NOLLAIG PREVIS V. PETE DAILEY
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2004-SC-0131-DG
NOLLAIG PREVIS
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-1751-MR
BOURBON CIRCUIT COURT NO . 2000-CI-0051
V.
PETE DAILEY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND REMANDING
On May 29, 1999, Appellant, Nollaig Previs, was riding her bicycle on the righthand 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 the road.
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 .
The following day, the trial judge received a telephone call from the jury foreman,
Jeffery Norkus, who expressed concerns about the jury's deliberations . Norkus
subsequently drafted a letter in which he alleged that jurors had discussed a matter not
presented at trial, namely whether a reasonable bicyclist would have pulled off of the
side of the road to allow a large vehicle to pass. Norkus later gave a similar statement
in chambers under oath, in which he further stated that to his knowledge there was no
discussion as to whether Dailey violated his duties . When asked how the ten jurors
who found for Dailey reached their verdict, Norkus responded, "I cannot speak for them .
I don't know how they arrived at their conclusion ." Notably, Norkus was not one of the
ten jurors who found in favor of Dailey .
As a result, Previs filed several motions, including a motion for a new trial based
on juror misconduct and a motion for judgment notwithstanding the verdict, as well as a
motion to alter, amend, or vacate the judgment. All were denied and Previs appealed
to the Court of Appeals .
Affirming the trial court, the Court of Appeals acknowledged that "at first blush,"
the record contained evidence sufficient for the jury to conclude that Dailey had
operated his truck in a negligent fashion . "It is uncontroverted that [Dailey] had not fully
passed Previs before directing his vehicle back into the right lane, and he all but
admitted that he did not look in his rear view mirror when doing so ." (Slip opinion p. 5) .
Notwithstanding, the court held :
[I]t is still possible that the jury reasonably concluded either that
[Dailey] was not negligent, or if he was negligent that said
negligence was not the cause of the collision . Dailey notes that
Previs was not an experienced cyclist, that she may have
accelerated while Dailey's vehicle was passing her, and that she
stated that she did not see him. While much of this is speculative,
the law required the trial judge to give Dailey every fair and
reasonable inference from the evidence . In so doing, the trial judge
properly denied Previs's motion for a directed verdict, and we find
no basis for tampering with this ruling. For the same reason, we
conclude that Previs was not entitled to a judgment notwithstanding
the verdict.
Id . (Internal citations omitted) .
This Court thereafter granted Previs's motion for discretionary review . For the
reasons set forth herein, we now reverse the decision of the Court of Appeals and
remand the matter to the trial court for further proceedings consistent with this opinion .
Our law is well settled that in ruling on a motion for a directed verdict, the trial
court is under a duty to consider the evidence in the light most favorable to the party
opposing the motion, and must give the opposing party the advantage of every fair and
reasonable inference that can be drawn from the evidence . See Tavlor v. Kennedy ,
700 S.W .2d 415 (Ky . App . 1985). When engaging in appellate review of a ruling on a
motion for directed verdict, the reviewing court must ascribe to the evidence all
reasonable inferences and deductions which support the claim of the prevailing party.
Meyers v. Chapman Printing Co ., Inc . , 840 S.W.2d 814 (Ky. 1992) . In Lewis v.
Bledsoe Surface Mining Co . , 798 S .W.2d 459, 461-62 (Ky. 1990), this Court stated :
Upon review of the evidence supporting a judgment entered
upon a jury verdict, the role of an appellate court is limited to
determining whether the trial court erred in failing to grant the
motion for directed verdict . All evidence which favors the
prevailing party must be taken as true and the reviewing court is
not at liberty to determine credibility or the weight which should
be given to the evidence, these being functions reserved to the
trier of fact. The prevailing party is entitled to all reasonable
inferences which may be drawn from the evidence . Upon
completion of such an evidentiary review, the appellate court
must determine whether the verdict rendered is "'palpably or
flagrantly' against the evidence so as 'to indicate that it was
reached as a result of passion or prejudice ."' NCAA v.
Hornunq , 754 S.W .2d 855, 860 (Ky. 1988) . If the reviewing
court concludes that such is the case, it is at liberty to reverse
the judgment on the grounds that the trial court erred in failing
to sustain the motion for directed verdict . Otherwise, the
judgment must be affirmed .
(Internal citations omitted) . See also USAA Casualty Insurance Co. v. Kramer, 987
S .W .2d 779 (Ky. 1999), and Bierman v. Klapheke , 967 S .W .2d 16 (Ky. 1998) .
Dailey's legal duties as a passing motorist were set forth in jury Instruction No.
3, 1 which provided as follows :
[I]t was the duty of the Defendant, Pete Dailey, upon the
occasion about which you have just heard evidence, in driving
his automobile to exercise ordinary care for his 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 automobile under reasonable control;
2. To drive and keep his automobile on the right-hand
side of the roadway, and not to pass the Plaintiff on
her bicycle moving in the same direction ahead of
him unless the overtaking and passing could be
completed without interfering with the safe operation
of the bicycle ridden by the Plaintiff ;
3. After passing the Plaintiff to not drive to the right
until reasonably clear of her;
4. To maintain a lookout both to the front and to the
rear for other vehicles near enough to be affected
by the intended movement of his automobile ;
5 . To exercise ordinary care to avoid collision with
other automobiles on the roadway .
