COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS V. ROBIN L. BABBITT, ET AL
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2003-SC-0556-DG
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
V
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-1341
MADISON CIRCUIT COURT NO. 99-CI-892
ROBIN L. BABBITT, SPECIAL
ADMINISTRATOR OF THE ESTATE OF
MICHAEL ROY BENDER ; LARRY
LOGSDON ; JANE FOLEY NASH,
SPECIAL ADMINISTRATOR OF THE
ESTATE OF CECILIA ANN BENDER;
AND KENTUCKY BOARD OF CLAIMS
AND
2003-SC-0586-DG
BRANDON TAYLOR, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
SHERRY TAYLOR
V
APPELLEES
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-1687
DAVIESS CIRCUIT COURT NO. 02-CI-114
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF HIGHWAYS,
TRANSPORTATION CABINET; AND
COMMONWEALTH OF KENTUCKY,
BOARD OF CLAIMS
APPELLEES
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART, AND REVERSING
AND REMANDING IN PART AS TO 2003-SC-0556-DG
AND
REVERSING AND REMANDING
AS TO 2003-SC-0586-DG
These two appeals are from separate decisions of the Board of Claims, KRS
44 .070, et sea . , denying claims for damages allegedly caused by the Transportation
Cabinet's failure to provide warnings and/or erect guardrails at the scenes of two
different single-vehicle accidents . In each case, the Board concluded that the
negligence of the vehicle's operator was the sole cause of the accident without
addressing whether any negligence on the part of the Cabinet was a contributing cause
of the damages sustained because of the accident . In the Babbitt case, the Madison
Circuit Court reversed and remanded with directions to apportion causation and award
damages, and the Court of Appeals affirmed . In the Taylor case, both the Daviess
Circuit Court and the Court of Appeals affirmed the Board's denial of the claim.
Perceiving an inconsistency in the respective decisions of the Court of Appeals, we
granted discretionary review of both cases.
I . BABBITT.
The accident in Commonwealth, Transportation Cabinet v. Babbitt, et al. , No.
2003-SC-0556-DG, occurred on Interstate Highway 75 (I-75) in Madison County,
Kentucky, at approximately 6 :10 p .m . on November 17, 1989. Judy Logsdon was
operating a Skamper motor home in the right southbound lane of I-75 with her husband,
Larry Logsdon, her daughter and son-in-law, Cecelia' and Michael Bender, and the
Benders' two infant children as passengers . Logsdon encountered a construction zone
between mile point (M .P.) 88 and M .P. 77 where Allen Company, a paving contractor,
was repaving the southbound lanes pursuant to a contract with the Transportation
Cabinet. The paving of the highway, itself, had been completed, and both southbound
lanes were open to traffic. However, reconstruction of the right shoulder of the highway
was incomplete, and the white edge line between the right southbound lane and the tenfoot-wide paved shoulder had not been repainted . An acceleration lane from a roadside
rest area merges with the right southbound lane just prior to M .P. 82. There were no
"rumble strips"2 at the point of merger or on the paved portion of the shoulder for 310
feet south of that point . To the right of the paved shoulder is a five-to-six-foot-wide
earthen shoulder, then a drop-off to a ditch at the base of a rough-cut rock wall. The
total distance from the outside edge of the right southbound lane to the rock wall is
twenty-seven feet.
Mrs . Logsdon testified that she perceived the acceleration lane leading from the
rest area to be a third southbound lane of highway and began driving to the right to
make room for faster-moving traffic. She drove across the paved shoulder onto the
earthen shoulder, then into the ditch where the motor home impacted with the rock wall.
The mostly plywood body of the vehicle essentially disintegrated as it scraped along the
rock wall before its chassis returned to the traveled portion of the highway. Larry
' This person's name was spelled "Cecelia" in both the caption and body of the original
complaint filed in the Board of Claims, and throughout the transcript of evidence . It is
spelled "Cecilia" in the Motion for Discretionary Review. We assume the original
spelling is correct.
2 "Rumble strips" are ridges on the paved portion of the shoulder that cause the
vehicle's tires to bump up and down ("rumble") to warn the driver that the vehicle is no
longer on the traveled portion of the roadway.
