Avis Thompson v. TOMMY and ELIZABETH BREEDING

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0433P (6th Cir.)
File Name: 03a0433p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AVIS THOMPSON,
Plaintiff-Appellant,
v.
TOMMY and ELIZABETH
BREEDING,
Defendants,
JAMES KNIFLEY and JIMMIE
KNIFLEY REALTY CO., INC.,
Defendants-Appellees.
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No. 03-5247
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 00-00140—E. Robert Goebel, Magistrate Judge.
Argued: September 30, 2003
Decided and Filed: December 8, 2003
Before: MARTIN, MOORE, and CLAY, Circuit Judges.
2 Thompson v. Breeding, et al. No. 03-5247
_________________
COUNSEL
ARGUED: Jonathan Ray Spalding, Lebanon, Kentucky, for
Appellant. Timothy L. Edelen, BELL, ORR, AYERS &
MOORE, Bowling Green, Kentucky, for Appellees.
ON BRIEF: Jonathan Ray Spalding, Elmer J. George,
Lebanon, Kentucky, for Appellant. Timothy L. Edelen,
BELL, ORR, AYERS & MOORE, Bowling Green,
Kentucky, for Appellees.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Avis Thompson
appeals the magistrate’s grant of summary judgment in favor
of James Knifley and Jimmie Knifley Realty Co., Inc., on
various claims for damages arising out of a failed real estate
sale. Two issues are presented in this appeal. The first is
whether the magistrate correctly determined that Thompson
has no right of action against Knifley or Knifley Realty for
damages caused by their alleged violations of section 330.110
of the Kentucky Revised Statutes. The second is whether
Thompson’s negligence claim was properly dismissed on
summary judgment. While we disagree with the magistrate’s
reasoning as to the first issue, we find that his ultimate
conclusions were correct as to both issues and, therefore, we
affirm.
I.
The essential facts of this case are not in dispute. In May
2000, Thompson contacted the Knifley Realty office and
spoke to Knifley about purchasing real estate in
Campbellsville, Kentucky. During the week of May 14,
Knifley showed Thompson various local properties that were

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No. 03-5247 Thompson v. Breeding, et al. 3
available for sale. One of those properties belonged to
Tommy and Elizabeth Breeding and was scheduled to be
auctioned on Saturday, May 20, at an auction conducted by
Knifley himself. Thompson attended the auction, which was
held at the Breedings’ home, and decided to bid on the
property. Her $136,000 bid prevailed and she agreed to pay
an advertised ten percent buyer’s commission, bringing the
total purchase price to $149,600.
A few hours after the auction had ended, Thompson
returned to the property with a friend in order to measure
rooms in the home. The Breedings’ son had given Thompson
a garage door opener earlier in the day to allow access to the
house, but apparently the garage door was already open when
she arrived. Thompson entered through the garage and
noticed a large wet and slimy patch on the garage floor, which
she walked around on her way into the house. From a back
window, she observed three young men in the yard carrying
items that she surmised were stolen from the property.
Thompson quickly walked back through the garage toward
the outside so that she could confront them, and in doing so
caught her left foot on a garden hose lying on the garage
floor, causing her right foot to land on the wet spot and slip
out from under her. Thompson fell and sustained injuries. In
her deposition, Thompson admitted that she was aware of the
wet spot before she stepped in it and, in fact, that the wet spot
“was obvious . . . to anyone who was looking.”
A few days after the auction, a storm damaged the property,
blowing down at least two trees and damaging several others.
Knifley and the Breedings believed that this damage did not
materially affect the contract for sale and offered to replace
the mature trees with new trees and to clean up the fallen
limbs. Thompson, however, had chosen the property partially
because of the trees and the cover they provided. Therefore,
4 Thompson v. Breeding, et al. No. 03-5247
1Thompson had argued that the defendants materially breached the
contract for sale b y refusing to replace the d amaged trees with mature
trees or to reduce the purchase price of the property by $15,000. T he
magistrate rejected that argument and held that Thompson had breached
the contract by refusing to close on the property. That ruling has not been
appealed.
this damage contributed to her ultimate decision not to close
on the property.1
Unable to complete the sales transaction with Thompson,
the Breedings hired Knifley to conduct a second auction of
the property on August 12. The high bid at the second
auction was $150,200 – $14,200 more than Thompson’s high
bid. With the ten percent buyer’s commission, the total
purchase price amounted to $165,020 – $15,420 more than
the total purchase price Thompson had agreed to pay.
Thompson filed a complaint against Knifley, Knifley
Realty and Tommy and Elizabeth Breeding, alleging
violations of section 330.110(10) and (11) of the Kentucky
Revised Statutes, as well as claims for negligence and breach
of contract. The district court had diversity jurisdiction
pursuant to 28 U.S.C. § 1332 and the parties consented to try
the matter before a magistrate. The magistrate granted
summary judgment in favor of the defendants on all claims,
holding that (1) Thompson had no right of action against any
of the defendants for damages caused by their alleged
violations of section 330.110; (2) Thompson could not prevail
on her negligence claim because none of the defendants owed
her a duty in light of the open and obvious nature of the
hazard that caused her injury; and (3) it was Thompson, not
the defendants, who had breached the contract for sale.
Thompson subsequently settled her dispute with the
Breedings, but she appealed the magistrate’s rulings with
respect to her section 330.110 and negligence claims against
Knifley and Knifley Realty.

