PATRICIA REECE; AND WILLARD DAVID REECE v. DIXIE WAREHOUSE AND CARTAGE COMPANY, N/K/A DIXIE WAREHOUSE AND CARTAGE COMPANY, LLC
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RENDERED:
MARCH 10, 2006; 2:00
TO BE PUBLISHED
P.M.
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
2004-CA-000652-MR
AND
2004-CA-000682-MR
PATRICIA REECE; AND
WILLARD DAVID REECE
v.
APPELLANTS/CROSS-APPELLEES
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 99-CI-005759
DIXIE WAREHOUSE AND CARTAGE COMPANY,
N/K/A DIXIE WAREHOUSE AND CARTAGE
COMPANY, LLC
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; MILLER, SENIOR JUDGE.1
JOHNSON, JUDGE:
Patricia Reece and Willard David Reece have
appealed from the judgment entered by the Jefferson Circuit
Court on December 29, 2003, confirming the jury award in favor
of the Reeces.
1
Dixie Warehouse and Cartage Company, LLC has
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes (KRS) 21.580.
filed a cross-appeal arguing that the trial court erroneously
credited Patricia’s workers’ compensation benefits award only to
her lost wages, rather than the entire judgment.
We affirm the
trial court’s judgment as to all issues.
Dixie Warehouse is in the business of leasing
merchandise storage space.
Pursuant to a storage agreement,
Fawn Engineering Company contracted with Dixie Warehouse to
store vending machines on its premises.
Fawn employed RGIS
Inventory to inventory its vending machines stored at Dixie
Warehouse on a monthly basis and to record the serial numbers
which appeared on the documents located at the top of each
vending machine.2
Patricia had worked approximately ten years
for RGIS, when she was sent to Dixie Warehouse on October 23,
1998, to inventory Fawn’s vending machines.
On this visit,
Patricia was injured after falling three and one-half feet off a
loading dock (“the drop-off”), and landing on the rails of a
railroad track which ran the distance of the warehouse.
Patricia sustained several injuries including multiple pelvic
fractures, injury to her back, bladder, ankle, and arm.
As a
result of her injuries, Patricia claimed to suffer severe
depression and anxiety, and testified that she had been disabled
2
The numbers were located on either the front, back, or side of the vending
machines.
-2-
ever since the injury, except for one brief unsuccessful attempt
to return to work in 1999.
The majority of the facts of this case are heavily
disputed, especially as to the open and obvious nature of the
drop-off and Patricia’s knowledge of the drop-off prior to her
injury.
Patricia testified that before the date of the accident
she had only been to Dixie Warehouse on one prior occasion for
approximately 30 minutes, while she was doing inventory for
Fawn.
Patricia testified that on the date of the accident Dixie
Warehouse’s Building One supervisor, Matt Hileman, accompanied
her to the location of the vending machines at the front of the
warehouse, moved the machines, and read the numbers to her for
her to write down.
Conversely, William Piccolo, Patricia’s supervisor,
testified that Patricia had been the sole person assigned to the
Fawn account for close to one year, and that she had visited
Dixie Warehouse eight or nine times before the date of the
accident.
Hileman testified that Patricia had been to Dixie
Warehouse at least two times prior to October 23, 1998.
Hileman’s testimony was corroborated by Sue Ellen Warner,
Patricia’s co-worker.
She testified that she had gone with
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Patricia to Dixie Warehouse on two occasions prior to October
23, 1998.3
On October 23, 1998, when Patricia arrived at Dixie
Warehouse she spoke with Hileman; and he instructed another
Dixie Warehouse employee, Arthur Rheaume, to accompany Patricia
to the vending machines.
Patricia testified that Rheaume was
instructed to read the numbers on the machines to her so she
could write them down.
Patricia and Rheaume proceeded down a
long hallway, toward the vending machines.
Along the hallway,
there were pallets of merchandise stacked six to eight feet high
on each side.
Patricia testified that on the date of the
accident, unlike on the first occasion, the vending machines
were located at the back of the warehouse.
However, Hileman
testified that the vending machines had always been stored at
the back of the warehouse.
Patricia testified that Rheaume indicated to her that
he did not know what he was looking for on the vending machines,
and at that point, Patricia attempted to show him by looking up
at a vending machine for the card with the serial number on it.
Rheaume denied that he asked Patricia for assistance.
3
Patricia
Though Warner’s testimony was contradictory between the time of her
deposition and trial, it was proper for the jury to determine her credibility
and the weight to be given to her testimony. See Birdsong v. Wal-Mart
Stores, Inc., 74 S.W.3d 754, 758 (Ky.App. 2001) (stating, “[a]s in all cases
involving questions of fact, the weight to be given to conflicting evidence
and the credibility to be afforded each witness remains within the province
of the jury” [citations omitted]).
