GLADYS LAUGHLIN v. JAMES E. LAMKIN AND PAUL LAUGHLIN v. JAMES E. LAMKIN
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September 18, 1998; 2:00 p.m.
TO BE PUBLISHED
NO. 1996-CA-002374-MR
GLADYS LAUGHLIN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 95-CI-005691
JAMES E. LAMKIN
and
APPELLEE
NO. 1996-CA-002462-MR
PAUL LAUGHLIN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 95-CI-005691
JAMES E. LAMKIN
APPELLEE
OPINION
REVERSING AND REMANDING
* * * * * * *
BEFORE: BUCKINGHAM, GUIDUGLI, and JOHNSON, Judges.
JOHNSON, JUDGE:
Gladys Laughlin (Gladys) and her husband, Paul
Laughlin (Paul) (collectively, the Laughlins), have each appealed
from the judgment of the Jefferson Circuit Court entered on June
25, 1996, that followed the jury's verdict on Gladys' claim for
damages incurred in an automobile accident the Laughlins allege
was solely caused by the appellee, James E. Lamkin (Lamkin).
reverse and remand for a new trial on damages only.
We
The events that led to the lawsuit occurred on August
25, 1995.
The Laughlins were proceeding west on Outer Loop Road
(the Outer Loop) in Jefferson County, Kentucky, when their
vehicle collided with a pick-up truck operated by Lamkin.
At the
location of the accident, the Outer Loop is a five lane highway
with two lanes for eastbound traffic and two lanes for westbound
traffic, and a neutral, turn lane in the middle.
The Laughlins
told the jury that immediately prior to the accident, Paul was
driving west in the inner, or left lane, at a speed less than the
45-mile-per-hour speed limit.
As their car approached Knobview
Shopping Center on their right, they noticed that the cars in the
right lane were slowed or stopped.
They testified that without
any warning Lamkin pulled out of the shopping center in front of
a stopped car in the right lane to turn left and hit the right
front side of their car.
Paul stated he had no opportunity to
avoid colliding with Lamkin.
Lamkin and his passenger, Tim Anderson (Anderson),
presented a vastly different version of the accident.
They both
testified that when they exited the shopping center, the traffic
was stopped in both westbound lanes because of a stop light
further west at the intersection of the Outer Loop with Old
Shepherdsville Road.
They claimed the drivers of the vehicles in
both westbound lanes to Lamkin's left had stopped to leave enough
room to enable him to exit the shopping center and turn left.
Lamkin, Anderson, and a third witness, Raymond Beckwith, who
observed the accident 25 to 30 feet above the road's surface on a
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nearby utility pole, told the jury that Paul was not driving in
the left westbound lane, but was using the middle turn lane as a
westbound driving lane.
Lamkin acknowledged that a truck,
positioned in the left lane, obscured his vision so that he could
not see whether any vehicles were in the middle lane.
He
testified that he was cautiously driving past the stopped
vehicles at about two miles per hour and did not see the Laughlin
vehicle in the turn lane until it was too late to avoid a
collision.
The right front portion of his pick-up truck hit the
right front fender of the Laughlin vehicle.
Gladys, who was not wearing a seat belt, sustained a
cut to the side of her head near her right temple.
She was
transported to a hospital by ambulance where she was treated and
released that same day.
Although the cut to her head healed
within a few days, she alleged that she had developed acute
myofascial pain syndrome as a result of the injury and at the
time of trial still suffered from chronic pain on the right side
of her head, in her right eye and neck, and from depression.
Her
expert witness and treating physician, Dr. Terry Davis (Dr.
Davis), testified that Gladys' pain syndrome and depression were
caused by the accident and/or the injuries sustained in the
accident.
He also stated that her long-term prognosis was good
and that 90% of patients with the syndrome did well with
continued treatment.
In his deposition, taken in April 1996, the
doctor opined that Gladys would need treatment for another year
and a half.
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Gladys filed her complaint against Lamkin on October
11, 1995.
On March 14, 1996, Lamkin filed a third-party
complaint in which he alleged that Paul was negligent in the
operation of his vehicle.
1996.
The matter was tried by jury in June
Prior to trial, Gladys moved in limine to prohibit Lamkin
from mentioning her failure to wear a seat belt on the basis that
there was no competent evidence that her failure to wear a seat
restraint was a substantial factor in contributing to her injury.
The motion was denied.
The jury found that both Lamkin and Paul were negligent
in operating their vehicles, and that their negligence was a
substantial factor in causing the accident.
