COMMONWEALTH OF KENTUCKY, DEPARTMENT OF CORRECTIONS v. LEE SAETTEL, ADMINISTRATRIX OF THE ESTATE OF CHARLES KASTELHUN, DECEASED; and BOARD OF CLAIMS
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NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000314-MR
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF CORRECTIONS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 02-CI-00558
LEE SAETTEL, ADMINISTRATRIX OF THE
ESTATE OF CHARLES KASTELHUN,
DECEASED; and BOARD OF CLAIMS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE, BUCKINGHAM AND VANMETER, JUDGES.
VANMETER, JUDGE.
This is an appeal from an order entered by the
Franklin Circuit Court affirming a decision by the Kentucky
Board of Claims (board) in favor of appellee Lee Saettel,
administratrix of the estate of her father, Charles Kastelhun.
For the reasons stated hereafter, we affirm.
Saettel and appellant Kentucky Department of
Corrections agreed to the following stipulation of facts before
the board1:
Alex Bennett entered the Kentucky
Correctional system in 1990 for the felony
offense of murder. He became a resident at
Eastern Kentucky Correctional Complex in May of
1997. He transferred to that correctional
facility where he worked as a sewing machine
operator in Correctional Industries. He was
assigned a cellmate and they lived among the
general population. He had no history of
fighting, assaultive or threatening behavior or
any other institutional violence. In April of
1997, he had been found with and convicted of
possession of contraband, i.e, an allen wrench,
sharpened to what appeared to be a screwdriver.
On September 17, 1998 Inmate Bennett
resigned his job with Correctional Industries.
On that day he told a Correctional Industry
supervisor that he was like a wild animal and
that he needed to be caged before he killed
someone or something. He indicated that he felt
he could strangle his roommate. He was
immediately placed in the Administrative Control
Unit where he remained for 45 days – until
November 1, 1998. Custody in the Administrative
Control Unit involves isolation of Inmate Bennett
from the general population and placement in a
single cell for 23 hours a day. All meals are
served in the cell. Contact with anyone other
than the staff that works in that Unit is
strictly limited. On September 18, 2000 [sic] he
was seen and evaluated by Mark Sparkman, a
clinical psychologist because . . . of the
statements he made the day before. Mark Sparkman
determined that there was no reason to believe
that Inmate Bennett was a threat and removed him
1
The appendices to the parties’ briefs contain copies of a different,
unsigned version of the stipulation of facts. The version which we quote was
signed by attorneys for both parties and was included in the board’s record
at page 1153. The minor variations between the two versions are not material
to our decision on appeal.
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from 15-minute behavior watch. Mr. Sparkman’s
evaluation summary concluded that Inmate Bennett
made his statements of September 17, 1998 to
manipulate a transfer away from Eastern Kentucky
Correctional Complex to the Kentucky State
Penitentiary. During his 45 days in the Unit,
Inmate Bennett did not make any statement or
engage in any behavior that would indicate that
he would present a danger to any staff or fellow
inmates.
Inmate Bennett was released from the Unit on
November 1, 1998 and assigned to the same cell as
Charles Kastlehun [sic].
Charles Kastlehun [sic] entered the Kentucky
Correctional system in February of 1998 for the
felony offense of driving under the influence
fourth or subsequent offense. He became a
resident of Eastern Kentucky Correctional Complex
on October 30, 1998. He was transferred to that
facility to receive mental health treatment. He
had a history of depression.
They were cellmates for 10 days. Neither
Charles Kastlehun [sic] nor Alex Bennett reported
any form of difficulty to corrections officials.
On November 10, 1998, Alex Bennett reported to
corrections officials that he caused the death of
Charles Kastlehun [sic] using a homemade knife
that he claims had been stored in his television
set.
After a hearing, the board concluded that appellant had
reasonable grounds to apprehend the danger to Kastelhun, and
that appellant was negligent in its duty of care to Kastelhun.
The board found that prior to his death, Kastelhun had a life
expectancy of 28.64 years which, when multiplied by an annual
minimum wage of $10,712, resulted in lost future wages in the
amount of $306,791.68.
Since $100,000 was the maximum which the
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board could award under KRS 44.070(5) when the claim was filed
in 1999, Kastelhun’s estate was awarded $100,000 against
appellant.
