BETTY CLINGAMAN, CO-EXECUTRIX OF THE ESTATE OF JEFFREY D. CLINGAMAN, DECEASED v. LOUISVILLE GAS & ELECTRIC CO.
Annotate this Case
Download PDF
RENDERED: June 25, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001084-MR
BETTY CLINGAMAN, CO-EXECUTRIX
OF THE ESTATE OF
JEFFREY D. CLINGAMAN, DECEASED
APPELLANT
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSOM, JUDGE
ACTION NO. 00-CI-007661
LOUISVILLE GAS & ELECTRIC CO.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, MINTON, AND TAYLOR, JUDGES.
BUCKINGHAM, JUDGE: Betty Clingaman, co-executrix of the estate
of Jeffrey D. Clingaman, appeals from a summary judgment granted
by the Jefferson Circuit Court in favor of Louisville Gas &
Electric Company.
We affirm.
Jeffrey D. Clingaman was diagnosed with amyotrophic
lateral sclerosis (ALS), also known as Lou Gehrig’s disease, in
May 1999.
ALS is a progressive disease which attacks the
muscles in the body, including those which control breathing.
In September 1999, Jeffrey developed breathing problems and was
hospitalized.
When he was released from the hospital in mid-
September, he required a BiPAP machine to aid his breathing.
A
BiPAP machine is a non-invasive apparatus that assists the user
in breathing.
It operates off electrical power.
Jeffrey’s
wife, Betty, obtained a BiPAP machine as well as a battery pack
for use with the machine in the event of power failure.
Two
oxygen canisters were also obtained for use in case of an
emergency.
Jeffrey’s physical therapist informed Betty of LG&E’s
Medical Alert Program (MAP).
Those enrolled in the program are
given a higher priority for restoration of services in the event
of a storm or other incident which results in power loss.
Also,
in the event of planned interruptions of power, LG&E attempts to
provide MAP customers with advanced notice to allow them to make
arrangements for the pending outage.
On October 13, 1999, Betty contacted LG&E’s customer
service department concerning the MAP.
LG&E mailed Betty a MAP application.
In response to her call,
She received the
application, filled it out on October 17, and returned it by
mail to LG&E on October 18.
Betty had taken a leave of absence from her job in
order to care for Jeffrey.
Because she was required to return
to work on November 1, she contacted an employment agency for
assistance in finding in-home medical care for Jeffrey.
-2-
The
agency put Betty in touch with Patricia Filley, who had 30 years
of experience in providing home health services.
Filley began working in the Clingaman home during the
last week of October to allow Betty to insure that Filley was
capable of providing the care necessary for Jeffrey’s condition.
During this week, Betty reviewed the operation of the BiPAP
machine, the back-up battery pack, and the oxygen tanks with
Filley.
Filley assured Betty that she was familiar with them
and could use them if necessary.
Betty returned to work on November 1 as scheduled.
That same day, Dale Walker, a revenue collection clerk for LG&E,
performed the initial processing of Jeffrey’s MAP application.
Walker entered the application in her computer, prepared the
physician verification documents, and mailed the documents to
Jeffrey’s physician, Dr. Lloyd.
On November 5, Dr. Lloyd
completed the physician verification paperwork required by LG&E.
November 5 was also the date LG&E employees undertook
maintenance on a transformer in the circuit that fed power to
the Clingaman home.
In connection with the job, the power to
the Clingaman home was turned off.
Before doing so, LG&E
employees determined from LG&E computer records that none of the
customers in the affected area were enrolled in MAP.
result of the loss of power and Filley’s inability to
As a
successfully use either the battery pack or the oxygen
-3-
canisters, Jeffrey suffered cardio-respiratory arrest.
Although
he was revived by emergency personnel, Jeffrey suffered brain
damage due to the lack of oxygen and never regained
consciousness.
Ultimately, life support was discontinued, and
Jeffrey died on November 7, 1999.1
Betty Clingaman, as co-executrix of Jeffrey’s estate,
filed a civil complaint in the Jefferson Circuit Court against
LG&E and the employment agency.
Both defendants moved the court
for summary judgment, and the court awarded summary judgment to
LG&E but denied it to the employment agency.
After the court
denied Clingaman’s motion to vacate, she appealed from the
portion of the order granting LG&E summary judgment.
The basis of the circuit court’s order granting LG&E
summary judgment was that Clingaman failed to create any fact
issue regarding a duty on the part of LG&E to inform the
Clingaman household of the planned power interruption.
The
court stated in pertinent part as follows:
Indeed, the materials provided by LG&E
to its customers clearly set out the
procedure for both qualification and
enrollment, and caution[ed] customers
reliant upon electricity for medical care to
plan for and provide their own back-up
system in case of electrical failure, with
or without enrollment in MAP. Only upon
completion of the enrollment process for MAP
1
LG&E was unaware of Clingaman’s condition and continued to process the MAP
application after the incident. Clingaman was entered as a MAP customer on
November 24.
-4-
did LG&E assume a duty to notify the
program’s members.
. . .
