       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Thompson v. Breeding, et al.               No. 03-5247
   ELECTRONIC CITATION: 2003 FED App. 0433P (6th Cir.)
               File Name: 03a0433p.06                                        _________________
                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                          ARGUED: Jonathan Ray Spalding, Lebanon, Kentucky, for
             FOR THE SIXTH CIRCUIT                        Appellant. Timothy L. Edelen, BELL, ORR, AYERS &
               _________________                          MOORE, Bowling Green, Kentucky, for Appellees.
                                                          ON BRIEF: Jonathan Ray Spalding, Elmer J. George,
AVIS THOMPSON,                   X                        Lebanon, Kentucky, for Appellant. Timothy L. Edelen,
         Plaintiff-Appellant,     -                       BELL, ORR, AYERS & MOORE, Bowling Green,
                                  -                       Kentucky, for Appellees.
                                  -   No. 03-5247
           v.                     -                                          _________________
                                   >
                                  ,                                              OPINION
TOMMY and ELIZABETH               -                                          _________________
BREEDING ,                        -
                  Defendants, -                             BOYCE F. MARTIN, JR., Circuit Judge. Avis Thompson
                                  -                       appeals the magistrate’s grant of summary judgment in favor
JAMES KNIFLEY and JIMMIE          -                       of James Knifley and Jimmie Knifley Realty Co., Inc., on
                                  -                       various claims for damages arising out of a failed real estate
KNIFLEY REALTY CO ., INC.,
                                  -                       sale. Two issues are presented in this appeal. The first is
         Defendants-Appellees. -                          whether the magistrate correctly determined that Thompson
                                 N                        has no right of action against Knifley or Knifley Realty for
       Appeal from the United States District Court       damages caused by their alleged violations of section 330.110
 for the Western District of Kentucky at Bowling Green.   of the Kentucky Revised Statutes. The second is whether
  No. 00-00140—E. Robert Goebel, Magistrate Judge.        Thompson’s negligence claim was properly dismissed on
                                                          summary judgment. While we disagree with the magistrate’s
             Argued: September 30, 2003                   reasoning as to the first issue, we find that his ultimate
                                                          conclusions were correct as to both issues and, therefore, we
        Decided and Filed: December 8, 2003               affirm.

Before: MARTIN, MOORE, and CLAY, Circuit Judges.                                        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

                           1
No. 03-5247                Thompson v. Breeding, et al.        3    4       Thompson v. Breeding, et al.                       No. 03-5247

available for sale. One of those properties belonged to             this damage contributed to her ultimate decision not to close
Tommy and Elizabeth Breeding and was scheduled to be                on the property.1
auctioned on Saturday, May 20, at an auction conducted by
Knifley himself. Thompson attended the auction, which was             Unable to complete the sales transaction with Thompson,
held at the Breedings’ home, and decided to bid on the              the Breedings hired Knifley to conduct a second auction of
property. Her $136,000 bid prevailed and she agreed to pay          the property on August 12. The high bid at the second
an advertised ten percent buyer’s commission, bringing the          auction was $150,200 – $14,200 more than Thompson’s high
total purchase price to $149,600.                                   bid. With the ten percent buyer’s commission, the total
                                                                    purchase price amounted to $165,020 – $15,420 more than
   A few hours after the auction had ended, Thompson                the total purchase price Thompson had agreed to pay.
returned to the property with a friend in order to measure
rooms in the home. The Breedings’ son had given Thompson              Thompson filed a complaint against Knifley, Knifley
a garage door opener earlier in the day to allow access to the      Realty and Tommy and Elizabeth Breeding, alleging
house, but apparently the garage door was already open when         violations of section 330.110(10) and (11) of the Kentucky
she arrived. Thompson entered through the garage and                Revised Statutes, as well as claims for negligence and breach
noticed a large wet and slimy patch on the garage floor, which      of contract. The district court had diversity jurisdiction
she walked around on her way into the house. From a back            pursuant to 28 U.S.C. § 1332 and the parties consented to try
window, she observed three young men in the yard carrying           the matter before a magistrate. The magistrate granted
items that she surmised were stolen from the property.              summary judgment in favor of the defendants on all claims,
Thompson quickly walked back through the garage toward              holding that (1) Thompson had no right of action against any
the outside so that she could confront them, and in doing so        of the defendants for damages caused by their alleged
caught her left foot on a garden hose lying on the garage           violations of section 330.110; (2) Thompson could not prevail
floor, causing her right foot to land on the wet spot and slip      on her negligence claim because none of the defendants owed
out from under her. Thompson fell and sustained injuries. In        her a duty in light of the open and obvious nature of the
her deposition, Thompson admitted that she was aware of the         hazard that caused her injury; and (3) it was Thompson, not
wet spot before she stepped in it and, in fact, that the wet spot   the defendants, who had breached the contract for sale.
“was obvious . . . to anyone who was looking.”                      Thompson subsequently settled her dispute with the
                                                                    Breedings, but she appealed the magistrate’s rulings with
  A few days after the auction, a storm damaged the property,       respect to her section 330.110 and negligence claims against
blowing down at least two trees and damaging several others.        Knifley and Knifley Realty.
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,            1
                                                                          Thompson 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.
No. 03-5247               Thompson v. Breeding, et al.       5    6      Thompson v. Breeding, et al.                No. 03-5247

