern Kentucky Water District, 657 S.W.3d 924 (Ky. App. 2022); Whitsett v. Louisville & Jefferson County Metropolitan Sewer District, No. 2024-CA-0794-MR, 2025 WL 1416148 (Ky. App. May 16, 2025); Ramsey v. Louisville Water Co., No. 2023-CA- 0773-MR, 2024 WL 3463219 (Ky. App. Jul. 19, 2024); and Penix v. Mt. Sterling Water & Sewer, No. 2017-CA-001661-MR, 2020 WL 3605843 (Ky. App. Jun. 26, 2020). In those cases, a water company’s liability – for injury related to someone stepping on and being injured from a loose water meter or sewer cover – correlated

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-13- to the water company’s having notice of the dangerous condition. However, those cases are not useful nor applicable to our analysis. As those cases determined, it is not reasonable to expect a water company to monitor the condition of each and every one of its plates, covers, or lids located throughout a city. Moreover, this principle does not correlate to a landowner’s duty of care to its invitees to maintain the safety of grating around a public pool that is walked upon daily through the course of its business. “[W]hen the condition is neither known nor obvious to the invitee . . . the full weight of the duty to maintain reasonably safe premises remains [on the landowner].” Webb, 413 S.W.3d at 898. As such, the City’s attempt to shift its duty to Brooks and/or escape liability due to lack of notice, is improper and inconsistent with caselaw assigning landowners an affirmative duty to maintain the premises in a reasonably safe condition. Whether the City breached that duty is a question for the jury to decide. Thus, summary judgment was improper. The jury should have been allowed to consider whether the City exercised reasonable care in maintaining its premises. B. With the information before us on appeal, we cannot state Brooks’s claim is barred by CALGA. The circuit court held, and the City asserts on appeal, that it is entitled to immunity under CALGA, and more specifically under KRS 65.2003. At this time, we do not agree. Under CALGA, “a municipality is immune only for torts committed in the performance of legislative or judicial or quasi-legislative or

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-14- quasi-judicial functions, and can otherwise be held vicariously liable for the torts of its employees.” Schwindel v. Meade Cnty., 113 S.W.3d 159, 164 (Ky. 2003) (citations omitted). Relevantly, KRS 65.2003 states: [A] local government shall not be liable for injuries or losses resulting from: . . . (3) Any claim arising from the exercise of judicial, quasi- judicial, legislative or quasi-legislative authority or others, exercise of judgment or discretion vested in the local government, which shall include by example, but not be limited to: . . . (d) The exercise of discretion when in the face of competing demands, the local government determines whether and how to utilize or apply existing resources; or (e) Failure to make an inspection. The City asserts it is explicitly protected from liability for using its discretion to allocate and utilize financial resources, such as for pool maintenance (KRS 65.2003(3)(d)), and for failures in making an inspection of the pool grating (KRS 65.2003(3)(e)). However, the City leaves out crucial statutory language in its argument. KRS 65.2003(3) explicitly states “[n]othing contained in this subsection shall be construed to exempt a local government from liability for negligence arising out of acts or omissions of its employees in carrying out their

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-15- ministerial duties.” See Morales v. City of Georgetown, 709 S.W.3d 146, 164 (Ky. 2024) (“This provision makes clear that, to the extent a municipal employee is performing a ministerial function, the municipality is not immune from claims arising from the employee’s alleged negligence.”) (emphasis added). As discussed, the duty in question here was a landowner’s duty to discover unreasonably dangerous conditions on its land and either eliminate the hazard or warn its invitees. Under these circumstances, implicitly paired with that duty to discover, is the duty to maintain the community pool and to keep it reasonably safe for its invitees. From the information before us at this time, we believe such a duty is ministerial in nature (as opposed to discretionary), but additional information is required before that determination may be finally and properly adjudicated. Typically, whether or not to establish or open an infrastructure asset is a discretionary act (as is the decision to allocate funds for infrastructure). Yet, once a municipality establishes or opens an infrastructure asset, it has “a ministerial duty to non-negligently construct, maintain, and repair” that asset. Mason v. City of Mt. Sterling, 122 S.W.3d 500, 504 (Ky. 2003) (emphasis added); see also Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Albright, No. 2023-SC-

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-16- 0079-DG, 2025 WL 890812, at *11 (Ky. Mar. 20, 2025)3 (citations omitted) (“Following the enactment of CALGA, our jurisprudence never retreated from the tenet that a municipal corporation’s responsibility to non-negligently construct, maintain, and repair its sewer system is a ministerial duty and that an alleged failure to fulfill that duty is not entitled to immunity[.]”). This is true even if the municipality did not originally construct the asset but merely has taken possession of it. Mason, 122 S.W.3d at 504-05. In such an instance, “the municipality’s duty to its inhabitants [is] the same as if the [infrastructure asset] had been originally constructed by the municipality.” Id. (internal quotation marks and citation omitted); see also Madden v. City of Louisville, No. 2003-CA-001162-MR, 2004 WL 1588279, at *5 (Ky. App. Jul. 16, 2004) (determining maintenance and construction of drainage ditches are ministerial duties; also stating while the decision to establish a park and golf course were discretionary, the construction, grading and maintenance of those assets is purely ministerial duties).4 Thus, from the information we have at this time, we believe Brooks’s claim arises from the performance (or lack thereof) of ministerial duties. However, we take heed of our Supreme Court’s guidance on this issue. 3 As this case is unpublished, we cite it not as binding precedent, but merely persuasive. Kentucky Rules of Appellate Procedure (RAP) 41. 4 RAP 41.

