SHELL (BRENDA) VS. 2008-CA-002272 HAGGARD (DAVID A.), ET AL.
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RENDERED: FEBRUARY 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002124-MR
AND
NO. 2008-CA-002272-MR
BRENDA SHELL
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR, JUDGE
ACTION NO. 06-CI-00600
DAVID A. HAGGARD; TINA
HAGGARD; MICHAEL M.
EVERSOLE; JULIA H. EVERSOLE;
TONY HAGGARD; AND CAMILLE N.
HAGGARD LLC, d/b/a ANTIOCH
PROPERTIES
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND STUMBO, JUDGES; KNOPF,1 SENIOR JUDGE.
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Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
KNOPF, SENIOR JUDGE: Brenda Shell appeals the November 10, 2008, order of
the Fayette Circuit Court. That order denied Shell’s motion for a new trial in her
negligence action against David A. Haggard; Julia H. Eversole; Michael M.
Eversole; Camille Haggard; Tina Haggard; Tony Haggard; and Camille M.
Haggard LLC, d/b/a Antioch Properties (collectively “Antioch”). Because we find
no error with the trial court’s order, we affirm.
On February 20, 2005, a fire broke out in the apartment building
where Shell’s second-story apartment was located. Shell was alerted to the fire by
smoke entering her apartment and the active alarm on a smoke detector located
within her apartment. After discovering that the handle on the door leading to the
common hallway was hot, Shell phoned 911. She then made her way to a window
and yelled for help to a woman standing on the ground below. Shell testified that
the woman directed Shell to stay put and that she would come and get Shell. The
woman then left, returned shortly, and told Shell that she could not get into the
building because the rear fire escape could not be opened. It was then that Shell
attempted to escape through the window and fell, severely breaking her right ankle.
Shell, and another building tenant, would later testify that the back door fire escape
had been blocked for an extended period of time.
Shell subsequently filed a lawsuit against the owners of the property,
Antioch, under a theory of negligence. Shell testified that a smoke alarm in the
building hallway had been improperly maintained, which led to a delayed
notification of the fire, her forced escape through a window, and her eventual fall
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and resulting injury. Shell also alleged that Antioch had negligently failed to keep
a rear fire exit free for passage.
After proof was offered to a jury, a verdict was returned in favor of
Antioch. A judgment in conformity with the verdict was presented by the trial
court stating that Shell would recover nothing from Antioch and that Antioch
would recover from Shell its costs and disbursements incurred in the action. Shell
filed a motion for a new trial and that motion was denied. This appeal and crossappeal followed.
In her direct appeal, Shell first argues that the trial court erred when it
incorrectly instructed the jury as to the duty of care required of Antioch in
maintaining the apartment premises. “Errors alleged regarding jury instructions
are considered questions of law and are to be reviewed on appeal under a de novo
standard of review.” Peters v. Wooten, 297 S.W.3d 55, 64 (Ky. App. 2009), citing
Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).
After the evidentiary portion of the trial, both parties submitted
proposed jury instructions. Shell’s proposed jury instruction read: “[i]t was the
duty of the defendants . . . to maintain all fire suppression and fire protection
equipment, systems and devices and safeguards in the premises . . . .” Instead, the
trial court applied the following jury instruction:
It was the duty of the defendant, Antioch Properties, to
exercise ordinary care to keep the building in which the
Plaintiff was a tenant in reasonably safe condition for use
by its tenants and this general duty included the
following specific duties:
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(a) To keep the smoke detector in the hallway
outside the Plaintiff’s apartment in good
working order and you further believe from the
evidence that the smoke detector in question
did not work because of a condition that in the
exercise of ordinary care, Antioch Properties
knew or should have known of before the fire,
and that Antioch Properties failed to discover
or repair it before the fire; AND
(b) That such condition (if you so believe) was a
substantial factor in causing Plaintiff’s injuries.
Shell argues that she was entitled to a jury instruction under the
doctrine of negligence per se, because the duty of care imposed upon Antioch is
established by a statute as opposed to common law. The duty of care to which
Shell refers is 815 KAR2 10:060 § 3(5). That regulation reads, in relevant part:
(5) Maintenance of equipment.
(a) All fire suppression and fire protection
equipment, systems, devices, and safeguards shall
be maintained in good working order.
(b) This administrative regulation shall not be the
basis for removal or abrogation of a fire protection
or safety system or device that exists in a building
or facility.
815 KAR 10:060 § 3.
Although the law on which Shell relies is an administrative regulation,
it is still given the full force of the law.
2
Kentucky Administrative Regulations.
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In the proper circumstances, violations of administrative
regulations constitute negligence per se. Like statutes
and ordinances, regulations, once adopted, have the force
and effect of law[.] However, in order for a violation to
become negligence per se, the plaintiff must be a member
of the class of persons intended to be protected by the
regulation, and the injury suffered must be an event
which the regulation was designed to prevent. If both
questions are answered in the affirmative, negligence per
se is established and the applicable regulation defines
the relevant standard of care.
