Pamela Bailey v. City of Bowling Green, Kentucky

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RENDERED: SEPTEMBER 25, 2026; 10:00 A.M.
                         TO BE PUBLISHED

                Commonwealth of Kentucky
                          Court of Appeals
                             NO. 2025-CA-1282-MR

PAMELA BAILEY                                                       APPELLANT


               APPEAL FROM WARREN CIRCUIT COURT
v.           HONORABLE CHRISTOPHER T. COHRON, JUDGE
                      ACTION NO. 24-CI-00144


CITY OF BOWLING GREEN,
KENTUCKY; ANDY SOUZA,
INDIVIDUALLY AND IN HIS
CAPACITY AS PUBLIC WORKS
DIRECTOR; AND GREG MEREDITH,
INDIVIDUALLY AND IN HIS
CAPACITY AS PUBLIC WORKS
DIRECTOR                                                            APPELLEES


                                   OPINION
                                  AFFIRMING

                                 ** ** ** ** **

BEFORE: CALDWELL, ECKERLE, AND TAYLOR, JUDGES.

ECKERLE, JUDGE: In a dispute arising from a trip and fall accident, Appellant,

Pamela Bailey (“Bailey”), seeks reversal of the Warren Circuit Court’s Order of

summary judgment in favor of Appellees, the City of Bowling Green, Kentucky
(“the City”); and its employees, Andy Souza, Individually and in his capacity as

Public Works Director (“Souza”); and Greg Meredith, Individually and in his

former capacity as Public Works Director (“Meredith”) (collectively

“Employees”). After careful review, we find that the Commonwealth’s

Recreational Use Statute, Kentucky Revised Statute (“KRS”) 411.190, shields the

City and its Employees from liability and that no genuine issue of material fact is

in dispute. Accordingly, we affirm the Circuit Court’s summary judgment.

    I.     Factual and Procedural Background

              On the evening of September 8, 2023, while walking to attend a free

concert in Circus Square Park in Bowling Green, Bailey tripped on an uneven

sidewalk owned by the City. Bailey claims that the corresponding fall fractured

her upper arm and tore her left rotator cuff, leaving her with radial nerve damage in

her left arm. On January 30, 2024, Bailey filed a complaint against the City,

claiming that she suffered “injuries of a permanent nature” as a direct result of the

City’s “negligent acts and/or omissions.” Record (“R.”) at 2-3, 59. She claimed

that she had incurred over $84,000 in medical expenses,1 could not return to work,

and anticipated future medical expenses and impairment of her earning capacity.

R. at 60, 63. On July 26, 2024, Bailey amended her complaint to include Souza



1
 Later in the record, in response to the City’s motion for summary judgment, Bailey claimed that
her medical expenses had risen to $227,565.72. R. at 153.

                                              -2-
and Meredith in their individual and official capacities.

               In its Answer to Bailey’s Amended Complaint, the City and its

Employees denied negligence and averred that Bailey failed to state a claim upon

which relief could be granted. Further, the City pled a series of affirmative

defenses, including “sovereign immunity, governmental immunity, qualified

immunity, and the immunity afforded under the Kentucky Claims Against Local

Governments Act, KRS 65.200, et. seq.” and “all applicable affirmative defenses

set forth in [Kentucky Rule of Civil Procedure (“CR”)] 8.03.” R. at 44-45. The

City also “reserve[ed] the right to assert additional defenses, affirmative defenses,

and/or claims.” R. at 45. In response to Bailey’s request for documents, the City

produced, in pertinent part: (1) a “Sidewalk Maintenance Policy” dated October

2019; a presentation prepared by Precision Concrete Cutting (“PCC”) titled,

“Sidewalk Trip Hazard Repair Proposal Phase XIV” and dated November of 2022;

and a contract for “[r]epairing of uneven sidewalk, through PCC methods of

various areas within Census Block 102.1” executed between the City and PCC on

October 18, 2023, just over one month after Bailey’s trip and fall. R. at 169, 170-

73, and 176.

               The City propounded interrogatories and requests for admissions and

deposed Bailey. Bailey acknowledged that she was not charged an admission fee

to attend the concert in the park and that she fell on property owned by the City.


                                         -3-
R. at 78-79. In relating her recollection of the incident, Bailey stated that, after

attending her granddaughter’s baseball game, she and her ex-husband (“Joe”)

parked downtown and were:

             walking to the concert and there was [sic] several people
             walking by. So[,] I had to get behind Joe. And the next
             thing I know I hit that uneven concrete. I’ll never forget
             it because I tried to grab his shirt. And the next thing I
             remember I woke up and my arm was that way.