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Logsdon, Cecelia Bender, and Michael Bender were ejected from the vehicle, causing
serious physical injuries to Mr. Logsdon and the deaths of Cecelia and Michael Bender .
Mr . Logsdon and the Benders' estates brought civil actions in the Madison Circuit Court
against Mrs . Logsdon, Allen Company, and Skamper Corporation, the manufacturer of
the motor home, and this action in the Board of Claims against the Transportation
Cabinet . The claimants alleged that the Cabinet was negligent in failing to repaint the
right edge line of the highway and replace the rumble strips, both of which would have
warned Mrs . Logsdon that she was driving on the shoulder of the highway, and in failing
to erect a guardrail between the shoulder and the drop-off to the ditch, which may have
prevented the motor home from impacting the rock wall .
In 1989, the Transportation Cabinet generally adhered to guardrail guidelines
established in the Guide for Selecting, Locating, and Designing Traffic Barriers ,
published in 1977 by the American Association of Highway and Transportation Officials
(AASHTO), and the more recent Roadside Design Guide published in 1988 by
AASHTO . However, since neither publication was officially adopted by statute or
regulation, adherence to the guidelines was both unofficial and unrequired . AASHTO
recommends a minimum "clear zone" of thirty feet between the edge of the roadway
and a roadside hazard, a distance deemed sufficient to permit the operator of a "run-offroad" vehicle to regain control of the vehicle before reaching the hazard. The clear
zone at the site of Logsdon's accident was only twenty-seven feet - and that included
the ditch line . The Cabinet's expert testified that AASHTO recommends that guardrails
not be erected if the surface of the rock wall is smooth, because an impact with the wall
3 The delay in the resolution of this claim was apparently due to the pendency of the
Madison Circuit Court civil actions against the other defendants, all of which were
ultimately settled .
would cause no more damage than an impact with a guardrail, and the presence of the
guardrail, itself, further reduces the width of the clear zone . He further testified that if
the surface of the rock wall is rough-cut, as here, AASHTO provides that whether to
erect a guardrail is a "judgment call ."
AASHTO also recommends erection of a guardrail between the roadway and a
drop-off within the clear zone if the slope of the drop-off exceeds a ratio of 4:1, the
degree of slope from which a vehicle is deemed unable to recover . There was evidence
that portions of the drop-off to the ditch adjacent to the rock wall at this accident site
exceeded a slope ratio of 4:1 . The Cabinet argued that the shoulders were still under
construction and that the contract called for a final slope ratio of 4:1 . The Board of
Claims found that the Roadside Design Guide "required" the Cabinet to erect a guardrail
between the highway and the rock wall, and that its failure to do so constituted
negligence . Babbitt v. Commonwealth, Transp . Cabinet , No. 90-1313, slip op. at 3 (Ky.
Bd . of Claims, July 15, 1999) . However, at another point, the opinion states that "[t]he
Plaintiffs have not proven negligence on the part of the Defendant." Id. a t 10 . The
Board also concluded that Mrs. Logsdon's negligence was a superseding cause that
relieved the Cabinet of any liability . Id . The Madison Circuit Court reversed and
remanded with directions to make findings with respect to damages and comparative
fault, concluding that the Board was bound by its apparent previous findings of
negligence on the part of both Mrs. Logsdon and the Cabinet. Babbitt v.
Commonwealth, Transp . Cabinet , No. 99-CI-00892, slip op . at 2-3 (Madison Cir. Ct .,
June 5, 2002) . The Court of Appeals affirmed the judgment and order of the Madison
Circuit Court.
II. TAYLOR.
The accident in Taylor v. Commonwealth, Transportation Cabinet , No. 2003-SC0586-DG, occurred at approximately 10:30 p.m . on April 1, 1999, when Sherry Taylor
drove her 1992 Dodge Shadow automobile directly into the headwall of a concrete
culvert located approximately three feet from the edge of the paved roadway at M .P.
5 .620 on U.S . Highway 231 in Daviess County, Kentucky. Taylor died as a result of the
collision . The culvert is located on a long, straight stretch of two-lane highway that
Taylor had traversed many times in the past . The weather was clear and the road was
dry. There was a black and orange striped "object sign" located directly in front of the
headwall . There is no explanation for why Taylor's vehicle left the traveled portion of
the roadway. Taylor's estate brought this action in the Board of Claims asserting that
the Cabinet was negligent in failing to install a guardrail that would have deflected
Taylor's vehicle away from the headwall, thus perhaps reducing her injuries and saving
her life.
