OLFICE, INC., D/B/A CLUB OLYMPIC V. SAMUEL W. WILKEY
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OLFICE, INC ., D/B/A CLUB OLYMPIC
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2003-CA-0927-MR
WARREN CIRCUIT COURT NO. 2002-CI-0200
SAMUEL W. WILKEY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING
This case comes to us on discretionary review of a decision of the Court of
Appeals vacating a judgment of the Warren Circuit Court in a slip and fall negligence
action. Using "bare bones" instructions, a jury ruled in favor of Appellant, Olfice, Inc.,
d/b/a Club Olympic, finding that it had not breached its duty of care to Appellee, Samuel
W . Wilkey. The Court of Appeals, however, concluded that the instructions were
inadequate to instruct the jury on a business owner's affirmative legal duty toward its
business invitees. After reviewing the record, we reverse the Court of Appeals and
reinstate the judgment of the trial court.
Samuel W. Wilkey, a Bowling Green chiropractor, was a frequent patron of Club
Olympic, a health club located near Bowling Green, Kentucky. On February 7, 2001,
Wilkey was lifting weights at the club when he felt a twinge of pain in his right arm .
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Wilkey went to the steam room to work out the tightness in his shoulder before
proceeding to the gym's swimming pool to cool down . Wilkey claimed that as he was
entering the pool, his foot slipped out from under him and he fell backwards onto his
elbow. Wilkey suffered a ruptured tendon and torn rotator cuff in his right shoulder,
which necessitated surgical repair. Notably, although Wilkey subsequently alleged that
his injuries were the result of his fall at the pool, he did not report the incident to Club
Olympic until April 2001, after his surgery . In fact, Wilkey reported his shoulder injury
as occurring during weight lifting on the day in question as reflected not only in the
incident report completed by the club staff, but also as reported to both his orthopedic
surgeon and the hospital staff prior to his surgery .
On February 6, 2002, Wilkey filed a complaint in the Warren Circuit Court
alleging that Club Olympic was negligent in failing to maintain the premises in a safe
and sanitary condition . Wilkey asserted that Club Olympic's negligent maintenance of
the pool steps was the direct cause of his injuries.
A jury trial was held on February 12, 2003 . At the close of the evidence, the trial
court denied both parties' motions for directed verdicts . Thereafter, Wilkey's counsel
objected to the trial court's proposed jury instructions on the grounds that they only
informed the jury about the general duty of ordinary care applicable in all negligence
cases. Wilkey asserted that in addition to the general duty to exercise ordinary care,
the jury should have been instructed that as a business owner, Club Olympic had
specific duties to its business invitees to: (1) undertake a reasonable inspection of the
pool, (2) take reasonable precautions to protect its invitees from foreseeable danger,
and (3) warn business invitees if Club Olympic had actual knowledge of the danger.
The trial court rejected Wilkey's proposed instructions as containing extraneous
information that was not required under the typical "bare bones" approach used in
Kentucky.
After the jury was instructed, the attorneys for both parties made their closing
arguments . Club Olympic's closing argument lasted approximately ten minutes, and
Wilkey's argument lasted approximately fifty minutes . The jury then retired to
deliberate, returning less than forty-five minutes later with a verdict in favor of Club
Olympic. The jury unanimously answered the threshold issue of liability in favor of Club
Olympic.
Wilkey appealed and the Court of Appeals vacated the judgment of the trial court
and remanded the matter for a new trial . The Court of Appeals faulted the jury
instructions for failing to inform the jury that "Club Olympic had an affirmative legal duty
to its business invitees to protect from dangers that should have been discoverable to
the premises owners by means of a reasonable examination of the premises."
Essentially, the Court of Appeals concluded that the jury instructions were "too
emaciated" to adequately inform the jury of the law and sufficiently "bear the weight of
the evidence ." This Court thereafter granted Club Olympic's motion for discretionary
review.
In considering the use of bare bones jury instructions, the Court of Appeals in
this case commented that "[t]he case law is really rather sparse as to the proper
standard for instructing a jury." We note, however, that there are certain well-settled
principles in Kentucky law regarding the proper method of instructing a jury. In Cox v.