R. at 90. Bailey explained that she and Joe never actually reached the concert in

the park. R. at 87, 97.

             On June 25, 2025, the City moved for summary judgment, arguing

that there was no genuine issue as to any material fact and that KRS 411.190

relieved the City of liability. Specifically, the City argued that pursuant to KRS

411.190(3), it owed no duty of care to Bailey because she was using the property

owned by the City for a recreational purpose, specifically, “walking to attend a free

community concert.” R. at 131.

             In response, Bailey argued that summary judgment was premature,

because “[t]he parties [had] not concluded discovery.” R. at 155. She asserted that

she was not engaged in recreational activity at the time of her fall because she

never made it to the concert. Further, she argued that to apply KRS 411.190 to her

walk from a parking spot to the location of the concert was contrary to the spirit of

the statute because her activity was of the kind that the statute intended to protect,


                                          -4-
and curtailing liability under these circumstances was “a very slippery slope.” R.

at 159. Even assuming arguendo that her walking and intended free-concert

viewing constituted a recreational purpose, she asserted that KRS 411.190 did not

bar her claim because the City derived commercial gain from the concerts

sponsored in the park. Finally, Bailey argued that her liability claim was not

limited because, under KRS 411.190(6), there were “sufficient facts to present a

jury question” regarding the City’s willful failure “to guard against an exceedingly

dangerous condition by failing to warn of or repair the sidewalk prior to [her] fall.”

R. at 165.

             The City denied that it derived a financial benefit that would negate

the application of KRS 411.190. Moreover, it replied that no additional discovery

would change the fact that the City’s purported failure to identify and repair the

uneven pavement was, at most, the kind of passive, ordinary negligence that did

not rise to a level of willful or wanton conduct warranting the statutory exception

under KRS 411.190(6).

             On August 18, 2025, the Circuit Court conducted a hearing on the

City’s motion for summary judgment, during which the parties presented

arguments consistent with the grounds propounded in their written statements. By

written Order dated September 10, 2025, the Circuit Court concluded that KRS

411.190 applied because the City owned the sidewalk, and Bailey’s activity at the


                                         -5-
time of her fall was a covered recreational activity. Accordingly, the Circuit Court

issued summary judgment in favor of the City. On September 12, 2025, the Circuit

Court amended its Order to correct the names of the parties in a concluding

paragraph, which was apparently attributable to errors included in the City’s

proposed order. This appeal followed.

   II.    Standard of Review

             “[T]he proper function of summary judgment is to terminate litigation

when, as a matter of law, it appears that it would be impossible for the respondent

to produce evidence at the trial warranting a judgment in [the respondent’s] favor.”

Steelvest, Inc. v. Scansteel Service Center, Inc.,
807 S.W.2d 476, 480
(Ky. 1991).

Summary judgment is appropriate “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.” CR 56.03. The Trial Court

must view the record in a light most favorable to the party opposing the motion for

summary judgment, and all doubts are to be resolved in her favor. Steeliest,
807

S.W.2d at 480
.

             “Appellate review of a summary judgment involves only legal

questions and a determination of whether a disputed material issue of fact exists.”

Shelton v. Kentucky Easter Seals Soc., Inc.,
413 S.W.3d 901, 905
(Ky. 2013), as


                                          -6-
corrected (Nov. 25, 2013). This Court’s review is de novo, in the sense that we

owe no deference to the conclusions of the Circuit Court. Scifres v. Kraft,
916

S.W.2d 779, 781
(Ky. App. 1996).

   III.   Analysis

             As an initial matter, we resolve Bailey’s unpreserved claim that the

Circuit Court erred by granting summary judgment under KRS 411.190 because

the City did not specifically plead recreational-use immunity in its Answer, thereby

waiving the affirmative defense pursuant to CR 8.03. As a result of this alleged

omission, Bailey argues that the Circuit Court’s summary judgment should be

vacated, and the case remanded for further discovery. The City argues that Bailey

failed to raise this argument before the Circuit Court and is not permitted to do so

now for the first time on appeal.

