JEFFERSON COUNTY COMMONWEALTH ATTORNEY'S OFFICE, ANNE LEITSCH HAYNIE, AND THOMAS W. DYKE V. DAVID KAPLAN, KENNETH RIDER, AND GARY WADE PUCKETT
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JEFFERSON COUNTY COMMONWEALTH
ATTORNEY’S OFFICE, ANNE LEITSCH
HAYNIE, AND THOMAS W. DYKE
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APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1997-CA-3235MR AND 1998-CA-0113-MR
JEFFERSON CIRCUIT COURT NO. 96-Cl-6279
V.
DAVID KAPLAN, KENNETH RIDER,
AND GARY WADE PUCKETT
APPELLEES
AND
1999-SC-1001
-DG
APPELLANT
DAVID KAPLAN
V.
ON REVIEW FROM COURT OF APPEALS
1997-CA-3235-MR AND 1998-CA-0113-MR
JEFFERSON CIRCUIT COURT NO. 96-Cl-6279
JEFFERSON COUNTY COMMONWEALTH
ATTORNEY’S OFFICE, ANNE LEITSCH HAYNIE,
THOMAS W. DYKE, KENNETH RIDER,
AND GARY WADE PUCKETT
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING IN PART. REVERSING IN PART
APPELLEES
\--3
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Gary Wade Puckett sued David Kaplan for legal malpractice in connection with
Kaplan’s representation of Puckett in a criminal case. Kaplan joined two prosecutors
and a Kentucky State Police chemist as third-party defendants. The trial court found
that the third-party defendants were immune from suit and that Kaplan was not entitled
to indemnity, contribution, or apportionment from the third-party defendants. For these
two reasons, the trial court dismissed Kaplan’s third-party complaint. The Court of
Appeals affirmed the trial court’s ruling as to the prosecutors and affirmed as to the
chemist on different grounds. Further, the Court of Appeals indicated, but did not
specifically hold, that fault could be apportioned against the prosecutors and the
chemist. We affirm in part, and reverse in part.
In June 1994, Gary Puckett was tried for wanton murder and arson. Kaplan
represented Puckett at trial. Anne Haynie and Thomas Dyke represented the
Commonwealth. The prosecution relied heavily on the fact that expert testimony
revealed the presence of accelerants on debris taken from the fire and from the clothes
worn by Puckett near the time the fire started. But in fact, there was no identity among
the accelerants. The chemical composition of the accelerants found on remnants from
the fire was different from the chemical composition of the accelerant found on
Puckett’s clothes.
The lack of identity in the accelerants was not revealed in the report prepared by
Kenneth Rider, the KSP chemist who testified for the Commonwealth. But Rider’s
notes regarding his analysis and the gas chromatograms did reveal the discrepancy.
The Commonwealth disclosed the report, but did not include Rider’s notes or the gas
chromatography results. Kaplan neither specifically requested these during discovery
nor retained an expert to review the report’s results and conclusions.
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Puckett was convicted of all charges and sentenced to life imprisonment on the
murder conviction and twenty-five years on the arson conviction. On his matter-of-right
appeal, this Court affirmed both his conviction and sentence. After his judgment was
affirmed on appeal, Puckett and the Commonwealth Attorney’s Office made a joint
motion to vacate the judgment and grant a new trial. The motion was based on the
Commonwealth’s acknowledged failure to appreciate the exculpatory nature of the lack
of identity of the accelerants found on the fire debris and those found on Puckett’s
clothes. The trial court granted the motion. In September 1996, Puckett was acquitted
of all charges against him at retrial.
After his acquittal, Puckett filed a legal malpractice action against Kaplan. In the
complaint, Puckett alleged that Kaplan’s ineffective assistance of counsel.caused his
wrongful conviction. Puckett claimed, in part, that Kaplan was negligent in failing to
discover lack of identity among the accelerant evidence and in failing to have the
chemist’s report subjected to independent expert analysis. In turn, Kaplan joined
Haynie, Dyke, and Rider as third-party defendants.
The third-party defendants moved to dismiss the complaint against them. The
trial court found that Haynie and Dyke were immune from suit and found that Kaplan’s
third-party complaint failed to state a claim upon which relief could be granted. On
these grounds, the trial court granted the motion to dismiss. The Court of Appeals held
that Haynie, Dyke, and Rider were absolutely immune from suit and affirmed the trial
court’s summary judgment in their favor. Finally, the Court of Appeals indicated, but did
not specifically hold, that fault could be apportioned against Haynie, Dyke, and Rider.
On appeal, Kaplan argues that Haynie and Dyke are entitled to only qualified
immunity and that a material issue of fact exists as to whether they are entitled to
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immunity in this case. Further, he argues that there are genuine issues of material fact
as to Rider’s negligence and whether he is entitled to immunity. Finally, he argues that
regardless of the immunity questions, he is entitled to apportion fault against all three
under KRS 411.182.
