COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS v. AMANDA GUFFEY (NOW MELTON), IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF JEREMIAH GUFFEY, DECEASED; AND THE KENTUCKY BOARD OF CLAIMS
Annotate this Case
Download PDF
RENDERED:
MAY 19, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002051-MR
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
v.
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 04-CI-00165
AMANDA GUFFEY (NOW MELTON), IN
HER CAPACITY AS ADMINISTRATRIX
OF THE ESTATE OF JEREMIAH GUFFEY,
DECEASED; AND THE KENTUCKY BOARD
OF CLAIMS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND JOHNSON, JUDGES; POTTER, SENIOR JUDGE.1
JOHNSON, JUDGE:
The Commonwealth of Kentucky, Transportation
Cabinet, Department of Highways has appealed from a judgment of
the Wayne Circuit Court entered on September 10, 2004, which
reversed the final order of the Kentucky Board of Claims
1
Senior Judge John W. Potter, 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.
dismissing Amanda Guffy’s (now Melton’s) claim for damages
resulting from the death of her husband, Jeremiah Guffey, and
awarded Jeremiah’s estate $197,292.64.
Having concluded that
the circuit court correctly reversed the Board on the issues of
duty and foreseeability, we affirm.
On or about March 11, 2001, Jeremiah and his friend,
Josh Bennett, participated in an All-Terrain Vehicle (ATV)
safety course held in the Cooper Community of Wayne County,
Kentucky.
Both Jeremiah and Josh were relatively new owners of
ATVs and they participated in this safety course, in part, in
order to receive cash incentives.
Subsequently that day, the
two men rode their ATVs on State Highway 167.
With Jeremiah in
the lead, they proceeded along State Highway 167 for
approximately 100 feet, to the intersection of State Highway 167
and Old Highway 167.
Jeremiah made a left hand turn onto Old
Highway 167 and accelerated down the slight incline of the road.
After traveling approximately 70 feet down Old Highway 167,
Jeremiah was knocked off his ATV when he was struck across the
neck by a suspended cable, which was relatively thin and
difficult to see.
Initially, Jeremiah was rendered unconscious;
however, he regained consciousness for a short period of time
and was able to stand before collapsing.
He was then
transported by ambulance to the Wayne County Hospital.
-2-
Jeremiah
died as a result of his injuries, consisting of traumatic airway
disruption as a result of blunt force trauma to his neck.
Old Highway 167 is owned by the Commonwealth of
Kentucky.
For approximately 20 years prior to the date of the
accident, this highway had not been used as a regular
thoroughfare by the traveling public of the Commonwealth.
However, the Transportation Cabinet continued to retain
ownership of Old Highway 167 for the purpose of upkeep of a
guardrail.
Old Highway 167 is paved; however, the road leads to
a dead end at the guardrail where an old bridge has been
removed.
The cable causing Jeremiah’s injury had been stretched
across Old Highway 167 between two wooden posts by the previous
adjacent landowner and was maintained by the current adjacent
landowners to prevent access to their private property.
Although the Cabinet did not erect the cable, it is undisputed
that it knew, or should have known, that the cable was stretched
across Old Highway 167.2
Further, it is undisputed that the
presence of the inconspicuous cable stretched across Old Highway
167 constituted a dangerous condition on the roadway, and that
Jeremiah’s striking of the cable was a substantial factor in
causing his death.
2
The Cabinet had actual notice of the cable through its right-of-way agent,
David Smith, who personally observed the stretched cable prior to the
accident when he met with the current adjacent landowners in connection with
their inquiry into the possibility of their acquiring title to this section
of Old Highway 167.
-3-
Jeremiah’s widow, Amanda, filed a claim with the Board
in her capacity as the administratrix of Jeremiah’s estate.
Following a hearing and the review of several depositions, the
Board’s Hearing Officer entered his recommended findings of
fact, conclusions of law, and order.
The Board found that
Jeremiah’s estate incurred medical expenses in the amount of
$6,191.00, funeral expenses in the amount of $9,662.00, and the
destruction of earning capacity in the amount of $1,275,752.00,
for a total of $1,291,605.00.
However, the Hearing Officer
recommended denying the claim for two reasons.