The jury also found
that Gladys' failure to wear a seat belt was a substantial factor
in causing her injuries.
It apportioned 60% of the causation of
Gladys’ injuries to Lamkin, 25% to Paul and 15% to Gladys.
The
jury then awarded Gladys $4,594.52, the total amount she claimed
in medical expenses attributable to the accident, including the
hospital bill and Dr. Davis' bills.
The jury made no award for
pain and suffering.1
A judgment in accordance with the jury’s findings was
entered on June 25, 1996.
However, because Gladys' medical
expenses were less than the amount of basic reparations benefits,
she did not receive a monetary award.
1
Further, a judgment was
Gladys, a housewife, made no claim for lost wages or for the
permanent impairment of her ability to earn money. Even though
Dr. Davis testified that she would need continued medical
treatment, Gladys also did not seek any sum for future medical
expenses.
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entered in favor of Lamkin on his third-party complaint against
Paul.
Again, the judgment did not involve the recovery of money
damages.
Gladys' motion for a judgment notwithstanding the
verdict and/or a new trial, and Paul's motion to alter or amend
the judgment were denied on August 1, 1996, except the judgment
was amended to award Gladys her costs from Lamkin.
Both Gladys
and Paul have appealed from the final judgment.
In her appeal, Gladys argues that she is entitled to a
new trial because the trial court erred (1) in allowing the jury
to apportion fault against her and (2) in not granting her motion
for a new trial based on the jury's failure to award any sum for
her pain and suffering.
We agree that these errors by the trial
court require reversal of the judgment and a new trial on the
issue of damages.
There is no question, as Lamkin argues, that at the
time of the accident there was a Jefferson County ordinance which
mandated that drivers and occupants of vehicles wear a "properly
adjusted and fastened safety belt . . . ."
Traffic Code, § 71.61.
Clearly, failure to comply with an
ordinance amounts to negligence per se.
S.W.2d 296 (1971).
Jefferson County
Newman v. Lee, Ky., 471
However, it was incumbent upon Lamkin to
present evidence from which the jury could determine, without
resorting to speculation, that Gladys' failure to comply with the
ordinance caused or enhanced her injuries.
See Britton v.
Wooten, Ky., 817 S.W.2d 443, 447 (1991), and Peak v. Barlow
Homes, Inc., Ky. App., 765 S.W.2d 577 (1988).
-5-
Lamkin did not
call an expert witness to testify for this purpose.
Instead, he
attempted to establish the causative nexus by using the crossexamination testimony of Dr. Davis, who specializes in pain
management.
The relevant testimony is as follows:2
Q. Now, Ms. Laughlin has said she
wasn't wearing her belts at the time of
this motor vehicle accident. And she
also says that when the impact occurred
her body was slammed against something
in the car, which she can't identify,
and then she bumped her head in that
process. Isn't it less likely that she
would have done so had she been fully
belted?
A. That depends on the direction of
the collision.
Q. If it's at the right front corner
of the automobile?
A. It depends on whether it was an
anterior or whether it was a lateral
impact. The lateral impact, it could
very well have slammed the side of her
head into the side post of the car and
had the same injury whether she had a
belt on or not. If you're supposing,
which I -- which I assume you're doing.
Q. Well, I'm hypothecating that if
she had been restrained, wouldn't it be
less likely she would be slammed into
anything in this accident?
A.
true.
No, I don't think -- that's not
Q. Well, we have established that
the belts tend to restrain the body from
banging around in the automobile and to
keep it in the seat?
A.
Yes.
2
Interestingly, this testimony was elicited by Paul's attorney,
not by Lamkin's.
-6-
Q.
Which is the idea?
A.
Right.
Q. And if she had had her belts on
wouldn't she have been more likely to
have been restrained and stayed in the
seat than moving around striking things
in the car?
A.
Yes, I agree with that.
Lamkin insists that this testimony, particularly Dr.
Davis' response to the last question recited above, was
sufficient to allow the jury to determine that Gladys' failure to
wear a seat belt was a substantial factor in causing her
injuries.
It is our opinion, however, that the doctor's general
statements about the benefits attributable to the use of seat
belts are woefully inadequate to establish a nexus between the
injury Gladys sustained in the accident and the failure to
utilize a seat restraint.
It is commonly known that seat belts are designed to
restrain occupants of vehicles.
That seat belts can be effective
in preventing death and injury from accidents has been well
established.
However, in order for the jury to assess fault in
any specific instance, there must be proof that the negligent
failure to wear a seat belt caused or enhanced the plaintiff's
particular injury.