The circuit court affirmed and this appeal followed.
First, appellant contends that the trial court erred
by failing to find that the board exceeded its authority by
awarding lost future wages in the circumstances below.
We
disagree.
The complaint which Saettel filed before the board
sought damages
in an amount to compensate her for all items
allowed under the Kentucky Board of Claims Act,
including but not limited to:
(a)
(b)
(c)
(d)
Charles M. Kastelhun’s medical bills;
Charles M. Kastelhun’s loss of future
earning capacity;
Funeral expenses for Charles M.
Kastelhun; and
Plaintiff Saettel’s and the Kastelhun
family’s loss of affection, not to
exceed the sum of One Hundred Thousand
Dollars ($100,000.00), exclusive of
interest and costs.
Appellant’s subsequent interrogatories and Saettel’s answers
thereto included the following:
5. State the name and address of any
hospitals, doctors, psychologists, or mental
health professionals who examined or treated the
decedent during the last ten years . . .
. . . .
6. Itemize in detail the amount of medical
and hospital expenses decedent or his estate
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incurred that arose from the incident that forms
the basis of your Complaint.
ANSWER: None.
7. Itemize in detail each amount claimed by
you for all other damage (other than medical and
hospital) sustained as a result of the incident,
including but not limited to, physical and mental
pain, past and future loss of wages, etc.
ANSWER:
Funeral expenses
Legal expenses
Psychologist visits
by Lee
Miscarriage by Lee
Pain and suffering/
loss of affection
$
$
4,000.00 (approx.)
7,500.00
$
500.00
$ 100,000.00
$ 250,000.00
8. Itemize and identify all benefits,
payments, reimbursements, or collateral payments
of any kind received by you or paid on your
behalf or on the decedent’s behalf for damages
you claim to have incurred as a result of this
matter.
ANSWER: None
9. State decedent’s employment history for
the past ten years, up to the date of his
death . . . :
ANSWER:
Hoechst Celanese a/k/a Hoechst Ticoma
1974-1996
Plant controller (1988-96), $80,000
(approx.) per year
Manager of budgeting, reporting and
financial analysis (1981-1988)
Plant accountant, international accountant,
financial analyst (1974-1981)
Remke Supermarket
1997 (approx. 1 year)
Florence, Kentucky
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(Emphasis added.)
Saettel’s interrogatory answers were not
supplemented prior to the board’s hearing.
Appellant asserts that the board erred below by
failing to exclude evidence regarding Kastelhun’s lost future
wages since Saettel’s interrogatory responses failed to list any
amount for that element of damages.
Appellant relies on Fratzke
v. Murphy, Ky., 12 S.W.3d 269 (1999), and LaFleur v. Shoney’s
Inc., Ky., 83 S.W.3d 474 (2002), which indicate that if a
plaintiff has been requested to respond to interrogatories
identifying each item of unliquidated damages sought by the
plaintiff, any award at trial for unliquidated damages may not
exceed “the last amount stated in answer to interrogatories.”
CR 8.01(2).
Further, a plaintiff may not attempt to supplement
answers to interrogatories once a trial has begun, or after the
last date provided by the trial court for the parties’ exchange
of information regarding the types and amounts of claims for
damages, although “nothing in the rules precludes a trial court
from entertaining a motion to supplement answers to
interrogatories after trial has commenced.”
at 272.
Fratzke, 12 S.W.3d
The plaintiff who seeks to supplement interrogatory
answers bears the burden of showing “that the increase in the
amount of unliquidated damages claimed does not prejudice the
defendant.”
LaFleur, 83 S.W.3d at 480.
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In the particular circumstances before us, we are not
persuaded by appellant’s contention that the claim relating to
Kastelhun’s lost future wages was affected adversely by
Saettel’s responses to appellant’s interrogatories.
Although
appellant in essence argues that the claim for lost future wages
was waived when Saettel failed to list that item of damages in
response to appellant’s interrogatory number “7,” a closer
review of the interrogatories as a whole, particularly those
immediately before and after number “7,” shows that the other
interrogatories specifically referred to expenses of the
“decedent,” while number “7” referred to amounts claimed by
“you.”
