COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS v. JAMES H. TAYLOR, ADMINISTRATOR OF THE ESTATE OF JAMES H. TAYLOR, II; BOARD OF CLAIMS, COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000026-MR
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY WINCHESTER, JUDGE
ACTION NO. 97-CI-00108
v.
JAMES H. TAYLOR,
ADMINISTRATOR OF THE ESTATE
OF JAMES H. TAYLOR, II;
BOARD OF CLAIMS,
COMMONWEALTH OF KENTUCKY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EMBERTON, McANULTY AND SCHRODER, JUDGES.
McANULTY, JUDGE:
This is an appeal by the Commonwealth of
Kentucy, Transportation Cabinet, Department of Highways
(Transportation Cabinet) from an order of the Whitley Circuit
Court.
The circuit court’s order reversed a determination of the
Kentucky Board of Claims (Board) as to the proper method of
calculating the Transportation Cabinet’s comparative fault
liability in an accident which claimed the life of the appellee’s
decedent, James H. Taylor II.
We affirm.
On May 20, 1991, Taylor was killed in a one car
accident on Kentucky Highway 204 in rural Whitley County.
Taylor
was killed when his vehicle traveled off the road and over a
steep embankment.
The side of the embankment was supported by a
large wooden piling.
Taylor was killed by the support piling
piercing the passenger compartment of the vehicle and crushing
his skull.
There were no guardrails on the curve where the vehicle
left the roadway.
Expert testimony established that, based upon
the steepness of the side slope of the embankment, standard
practice clearly required guardrails at the accident site.
It is
uncontested that the Transportation Cabinet constructed the
support piling.
On May 7, 1992, Taylor’s estate filed an action with
the Board of Claims against the Transportation Cabinet.
On
January 16, 1997, the Board issued its Findings of Fact,
Conclusions of Law, and Order.
The Board determined that Taylor
was 50% at fault in causing the accident for failing to keep his
vehicle under control and for not seeing the apparent dangers
that existed at the accident site.
The Board further determined
that the Transportation Cabinet was 50% at fault because it
failed to comply with the safety requirements as they pertain to
the erection of guardrails; because it failed to erect a warning
sign at the curve; and because it constructed the hazardous
support piling.
Taylor was only 18 at the time of his death, and the
Board determined that Taylor’s estate had proven damages of at
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least $406,640.00 based upon lost wages if Taylor had earned the
minimum wage until he was sixty-five.
In calculating the
Transportation Cabinet’s comparative fault liability damages, the
Board applied the Transportation Cabinet’s 50% comparative fault
apportionment to the $100,000.00 statutory cap, see KRS
44.070(5), and determined the Transportation Cabinet’s
comparative fault liability damages to be $50,000.00.
Taylor’s
estate received collateral source payments of $10,000.00 from
Taylor’s automobile insurance company as basic reparation
benefits.
Pursuant to KRS 44.070(1), the Board deducted the
collateral source payments from the Transportation Cabinet’s
comparative fault liability, resulting in a net award to Taylor’s
estate of $40,000.00.
Taylor’s estate thereafter appealed to the Whitley
Circuit Court.
On December 2, 1998, the trial court entered a
Judgment reversing the Board.
The trial court held that the
Board had erred in determining Taylor’s award.
Specifically, the
trial court determined that the Board had incorrectly applied the
Transportation Cabinet’s 50% fault apportionment to the
$100,000.00 statutory cap rather than to the total damages of
$406,640.00.
The trial court determined that the Board should
have, instead, first applied the apportionment to the total
award, and only then applied the statutory cap.
Pursuant to this
method, the Cabinet’s uncapped comparative fault liability is
$203,320.00 (406,640.00 x 50%).
However, pursuant to KRS
44.070(5), the Cabinet’s liability is thereafter capped at
$100,000.00.
Finally, the award is reduced by $10,000.00
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received from collateral source payments, resulting in a net
award of $90,000.00.
Because we agree with the trial court’s
method of calculating an award in a comparative fault case, we
affirm.1
First, the Transportation Cabinet contends that the
Board’s award of damages to Taylor’s estate was not supported by
substantial evidence.
