NOT TO BE PUBLISHED

OPINION

ACREE, CHIEF JUDGE.

Appellants, The Estate of Angela Dawn Whitaker, by and through Christy King, Administratrix; and Kevin Ousley, appeal the Floyd Circuit Court's August 25, 2011 order dismissing their negligence claim against Appellee Miller Brothers Coal, LLC, for lack of a duty owed. The issue before us is whether the circuit court erred in classifying Appellants as trespassers, as opposed to licensees and, as a result, determined Miller Brothers owed them no duty of care under the circumstances. Finding no error, we affirm.

I. Facts and Procedure

In January 2007, Miller Brothers entered into a mining agreement with Black Diamond Mining Company, LLC, authorizing Miller Brothers to operate various surface mines in Floyd County, Kentucky. The Agreement also required Miller Brothers to construct and maintain access roads needed for mining operations. In March 2008, Miller Brothers was operating two different surface mining operations: the "Black Diamond" mine and the "Buckeye" mine. Both mines were located on a mountain near David, Kentucky (David Mountain).

On March 1, 2008, Angela Whitaker, Kevin Ousley, and Joe Poe attended a gathering at a cabin-like structure near the top of David Mountain, on property not leased by Miller Brothers. To reach the gathering, the trio drove along public road "404" and then turned onto a "little dirt road"; they did not enter or cross any mine property on their way to the gathering.

While at the gathering, Whitaker, Ousley, and Poe consumed alcohol. After socializing for several hours, Whitaker became ill, so they decided to return home. Poe agreed to drive; no one fastened his or her seatbelt.

Upon leaving, they took a different route down the mountain. They traveled down a private haul road on Miller Brothers' property. The haul road was located between the Buckeye and Black Diamond mine sites. Miller Brothers constructed the haul road in the summer of 2007 to gain access to the Buckeye mine. No-trespassing signs were posted along the haul road in both directions.

After traveling down the haul road, the trio turned onto Triple S Road, a public street, and, shortly thereafter, observed a police officer had detained another vehicle close to Whitaker's home. To evade police detection, Poe turned the vehicle around, went back in the opposite direction on Triple S Road, and then turned back onto the haul road. Poe drove approximately a mile and a half up the haul road, and stopped the vehicle. After waiting five to ten minutes, Poe drove back down the haul road toward Triple S Road, attempting again to reach Whitaker's home. As they travelled along the haul road, Poe failed to negotiate a curve causing the vehicle to go over a berm, flip over, and come to rest at the bottom of a steep hill. All three occupants were ejected from the vehicle. Whitaker was pronounced dead at the scene; Ousley and Poe suffered injuries.

In April 2008, Appellants filed suit against Miller Brothers claiming it was negligent in constructing and maintaining the haul road and, particularly, the berm that paralleled the haul road. Following three years of discovery, Miller Brothers moved for summary judgment asserting that, because Whitaker and Ousley were trespassers when the accident occurred, Miller Brothers owed them no duty of care and, if the circuit court found otherwise, the record is void of any evidence that Miller Brothers breached its duty. The Appellants opposed the motion. On August 25, 2011, the circuit court granted Miller Brothers' motion without explanation and dismissed Appellants' claim. This appeal followed.

II. Standard of Review

The circuit court's decision to grant summary judgment is reviewed de novo. Harstad v. Whiteman, 338 S.W.3d 804, 809 (Ky. App. 2011). In reviewing a circuit court's grant of a summary judgment motion, we must ascertain "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03.

III. Analysis

Appellants claim the circuit court committed reversible error when it sustained Miller Brothers' summary judgment motion. They assert the circuit court erred in failing to comprehend the existence of a question of fact, i.e., whether they were trespassers or licensees at the time of the accident. Because a genuine issue of material fact exists, Appellants maintain, summary judgment was improper. We are not persuaded by this argument.

