PREVIS (NOLLAIG) VS. DAILEY (PETE)Annotate this Case
RENDERED: AUGUST 29, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 00-CI-00051
** ** ** ** **
BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM, SENIOR
BUCKINGHAM, SENIOR JUDGE: This is an appeal and cross-appeal from a
judgment of the Bourbon Circuit Court in a personal injury case. The
appellant/cross-appellee, Nollaig Previs, sued the appellee/cross-appellant, Pete
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Dailey, after she was injured in a collision between her bicycle and a wagon that
Dailey was towing behind his truck. The jury in the first trial returned a verdict in
favor of Dailey. The Kentucky Supreme Court reversed the judgment and verdict
upon finding that Dailey had been negligent per se, and it remanded the case for a
new trial. See Previs v. Dailey, 180 S.W.3d 435 (Ky. 2005).
The jury in the second trial determined that Previs and Dailey were
each 50% at fault in the accident. It awarded Previs damages in the amount of
$32,611.90, which was reduced in the judgment to an award of $16,305.95 based
on 50% comparative fault.
In her appeal, Previs argues that the jury instructions were erroneous
and unsupported by the evidence. In his cross-appeal, Dailey argues that he was
entitled to a directed verdict on the issue of Previs’s negligence, that the jury’s
award of damages in the amount of $30,000 for pain and suffering was excessive,
and that he was entitled to an offset for basic reparations benefits. We affirm.
The facts of the case are set forth in the opinion of the Supreme Court:
On May 29, 1999, Appellant, Nollaig Previs, was riding
her bicycle on the right-hand side of Escondida Road in
Bourbon County, when she was approached from behind
by a vehicle driven by Appellee, Pete Dailey. Dailey was
driving a pick-up truck with an eight-foot bed and
camper top that was pulling two flatbed wagons, making
the total length of the vehicle approximately forty-eight
feet. When Dailey first observed Previs, she was pedaling
up a hill at a speed of approximately one or two miles per
hour. When Previs crested the top of the hill, Dailey
moved his truck over into the left lane of the road to pass
Previs. Assuming he had passed her, Dailey maneuvered
his truck back into the right-hand lane. As he did so, the
handlebars of Previs's bike became wedged under the
second flatbed wagon. The bike was pulled under the
wagon and Previs was thrown into a ditch on the side of
Previs subsequently filed a personal injury action against
Dailey in the Bourbon Circuit Court seeking damages. A
one-day trial was held on November 8, 2001. The trial
court denied both parties’ motions for a directed verdict,
and the case was thereafter submitted to the jury, which
returned a verdict in favor of Dailey.
Id. at 436.
The judgment in favor of Dailey was affirmed by this court. On
discretionary review, the Supreme Court concluded that Dailey’s own testimony,
that he did not look in his rearview mirror before maneuvering his truck back into
the right lane, proved he had violated his legal duty, which “required that he not
pass Previs unless he could do so without interfering with the safe operation of her
bicycle, and that if, in fact, he did pass her that he not drive to the right until he
was reasonably clear of her.” Id. at 438. The Supreme Court held that the manner
in which Dailey operated his vehicle was a clear violation of his statutory duties
and constituted negligence per se. Id. at 439. The Court remanded the case back
to the circuit court with the following directions:
We hold that the trial court should have granted Previs a
directed verdict on the issue of Dailey's negligence.
However, a jury is still entitled to consider Previs’s
duties in operating her bicycle, and apportion fault should
it find that Previs was negligent as well. The jury was
given instructions on both Previs’s duties and
apportionment, but was directed not to consider them
upon finding for Dailey. On remand, a jury must consider
these additional issues.
At the second trial, Previs testified that when she was pedaling up the
hill, her speed was between one and five miles per hour. She stated that she heard
a vehicle behind her but did not turn around to look at it. She had crested the hill
when Dailey started to pass her. Previs further testified that Dailey increased his
speed when he passed her but that she also increased her speed (since she was now
going downhill) to approximately five to ten miles per hour. She also testified that
she kept to the right side of the roadway.
The jury found that Previs had failed to comply with one or more of
her duties and that such a failure was a substantial factor in causing the accident.