There was testimony in Taylor that thousands of existing roadside hazards in
Kentucky could be made more safe by the erection of guardrails . While guardrails are
always installed when highway sections are newly constructed or reconstructed, many
more roadside hazards exist on roadways that, like highway 231, were constructed
decades ago. Appellant concedes that deficits in both money and manpower make it
impossible to immediately erect guardrails at all of those sites. In fact, there was
evidence that in one recent fiscal year, no money at all was available for guardrail
improvements in Kentucky. To accommodate this fiscal limitation, the Transportation
Cabinet attempts to identify and prioritize all existing roadside hazards that could be
improved by guardrails and to erect those guardrails piecemeal as funds become
available . Taylor's estate argues that the Cabinet was negligent in not giving this
particular headwall a higher priority . Specifically, it identifies eight similar headwalls
alongside highway 231, all located within four miles of M.P . 5 .620, against which the
Cabinet erected guardrail protections in 1996, leaving only the headwall at M.P . 5.620
unprotected.
In June 1989, Jerry G . Pigman (the Commonwealth's expert in Babbitt) and
Kenneth R. Agent (the Commonwealth's expert in Taylor), both research engineers at
the Kentucky Transportation Center, completed a research project requested by the
Transportation Cabinet, the purpose of which was to establish a logical approach to the
identification and prioritization of Kentucky's guardrail needs based on degree of hazard
and available funds. The project produced a report entitled Warrants and Guidelines for
Installation of Guardrail ("Warrants & Guidelines") . The report was never officially
adopted by statute or regulation ; however, it was "implemented" by a letter dated May
17, 1990, from the Kentucky State Highway Engineer to the Division Administrator for
the Federal Highway Administration . The letter contains a disclaimer that the
implementation applies "only to maintenance activities and new installations of guardrail
on existing roadways . Guardrail standards for new construction and for reconstruction,
rehabilitation and restoration are not affected ."
The Warrants & Guidelines created a hazard-index point system for evaluating
the degree of hazard, consisting of a maximum of 100 possible points broken down as
follows :
CHARACTERISTICS
1)
2)
3)
4)
Number of run-off-road accidents
Run-off-road accident rate
Traffic volume (ADT)
Speed limit or prevailing speed
RATING POINTS POSSIBLE
15
15
10
10
5)
6)
7)
8)
9)
10)
Lane and shoulder width
Roadside recovery distance
Embankment slope
Embankment height
Culvert presence
Subjective roadside hazard rating
10
10
10
10
5
5
Charles Briggs, engineering branch manager of the Cabinet's division of
operations in Frankfort, testified that each local district identifies and creates a hazardindex rating for each roadside hazard in the district. (There are twelve districts; Sherry
Taylor's accident occurred in district 2 .) The district engineer then submits a list of the
district's guardrail priorities to the division of operations. The list may or may not
correlate with the hazard-index points assigned to each hazard. In other words, the
district engineer may give a hazard with fewer index points a higher priority than a
hazard with more index points . The Cabinet has a policy that each proposed budget will
include at least one guardrail project in each of the twelve districts . The Cabinet admits
the policy is politically motivated to facilitate adoption of its proposed budget by the
General Assembly. To that extent, a project with fewer hazard-index points in one
district may receive a higher priority than a project with more hazard-index points in
another district . Further, a district with a mountainous terrain will naturally have more
hazardous roadside conditions than a district with a relatively flat terrain . Thus, a
hazard given a tenth priority in a mountainous district might have more hazard-index
points than a fourth priority in, etc . , district 2, where the terrain is relatively flat, thus
posing fewer roadside hazards . However, the projects approved within each district are
prioritized solely on the basis of the hazard-index points . Only if two projects within the
same district have the same hazard-index points does the district engineer's personal
priority receive preference .