             Our jurisprudence has long held that “specific grounds not raised

before the trial court, but raised for the first time on appeal will not support a

favorable ruling on appeal.” Knott Cnty. Bd. of Educ. v. Patton,
415 S.W.3d 51, 56
(Ky. 2013) (quoting Fischer v. Fischer,
348 S.W.3d 582, 588
(Ky. 2011)

abrogated by Nami Res. Co., L.L.C. v. Asher Land & Min., Ltd.,
554 S.W.3d 323
(Ky. 2018)); see also Ten Broeck Dupont, Inc. v. Brooks,
283 S.W.3d 705, 734
(Ky. 2009) (quoting Reg’l Jail Auth. v. Tackett,
770 S.W.2d 225, 228
(Ky. 1989)

(“An appellate court ‘is without authority to review issues not raised in or decided


                                           -7-
by the trial court.’”)). However, our Supreme Court has carved out an extensive

exception to this general rule, reading CR 61.02 to authorize an Appellate Court to

review an unpreserved argument for palpable error. R.L.P. v. Commonwealth,
733

S.W.3d 265
, 279 (Ky. 2026) (quoting CR. 61.02: “A palpable error which affects

the substantial rights of a party may be considered . . . by an appellate court on

appeal, even though insufficiently raised or preserved for review, and appropriate

relief may be granted upon a determination that manifest injustice has resulted

from the error”). Therefore, we undertake a palpable-error review of Bailey’s CR

8.03 claim for the first time on appeal, as required, even though Bailey did not

present this argument below to the Trial Court.

             As we referenced supra, the City’s Answer denied Bailey’s factual

allegations, pled affirmative defenses, including sovereign, governmental,

qualified, and local governmental immunity and “all applicable affirmative

defenses,” and reserved its right to assert other affirmative defenses. R. at 44-45.

CR 8.03 provides in relevant part:

             In pleading to a preceding pleading, a party shall set forth
             affirmatively accord and satisfaction, arbitration and
             award, assumption of risk, contributory negligence,
             discharge in bankruptcy, duress, estoppel, failure of
             consideration, fraud, illegality, injury by fellow servant,
             laches, license, payment, release, res judicata, statute of
             frauds, statute of limitations, waiver, and any other
             matter constituting an avoidance or affirmative defense.

(Emphasis added.) Significantly, CR 8.03 does not specifically delineate any form

                                          -8-
of immunity as a defense requiring an affirmative pleading. In prior cases,

Kentucky Courts have recognized that other forms of statutory protection that limit

liability fall into the category of an affirmative defense or avoidance of liability

under CR 8.03. For example, in Gordon v. NKC Hospitals, Inc., this Court held

that the exclusive remedy provision of the Workers’ Compensation Act was an

affirmative defense, which must be pled and proven, and the failure of which

amounted to a waiver.
887 S.W.2d 360, 362-63
(Ky. 1994); see also Minova USA,

Inc. v. Jolly,
739 S.W.3d 598
, 603 (Ky. 2026) (“The exclusive liability provision

under KRS 342.610 is an affirmative defense which is subject to waiver if

insufficiently pled.”). Similarly, we hold that recreational-use liability under KRS

411.190 presents an avoidance of liability, which should be pled as an affirmative

defense under CR 8.03 or be subject to waiver.2

               However, the pleading requirements of CR 8.03 do not mandate

mechanical application, and a defendant does not waive an affirmative defense if

he raises it by timely motion that does not prejudice the plaintiff. Underwood v.

Underwood,
999 S.W.2d 716
(Ky. App. 1999) (defendant’s failure to raise the



2
  This issue is not one of first impression; but we can find no published authority. Other panels
of this Court have recognized KRS 411.190 as an affirmative defense. Lussi v. Walton Ridge
Apartments, L.L.C., No. 2023-CA-1375,
2024 WL 4795917
(Ky. App. Nov. 15, 2024) and
Johnson v. Bond, No. 2017-CA-001150-MR,
2019 WL 1302397
, at *1 (Ky. App. Mar. 22,
2019). However, pursuant to Kentucky Rule of Appellate Procedure (“RAP”) 41(A), we
reference these unpublished opinions as demonstrative, non-binding authority and to note our
awareness of their existence.

                                               -9-
statute of limitations in answer or initial motion to dismiss did not waive the

defense because the statute-of-limitations issue was clear on complaint’s face).

Additionally, we have held that when a statutory defense is raised for the first time

in a motion for summary judgment and the opposing party fails to object and

instead litigates the issue by consent, the defense may be deemed properly raised.