As a procedural matter, Taylor’s estate
contends that this issue is not preserved for review because the
Transportation Cabinet did not cross-appeal this issue to the
circuit court and, further, responded in its circuit court brief
that “[t]here is obviously substantial evidence to show a failure
of duty by both parties and the Board’s assignment of equal
responsibility to each party should not be disturbed.”
Issues
not presented to the trial court cannot be raised for the first
time on appeal.
Regional Jail Authority v. Tackett, Ky., 770
S.W.2d 225 (1989); Kentucky Milk Marketing and Antimonopoly Com'n
v. Kroger Co., Ky., 691 S.W.2d 893 (1985).
"[A]ppellants will
not be permitted to feed one can of worms to the trial judge and
another to the appellate court."
544 S.W.2d 219, 222 (1976).
Kennedy v. Commonwealth, Ky.,
We agree with the appellee that the
Transportation Cabinet has not properly preserved this issue for
our review; nevertheless, we will briefly address the issue on
the merits.
1
On June 25, 1999, because the cases share common issues,
this case was ordered to be consolidated with Easenbock v. Board
of Claims, 1999-CA-000543-MR and Estate of Juanita Esenbock v.
Board of Claims, 1999-CA-001080-MR.
-4-
We may not disturb the Board's findings if they are
supported by substantial evidence.
Commonwealth of Kentucky,
Transportation Cabinet, Department of Highways v. Shadrick, Ky.,
956 S.W.2d 898, 901 (1997).
"If there is any substantial
evidence to support the action of the administrative agency, it
cannot be found to be arbitrary and will be sustained."
Transportation Cabinet, Department of Highways, Commonwealth of
Kentucky v. Thurman, Ky. App., 897 S.W.2d 597, 599-600 (1995)
(quoting Taylor v. Coblin, Ky., 461 S.W.2d 78, 80 (1970)).
Substantial evidence is evidence which, when taken alone or in
light of all of the evidence, has sufficient probative value to
induce conviction in the mind of a reasonable person.
Id.
“Although a reviewing court may arrive at a different conclusion
than the trier of fact in its consideration of the evidence in
the record, this does not deprive the agency's decision of
support by substantial evidence.”
Id.
“Simply put, ‘the trier
of facts in an administrative agency may consider all of the
evidence and choose the evidence that he believes.’”
Id.
(quoting Commonwealth, Transportation Cabinet, Dept. Of Vehicle
Regulation v. Cornell, Ky. App., 796 S.W.2d 591, 594 (1990)).
It is uncontested that there were no guardrails on the
curve where Taylor’s vehicle left the road.
In its decision, the
Board cited and relied on the testimony of professional engineer
John W. Hutchinson, a professor of civil engineering, emeritus,
from the University of Kentucky.
In its decision, the Board
quoted Professor Hutchinson as follows:
Standard practice requires roadside
restraining structures (guardrails) for side
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slopes steeper than 3.5:1 and greater than
10' in height, Clearly applicable to his
accident site. Not only did the
Transportation Cabinet fail to provide the
required guardrail, but they built in the
lethal post hazard.
Dr. Hutchinson’s findings were:
There was a fatal intrusion into the involved
vehicle by a fill slope stabilizing wooden
pile (post) just off the inside of a righthand curve near the top of a roadside slope
so extremely steep (2:0) and extensive that I
could not even see the bottom (toe of the
slope) from the pavement edge. I estimated
the drop-off to be 50' or more to the bottom
of the slope.
Dr. Hutchinson’s expert testimony was substantial evidence to
support the Board’s finding of negligence by the Transportation
Cabinet.
Further, the damages calculation was based on minimum-
wage earnings until retirement at age 65.
This calculation was
likewise supported by substantial evidence by way of expert
testimony.
Next, the Cabinet contends that it did not owe a duty
to Taylor based upon the Supreme Court’s holding in Commonwealth,
Transportation Cabinet, Department of Highways v. Shadrick,
supra.