Other considerations in prioritizing guardrail needs are available funds and costeffectiveness, i .e. , how much improvement can be accomplished with the funds
available . The Warrants & Guidelines summarize the procedures for identifying and
prioritizing locations in need of guardrails as follows :
1)
2)
3)
4)
5)
6)
7)
8)
Development of critical numbers and rates of run-off-road
accidents ;
Preparation of a list of locations with critical rates of run-off-road
accidents ;
Development of a hazard-index point system ;
Conducting a field survey;
Tabulation of hazard-index points ;
Determination of improvement costs;
Determination of improvement benefits;
Analysis of cost-effectiveness .
On February 1, 1996, Hosea Brown, a civil engineer and Cabinet employee
assigned to district 2, conducted a field survey of the roadside hazard presented by the
culvert at M .P. 5.620 on highway 231 . He gave the culvert and headwall only forty
hazard-index points, primarily because there had been no prior run-off-road accidents at
the site, thus no points could be assigned for the first two categories, i .e. , number of
accidents and accident rate . When the district engineer submitted his priority list to the
division of operations, he listed the culvert headwall at M .P. 5 .620 and the three
headwalls to the north of the culvert jointly as his fourth priority . The five headwalls to
the south of M.P. 5 .620 were listed jointly as his tenth priority . When the division of
operations released its guardrail budget for fiscal year 1996-1997, it included only three
projects for district 2. The three headwalls to the north of the culvert at M.P . 5 .620 were
jointly listed as its first priority and the five headwalls to the south of the culvert were
jointly listed as its second priority . (The third and last priority was a nine-mile stretch of
4 No evidence was adduced as to the hazard-index points assigned to the other
headwalls alongside highway 231 that were guardrailed in 1996.
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guardrail in Union County .) Briggs explained that the three headwalls north of the
culvert were located between 3.2 and 3.8 miles north of M.P. 5.620, but within 0.6 miles
of each other, so that one span of guardrail 0.6 miles in length would provide protection
against all three ; and that the other five headwalls were located between 1 .3 and 1 .8
miles south of M .P . 5.620, but within 0.5 miles of each other, so that one span of
guardrail 0.5 miles in length would provide protection against all five .
On the basis of this evidence, the Board of Claims could have resolved whether
the Cabinet had a duty to erect a guardrail at M .P . 5 .620 prior to April 1, 1999, and
whether its failure to do so constituted negligence. Instead, the Board interpreted
language in Commonwealth Transportation Cabinet v. Shadrick , 956 S.W.2d 898 (Ky.
1997), as holding that the Cabinet has no duty whatsoever to protect negligent motorists
from colliding with roadside hazards that are in plain view. "There was no evidence in
the record that would indicate that Sherry Taylor's leaving the roadway was due to
anything other than her failure to exercise due care for her own safety ." Taylor v.
Commonwealth, Transp . Cabinet , No . 99-1035, slip op . at 4 (Ky. Bd. Claims, Dec. 20,
2001) (emphasis added) . The Daviess Circuit Court and the Court of Appeals both
affirmed .
III . SUBCONTRACTOR DEFENSE .
The Cabinet's first defense in Babbitt was premised upon KRS 44 .073(15), which
provides :
Neither the Commonwealth nor any of its cabinets, departments, bureaus,
or agencies or any officers, agents, or employees thereof shall be liable
under a respondeat superior theory or any other similar theory for the acts
of independent contractors, contractors, or subcontractors thereof or
anyone else doing work or providing services for the state on a volunteer
basis or pursuant to a contract therewith.
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That may very well have been a valid defense to the claim pertaining to the absence of
rumble strips, because there was evidence that Allen Company had paved over the 310
feet of missing strips . However, the Cabinet's witnesses admitted that it was the duty of
the Cabinet, not Allen Company, to repaint the right edge line between the right
southbound lane and the paved shoulder . The Board made no findings with respect to
either of these claims of negligence. The Cabinet's contract with Allen Company did not
call for the erection of a guardrail between the shoulder of the road and the ditch
adjacent to the rough-cut rock wall. The Cabinet's defense to this issue was that its
failure to erect a guardrail at that location did not constitute negligence . As noted
earlier, the Board found both ways on this issue .