Thus, on its face interrogatory number “7” was ambiguous
as to whether it sought a listing of Kastelhun’s damages, or a
listing of damages suffered by the person answering the
interrogatories, i.e., Saettel.
The fact that Saettel interpreted and answered the
question as referring to her own personal damages is clearly
shown by the fact that her answer to number “7” addressed items
not listed in the original claim for $100,000 under KRS
44.070(5).
Instead, not only did the damages listed in response
to number “7” greatly exceed $100,000, but they clearly were
personal to Saettel as they addressed her own psychological
treatment, miscarriage, and loss of affection.
Nevertheless,
appellant did not request a clarification of Saettel’s answer or
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submit additional interrogatories to address the issue of
Kastelhun’s damages.
Given the ambiguity of interrogatory
number “7,” it follows that the claim for Kastelhun’s lost
future wages was not affected in any way by Saettel’s failure to
address that claim in response to the interrogatory.
In any
event, even if number “7” was interpreted as applying to
Kastelhun’s damages, no harm occurred as a result of the board’s
award of damages for lost future wages since the total amount
awarded was the same as the amount claimed in the complaint, and
it was less than that claimed in response to the interrogatory.
See Thompson v. Sherwin Williams Co., Inc., Ky., 113 S.W.3d 140,
144 (2003).
As recently stated in Thompson, id. at 144, “the
purpose and the only requirement of CR 8.01(2) is that
information be furnished as to the ‘amount claimed’ in
unliquidated damages, not an itemization of each category of
unliquidated damages for which that amount is claimed.”
Moreover, although it cannot be predicted with
certainty whether Kastelhun would have returned to steady, full
time employment if he had survived prison, it is undisputed that
he had a long work history of full time employment, including
some twenty-four years as a controller and accountant for an
industrial chemical business which paid him as much as $80,000
per year, followed by employment in a grocery store at minimum
wage.
As noted by the board, Kastelhun’s remaining life
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expectancy of 28.64 years, multiplied by an annual minimum wage
of $10,712, resulted in $306,791.68 or several times the
$100,000 maximum damages which could be awarded under the Board
of Claims Act.
Given Kastelhun’s work history and life
expectancy, it clearly was not unreasonable for the board to
conclude that he could work at minimum wage employment.
Hence,
the board did not abuse its discretion by awarding Kastelhun’s
estate $100,000 for lost future wages.
Next, appellant contends that the trial court erred by
finding that substantial evidence supported the board’s
determination that appellant was negligent in its care and
treatment of Kastelhun, leading to his death at the hands of
Bennett.
We disagree.
The parties stipulated that Bennett had been
incarcerated since 1990 for murder, but that he did not have a
history of institutional violence.
However, on September 17,
1998, Bennett resigned his prison job and, according to the
stipulation, told a supervisor “that he was like a wild animal
and that he needed to be caged before he killed someone or
something.
He indicated that he felt he could strangle his
roommate.”
Bennett was immediately placed in solitary
segregation, and on the following day he was seen and evaluated
by the prison’s clinical psychologist.
Concluding that Bennett
was not a threat and that his threatening statements were
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intended to manipulate a transfer to another prison facility,
the psychologist removed Bennett from the previously imposed
fifteen-minute behavior watch.
After 45 days without
threatening remarks or behavior, Bennett was released from
segregation and was assigned to Kastelhun’s cell.
Although
neither man reported any difficulties to prison authorities,
Bennett used a homemade shank to brutally murder Kastelhun some
ten days later.
The record supports the board’s findings that although
Bennett did not directly indicate to the prison psychologist on
September 18 why he made the threatening statement on September
17, Bennett did state that the psychologist had better get him
to Eddyville “or else.”
The psychologist testified that he
later learned that Bennett’s reason for wanting the transfer was
that "his lover was at Eddyville.”
Although Bennett was not
reevaluated by the psychologist, he was released from
segregation and was placed in an orientation unit cell with
Kastelhun, based primarily on similarities in age and race, even
though Kastelhun was a nonviolent offender who would have been a
minimum-security inmate but for concerns about his mental
health.
Moreover, the record supports the board’s findings
that although Bennett provided inconsistent information about
the length of time he possessed the shank prior to the murder,
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he consistently admitted that he had hidden the shank in the
back of his television.