Carman v. Dunaway Timber Co., Inc., 949 S.W.2d 569, 570 (Ky. 1997) (internal
citations omitted) (emphasis added). Therefore, Shell must show that: 1) she was a
member of the class of persons intended to be protected by 815 KAR 10:060 §
3(5); and 2) the injury she suffered was an event which the regulation was
designed to prevent. Id. The title of 815 KAR 10:060 is Kentucky Standards of
Safety, and the title of Section 3 is Existing Buildings and Conditions. As a tenant
of the building where the fire broke out, Shell is exactly the type of person
intended to be protected by the regulation. Because it is a residential building, the
purpose of the regulation, as applied to such a structure, would be to protect the
building’s tenants and guests. Furthermore, it is our belief that Shell suffered an
injury which the regulation was designed to prevent. The Supreme Court of
Kentucky has previously held:
[w]e think it is clear that so far as foreseeability enters
into the question of liability for negligence, it is not
required that the particular, precise form of injury be
foreseeable-it is sufficient if the probability of injury of
some kind to persons within the natural range of effect of
the alleged negligent act could be foreseen.
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Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999) (citation omitted). Shell’s broken
ankle, which resulted from a second-story fall, is within the scope of forseeability
because it is within the natural range of effect of a fire that takes place in a multilevel residential building.
Because Shell has met both prongs of the negligence per se
requirement, she is entitled to a jury instruction that utilizes the standard of care
defined by the regulation. However, we are not of the opinion that the regulation
cited by Shell imposes a standard higher than that of ordinary care. “Ordinary
care,” also known as “reasonable care,” is “the degree of care that a prudent and
competent person engaged in the same line of business or endeavor would exercise
under similar circumstances.” BLACK’S LAW DICTIONARY 167 (7th ed. 2000). The
regulation imposes the duty of “maintaining” fire suppression and protection
equipment in “good working order.” 815 KAR 10:060 § 3(5)(a). To “maintain”
something is “to keep (it) in a condition of good repair or efficiency.” THE
AMERICAN HERITAGE COLLEGE DICTIONARY 834 (4th ed. 2002). The regulation does
not impose a duty of strict functionality of fire suppression and protection
equipment, but rather a duty of good repair. This duty is no higher than that which
would be exercised by any other prudent and competent property owner under
similar circumstances and therefore falls under the realm of ordinary care.
Because the regulation does not define a standard of care higher than that of
ordinary care, we see no reason why one should have been applied by the trial
court. Accordingly, we find no error in its jury instruction.
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Shell’s second argument on appeal is that the trial court erred by
improperly excluding evidence regarding the rear fire escape of the apartment
building. “[A]buse of discretion is the proper standard of review of a trial court’s
evidentiary rulings.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575,
577 (Ky. 2000) (citations omitted). “The test for abuse of discretion is whether the
trial [court’s] decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Id. at 581.
In support of its decision to exclude the fire escape evidence, the trial
court determined that it was irrelevant to the central issue in the case, which was
whether the hallway smoke detector was functioning. The trial court further
opined that the evidence was irrelevant because Shell had not attempted to use the
fire escape. We agree.
The fire escape which Shell argues was blocked was actually a rear
exit of the apartment building located on the first floor. Because Shell’s apartment
was located on the second floor and the fire took place on the first floor, it is
difficult to see how Shell could have made her way from her apartment to the rear
exit if she had tried. The argument that the stranger outside of the building could
not enter the building through the rear exit is irrelevant. Exits of this nature are
generally locked to the outside for purposes of security. Furthermore, this stranger
was never produced at trial to testify. See KRE3 801 et seq. Lastly, Shell’s
attorney, at oral arguments, admitted that the evidence regarding the rear exit did
3
Kentucky Rules of Evidence.
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not address Shell’s ability to escape but went to the stranger’s inability to access
the building. Accordingly, we do not believe the trial court abused its discretion
when excluding this evidence.
Antioch makes several arguments of its own on cross-appeal. Those
arguments are: 1) Shell’s brief should be stricken for failure to cite to the record; 2)
the trial court erred by not directing a verdict in Antioch’s favor on the issue of
liability; 3) Antioch was entitled to a directed verdict on claims for past medical
expenses and pain and suffering due to a failure to seasonably respond to an
interrogatory; 4) Antioch was entitled to a directed verdict on claims for past
medical expenses due to a proper lack of foundation for those claims; and 5)
Antioch was entitled to a directed verdict on claims for impairment of future
earning capacity due to a lack of evidentiary foundation for those claims.
We first note that Antioch previously filed a motion with this Court to
strike Shell’s brief. A motion panel of this Court denied that motion in an order
entered on July 29, 2009. Accordingly, we will not address that issue a second
time.
We next turn our attention to the remainder of Antioch’s arguments,
which are essentially a collection of arguments in favor of a directed verdict.
Because we are affirming the trial court’s order, and that order is in favor of
Antioch, these arguments are irrelevant, and we will not address them.
For the foregoing reasons, the November 10, 2008, order of the
Fayette Circuit Court is affirmed.
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ALL CONCUR.
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT/CROSSAPPELLEE:
BRIEFS AND ORAL ARGUMENT
FOR APPELLEES/CROSSAPPELLANTS:
William N. Wallingford
Lexington, Kentucky
Thomas L. Travis
Lexington, Kentucky
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