COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET VS. KERN (VICTORIA), ET AL.Annotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF HIGHWAYS
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN A. HAYDEN, JUDGE
ACTION NO. 01-CI-00094 & 01-CI-00400
VICTORIA KERN, GUARDIAN OF JASON KERN;
VICTORIA KERN; SCOTTIE DENTON;
PAULA SCHRIBER, ADMINISTRATRIX OF
THE ESTATE OF DELANIA DENTON, DECEASED;
SCOTTIE DENTON, GUARDIAN OF JEREMY AND
** ** ** ** **
BEFORE: CLAYTON, NICKELL, AND TAYLOR, JUDGES.
NICKELL, JUDGE: The Commonwealth of Kentucky Transportation Cabinet,
Department of Highways (“Transportation Cabinet”), has appealed the judgment of
the Henderson Circuit Court which upheld a Kentucky Board of Claims (“Board”)
decision apportioning partial liability to the Transportation Cabinet for a motor
vehicle collision resulting in one fatality and serious bodily injury to several other
victims. For the following reasons, we affirm.
The pertinent facts are relatively simple and undisputed. On July 8,
1997, a two-vehicle collision occurred at the intersection of Kentucky Highway
812 (“Hwy. 812”) and Kentucky Highway 2099 (“Hwy. 2099”) in Henderson
County, Kentucky. These two highways intersect at a “T” crossing. Traffic on
Hwy. 2099 is controlled by a stop sign at the intersection and traffic on Hwy. 812
has an unimpeded path of travel. Victoria Kern (“Kern”) was operating her Toyota
Tercel eastbound on Hwy. 812. She was accompanied by Delania Denton
(“Delania”) and five children. Pearl Dragoo (“Dragoo”) was operating her
Chevrolet Caprice Classic northbound on Hwy. 2099. Dragoo had no passengers
in her vehicle.
Dragoo stopped her vehicle at the stop sign at the intersection of Hwy.
812 and Hwy. 2099. A large truck driven by Kevin Murphy (“Murphy”) was
behind her. Dragoo’s view to the west was partially obstructed by a guardrail and
two to three foot tall Johnson grass growing behind it which had not been mowed
in several weeks. The stop sign is located approximately forty feet in front of the
actual intersection of the two roads. After coming to a complete stop, Dragoo
accelerated her vehicle to cross Hwy. 812 and make a left-hand turn. She
continued to look left and right as she moved toward the intersection, but did not
stop at the edge of the intersection. As Dragoo entered the eastbound lane of
traffic on Hwy. 812, she and Kern saw each other. In an attempt to avoid a
collision, Dragoo applied her brakes and came to a halt well into the eastbound
lane of Hwy. 812. Kern swerved away from Dragoo’s vehicle.
In spite of efforts made by both drivers to miss one another, the front
of Dragoo’s vehicle struck the right side of Kern’s vehicle. The collision caused
Kern to lose control of her vehicle, strike the guardrail on the right side of the
roadway, flip and tumble down a steep embankment. None of the passengers in
Kern’s vehicle were wearing seatbelts and all were ejected during the crash.
Dragoo was initially confused as to whether she had struck Kern and proceeded
with her left turn. She quickly realized there had been a collision and turned her
car around to check on the condition of the occupants in Kern’s vehicle. Murphy
contacted the authorities and attempted to assist the injured passengers.
The Kentucky State Police (“KSP”) responded to the scene and
oversaw the investigation. Trooper Mark Applin (“Trooper Applin”) and several
members of the Henderson Police Department and EMS arrived within four
minutes of being dispatched. Upon arrival, Trooper Applin assessed the scene and
found Delania had died in the crash. After ensuring the other passengers were not
in imminent danger, the trooper collected information about events leading up to
the collision and completed a standard traffic accident. Trooper R.D. Abrahamson
(“Trooper Abrahamson”), a traffic accident reconstructionist, was assigned to
evaluate and investigate the matter.