The jury further found Previs and Dailey each to be 50% at fault. It awarded
damages in the following amounts: past medical and drug expenses, $2,346.90;
damages to personal property, $265; past and future mental and physical pain and
suffering, $30,000.2 Judgment was entered for Previs in the net amount of
$15,132.50, which represented her total award reduced by her 50% comparative
fault and further offset by $1,173.45 representing basic reparations benefits.
Previs filed a motion for judgment notwithstanding the verdict and/or
motion for a new trial or, in the alternative, to amend the judgment. The trial court
denied all motions except the motion to amend the judgment, which it granted by
The amounts of the past medical and drug expenses and the personal property damages had
been stipulated by the parties.
removing the offset of $1,173.45. The court also awarded Previs costs and interest
on the judgment.
On appeal, Previs’s main argument concerns the jury instructions
which defined her duties as a bicyclist. These differed substantially from the
instructions presented at the first trial.
The instructions at the first trial regarding Previs’s legal duties, which
were never submitted to the jury because of its verdict that Dailey had not violated
his legal duties, stated:
INSTRUCTION NO. 4
The Court instructs the jury that it was the duty of the
Plaintiff, Nollaig Previs, upon the occasion about which
you have just heard evidence, in riding her bicycle, to
exercise ordinary care for her own safety and for the
safety of other persons using the roadway, and this
general duty included the following specific duties:
1. To keep said bicycle under reasonable control;
2. To keep a lookout ahead for other persons and vehicles
in front of her or so close to her intended line of travel as
to be in danger of collision;
3. To operate her bicycle in such a manner as to avoid
collision with other persons and vehicles using the
Do you believe from the evidence that the
Plaintiff, Nollaig Previs, failed to exercise one or more of
the above described general and specific duties and that
such failure was a substantial factor in causing the
The instructions at the second trial stated:
INSTRUCTION NO. 4
It was the duty of Plaintiff Nollaig Previs in riding her
bicycle to exercise ordinary care for her own safety and
for the safety of other persons using the highway, and
this general duty included the following specific duties:
A. To keep lookout to the rear for other vehicles near
enough to be affected by the intended movement of her
B. If she was about to be overtaken and passed by the
Defendant’s vehicle, to give way to the right in favor of
the Defendant’s vehicle;
C. If she became aware that the Defendant’s vehicle was
passing or attempting to pass, to give the Defendant such
assistance and cooperation as the circumstances
reasonably demanded in order to obtain clearance and
avoid an accident; and
D. To exercise ordinary care generally to avoid collision
with other persons or vehicles on the highway.
“Alleged errors regarding jury instructions are considered questions of
law that we examine under a de novo standard of review.” Hamilton v. CSX
Transportation, Inc., 208 S.W.3d 272, 275 (Ky.App. 2006)(citation omitted).
“Instructions must be based upon the evidence and they must properly and
intelligibly state the law.” Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky.
Previs argues that the trial court was bound by the ruling of the
Kentucky Supreme Court to use the instructions from the first trial. She contends
that by imposing additional duties on her in the second set of instructions, the trial
court saddled her with a prejudicial burden and mitigated the finding of the
Supreme Court that Dailey had acted with negligence per se. We disagree.
The Supreme Court did not direct the trial court to use any particular
instructions on remand. Furthermore, in remanding the case, the Supreme Court
unmistakably contemplated the possibility that there may have been contributory
negligence on Previs’s part. See Previs at 439. While we understand that the
instructions were required to specify Previs’s legal duties and that the instructions
set forth no legal duties concerning Dailey since his negligence had been
determined, instructing the jury in that manner was necessary and proper even
though the emphasis may have appeared to be on Previs. It was incumbent upon
Previs’s attorney to clarify to the jury any confusion it may have had in that regard.
We fail to see how the new instructions in any way undermined the Supreme
Court’s finding that Dailey was negligent per se since that finding was
unaccompanied by any assignment of percentage of fault.