-4-
testified that at this point, prior to writing down any serial
numbers, she fell from the drop-off.
However, Rheaume testified
that Patricia had already inventoried two machines before she
fell and that she was reading the numbers and writing them down
when she fell.
Patricia testified that the vending machines
were positioned right at the edge of the drop-off.
This was
supported by the testimony of Elizabeth Cummins, an employee of
RGIS, who inventoried for Fawn in February 1999, after
Patricia’s injury.
Patricia testified that she did not know about the
drop-off on the date of her accident and that she had not seen
the drop-off on her previous visit to Dixie Warehouse.
Hileman
testified that he had assisted Patricia on prior occasions in
order to keep her away from the dock.
He testified that he did
not remember mentioning the drop-off to Patricia on these
occasions.
However, Rheaume testified that he warned Patricia
several times on the date of the accident to be careful and not
to step too close to the drop-off.
Further, Warner testified
that Patricia had actually warned her about the drop-off on the
occasions they visited Dixie Warehouse together prior to the
accident.
The adequacy of the lighting in the area of Dixie
Warehouse where Patricia was injured is important to a
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determination of liability in this case.4
While there was
extensive testimony in the case that the area was dimly lit,
there was also considerable evidence that the drop-off was still
visible.5
Hileman testified that the drop-off was visible from
50 feet and stated that “it’s a big hole.”
This testimony was
corroborated by Joe Bennett, Dixie Warehouse’s safety and
training manager, who also described the drop-off as “huge,” a
“large entity,” and “big.”
Dixie Warehouse offered testimony
from Bill Rueff, an expert in the field of industrial lighting.
He testified that the lighting met the standard for an inactive
area of the warehouse, but testified that he could not express
an opinion about the amount of light at the drop-off spot,
considering factors such as inventory and persons present that
would have diminished the measurements.
Piccolo testified that the area around the drop-off
“was dimly lit . . . and there was a faint yellow line painted
on the end of the dock . . . three or four inches [wide].”
However, he testified that he could see his feet, the edge of
4
Downing v. Drybrough, 249 S.W.2d 711, 712 (Ky. 1952).
5
Joe Bennett, Dixie Warehouse’s safety and training manager, testified that
the accident happened in a warehouse space consisting of 33,600 square foot,
including the rail well area. Within that space were five mercury vapor
lights at 400 watts each, and 53-dual bulb light units at 95 watts for each
bulb, installed on the ceiling which was 19 to 20 feet above the warehouse
floor. The lights were all functioning at the time of the accident. There
were also two skylights, four feet in diameter, located in the ceiling. He
testified that the mercury vapor lights and the sky lights directly
illuminated the area where Patricia fell.
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the rail deck, and the railroad tracks below.
Cummins testified
to the poor lighting conditions on the dates of her visits to
Dixie Warehouse during 1999; and stated that on one occasion, a
Dixie employee used a flashlight to help her read the numbers.
She further testified that the rail dock area was not visible
until a person was right on top of it.
However, she testified
that a person could look down and see her feet, and when walking
toward the machines on the dock, a person would be able to see
because of the sunlight coming in from either side.
She further
testified that the worst visibility was between the machines and
was limited from three to four feet.
This testimony was
corroborated by Warner.
Both Cummins and Warner testified that they did not
see a yellow stripe along the edge of the drop-off.
However,
there was a video taken of the scene, which was submitted to the
jury, not on the issue of lighting, but to demonstrate the
physical surroundings of the area where Patricia fell.
The
videotape showed the aisle way only a few feet wide leading up
to the drop-off and it revealed a faint yellow stripe along the
edge of the drop-off.
Dixie also offered testimony of Brian White, an
employee of Jefferson County EMS, who gave Patricia medical
attention at the scene.
He testified that he had sufficient
lighting to treat Patricia at the site of the drop-off.
-7-
On September 30, 1999, the Reeces filed a complaint
against Dixie Warehouse in the Jefferson Circuit Court alleging
that Patricia was injured as a result of the negligence of Dixie
Warehouse and its employees in failing to warn her of a
dangerous, latent condition which was a substantial factor of
her fall and injury.6
The Reeces argued that Patricia should be
awarded compensatory damages, and that Willard, Patricia’s
husband, should be awarded damages based on his claim of loss of
consortium.
