COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS v. SAM'S FARM SUPPLY, INC., AND THE KENTUCKY BOARD OF CLAIMS
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RENDERED:
SEPTEMBER 21, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002386-MR
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
APPELLANT
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 99-CI-00028
v.
SAM'S FARM SUPPLY, INC.,
AND THE KENTUCKY BOARD OF CLAIMS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE: The Commonwealth of Kentucky, Transportation
Cabinet, Department of Highways, has appealed from a judgment of
the Montgomery Circuit Court entered on September 9, 1999, which
affirmed a judgment of the Kentucky Board of Claims in favor of
the appellee, Sam’s Farm Supply, Inc., in the amount of
$40,000.00.
Having concluded that the Board of Claims applied
the correct legal standard of care to this negligence claim and
that its findings were not clearly erroneous, we affirm.
The now defunct Sam’s Farm Supply, Inc., was a farm
supply business located in Camargo, Montgomery County, Kentucky.
During its existence, Sam’s specialized in selling feed, fencing,
gates, medicines for the treatment of animals, and various other
farming supplies.
Sam’s opened its doors in late 1994 and
generally showed an increase in its profits from the time of its
inception through the first quarter of 1997.
When it first opened, Sam’s was located on Gateway
Avenue in Camargo.
Shortly thereafter, however, Sam’s moved to a
bigger facility on Estes Lane, which was located just two blocks
from its old location.
Both Gateway Avenue and Estes Lane
intersect U.S. Route 460.
While Gateway Avenue is reachable by
other roads, Estes Lane can only be accessed via U.S. 460.
In 1996, while Sam’s was still a fledgling business,
the Commonwealth of Kentucky, through the Transportation Cabinet
and the Department of Highways, undertook an improvement project
to widen U.S. 460 in Camargo.
During the construction period,
traffic was frequently delayed and ingress and egress between
Estes Lane and U.S. 460 was frustrated.
On several occasions,
Estes Lane was barricaded, completely preventing access.
At
other times there were large holes in Estes Lane that either
totally precluded access or made access difficult.
Further
problems were caused by severe traffic backups, preventing left-
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hand turns onto Estes Lane.
Until the construction project,
access to Estes Lane had not been difficult.
In a complaint filed on December 15, 1999, in the Board
of Claims, Sam’s alleged negligence on behalf of the
Commonwealth.
More specifically, Sam’s claimed the Cabinet was
negligent in failing to maintain ingress and egress to and from
Estes Lane.
As a result of the limited access, Sam’s avers it
was substantially deprived of customers, which proximately caused
its ultimate business demise.
On January 21, 1999, the Board of Claims found in favor
of Sam’s and granted Sam’s a judgment against the Transportation
Cabinet “in the amount of $40,000.00 for property damage/business
loss.”
The Cabinet appealed the decision to the Montgomery
Circuit Court, which affirmed the Board of Claims.
This appeal
followed.
Apparently, the only issues contested by the Cabinet
before this Court are whether the Board of Claims applied the
proper legal standard of care in finding it liable and whether
the findings concerning the foreseeability of the damages were
clearly erroneous.
The Cabinet seems to assert in its brief that
it had no duty to maintain uninterrupted access between U.S. 460
and Estes Lane.
It further contends, assuming it did have such a
duty, that Sam’s business loss was not a foreseeable result of
the Cabinet’s failure to maintain such access.
However, before resolving the issues raised by the
Cabinet on appeal, we feel it important to raise, sua sponte, the
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issue of whether jurisdiction was properly before the Board of
Claims.
Since subject-matter jurisdiction may not be waived or
conferred by agreement of the parties,1 our analysis need go no
further unless we first conclude that the Board had the authority
to hear Sam’s complaint.
The Board of Claims, by statute, may only hear claims
grounded in negligence.2
Other claims similar to Sam’s claim
have been litigated as reverse condemnation suits.3
Reverse
condemnation suits arise under Section 13 of the Kentucky
Constitution4 and their proper forum lies in the circuit courts.
However, any concern as to the proper pleading of an
action must be weighed against the general rule that the
plaintiff is the master of his claim.5
In many cases, the
plaintiff has alternate or concurrent claims, which could be
1
Cann v. Howard, Ky.App., 850 S.W.2d 57, 59 (1993) (citing
Rodney v. Adams, Ky., 268 S.W.2d 940 (1954)).
2
Kentucky Revised Statutes (KRS) 44.070(1).
3
See, e.g., Commonwealth, Dept. of Highways v. Davidson,
Ky., 383 S.W.2d 346 (1964). In Davidson, plaintiff grocery store
owners sued the Commonwealth for depriving them of a suitable
entranceway to their store’s parking lot due to highway
construction. The plaintiffs sued in circuit court under the
theory of reverse condemnation.
4
Section 13 of the Kentucky Constitution states, in relevant
part, that “. . . nor shall any man’s property be taken or
applied to public use without the consent of his representatives,
and without just compensation being previously made to him.”
5
See, e.g., Gafford v. General Electric Co., 997 F.2d 150,
157 (6th Cir. 1993) (quoting Caterpillar, Inc. v. Williams, 482
U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)).