Here, LG&E had no duty to provide
notice to customers of known power
interruptions. LG&E voluntarily assumed
such a duty via MAP, but specifically
limited that duty to those who had (1)
completed the application process, (2) been
accepted into MAP and (3) been notified of
that acceptance in writing. . . . If Mr.
Clingaman had been enrolled in the MAP
program, LG&E would have had the obligation
to act with reasonable care in fulfilling
that assumed duty as enunciated in Haddad.
That is simply not the case before this
Court.
LG&E further argues that even if this
Court were to find that it owed the
Clingamans a duty to notify them of the
anticipated power outage, its failure to do
so did not rise to “willful negligence,” as
required for liability according to the PSC
tariff.
. . .
LG&E has met its burden of demonstrating the
absence of any genuine issue of material
fact. Accordingly, it is entitled to
summary judgment as a matter of law.
Betty argues on appeal that the circuit court
committed reversible error when it ruled that there was no duty
owed to Jeffrey Clingaman by LG&E and awarded summary judgment
in LG&E’s favor.
Summary judgment “shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
-5-
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”
CR2 56.03.
“The record must be
viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in
his favor.”
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., Ky.,
807 S.W.2d 476, 480 (1991).
“The standard of review on appeal
of a summary judgment is whether the trial court correctly found
that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of
law.”
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996).
A basic element of actionable negligence is the breach
of a legal duty.
Commonwealth, Transp. Cabinet, Bureau of
Highways v. Roof, Ky., 913 S.W.2d 322, 324 (1996).
“If no duty
is owed by the defendant to the plaintiff, there can be no
breach thereof, and therefore no actionable negligence.”
Rogers
v. Professional Golfers’ Ass’n of America, Ky. App., 28 S.W.3d
869, 872 (2000), quoting Ashcraft v. Peoples’ Liberty Bank &
Trust Co., Inc., Ky. App., 724 S.W.2d 228, 229 (1987).
Finally,
the determination as to whether a duty exists to support an
actionable negligence claim is an issue of law to be resolved by
the court.
Murphy v. Second St. Corp., Ky. App., 48 S.W.3d 571,
573 (2001).
2
Kentucky Rules of Civil Procedure.
-6-
LG&E, in general, has no duty to notify customers of
planned power outages.
The Public Service Commission, the
regulatory body that oversees power companies, has made it clear
that power companies do not guarantee continuous service.
Further, the Public Service Commission does not impose a
requirement on a power company to create, maintain, or
administer a program similar to MAP.
Rather, LG&E voluntarily
created the MAP for its customers.
Betty argues that LG&E’s duty to give prior warning
arose once it became aware of Jeffrey’s condition.
She asserts
that this awareness arose when she made her request for a MAP
application on October 13 and when Walker initially processed
the application on November 1.
On the other hand, LG&E
maintains that any duty voluntarily assumed under MAP cannot
arise until the customer’s physician verification form is
received and reviewed for approval or denial.
the circuit court agreed with LG&E.
As we have noted,
It concluded that since the
enrollment process had not been completed prior to the incident
on November 5, LG&E had no duty to give a prior warning at that
time.
Betty argues that LG&E had notice of Jeffrey’s
condition prior to the incident and that, therefore, the duty
existed at that time.
She argues that “the delays in processing
the application by LG&E are inexcusable” and that LG&E had
-7-
actual notice of Jeffrey’s condition.
She cites Haddad v.
Louisville Gas & Elec. Co., Ky., 449 S.W.2d 916 (1969), to
support her claim that LG&E had sufficient prior knowledge to
create a duty owed to Jeffrey.
In that case an LG&E employee
voluntarily went to a residence to check the appliances being
fed by natural gas.
The employee discovered what he believed to
be leaking carbon monoxide fumes.
Because it was not a natural
gas leak, the employee took no action to shut off the gas.
Instead, he accepted the owner’s assurances that no one would
occupy the house until it was repaired.
Thereafter, two persons broke into the residence and
were later found dead from carbon monoxide poisoning.
In an
action by the estates of the deceased persons, the appellate
court held that LG&E had a duty “to do something protective when
its employee discovered the highly dangerous condition of the
furnace.”
Id. at 918.
However, the court upheld the directed
verdict in favor of LG&E on the ground that it had no duty to
the decedents because it had no reason to foresee their presence
in the residence.
Id. at 920.
The case sub judice is distinguishable from the Haddad
case.
In the Haddad case the LG&E employee had knowledge of the
dangerous condition but took no protective action.
On the other
hand, in this case the LG&E employee who cut the power to the
-8-
Clingaman residence had no knowledge of Jeffrey’s condition when
he cut the power to begin required repairs.
At the time the power to the Clingaman residence was
cut on November 5, Jeffrey’s MAP application had not been
completed nor had he been accepted into the program.
As a
result, when the LG&E employee supervising the repairs contacted
his office to determine if any MAP customers would be affected
by the power interruption, he was informed that no MAP customers
were recorded on that circuit.
Further, the employee
supervising the maintenance had no personal knowledge of
Jeffrey’s condition prior to beginning the repairs.
This lack
of knowledge concerning the “dangerous condition” that could
arise from a power interruption distinguishes this case from the
Haddad case.