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No. 03-5247 Thompson v. Breeding, et al. 5
II.
We review de novo a district court’s grant of summary
judgment. Johnson v. City of Cincinnati, 310 F.3d 484, 490
(6th Cir. 2002). Summary judgment should be granted when
“the pleadings, depositions, answers to interrogatories, 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.”
FED. R. CIV. P. 56(c). Because this is a diversity case, we
apply the law of the forum state, which the parties agree is
Kentucky. Gahafer v. Ford Motor Co., 328 F.3d 859, 861
(6th Cir. 2003).
A.
The first issue is whether Thompson has a right of action
against Knifley and Knifley Realty for damages caused by
their alleged violations of section 330.110 of the Kentucky
Revised Statutes. Section 330.110 was passed as part of the
Auctioneers License Law of 1962, which is now codified as
chapter 330 of the Kentucky Revised Statutes. See KRS
§ 330.010. Auctioneers and auction house operators must be
licensed by the state of Kentucky and must abide by the
requirements set forth in chapter 330. Section 330.110
prohibits licensees from engaging in various types of conduct
and provides for penalties in the event of a violation.
Thompson alleges that Knifley and Knifley Realty violated
section 330.110(10) and (11) through various misdeeds
associated with the auction of the Breedings’ property.
Subsections (10) and (11) prohibit licensees from engaging in
conduct “which demonstrates bad faith, dishonesty,
incompetency, or untruthfulness,” or “[a]ny other conduct that
constitutes improper, fraudulent, dishonest, or negligent
dealings,” respectively. Because we find that Thompson has
no right of action for damages caused by these alleged
violations, we need not address the substance of her
allegations.
6 Thompson v. Breeding, et al. No. 03-5247
Thompson argues that section 446.070 of the Kentucky
Revised Statutes provides a mechanism that allows her to sue
Knifley and Knifley Realty for their alleged violations of
section 330.110. Section 446.070 provides:
A person injured by the violation of any statute may
recover from the offender such damages as he sustained
by reason of the violation, although a penalty or
forfeiture is imposed for such violation.
Knifley and Knifley Realty argue, and the magistrate held,
that section 330.110 is a “regulatory” statute for which there
is no private right of action. For that proposition they rely
exclusively upon Lewis v. Charolais Corporation, 19 S.W.3d
671, 674 (Ky. App. 2000), in which the Kentucky Court of
Appeals held that no private right of action existed for
violation of chapter 151 of the Kentucky Revised Statutes
because that chapter was “regulatory in nature.”
While the magistrate’s ultimate conclusion was correct, the
rationale that he employed in reaching that conclusion is
flawed. The issue is not, as the magistrate assumed, whether
chapter 330 is “regulatory” in nature, but rather whether
section 446.070 affords a private right of action for damages
caused by a violation of chapter 330. Therefore, the
magistrate’s reliance upon Lewis is misplaced, as that case
never even cites section 446.070.
Nevertheless, our review leads us to the conclusion that
Thompson has no right of action against Knifley or Knifley
Realty for damages caused by their alleged violations of
section 330.110. Section 446.070 “was passed to remove any
doubt that might arise as to the right of a person for whose
protection a statute was passed to recover for a violation of
that statute, where the statute was penal in its nature, or where
by its terms the statute did not prescribe a remedy for its
enforcement of violation.” Hackney v. Fordson Coal Co., 19
S.W.2d 989, 990 (Ky. 1929); see also Ezell v. Christian Cty.,
245 F.3d 853, 856 (6th Cir. 2001); The Travelers Indem. Co.