Allied Machinery, Inc. v. Wilson,
673 S.W.2d 728, 730
(Ky. App. 1984) (an

injured employee “tried by consent” the “statutory employer” defense under the

Workman’s Compensation Act and, thus, employee waived argument that

defendants failed to plead the affirmative defense); see also Missionaries of Saint

John the Baptist, Inc. v. Frederic,
727 S.W.3d 400
, 411 (Ky. 2025) (church’s

defense that refusal to grant conditional use permit and setback variances would

violate Kentucky’s religious land use statute was tried by implied consent of the

parties, and thus, defense was preserved for appellate review); Smith v. Sushka,
117 F.3d 965, 969
(6th Cir. 1997) (“Failure to raise an affirmative defense by

responsive pleading does not always result in waiver. . . . The purpose of Rule 8(c)

of the Federal Rules of Civil Procedure is to give the opposing party notice of the

affirmative defense and a chance to respond.”).3

              The City plainly put Bailey on notice of its intent to pursue immunity



3
 We note that the Federal Rule of Civil Procedure 8(c) is nearly identical to Kentucky’s CR
8.03. Other internal citations have been omitted.

                                             -10-
from liability under the Recreational Use Statute. In its requests for admission, the

City asked Bailey to concede that, at the time of her fall, she was on the City’s

property “to attend and view a free concert that was open to the public” and was

not charged an admission fee to attend the Concert in the Park. R. at 78-79. The

City posed similar questions to Bailey during her deposition, including

confirmation that she was walking to Circus Square to attend the concert gratis. R.

at 90. And the Recreational Use Statute features prominently in the City’s motion

for summary judgment.

             Nonetheless, Bailey did not make an additional motion to amend her

Complaint and did not pursue additional discovery or notice any depositions. She

chose to oppose the City’s affirmative defense on the merits in her response to the

summary judgment motion, asserting that the Recreational Use Statute did not

apply. Importantly, she failed to raise any technical error under CR 8.03 either in

her written response to summary judgment or during the Circuit Court’s hearing on

the same. However, as discussed infra, she did argue that she should be given the

opportunity to pursue discovery and prove at trial that the City’s allegedly wanton

and malicious conduct precluded immunity pursuant to KRS 411.190(6). By

responding directly to the merits of statutory, recreational-use immunity, she

revealed her knowledge of the City’s pursuit of this defense and litigated it by

consent. “Almost all issues are subject to waiver, whether from inaction or


                                        -11-
consent, even in a criminal case, and ‘[a] new theory of error cannot be raised for

the first time on appeal.’” Commonwealth v. Steadman,
411 S.W.3d 717, 724
(Ky.

2013) (quoting Springer v. Commonwealth,
998 S.W.2d 439, 446
(Ky. 1999)).

             We pause here to recognize the now ubiquitous doctrine of palpable-

error review, which was first intended as a limited exception to the general rule

that unpreserved errors are not subject to review on appeal. The Kentucky

Supreme Court once described the exception as follows:

             [I]f a party has not preserved the question he is asking an
             appellate court to review, it can only be reviewed as
             palpable error on appeal, which requires a finding of
             manifest injustice to prevail. See CR 61.02. In other
             words, if the trial court has not been given a chance to
             rule, an appellate court will not reverse absent some
             extraordinary error. And even the scope of errors
             reviewable under that rule is limited, namely, to errors
             committed by the court, rather than pure omissions by the
             attorneys or litigants.

Fischer,
348 S.W.3d at 589
(Ky. 2011), as modified (Sep. 20, 2011), and

abrogated by Nami,
554 S.W.3d 323
(Ky. 2018). However, the interpretation of

CR 61.02 and its identical criminal law counterpart, RCr 10.26, has evolved to

include potential errors that a Trial Court may have passively overlooked without

the benefit of a party’s objection. To wit, our Supreme Court has stated “that the

avoidance of ‘manifest injustice’ arising from ‘palpable error’ is inherently a

responsibility of the trial court. . . . To qualify as ‘palpable error’ under either rule,

an error ‘must be easily perceptible, plain, obvious and readily noticeable.’” Nami

                                          -12-
Res.,
554 S.W.3d at 338
(quoting Brewer v. Commonwealth,
206 S.W.3d 343, 349
(Ky. 2006)). “Implicit in the concept of palpable error correction is that the error is

so obvious that the trial court was remiss in failing to act upon it sua sponte.”