Previs further contends that the instructions at the second trial,
specifically Instruction No. 4 (B) and (C), which are predicated on Kentucky
Revised Statutes (KRS) 189.350(1) and (2), were erroneous because the duties
created by that statute are not applicable to bicyclists. The statute provides that
(1) The operator of a vehicle about to be overtaken and
passed shall give way to the right in favor of the
overtaking vehicle if the overtaking vehicle is a motor
(2) In all cases of meeting, passing, or overtaking of
vehicles such assistance shall be given by the operator
and occupants of each vehicle, respectively, to the other
as the circumstances reasonably demand, in order to
obtain clearance and avoid accidents.
In Thomas v. Dahl, 170 S.W.2d 337 (Ky. 1943), a case cited by
Dailey that involved a collision between a boy on a bicycle and a delivery truck,
the Court stated, in construing Sec. 2739g-37, Ky.Stats., now KRS 189.330, that
“[a] bicycle is a vehicle . . . within the definitions of the statute.” Id. at 338.
Previs argues that Thomas is an insufficient basis on which to justify the use of the
statute in this case. But the applicability of KRS 189.350 to bicyclists was
confirmed in a later case, Toombs v. Williams, 439 S.W.2d 946 (Ky. 1969), which
also involved a collision between a child on a bicycle and a truck. In that case, the
appellate court stated that
It was the duty of the truck driver, about to pass the boy
on the bicycle, and the duty of the boy on the bicycle,
about to be passed, to render such assistance to the other
as the circumstances reasonably demanded in order to
obtain clearance and avoid accidents. KRS 189.350. The
jury reasonably could have found that ordinary care
required that the boy be given a clearance warning. The
proximate cause of this accident is a jury question, and it
is for it to decide.
Id. at 948-49. Relying on Thomas and Toombs, we hold that the trial court did not
err in using an instruction based upon the duties set forth in KRS 189.350.
Previs next argues that, even if the statute is applicable to bicyclists,
this was simply not the type of accident which KRS 189.350 was designed to
prevent. She relies on two cases, both of which we find to be distinguishable. In
Barrett v. Stephany, 510 S.W.2d 524 (Ky. 1974), Stephany was driving his
automobile in the right-hand lane of the highway. According to Stephany, Barrett
was ahead of him, driving his truck in the left-hand lane with the left-turn signal
operating. Stephany continued along in the right lane, intending to pass Barrett’s
truck, when Barrett’s truck suddenly turned right. Stephany was unable to stop in
time and struck the truck. According to Barrett, however, his truck was entirely in
the right-hand lane with its right-turn signal operating, and he had pulled only
slightly to the left in order to negotiate the right turn.
The jury returned a verdict in favor of Stephany and Barrett appealed,
arguing that KRS 189.350 was applicable and that the jury should have been
instructed regarding Stephany’s duties to assist the other vehicle to obtain
clearance and avoid accidents. The court disagreed, stating that
all of Stephany’s duties for which there was evidentiary
support were stated and there was nothing in the evidence
to suggest anything more he might or could have done in
the way of “assisting” the driver of the truck. This
simply was not the type of accident KRS 189.350(1) was
designed to prevent.
Id. at 528. Previs argues that, similarly, there was no probative evidence in her
case from which the jury could possibly have concluded that she operated her
bicycle in such as a manner as to suggest that she either failed to give the right-ofway in favor of Dailey or failed to give him reasonable assistance and cooperation
in order to obtain clearance and avoid an accident. We disagree.
In Barrett, the jury had to believe either Barrett or Stephany. If the
truck had indeed been in the right lane as Barrett claimed, then Stephany would not
have been passing and the statutory duties related to that activity would be
irrelevant. If the facts were as Stephany claimed, it is indeed difficult to know
what he could have done to “assist” Barrett. In Previs’s case, however, there was
evidence provided by her own testimony that she did not turn to look at the
approaching vehicle and that she accelerated while Dailey was attempting to pass.
This evidence was sufficient to support an instruction on her duty to assist and
cooperate in passing.