Again noting that the Transportation Cabinet did not
cross-appeal the Board’s decision and, in the trial court, sought
only to defend the Board’s method of calculating its liability,
Taylor’s estate contends that this issue is unpreserved.
The
Transportation Cabinet did cite Shadrick to the trial court, but
did not cross-appeal to seek a reversal of the Board’s
determination that it owed a duty to Taylor.
In the trial court,
the Transportation Cabinet summarized its Shadrick argument by
asserting that “the Department likely did not owe a duty to
-6-
[Taylor] and any apportionment of fault for the accident to the
Department is generous.”
We again note that it is not proper for
the Transportation Cabinet to decline to challenge an
adjudication by the Board of Claims in the circuit court and
thereafter seek reversal of the Board in this court.
Nevertheless, we will briefly address the Transportation
Cabinet’s Shadrick argument.
In Shadrick,
on a cold, rainy night in February 1989,
Angela Shadrick lost control of her Chevette
automobile while rounding a curve on Kentucky
Highway 122 in Pike County, Kentucky. The
vehicle left the roadway and impacted with a
dump truck that was parked in the
Department's right-of-way in front of a
junkyard. The truck had been in the location
for several months. In fact, some nine
months before the accident, the Department
had sent a notice to the junkyard owner to
clear the right-of-way of ‘improper recycling
material.’ This notice referred to a vehicle
of some sort. While it was not proven with
certainty that the dump truck was the same
vehicle referred to within the notice, it may
have been the subject of the notice.
Shadrick at 899.
Angela Shadrick’s estate brought an action against the
Transportation Cabinet in the Board of Claims.
The Board
dismissed the complaint, finding that there was “no causal
connection between the conduct of the Department and the
resulting losses[,]” and that “the only negligent participants
were Angela Shadrick and the owner of the dump truck.”
The
circuit court affirmed the Board, but this court reversed,
holding that comparative negligence principles applied and that
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the case should be remanded to the Board for a determination of
the percentage of fault attributable to the respective parties.
The Transportation Cabinet appealed to the Supreme
Court, which reversed our decision, noting
that (1) “The
Department's duty with respect to the maintenance of roads is to
maintain them in a reasonably safe condition for those members of
the traveling public exercising due care for their own safety.”
Shadrick at 900 (citing
Commonwealth of Kentucky, Transportation
Cabinet, Bureau of Highways v. Roof, Ky., 913 S.W.2d 322 (1996);
Commonwealth of Kentucky, Department of Highways v. Automobile
Insurance Co., Ky., 467 S.W.2d 326 (1971); Commonwealth of
Kentucky, Department of Highways v. General and Excess Insurance
Co., Ky., 355 S.W.2d 695 (1962); and Swatzell v. Commonwealth,
Ky., 441 S.W.2d 138 (1969)); (2)
“[T]he state is not liable for
failure to keep highway shoulders in reasonably safe condition
for travel, except as to defects which are obscured from the view
of ordinary travelers and are so inherently dangerous as to
constitute traps.”
Shadrick at 900-901 (citing Dillingham v.
Dept. of Highways, Ky., 253 S.W.2d 256 (1952)); and (3) that
"[A]n 'inherently dangerous' situation or a 'trap' is nothing
more or less than a condition not 'reasonably safe'." Shadrick at
901 (quoting Falender v. City of Louisville, Ky., 448 S.W.2d 367,
370 (1969)).
The Supreme Court noted that the Board’s decision
was supported by substantial evidence and that we had improperly
substituted our judgment for the Board.
In the present case, the Board determined that the
Board violated its duty and created an unusually dangerous
-8-
condition in three respects: (1) by failing to install a
guardrail at a location where its own regulations would dictate
such an installation; (2) by failing to warn an approaching
motorist of the impending curve; and (3) by constructing the
protruding lethal piling.
These factors distinguish this case
from Shadrick in that they illustrate the existence of a “trap.”
The Board’s findings insofar as they relate to the Transportation
Cabinet’s breach of a duty, is supported by substantial evidence
in the record.