On August 7, 2002, Dixie Warehouse filed a motion
for summary judgment, arguing that it did not breach any duty
owed to Patricia and that her injuries were entirely caused by
her own negligence.
On August 12, 2002, the Reeces filed a
motion for partial summary judgment, arguing that it was an
undisputed fact that the drop-off was not open and obvious, and
thus the only factual issue for the jury to decide was whether
Patricia had knowledge or should have had knowledge of the dropoff prior to the accident.
On February 6, 2003, the trial court entered an
opinion and order denying both the Reeces’s motion and Dixie
Warehouse’s motion for partial summary judgment on the issue of
6
It is well-established that to establish liability for negligence the
plaintiff must prove: (1) a duty; (2) a breach of that duty; (3) which was
the proximate cause of an injury; and (4) which resulted in damages. All of
these elements are essential to a valid claim. See Illinois Central Railroad
v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967); and Helton v. Montgomery, 595
S.W.2d 257, 258 (Ky.App. 1980).
-8-
whether the hazard was open and obvious.7
The trial court stated
that “the proof on this issue is controverted, so much that the
Court cannot make a factual determination . . .” and “[w]hile
the applicable law is clear, the facts are hotly contested.”
The case proceeded to a jury trial beginning on
December 2, 2003, and ending on December 10, 2003.
At the close
of the evidence, the Reeces moved for a directed verdict on the
question of whether the hazard was open and obvious, which was
denied.
The trial court instructed the jury, in relevant part
as follows:
INSTRUCTION NO. 1
“Ordinary care” as applied to
[Patricia], means such care as the jury
would expect an ordinarily prudent person to
exercise under similar circumstances.
“Ordinary care” as applied to [Dixie
Warehouse], means such care as the jury
would expect ordinarily prudent persons
engaged in the same type of business to
exercise under similar circumstances.
INSTRUCTION NO. 2
It was the duty of [Dixie Warehouse],
through its employees to exercise ordinary
care to maintain the warehouse premises in a
reasonably safe condition, including the
duty to warn others of dangerous conditions
that are not open and obvious. You will
7
In its order, the trial court identifies both the Reeces’s and Dixie
Warehouse’s motions as being motions for a partial summary judgment.
However, Dixie Warehouse’s motion was actually for summary judgment in toto.
This is the only order the trial court entered regarding Dixie Warehouse’s
summary judgment motion.
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find for [Patricia] and against [Dixie
Warehouse] if you are satisfied from the
evidence that [Dixie Warehouse] failed to
comply with the duties under this
Instruction, and that such failure was a
substantial factor in causing [Patricia’s]
fall and injury. Otherwise, you will find
for [Dixie Warehouse].
QUESTION:
Are you satisfied from the evidence
that [Dixie Warehouse] failed to comply with
its duties under Instruction No. 2, and that
such failure was a substantial factor in
causing [Patricia’s] fall and injury?
YES__________
NO ____________
If you have answered “NO” to the
Question under Instruction No. 2, then you
have found for [Dixie Warehouse] and you
shall return to the courtroom. If you have
answered “YES,” proceed to Instruction No.
3.
INSTRUCTION NO. 3
It was the duty of [Patricia], on
October 23, 1998, to exercise ordinary care
for her own safety. If you have answered
“YES” to the Question under Instruction No.
2, finding [Dixie Warehouse] failed to
comply with its duties, but are also
satisfied from the evidence that [Patricia]
failed to comply with her duty under this
Instruction, and that such failure was a
substantial factor in causing her fall and
injuries, then you shall indicate in the
blank spaces below what percentage of total
fault was attributable to each party. In
determining the percentage of fault, you
shall consider both the nature of the
conduct of each party at fault and the
extent of the causal relationship between
its or her conduct and the damages claimed.
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PLAINTIFF ______%
DEFENDANT ______%
TOTAL
100%
The jury returned a verdict finding that both Dixie
Warehouse and Patricia had breached their duties to exercise
ordinary care, resulting in Patricia’s injury, and the jury
apportioned 73% of the fault to Patricia and 27% to Dixie
Warehouse.8
The trial court entered a judgment confirming this
verdict on December 29, 2003.
On January 8, 2004, the Reeces filed a motion for a
new trial or, in the alternative, for a judgment notwithstanding
the verdict for the full amount of the verdict without
apportionment.
On February 19, 2004, Dixie filed a response and
a “counterclaim for judgment notwithstanding the verdict,”
claiming that the trial court erred in giving credit for
Patricia’s receipt of $64,348.41, in workers’ compensation
benefits only to the lost wages portion of the verdict, instead
of the entire verdict.