Lamb v. Commonwealth,
510 S.W.3d 316, 325
(Ky. 2017). The analysis then turns

to “the ‘degree of prejudice’ that must be demonstrated in order for a [reviewing]

court to determine there is a ‘substantial possibility’ a different result would have

resulted but for the unpreserved error.” Johnson v. Commonwealth,
676 S.W.3d

405
, 417 (Ky. 2023) (holding that unpreserved error regarding unanimous jury

instruction was not palpable error and quoting Martin v. Commonwealth,
207

S.W.3d 1, 3
(Ky. 2006)). Under this line of authority, the Kentucky Supreme

Court fine-tuned its explanation of palpable error:

             The language “[a] substantial possibility does not exist
             that the result would have been different” is at best
             confusing, and it falls short of the required standard. A
             better understanding is gained from an examination of
             RCr 10.26 with emphasis on the concept of “manifest
             injustice.” While the language used is clear enough, we
             further explain that the required showing is probability of
             a different result or error so fundamental as to threaten a
             defendant’s entitlement to due process of law.

             ...

             To discover manifest injustice, a reviewing court must
             plumb the depths of the proceeding . . . to determine
             whether the defect in the proceeding was shocking or
             jurisprudentially intolerable.




                                         -13-
Martin,
207 S.W.3d at 3-4
(emphasis added) (quoting Graves v. Commonwealth,
17 S.W.3d 858, 864
(Ky. 2000)).

             The matter sub judice resolved by summary judgment and does not

present such a deep well of records and proceedings. Even imposing on the Circuit

Court the responsibility to identify all obvious errors before issuing summary

judgment, we conclude that its alleged neglect in identifying sua sponte that the

City had not pled recreational-use immunity in its Answer did not result in

manifest injustice. Even if the Circuit Court’s alleged oversight was a defect, it

falls far short of any intolerable or palpable error. Specifically, it is very unlikely

that the discovery of this alleged error would have led to a result more favorable to

Bailey.

             The City, having raised recreational-use immunity in a timely motion

for summary judgment following discovery, did not waive the defense by failing to

include it affirmatively in its Answer. Moreover, the City’s omission did not

prejudice Bailey. The record shows that Bailey received effective notice of the

affirmative defense during discovery prior to the motion for summary judgment,

and, thereafter, was given the opportunity to respond, of which she took advantage.

Thus, Bailey was not prejudiced. And certainly, no manifest injustice resulted

from the Circuit Court considering whether summary judgment was warranted.

Therefore, we find no palpable error.


                                          -14-
             We next review whether the Circuit Court properly issued summary

judgment based on the Recreational Use Statute, which shields landowners from

premises liability for negligence under certain conditions. To make a prima facie

claim for negligence, a plaintiff must establish that the defendant had a duty of care

to the plaintiff; the defendant breached that duty; and there is a causal connection

between the breach and the injury suffered by the plaintiff. Shelton,
413 S.W.3d at

906
. “If the plaintiff cannot prove the defendant owed her a duty of care, then the

defendant is entitled to judgment as a matter of law.” Bryant v. Jefferson Mall,
486 S.W.3d 310, 312
(Ky. App. 2015) (citations omitted); see also Mullins v.

Commonwealth Life Ins. Co.,
839 S.W.2d 245, 248
(Ky. 1992) (“The question of

duty presents an issue of law.”).

             Ordinarily, a landowner has a general duty to exercise reasonable

care; historically, the scope of that duty is determined according to the status of the

plaintiff as a trespasser, licensee, or invitee. Bryant,
486 S.W.3d at 312
. In more

recent cases, Kentucky Courts have considered “a plaintiff’s traditional status

along with other circumstances such as ‘foreseeability, the gravity of the potential

harm, and the possessor’s right to control his property to determine the extent of

the duty.”
Id.
(quoting Perry v. Williamson,
824 S.W.2d 869, 875
(Ky. 1992)); cf.

Hayes v. D.C.I. Props.-D KY, L.L.C.,
563 S.W.3d 619, 623
(Ky. 2018) (“We have




                                         -15-
not altered this basic ‘formula’ in negligence cases, specifically premises liability

cases[.]”).

              As explained by the Kentucky Supreme Court, “where a landowner

makes his or her land or water available at no charge to the public for recreational

purposes, KRS 411.190 supersedes this case law and limits the liability of the

landowner.” Bryant,
486 S.W.3d at 312
. Further, immunity from premises

liability under the Recreational Use Statute extends to employees and anyone

acting on behalf of the owner. Roach v. Hedges,
419 S.W.3d 46, 48
(Ky. App.