In Lareau v. Trader, 403 S.W.2d 265 (Ky. 1965), the other case upon
which Previs relies, a thirteen-year-old boy, Craig Lareau, was cycling along a
highway. A car driven by Trader came up behind him and pulled to the left to
pass. Lareau was struck by the car and killed. Trader admitted that she did not
sound her horn in order to warn Lareau of her intent to pass and that when she
pulled out, her left wheels were around the center line of the highway. She
testified that the boy then suddenly turned in her path. The evidence presented at
trial (which included measurements of the width of her car and the width of the
right lane) showed that she gave the boy very little clearance in passing. A
contributory negligence instruction was given, based upon KRS 189.380(1) and
(2), which imposed upon the boy a duty
to exercise ordinary care not to turn his bicycle from a
direct course upon the highway unless and until such
movement could be made with reasonable safety and not
to turn his bicycle to the left if any other vehicle could be
affected by such movement without giving a signal to
turn left by extending his hand and arm horizontally for
at least the last 100 feet traveled by his bicycle before
Id. at 268.
The appellate court in Lareau determined that the instruction was
inappropriate and prejudicial because it implied that the boy had been planning to
turn and had failed to take the proper precautions, whereas there was absolutely no
evidence that he had been planning to turn at that point beyond the self-interested
testimony of the driver and her passenger. The court stated as follows:
It must be remembered that Craig admittedly was in his
own lane of traffic, close to the shoulder of the road, had
had no statutory warning of the approach of the Trader
automobile when the accident happened, and that the
point where he normally would have turned to go to the
bowling alley was a substantial distance ahead. Although
Mrs. Trader and Kathy [her passenger] testified that
Craig “turned suddenly,” the clearance she allowed him
in passing was so frugal at most that he had little space
for deviating from his course. If we concede arguendo
that the statute was intended to cover deviations of
direction in one's own lane of traffic, we must still
conclude that it was not the words used to describe
Craig's movements which should govern invoking the
statute, but the factual situation itself which should
govern. We conclude that the imposition of this statutory
duty upon Craig by the instruction in these circumstances
was not justified and was so prejudicial that we must
reverse the judgment.
Id. at 268-69.
Previs argues that the only probative evidence in her case indicated
that Dailey had failed to provide Previs with any clearance and actually ran her off
the side of the road. She claims that this is supported by the statement in the
opinion of the Supreme Court that “[a]pparently, Dailey believed that it was solely
Previs’s obligation to make sure he safely passed her. Clearly that is not the law.”
See Previs at 438. But the Supreme Court’s wording unmistakably indicates that
there was an obligation on both parties to make sure that the passing was
Previs testified that she did not look at Dailey’s vehicle when she
heard it approaching and that she accelerated after she got to the top of the hill,
even though she was aware that Dailey was passing. We conclude that this
evidence supports an instruction regarding her duty to facilitate the passing –
namely, to assist and cooperate to obtain clearance and avoid an accident.
Previs also argues that the trial court erred in its wording of
Instruction No. 6 and that the trial itself was unfairly slanted in that it focused
almost entirely on her negligence rather than Dailey’s. She acknowledges that, in
keeping with the Supreme Court’s directive in the first appeal, the evidence
presented at the second trial focused largely on her duties in operating her bicycle.
As a consequence, Previs contends, the jury heard only limited testimony regarding
Dailey’s gross disregard for her safety and were only informed briefly in
Instruction No. 3 that the Court had previously decided that Dailey had breached
his duty of ordinary care and that said breach was a substantial factor in causing
But any imbalance in this regard was a direct result of Previs’s trial
strategy. On several occasions during the course of the trial, when Previs’s
attorney objected to Dailey’s testimony, the judge stressed that it would be
necessary to present more testimony from Dailey in order to assist the jury in
assessing the comparative fault of the parties. The trial court was concerned that
[I]f we don’t get to the part about what he did, how is the
jury supposed to decide what percentage of fault she has?
In other words, you’ve got [to] compare - my view of this
case in trying to figure out specifically what each of you
was arguing, how is the jury to decide what her
percentage of fault is if they don’t get to hear about what
his fault is.
There’s a distinct difference between defending his
actions and making sure that the jury knows, making sure
the jury knows what he did and what his percentage,
what his responsibility was for what happened.