Oral arguments were held on February 23,
8
The total damages assigned to Patricia were in the sum of $91,457.63, broken
down as follows:
$40,916.00 – Physical and mental pain and suffering
$25,958.30 – Past lost wages
$24,583.33 – Destruction of ability to earn money
The jury assigned Willard $4,000.00 for loss of services and companionship.
The jury’s apportionment of fault resulted in Patricia and Willard receiving
only 27% of the total damages, specifically $17,684.82 and $1,080.00,
respectively.
-11-
2004, and the trial court denied all the motions by opinion and
order entered on March 9, 2004.
This appeal and cross-appeal
followed.
The Reeces argue to this Court (1) that the trial
court erred in denying their motion for summary judgment because
Dixie Warehouse’s judicial admissions left no question of fact
as to whether the drop-off was open and obvious, leaving only a
question as to Patricia’s knowledge of the drop-off; and (2)
that the instructions to the jury were erroneous because they
did not require the jury, prior to apportioning damages, to make
specific findings as to whether the drop-off was open and
obvious, and as to whether or not Patricia was aware, or should
have been aware, of it.
Dixie Warehouse’s sole argument on its
cross-appeal is that the trial court failed to give full credit
for the workers’ compensation benefits in the amount of
$64,348.41, paid to Patricia under KRS 304.36-120 of the
Kentucky Insurance Guaranty Act, which would result in a zero
verdict.
The Reeces argue that statements made by Dixie
Warehouse’s witnesses in pre-trial depositions and at trial were
judicial admissions that required a summary judgment9 or directed
9
The standard for summary judgment analysis is set forth in Kentucky Rules of
Civil Procedure (CR) 56 and is interpreted by Steelvest, Inc. v. Scansteel
Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (noting that the court
must view the evidence “in the light most favorable to the non-moving party”
and award summary judgment only where there are no genuine issues of material
-12-
verdict10 that the drop-off was not open and obvious,11
“dispens[ing] with the necessity of
. . . producing evidence on
the issue of latency of the drop-off.”
The Reeces argue in
their brief that “[c]ertainly, there can be no clearer
indication of the lack of obviousness and openness of the dropoff that caused [Patricia’s] injury than [Dixie Warehouse’s] own
conduct in requiring visitors be accompanied in the area, and be
specifically alerted to and shown the existence of the drop-off,
fact that would make it possible for the non-moving party to prevail at
trial. The non-moving party has the duty to produce “at least some
affirmative evidence that there are issues of fact.” “The trial judge must
examine the evidence, not to decide any issue of fact, but to discover if a
real issue exists”). See also Welch v. American Publishing Co. of Kentucky,
3 S.W.3d 724, 730 (Ky. 1999) (stating that “[t]he inquiry should be whether,
from the evidence of record, facts exist which would make it possible for the
non-moving party to prevail. In the analysis, the focus should be on what is
of record rather than what might be presented at trial”).
10
See Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998)(noting that a
directed verdict may only be granted when “there is a complete absence of
proof on a material issue . . . .” The Court further noted that an appellate
court may not reverse a trial court’s decision in this area absent clear
error. This issue was properly presented to the jury by the court’s
instructions, and in fact the jury found that Patricia was 73% at fault. See
Wal-Mart Stores, Inc. v. Lawson, 984 S.W.2d 485, 489 (Ky.App. 1998) (citing
Jones v. Winn-Dixie of Louisville, Inc., 458 S.W.2d 767 (Ky. 1970)).
11
This testimony included the following: Bennett acknowledged that Dixie
Warehouse had a policy of escorting persons to the site in the warehouse
where they needed to conduct business and warned of the drop-off for reasons
of general safety and company security. These policies were both verbal and
written and included dealings with inventory personnel. He also testified
that Dixie Warehouse conducted regular safety meetings. Bennett testified
that he considered the drop-off “inherently dangerous” and that while it was
open and obvious, invitees should still be warned of its existence. He
further testified that new employees were walked over to the drop-off site
and shown its existence; this testimony was corroborated by Hileman. He
further testified that he doubted that Patricia could see the drop-off from
where she was standing. William Whitson, warehouse supervisor, testified
that all visitors were accompanied by personnel due to safety conditions,
including the drop-off. He further testified that he always looked at the
backside of the products and tried to keep an invitee on the inside away from
the drop-off. He also testified that he always cautioned visitors regarding
the drop-off.
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and in its specifically demonstrating the presence of drop-off
to its own new employees.”