As required by KRS1 44.110, within one year of the collision Kern,
the occupants of her vehicle and Delania’s estate (collectively “Claimants”) filed
claims2 with the Board seeking damages from the Transportation Cabinet. The
Claimants alleged their losses were partially caused by the Transportation
Cabinet’s negligence in failing to mow the area behind the guardrail on Hwy. 812.
They claimed this failure to maintain the area adjacent to the roadway was a
significant cause of the collision.
A hearing was held on February 4, 2000, before a Board Hearing
Officer, at which the parties were represented by counsel. On December 21, 2000,
the Hearing Officer entered a sixty-six page Findings of Fact, Conclusions of Law,
Opinion and Judgment wherein he apportioned eighty percent fault for the accident
to Dragoo, fifteen percent to the Transportation Cabinet, and five percent to Kern.
The judgment awarded Claimants a total of $84,481.50 to be paid by the
Transportation Cabinet. The Board adopted the Hearing Officer’s
recommendations. On January 18, 2001, an Order Amending Judgment was
entered which corrected some clerical mistakes in the original order.
The Transportation Cabinet moved the Board to reconsider its
decision. On April 19, 2001, the Board entered an Order Setting Aside Final Order
in Part and a Second Order Amending Judgment. In reducing its prior award to
Kentucky Revised Statutes.
Six different claims were filed with the Board of Claims seeking payment for unreimbursed
medical expenses, loss of earning capacity, funeral expenses, loss of parental consortium, and
Delania’s wrongful death. The claims were ultimately consolidated for trial purposes.
$63,407.82 in light of recent developments in the law, the Board adopted much of
the amended order, but vacated the earlier awards for loss of parental consortium
to be consistent with Guliani v. Guiler, 951 S.W.2d 318 (Ky. 1997).3 Thus, the
final sum awarded by the Board to the Claimants was $42,407.82. Both the
Transportation Cabinet and the Claimants appealed the final ruling to the
Henderson Circuit Court. The appeals were consolidated for purposes of judicial
economy. Ultimately, the circuit court upheld the Board’s decision by order
entered on May 30, 2006, but reduced the award to Delania’s estate by $9,000.00
which represented an offset for a payment of survivor’s benefits to her estate. This
The Transportation Cabinet contends the Board’s judgment imposing
liability upon it was clearly erroneous. In support of its contention, the
Transportation Cabinet asserts the Claimants failed to prove the required element
of causation to sustain a judgment in their favor on the negligence claim, and the
Board erred in granting the judgment as a matter of law. After a careful review of
the record, we disagree.
Contrary to the assertion of the Transportation Cabinet, our standard
of review is not de novo. We are aware of no authority supporting the
Transportation Cabinet’s position, and none is cited to us in the briefs. It is wellsettled that the standard of review for appeals from the Board of Claims is limited
The Claimants conceded the awards for loss of parental consortium were improper in light of
Guliani, supra. Thus, the dismissal of these claims is not contested in this appeal.
to whether the factual findings are supported by substantial evidence, and whether
the conclusions derived therefrom were clearly erroneous. Department for Human
Resources v. Redmon, 599 S.W.2d 474, 476 (Ky.App. 1980) (citing KRS 44.140(2)
[now (5)]4; Commonwealth, Department of Parks v. Bergee Bros., Inc., 480
S.W.2d 158 (Ky. 1972); Commonwealth v. Mudd, 255 S.W.2d 989 (Ky. 1953));
see also Pemberton v. Commonwealth, Department of Mental Health, 398 S.W.2d
487 (Ky. 1966); Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406 (1949).
Further, reviewing courts are not to substitute their judgment for that of the Board,
even if the court may have reached a different conclusion. Commonwealth,
Department of Highways v. General & Excess Insurance Co., 355 S.W.2d 695,
699 (Ky. 1962). These rules hold firm, even if conflicting evidence has been
presented to the board. Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d
130, 134 (Ky. 2000) (quoting Kentucky Commission on Human Rights v. Fraser,
625 S.W.2d 852, 856 (Ky. 1981)).
KRS 44.140(5) states, in pertinent part:
On appeal no new evidence may be introduced, except as to fraud
or misconduct of some person engaged in the hearing before the
board. The court sitting without a jury shall hear the cause upon
the record before it, and dispose of the appeal in a summary
manner, being limited 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
award. . . .