Previs rejected this approach because she found Dailey’s testimony to
be self-serving, and she feared it would undermine the Supreme Court’s finding
that he had been negligent per se. Previs’s attorney repeatedly insisted that the
only actions being judged at the trial were those of Previs, stating
It’s plain and simple. It says only Previs. The jury is
only entitled to consider Previs’s duties, and first of all
they should find that Previs was negligent. That’s all we
Previs’s argument on appeal, that the trial was unfair because the jury
did not hear enough evidence about Dailey’s negligence, is therefore essentially
unpreserved because her attorney followed a trial strategy that limited Dailey’s
testimony. He chose to adopt this strategy and may not now complain about the
results. An appellant “will not be permitted to feed one can of worms to the trial
judge and another to the appellate court.” Edwards v. Hickman, 237 S.W.3d 183,
191 (Ky. 2007), quoting Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.
Previs also argues that Instruction No. 6 should have only required the
jury to determine the percentage of Previs’s fault, not the percentages of both
parties’ fault. She maintains that “[i]n order for the jury to have competently
assessed a percentage of total fault attributable to each of the parties, they would
have had to have heard all evidence regarding the operation of Dailey’s vehicle.”
Further, Previs argues in her reply brief that “[t]he wording of Instruction No. 6
created the impression that each party bore some responsibility for the collision[.]”
Additionally, she complains that the instruction was erroneous and prejudicial
because it stated that “You must find at least one percent (1%) of fault attributable
to Pete Dailey.”
First, as we have noted above, if there was any lack of evidence of
fault by Dailey, it was because Previs herself sought to limit testimony in that
regard. Second, as to Previs’s statement that the instruction’s wording created an
impression that both parties were at fault, we note that this instruction was not
subject to the jury’s consideration until it had found Previs to be at fault under
Interrrogatory A. Language at the end of Instruction No. 5 made it clear that the
jury was not to consider Instruction No. 6 unless it had found Previs to be in
violation of her legal duties under Interrogatory No. 4 and had answered “YES” to
Interrogatory A. Third, once the jury determined that Previs had violated one or
more of her legal duties, it was proper for the court to submit a comparative fault
instruction to the jury so that fault could be apportioned. The jury could not fairly
determine Previs’s percentage of fault without determining Dailey’s percentage of
fault at the same time. Finally, any error in instructing the jury that they must find
Dailey at least one percent at fault was harmless. See Kentucky Rules of Civil
Procedure (CR) 61.01.
On cross-appeal, Dailey raises three issues: that he was entitled to a
directed verdict, that the jury’s award of damages in the amount of $30,000 for
pain and suffering was excessive, and that he was entitled to an offset for payable
basic reparation benefits.
His first argument regarding a directed verdict is moot in light of our
decision to affirm the judgment.
As to the award of $30,000 for past and future mental and physical
pain and suffering, Dailey argues that the trial court erred in refusing to grant a
new trial on the issue as the amount was excessive and disproportionate in light of
the fact that Previs’s medical expenses and property damages were only $2,346.90
and $265 respectively. He points out that her scars were not “extremely
noticeable” at the time of trial and that she only experienced physical pain for a
few months following the accident. The jury was not given a limiting instruction
on the amount of the award for pain and suffering, nor did Dailey request one.
Our review of this issue consists only of determining whether the trial
court’s refusal to grant a new trial was clearly erroneous.
... [T]he trial court and appellate court have different
functions.... the trial court is charged with the
responsibility of deciding whether the jury's award
appears “to have been given under the influence of
passion or prejudice or in disregard of the evidence or the
instructions of the court.” CR 59.01(d). This is a
discretionary function assigned to the trial judge who has
heard the witnesses first-hand and viewed their demeanor
and who has observed the jury throughout the trial.
On the other hand, the appellate function is properly
described in Prater v. Arnett, Ky.App., 648 S.W.2d 82
“... the appellate court no longer steps into the shoes of
the trial court to inspect the actions of the jury from his
perspective. Now, the appellate court reviews only the
actions of the trial judge ...”
Once the issue [excessive or inadequate damages] is
squarely presented to the trial judge, who heard and
considered the evidence, neither we, nor will the Court of
Appeals, substitute our judgment on excessiveness [or
inadequacy] for his unless clearly erroneous.”
Cooper v. Fultz, 812 S.W.2d 497, 501 (Ky. 1991), overruled on other grounds by
Sand Hill Energy, Inc., 83 S.W.3d 483 (Ky. 2002), quoting Davis v. Graviss, 672
S.W.2d 928, 932-33 (Ky. 1984).