“A judicial admission is a formal act by a party in
the course of a judicial proceeding which has the effect of
waiving or dispensing with the necessity of producing evidence
by the opponent and bars a party from disputing a proposition in
question” [citations omitted].12
Whether a statement is a
judicial admission is a question of law, which is reviewed de
novo, “without deference to the interpretation afforded by the
circuit court.”13
While judicial admissions are not to be taken lightly,
they “should be narrowly construed.”14
In order for trial
testimony to rise to the level of a judicial admission it must
be “‘deliberate and unequivocal and unexplained or
uncontradicted’” [citations omitted].15
The conclusiveness of a
judicial admission should be determined “‘in the light of all
the conditions and circumstances proven in the case’” [citations
12
Nolin Production Credit Association v. Canmer Deposit Bank, 726 S.W.2d 693,
701 (Ky.App. 1986). See also Goldsmith v. Allied Building Components, Inc.,
833 S.W.2d 378, 380 (Ky. 1992).
13
Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App. 1998).
14
Lewis v. Kenady, 894 S.W.2d 619, 622 (Ky. 1994). See also Goldsmith, 833
S.W.2d at 380 (stating that “[m]anifestly, the determination by a court that
a party may not contradict an admission is strong medicine and should be
sparingly administered. . . . [The rule] ‘should be applied with caution
because of the variable nature of testimony and because of the ever present
possibility of honest mistake’” [citations omitted]).
15
Bell v. Harmon, 284 S.W.2d 812, 815 (Ky. 1955).
-14-
omitted].16
This is necessary in order to determine “the
probability of error in the party’s own testimony.”17
The Court
in Elpers v. Kimbel,18 stated as follows:
‘Testimony in court is an elusive matter of
mental operations. It is the culmination of
much talk and reflection[.] . . . The truth
of the case depends on a comparison of what
all the witnesses say and all the
circumstances indicate. A rule which binds
a party to a particular statement uttered on
the stand becomes an artificial rule. It is
out of place in dealing with testimony. Let
the judge test each case by itself’
[citations omitted].
The Reeces contend that the statements by Dixie
Warehouse as to the effort it took to warn of the drop-off
established that it recognized its duty, but in doing so failed
to act reasonably.19
The trial court stated in its March 9,
2004, opinion that such statements by Dixie Warehouse were
“simply not the type of unequivocal statements contemplated by
this doctrine.”
The trial court referenced the case of Lambert
16
Hamby v. University of Kentucky Medical Center, 844 S.W.2d 431, 436
(Ky.App. 1992).
17
Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021, 1024 (1941).
18
366 S.W.2d 157, 163-64 (Ky. 1963).
19
We find Dixie Warehouse’s argument persuasive that public policy should
encourage business owners to warn business invitees of possible dangers,
regardless of either’s duty or the visible nature of the danger. Dixie
Warehouse argues, “[i]f this conduct amounts to a judicial admission of
negligence, the courts would then be in the anomalous position of encouraging
businesses to say nothing and let visitors freely roam their premises.”
Dixie further argues that such actions by business owners should “be
applauded, and not penalized by an inappropriate application of the doctrine
of judicial admissions.” We agree.
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v. Franklin Real Estate Co.,20 in which there were judicial
admissions as to the open and obvious nature of the hazard but
the court still held that a directed verdict was premature.21
The trial court stated: “The facts in the case at bar are not
remotely as conclusive as those presented in Lambert, supra, and
therefore, the Court can find no error in its denial of a motion
for a directed verdict.”
Our Supreme Court has stated that the obviousness of a
hazard may be an issue of fact depending upon the facts of the
particular case.22
While statements were made by Dixie
Warehouse’s witnesses that they made sure visitors were aware of
the location of the drop-off, they also testified that the dropoff was large and noticeable.
Thus, the testimony presented by
Dixie Warehouse indicated that it was not acquiescing as to the
duty to warn, but did so out of caution.
Because of the conflicting testimony on the
obviousness of the drop-off as a hazard and Patricia’s knowledge
thereof, the issue of whether the drop-off was open and obvious
was a proper question for the jury.
Evidence was presented that
while the area was not well lit, the drop-off was plainly
visible.
On the other hand, there was also testimony that
20
37 S.W.3d 770 (Ky.App. 2000).
21
Id. at 775.
22
Schreiner v. Humana, Inc., 625 S.W.2d 580, 581 (Ky. 1981).
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because of the lighting and lack of clear marking, the drop-off
was not open and obvious.
We have examined the record and
conclude that issues of material fact existed and that there was
sufficient evidence upon which the jury could determine that the
drop-off was open and obvious.
