CURTIS R. WILLIAMS; AND SUE WILLIAMS v. THE KROGER COMPANY; KROGER DEDICATED LOGISTICS COMPANY; AND JAMES W. POPHAM
Annotate this Case
Download PDF
RENDERED: JUNE 11, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001363-MR
CURTIS R. WILLIAMS; AND
SUE WILLIAMS
APPELLANTS
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 03-CI-00271
v.
THE KROGER COMPANY;
KROGER DEDICATED LOGISTICS COMPANY;
AND JAMES W. POPHAM
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Curtis R. Williams and his wife, Sue Williams,
have appealed from an order of the Hardin Circuit Court entered
on June 13, 2003, which dismissed their complaint against The
Kroger Company, Kroger Dedicated Logistics Company, and James W.
Popham, for failure to state a claim upon which relief can be
granted.1
Having concluded that the trial court did not err by
dismissing the complaint, we affirm.
The relevant facts of this case are not in dispute.
On February 15, 2002, Steve Williams, the son of Curtis and Sue,
was driving his automobile in the southbound lane of Interstate65 in Hardin County, Kentucky.
Riding in the passenger seat was
his wife, Grace Williams, while the couple’s two children,
Robert and Christian, occupied the back seat of the vehicle.
On
this same date, Popham was operating a tractor-trailer owned by
Kroger Dedicated Logistics Company in the northbound lane of
Interstate-65.
At around 5:37 a.m., Popham’s tractor-trailer crossed
the median of the interstate and collided with the vehicle being
driven by Steve.
Tragically, Steve, Grace and Christian died as
a result of the collision, and Robert sustained serious physical
injuries.
Later that day, Sue was notified of the details of
the accident.
Upon hearing the news, Sue claims to have
suffered severe emotional distress which led to a heart attack.
On February 12, 2003, Curtis and Sue filed a complaint
in the Hardin Circuit Court naming The Kroger Company, Kroger
Dedicated Logistics Company, and Popham as defendants.
In their
complaint, Curtis and Sue stated that Popham’s alleged
negligence in the operation of the tractor-trailer caused Sue to
1
See Kentucky Rules of Civil Procedure (CR) 12.02.
-2-
suffer severe emotional distress, which in turn led to Sue’s
heart attack.
Sue sought damages for her alleged physical pain
and mental suffering, past and future medical expenses, and lost
earning capacity.
In addition, Curtis asserted a loss of
consortium claim due to Sue’s alleged injuries.
On March 6, 2003, the named defendants filed a motion
to dismiss, arguing that the complaint failed to state a claim
upon which relief could be granted.
On June 13, 2003, after a
hearing on the matter had been conducted and after considering
the briefs submitted by the parties, the trial court entered an
order granting the defendants’ motion to dismiss the complaint
with prejudice.
This appeal followed.
A motion to dismiss for failure to state a claim upon
which relief can be granted should not be granted “unless it
appears the pleading party would not be entitled to relief under
any set of facts which could be proved in support of his claim.”2
In the case sub judice, we hold that Curtis and Sue could not
have prevailed under any set of facts in support of their
claims, and that the trial court did not err by granting the
defendants’ motion to dismiss.
Curtis and Sue have conceded that all of their claims
are based upon the cause of action commonly referred to as
2
Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky
Jockey Club, Ky., 551 S.W.2d 801, 803 (1977).
-3-
negligent infliction of emotional distress.
“contact rule” is implicated.
Consequently, the
In Deutsch v. Shein,3 our Supreme
Court discussed the requirements of the contact rule:
It is well established in this jurisdiction
that “an action will not lie for fright,
shock or mental anguish which is
unaccompanied by physical contact or injury.
The reason being that such damages are too
remote and speculative, are easily simulated
and difficult to disprove, and there is no
standard by which they can be justly
measured” [citation omitted].
In line with the corroborating purpose
of this “contact” requirement, the amount of
physical contact or injury that must be
shown is minimal. Contact, however, slight,
trifling, or trivial, will support a cause
of action. However, it is necessary that
the damages for mental distress sought to be
recovered be related to, and the direct and
natural result of, the physical contact or
injury sustained [citation omitted].
In the case at bar, it is undisputed that Sue had no
“contact” with the accident which occurred on February 15, 2002,
and that she sustained no physical injuries from that accident.
In their brief on appeal, Curtis and Sue advance various
arguments in support of their claim that the “contact rule”
should be abolished.4
However, this state’s highest court has
considered the competing policy positions and has chosen to
3
Ky., 597 S.W.2d 141, 145-46 (1980).
4
Curtis and Sue proffer various policy reasons in support of their argument
that the rule should be abolished, and cite a case from Massachusetts in
which that state’s highest court abolished the rule. See Dziokonski v.
Babineau, 380 N.E.2d 1295 (Mass. 1978).
-4-
adhere to the so-called “contact rule.”5
Accordingly, since the
complaint failed to state a claim upon which relief could be
granted, the trial court did not err by granting the defendants’
motion to dismiss.
Based on the foregoing, the order of the Hardin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Larry B. Franklin
Michael R. Hance
Louisville, Kentucky
Mark S. Fenzel
David J. Kellerman
Louisville, Kentucky
5
Of course, we are required to follow the precedent of our Supreme Court.
Kentucky Rules of the Supreme Court 1.030(8)(a). See also Wilhoite v. Cobb,
Ky.App., 761 S.W.2d 625, 626 (1988).
-5-
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.