Previs testified about the considerable pain and discomfort she
suffered as a result of the accident, the lengthy healing process she endured, and
the fact that she has been advised by a dermatologist never to expose the scarred
parts of her body to the sun. Faced with this evidence, we conclude that the trial
court’s judgment that the damages were not excessive was not clearly erroneous.
Finally, Dailey contends that the trial court erred in not allowing an
offset of $1,173.45 (his 50% share of the medical expenses) for basic reparations
benefits (BRB) to which Previs was entitled. Previs agrees that pedestrians are
entitled to BRB, but she contends that bicyclists are in the same position as
motorcyclists, who are not entitled to BRB from any source unless they have
purchased it as optional coverage. We agree with Dailey that a bicyclist is in the
same position as a pedestrian under the Motor Vehicle Reparations Act. See KRS
304.39-050 (“A pedestrian, as used herein, means any person who is not making
‘use of a motor vehicle’ at the time his injury occurs.”) Nonetheless, the trial court
did not err in amending the judgment to remove the offset, because there was no
proof that Previs was covered by the provisions of the no-fault act.
This issue was addressed by the Kentucky Supreme Court in
Whiteman v. Lowe, 702 S.W.2d 436 (Ky. 1986), yet another case involving a
collision between a motor vehicle and bicycle. We set forth herein the pertinent
portion of that opinion:
K.R.S. 304.39-060(1) provides:
Any person who registers, operates,
maintains or uses a motor vehicle on the
public roadways of this Commonwealth
shall, as a condition of such registration,
operation, maintenance or use of such motor
vehicle and use of the public roadways, be
deemed to have accepted the provisions of
this subtitle, and in particular those
provisions which are contained in this
For those to whom the provisions of the no-fault act are
applicable, tort liability with respect to accidents
occurring in this Commonwealth arising from the
ownership, maintenance or use of a motor vehicle is
abolished for damages because of bodily injury, sickness
or disease to the extent that basic reparations are
applicable. KRS 304.39-060(2)(a). Tort liability for pain
and suffering is recoverable only in the event that
thresholds set forth in KRS 304.39-060(2)(b) are met.
Tort liability is not so limited, however, for injury to a
person who is not an owner, operator, maintainer or user
of a motor vehicle. KRS 340.39-060(2)(c).
Karla Whiteman was nine years old and was riding a
bicycle when she was injured. There is no evidence in
this record that she either registered, operated,
maintained or used a motor vehicle upon the public
highways of this Commonwealth. There is nothing in this
record which would make the Act applicable to her.
Respondent argues that there is a presumption that every
person involved in a motor vehicle accident is presumed
to be covered by the Act.
The General Assembly expressly extended the
presumption of acceptance of the provisions of the Act to
only four categories of persons, namely, (1) those who
register, (2) operate, (3) maintain, or (4) use a motor
vehicle upon the highways of this Commonwealth. KRS
Because there was no evidence in this case that Karla
Whiteman had registered, operated, maintained or used a
motor vehicle upon the highways of this Commonwealth,
we hold no presumption existed that she accepted the
provisions of the Act. In the absence of some showing
that she accepted the provisions of the Act, the abolition
of tort liability contained in the Act was not applicable to
Respondent contends that the burden was upon movant to
show that she met the threshold requirements of KRS
304.39-060(2)(b) or the exemptions itemized in KRS
304.39-060(2)(c). It is our view that before these
provisions come into play it must be established that the
person seeking recovery falls within the coverage of the
Act. They are designed to permit tort recovery in certain
instances by a person to whom the Act is applicable
where recovery would otherwise be precluded by the Act.
Id. at 438-39.
Dailey can point to no evidence in this case that Previs registered,
operated, maintained, or used a motor vehicle upon the highways of this
Commonwealth, and therefore there is no presumption that she accepted the
provisions of the Act. The trial court correctly denied the offset.
The judgment of the Bourbon Circuit Court is affirmed.
BRIEFS FOR APPELLANT/CROSSAPPELLEE:
BRIEFS FOR APPELLEE/CROSSAPPELLANT:
David A. Weinberg
Thomas L. Travis
Chadwick A. Wells