IV. LIABILITY.
KRS 44 .120 provides that the Board of Claims may make an award to a claimant
if "the damage claimed was caused by such negligence on the part of the
Commonwealth or its agents as would entitle the claimant to a judgment in an action at
law if the state were amenable to such action ." (Emphasis added.) KRS 411 .182(2)
requires the trier of fact to determine the extent of "the causal relation between the
conduct of each party . . . and the damages [sustained] . . . . " (Emphasis added .) Thus,
the Board was required to determine whether the Cabinet had a duty to install guardrails
at either accident site, and/or to place rumble strips and a right edge line at the I-75
accident site; and, if so, whether its failure to do so constituted negligence ; and, if so,
the percentage of causation of each claimant's damages (not causation of the accident)
attributable to its failure to do so. Obviously, the failure to erect a guardrail did not
cause either of these vehicles to leave the highway, though the absence of rumble
strips and/or a right edge line could be found to have contributed to cause Logsdon's
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vehicle to have done so. However, the failure to erect a guardrail might have
contributed to the degree of damages sustained in either or both accident(s) . While
there is some language in Commonwealth Transportation Cabinet v. Shadrick , 956
S.W .2d 898 (Ky. 1997), that could be interpreted otherwise, comparative fault, as
defined in KRS 411 .182, applies to actions brought in the Board of Claims.
Shadrick upheld a finding by the Board of Claims that the Transportation Cabinet
owed no duty to traveling motorists to remove a vehicle parked by someone else within
the right-of-way, but some eight and one-half feet from the traveled portion of the
highway . Finding negligence only on the part of the party who parked the vehicle and
the operator of the vehicle that struck it, Shadrick held that "[i]t would be unreasonable
and impractical to hold the Department responsible for the negligence of others ." Id. at
901 . Shadrick did state that "[t]he Department's duty with respect to the maintenance of
roads is to maintain them in a reasonably safe condition for those members of the
traveling public exercising due care for their own safety ." Id . at 900 (emphasis added) .
In the context of the facts in Shadrick , that meant only that the Department was not
required to remove vehicles parked by someone else in the right-of-way unless they
obstructed the traveled portion of the highway where persons exercising due care for
their own safety would be operating their vehicles . It did not mean that the longdiscarded doctrine of contributory negligence as a complete defense applies to claims
against highway authorities in Kentucky. The cases sub iudice are easily
distinguishable from Shadrick because the Commonwealth presumably created the
ditch and the rough-cut rock wall struck by Logsdon when it constructed I-75, and it
clearly erected the culvert headwall struck by Taylor .
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We also agree with the Madison Circuit Court and the Court of Appeals that the
Board of Claims misapplied the concept of superseding cause. "A superseding cause is
an act of a third person or other force which by its intervention prevents the actor from
being liable for harm to another which his antecedent negligence is a substantial factor
in bringing about." Donegan v. Denngy, 457 S .W.2d 953, 958 (Ky. 1970) (quoting
Restatement (Second) of Torts § 440 (1965)) . The Board reasoned that Judy
Logsdon's negligence in driving the motor home off the roadway superseded any
negligence on the part of the Cabinet, thus precluding any liability of the Cabinet for the
damages sustained by Larry Logsdon and the Benders' estates. We disagree . In the
first place, the rationale for the doctrine of superseding cause has been substantially
diminished by the adoption of comparative negligence .
The advent of more refined tools for apportionment of liability comparative responsibility, comparative contribution, and substantial
modification of joint and several liability - also has undermined one
important rationale for these rules: the use of scope of liability to prevent
a modestly negligent tortfeasor from being held liable for the entirety of
another's harm when the tortious acts of other, more culpable persons
were also a cause of the harm .
Restatement (Third) of Torts, Liab . for Phys . Harm § 34 cmt. a (Proposed Final Draft
No. 1, 2005). Secondly, if the Cabinet was negligent in failing to replace the rumble
strips or right edge line, or in failing to erect a guardrail where Logsdon's motor home
struck the rock wall, Logsdon's negligence was "precisely the risk[] that render[s]
tortious [the Cabinet's] failure to adopt adequate precautions ." Id . at cmt. d . After all, a
motorist who drives his or her vehicle off the traveled portion of the highway will almost
always be deemed to have been contributorily negligent to some extent .