                              II.                                   Thompson argues that section 446.070 of the Kentucky
                                                                  Revised Statutes provides a mechanism that allows her to sue
  We review de novo a district court’s grant of summary           Knifley and Knifley Realty for their alleged violations of
judgment. Johnson v. City of Cincinnati, 310 F.3d 484, 490        section 330.110. Section 446.070 provides:
(6th Cir. 2002). Summary judgment should be granted when
“the pleadings, depositions, answers to interrogatories, and          A person injured by the violation of any statute may
admissions on file, together with the affidavits, if any, show        recover from the offender such damages as he sustained
that there is no genuine issue as to any material fact and that       by reason of the violation, although a penalty or
the moving party is entitled to a judgment as a matter of law.”       forfeiture is imposed for such violation.
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      Knifley and Knifley Realty argue, and the magistrate held,
Kentucky. Gahafer v. Ford Motor Co., 328 F.3d 859, 861            that section 330.110 is a “regulatory” statute for which there
(6th Cir. 2003).                                                  is no private right of action. For that proposition they rely
                                                                  exclusively upon Lewis v. Charolais Corporation, 19 S.W.3d
                              A.                                  671, 674 (Ky. App. 2000), in which the Kentucky Court of
                                                                  Appeals held that no private right of action existed for
   The first issue is whether Thompson has a right of action      violation of chapter 151 of the Kentucky Revised Statutes
against Knifley and Knifley Realty for damages caused by          because that chapter was “regulatory in nature.”
their alleged violations of section 330.110 of the Kentucky
Revised Statutes. Section 330.110 was passed as part of the          While the magistrate’s ultimate conclusion was correct, the
Auctioneers License Law of 1962, which is now codified as         rationale that he employed in reaching that conclusion is
chapter 330 of the Kentucky Revised Statutes. See KRS             flawed. The issue is not, as the magistrate assumed, whether
§ 330.010. Auctioneers and auction house operators must be        chapter 330 is “regulatory” in nature, but rather whether
licensed by the state of Kentucky and must abide by the           section 446.070 affords a private right of action for damages
requirements set forth in chapter 330. Section 330.110            caused by a violation of chapter 330. Therefore, the
prohibits licensees from engaging in various types of conduct     magistrate’s reliance upon Lewis is misplaced, as that case
and provides for penalties in the event of a violation.           never even cites section 446.070.
Thompson alleges that Knifley and Knifley Realty violated
section 330.110(10) and (11) through various misdeeds               Nevertheless, our review leads us to the conclusion that
associated with the auction of the Breedings’ property.           Thompson has no right of action against Knifley or Knifley
Subsections (10) and (11) prohibit licensees from engaging in     Realty for damages caused by their alleged violations of
conduct “which demonstrates bad faith, dishonesty,                section 330.110. Section 446.070 “was passed to remove any
incompetency, or untruthfulness,” or “[a]ny other conduct that    doubt that might arise as to the right of a person for whose
constitutes improper, fraudulent, dishonest, or negligent         protection a statute was passed to recover for a violation of
dealings,” respectively. Because we find that Thompson has        that statute, where the statute was penal in its nature, or where
no right of action for damages caused by these alleged            by its terms the statute did not prescribe a remedy for its
violations, we need not address the substance of her              enforcement of violation.” Hackney v. Fordson Coal Co., 19
allegations.                                                      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.
No. 03-5247                Thompson v. Breeding, et al.       7    8       Thompson v. Breeding, et al.                        No. 03-5247