PROSECUTORS’ IMMUNITY
In the amended third-party complaint, Kaplan alleges that Haynie and Dyke
failed to disclose exculpatory evidence as required by the trial court’s pre-trial order,
which failure compromised Kaplan’s ability to effectively represent Puckett at his first
trial. These allegations occurred beyond the investigation phase of the case. Rather,
the alleged failure to disclose evidence occurred at a point in time when the prosecutors
were acting as advocates. Thus, we hold that the prosecutors are entitled to absolute
immunity. See Bucklev v. Fitzsimmons, 509 U.S. 259, 273-74, 113 S. Ct. 2606, 2616,
125 L. Ed. 2d 209, 226 (1993).
Our holding reflects the policy decision made by this Court in McCollum v.
Garrett, Ky., 880 S.W.2d 530 (1994), in which we drew a distinction between a
prosecutor’s role as investigator and his or her role as an advocate for the
Commonwealth:
During the time in which [the prosecutor] essentially acted as an
investigator, the protection available to him was qualified immunity. Upon
the commencement of prosecution and the assumption of his role of
prosecutor, [the prosecutor’s] immunity became absolute.
Id. at 535.
In a case involving facts similar to those in the case at bar, the U.S. Supreme
Court articulated why it made the same policy choice as we made in McCollum and
reaffirm today:
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[S]uits that survived the pleadings would pose substantial danger of
liability even to the honest prosecutor. The prosecutor’s possible
knowledge of a witness’ falsehoods, the materiality of evidence not
revealed to the defense, the propriety of a closing argument, and -ultimately in every case -- the likelihood that prosecutorial misconduct so
infected a trial as to deny due process, are typical of issues with which
judges struggle in actions for post-trial relief, sometimes to differing
conclusions. The presentation of such issues in a § 1983 [civil] action
often would require a virtual retrial of the criminal offense in a new
forum . . . . It is fair to say, we think, that the honest prosecutor would
face greater difficulty in meeting the standards of qualified immunity than
other executive or administrative officials. Frequently acting under serious
constraints of time and even information, a prosecutor inevitably makes
many decisions that could engender colorable claims of constitutional
deprivation. Defending these decisions, often years after they were
made, could impose unique and intolerable burdens upon a prosecutor
responsible annually for hundreds of indictments and trials.
lmbler v. Pachtman, 424 U.S. 409,42526, 96 S. Ct. 984, 992-93, 47 L. Ed. 2d 128,
140-41 (1976) (emphasis added).
RIDER
The amended third-party complaint alleges that Rider failed to disclose the
results of his tests to the defense. On appeal, Kaplan argues that Rider had a
constitutional duty under Bradv v. Marvland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963) to disclose to the defense the exculpatory portions of analysis and tests.
Brady clearly imposes a duty upon the prosecutor to disclose exculpatory material:
We . . . hold that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.
Id. at 87, 83 S. Ct. at 1196, 10 L. Ed. 2d at 218.
Kaplan points to no authority that imposes the same obligation on a witness for
the Commonwealth or an agent working on the Commonwealth’s behalf. Moreover,
RCr 7.24 places the obligation to disclose evidence solely upon the attorney for the
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Commonwealth. We can see no sound reason to place an independent duty on
witnesses for, and agents of, the Commonwealth to disclose exculpatory evidence
directly to a criminal defendant. And Kaplan advances none. Thus, we hold that Rider
had no duty to disclose the results of his report directly to Puckett or his counsel.
This leaves Rider’s testimony as the only possible remaining source of his
liability. But the law of the Commonwealth is that a witness testifying in a judicial
proceeding has absolute immunity from liability if his or her testimony has some relation
to the proceeding. See Lawson v. Henslev, Ky. App., 712 S.W.2d 369, 370 (1986). As
Rider’s testimony related directly to the proceeding, he is absolutely immune from
liability.
DISMISSAL OF THIRD-PARTY COMPLAINT
CR 14.01 provides in pertinent part that a “defendant may move for leave as a
third-party plaintiff to assert a claim against a person not a party to the action who is or
may be liable to him for all or part of the plaintiff’s claim against him.” (Emphasis
added). Absolute immunity means “a complete exemption from civil liability . . . .‘I
Black’s Law Dictionary, 753 (7th ed. 1999). Because Haynie, Dyke, and Rider had no
legal liability to Kaplan as third-party plaintiff, we hold that the trial court correctly
dismissed Kaplan’s third-party complaint against them.
APPORTIONMENT
Finally, Kaplan argues that even if Haynie, Dyke, and Rider are immune from
liability, they still should be subject to apportionment of fault under KRS 411.182, which
provides in pertinent part:
(1) In all tort actions . . . involving fault of more than one party to
the action, including third-party defendants and persons who have been
released under subsection (4) of this section, the court, unless otherwise
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agreed by all parties, shall instruct the jury to answer interrogatories or, if
there is no jury, shall make findings indicating:
(a) The amount of damages each claimant would be entitled to
recover if contributory fault is disregarded; and
(b) The percentage of the total fault of all the parties to each claim
that is allocated to each claimant, defendant, third-party defendant, and
person who has been released from liability under subsection (4) of this
section.
