Cause of Action: Negligent Hiring, Training and Supervision (Carberry v. Golden Hawk Transportation, COA, PUB 6/21/2013)

COA.Neg.HiringCarberry vs. Golden Hawk Transportation Co.
COA, PUB 6/21/2013

Citing the Flor-Shin two-prong test for negligent hiring and retention:

Flor-Shin identifies the two elements necessary to prove a claim of negligent hiring and retention—an unfit applicant for a particular job and creation of an unreasonable risk of harm by the hiring of that applicant.

In Flor-Shin, an award of summary judgment to a floor maintenance company was vacated because it had hired and placed William Bayes, a man with an extensive criminal record,10 inside a locked K-Mart store with a single female employee whom he sexually assaulted. Here, we agree with the trial court’s application of Flor-Shin and its award of summary judgment. Ivey was hired as a truck driver. A check of his driving history, as required by 49 CFR § 391.25, revealed a few driving violations over a lengthy career but not enough to make him unfit to handle a big rig. Unlike Bayes in Flor-Shin, Ivey’s job with Golden Hawk did not place him alone in an enclosed space with the public and definitely not with Carberry. The attack occurred in the open and in public view..

On the allegation of negligent training and supervision, an employer may be held liable for the negligent supervision of its employees “only if he or she knew or had reason to know of the risk that the employment created.” Booker, 350 F.3d at 517 (quoting Restatement (Second) of Agency § 213 (1958) (Comment & Illustrations)); see also Smith v. Isaacs, 777 S.W.2d 912, 914 (Ky. 1989). On the strength of VanBuskirk’s affidavit, the trial court found Golden Hawk had no reason to suspect Ivey would commit an assault while on the job and went on to find Ivey “acted so outside the normal scope of employment that no reasonable amount of training or supervision could have prevented the attack.” On the facts presented, we agree. The meeting between Sexton, Carberry and Ivey occurred unbeknownst to Golden Hawk and was not in furtherance of Golden Hawk’s business interests. We see no basis upon which Carberry could succeed on a claim of negligent training and supervision.

In Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946), a commercial bus driver stopped his vehicle, alighted and assaulted another motorist. Wood’s attempt to recover damages for the assault from the bus line was thwarted because: the master is liable only for the acts of his servant committed in the course or scope of the latter’s employment and not for the acts of the servant committed by him while not serving the master and outside of the scope of his employment. Hines v. Wall, 194 Ky. 379, 239 S.W. 451. Wood, 302 Ky. at 113, 194 S.W.2d at 82. Just as the bus driver in Wood did not assault the other driver in furtherance of the bus company’s interests, Ivey did not assault Carberry in furtherance of Golden Hawk’s interests. Therefore, the trial court’s order awarding summary judgment to Golden Hawk is affirmed.

Causes of Action: Premises Liability – Licensee vs. Invitee

caution wet floor

The following not to be published decision from the Court of Appeals addresses the duties owed to a licensee vs. an invitee and how the distinction made a difference to the plumber whose suit was dismissed and affirmed on appeal.

Rozeboom vs. Hugh Jass Burgers LLC
COA NPO 6/28/2013

TAYLOR, JUDGE: Wes Rozeboom brings this appeal from an April 3, 2012, summary judgment of the Fayette Circuit Court dismissing Rozeboom’s premises liability action against Hugh Jass Burgers, LLC. We affirm.

Rozeboom asked permission from the manager of Hugh Jass Burgers to enter the restaurant and repair the waterline for The manager of Hugh Jass Burgers gave Rozeboom permission to enter the restaurant. On the day of the accident, Rozeboom entered the restaurant at approximately 8:00 a.m., before the restaurant opened to the public. After working for several hours, Rozeboom started removing his tools from the restaurant, and after a couple of trips, he slipped on a greasy spot on the floor and fell, causing a fracture to his tibial plateau.

Rozeboom contends that the circuit court improperly rendered summary judgment by dismissing his premises liability claim against Hugh Jass Burgers. In particular, Rozeboom claims that he was an invitee at the time of his injury as his work also benefited Hugh Jass Burgers. Rozeboom believes the circuit court erroneously concluded that he was a licensee or independent contractor at the time of his injury.

The resolution of this appeal revolves solely upon the issue of whether Rozeboom was an invitee at the time of his injury. Rozeboom believes he was an invitee; conversely, Hugh Jass Burgers argues he was not an invitee but rather was a licensee. For the following reasons, we conclude that Rozeboom was a licensee and was not an invitee.

In this Commonwealth, an individual is considered an invitee if:

(1) he enters by invitation, express or implied, (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner.

West v. KKI, LLC, 300 S.W.3d 184,190 (Ky. App. 2008) (quoting Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 491-92 (Ky. App. 1999)).