The language of this section has remained virtually unchanged since its original enactment in
The Transportation Cabinet has acknowledged it is not contesting any
of the factual findings made by the Board or the circuit court, nor that any of the
findings were unsupported by substantial evidence. Further, the Transportation
Cabinet has conceded it had a duty to maintain the highways and shoulders in a
reasonably safe condition including mowing the grass behind guardrails; it
breached that duty in the instant case because of a failure of its equipment; and the
Claimants sustained injuries in the collision. Thus, the sole issue presented is
whether the Board erred in finding a causal link between the acknowledged breach
of the duty owed by the Transportation Cabinet and the injuries sustained by the
Claimants. The Transportation Cabinet alleges the findings do not support the
award, and therefore the Board acted without or in excess of its powers.
The Transportation Cabinet argues Dragoo’s failure to stop and look
for oncoming traffic, and Kern’s failure to maintain control of her vehicle, were the
only two factors contributing to the collision. It claims its failure to mow and
otherwise maintain the shoulder area behind the guardrail which hindered sight
lines was inconsequential and irrelevant as each driver had the opportunity to avoid
the collision. In so arguing, the Transportation Cabinet asserts Dragoo’s failure to
stop at the edge of the intersection of the roadways was the primary cause of the
collision. Further, the Transportation Cabinet insinuates the Board engaged in
speculation when it found the overgrowth of vegetation obscured Dragoo’s view.
Thus, it claims the Board improperly assigned it any fault for the collision as the
Claimants failed to prove a causative link. A careful review of the record
convinces us otherwise.
There is no question Dragoo’s negligence was a significant factor in
causing the collision. That fact is evident from the Board’s apportionment of
eighty percent of the fault to her. However, there is ample support in the record
supporting the Board’s assignment of a portion of the fault to the Transportation
Cabinet. Dragoo testified she stopped at the posted stop sign but was unable to
clearly see eastbound traffic because of high weeds, brush and trees. She stated,
“even before I (sic) get out there to see if anything was coming, you was (sic) in
danger by the time you could see.” Trooper Abrahamson’s report indicated a
motorist’s view was obstructed even at the edge of the intersection, and listed an
obstructed view as a contributing factor to the collision. Trooper Applin testified
the high grass, coupled with strong southwest winds, decreased visibility for
drivers on Hwy. 2099 attempting to cross Hwy. 812. A videotape of the scene
taken the day of the collision showing the swaying grass and obscured view from
Hwy. 2099 was admitted into evidence before the Board. The Transportation
Cabinet’s own expert testified a motorist’s view was obstructed when stopped at
the stop sign on Hwy. 2099, but improved as the distance to Hwy. 812 was
In light of this evidence we are unable to conclude the Board was
clearly erroneous in concluding the tall weeds were a contributing factor to the
collision. The totality of the evidence clearly indicates Dragoo’s view was limited
by the unkempt shoulder, as found by the Board. Thus, we hold the Board’s
factual findings are supported by substantial evidence. Further, its legal conclusion
that the Transportation Cabinet’s negligence was a contributing factor to the
collision is supported by its factual findings. The circuit court did not err in so
Finally, although conflicting evidence was presented at the hearing,
the real question is not whether the Board could have reached a different result, nor
whether there is evidence in the record to support a different finding. The question
is simply whether the Board’s legal conclusions are supported by its factual
findings. Contrary to the Transportation Cabinet’s assertion, the Board properly
applied the facts to the controlling law. Having so held, there is no basis for
reversing the circuit court’s order affirming the Board of Claims’ decision as it is
supported by the record.
For the foregoing reasons, the judgment of the Henderson Circuit
Court is affirmed.
BRIEF FOR APPELLANT:
Clayton B. Patrick
Sarah K. Mello
BRIEF FOR APPELLEE,
ESTATE OF DELANIA DENTON:
BRIEF FOR APPELLEE,
Kelly H. Fowler