Given the incomplete status of Jeffrey’s MAP
application on November 5, we agree with the circuit court that
LG&E had not yet undertaken any duty in connection with the
Clingaman residence.
The application to participate in MAP gave
notice that Jeffrey would not be accepted as a member of the
program until several steps had been completed.
All steps had
not been completed, and Betty acknowledged in her deposition
that she had no reason to believe that the Clingaman residence
had been accepted into the program as of the date of the
incident.
-9-
Alternatively, Betty argues that LG&E had liability in
this case based on the universal duty rule set forth in M&T
Chems., Inc. v. Westrick, Ky., 525 S.W.2d 740 (1974), and
Grayson Fraternal Order of Eagles, Aerie # 3738, Inc. v.
Claywell, Ky., 736 S.W.2d 328 (1987).3
Those cases stand for the
proposition that “[e]very person owes a duty to every other
person to exercise ordinary care in his activities to prevent
any foreseeable injury from occurring to such other person.”
M&T Chemicals, 525 S.W.2d at 741.
LG&E responds that the
universal duty rule has been effectively abrogated and also that
it fails to apply in this case.
We agree with LG&E that the
universal duty rule has no application in this case.
Betty makes two arguments concerning the universal
duty rule.
First, she argues that by having actual knowledge of
Jeffrey’s condition, LG&E was required to exercise ordinary care
to avoid foreseeable injury prior to interrupting power.
argument fails under the facts of this case.
This
Jeffrey’s MAP
application had not been completed, and he was not enrolled in
MAP on November 5.
As noted previously, requesting a MAP
application and the completion of initial processing were
insufficient to create notice to LG&E’s employees as to
Jeffrey’s condition.
In addition, the LG&E employee who
3
The Grayson case was overruled as superseded by statute in DeStock No. 14,
Inc. v. Logsdon, Ky., 993 S.W.2d 952 (1999).
-10-
supervised the cutting of the power had no actual knowledge of
Jeffrey’s condition.
Without either constructive or actual
knowledge, the LG&E employee had no reason to foresee injury as
a result of the performance of required maintenance.
Betty’s second argument concerning a breach of the
universal duty rule involves LG&E’s processing of Jeffrey’s MAP
application.
That argument also fails based on the undisputed
facts of the case.
First, we note that Betty has failed to
demonstrate how delay, if any, which occurred in processing the
MAP application after the November 5 incident has any relevance.
As for the processing time prior to November 5, Betty has failed
to demonstrate willful negligence on the part of LG&E’s
employees.
To the extent delay occurred in processing the MAP
application prior to November 5, we must address whether there
was a fact issue concerning willful negligence.
A tariff
regarding the rules and regulations governing the supply of
electric service states in pertinent part that:
The Company will exercise reasonable care
and diligence in an endeavor to supply
service continuously and without
interruption but does not guarantee
continuous service and shall not be liable
for any loss or damage resulting from
interruption, reduction, delay or failure of
electric service not caused by the willful
negligence of Company. . . .
-11-
Public Service Comm’n of Ky. Electric No. 4, 2nd Rev. Sheet No.
44, # 13(effective June 29, 1992).
“Willful negligence” has
been defined as “an entire absence of care for the life, person,
or property of others which exhibits indifference to
consequences.”
Louisville & N.R. Co. v. George, 279 Ky. 24, 129
S.W.2d 986, 989 (1939).
The undisputed facts are clear that,
even if delay in processing the MAP application prior to
November 5 were assumed, any negligence on the part of LG&E was
not willful.
For this reason we conclude Betty failed to
demonstrate the existence of disputed issues of fact concerning
LG&E’s use of ordinary care in processing Jeffrey’s MAP
application prior to November 5.
Thus, the universal duty rule
has no application to this case.
Betty’s final argument involves her claim that the
Clingaman residence was accepted into the MAP on the date of the
incident even though LG&E had not yet received the physician
authorization form because the LG&E employee marked the
transformer with a red cross following the incident.
Under a
previous program, LG&E had used a red cross marking on
transformers to indicate a customer relying on electrical power
due to medical reasons.
However, this procedure was not in use
under MAP as it was administered on the date of the incident.
Further, the LG&E employee took this action based on the
personal knowledge he acquired following the incident.
-12-
In Mitchell v. Hadl, Ky., 816 S.W.2d 183 (1991), the
court stated that “proper application of negligence law requires
courts to view the facts as they reasonably appeared to the
party charged with negligence.”
Id. at 186.
Further, the court
stated that it was not “at liberty to impose liability based on
hindsight.”
In short, the fact that the employee placed a red
cross on the transformer following the incident and after he
became aware of Clingaman’s medical condition had no bearing on
Clingaman’s negligence claim.
While we acknowledge the tragic results that arose
from events leading up to November 5, 1999, we are unable to
conclude that Betty has established a claim of negligence as to
LG&E.
For the foregoing reasons, the judgment of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Karen L. Keith
Kirsten R. Daniel
Louisville, Kentucky
Edward H. Stopher
Scott A. Davidson
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Kirsten R. Daniel
Louisville, Kentucky
Edward H. Stopher
Louisville, Kentucky
-13-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