(4) A release, covenant not to sue, or similar agreement entered
into by a claimant and a person liable, shall discharge that person from all
liability for contribution, but it shall not be considered to discharge any
other persons liable upon the same claim unless it so provides. However,
the claim of the releasing person against other persons shall be reduced
by the amount of the released persons’ equitable share of the obligation,
determined in accordance with the provisions of this section.
In its opinion, the Court of Appeals stated its belief that fault could be
apportioned against Haynie, Dyke, and Rider notwithstanding their absolute immunity
from liability. The Court of Appeals reasoned that to do otherwise would penalize
Kaplan for their immunity. The Court of Appeals approached this problem from the
wrong direction. Whether fault can be apportioned against someone with absolute
immunity from liability is determined by construing the statute. However, the Court of
Appeals reached its conclusion based upon a policy decision. The Court of Appeals’
conclusion is contrary to the plain language of the statute.
Haynie, Dyke, and Rider are not third-party defendants as listed in KRS
411 .I 82(l). Nor are they settling tort-feasors under section (4). A number of Court of
Appeals’ decisions limit the right to apportionment under KRS 411 .I 82 to parties and
other persons who fall within the scope of the statute. “When the statute states that the
trier-of-fact shall consider the conduct of ‘each party at fault,’ such phrase means those
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parties complying with the statute as named parties to the litigation and those who have
settled prior to litigation, not the world at large.” Baker v. Webb, Ky. App., 883 S.W.2d
898, 900 (1994); see also Copass v. Monroe County Medical Foundation, Ky., 900
S.W.2d 617, 619-20 (1995); Bass v. Williams, Ky. App., 839 S.W.2d 559, 563-64
(1992). We agree with this line of cases and hold that fault cannot be apportioned
.
against Haynie, Dyke, and Rider because they do not fall within the scope of those to
whom fault can be apportioned against under KRS 411.182.
For the reasons set forth above, we affirm that part of the Court of Appeals’
opinion that affirms the trial court’s dismissal of Kaplan’s third-party complaint. We
reverse that part of the Court of Appeals’ opinion that indicates that Kaplan can
apportion fault against Haynie, Dyke, and Rider.
Lambert, C.J.; Cooper and Wintersheimer, JJ., concur. Keller, J., concurs in part
and dissents in part by separate opinion, with Graves and Stumbo, JJ., joining.
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COUNSEL FOR JEFFERSON COUNTY
COMMONWEALTH ATTORNEY’S OFFICE,
ANNE LEITSCH HAYNIE, AND THOMAS W.
DYKE:
A. B. Chandler, III
Attorney General
Stuart W. Cobb
Assistant Attorney General
Civil & Environmental Law Division
Office of the Attorney General
P. 0. Box 2000
Frankfort, KY 40602-2000
COUNSEL FOR DAVID KAPLAN:
George R. Carter
624 West Main Street
Fifth Floor
Louisville, KY 40202-3354
COUNSEL FOR KENNETH RIDER:
James M. Herrick
Kentucky State Police Legal Office
919 Versailles Road
Frankfort. KY 40601
COUNSEL FOR GARY WAYNE PUCKETT:
Donald M. Heavrin
717 West Market Street
Suite One
Louisville, KY 40202
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RENDERED: NOVEMBER 21,200l
AS MODIFIED: FEBRUARY 21, 2002
TO BE PUBLISHED
1999-SC-0982-DG
JEFFERSON COUNTY COMMONWEALTH
ATTORNEY’S OFFICE, ANNE LEITSCH
HAYNIE, AND THOMAS W. DYKE
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1997-CA-3235MR AND 1998-CA-0113-MR
JEFFERSON CIRCUIT COURT NO. 96-Cl-6279
V.
DAVID KAPLAN, KENNETH RIDER,
AND GARY WADE PUCKETT
APPELLEES
AND
1999-SC-1001
-DG
DAVID KAPLAN
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1997-CA-3235MR AND 1998-CA-0113-MR
JEFFERSON CIRCUIT COURT NO. 96-Cl-6279
JEFFERSON COUNTY COMMONWEALTH
ATTORNEY’S OFFICE, ANNE LEITSCH
HAYNIE, THOMAS W. DYKE, KENNETH
RIDER, AND GARY WADE PUCKETT
APPELLEES
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
I agree with the majority’s conclusion that the trial court properly granted the
motion to dismiss Kaplan’s third-party complaint against the Assistant Commonwealth
Attorneys. I write separately, however, because: (1) I believe the trial court erred when
it dismissed Kaplan’s third-party complaint against Rider, the Kentucky State Police
(KSP) chemist who performed a forensic analysis of evidence collected from the crime
scene, and (2) I agree with the Court of Appeals panel below that, under KRS 411 .I 82,
if the evidence so justifies, the trial court should apportion fault among each of the
parties named in the third-party complaint - including the Assistant Commonwealth
Attorneys properly dismissed by the trial court.
RIDER
Although I agree with the majority that Rider enjoys immunity from liability for his
testimony during the trial proceedings, I believe Kaplan’s third-party complaint alleges a
viable common law claim that Rider, either negligently or in bad faith, communicated his
scientific findings in a manner which obscured their exculpatory nature. Kaplan’s
Amended Third-Party Complaint reads:
COUNT I
1.