First, he
concluded as a matter of law that the Cabinet owed no duty to
Jeremiah because the accident did not occur on a public roadway
and because Jeremiah could not be considered a member of the
traveling public.3
Second, he concluded that the accident was
not foreseeable because the Cabinet could not have expected that
someone would operate an ATV on a public roadway in violation of
KRS 189.515(1).4
No exceptions were filed, and the Board entered
its final order on March 25, 2004, adopting the recommended
order of the Hearing Officer and denying Jeremiah’s estate’s
request for damages.
3
KRS 189.515(1) prohibits the operation of an ATV on a public roadway.
4
The speed at which Jeremiah was traveling was not a relevant factor in the
accident, nor was the fact that he was not wearing a helmet, as a helmet
would have in no way prevented the injuries which he sustained.
-4-
Amanda timely petitioned the Wayne Circuit Court for
review of the Board’s final order.
In the brief filed in
support of her petition, Amanda argued that the Board erred as a
matter of law in neither concluding that the Cabinet owed
Jeremiah a duty to remove or to warn of the cable nor concluding
that his injury was foreseeable.
In its judgment entered on
September 10, 2004, the circuit court reversed the Board,
stating that “[t]he issue of what duty one party may owe to
another is a question of law.”5
The circuit court further
stated:
[T]he Transportation Cabinet, as owner of
Old Highway 167, owed Jeremiah (and the
general public as a whole) the duty to keep
the roadway in a reasonably safe condition,
to provide proper safeguards, and to give
adequate warning of any dangerous condition
in the roadway.6 Further, as the owner of
the roadway, the Transportation Cabinet had
a duty to refrain from setting traps for any
licensees or trespassers who may enter upon
the roadway.7
The circuit court also stated “[t]he Board’s Hearing Officer
correctly identified these duties, but then failed to apply
these precedents to the facts of the case.”
It concluded, as a
5
See Mason v. City of Mt. Sterling, 122 S.W.3d 500, 505 (Ky. 2003); and
Osterndorf v. Clark Equipment Co., 122 S.W.3d 530, 533 (Ky. 2003).
6
See Commonwealth, Department of Highways v. Automobile Club Insurance Co.,
467 S.W.2d 326, 328 (Ky. 1971) (overruled on other grounds, Commonwealth,
Transportation Cabinet, Department of Highways v. Babbitt, 172 S.W.3d 786
(Ky. 2005)); and Commonwealth, Department of Highways v. General & Excess
Insurance Co., 355 S.W.2d 695 (Ky. 1962).
7
See Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 844 (Ky.
1988).
-5-
matter of law, that “Jeremiah’s accident was foreseeable” and
stated:
A thin, indiscernible cable spanning a
roadway is an obvious hazard, and the
Transportation Cabinet had notice of the
existence of this dangerous condition prior
to Jeremiah’s accident, but failed to remove
the cable or warn of its presence. While
Jeremiah was operating an ATV on a public
road, in violation of K.R.S. §189.515, his
violation of that statute does not preclude
his estate from recovering for his death.
The doctrine of contributory negligence was
abolished in this Commonwealth 20 years ago,
in favor of comparative negligence. Hilen
v. Hays, 673 S.W.2d 713 (Ky. 1984). The
Board is statutorily charged to apply a
comparative negligence standard to the cases
before it. K.R.S. §44.073(10).
Finally, as to the award of damages, the circuit court
stated:
Given the amount of damages suffered by
Jeremiah’s estate and the limited amount of
recovery that is available in this action,
Jeremiah would have to be 84.52% at fault
and the Transportation Cabinet only 15.48%
at fault, to preclude Jeremiah’s estate from
[maximum] recovery in this action.8 Given
the facts as stated above, which have not
been appealed, this Court finds as a matter
of law that no more than 50% of the fault
can be attributable to Jeremiah’s own
conduct. Therefore, Jeremiah’s estate is [
] entitled to the full statutory award of
$200,000.00 in this action,9 less the
8
15.48% of Jeremiah’s total damages of $1,291,605.00 equals $200,000.00.
9
See KRS 44.070(5).
-6-
applicable setoff,10 for a total award of
$197,292.64.11
This appeal by the Cabinet followed.