Therefore, to constitute an invitee, it must be initially determined whether the individual entered the premises upon the invitation of the landowner. Such invitation may be either expressed or implied. Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870 (1942). An express invitation normally occurs through the verbal language of a landowner, and an implied invitation occurs when:

[T]he owner or occupant does something or permits something to be done which fairly and reasonably indicates to the person entering the premises, that his presence is consistent with the intentions and purposes of the occupant, and leads the one entering to believe that the use is in accordance with the design or purpose for which the place is adapted, and to be used in mutuality of interests.

Shoffner, 166 S.W.2d at 873. By contrast, an individual who enters the premises upon the mere permission of a landowner is considered a licensee. The distinction between invitation or permission of a landowner is pivotal to the determination of the status of the entrant. This distinction has been eruditely explained:

[A]n invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. . . .

Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee, as stated in § 330; but it does not make him an invitee, even where his purpose in entering concerns the business of the possessor. . . .

Restatement (Second) of Torts § 332 cmt. b (1965).

In the case at hand, Rozeboom asked permission to enter the restaurant for the sole purpose of repairing a leaky pipe for For this limited purpose, the manager of Hugh Jass Burgers consented to Rozeboom’s entry. Rozeboom was not employed by Hugh Jass Burgers and performed no repairs at the behest of Hugh Jass Burgers. Additionally, Rozeboom entered the restaurant at 8:00 a.m., well before it opened to the general public and did not dine at the restaurant.

From these facts, it is clear that Rozeboom did not enter the restaurant upon the express or implied invitation of Hugh Jass Burgers. Rather, the manager of the restaurant merely gave Rozeboom permission to enter the restaurant if he desired to do so. And, the mere fact that Rozeboom’s entry may have indirectly benefited Hugh Jass Burgers does not equate to an implied invitation under the particular facts herein. Simply stated, the undisputed facts indicate that Rozeboom’s entry into the restaurant was the direct result of his own insistence for the benefit of and was not at the express or implied invitation of Hugh Jass Burgers. Thus, we conclude that by entering the restaurant by request and upon the permission of the manager of the restaurant, Rozeboom was legally a licensee at the time he suffered his injury.

Accordingly, being a licensee at the time of his injury, the circuit court properly rendered summary judgment dismissing Rozeboom’s premises liability action against Hugh Jass Burgers, LLC.

For the foregoing reasons, the summary judgment of the Fayette Circuit Court is affirmed.

Negligent or defective restraints system aka seat belt (Nissan Motor Company, LTD vs. Amanda Maddox. Pub. COA 8/30/2013)

Seat Belt claim:

Negligent restraint system.
Nissan Motor Company, LTD  vs. Amanda Maddox
Published.  8/30/2013.  Lincoln County (J. Tapp).

COMBS, JUDGE: Nissan Motor Company, Ltd., and Nissan North America, Inc., (collectively, “Nissan”) appeal the judgment of the Lincoln Circuit Court which held them liable for injuries sustained by Amanda Maddox (now Gifford). After our review, we affirm.

Amanda asked the jury to determine that Nissan had designed the Pathfinder to provide maximum protection for the 50th percentile dummy while neglecting the safety of larger occupants. She claimed that Nissan merely wanted to achieve the five-star rating in order to be more appealing to consumers. She also pointed out that while Nissan consistently touted the safety of the load limiter in the seatbelt, the back seatbelts do not have load limiters, and crash tests are not performed on back seat occupants. Amanda also cited weaknesses in the testimony of Nissan’s witnesses, such as a lack of analysis of her collapsed seat. After our review of the full record and pertinent authorities, we are not persuaded that the verdict was unsupported by the evidence or that it was a result of passion. Thus, we affirm the denial of the motion for a directed verdict.

Plaintiffs in a products liability action may plead negligence claims based on one of three theories: 1) design defect; 2) manufacturing defect; or 3) failure to warn. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 251 (Ky. 1995). Amanda presented both a failure-to-warn theory and a design-defect claim. Although the jury needed to find against Nissan according to only one theory in order to find it liable, it determined that Nissan was liable under both theories. See Martin v. Ohio County Hospital Corp., 295 S.W.3d 104, 115-16 (Ky. 2009).

Three elements are necessary to prove a crashworthiness claim:

(1) an alternative safer design, practical under the circumstances;

(2) proof of what injuries, if any, would have resulted had the alternative, safer design been used; and

(3) some method of establishing the extent of enhanced injuries attributable to the defective design.

Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 41 (Ky. 2004).

CAUSATION: “Substantial factor” and causation of harm in negligence cases (Moloney v. Becker, COA, PUB 4/12/2013)

The Court of Appeals addresses causation and substantial factor in making the link from negligence to harm:


VANMETER, JUDGE: The Estate of Mabel C. Moloney (“Estate”) appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate’s motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm. ***

Causation is a question of fact when “‘the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.’” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003) (citation omitted). In a negligence case such as this one, “the jury resolves any conflicts in the testimony and also any conflicts in the reasonable inferences to be drawn from the testimony[.]” Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 385 (Ky. 1985) (citations omitted).