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-17- When the courts of this Commonwealth are asked to conclude, as a matter of law, whether a government employee’s actions are discretionary or ministerial, it is often the government agency’s own internal rules, policies, regulations that shed the most light on the distinction. Internal government rules, policies, and regulations necessarily constrain the individual discretion of public employees, and in some instances limit their discretion so greatly as to render their employment functions “absolute, certain, and imperative,” and, therefore, ministerial in nature. [Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)]. However, even an unwritten yet generally known rule or policy can impart ministerial obligations on public employees. See id. at 529; Gaither v. Just. & Pub. Safety Cabinet, 447 S.W.3d 628, 635-36 (Ky. 2014). “[W]e have also recognized that a common law duty – if specific and affirmative in its command – could render an act or function essentially ministerial in the absence of any statute or regulation on point[.]” Haney v. Monsky, 311 S.W.3d 235, 245 (Ky. 2010). Thus, examining the pertinent rules, policies, or regulations governing the public employee’s challenged conduct may sometimes be all that is necessary to make the distinction between ministerial and discretionary. Meinhart v. Louisville Metro Gov’t, 627 S.W.3d 824, 830 (Ky. 2021). “Compliance with the rule, policy, or regulation simply is not relevant in that calculus. Rather, compliance is relevant to negligence[.]” Id. Again, “whether a ministerial act was performed properly, i.e., non-negligently, is a separate question from whether the act is ministerial, and is usually reserved for a jury.” [Marson v. Thomason, 438 S.W.3d 292, 297 (Ky. 2014)]. Morales, 709 S.W.3d at 155. The record here does not include reference to internal government rules, policies, and regulations. While those missing elements may not be dispositive, we nonetheless do not know what we do not know. From the record

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-18- on appeal, we cannot determine that CALGA shields the City from liability for failing to maintain the safety of its community pool. As such, the City is not entitled to statutory local governmental immunity under CALGA at this time. CONCLUSION Therefore, we VACATE the Grayson Circuit Court’s opinion and order granting summary judgment in favor of the City and REMAND for further proceedings. CALDWELL, JUDGE, CONCURS. THOMPSON, CHIEF JUDGE, DISSENTS AND FILES SEPARATE OPINION. THOMPSON, CHIEF JUDGE, DISSENTING: Respectfully, I dissent from the majority. I agree that the City had “a duty to discover unreasonably dangerous conditions on the land and either eliminate or warn of them,” Hoskins, 655 S.W.3d at 141 (internal quotation marks, footnotes, and citations omitted), and that this would include maintaining, repairing, or warning about damaged sections of the grating. In this case, however, I believe that Ms. Brooks failed to provide any evidence that the City breached its duty. It is generally a question of fact to be presented to the jury whether an unreasonably dangerous condition existed on the land possessor’s premises sufficient to trigger the duty to warn or ameliorate. But summary judgment still remains a viable concept[.] If reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation, summary judgment is

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-19- 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. (internal quotation marks, footnotes, and citations omitted). “A party opposing a motion for summary judgment cannot rely merely on the unsupported allegations of his pleadings, but is required to present some affirmative evidence showing that there is a genuine issue of material fact for trial.” Godman v. City of Fort Wright, 234 S.W.3d 362, 370 (Ky. App. 2007) (internal quotation marks and citations omitted). “[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and that the question should be taken from the jury when the evidence is so unsatisfactory as to require a resort to surmise and speculation as to how an injury occurred.” Chesapeake & O. Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951) (citations omitted). In this case, Ms. Brooks provided no affirmative evidence, either from a layman or an expert, that the pool grating was damaged or improperly maintained. While she claims to have an expert that will support her theory, she did not provide any notice of an expert to the trial court, nor did she provide any affidavit from an expert. In addition, the record contains an affidavit from Tammee Saltsman, the Parks and Recreation Director for the City. She affirmed that the grating was inspected “often.” She also affirmed that the City Pool Facility Operator, Tyler Harrell, walked the decks of the pool area every morning looking for issues, as did

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-20- the lifeguards. Also, the record suggests that the City provided a list of every employee working for the aquatic center in the year 2022, the year of the injury.5 If Ms. Brooks believed the City’s discovery answers were insufficient, she could have moved to compel additional answers or deposed any of the named pool employees, but she did not. Further, Ms. Brooks did not make a motion asking for more time to conduct additional discovery. The City provided some evidence that the grating was inspected. Ms. Brooks provided no evidence to counter this claim and did not provide evidence that the City’s inspections were insufficient. Ms. Brooks needed some affirmative evidence to defeat the motion for summary judgment and speculation would not suffice. I believe she failed to meet this burden and we should affirm the judgment of the trial court. BRIEF FOR APPELLANT: Kevan M. Doran Louisville, Kentucky BRIEF FOR APPELLEE: Earlene Whitaker Wilson Leitchfield, Kentucky Jason Bell Elizabethtown, Kentucky 5 Only portions of the discovery materials are contained in the record. An answer from the City to an interrogatory is included in the record that indicates a list of employee names was attached to the interrogatory answer, but said attachment is not in the record.

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