Cooper, 510 S .W.2d 530 (Ky. 1974), our predecessor court first announced the "bare
bones" jury instruction method, which was described by Justice Palmore as follows :
It may sometimes be appropriate for instructions to
define the rights of a litigant, as for example in the instance
of a peace officer sued for assault incident to an arrest, but
as a general proposition [instructions] should be couched in
terms of duties only. Recovery hinges not on the question of
who was within his rights, but who breached a duty. If the
duty is simple enough to be stated without defining it in
terms of the rights of one party or the other, that is all that is
necessary, desirable, or proper. . . . Our approach to
instructions is that they should provide only the bare bones,
which can be fleshed out by counsel in their closing
arguments if they so desire .
Id . at 535 .
Following Cox , several other decisions from this Court and the Court of Appeals
have reaffirmed our adherence to the use of bare bones instructions . Mevers v.
Chapman Printing Co ., Inc . , 840 S.W .2d 814, 824 (Ky. 1992) . ("In instructing juries,
Kentucky uses the 'bare bones' method . . . . '[Instructions] should not contain an
abundance of detail, but should provide only the bare bones of the question for jury
determination ."') Rogers v. Kasdan , 612 S .W .2d 133,136 (Ky. 1981) . ("The general
rule for the content of jury instructions on negligence is that they should be couched in
terms of duty. They should not contain an abundance of detail, but should provide only
the bare bones of the question for jury determination.") King v . Grecco, 111 S.W.3d
877, 882 (Ky. App. 2002) . ("[I]t is apparent that Kentucky is not a jurisdiction which
favors instructing the jury at length regarding every subtle nuance of the law which may
be relevant to a particular case .")
In addition to case law, several commentators have enunciated similar principles.
[T]he function of instructions is only to state what the jury
must believe from the evidence in order to return a verdict in
favor of the party who bears the burden of proof. In
Kentucky, the content of jury instructions on negligence
should be couched in terms of duty. They should not
contain an abundance of detail, but should provide only the
'bare bones' of the question for jury determination .
Kurt A. Philips, Jr., 7 Kentucky Practice : Rules of Civil Procedure Annotated , § 51 (5th
ed . 1995) (citing Webster v. Commonwealth , 508 S .W2d 33, 36 (Ky. 1974)).
Justice Palmore likewise observed :
The basic function of instructions in Kentucky is to tell the
jury what it must believe from the evidence in order to
resolve each dispositive factual issue in favor of the party
who bears the burden of proof on that issue. In other
jurisdictions, as at common law, it may be appropriate to say
that the purpose of instructions is to advise the jury on the
law of the case, but not in this state .
Justice Charles M. Leibson, "Legal Malpractice Cases: Special Problems in Identifying
Issues of Law and Fact and in the Use of Expert Testimony," 75 Ky. L .J. 1, 40 (1986)
(quoting John S . Palmore, Kentucky Instructions to Juries , § 13 .01 (1977)) .
From the case law and commentary, it is clear that Kentucky law mandates the
use of "bare bones" jury instructions in all civil cases. See Lumpkins v. City of
Louisville , 157 S .W.3d 601 (Ky. 2005). The Court of Appeals in this case correctly
stated that jury instructions should refrain from elaborating on an abundance of detail,
but still strike the proper balance in providing enough information to a jury to make it
fully aware of the respective legal duties of the parties. See also King v. Ford Motor
Co . , 209 F.3d 886 (6th Cir. 2000). Indeed, "bare bones" instructions serve the courts
and juries well because they pare down unfamiliar and often complicated issues in a
manner that jurors, who are often not familiar with legal principles, can understand .
"Bare bones" instructions are proper if they correctly advise the jury about "what
it must believe from the evidence in order to return a verdict in favor of the party who
bears the burden of proof' on that issue. Meyers, 840 S .W .2d at 824; Leibson, supra .
The question to be considered on an appeal of an allegedly erroneous instruction is
whether the instruction misstated the law. Meyers, supra , at 823. It is within a trial
court's discretion to deny a requested instruction, and its decision will not be reversed
absent an abuse of that discretion . King , supra .
Thus, the question herein is whether the instructions misstated the law by failing
to sufficiently advise the jury "what it [had to] believe from the evidence in order to
return a verdict in favor of the party who [had] the burden of proof." Meyers, supra .
Jury Instruction No . II provided :
Instruction No . II
The defendant, Olfice, Inc., d/b/a Club Olympic acting
through its agents and employees, had a duty to exercise
ordinary care to maintain and keep the premises and club
areas in a reasonably safe condition for the use of its
business invitees.
"Ordinary Care" means such care as a jury would
expect an ordinarily prudent business to exercise under
similar circumstances .