The Cabinet argues before this Court that the circuit
court impermissively substituted its judgment for that of the
Board and went beyond the limitations imposed upon it by KRS
44.140(5).12
In her reply brief, Amanda argues that the Cabinet
owed a duty to Jeremiah, that his damages were foreseeable, and
that the Board failed to apply the correct law to the undisputed
facts.
Because the factual findings are not in dispute, this
Court’s review is limited to questions of law.
Specifically, we
must determine whether the Cabinet owed a duty to Jeremiah and
whether Jeremiah’s damages were foreseeable.
Such issues are
questions of law to be reviewed by this Court de novo.13
Having
10
KRS 44.070(1); and Transportation Cabinet v. Thurman, 897 S.W.2d 597, 600
(Ky.App. 1995).
11
His estate received payment of $2,707.36 from health insurance, and this
payment is the only collateral offset to any award of damages in this matter.
12
The Cabinet also contends that the circuit court erroneously entered its
judgment without reviewing the entire record of the Board and prior to the
entry of the order submitting the case for its consideration. We agree with
Amanda that any irregularities in the procedures followed by the circuit
court in arriving at the judgment in this case did not constitute reversible
error.
13
Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet, 983
S.W.2d 488, 490 (Ky. 1998). The Cabinet argues that our standard of review
in this case is the clearly erroneous standard and that there was substantial
evidence in the record to support the Board’s ruling and thus it should not
have been reversed by the circuit court. However, this standard only applies
to review of the Board’s findings of fact, which were not disputed in this
case.
-7-
reviewed the applicable law, we affirm the circuit court’s
ruling that the Cabinet owed a duty to Jeremiah and that
Jeremiah’s damages were foreseeable.
In KRS 44.070, et seq., the Legislature partially
waived the Commonwealth’s sovereign immunity by creating the
Board of Claims.
The Board was vested with “full power and
authority to investigate, hear proof, and to compensate persons
for damages sustained to either person or property as a
proximate result of negligence on the part of the
Commonwealth[.]”14
Pursuant to KRS 44.120:
An award shall be made only after
consideration of the facts surrounding the
matter in controversy, and no award shall be
made unless the board is of the opinion that
the damage claimed was caused by such
negligence on the part of the Commonwealth
or its agents as would entitle claimant to a
judgment in an action at law if the state
were amenable to such action.
An adverse decision may be appealed by an aggrieved party to the
circuit court in the county in which the hearing was conducted.15
The circuit court sitting without a jury is specifically limited
in its review to determining:
“Whether or not the board acted
without or in excess of its powers; the award was procured by
fraud; the award is not in conformity to the provisions of KRS
44.070 to 44.160; and whether the findings of fact support the
14
KRS 44.070(1).
15
KRS 44.140(1).
-8-
award.”16
Further, appeal is also permitted in the Court of
Appeals.17
In Automobile Club Insurance Co.,18 our state’s highest
court stated:
[T]he public authority having control over a
highway has a duty to keep it in a
reasonably safe condition for travel, to
provide proper safeguards, and to give
adequate warning of dangerous conditions in
the highway. This includes the duty to
erect warning signs and to erect and
maintain barriers or guardrails at dangerous
places on the highway to enable motorists,
exercising ordinary care and prudence, to
avoid injury to themselves and others. . . .
[I]t is [the Department of Highway’s] duty
to furnish adequate protection for the
general traveling public and users of the
highway facilities [citations omitted].
Almost three decades later, the Supreme Court addressed this
issue in Commonwealth, Transportation Cabinet, Department of
Highways v. Shadrick,19 and restated that the Commonwealth has a
duty to exercise ordinary care to maintain its highways in a
reasonably safe condition for the traveling public.20
Our Supreme Court in Babbitt stated that the law of
Automobile Club Insurance “remains sound (except for the
16
KRS 44.140(5).
17
KRS 44.150.
18
467 S.W.2d at 328.
19
956 S.W.2d 898 (Ky. 1997).
20
Shadrick, 956 S.W.2d at 900; Automobile Club Insurance, 467 S.W.2d at 328.