2.
3.
4.
The plaintiff has filed a cause of action against this
defendant; a copy of the Complaint is attached hereto
as Exhibit A.
The third-party defendant, Commonwealth Attorney of
Jefferson County, is an official of the Commonwealth
of Kentucky with the responsibility and duty to
prosecute all violations of the criminal laws of this
Commonwealth in Jefferson County.
The third-party defendants, Anne Leitsch Haynie and
Thomas W. Dyke are employed by the
Commonwealth’s Attorney of Jefferson County and
have the responsibility and duty to prosecute all
violations of the criminal laws of this Commonwealth
in Jefferson County.
The third-party defendant, Kenneth Rider, is an
employee of the Kentucky State Police, Central
Forensic Laboratory, Frankfort, Kentucky, a
Department of the Justice Cabinet, with the
responsibility of detecting and preventing crime;
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5.
6.
7.
8.
9.
10.
11.
12.
maintain law and order; collect, classify, and maintain
information useful for the detection of crime; and the
identification, apprehension, and conviction of
criminals.
On October 20, 1993, there was a fire at the plaintiffs
residence, and in this fire the plaintiffs mother died of
smoke inhalation.
On November 12, 1993, the Commonwealth of
Kentucky, through the Commonwealth Attorney’s
office for Jefferson County, indicted Gary Wade
Puckett for Willful Murder of his mother and Arson I
for the fire at his residence.
During the investigation of this fire, samples of fire
debris and clothing taken from the deceased and
from the plaintiff were sent to the Kentucky State
Police Crime Lab for examination.
The examination of the samples referred to above
were performed by Kenneth Rider pursuant to the
authority given to him by the Kentucky State Police
and within the scope of his employment with the
Kentucky State Police.
On or about November 15, 1993, in the action styled
Commonwealth of Kentucky v. Gary Wade Puckett,
Case No. 93-CR-2492, Judge Daniel A. Schneider,
Jefferson Circuit Court, Sixth Division, entered an
order of arraignment and discovery, a copy of which
is attached hereto as Exhibit B.
Before the trial of this matter conducted on June 20,
1994, the Commonwealth’s Attorney for Jefferson
County, Anne Leitsch Haynie, Thomas W. Dyke, and
Kenneth Rider failed to disclose the results of
scientific tests and to turn over exculpatory evidence
as required by the order of the Jefferson Circuit Court.
The failure of Jefferson County’s Commonwealth
Attorney, Anne Leitsch Haynie, Thomas W. Dyke,
and Kenneth Rider to disclose scientific tests and
exculpatory evidence prevented this defendant-third
party plaintiff from effectively representing the plaintiff
in the first trial of this matter.
As a result of the third-party defendants Jefferson
County’s Commonwealth Attorney, Anne Leitsch
Haynie, Thomas W. Dyke, and Kenneth Rider failure
fo disclose scientific tests and exculpatory evidence,
the defendant third-party plaintiff has suffered
damages and was caused to incur attorney’s fees and
costs, and continues to incur attorney’s fees and
costs, for which the third-party defendants are liable.
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COUNT II
1.
2.
The defendant third-party plaintiff adopts and
incorporates paragraphs I-IO of Count I.
The defendant third party plaintiff states that if the
plaintiff Gary Wade Puckett was damaged as alleged
in the Complaint, then the injury and damages
suffered by the plaintiff were the direct and proximate
result of a substantial factor resulting from the so/e
and/or primary and/or comparative negligence and
fault of the third-party defendants, Commonwealth
Attorney of Jefferson County, Anne Leitsch Haynie,
Thomas W. Dyke, and Kenneth Rider, and this
defendant-third party plaintiff is entitled to recover on
its third’-party complaint against the third party
defendants, by way of indemnity and/or contribution
and/or apportionment of any judgment recovered
against him by the plaintiff in this action.
Wherefore, the defendant-third party plaintiff David Kaplan
demands judgment against the third-party defendants
Commonwealth Attorney of Jefferson County, Anne Leitsch
Haynie, Thomas W. Dyke, and Kenneth Rider for damages,
attorney fees and for indemnity and/or contribution and/or
apportionment of any judgment recovered against him by
the plaintiff in this action, plus court costs and all other relief
to which the defendant third-party plaintiff appears entitled.
Both this Court and the Court of Appeals have erroneously interpreted Kaplan’s
third-party claim against Rider as a claim primarily concerned with Rider’s in-court
testimony at the first trial.’ In my opinion, today’s majority further mischaracterizes
Kaplan’s claim against Rider when it disposes of that claim by holding that Rider has no
duty to turn over exculpatory evidence to the defense. Kaplan’s third-party claim
against Rider does not require application of the constitutional duty addressed in Brady
(2003 (slip op. at 6) (“This
‘a Majority Opinion at - S.W.3d ,
leaves Rider’s testimony as the only possible remaining source of his liability.“); The
Court of Appeals described the third-party claim as “more concerned with his trial
testimony than with his testing, the written report, and the gas chromatograph
readings.”