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No. 03-5247 Thompson v. Breeding, et al. 7
v. Reker, 100 S.W.3d 756, 762-63 (Ky. 2003); State Farm
Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 117-18 (Ky.
1988); Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985).
However, “[w]here the statute both declares the unlawful act
and specifies the civil remedy available to the aggrieved
party, the aggrieved party is limited to the remedy provided
by the statute,” Grzyb, 700 S.W.2d at 401, and may not sue
under section 446.070.
The Kentucky Supreme Court has carefully limited the
applicability of section 446.070 to situations where the statute
that was allegedly violated provides no remedy for the
aggrieved party. Compare Travelers, 100 S.W.3d at 762-63
(section 446.070 inapplicable where the Workers’
Compensation Act provides remedies for violations of
workers’ compensation statutes), and Grzyb, 700 S.W.2d at
401 (section 446.070 inapplicable where Chapter 334 of the
Kentucky Revised Statutes provides the remedy of filing a
complaint with the Kentucky Commission on Human Rights),
with State Farm, 763 S.W.2d at 118 (section 446.070
provides right of action because the Unfair Claims Settlement
Practices Act contains no remedy for the aggrieved party).
These principles are consistent with the general rule of
statutory construction that “as between legislation of a broad
and general nature on the one hand, and legislation dealing
minutely with a specific matter on the other hand – the
specific shall prevail over the general.” City of Bowling
Green v. Bd. of Educ., 443 S.W.2d 243, 247 (Ky. App. 1969).
Chapter 330 provides that complaints against licensed
auctioneers for violating any section in the chapter are to be
made before the Board of Auctioneers, KRS § 330.115, and
that if a licensee is found guilty of a violation the Board is
authorized to pay damages to the aggrieved party if the
8 Thompson v. Breeding, et al. No. 03-5247
2Thompson never pursued the remedy provided in chapter 330, and
now it appears that this remedy is no longer available. See KRS
§ 330 .192 (3)(f) (“All the claims for monetary damages or relief . . . must
be made in writing on a proof of loss form subm itted to the bo ard within
six (6) months of the act of the auctioneer giving rise to the loss. Failure
to file such claims within the six (6 ) month period shall bar the claim.”).
licensee fails to do so, id. at § 330.192(2)(a).2 This is the type
of statutory remedy that precludes the operation of section
446.070. Because chapter 330 both “declares the unlawful act
and specifies the civil remedy available to the aggrieved
party,” Grzyb, 700 S.W.2d at 401, section 446.070 provides
no private right of action to Thompson. Accordingly,
summary judgment in favor the defendants was proper.
B.
The second issue is whether the magistrate erred in granting
summary judgment for Knifley and Knifley Realty on
Thompson’s negligence claim. The magistrate held that the
open and obvious nature of the wet spot precluded Thompson
from demonstrating that any of the defendants owed her a
duty with respect to that hazard. We agree. There can be no
negligence in the absence of a duty on the part of a defendant
and, under Kentucky law, no duty arises with respect to
hazards that are open and obvious. PNC Bank v. Green, 30
S.W.3d 185, 186 (Ky. 2000); Rogers v. Prof’l Golfers Ass’n,
28 S.W.3d 869, 872-73 (Ky. App. 2000). Thompson
admitted in her deposition that the wet spot “was obvious . . .
to anyone who was looking.” This admission is sufficient to
defeat her negligence claim. See Corbin Motor Lodge v.
Combs, 740 S.W.2d 944, 946 (Ky. 1987) (granting summary
judgment for defendant where plaintiff admitted that he knew
the sidewalk on which he slipped was “slick”); Rogers, 28
S.W.3d at 873-74 (granting summary judgment for defendant
where the slippery golf course hillside on which plaintiff
slipped was open and obvious as a matter of law).

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No. 03-5247 Thompson v. Breeding, et al. 9
Thompson’s arguments to the contrary are unpersuasive.
First, she argues that Kentucky has adopted a comparative
fault scheme that makes summary judgment inappropriate at
this stage. The doctrine of comparative fault, however,
presupposes that a defendant is liable for negligence in the
first place – which cannot be demonstrated in this case.
Second, Thompson argues that the presence of the young men
on the property distracted her and somehow made the hazard
less open and obvious. Even assuming, however, that
Thompson’s attention was distracted away from the wet spot,
that does not make the hazard any less open and obvious, nor
does it make Knifley or Knifley Realty any more at fault for
her fall.
Thompson’s negligence claim against Knifley and Knifley
Realty also fails for an additional reason: neither Knifley nor
Knifley Realty was in control or possession of the Breeding
property at the time of Thompson’s fall. Where a person has
neither title to nor possession of the premises, he cannot be
liable for injury resulting from a dangerous condition on the
premises. See Sabiston’s Adm’r v. Otis Elevator Co., 64
S.W.2d 588, 591 (Ky. App. 1933). Even assuming Knifley or
Knifley Realty controlled or possessed the property during the
auction, Thompson’s fall occurred hours after the auction had
ended and the Breedings had resumed control and possession
of the property. Therefore, the Breedings are the only ones
who could potentially be held liable for negligence, and
Thompson has settled her dispute with them.
For the foregoing reasons, the magistrate’s grant of
summary judgment in favor of Knifley and Knifley Realty is
AFFIRMED.

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