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filed in different courts, even though the facts and theories of
each claim are the same.6
Speck, supra, is illustrative of this principle.
In
Speck, the plaintiff was a driver who had been injured in an
automobile collision involving a Kentucky State Police cruiser.
Since sovereign immunity was not available to the negligent state
trooper, this Court held that the injured plaintiff had two
concurrent or alternate claims, one in the circuit court and one
in the Board of Claims.
Turning to the underlying facts and theories of the
case presently before us, it appears Sam’s, like the plaintiff in
Speck, also had alternate causes of action.
Since Sam’s alleged
that the Cabinet was negligent in failing to maintain access to
Estes Lane, it was proper to pursue the claim in the Board of
Claims.
On the other hand, since Sam’s claimed a diminution in
the net worth of its business as a result of the Cabinet’s
actions, it could have sought relief in the circuit court for
reverse condemnation.7
In any event, we find that Sam’s claims are grounded in
negligence, which gives the Board of Claims subject-matter
jurisdiction to hear the dispute.
Having addressed the issue of
jurisdiction, we now turn to the Cabinet’s contentions that it
had no duty to maintain uninterrupted access to Estes Lane, and
6
See Speck v. Bowling, Ky.App., 892 S.W.2d 309, 311 (1995).
7
By contrast, if the negligent construction on U.S. 460 had
instead prevented an ambulance from gaining access to Estes Lane,
any claim would have lied solely in the Board of Claims.
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that, in any event, Sam’s business loss was not a foreseeable
result of any breach of that duty.
Civil liability, and the very principle of negligence,
is predicated on the duty of reasonable care which is owed by
each of us to everyone else.8
That is not to say, however, that
the concept of legal duty is limitless.
Where and how courts
draw those lines is best described by the following commentary
from Prosser:
“The statement that there is or is not a duty
begs the essential question--whether the
plaintiff’s interests are entitled to legal
protection against the defendant’s conduct. .
. . It is a shorthand statement of a
conclusion, rather than an aid to analysis in
itself. . . . [I]t should be recognized that
‘duty’ is not sacrosanct in itself, but is
only an expression of the sum total of those
considerations of policy which lead the law
to say that the plaintiff is entitled to
protection.”9
In other words, the concept of duty is rooted in public policy.
Where public policy dictates that the plaintiff should have no
rights as against the defendant’s conduct, duty will not lie.
By honoring actions for reverse condemnation, our
courts have demonstrated that, in Kentucky, the rights of
property owners will be protected against encroachment by the
government.
This includes actions in which the intrusion was a
8
Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v.
Claywell, Ky., 736 S.W.2d 328, 334 (1987).
9
Id. at 330 (quoting Prosser & Keeton, The Law of Torts § 53
(5th ed. 1984)).
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result of negligent highway construction.10
Accordingly, we hold
that the Cabinet owes a duty to neighboring property owners to
conduct highway construction in a manner that does not
unreasonably impede their property rights.
Finally, we turn to the Cabinet’s contention that Sam’s
business injury was not a foreseeable result of its failure to
maintain access to Estes Lane.
While foreseeability of injury is
a well-established component of the negligence analysis,11 it is
only used as a limitation to recovery in rare circumstances.
Except in such cases where reasonable minds could not differ,
whereby the court must conclude as a matter of law that it would
be clearly unreasonable to require a party to foresee the
potential harm from the misconduct involved, the standard is
whether the misconduct was a substantial factor in causing the
plaintiff’s injuries.12
We hold that there was substantial evidence to support
the Board’s findings that the Cabinet’s negligent construction
was a substantial factor in causing Sam’s business injuries.
A
factual finding may not be set aside on appeal unless it is not
10
See Commonwealth, Dept. of Highways v. Gilles, Ky., 516
S.W.2d 338 (1974) (holding the Circuit Court did not error in
granting the plaintiff’s a recovery for crop damage due to
negligent highway construction).
11
Grayson, 736 S.W.2d at 332 (citing M & T Chemicals, Inc.
v. Westrick, Ky., 525 S.W.2d 740 (1974); and Greyhound Corp. v.
White, Ky., 323 S.W.2d 578 (1959)).
12
736 S.W.2d at 334.
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supported by substantial evidence,13 and thus, clearly
erroneous.14
We believe the Cabinet’s actions in limiting access
to Estes Lane, the only inlet to Sam’s place of business, should
have induced in reasonable minds the expectation that customers
would have difficulty in gaining entry to Sam’s’ parking lot, and
that Sam’s’ injuries should have been reasonably foreseeable by
the Cabinet.
For the foregoing reasons, the judgment of the
Montgomery Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Andrew M. Stephens
Lexington, KY
No brief filed.
13
“Substantial evidence” has been defined as evidence of
“sufficient probative value to induce conviction in the minds of
reasonable men.” Kentucky State Racing Commission v. Fuller,
Ky., 481 S.W.2d 298, 308 (1972).
14
Kentucky Rules of Civil Procedure (CR) 52.01.
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