Although no evidence of tampering was
noted during the television’s inspection before it was placed in
storage when Bennett entered segregation in September 1998, a
reinspection after Kastelhun’s death revealed signs of exterior
tampering, as well as the fact that a six-inch piece of velcro
was attached to the inside back of the television.
After reviewing the evidence, the board concluded:
9.
The Corrections Cabinet’s duty with respect
to safety of the inmates is to maintain them
in a reasonably safe environment. “It is
well-settled law in this and most other
jurisdictions that the keeper of the prison
must exercise ordinary care for the
protection of his prisoner, if there is
reasonable ground to apprehend the danger to
the prisoner[.] Bartlett v. Commonwealth of
Kentucky, Ky., 418 S.W.2d 225 (1967).
. . . .
From testimony in this case, at the time of
the claimant’s murder, the Defendant had
“reasonable ground to apprehend the danger” [of]
notice of threats by inmate Bennett of wanting to
kill someone. Corrections inspections were
concluded, but did not discover the murder
weapon, the shank hidden in Bennett’s T.V. set
for five to seven years. Corrections were [sic]
negligent in its duty, with notice of the
particular danger the claimant faced.
Corrections did not even follow its own policy of
30-day psychological reviews of persons in
segregation before releasing Bennett.
Contrary to appellant’s claim, substantial evidence supported
the board’s findings and conclusion that appellant was a state
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actor which was negligent in its duty of ordinary care toward a
prisoner in its custody, resulting in his death.
See Fryman v.
Harrison, Ky., 896 S.W.2d 908 (1995); Kentucky Commission on
Human Rights v. Fraser, Ky., 625 S.W.2d 852, 856 (1981);
Bartlett v. Commonwealth, Ky., 418 S.W.2d 225 (1967).
Moreover,
the board was not collaterally estopped from reaching this
decision because of the prior dismissal of Saettel’s federal
constitutional claims against appellant and its employees.
The
dismissal of the federal claim turned on the lack of evidence to
show that appellant and prison employees were deliberately
indifferent to a substantial and foreseeable risk of serious
harm to Kastelhun.
Since the claim now before us turns instead
on simple negligence, the issues were not identical and Saettel
was not estopped from pursuing this claim before the board.
Hence, the trial court did not err by affirming the board’s
order.
See McNutt Construction/First General Services v. Scott,
Ky., 40 S.W.3d 854 (2001); American Beauty Homes Corporation v.
Louisville and Jefferson County Planning and Zoning Commission,
Ky., 379 S.W.2d 450 (1964).
The circuit court’s order is affirmed.
EMBERTON, CHIEF JUDGE, CONCURS.
BUCKINGHAM, JUDGE, CONCURS AND FILES SEPARATE OPINION.
BUCKINGHAM, JUDGE, CONCURRING:
I concur with the
majority opinion, but I desire to write separately to express my
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view on the Fratzke issue.
The majority concludes that
Interrogatory No. 7 was ambiguous in that it was unclear whether
it sought a listing of Kastelhun’s damages or a listing of
damages suffered by the person answering the interrogatories.
When the interrogatory requested an itemization of damages
“claimed by you,” it requested the information from the person
answering the interrogatories.
However, I read the word “you”
to mean Saettel in her capacity as administratrix of her
father’s estate, and not Saettel individually.
The claim was filed by Saettel in her capacity as
administratrix of her father’s estate and was not filed by her
in her individual capacity.
Therefore, the propounder of the
interrogatories had no reason to request the information from
Saettel individually, and Saettel had no reason to provide such
information as to any personal damages she may have incurred.
Nonetheless, in light of her answers and the Commonwealth’s
failure to follow up seeking clarification of her answers, I
will concur with the majority’s determination that the
interrogatory was ambiguous.
This case is evidence of yet
another “buried landmine” predicted by Chief Justice Lambert in
his dissenting opinions in the Fratzke and LaFleur cases.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE LEE SAETTEL:
Stephen P. Durham
Rebecca Baylous
Department of Corrections
Office of General Counsel
Frankfort, KY
Thomas J. Banaszynski
Barber, Banaszynski &
Associates
Louisville, KY
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