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v. Maryland,* but rather addresses itself to the cornerstone principle of Kentucky
negligence law: “Every person owes a duty to every other person to exercise ordinary
care in his activities to prevent foreseeable injury.‘13 Kaplan’s Response to Rider’s
Motion to Dismiss clarifies that the third-party claim alleges that Rider breached this
duty of reasonable care when he prepared a report which inadequately and
incompletely reported his findings and failed to disclose that the accelerant materials he
detected upon both debris from the destroyed structure and upon Gary Puckett’s
clothing4
differed in chemical composition:
‘373 U.S. 83, 83 S.Ct. 1194, IO L.Ed.2d 215 (1963).
31ssacs v. Smith, Ky., 5 S.W.3d 500, 502 (1999) (citing Grayson Fraternal Order
o f Eagles v. Claywell, Ky., 736 S.W.2d 328, 332 (1987)).
4The evidentiary record in this case includes a Kentucky State Police Crime
Laboratory Request for Examination filed by a Detective with the Jefferson County
Police Department which: (1) identified Gary W. Puckett by name as the suspect or
accused; (2) listed twelve exhibits of physical evidence submitted with the examination
request; and (3) which requested that the Kentucky State Police perform the following
examination:
Examine exhibits #I, #2, #3, ##4, #5, #6 [all described as
“fire debris” from various parts of the house], #7 [“Victim’s
nightgown”]; #8 [“Suspect’s pants with belt”], #9 [“Suspect’s
tee shirt”], and #IO [“Suspects socks and underwear”] for
presence of accelerants. If an accelerant is present, attempt
to match to Exhibit #I 1 [“Liquid sample from vehicle”].
Exhibit #I2 is a control sample to compare with Exhibit #I 1.
I
The matter was assigned to Rider, and he reported his findings in a Report of Forensic
Laboratory Examination:
Exhibits 1, 2, 3, 7, 8, 9, and 1 0 were each found to contain a
medium petroleum distillate.*
There were no accelerants identified in Exhibits 4, 5, and 6.
This does not exclude the possibility of an accelerant being
consumed by the fire or evaporating.
Exhibits 11 and 12 were each found to contain a very heavy
(continued...)
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In this case, the claim against Mr. Rider is not that he
performed a function in an attempt to compel others to
comply with the law, nor it is about his selection of the
testing procedure. Rather, it is about his analysis of specific
evidence samples. In doing this analysis, Mr. Rider is
required to perform his tasks in a reasonable and prudent
manner. As a result, Mr. Rider is liable for any negligent or
intentional misrepresentations that he would make as to the
result of his analysis.
. . . [I]t was clearly foreseeable that any misrepresentation
of his findings would affect Mr. Puckett’s defense in the
criminal case. In this particular circumstance, the harm was
foreseeable to Mr. Rider, and the victim of the injury was
identifiable. . . .
The dispositive issue in this case, therefore, is not, as assumed by the majority,
whether a non-prosecutor shares in the constitutional duty found in Bradv v. Marvland,
but rather whether common law negligence imposes a duty upon a person in Rider’s
position to accurately and completely report his scientific findings. This “question of
duty presents an issue of law,“5 which is inherently intertwined with policy
determinations.6 The primary considerations which guide such policy determinations
are the risk and magnitude of foreseeable injuries resulting from acts or omissions:
[l]n the law of negligence generally, legal duty in respect to
inaction or nonaction generally in man’s relation to other
persons . . . is proportioned to the magnitude of peril to be
reasonably apprehended from an act or an omission.
Foresight or reasonable anticipation is the standard of
petroleum distillate which could have a common origin.
However, very heavy petroleum distillates are not generally
considered to be accelerants.
*EXAMPLES: Paint thinner, mineral spirits and charcoal
lighter fluid.
‘Mullins v. Commonwealth Life Ins. Co., Ky., 839 S.W.2d 245, 248 (1992).
61d. (“When a court resolves a question of duty it is essentially making a policy
determination.“)
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diligence, and precaution a duty where there is reason for
apprehension.’
Although the question of whether a scientist employed by the Commonwealth
can be liable under common law negligence is a question of first impression, I find a
close parallel in cases from other jurisdictions which have addressed suits alleging
negligent performance of testing brought by former-and-prospective-employee plaintiffs
against drug testing laboratories.’ Although many of these claims allege that avoidable
laboratory error produced a false result, “the negligence most often alleged by
employees and job applicants is laboratory failure to provide accurate information to the
employer regarding some aspect of the test.‘lg
Courts have generally denied defense
motions for summary judgment and have found that laboratories owe a duty of ordinary
care in the handling and examination of employees’ samples because it is foreseeable
that an individual plaintiff could suffer serious injury from negligent testing procedures
- e.g., damage to their current or future employment prospects.”
7Mann v. Kentucky & Indiana Terminal Railroad Co., Ky., 290 S.W.2d 820, 824
(1956). See also lsaacs v. Smith, supra note 3 at 502 (“[Sluch a duty applies only if the
injury is foreseeable.“).