"To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff's damages." Lee v. Farmer's Rural Elec. Co-op. Corp., 245 S.W.3d 209, 211-12 (Ky. App. 2007). "While general negligence law requires the existence of a duty, premises liability law supplies the nature and scope of that duty when dealing with . . . injuries on realty." Lewis v. B & R Corp., 56 S.W.3d 432, 437-38 (Ky. App. 2001). To that end, "[t]he status of the person coming onto the land determines the degree of care required by the land possessor" and, in turn, the duty owed. Miracle v. Wal-Mart Stores East, LP, 659 F.Supp.2d 821, 825 (E.D. Ky. 2009).

Kentucky classifies a visitor upon property as one of the following: trespasser, licensee, or invitee. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A person who comes upon the property without any legal right to do so is a trespasser. Hardin v. Harris, 507 S.W.2d 172, 174-75 (Ky. 1974). A person who comes on the land with the possessor's consent is a licensee. Id. A person with business dealings with the possessor who comes on the property is an invitee. Id.

Neither party claims Whitaker and Ousley were invitees. Instead, the debate centers on whether they were trespassers or licensees. Appellants contend they were gratuitous licensees because, while they did not have express permission from Miller Brothers to access its land, Miller Brothers "gave tacit permission to the public to access mine property." (Appellants' Brief at 4).

In response, Miller Brothers argue that Appellants were not licensees but, instead, were trespassers because they entered Miller Brothers' property without authority or permission to do so. Consequently, pursuant to KRS1 381.232, Miller Brothers maintains it is only liable for injuries that it intended to cause Appellants and, as the record is void of any evidence that it intentionally injured the Appellants, summary judgment was proper.

A "licensee" enters land owned by another with the owner or occupant's express permission or implied acquiescence, and solely for the "licensee's own business, pleasure, or convenience." Scuddy Coal Co., Inc. v. Couch, 274 S.W.2d 388, 390 (Ky. 1955). "If an owner acquiesces to a particular use of his property, such acquiescence is tantamount to the owner's implied consent for the person to use the property." Kirschner by Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840, 849 (Ky. 1988) (Leibson, J., dissenting).

Bradford v. Clifton, 379 S.W.2d 249, 250 (Ky. 1964); Louisville & N.R. Co. v. Blevins, 293 S.W.2d 246, 249 (Ky. 1956) ("The customary and habitual use by the public without manifested objection [by the owner or occupier] justifies such assent and such belief in the privilege, and this constitutes one a gratuitous licensee." (citation omitted)). In sum, a person is a licensee if the person (i) habitually or customarily used property owned by another for a particular purpose consistent with the licensee's pleasure or convenience, and (ii) the property's owner or occupant (a) knew about such habitual use or custom, and (b) failed to object to that use.2

Appellants argue the public's longstanding and frequent use of Miller Brothers' property for recreation, and ingress and egress to David Mountain indicates Miller Brothers consented to such use and thereby created a license for Whitaker, Ousley, and Poe to use its property for that purpose on the night of the accident. In support of their position, Appellants point to deposition testimony that local residents used David Mountain to hunt, ride all terrain vehicles, camp, and ride horses. One such resident, Otis Ousley, Jr., testified in his deposition that "anybody could travel [the road where the accident took place] that wanted to." Another resident, Kasey Ousley, testified in her deposition that she had frequently accessed Miller Brothers' mining property via both horseback and vehicle, including the haul road where the accident occurred.

Appellants further claim Miller Brothers knew the public was using its property for recreational purposes and failed to object. In support, Appellants rely on Kasey's deposition testimony that, on several occasions, she accessed Miller Brothers' property and, while there, she encountered security personnel but the guards did not prevent her from accessing the land. Instead, Kasey claimed, the guards simply waved at her in a friendly manner. Because the public customarily and habitually used the mine property and David Mountain, and Miller Brothers both knew about the use and failed to object, Appellants maintain they were gratuitous licensees and Miller Brothers owed them a greater duty than that owed a trespasser.