Our earliest line of cases on the subject of guardrails and barriers held that they
were intended as warnings and that the highway authority had no duty to erect such
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obstacles for the purpose of preventing motorists from driving into rivers, off cliffs, or
into roadside obstacles . E Christopher's Adm'r v. Louisville & Nashville R.R . Co. ,
.,
.g
259 Ky. 166, 82 S.W .2d 282, 283 (1935) ("Neither the ordinances of the city under
which the highway was reconstructed, nor the statutes, required the railroad company to
erect or maintain a guard along the side of the highway or at the top of the
embankment, or at all.") ; City, of Ludlow v. Albers , 253 Ky. 525, 69 S .W .2d 1051, 1056
(1934) ("The city was not duty bound to erect and maintain a barrier along the edge of
the embankment to prevent vehicles while using the street, going over it.") ; City of
Catlettsburq v. Sutherland's Adm'r, 247 Ky. 540, 57 S.W.2d 512, 514 (1933) ("[W]here
the condition is obvious and the elements of concealment of the danger or notice
thereof are not involved, it is held that there is no duty to maintain a barrier of sufficient
strength to resist the force of an automobile or to prevent it from going over an
embankment alongside the highway, even though at a curve, presenting a hazardous
condition ."); Watkins' Adm'r v . City of Catlettsburq , 243 Ky . 197, 47 S.W .2d 1032, 1034
(1932) (same) . Not only were those cases decided in an era when contributory
negligence was a complete bar to recovery, they were decided in an era when vehicles
were slower, traffic volume was lighter, and highways were not designed with interstate
travel in mind . Thirty-six years later, our predecessor court expressed a different view
about this issue .
In Commonwealth, Department of Highways v. Automobile Club Insurance Co . ,
467 S.W.2d 326 (Ky. 1971), our predecessor court upheld a Board of Claims award
against the Department of Highways for its failure to erect "signs, guardrails, or barriers"
at or near a sharp curve where the vehicle in which the deceased was a passenger left
the roadway . Id . at 330 . In doing so, it held as follows with respect to the duty of the
highway authority to provide warnings and barriers for the protection of motorists :
There were no signs or guardrails or other barriers such as posts at
or near the curve where the accident occurred . Appellant Department
contends that it is under no compulsion to place guardrails or curve signs
at every curve along its highways. We agree . But it is also true that the
public authority having control over a highway has a duty to keep it in a
reasonably safe condition for travel, to provide proper safeguards, and to
give adequate warning of dangerous conditions in the highway. This
includes the duty to erect warning signs and to erect and maintain barriers
or guardrails at dangerous places on the highway to enable motorists,
exercising ordinary care and prudence, 5l to avoid injury to themselves and
others . The appellant is under no duty to provide warning signs,
guardrails, or barriers when an unusual or dangerous condition does not
exist. Neither is it appellant's duty to erect guardrails or barriers of
sufficient strength to withstand any degree of force . However, it is
appellant's duty to furnish adequate protection for the general traveling
public and users of the highway facilities.
f
Id. at 328 .
Thirty-four years later, we conclude that this analysis remains sound (except for
the implication that the duty is owed only to persons who are not contributorily
negligent) and is in accordance with the general rule .
The exercise of due care by highway authorities may require them
to safeguard dangerous places by barriers or guard rails, but only where
their absence renders the highway unsafe for travel or the road presents
an extraordinary hazard.
The general rules as to liability for injury arising from a failure to
maintain guard rails or barriers apply as to liability for damage to motor
vehicles or injury to their occupants. . . . [T]he due care owed to motorists
by the highway authorities may require the safeguarding of a dangerous
place by the construction and maintenance of suitable barriers, guard rails
or fences. While the failure to erect a barrier might not cause the
accident, such a failure might be a substantial factor in aggravation of the
5 Automobile Club was also decided prior to the adoption of comparative negligence in
Kentucky. However, contributory negligence was not a factor in that case because the
injured party was a passenger in the vehicle that left the roadway . His estate had
already recovered from the driver's insurance company, which brought the Board of
Claims action seeking contribution from the Department of Highways.
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injuries and, in that event, with proof of causation and negligence, the
State will be liable.
The exercise of ordinary care is required, and guard rails need be
erected only where their absence renders the highway unsafe for ordinary
travel; the road presents an extraordinary condition or unusual hazard ; the
situation is inherently dangerous ; a duty was voluntarily assumed ; or the
duty arises at common law or is specifically required by statute. Barriers
need not be maintained where a dangerous or unusual condition does not
exist.