2013). KRS 411.190 provides in relevant part:

              (1) As used in this section:

                 (a) “Land” means land, rocks, boulders, cliffs, roads,
                 water, watercourses, pedestrian swinging bridges,
                 private ways and buildings, structures, and machinery
                 or equipment when attached to the realty;
                 (b) “Owner” means the possessor of a fee,
                 reversionary, or easement interest, a tenant, lessee,
                 occupant, local government that expends public funds
                 to maintain pedestrian swinging bridges that are
                 available for recreation and public enjoyment, or
                 person in control of the premises;

                 (c) “Recreational purpose” includes but is not limited
                 to any of the following, or any combination thereof:
                 hunting, fishing, swimming, boating, camping,
                 picnicking, hiking, rock climbing, bouldering,
                 rappelling, bicycling, horseback riding, pleasure
                 driving, nature study, water-skiing, winter sports, and
                 viewing or enjoying historical, archaeological, scenic,
                 or scientific sites; and


                                             -16-
      (d) “Charge” means the admission price or fee asked
      in return for invitation or permission to enter or go
      upon the land but does not include fees for general
      use permits issued by a government agency for access
      to public lands if the permits are valid for a period of
      not less than thirty (30) days.

(2) The purpose of this section is to encourage owners of
land to make land and water areas available to the public
for recreational purposes by limiting their liability toward
persons entering thereon for such purposes.

(3) Except as specifically recognized by or provided in
subsection (6) of this section, an owner of land owes no
duty of care to keep the premises safe for entry or use by
others for recreational purposes, or to give any warning
of a dangerous condition, use, structure, or activity on the
premises to persons entering for such purposes.

(4) Except as specifically recognized by or provided in
subsection (6) of this section, an owner of land who
either directly or indirectly invites or permits without
charge any person to use the property for recreation
purposes does not thereby:

        (a) Extend any assurance that the premises are safe
        for any purpose;
        (b) Confer upon the person the legal status of an
        invitee or licensee to whom a duty of care is owed;
        or

        (c) Assume responsibility for or incur liability for
        any injury to person or property caused by an act
        or omission of those persons.

...

(6) This section shall not limit in any way any liability
that otherwise exists:



                              -17-
                   (a) For willful or malicious failure to guard or
                   warn against a dangerous condition, use, structure,
                   or activity; or


                   (b) For injury suffered in any case where the
                   owner of land charges the person or persons who
                   enter or go on the land for the recreational use
                   thereof, except that in the case of land leased to the
                   state or a subdivision thereof, any consideration
                   received by the owner for the lease shall not be
                   deemed a charge within the meaning of this
                   section.

             Bailey does not dispute that the City owned the sidewalk on which she

was walking when she tripped and fell. She also admits that she was traveling on

the sidewalk in order to reach Circus Square Park and attend the Concert, which

was open and free to the public with no admission price or fee. However, Bailey

argues that the Recreational Use Statute does not apply because: (1) her fall did

not occur on the “land” where the concert was taking place; and (2) her walking to

the location of the concert was not itself engaged in for “a recreational purpose” as

defined by KRS 411.190(1)(c).

             “When interpreting a statute, the customary rules of statutory

construction require Kentucky courts ‘to ascertain and give effect to the intent of

the General Assembly.’” Bryant,
486 S.W.3d at 314
(quoting Virgin Mobile

U.S.A., L.P. v. Commonwealth ex rel. Commercial Mobile Radio Serv. Telecom.

Bd.,
448 S.W.3d 241, 246
(Ky. 2014)). We have consistently observed that the



                                        -18-
General Assembly, through the clear language of KRS 411.190, took a broad view

of the requirements for triggering recreational-use immunity. Coursey v. Westvaco

Corp.,
790 S.W.2d 229, 232
(Ky. 1990) (“The words of the statute are absolute and

unqualified. There is no duty to anyone.”). The statute’s codified purpose

encourages owners to make their land available to the public for recreation and to

limit owners’ liability accordingly. Roach,
419 S.W.3d at 47
(citing KRS

411.190(2)). And we have recognized that the statute defines both “land” and

“recreational purpose” broadly. Bryant,
486 S.W.3d at 314
(under KRS 411.190,

“land” does not exclude commercial buildings, and recreational activities include

“other activities in addition to those mentioned in the statutory text” such as “mall

walking.”); Collins v. Rocky Knob Associates, Inc.,
911 S.W.2d 608, 610
(Ky.