(1987).
Wemyss v. Coleman, Ky., 729 S.W.2d 174, 181
At most, Lamkin established that had Gladys been wearing
a seat belt she would have been less likely to move around or
strike things in the car.
Dr. Davis did not, however, state with
any degree of probability that had Gladys worn a seat belt she
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would not have injured her head.
Indeed, the doctor opined that
given the type of impact, a seat belt might not have had any
effectiveness in preventing an injury to her head.
We agree with
Gladys that the general and vague testimony was not sufficient to
support an instruction allowing the jury to consider the issue of
Gladys' comparative fault in causing her injuries.
See Bass v.
Williams, Ky. App., 839 S.W.2d 559 (1992).
On remand, the trial court is instructed to vacate
that portion of the judgment which attributes fault to Gladys for
any portion of her injuries.
Further, the trial court is
instructed to amend its judgment to apportion fault between the
defendant, Lamkin, and the third-party defendant, Paul, in the
same proportion as the jury’s original allocation of fault to
these two parties.
That is, the 60% of fault attributable to
Lamkin should be amended to 71% (60%/85%); Paul’s degree of fault
should be amended to 29% (25%/85%).
Although a new trial on the issue of liability will be
avoided by simply removing Gladys’ fault from the judgment and
apportioning the fault erroneously attributable to her to the
other parties proportionately, it is necessary to reverse for a
new trial on damages.
As stated previously, the jury awarded
Gladys all the medical expenses she had incurred as a result of
the accident, yet it did not make any award for pain and
suffering.
While the jury did not have to believe either the
testimony of Gladys or her doctor that she suffers from
myofascial pain syndrome, there is no question that she sustained
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a cut to her head which necessitated stitches to remedy, that she
suffered contusions to her shoulder, and that she was prescribed
pain medication at the emergency room.
Clearly, the failure of
the jury to make any award for pain and suffering while awarding
Gladys her medical expenses resulted in a verdict which was both
inconsistent and inadequate.
See Prater v. Coleman, Ky. App.,
955 S.W.2d 193, 194 (1997), and Hazelwood v. Beauchamp, Ky. App.,
766 S.W.2d 439, 440-441 (1989).
The trial court's failure to
grant Gladys' motion for a new trial based on the inadequacy of
the award was clearly erroneous as a matter of law.
Prater,
supra, at 195.
Gladys also argues that the trial court committed
reversible error in failing to direct a verdict of liability
against Lamkin.
Lamkin admitted turning left from the shopping
center into the middle lane of a highway although his view was
obstructed by the vehicles to his left.
Reasonable minds would
have to agree that Lamkin violated statutory and common law
duties to operate his vehicle in a safe manner and that his
breach of duty was a substantial factor in causing the accident.
Nevertheless, we agree with Lamkin that this error was harmless
since the jury ultimately determined that his negligence was a
substantial factor in causing the accident.
We disagree with the argument advanced by Gladys and by
Paul in his appeal, that the trial court erred in refusing to
grant Paul's motion for a directed verdict of non-liability and
in allowing the jury to apportion fault between both drivers.
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The Laughlins insist that Paul was free of negligence and that
Lamkin’s actions were the sole proximate cause of the accident.
In his brief, Paul states:
The Court will scour the record in vain
for any evidence that [he] did anything
other than drive in a westwardly
direction on the favored street where
all of the moving vehicles in both
directions, regardless of what lane they
were in, had the right-of-way over Mr.
Lamkin who was trying to pull out.
The argument that the driver of a vehicle on a superior
or favored roadway who collides with a driver coming from an
inferior road is entitled to a directed verdict merely because he
occupied the favored highway was rejected in Mahan v. Able, Ky.,
251 S.W.2d 994 (1952), a case with very similar facts.
It cannot
be disputed that Paul was driving on the superior roadway and
that he had the right-of-way over Lamkin.
Yet, those facts alone
did not allow Paul to proceed with impunity.
Id. at 997.
See
also Covington v. Friend Tractor and Motor Company, Inc., Ky.
App., 547 S.W.2d 771 (1977).
Having reviewed the videotape of the proceedings, it is
apparent that the jury was presented with significant conflict in
the testimony as to how this accident occurred.
Three witnesses
testified that Paul was using a turn lane, a lane bounded on both
sides by a solid yellow line, in an inappropriate manner, that
is, for his own personal westbound lane, instead of as a turn
lane.
