ADKINS (TERESA) VS. BRANDT (JOSEPH M.)Annotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 06-CI-01135
JOSEPH M. BRANDT
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BEFORE: VANMETER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: Teresa Adkins appeals from a jury verdict in the Campbell
Circuit Court which rejected her personal injury claim against Joseph Brandt.
Specifically, Adkins argues the trial court erred by instructing the jury that she had
a duty not to ride her bicycle on the sidewalk. Adkins asserts that she is exempt
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
from that general prohibition due to her disability, and that the trial court erred in
finding that she was not handicapped as a matter of law. Adkins also contends that
the court erred in overruling her motion for a directed verdict on the issue of
negligence per se arising from Brandt’s alleged violation of a Newport City
Ordinance. Finding no error as to either issue, we affirm.
This case arises from a collision involving an automobile operated by
Brandt and a bicycle ridden by Adkins on August 9, 2005, in Newport, Kentucky.
At the time of the collision, Brandt was driving his vehicle northbound in Hamlet
Alley towards Sixth Street. He stopped at the Seventh Street intersection and then
proceeded toward Sixth Street in the alley.
At the same time, Adkins was riding her bicycle on the sidewalk
along Sixth Street eastward toward Hamlet Alley. A wall runs along Hamlet Alley
and ends at the corner of the alley and Sixth Street. Adkins asserts that the
collision occurred when Brandt’s vehicle suddenly emerged from behind the wall
and she was unable to avoid the collision. Conversely, Brandt claims that he
stopped at the intersection at Sixth Street on the right-hand side of Hamlet Alley.
According to Brandt, he began to enter the intersection at Sixth Street where
Adkins’ bicycle, failing to stop at the intersection of the alley and sidewalk, struck
As a result of the collision, Adkins was thrown from her bicycle and
onto the front end of Brandt’s vehicle. She suffered an injury to her knee which
eventually required surgery. The collision also damaged the front driver’s side
headlight area of Brandt’s vehicle.
Adkins filed this action to recover for medical bills and pain and
suffering she sustained as a result of the collision. In response, Brandt answered
that Adkins was negligent per se and in violation of Newport Ordinance § 70.35
because she was riding her bike on the sidewalk. Newport Ordinance § 70.35
reads as follows: “It is unlawful for any person to ride a bicycle or operate any
motorized device upon the sidewalks of the City, excluding those operated by any
At trial, Brandt moved for a directed verdict to hold Adkins negligent
per se based on her violation of the ordinance. In opposition, Adkins asserted that
she is exempt from the ordinance because she is handicapped. Specifically, she
testified that she was and is totally disabled, unemployable, unable to drive and
receiving social security disability income as a result of being afflicted with grand
mal seizures. Adkins further testified that the Social Security Administration
recognizes her disability. Her treating physician, Dr. Michael Grefer, also testified
that Adkins is disabled.
The trial court found that Adkins was not, as a matter of law, a
“handicapped individual” under the ordinance. The trial court then instructed that
Adkins had a duty not to ride her bicycle on the sidewalk. Adkins argues this
ruling was tantamount to directing a verdict that she was negligent.
Adkins also moved the court for a directed verdict at the conclusion of
the proof, asserting that Brandt was negligent per se as a result of his violation of
Newport Ordinance § 71.27 which reads: “The operator of a vehicle entering a
street from an alley or from a private road or drive shall yield the right-of-way to
vehicles already approaching on the street.” In response, Brandt argued he did not
fail to yield to Adkins. While he admitted that his view was obstructed by the high
wall, Brandt testified that he came to a complete stop and then slowly crept out
into the intersection. He further asserted that Adkins’ bicycle struck his vehicle
only after he had started moving forward. The trial court denied Adkins’ motion
for a directed verdict, concluding that a question for the jury existed as to whether
Brandt yielded to Adkins. The jury returned a verdict in favor of Brandt. This
Adkins argues the trial court erred in failing to grant a directed verdict
in her favor deeming Brandt to have been negligent per se as a result of violating
Newport Ordinance § 71.27. In reviewing a motion for directed verdict, we are
governed by the standard set forth in Childers Oil Co., Inc. v. Adkins, 256 S.W.3d
19 (Ky. 2008):
The appropriate standard for review of denial of a
motion for directed verdict is set forth in Lewis v.
Bledsoe Surface Mining Company, 798 S.W.2d 459 (Ky.
1990). In determining whether the circuit court erred in
failing to grant the motion, all evidence that favors the
prevailing party must be taken as true; and the reviewing
court is not at liberty to assess the credibility of witnesses
or determine what weight is to be given the evidence. Id.
at 461. As the prevailing party, Adkins is entitled to all
reasonable inferences that may be drawn from the
evidence. Id. The appellate court is limited to
determining whether the verdict is “‘palpably or
flagrantly’” against the evidence so as ‘to indicate that it
was reached as a result of passion or prejudice.’” Id.