-9-
implication that the duty is owed only to persons who are not
contributorily negligent) and is in accordance with the general
rule.”21
Further, our Supreme Court stated that Shadrick did not
reinstate the “long-discarded doctrine of contributory
negligence as a complete defense . . . to claims against highway
authorities in Kentucky.”22
In characterizing the elements
necessary to prove a claim against the Cabinet, our Supreme
Court described causation as, not a percentage of causation of
the accident, but rather a “percentage of causation of each
claimant’s damages” [emphasis original].23
Further, our Supreme
Court stated that while failure of the Cabinet to perform a
duty, e.g., to erect a barrier or, as in this case, to warn of a
cable across a road “‘might not cause the accident, such a
failure might be a substantial factor in aggravation of the
injuries and, in that event, with proof of causation and
negligence, the State will be liable’”.24
In summary, our Supreme Court stated the test to
determine whether the Cabinet breached its duty to a traveler of
a public road as follows:
21
Babbitt, 172 S.W.3d at 794.
22
Babbitt, 172 S.W.3d at 793.
23
Id. at 792.
24
Id. at 795 (quoting 60A C.J.S. Motor Vehicles § 457 (2005)).
-10-
Whether the failure to provide warnings
. . . at a particular location constitutes
negligence on the part of the highway
authority is a fact-intensive inquiry for
which the various designed guidelines, as
well as available funds and cost
effectiveness, may be considered. If a
determination is made that the failure to
provide warnings . . . constitutes
negligence, the factfinder must then
determine from the evidence whether the
presence of warnings . . . would have
prevented or reduced the damages sustained
by the claimant and apportion liability in
accordance with KRS 411.182. . . .
[T]he Board misinterpreted Shadrick as
completely exonerating the Cabinet when the
hazard is in plain view and the driver is
contributorily negligent, compelling the
erroneous conclusion that [the vehicle
operator’s] own negligence obviated any need
to consider whether the Cabinet had a duty
to [warn] and, if so, whether its failure to
do so contributed to cause [the vehicle
operator’s] death, which would require an
apportionment of damages.25
In the case before us, the Dissent argues that
Jeremiah cannot be deemed a member of the traveling public
because KRS 189.515(1) prohibits the operation of an ATV on a
public roadway.
However, the damages resulting from the riding
of an ATV on a public highway obstructed by an indiscernible
cable were certainly foreseeable;26 and under the doctrine of
comparative negligence the rule is that while a plaintiff’s own
25
Babbitt, 172 S.W.3d at 795.
26
We take judicial notice of the fact that there are frequent prosecutions
under the statute forbidding the riding of an ATV on the public highway.
-11-
illegal conduct which directly contributed to his damages may
limit his recovery, it does not bar recovery.27
The Board of
Claims found that although Old Highway 167 was not used as a
regular thoroughfare, the Cabinet owned the portion where the
accident occurred for the purpose of maintaining a guardrail put
in place for the new bridge, and the highway was accessible for
use by the general public.
Under these circumstances, the law
is settled that the Cabinet owed Jeremiah the duty to keep the
highway in a reasonably safe condition for travel, to provide
proper safeguards, and to give adequate warning of dangerous
conditions in the highway.28
While the Cabinet and the Board do not specifically
base their view as to the Cabinet’s lack of liability on the
doctrine of superseding cause, essentially this is the basis for
their position.
The law of superseding cause “use[s] [the]
scope of liability to prevent a modestly negligent tortfeasor
from being held liable for the entirety of another’s harm when
the tortious acts of other, more culpable persons were also a
cause of the harm” [citations omitted].29
Our Supreme Court
addressed this argument in Babbitt and stated that “the doctrine
of superseding cause has been substantially diminished by the
27
Babbitt, 172 S.W.3d at 795.
28
Automobile Club Insurance, 467 S.W.2d at 328.
Lewis, 33 S.W.3d 518 (Ky. 2000).
29
Babbitt, 172 S.W.3d at 793.
-12-
See also Rentschler v.
adoption of comparative negligence.”30
Thus, we conclude that
the fact that Jeremiah was using an ATV to unlawfully travel a
public road did not render the Cabinet free of fault for its
negligence, but rather Jeremiah’s negligence was a factor which
the circuit court properly considered in apportioning the
liability between the parties.
For the foregoing reasons, the judgment of the Wayne
Circuit Court is affirmed.
POTTER, SENIOR JUDGE, CONCURS IN RESULT ONLY.