App. 1995) (a marina sublet from public land and operating a “commercial

venture” still fell “within the protective ambit of the Recreational Use Statute.”).

             We find Bailey’s claim that the sidewalk was not within the definition

of “land” meritless in light of clear precedent to the contrary. In Coursey, our

Supreme Court held that a landowner is not required to dedicate the property in

question for a public recreational purpose in order to be protected by KRS

411.190: “To require a formal dedication of the land would defeat the purpose of

the Act[.]”
790 S.W.2d at 232
. A prior panel of this Court held that KRS 411.190

bars a liability claim even in cases where “the injuries occurred off-premises in


                                         -19-
areas over which the ‘owner’ being sued has no ownership or control.” Poore v.

21st Century Parks, Inc.,
619 S.W.3d 409
, 421 (Ky. App. 2020). Prior caselaw has

also implemented a common-sense application of the types of activity that

constitute a “recreational purpose,” concluding that walking is one of the varied

recreational activities contemplated by the statute’s broad language. See, e.g.,

Bryant,
486 S.W.3d at 314
(walking for exercise in a mall during non-business

hours is a recreational activity); Page v. City of Louisville,
722 S.W.2d 60, 61
(Ky.

App. 1986) (walking in a park constituted a recreational purpose). Even though

the word “walking” is not used, “hiking” is; and more specifically, we have held

that the definition of “recreational purpose” encompasses a person’s travel to reach

a location for an intended recreational activity. Poore, 619 S.W.3d at 421

(“recreational purpose” includes using a park as the access point to launch a kayak

to reach a public waterway). Thus, Bailey’s claim that walking to the concert was

not an activity for a recreational purpose does not reasonably persuade. We find

that the Recreational Use Statute applies to Bailey’s walking on the sidewalk

adjacent to the Circus Square park, where she intended to attend a free concert that

was open to the public.

             Finally, Bailey argues that the Circuit Court should have given her an

opportunity to discover and prove to a jury whether, under KRS 411.190(6), the

City held the concert for commercial purposes and willfully or maliciously failed


                                        -20-
to warn her or guard her against the danger of the uneven sidewalk. While the City

bears the initial burden to prove that KRS 411.190 applies in the absence of any

genuine issue of fact, the burden then shifts to Bailey, as the party opposing

summary judgment, “to present ‘at least some affirmative evidence showing that

there is a genuine issue of material fact for trial.’” Hallahan v. Courier-Journal,
138 S.W.3d 699, 705
(Ky. App. 2004) (quoting Steelvest,
807 S.W.2d at 482
).

“The inquiry should be whether, from the evidence of record, facts exist which

would make it possible for the nonmoving party to prevail. In the analysis, the

focus should be on what is of record rather than what might be presented at trial.”

Welch v. American Publishing Co. of Kentucky,
3 S.W.3d 724, 730
(Ky. 1999); see

also Thornton v. Louisville Metro Government,
737 S.W.3d 796
, 798-99 (Ky. App.

2026).

             First, Bailey alleges that certain, commercial aspects of the concert

preclude the City’s immunity from liability. KRS 411.190(6)(b) provides that a

landowner is not relieved of liability “[f]or injury suffered in any case where the

owner of land charges the person or persons who enter or go on the land for the

recreational use thereof[.]” (Emphasis added.) Bailey attempts to extrapolate from

this exception a broader mixed-use or commercial-purposes exception, which she

purports has been applied in other jurisdictions with similar recreational use

statutes. In support of her argument, she states that: (1) “it was likely that she


                                         -21-
would have engaged in commerce (purchasing food and drink)”; (2) “a group of

merchants” sponsored the concert, and the City required that the sponsors purchase

liability insurance; and (3) the concert series “was big business [and] . . . brings in

people from ‘all around the area’ to downtown Bowling Green[.]” Appellant’s

Opening Brief at 15-16. Bailey asserts that the Circuit Court erred by refusing to

consider these “facts and inferences” in her favor before issuing summary

judgment.
Id.
However, none of the facts that Bailey presents, presuming them to be

true, as we are required to do for this type of review, overcome the purely legal

determination that KRS 411.190(6)(b) does not apply because the City did not

“charge” the public to enter the park or attend the concert.4 The legislative

language in Kentucky’s Recreational Use Statute could not be clearer as it

expressly states: “‘Charge’ means the admission price or fee asked in return for

invitation or permission to enter or go upon the land[.]” KRS 411.190(1)(d). We

must give statutes their ordinary and reasonable meaning. City of Lebanon v.