(quoting NCAA v. Hornung, 754 S.W.2d 855, 860 (Ky.
Id. at 25.
Adkins asserts that Brandt should have been found negligent per se
because the fact that a collision occurred means that neither Brandt nor Adkins
yielded to the other. Adkins submits that Newport Ordinance § 71.27 puts the
burden on the vehicle entering the street from the alley to yield. Ordinance § 71.27
reads, “The operator of a vehicle entering a street from an alley or from a private
road or drive shall yield the right-of-way to vehicles already approaching on the
However, there was enough evidence at trial justifying the submission
of this evidence to the jury. First, a witness, Herb Seger, testified that he saw
Adkins traveling on her bicycle along Sixth Street moments before the collision.
Seger testified that she was “going pretty good” and he thought to himself that “she
must be in a hurry.” In addition, Brandt submitted photographs of his car showing
that the collision occurred on the left side of his vehicle, indicating that perhaps
Adkins ran her bicycle into Brandt’s vehicle. Brandt also testified that he crawled
out into the intersection after coming to a complete stop and that is when the
collision occurred. Due to the relative position of a driver and the length of a
vehicle, a driver would necessarily need to pull forward to see past the wall.
Finally, Adkins’ testimony differed from Brandt’s in that she stated she was riding
along when Brandt’s vehicle suddenly emerged from behind the wall running
along the alley. Given these disputed issues of fact, there is enough evidence that
reasonable minds could differ with respect to whether Brandt violated Newport
Ordinance § 71.27 by failing to yield to Adkins. Thus, the trial court did not error
in submitting the evidence to the jury.
Next, Adkins argues that the trial court erred in finding as a matter of
law that she was not “handicapped” as anticipated by the ordinance. Specifically,
she argues she was entitled to a directed verdict because there was ample evidence
in the record of her disability both from her own testimony, the testimony of her
daughter, the medical records, and her treating physician, Dr. Michael Grefer.
Consequently, she asserts that the ordinance did not apply to her, and therefore the
trial court erred by instructing the jury that she had a duty not to operate her
bicycle on the sidewalk.
Adkins’ argument is misplaced. As noted above, the jury was
properly instructed as to whether Brandt was negligent in failing to yield his
vehicle. The jury found that Brandt was not negligent. Therefore, it was not
necessary for the trial court or the jury to address the question of whether or not
Adkins was “handicapped” pursuant to the ordinance. Once the jury found that
Brandt was not negligent, whether or not Adkins was or was not entitled to ride her
bicycle on the sidewalk was no longer at issue as there was no need to apportion
fault for the collision.
Regardless, we cannot say that the trial court erred in finding that
Adkins was not “handicapped” as anticipated by the ordinance. Newport
Ordinance § 70.35 reads, “It is unlawful for any person to ride a bicycle or operate
any motorized device upon the sidewalks of the City, excluding those operated by
any handicapped individual.” However, the ordinance is silent as to what
constitutes “handicapped.” Further, the ordinance is poorly drafted as arguably
“those operated by any handicapped individual” might only modify “operate any
In support of its finding that Adkins did not meet the definition of
“handicapped,” the trial court turned to the requirements for obtaining a
handicapped parking permit contained in KRS 189.456(3):
For every person seeking an accessible parking placard,
proof of the disability shall be required by:
(a) Evidence that the individual has a license plate for a
person with a disability as provided by KRS 186.041 or
(b) The county clerk issuing the permit ascertaining that
the applicant is obviously disabled; or
(c) A statement from a licensed physician that the
applicant is a person whose mobility, flexibility,
coordination, respiration, or perceptiveness is
significantly reduced by a permanent disability to that
person’s arms, legs, lungs, heart, ears, or eyes.
Based on this statute, the trial court concluded that the term “handicapped” as used
in the ordinance is not synonymous with the broader term “disability.” Rather, the
court concluded that a “handicap” must be a disability that impaired Adkins’
mobility, flexibility, or coordination.
The trial court’s interpretation of the ordinance is not unreasonable.
The ordinance exempts “handicapped” individuals from the general prohibition
against riding a bicycle or operating any motorized device on the sidewalk. While
the term “handicapped” is not defined, the trial court properly looked to the use of
the word in the statutes providing for handicapped parking permits, KRS
189.456(3), and for handicapped license plates, KRS 189.042. Both of those
statutes anticipate that a “handicapped” individual is a person whose mobility is
impaired. When viewed in this context, the clear purpose of the exemption in the
ordinance is to allow persons with limited mobility to ride bicycles, or operate
motorized devices such as a wheelchair or similar vehicles, on the sidewalk.
Accordingly, the order of the Campbell Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Christian Macke
Stephen D. Wolnitzek