Therefore, the trial court
properly denied the Reeces’s motion for a partial summary
judgment and their motion for a directed verdict, as there was a
genuine issue as to a material fact.
The Reeces’s second argument is that the jury
instructions were erroneous because they permitted the jury to
apportion fault against Patricia, an invitee, even if the jury
believed that the drop-off was not open and obvious and that
Patricia was unaware of the drop-off.
The Reeces state in their
brief, “since the law does not require [Patricia], as an
invitee, to be on the look-out for latent (not ‘open and
obvious’) dangers, these instructions, on the point described
above, were erroneous, imposing a greater duty on [Patricia]
than the law provides.”
Appellate review of jury instructions is a matter of
law and, thus, de novo.
“Instructions must be based upon the
evidence and they must properly and intelligibly state the law.”
An instruction’s function is “‘only to state what the jury must
believe from the evidence . . . in order to return a verdict in
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favor of the party who bears the burden of proof’” [citations
omitted].23
“Each party to an action is entitled to an instruction
upon his theory of the case if there is evidence to sustain it”
[citations omitted].24
However, Kentucky law requires that jury
instructions be limited to the “bare bones,” and not include “an
abundance of detail,” but rather, provide a “skeleton [that] may
then be fleshed out by counsel on closing argument.”25
These
skeletal instructions should not include specifically enumerated
duties.26
The instructions should accurately and adequately
“submit the applicable law relating to the issues in the
controversy for the guidance of the jury in arriving at a just
and proper verdict” [citations omitted].27
However, the language
used in jury instructions should not “over-emphasize an aspect
of the evidence or amount to a comment on the evidence”
[citations omitted].28
23
Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981).
24
Farrington Motors v. Fidelity & Casualty Co. of New York, 303 S.W.2d 319,
321 (Ky. 1957).
25
Hamby, 844 S.W.2d at 433.
26
Id.
27
Shewmaker v. Richeson, 344 S.W.2d 802, 806 (Ky. 1961).
28
McKinney v. Heisel, 947 S.W.2d 32, 34 (Ky. 1997).
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It is undisputed that Patricia was an invitee of Dixie
Warehouse at the time of her injury.29
Designating Patricia as
an invitee (versus trespasser or licensee) determined the scope
of duty owed to her by Dixie Warehouse as the owner or occupier
of the premises, i.e., “the duty to exercise reasonable care in
the circumstances.”30
“There is no duty to warn an invitee concerning open
and obvious conditions[.]”31
“Obvious” is defined as meaning
“that both the condition and the risk are apparent to and would
be recognized by a reasonable man in the position of the visitor
exercising ordinary perception, intelligence and judgment”
[citations omitted].32
As applied to the facts of this case,
there was a jury question as to whether the drop-off presented
an open and obvious hazard.
If the jury determined that the
danger was open and obvious, Dixie Warehouse owed Patricia no
duty and its negligence would not be an issue.33
If the jury
determined that the condition was not open and obvious, Dixie
Warehouse was required to maintain its business in a reasonably
safe condition and was under a duty to exercise reasonable care
29
See Cozine v. Shuff, 378 S.W.2d 635, 637 (Ky. 1964).
30
Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992).
31
Shipp v. Johnson, 452 S.W.2d 828, 830 (Ky. 1969).
32
Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 529 (Ky. 1969).
33
Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky. 1987).
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to discover artificial or natural conditions which involved an
unreasonable risk to Patricia, and either correct them or to
warn of the peril.34
Regardless of whether the drop-off was open and
obvious, Patricia, as an invitee on Dixie Warehouse’s premises,
had a duty to exercise ordinary care for her own safety, and
could not walk blindly into dangers that are obvious, known to
her, or would be anticipated by one of ordinary prudence,35 which
is generally a question of fact for the jury.36
Patricia
admitted in her testimony that she was not looking down when she
stepped off the platform.
A person does not have to “look
directly down at [her] feet with each step taken but, in the
exercise of ordinary care for [her] own safety, one must observe
generally the surface upon which [she] is about to walk.”37
“‘Ordinarily, the question whether the injury was
caused solely by the defendant’s negligence, or was contributed
to by plaintiff, should be left to the jury . . . .
The duty to
make reasonable use of faculties to observe and discover
conditions of danger is included within the duty to exercise
34
City of Madisonville v. Poole, 249 S.W.2d 133, 135 (Ky. 1952).
35
Smith v. Smith, 441 S.W.2d 165, 166 (Ky. 1969). See also Wilkinson v.
Family Fair, Inc., 381 S.W.2d 626, 628 (Ky. 1964).