*a Cooper v. Laboratov Corp. of American Holdings. Inc., 150 F.3d 376, 379380 (4’” Cir. 1998) (collecting cases) (“The overall trend is for courts to recognize the
existence of a limited duty on the part of the laboratory to employees who are the
subject of the tests.“).
‘Amy Newnam & Jay M. Feinman, “Liability of a Laboratory for Negligent
Employment or Pre-Employment Drug Testing,” 30 Rutgers L.J. 473, 475 (1999).
loa Duncan v. Afton, Inc., 991 P.2d 739, 744-745 (Wyo. 1999) (‘I. . . Afton
could foresee that improper collecting and handling of the specimen could contribute to
a false positive result and could injure an employee. . . . mhe likely effect of a false
positive result is significant and devastating; employment will likely be terminated and
future prospects of employment adversely impacted.“); Stinson v. Physicians Immediate
Care. Ltd., 646 N.E.2d 930, 933 (III.App.Ct. 1995) (“Here, the injury, that the plaintiff
would be terminated from his employment, is not only foreseeable, but also is a virtual
(continued.. .)
-7-
When the testing performed involves forensic evidence collected from a crime
scene, the equities are even stronger in favor of a duty of due care because erroneous
testing or reporting of test results can result in a criminal conviction and incarceration.
In this case, the Request for Examination identified Puckett as the suspect of the
criminal investigation, and I believe Rider’s duty of reasonable care towards Puckett
required Rider to accurately and completely report his findings. As Rider’s performance
“(...continued)
certainty in the event of a positive drug test result. In addition, the likelihood of injury is
great . . . . ‘I); Lewis v. ALCOA, 588 So.2d 167, 170 (La.Ct.App. 1991):
He was not an unknown third party to LSI [Laboratory
Specialists, Inc.]. Rather, LSI analyzed Lewis’s sample, it
was aware that negligent testing on its part could wrongfully
identify him as a drug user. LSI was cognizant that if the
test results it submitted to ALCOA were inaccurate, both
Lewis’s reputation and his employment opportunities would
be compromised. These damages were directly
foreseeable. Thus, as the chance of Lewis being harmed
was not remote, extending LSl’s liability to encompass him
does not create an undue burden upon LSl’s freedom of
action. Instead, it should foster a greater sense of
responsibility within it to perform its drug testing services in a
skillful and competent manner.
Id.; Elliott v. Laboratory Specialists, Inc., 588 So.2d 175, 176 (La.Ct.App. 1991):
To suggest that LSI does not owe Elliott a duty to analyze
his body fluid in a scientifically reasonable manner is an
abuse of fundamental fairness and justice. LSI should be
held responsible for its conduct. The risk of harm in our
society to an individual because of a false-positive drug test
is so significant that any individual wrongfully accused of
drug usage by his employer is also within the scope of
protection under the law.
Mr. Elliott’s being labeled an illegal drug user has such
emotional economic and career detrimental affects that
failure to find protection under our law would be a step
backwards for the protection of the individual.
Id.
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of such a ministerial task does not implicate common law official immunity” and the
evidence produced in discovery raises genuine issues of material fact as to whether
Rider breached this duty, I believe the trial court erred when it entered summary
judgment in favor of Rider as to Kaplan’s third-party complaint.
APPORTIONMENT
KRS 411.184 requires trial courts to instruct juries to apportion fault among
parties to the action and settling nonparties:
(1) In all tort actions, including products liability actions, involving
fault of more than one party to the action, including third-party
defendants and persons who have been released under subsection
(4) of this section, the court, unless otherwise agreed by all parties,
shall instruct the jury to answer interrogatories or, if there is no jury,
shall make findings indicating:
(a) The amount of damages each claimant
would be entitled to recover if contributory fault
is disregarded; and
(b) The percentage of the total fault of all the
parties to each claim that is allocated to each
claimant, defendant, third-party defendant, and
person who has been released from liability
under subsection (4) of this section.
(2) In determining the percentages of fault, the trier of fact
shall consider both the nature of the conduct of each party at
fault and the extent of the causal relation between the
conduct and the damages claimed.
(3) The court shall determine the award of damages to each
claimant in accordance with the findings, subject to any
reduction under subsection (4) of this section, and shall
determine and state in the judgment each party’s equitable
share of the obligation to each claimant in accordance with
the respective percentages of fault.
(4) A release, covenant not to sue, or similar agreement
entered into by a claimant and a person liable, shall
discharge that person from all liability for contribution, but it
shall not be considered to discharge any other person liable
“Yanero v. Davis, Ky., - S.W.3d -, - (2003 (slip op. at 12-l 3) (“[AIn
officer or employee is afforded no immunity from tort liability for the negligent
performance of a ministerial act . . . .‘I).