Are you satisfied from the evidence that the
defendant failed to satisfy its duty and that such failure was
a substantial factor in causing the plaintiffs fall and
injuries[?]
YES
NO
(CHECK ONE)
There was no dispute that Wilkey was a business invitee of Club Olympic or that
the club owed such an invitee the duty to make its premises reasonably safe. See
Perry v. Williamson , 824 S.W.2d 869 (Ky. 1992) . As such, the language of the
instruction was a correct statement of the law relative to the duty owed by a business
owner to invitees. Scuddy Coal . Co. v. Couch , 274 S .W .2d 388, 390 (Ky. 1954).
Nevertheless, Wilkey wanted to further emphasize his status as a business invitee in
proposed language that read, "The Defendant also had a duty to its business invitees to
inspect the pool for latent or concealed dangers not known to the Defendant and to
take reasonable precautions to protect its business from dangers which are foreseeable
from the arrangement or use of the pool ." Our cases, however, are clear that such
elaboration is not required within the language of the instruction . Certainly, the duty to
keep the premises in a reasonably safe condition encompasses the additional specific
duties.
In Ro ers, we considered instructions in a negligence case that contained
several specific duties in addition to the general duty to exercise ordinary care. 612
S.W .2d at 135. While these specific duties were intended to inform the jury what the
defendant should have done to meet the ordinary care requirement, we rejected such
an approach because the additional duties were not necessary to the dispositive
question of whether the defendant had breached the duty of ordinary care . Id . at 136 .
"[I]nstructions should not make a rigid list of ways in which a defendant must act in
order to meet his duty ." Id . Likewise, Wilkey's proposed instructions were unnecessary
under the "bare bones" approach because they created factors for the jury to consider
when answering the larger issue of breach of ordinary care .
Although Wilkey's proposed instructions certainly contained valid legal
propositions, they exceeded the requirements of the "bare bones" approach because
the dispositive issue in this case-Club Olympic's duty of care-could be resolved
through the court's tendered instructions . See Ford Motor Co . v. Fulkerson , 812
S .W .2d 119, 122 (Ky. 1991) . ("Unlike the many jurisdictions that use pattern
instructions, and otherwise explain the law of the case to the jury, the practice in
Kentucky abjures the abstract and requires the trial court, applying (rather than stating)
the underlying legal principles, to frame the dispositive issue.") The controlling issue is
not which set of proposed instructions best stated the law, but rather whether the
delivered instructions misstated the law. Meyers, supra , at 823. The instructions herein
clearly did not. See Roio, Inc., v. Drifmeyer , 357 S.W .2d 33, 35 (Ky. 1962) . ("The
owner or occupant of the premises owes a duty to an invitee to use ordinary care to
have the premises in a reasonably safe condition.")
"Bare bones" jury instructions must be given with the understanding that they
are merely a framework for the applicable legal principles . It becomes the role of
counsel, then, to flesh out during closing argument the legal nuances that are not
included within the language of the instruction . See Ro ers, 612 S .W.2d at 136 . This
principle was aptly stated by Justice Palmore in the Cox decision, wherein he explained
what a lawyer should do if he or she is not satisfied with the trial court's instructions :
"[I]f counsel felt that the jury was too thick to get the point all he had to do was to
explain it in his summation ." Cox, 510 S.W.2d at 535 .
Here, after overruling Wilkey's objection to the jury instructions, the trial court
informed counsel several times that he was free to argue any of the points he believed
were left out of the jury instructions during closing argument. The record reflects that
during his fifty minute closing argument, Wilkey's counsel thoroughly explained the facts
of the case, the definition of an "invitee," and the distinct duties imposed on each of the
parties .
Contrary to the Court of Appeals' decision, we conclude that the jury instructions
provided sufficient guidance for the jury to decide the threshold issue of breach of duty
of care in this case. The instructions did not misstate Kentucky law, and the trial court
did not abuse its discretion in failing to grant Wilkey's request to substitute his own
proposed jury instructions . Accordingly, we reverse the decision of the Court of
Appeals and reinstate the judgment of the Warren Circuit Court .
All concur.
COUNSEL FOR APPELLANT :
Matthew P. Cook
Frank Hampton Moore, Jr.
Cole, Moore & Baker
921 College Street-Phoenix Place
P . 0 . Box 10240
Bowling Green, KY 42102-7240
COUNSEL FOR APPELLEE:
D. Bailey Walton
Lanphear & Walton
1131 Fairway Street
P. O . Box 128
Bowling Green, KY 42102-0128
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