36
Silverman v. Bowman, 411 S.W.2d 906, 908 (Ky. 1967).
37
Humbert v. Audubon Country Club, 313 S.W.2d 405, 407 (Ky. 1958).
-20-
ordinary care to avoid injury’” [citations omitted].38
The trial
court properly gave an ordinary care instruction.
KRS 411.182(1) requires apportionment instructions
“[i]n all tort actions” involving the alleged fault of more than
one party.
Where there is sufficient evidence to support a
finding of fault of a party, an apportionment instruction must
be given if requested.39
In the case before us, there was a
great deal of testimony as to the factual issues concerning
whether the drop-off was open and obvious, the significance of
the warnings given to Patricia, the sufficiency of the lighting
around the drop-off, and Patricia’s own knowledge of the
existence of the drop-off.
Such evidence supported an
apportionment instruction.
The jury was instructed that both parties had a duty
to exercise ordinary care and it determined both Patricia and
Dixie Warehouse had breached their duties to some extent.
The
Reeces argue that because the open and obvious issue was not set
out in a separate instruction, it is impossible to determine
whether the jury determined that the hazard was not open and
obvious.
This argument is refuted by the jury’s finding Dixie
Warehouse at fault.
For Dixie Warehouse to be found even
partially at fault, it had to have a duty to Patricia; and
38
O.K. Tire Store #3, Inc. v. Stovall, 392 S.W.2d 43, 44 (Ky. 1965).
39
Stratton v. Parker, 793 S.W.2d 817, 820 (Ky. 1990).
-21-
Instruction No. 2 provided that its duty to exercise ordinary
care to maintain the premises in a reasonably safe condition
only applied to dangerous conditions that were not open and
obvious.
Thus, by finding that Dixie Warehouse failed to comply
with its duty to exercise ordinary care, the jury found that the
drop-off was not open and obvious.
Otherwise, Dixie Warehouse
would have had no duty and thus no liability.
The Reeces also erroneously argue that if the jury
found that the drop-off was not open and obvious, it is
impossible to determine whether it believed that Patricia had
any knowledge of the drop-off.
Again, it is clear that the jury
did believe Patricia had knowledge or should have had knowledge
of the drop-off, because it found that she was at fault and,
thus, breached her duty to exercise ordinary care for her own
safety.
Since the jury verdict apportioned fault to Patricia,
it is not possible to construe the verdict in a way that does
not include a finding that Patricia either had knowledge of the
drop-off, or should have had such knowledge.
The jury clearly could have found that while Dixie
Warehouse had a duty to warn of the drop-off, that it did so to
a certain extent, but that any negligence by Dixie Warehouse was
not the sole substantial cause of the injury.
There was
conflicting testimony as to how many times Patricia had been to
Dixie Warehouse prior to the date of the accident.
-22-
The jury
could have also concluded from the evidence that Patricia had
prior knowledge of the drop-off, as there was testimony that the
drop-off could be seen from 50 feet away and other RGIS
employees could see it when they were on the premises, that she
was warned by Dixie Warehouse employees of the drop-off, and
that Patricia had warned a co-worker of the hole at the site
days before the accident occurred.
These disputed facts were
clearly for the jury, and the jury made findings within the
range of proof.
We find no error in the instructions given in this
case.
In simple terms, the jury was asked to make the factual
determination of whether the placement of the drop-off was such
that the danger it posed was, or should have been, obvious to
Patricia, and whether she exercised ordinary care.
The
instructions were in conformity with applicable law.
In Dixie Warehouse’s cross-appeal, it argues that the
trial court misapplied the law of KRS 304.36-120.
Our review of
the interpretation of a statute is de novo, because it is a
matter of law.40
In the trial court’s judgment entered on
December 29, 2003, it stated as follows:
In entering the
below, the Court has
filed by the parties
Court has found that
Judgment set forth
reviewed the briefs
in this case. The
[Dixie Warehouse], was
40
Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 612 (Ky.
2004).
-23-
insured by the Reliance Insurance Company.
On October 3, 2001, the Commonwealth Court
of Pennsylvania, ordered the liquidation of
the Reliance Insurance Company and appointed
the Insurance Commissioner of the
Commonwealth of Pennsylvania to be the
Liquidator of Reliance. Included in that
Order was a finding by the Court that the
Reliance Insurance Company was found to be
insolvent under the terms of Pennsylvania
law. The liquidation and the finding of
insolvency triggers the application of the
Kentucky Insurance Guaranty Act under KRS
304.36-010, et seq. Under the Act, the
Kentucky Insurance Guaranty Association
becomes obligated to pay a “covered claim”
against an insolvent insurer in an amount
not exceeding $300,000.00. KRS 304.36080(1)(a).