Goodin,
436 S.W.3d 505, 511-12
(Ky. 2014) (holding that clear and unambiguous

words in a statute should be given “their plain and commonly understood



4
 We are aware of our unpublished opinion in this regard, Dean v. Romaine, No. 2016-CA-
001785-MR,
2019 WL 103870
, *4 (Ky. App. Jan. 4, 2019), wherein we found that KRS
411.190(6)(b) did not apply to a free event at a park with no entry fee, even though concessions
were sold and an entertainment sponsor was promoted. Again, we cite to it pursuant to RAP
41(A), acknowledging that it is demonstrative and non-binding.

                                              -22-
meanings” and should not be construed otherwise). And, because the meaning of

“charge” is abundantly clear, we need not resort to extrinsic aids, such as authority

from other jurisdictions that interpret their own state statutes, which are both

inapplicable and unpersuasive. Shawnee Telecom Res., Inc. v. Brown,
354 S.W.3d

542, 551
(Ky. 2011) (“Only if the statute is ambiguous or otherwise frustrates a

plain reading, do we resort to extrinsic aids such as the statute’s legislative history;

the canons of construction; or, especially in the case of model or uniform statutes,

interpretations by other courts.”).

             Second, Bailey argues that the Circuit Court ignored evidence of the

City’s willful and/or malicious conduct. Specifically, she claims that the Sidewalk

Maintenance Policy and interactions with PCC, with whom the City had sought an

evaluation and then contracted to repair certain sidewalks, show “that the City was

made aware of numerous trip hazards on the sidewalk at issue well in advance of

her . . . fall.” Appellant’s Opening Brief at 19, 21. Bailey points to the passage of

one year between PCC’s identification of “1,453 hazardous uneven sidewalks in

the area surrounding Circus Square Park” and its contract with the City to make

certain repairs. Based on this lapse, Bailey argues that the City’s disregard made

“it likely that people would trip and suffer injury.” Id. at 21-22.

             Again, Bailey misinterprets the clear language of KRS 411.190(6)(a),

which provides that landowners are not relieved of liability “[f]or willful or


                                          -23-
malicious failure to guard or warn against a dangerous condition, use, structure, or

activity[.]” “‘[W]illful or malicious’ in the context of the Recreational Use Statute

has been interpreted to mean ‘indifference to the natural consequences of [one’s]

actions’ or ‘the entire want of care or great indifference to [another’s] safety.’”

Poore, 619 S.W.3d at 423 (quoting Huddleston by and through Lynch v. Hughes,
843 S.W.2d 901, 906
(Ky. App. 1992)). And our jurisprudence recognizes “an

important caveat in defining willful and malicious conduct.”
Id.
Specifically, in

Collins, we established the following distinction:

             [A] landowner’s actions . . . [may be] challenged under a
             theory that may be described as “affirmative” negligence,
             a term meaning the harm was caused by what the
             defendant did, but should not have done or should have
             done differently. By contrast, the situation before us
             involves a theory of “passive negligence,” where the
             harm was allegedly caused by what the defendant did not
             do, but should have done.

Collins,
911 S.W.2d at 611
. Accepting as true Bailey’s speculation that the City

“disregarded the risk of injury from trips,” this inaction evidences nothing other

than passive negligence; to wit, the City failed to or delayed in repairing the

sidewalks when it should have done so prior to her fall. Appellant’s Opening Brief

at 22. Consequently, Bailey produces neither a genuine issue of material fact

requiring consideration by a jury nor even a scintilla of evidence that she could

prevail at trial. The Circuit Court did not err in granting summary judgment.




                                         -24-
   IV.   Conclusion

             We find that Kentucky’s Recreational Use Statute, KRS 411.190: (1)

applies to Bailey’s injury resulting from her trip and fall while walking to attend a

free concert in a public park owned by the City of Bowling Green; and (2) shields

the City of Bowling Green and its Employees from liability for Bailey’s alleged

injury. Therefore, we affirm the Warren Circuit Court’s Order of summary

judgment as amended.

             ALL CONCUR.



BRIEFS FOR APPELLANT:                      BRIEF FOR APPELLEES:

Lauren E. Marley                           Matthew P. Cook
Bowling Green, Kentucky                    Bowling Green, Kentucky

Brenton D. Stanley
Louisville, Kentucky




                                         -25-