-9-
upon the same claim unless it so provides. However, the
claim of the releasing person against other persons shall be
reduced by the amount of the released persons’ equitable
share of the obligation, determined in accordance with the
provisions of this section.12
Today’s majority holds that the trial court should not apportion fault against the
parties brought into this action through Kaplan’s third-party complaint because “Haynie,
Dyke, and Rider are not fhird-party defendants as listed in KRS 47 7. 782(7)“13 because,
by virtue of the trial court’s dismissal of the third-party complaint against each, “they do
not fall within the scope of those to whom fault can be apportioned against under KRS
411 .I 82.“14
Of course, given my above resolution of the liability issues concerning
Rider, I believe the trial court should allow the jury to apportion fault against Rider.
However, with respect to the other two third-party defendants, Haynie and Dyke, I find
the majority’s conclusion at odds with prior case law which have given a broader
construction to KRS 411 .I 82, and I believe that, if the evidence at trial justifies an
inference of liability on the part of either Haynie or Dyke, the trial court’s jury instructions
should require apportionment of fault against them. The majority’s contrary holding
narrowly interpreting the language of KRS 411.182 “violates the main purpose of
comparative fault by improperly subjecting the defendants to liability in excess of their
proportion of fault.“15
“KRS 411.184 (emphasis added).
13Majority Opinion, a
supra note - t - (slip op. at 7) (emphasis added).
141d. at - (slip op. at 8).
“Northland Insurance Co. v. Truckstops Corporation of America, 914 F.Supp
216 (N.D.III 1995).
-lO-
The implicit premise behind the majority’s holding is that, after the trial court
entered summary judgment in favor of Haynie, Dyke, and Rider as to Kaplan’s thirdparty complaint, each ceased to be a third-party defendant for the purposes of
apportionment under KRS 411.1 82.16 When interpreting KRS 454.040,” an older
statutory provision permitting the apportionment of damages among “defendants,”
however, this Court rejected such a narrow construction and permitted apportionment
against a defendant despite the fact that the plaintiffs claim against that defendant was
barred by the statute of limitations:
The Court of Appeals reasoned that apportionment is
permitted only against “defendants” . . . and concluded since
we held that Carney should have been dismissed on his plea
of limitations, he could not have been considered a
“defendant” in the literal sense for the purpose of the
apportionment statute. We are of the opinion the Court of
16Although I believe KRS 411 .I 82(2) provides for apportionment among thirdparty defendants when the evidence justifies an inference of liability without regard to
whether summary judgment has been entered for the third-party defendant on the thirdparty claim, others have suggested that provisions similar to KRS 411 .I 82(4) might
provide a mechanism for including immune parties within apportionment. See Henry
Woods, Comparative Fault, Chapter 22:2, Comment to § 6 at 496 (2nd Ed. 1997) (“The
problem of a wrongdoer who is entitled to a legal immunity could be treated like a
released tortfeasor in this Section -join him to the action to determine his equitable
share of the obligation and subtract it from the amount of the claimant’s recovery.“)
“KRS 454.040. Trespass, joint or several damages for.
In actions of trespass the jury may assess joint or several
damages against the defendants. When the jury finds
several damages, the judgment shall be in favor of the
plaintiff against each defendant for the several damages
without regard to the amount of damages claimed in the
petition, and shall include a joint judgment for the costs.
Id. See also Dix & Associates Pipeline Contractors. Inc. v. Key, Ky., 799 S.W.2d 24, 27
(1990).
-1 l-
Appeals is in error in this respect. We do not give such a
narrow reading to KRS 454.040.18
I believe today’s majority similarly misinterprets the “third-party defendants” language in
KRS411.182(1).
Previous Kentucky appellate interpretations of KRS 411 .I 82 have distinguished
between potentially liable persons and entities that were never made party to the action
- against whom apportionment is improper - and those “before the co~rt,“‘~ “named
parties to the litigation,“20
and “tortfeasor[s] against whom a claim has been asserted”2’
- against whom apportionment is required.
Before today, this Court has never interpreted KRS 411 .I 82 to require that a
valid claim remain in litigation against a third-party defendant to require apportionment
against that third-party defendant. In fact, we have implied exactly the opposite and
suggested that third-party complaint practice allows apportionment even after a thirdparty complaint is dismissed:
Under the apportionment rules set out above, third-party
defendants may often be entitled to dismissal on the
grounds that they cannot be liable to the third-party plaintiff.
This does not mean that defendants should not assert these
‘*Prudential Life Ins. v. Moodv, Ky., 696 S.W.2d 503, 504 (1985).
19Copass v. Monroe Co. Med. Foundation, Ky.App., 900 S.W.2d 617, 619 (1995)
(“KRS 411 .I 82 merely addresses the procedure for apportioning liability among parties
before the court or who have settled or been released. It does not direct or authorize
the adjudication of fault of absent, potential litigators.” (emphasis added)).
20Baker v. Webb, Ky.App., 883 S.W.2d 898, 900 (1994) (“When the statute [KRS
411.1821 states that the trier-of-fact shall consider the conduct of ‘each party at fault,’
such phrase means hose parties complying with the statute as named patties to fhe
litigation and those who have settled prior to litigation, not the world at large.” (emphasis
added)).