Instruction No . 3 was based, in part, upon language contained in KRS 189.340(1) :
"Vehicles overtaking other vehicles proceeding in the same direction shall pass to the
left of them and shall not again drive to the right until reasonably clear of those
vehicles ."
Thus, Dailey's legal duty 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.
Yet, Dailey's own testimony established that he violated this legal duty:
[I]f I made any mistake, that was it, because if I had looked in my
rearview mirror, at me making a turn in like this, I wouldn't have
probably seen Nollaig anyhow . . . . My thought is, when 1 pass a
grown person - whether it be a lady or a man - I have no thought
of trying to protect her . . . . I mean, once I started passing her, I
felt it would be her obligation to allow me around her.
(Emphasis added) .
The Court of Appeals commented that Dailey "all but admitted" that he did not
look in his rearview mirror before maneuvering his truck back into the right lane . To the
contrary, we are of the opinion that Dailey's testimony is nothing less than a frank
admission of his failure to ascertain Previs's location . Apparently, Dailey believed that
it was solely Previs's obligation to make sure he safely passed her. Clearly that is not
the law. See KRS 189 .340(1). Nor are we sympathetic to Dailey's claim that he had
no choice but to move back into the right lane so as to avoid a potential collision with
oncoming traffic. If the terrain was such that Dailey could not see oncoming traffic,
then he certainly was in violation of his duty to exercise ordinary care for the safety of
other persons using the roadway. See KRS 189.340(4) .2
2 KRS 189 .340(4) provides :
No vehicle shall be driven to the left side of the center of the
roadway in overtaking and passing another vehicle proceeding in the
same direction unless the left side is clearly visible and free of oncoming
traffic for a sufficient distance ahead to permit overtaking and passing to
be completely made without interfering with the safe operation of any
vehicle approaching from the opposite direction or any vehicle overtaken .
In every event the overtaking vehicle must return to the right-hand side of
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In Bierman , we noted :
In reviewing the sufficiency of evidence, the appellate court must
respect the opinion of the trial judge who heard the evidence . A
reviewing court is rarely in as good a position as the trial judge
who presided over the initial trial to decide whether a jury can
properly consider the evidence presented . Generally, a trial judge
cannot enter a directed verdict unless there is a complete
absence of proof on a material issue or if no disputed issues of
fact exist upon which reasonable minds could differ.
967 S.W .2d at 18-19 . The evidence presented at trial was uncontroverted that Dailey
had not fully passed Previs at the time he maneuvered his truck back into the right lane.
Such is a clear violation of Dailey's statutory duties and constitutes negligence per se.
The Court of Appeals referenced several speculative, self-serving comments by
Dailey concerning Previs's inexperience with biking and his "belief" that she must have
accelerated as he tried to pass her, as evidence from which a jury could have
reasonably found that Dailey was not negligent. In doing so, however, the court failed
to recognize that Previs's negligence, if any, did not have any bearing on the fact that
Dailey was negligent as a matter of law. Viewing the facts even in the light most
favorable to Dailey, the trial court erred in submitting the question of Dailey's negligence
to the jury, and we must conclude that the jury's verdict absolving him of liability was so
flagrantly and palpably against the weight of the evidence as to indicate that it was
reached as a result of passion or prejudice . See Lewis , supra .
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
the roadway before coming within one hundred feet (100') of any vehicle
approaching from the opposite direction .
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was directed not to consider them upon finding for Dailey . On remand, a jury must
consider these additional issues .
Our resolution of the first issue renders moot Previs's argument concerning the
trial court's failure to grant a new trial based upon juror Norkus's allegations of juror
misconduct . Nevertheless, we agree with the Court of Appeals that the trial court did
not err in this respect . Previs concedes that it is fairly well settled in this
Commonwealth that, with few exceptions, a verdict cannot be impeached by the
testimony of a juror. Rietze v. Williams , 458 S .W .2d 613 (Ky. 1970), overruled on other
rounds in Centre College v . Trzop , 127 S .W .3d 562, 566 (Ky. 2003) ; Doyle v.
Marymount Hospital, Inc. , 762 S .W .2d 813 (Ky. App. 1988) . As noted by the Court of
Appeals, to allow a juror to single-handedly overturn a verdict after it has been rendered
"would invite the very kind of mischief the [CR 59 .01 new trial] rule was designed to
obviate ." Id . at 815 .
The decision of the Court of Appeals is reversed and this matter is remanded to
the Bourbon Circuit Court for further proceedings consistent with this opinion .
Lambert, CJ ; Cooper, Graves, Roach, and Scott, JJ., concur. Wintersheimer,
J ., dissents without opinion .
COUNSEL FOR APPELLANT :
David A . Weinberg
David A. Weinberg, P.S .C.
301 East Main Street, Suite 110
Lexington, KY 40507
COUNSEL FOR APPELLEE :
Thomas L . Travis
Chadwick A . Wells
Clark & Ward
World Trade Center
333 West Vine Street, Suite 1100
Lexington, KY 40507
COUNSEL FOR AMICI CURIAE, LEAGUE OF
AMERICAN BICYCLISTS, LOUISVILLE
BICYCLE CLUB, ASHLAND CYCLING
ENTHUSIASTS, INC., BLUEGRASS CYCLING
CLUB, BOWLING GREEN LEAGUE OF
CYCLISTS, and CHAIN REACTION CYCLING
CLUB OF PADUCAH :
Victor B . Maddox
Tachau Maddox Hovious & Dickens PLC
2700 National City Tower
101 South Fifth Street
Louisville, KY 40202-3116
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