The Court further finds that KRS
304.36-12041 does not allow a duplication of
recovery where insurance benefits have been
paid. The Act specifically holds that any
person having a claim against an insurer
under any provision in an insurance policy
other than the policy of an insolvent
insurer, which is also a covered claim,
shall be required to first exhaust his
rights under the policy. Any amount payable
on a covered claim under this subtitle shall
be reduced by the amount of the recovery
under the insurance policy. KRS 304.36-120
defines any provision in an insurance policy
41
KRS 304.36-120(1) states as follows:
Any person having a claim against an insurer
under any provision in an insurance policy other than
the policy of an insolvent insurer which is also a
covered claim shall be required to exhaust first his
right under the policy. Any amount payable on a
covered claim under this subtitle shall be reduced by
the amount of recovery under the insurance policy.
Any provision in the insurance policy includes, but
is not limited to, the following coverages: basic
reparation benefits under KRS Chapter 304, Subtitle
39; uninsured motorist; underinsured motorist;
workers’ compensation; and health care.
-24-
as including, but is not limited to the
following coverages: [b]asic reparation
benefits under KRS Chapter 304, Subtitle 39,
uninsured motorists, underinsured motorists,
workers’ compensation and health care.
The Court in rendering the following
Judgment has also considered the [a]ffidavit
of Walter Harding, the workers[’]
compensation attorney for [Patricia’s]
employer, RGIS [ ]. This [a]ffidavit
indicates that the workers’ compensation
carrier paid $64,348.41 in temporary total
disability benefits to [Patricia] from
October 23, 1998, until August 28, 2002.
Accordingly, the Court finds that [Dixie
Warehouse] is entitled to a credit for this
amount against the award for lost wages,
rendering the award to be zero dollars.
Dixie Warehouse argues that the KIGA Act calls for an
offset against Dixie Warehouse’s total liability, for all
insurance benefits that Patricia received.
for the Reeces was $95,457.63.
The entire judgment
Based upon the jury’s
apportionment of fault, Dixie Warehouse was required to pay 27%
of that sum, or $25,473.56.
Patricia’s workers’ compensation
carrier paid her benefits in the amount of $64,348.41.
The
trial court in an effort to prevent Patricia from receiving a
double recovery, applied this amount to the lost wages portion
of the verdict, $25,958.20, and ordered Dixie Warehouse to pay
27% of the remaining total of the verdict, $17,684.82 to
Patricia and $1,080.00 to Willard.
Dixie Warehouse, in its response to the Reeces’s
motion for judgment notwithstanding the verdict, filed a
-25-
“counterclaim for judgment not withstanding the verdict” that if
the trial court granted the Reeces’s motion, that it requested
that the full amount of Reeces’s workers’ compensation benefit
award be credited to reduce the entire verdict to zero.
The
trial court entered an order on March 9, 2004, stating as
follows:
[Dixie Warehouse] has couched its
motion in conditional terms and has not
tendered a proposed Order. Therefore, it
appears that [Dixie Warehouse] only wishes
the Court to consider its motion for a zero
verdict should it be inclined to grant that
[motion] brought by [Patricia]. The
Judgment tendered by [Dixie Warehouse] and
entered by this Court on December 29, 2003,
accurately states the current state of the
law. . . .
IT IS HEREBY ORDERED AND ADJUGED that
both [Patricia’s and Dixie Warehouse’s]
motions for judgment notwithstanding the
verdict and/or for a new trial are DENIED.
Based on the language used by Dixie Warehouse in its
“counterclaim,” this Court has serious doubts that it has
adequately preserved this issue for appeal.
Regardless, we are
not persuaded by its argument.
Dixie Warehouse acknowledges in its brief that there
is no Kentucky precedent to support its claim that credit should
be applied against the entire verdict.
Rather, it relies on
foreign authorities to support its view.
Dixie Warehouse argues
that this Court in Hawkins v. Kentucky Insurance Guaranty
-26-
Assoc.,42 did not distinguish between the kind of benefits
received and the kind of injuries sustained, therefore an offset
must be against the total liability.
We are not persuaded that
Hawkins supports the proposition that workers’ compensation
benefits can be applied to any part of the jury award other than
lost wages.
We conclude that to do so would be contrary to the
intent of the statute.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Freeda M. Clark
Louisville, Kentucky
Ted Kozak
Catherine M. Sewell
Louisville, Kentucky
42
838 S.W.2d 410 (Ky.App. 1992).
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