v. Reker, 100 S.W.3d 756, 762-63 (Ky. 2003); State Farm            licensee fails to do so, id. at § 330.192(2)(a).2 This is the type
Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 117-18 (Ky.         of statutory remedy that precludes the operation of section
1988); Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985).             446.070. Because chapter 330 both “declares the unlawful act
However, “[w]here the statute both declares the unlawful act       and specifies the civil remedy available to the aggrieved
and specifies the civil remedy available to the aggrieved          party,” Grzyb, 700 S.W.2d at 401, section 446.070 provides
party, the aggrieved party is limited to the remedy provided       no private right of action to Thompson. Accordingly,
by the statute,” Grzyb, 700 S.W.2d at 401, and may not sue         summary judgment in favor the defendants was proper.
under section 446.070.
                                                                                                        B.
   The Kentucky Supreme Court has carefully limited the
applicability of section 446.070 to situations where the statute      The second issue is whether the magistrate erred in granting
that was allegedly violated provides no remedy for the             summary judgment for Knifley and Knifley Realty on
aggrieved party. Compare Travelers, 100 S.W.3d at 762-63           Thompson’s negligence claim. The magistrate held that the
(section 446.070 inapplicable where the Workers’                   open and obvious nature of the wet spot precluded Thompson
Compensation Act provides remedies for violations of               from demonstrating that any of the defendants owed her a
workers’ compensation statutes), and Grzyb, 700 S.W.2d at          duty with respect to that hazard. We agree. There can be no
401 (section 446.070 inapplicable where Chapter 334 of the         negligence in the absence of a duty on the part of a defendant
Kentucky Revised Statutes provides the remedy of filing a          and, under Kentucky law, no duty arises with respect to
complaint with the Kentucky Commission on Human Rights),           hazards that are open and obvious. PNC Bank v. Green, 30
with State Farm, 763 S.W.2d at 118 (section 446.070                S.W.3d 185, 186 (Ky. 2000); Rogers v. Prof’l Golfers Ass’n,
provides right of action because the Unfair Claims Settlement      28 S.W.3d 869, 872-73 (Ky. App. 2000). Thompson
Practices Act contains no remedy for the aggrieved party).         admitted in her deposition that the wet spot “was obvious . . .
These principles are consistent with the general rule of           to anyone who was looking.” This admission is sufficient to
statutory construction that “as between legislation of a broad     defeat her negligence claim. See Corbin Motor Lodge v.
and general nature on the one hand, and legislation dealing        Combs, 740 S.W.2d 944, 946 (Ky. 1987) (granting summary
minutely with a specific matter on the other hand – the            judgment for defendant where plaintiff admitted that he knew
specific shall prevail over the general.” City of Bowling          the sidewalk on which he slipped was “slick”); Rogers, 28
Green v. Bd. of Educ., 443 S.W.2d 243, 247 (Ky. App. 1969).        S.W.3d at 873-74 (granting summary judgment for defendant
                                                                   where the slippery golf course hillside on which plaintiff
  Chapter 330 provides that complaints against licensed            slipped was open and obvious as a matter of law).
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
                                                                       2
                                                                          Thompson 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 w ithin the six (6 ) month period shall bar the claim.”).
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.