There was also evidence that traffic on the Outer Loop was
congested, that the vehicles in both of the two westbound lanes
were stopped, and that the drivers in both of the two westbound
-10-
lanes had made an opening at the intersection of the Outer Loop
and the entrance to Knobview Shopping Center to allow vehicles to
exit the shopping center.
Further, even Paul testified that he
observed the cars in the right lane slowing or stopping for some
reason.
It is this evidence that distinguishes the instant case
from those relied upon by Gladys in which the driver of the
inferior road was determined to be the sole cause of the
collision as a matter of law.
See Capps v. Violet, Ky., 488
S.W.2d 695, 697 (1972) (sole cause of accident attributed to
driver entering intersection where there was no evidence that
driver on superior road “could have, in the exercise of ordinary
care, done anything to avoid the collision”); Charlton v. Jacobs,
Ky. App., 619 S.W.2d 498 (1981) (driver entering portion of
highway she could not see due to a truck turning right from outer
lane was solely liable for death of motorcyclist who was in inner
lane and blocked from her view by the truck).
We believe, just as the Court did in Mahan, that Paul,
"even though he had the right of way, could reasonably anticipate
not only a bare possibility but even a likelihood of attempted
crossings at that intersection."
Id.
In our opinion, the
evidence clearly presented a jury issue as to whether Paul
breached his duty to operate his automobile reasonably and with
ordinary care under the circumstances and supports the jury’s
finding that Paul was partially at fault.
Finally, Paul contends that the trial court erred in
entering a judgment against him.
-11-
We agree.
The judgment, as
stated earlier herein, does not provide for the recovery of money
but reflects that Paul was negligent and that apportionment of
fault was appropriate.3
Nevertheless, under our current scheme
of comparative negligence, Lamkin was not entitled to a judgment
against Paul.
See Kevin Tucker & Associates v. Scott & Ritter,
Ky. App., 842 S.W.2d 873 (1992).
Rather, Lamkin, who is not
entitled to indemnity or contribution from Paul, id. at 874, and
who never sought damages of any kind from Paul, obtained all the
relief to which he was entitled when the trial court included
Paul in its apportionment instruction.
We are not persuaded by Lamkin’s argument that the
error, if any, is harmless.
In his brief, Paul contends that the
judgment could “affect[] his credit rating, his automobile
insurance rates, and even his insurability under automobile
insurance policies, as well as his ability to obtain a mortgage
for the purchase of real property.”
We take judicial notice of
the fact that a person who has a judgment against them can incur
negative consequences.
Accordingly, the judgment of the Jefferson Circuit
Court is reversed and remanded for entry of a new judgment on the
issue of liability consistent with this Opinion and for a new
trial on the issue of damages.
BUCKINGHAM, JUDGE, CONCURS.
3
The amended judgment reads: “Judgment is entered in favor of
James E. Lamkin against Paul Laughlin to the extent that
apportionment of fault is allowed by and between Mr. James Lamkin
and Mr. Paul Laughlin but Mr. James E. Lamkin shall recover no
money from Mr. Paul Laughlin on the third-party complaint.”
-12-
GUIDUGLI, JUDGE, CONCURS IN PART AND DISSENTS IN PART
AND FURNISHES SEPARATE OPINION.
GUIDUGLI, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART.
I concur with the majority opinion in all aspects except
one.
I must respectfully dissent from the majority opinion as to
the admissibility of Gladys Laughlin’s (Gladys) failure to wear a
seatbelt.
I believe that there was sufficient evidence presented
from which the jury could determine that Gladys’s failure to
comply with the Jefferson County ordinance caused or enhanced her
injuries.
The fact that the evidence was elicited on cross-
examination by Paul Laughlin’s attorney, and the fact that
appellee, James E. Lamkin, did not present his own expert on this
issue, does not diminish from the fact that the jury was
presented expert testimony that had Gladys been wearing her
seatbelt she would not have been “banged around” or “slammed into
anything.”
This testimony provided sufficient evidence that
Gladys’s failure to wear a seatbelt was a substantial factor in
causing her injuries.
Therefore, I would affirm the trial court
on this issue and not disturb the jury’s apportionment
determination.
However, I do concur with the majority on all
other issues and would remand the case based upon the inadequacy
of the award relating to pain and suffering.
-13-
BRIEFS FOR APPELLANT, GLADYS
LAUGHLIN:
BRIEF FOR APPELLEE:
Hon. R. Brian Evans
Louisville, KY
Hon. Mat A. Slechter
Louisville, KY
BRIEFS FOR APPELLANT, PAUL
LAUGHLIN:
Hon. Bernard Leachman, Jr.
Louisville, KY
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