PAMELA BAILEY APPELLANT v. 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 (2026)

OPINION AFFIRMING

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 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. 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, 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 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 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 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 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 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 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 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 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.

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.

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 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

(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:

(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 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 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 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 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 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 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.

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.

FOOTNOTES

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.   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.

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.

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.

ECKERLE, JUDGE:

ALL CONCUR.