Conversely, Miller Brothers advocates it did not know the public was using its property and, specifically, did not know the public accessed the haul road where the accident occurred. In support, Miller Brothers points to its former Vice-President of Operations, Samuel Maggard's, deposition testimony:

Further, Miller Brothers maintains it clearly and unequivocally objected to the public accessing its property by installing "no trespassing" signs in both directions along the haul roads used for the Buckeye and Black Diamond surface mines. Along with the no-trespassing signs, Miller Brothers also installed signs stating: "No 4 Wheelers or ATV's," "No Unauthorized Person Beyond This Point," and "All Visitors Report to Mine Office."

Based on the foregoing, we agree with Appellants that a genuine issue of material fact exists concerning whether the public habitually and customarily used Miller Brothers' property for their own pleasure and/or convenience, and whether Miller Brothers had knowledge of such use. However, we do not perceive a genuine issue of material fact as to whether Miller Brothers failed to object to the public's use of its property because the no-trespassing installed by Miller Brothers constitute a clear and unequivocal expression of Miller Brothers' objection to past and future trespassers. The no-trespassing and accompanying signs plainly provided notice to anyone near, on, or about the property that it was Miller Brothers' private property, and not accessible for public use or enjoyment. In the absence of express permission to the contrary, we find the no-trespassing signs negated Miller Brothers' alleged implied consent for the public to enter its property.3

"The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present" evidence establishing a triable issue of material fact. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). That is, "[t]he party opposing a properly presented summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial." City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). In light of Miller Brothers' evidence that it objected to public use of its land by installing no-trespassing and other relevant signs around its properly, including at both ends of the haul road, the burden shifted to Appellants to produce affirmative evidence sufficient to demonstrate a genuine issue of material fact concerning whether Miller Brothers had, in fact, objected to the public's use of its property for non-mining purposes.

The only evidence presented by Appellants relevant to this inquiry was that, prior to the accident, security personnel hired by Miller Brothers saw Kasey Ousley on Miller Brothers' land and yet failed to remove her from the property; instead, the guards waved at Kasey in a friendly manner. The evidence cited by Appellants is insufficient to create a jury question concerning whether the Miller Brothers failed to object to the public's recreational use of its land. Viewing the evidence in a light most favorable to Appellants, and assuming that the security guards retained authority to waive Miller Brothers' objection to trespassers, that waiver would only be applicable to Kasey Ousley on specific occasion(s) that did not include the date of the accident. Stated differently, a security guard's decision to permit one person access to Miller Brothers' property, despite the posting of no-trespassing signs, did not render the no-trespassing signs forever null and void.

We conclude that Appellants failed to establish they were gratuitous licensees. Instead, based upon admissions made by Ousley in his deposition, we find Appellants to be trespassers. KRS 381.231(1) defines a trespasser as "any person who enters or goes upon the real estate of another without any right, lawful authority or invitation[.]" During Ousley's deposition, the following exchange occurred:

Our analysis, however, is not complete. Pursuant to KRS 381.232, "[t]he owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner." In interpreting KRS 381.232, our Supreme Court has construed the phrase "injuries which are intentionally inflicted" to mean injuries inflicted by "willful, wanton, or reckless conduct." Kirschner, 743 S.W.2d at 842 (citation omitted). That is to say, "the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences[.]" Id. at 843 (citation omitted). Likewise, an owner or occupant owes no duty to a "trespasser to keep the premises safe for [the trespasser's] use, but [the owner or occupier] must refrain from inflicting or exposing him to wanton or willful injury or from setting a trap for him." Id. at 844 (citation omitted). Thereafter, in List v. Southern Ry. Co., 752 S.W.2d 791 (Ky. App. 1988), this Court concluded, "[u]nder both [KRS 381.232] and the common law applicable to trespassers, one has a duty to use ordinary care to prevent harm to one known to be in danger." Id. at 792 (citation omitted; emphasis in original).

Here, the record is devoid of any evidence that Miller Brothers intentionally injured or set a trap for the Appellants, or that Miller Brothers knew the Appellants were on the haul road on the evening of March 1, 2008. In the absence of such evidence, summary judgment was proper.

IV. Conclusion

The Floyd Circuit Court's August 25, 2011 order granting summary judgment in Miller Brothers' favor is affirmed.

ALL CONCUR.