Tuesday, January 27, 2015

Suit Against Property Owner Dismissed When Not Filed Within Statute of Limitations

Suit Against Property Owner Dismissed When
Not Filed Within Statute of Limitations


            Earlier this month the Kentucky Court of Appeals affirmed a trial court ruling dismissing various claims arising out of a slip and fall. What is most telling about this suit is that the plaintiff (or at least her attorney) knew who the landowner was, but failed to bring suit against them within the statute of limitations.  Vickie Landell v. The Kroger Company, No. 2013-CA-001637-MR (Ky. App. Jan. 16, 2015)

            Landel fell in the parking lot of the Northbridge Shopping Center in Russell Springs, Kentucky; that happened on March 10, 2011.  On November 2 of that year she filed suit against Kroger.  On November 11 (nine days after the complaint was filed and still 4 months before the statute of limitations would run), Kroger sent Landel written notice that Northridge Shopping Center was the owner of and the party responsible for maintaining the parking lot; Kroger even provided her a copy of the lease agreement “that identified Northridge as the landlord responsible for the common area, which includes the parking lot, of the shopping center.”  Slip op. at 2.

            On March 21, 2012, eleven days after the one-year statute of limitations had run, Landel sought to amend her complaint to add Northridge as a defendant. Landel responded on the basis that the amendment was too late.

            Northridge was dismissed from the suit in November, 2012.  Thereafter Kroger sought and was ultimately awarded dismissal of the suit on the basis that it was not Kroger’s responsibility to maintain the parking lot.  Landel then appealed.

            As to the effort to amend the complaint after the statute of limitations had run to add the Northbridge Shopping Center, the Court of Appeals began by noting that the applicable statute of limitations is one year (see KRS  § 413.140(1)).  Landels efforts to have the statute of limitations tolled were rejected as there was no fraudulent concealment or misrepresentation of the responsible party. Rather, that “information was known to Landel roughly four months prior to the expiration of the statute of limitations.”  Slip op. at 7.

            As for the dismissal of Kroger (Landel’s apparent destination at the shopping center), as it was the landlord who undertook the obligation to maintain the parking lot, Kroger could not have breached a duty to Landel as to its condition.  Hence there could be no breach of a duty by Kroger.  There being no duty to breach there could be no negligence, and on that basis the dismissal of Kroger from the suit was upheld.


Another blog, reviewing this decision, raises the question of whether the statute of limitations for slip and falls should be extended from beyond one year, noting how in this case the plaintiff was unable to identify the responsible party.  HERE IS A LINK TOTHAT BLOG POSTING.  I do not think that is the case, and in fact would argue that this decision supports the existing one-year statute of limitations.

Within the specifics of this case, some four months before the statute of limitations ran, counsel for the plaintiff was advised in writing as to the name of the responsible landlord and provided a copy of the lease. Why they did not promptly amend the complaint based on that information is a mystery.  Regardless, this case does not highlight the difficulty of a plaintiff identifying the responsible party; they were given that information.

Further, in the case of a slip and fall accident, the location is always known.  It is always possible to check the county land records to determine who is the owner of the property. Those records will provide at minimum the identity of the party who can advise as to the identity of the responsible party.

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