Finally, the Cabinet contends that its comparative
fault apportionment should be applied to the statutory cap of
$100,000.00, and not to the total damages.
As previously noted,
upon determining that the Cabinet was 50% comparatively at fault,
even though Taylor’s estate had proved damages of at least
$406,640.00, the Board, applied the apportionment to the
$100,000.00 statutory cap prescribed by KRS 44.070(5).
The trial
court rejected the Board’s approach and determined that, first,
the Cabinet’s uncapped liability should be determined by applying
its 50% percentage fault to the total damages of $406,640.00 and,
second, because this calculation produces an uncapped liability
of $203,320.00, the $100,000.00 statutory cap of KRS 44.070(5)
should be applied thereby producing a comparative fault liability
of $100,000.
We agree with the trial court.
The issue of comparative negligence as it applies to
the statutory cap in a Board of Claims case was resolved by this
court in Truman v. Kentucky Board of Claims, Ky. App., 726 S.W.2d
312 (1986).
In Truman, Commodore Lewis Truman died as a result
-9-
of injuries sustained in a roof fall at a coal mine owned by the
C & T Mining Co. in Floyd County, Kentucky.
Truman’s estate
filed a claim with the Board, and the trial court determined that
the Department of Mines and Minerals, because of inadequate
inspection practices, was 50% at fault in causing the accident.
At the time, KRS 44.070(5) capped a Board of Claims recovery at
$50,000.00.
The parties stipulated that the lost earning
capacity of Truman was in excess of $100,000.00.
The trial court
in Truman applied the 50% fault apportionment to the $50,000.00
cap and awarded Truman’s estate $25,000.00.
appealed.
Truman’s estate
We resolved the issue as follows:
The sole issue on appeal is whether the
appellant should recover one-half of the
$50,000.00 limitation on awards as set forth
in KRS 44.070(5) or whether she should
recover one-half of the stipulated damages up
to the $50,000.00 limitation on awards as
stated above.
This issue, although being one of first
impression in this Commonwealth, is fairly
simple to resolve. The statute with which we
are concerned in pertinent part states:
Regardless of any provision of law
to the contrary, the jurisdiction
of the board is exclusive, and a
single claim for the recovery of
money or a single award of money
should not exceed fifty thousand
dollars ($50,000.00), exclusive of
interest and costs.
This language clearly deals with the
limitation on the amount of money one can
recover on a claim. There is no logical
relationship between such limitation and
damages which are proven by a party in a law
suit. As the above noted stipulation stated,
the decedent suffered damages in excess of
$100,000.00 in lost earnings alone. Under
that stipulation, appellant's damages award
under the comparative negligence doctrine
-10-
would be at least $50,000.00 or one-half of
at least the damages stipulated of
$100,000.00. The comparative negligence
doctrine applies to damages rather than to
limitation of recovery. Therefore, the trial
court was in error in awarding the appellant
one-half of the statutory limitation of
$50,000.00. Rather her award should have
been one-half of the damages stipulated but
not to exceed $50,000.00, the statutory
recovery limitation.
The present language of KRS 44.070(5), except insofar as it
has been modified to increase the cap, is unchanged since Truman
was rendered.
In light of Truman, clearly the Board was
incorrect in applying the Transportation Cabinet’s comparative
fault apportionment to the $100,000.00 statutory cap rather than
to actual damages.
In this case, Taylor’s estate proved damages of at least
$406,640.00.
Application of the Cabinet’s 50% apportioned fault
produces an uncapped liability of at least $203,320.00.
Application of the statutory cap reduces the Transportation
Cabinet’s liability to $100,000.00.
The parties do not appear to
dispute that the $10,000.00 received by the estate in collateral
source payments should be deducted as the final step pursuant to
Transportation Cabinet v. Roof, supra.
Therefore, the proper
award in this case is, as determined by the trial court,
$90,000.00.
For the foregoing reasons the judgment of the Whitley
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Clayton B. Patrick
Steven J. Moore
Corbin, Kentucky
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Boyd, Watkins, Patrick &
Sparks
Frankfort, Kentucky
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