GUIDUGLI, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
GUIDUGLI, JUDGE, DISSENTING.
Respectfully, I dissent
from the majority opinion because I believe that the Cabinet did
not owe a duty to Jeremiah, as he was not a member of the
traveling public, and accordingly Amanda is not entitled to any
recovery.
In Commonwealth, Transportation Cabinet, Dept. of
Highways v. Shadrick,31 the Supreme Court of Kentucky set out a
three-part test to establish negligence on the part of the
Department of Highways:
“[A] claimant must establish:
(1) a
duty on the part of the Department; (2) a breach of that duty;
and (3) consequent injury.”32
30
Babbitt, 172 S.W.3d at 793.
31
956 S.W.2d 898 (Ky. 1997).
32
The issue in Shadrick, as in this
Id. at 900.
-13-
case, was whether a duty was owed by the Department of Highways
to the claimant.
In Commonwealth, Department of Highways v.
Automobile Club Insurance Co.,33 the former Court of Appeals
stated:
[T]he public authority having control over a
highway has a duty to keep it in a
reasonably safe condition for travel, to
provide proper safeguards, and to give
adequate warning of dangerous conditions in
the highway. This includes the duty to
erect warning signs and to erect and
maintain barriers or guardrails at dangerous
places on the highway to enable motorists,
exercising ordinary care and prudence, to
avoid injury to themselves and others. . . .
[I]t is [the Department of Highway’s] duty
to furnish adequate protection for the
general traveling public and users of the
highway facilities.
The Commonwealth is to exercise ordinary care to maintain its
highways in a reasonably safe condition for the traveling
public.34
In the present case, the Board of Claims found that
although Old Highway 167 was not used as a regular thoroughfare,
the Cabinet owned the portion where the accident occurred for
the purpose of maintaining a guardrail put in place for the new
bridge.
However, the question of whether Old Highway 167 is a
roadway becomes a non-issue in light of my belief that the
Cabinet did not owe Jeremiah any duty of care.
33
467 S.W.2d 326, 328 (Ky. 1971).
34
Shadrick, 956 S.W.2d at 900; Automobile Club Insurance, 467 S.W.2d at 328.
-14-
KRS 198.515(1) prohibits a person from operating “an
all-terrain vehicle upon any public highway or roadway or upon
the right-of-way of any public highway or roadway.”
Because
ATVs are prohibited from being driven on a public roadway,
drivers operating ATVs are necessarily not members of the
traveling public.
Because the Cabinet’s duty requires it to
maintain public highways and roadways in a reasonably safe
condition for the traveling public, its duty cannot extend to a
person who by statute could never be a member of the traveling
public.
Regardless of what Old Highway 167 is determined to be
(public roadway or right-of-way), the Cabinet’s duty would not
extend to Jeremiah while he was operating an ATV.
Had Jeremiah
been operating some other mode of transportation that would
allow him to be considered a member of the traveling public, the
Cabinet would then owe him a duty of care and would be subject
to liability for its negligence in failing to protect him from a
hazardous condition.
Furthermore, the Board of Claims
specifically found that Old Highway 167 was not used by the
traveling public and had not been so used for twenty years.
Because in my opinion the Cabinet did not owe Jeremiah
any duty of care, it is not necessary to address whether the
accident was foreseeable, as the majority holds.
Also, I do not
agree with the majority that this result would run afoul of the
doctrine of comparative negligence.
-15-
Certainly, had Jeremiah at
the time of the accident been engaged in some illegal conduct,
but had at the same time been a member of the traveling public,
he would have been permitted to recover, albeit limited by the
extent his illegal conduct contributed directly to his damages.
In this case, however, the duty found in the statute flows only
to members of the traveling public, which specifically excludes
Jeremiah.
Because there was no duty to be breached, there can
be no recovery.
Therefore, I would reverse the circuit court’s
decision and reinstate the Final Order of the Board of Claims
denying relief.
BRIEF FOR APPELLANT:
Andrew M. Stephens
Lexington, KY
BRIEF FOR APPELLEE, AMANDA
GUFFEY:
Richard Hay
Rhonda Hatfield-Jeffers
Keith A. Upchurch
Somerset, KY
Van F. Phillips
Monticello, KY
-16-
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.