21Kevin Tucker & Associates Inc. v. Scott & Ritter, Ky.App., 842 S.W.2d 873, 874
(1992) (hereafter “Kevin Tucker & Associates. Inc.“).
-12-
third-party claims; for if there is never an “active assertion of
a claim” against the third party, liability cannot be
apportioned to him. As a consequence, the defendant might
incur liability for damages caused by that third party.**
In Floyd v. Carlisle Construction Co. lnc.,23 this Court reviewed its prior caselaw
and recognized that the variables critical to the determination of whether apportionment
is proper are: (1) whether a claim has been actively asserted against the potential joint
tortfeasor; and (2) whether the evidence justifies an inference of liability - not whether
there are claims against those persons which require further litigation:
The basis for these holdings is the active assertion of a
claim against joint tottfeasors. If there is an active assertion
of a claim against joint tortfeasors, and the evidence is
sufficient to submit the issue of liability to each, an
apportionment instruction is required whether of not each of
the torfeasors is a party-defendant at the time of trial.24
Less than a year ago, this Court denied discretionary review to Charash v.
Johnson.25
There, the Court of Appeals analyzed an allegation of error concerning the
trial courts failure to require apportionment of fault against the University of Kentucky
Medical Center (UKMC) after the trial court dismissed UKMC as a party defendant on
sovereign immunity grounds. As directed to do by this Court in Kevin Tucker &
Associates. Inc., the Court of Appeals resolved the apportionment issue by determining
whether the evidence at trial justified an inference of liability on the part of the immune
entity:
**ld. at 874-5 n.5.
‘3Ky., 758 S.W.2d 432 (1988).
241d. at 432.
25Ky.App., 43 S.W.3d 274 (2001).
-13-
The physicians argue on direct appeal that despite the fact
that UKMC was properly dismissed as a party to the action,
the circuit court nevertheless erred when it did not instruct
the jury that it could apportion fault to UKMC. Kentucky’s
apportionment statute requires that “[i]n all tort actions . . .
involving fault of more than one party to the action” the jury
is to be instructed to determine the percentage of fault
attributable to “each claimant, defendant, third-party
defendant, and person who has been released [by an
agreement] from liability. . . . ”
In Kevin Tucker & Associates, Inc. v. Scott & Ritter. Inc.,
we construed Kentucky Revised Statute (KRS) 411.182 and
determined that “if the evidence at trial shows that [the thirdparty defendant] caused some portion of the [plaintiffs]
damages, [the defendant] will be entitled to an
apportionment instruction. [The third-party defendant] is
entitled to be dismissed, however, because [it] cannot be
liable to [the defendant] under any circumstances.”
The evidence adduced at trial of this action did not show
that UKMC was responsible for any injury to Wallace
Johnson. While there was proof that UKMC was
understaffed while Johnson was a patient, there was no
attempt to connect the understaffing to the failure to properly
treat Johnson. Thus, UKMC could only have been held
liable vicariously as the result of the negligence of its only
employee who was sued, nurse Owens; and she was
absolved by the jury from any responsibility for Johnson’s
maltreatment.26
I believe this to be the proper analysis. Through his third-party complaint,
Kaplan actively asserted a claim against the third-party defendants and brought them
before the Court. Accordingly, I would hold that, upon remand, if the evidence allows a
reasonable inference of liability on the part of any of the named third-party defendants,
the trial court is required to submit jury instructions allowing apportionment of fault.
Graves and Stumbo, JJ., join this opinion, concurring in part and dissenting in
part.
261d. at 277 (footnotes omitted).
-14-
1999-SC-0982-DG
JEFFERSON COUNTY COMMONWEALTH
ATTORNEY’S OFFICE; ANNE LEITSCH
HAYNIE; AND THOMAS W. DYKE
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1997-CA-3235MR AND 1998-CA-0113-MR
JEFFERSON CIRCUIT COURT NO. 96-Cl-6279
V.
DAVID KAPLAN; KENNETH RIDER;
AND GARY WADE PUCKETT
AND
1999-SC-1001
APPELLEES
-DG
APPELLANT
DAVID KAPLAN
V.
ON REVIEW FROM COURT OF APPEALS
1997-CA-3235MR AND 1998-CA-0113-MR
JEFFERSON CIRCUIT COURT NO. 96-Cl-6279
JEFFERSON COUNTY COMMONWEALTH
ATTORNEY’S OFFICE; ANNE LEITSCH HAYNIE;
THOMAS W. DYKE; KENNETH RIDER;
AND GARY WADE PUCKETT
APPELLEES
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
Appellant David Kaplan’s petition for rehearing of this Court’s opinion rendered
on November 21, 2001 is hereby denied
On the Court’s own motion, both the opinion of the Court and the opinion,
concurring in part and dissenting in part, rendered on November 21, 2001 are modified
by the substitution of new pages 1, attached hereto, in lieu of pages 1 as originally
rendered. Said modification does not affect the holding and is made to correct the
caption in case 1999-SC-0982-DG and case 1999-SC-1001
All concur.
ENTERED: February 21, 2002.
-2-
-DG.
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