All the circumstances are to be considered in determining whether
the failure to maintain barriers or guard rails is negligence, including
whether this is the accepted practice or meets relevant design standards,
and the character of the road or the thinly settled nature of the community .
The test is not the distance of the dangerous object or place from the
highway . . . . Ordinarily, the authorities are not required to provide
barriers to prevent travelers from straying off the way to adjoining lands
upon which there may be dangerous places .
60A C .J.S . Motor Vehicles § 457 (2005) (footnotes omitted) .
Said another way, a highway authority is not automatically liable every time a
motorist drives his vehicle off the traveled portion of the highway and strikes a roadside
hazard . Nor does the failure to follow design guidelines, such as those recommended
by AASHTO or the Warrants & Guidelines , constitute the equivalent of negligence per
se (as implied by the Board in the Babbitt case) . Whether the failure to provide
warnings or to erect a guardrail at a particular location constitutes negligence on the
part of the highway authority is a fact-intensive inquiry for which the various design
guidelines, as well as available funds and cost effectiveness, may be considered . If a
determination is made that the failure to provide warnings or to erect a guardrail
constitutes negligence, the factfinder must then determine from the evidence whether
the presence of warnings or a guardrail would have prevented or reduced the damages
sustained by the claimant and apportion liability in accordance with KRS 411 .182.
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In Babbitt, the Board reached contradictory conclusions with respect to the issue
of the Cabinet's negligence and an erroneous conclusion that Judy Logsdon's
negligence was a superseding cause . It made no findings with respect to the missing
rumble strips and right edge line . In Taylor , the Board misinterpreted Shadrick as
completely exonerating the Cabinet when the hazard is in plain view and the driver is
contributorily negligent, compelling the erroneous conclusion that Sherry Taylor's own
negligence obviated any need to consider whether the Cabinet had a duty to erect a
guardrail at M.P. 5.620 and, if so, whether its failure to do so contributed to cause
Taylor's death, which would require an apportionment of damages .
Accordingly, we affirm in part the Court of Appeals' decision to reverse and
remand Babbitt , but reverse that decision insofar as it concludes that the Board is
bound on remand to deem the Cabinet negligent. We reverse the Court of Appeals'
decision in Taylor . We remand both cases to the Board of Claims with directions to
reconsider its decisions in accordance with the principles set forth in this opinion .
All concur.
COUNSEL FOR APPELLANT COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS (2003-SC-0556-DG) :
Stewart Burch
Kevin Patrick Fox
Logan and Gaines
100 East Main Street
Frankfort, KY 40601
COUNSEL FOR APPELLEES ROBIN L. BABBITT, SPECIAL ADMINISTRATOR OF
THE ESTATE OF MICHAEL ROY BENDER; LARRY LOGSDON ; AND JANE FOLEY
NASH, SPECIAL ADMINISTRATOR OF THE ESTATE OF CECILIA ANN BENDER
(2003-SC-0556-DG) :
James T. Gilbert
Coy, Gilbert and Gilbert
212 North Second Street
Richmond, KY 40475
COUNSEL FOR APPELLEE KENTUCKY BOARD OF CLAIMS (2003-SC-0556-DG) :
G . Mitchell Mattingly
Legal Counsel
Board of Claims
130 Brighton Park Blvd.
Frankfort, KY 40601
COUNSEL FOR APPELLANT BRANDON TAYLOR, PERSONAL REPRESENTATIVE
OF THE ESTATE OF SHERRY TAYLOR (2003-SC-0586-DG) :
Charles E . Moore
Travis Leon Holtrey
Moore, Malone, and Safreed
104 East Fourth Street
P.O. Box 549
Owensboro, KY 42302-0549
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY, DEPARTMENT OF
HIGHWAYS, TRANSPORTATION CABINET (2003-SC-0586-DG) :
James R . Wood
General Counsel
Transportation Cabinet
200 Mero Street
Frankfort, KY 40601
Frank Miller, Jr.
Weber & Rose
2700 Providian Center
400 W. Market Street
Louisville, KY 40202
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY, BOARD OF CLAIMS
(2003-SC-0586-DG) :
G . Mitchell Mattingly
Legal Counsel
Board of Claims
130 Brighton Park Blvd .
Frankfort, KY 40601
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