Kentucky has adopted the “substantial factor” test to establish causation, which was explained in Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980), as follows:

“In order to be a legal cause of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent. (T)his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff’s harm.

The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called ‘philosophic sense,’ yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.”

Id. at 144 (quoting Restatement of Torts, Second sec. 431, Comment a.) In determining whether an event is a substantial factor in causing an injury, courts should consider:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.
Restatement (Second) of Torts § 433 (1965).

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Standard of Care and Negligence Per Se (Moloney vs. Becker, COA, PUB, 4/19/2013)

The published decision by the Court of Appeals in Moloney vs. Becker is just chock full of stuff.  In addition to the standard of review law on motions for JNOV and directed verdict, we have a little legal rif on negligence per se and the “standard of care”.


VANMETER, JUDGE: The Estate of Mabel C. Moloney (“Estate”) appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate’s motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm. ***

A claim of negligence per se merely substitutes the common law standard of care with a statutory standard of care. Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. App. 2008) (quoting Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 926-27 (Ky. 1994)). Whether John violated his common law standard of care or the statutorily-imposed standard of care found in KRS 524.130 is immaterial since “the violation ‘must be a substantial factor in causing the result.’” Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999) (quoting Britton v. Wooten, 817 S.W.2d 443, 447 (Ky. 1991)). The issue in the underlying case is whether substantial evidence supported the jury’s finding that John’s negligence was not a substantial factor in causing an injury to the Estate. Thus, the Estate’s argument that John’s actions violated KRS 542.130 is not germane to the issue.

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Legal malpractice, assignment of claim, real party in interest: Davis v. Scott, COA, NPO 3/8/2013

247.  Legal Malpractice, assignments and real party in interest; tolling of the statute of limitations.
Davis vs. Scott, Hardin County
COA, Not Published, 3/8/2013

NICKELL, JUDGE: Tim Davis and Tim Davis & Associates, Inc. (collectively “Davis”) appeal from the February 21, 2011, order of the Hardin Circuit Court that denied Davis’s motion to alter, amend, or vacate the Court’s previous order dismissing, without prejudice, Davis’s legal malpractice lawsuit, Action No. 05- CI-00800 (“first action”), against John J. Scott and Whitlow & Scott (collectively “Scott”). Davis also appeals from the February 21, 2011, order of the Hardin Circuit Court that dismissed, with prejudice, Davis’s second legal malpractice lawsuit against Scott, Action No. 10-CI-002530 (“second action”). We reverse the trial court’s order in the first action and remand for further proceedings. We affirm the trial court’s dismissal of the second action.

This case involved an assignment of a legal malpractice claim with SCOKY ruling in the first appeal that “If an assignment is invalid or incomplete, the assignor may still maintain a suit in his or her name. Thus it would follow that Davis can pursue his malpractice claim as the real party in interest, as opposed to simply a nominal plaintiff.”  Davis v. Scott, 320 S.W.3d 87, 92 (Ky.  2010).

Our best understanding of the Supreme Court’s intention is that Davis should be permitted to pursue the first action by showing the assignment no longer exists and he is the real party in interest. There is no disagreement that, by order of the United States District Court, Middle District of Tennessee, the assignment no longer exists. The question thus becomes: how can Davis successfully show that he is now the real party in interest?

Upon concluding that an assignment had occurred between Davis and Global, the Supreme Court cited numerous factors that together established Davis was not the real party in interest. In particular, the Court noted:

Global selected and retained Davis’s counsel in the malpractice action and bore the financial responsibility for the cost of suing Scott. Because Davis is obligated to bring the action, he may not withdraw the suit. Davis is not permitted to settle the malpractice claim without Global’s express written consent. Davis agreed to share privileged, attorney-client information with Global. Global retained control over the initiation, continuation and/or dismissal of the malpractice claim.

Davis, 320 S.W.3d at 91. Therefore, if Davis can show these factors are no longer present, Global is in no other way involved in the legal proceedings, and Global no longer retains an interest in the outcome of the lawsuit, he succeeds in showing he is the real party in interest and the first action is thus no longer tainted. Upon these showings, the lawsuit should continue. However, if he is unable to prove to the trial court that he is, in fact, the real party in interest, then the order denying Davis’s motion to alter, amend, or vacate its previous order dismissing the case was appropriate.

For the foregoing reasons, the February 21, 2011, order dismissing Action No. 10-CI-002530 is affirmed. Additionally, the February 21, 2011, order of the Hardin Circuit Court denying Davis’s motion to alter, amend, or vacate in Action No. 05-CI-00800 is reversed and remanded for additional proceedings consistent with this Opinion.


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Another page of links added! Causes of Action (Elements)!

Another page of useful links to useful posts has been aggregated.  We already have a category for Defenses and Cause of Action.

But the categories simply list all the posts that have been tagged with that category.  However, these two ages are indexed to those pages which provides a little more utility for the user.

The “Pages” are in the right column.  Just scroll down till you find them.



LAMBERT, SENIOR JUDGE: Cody Martin appeals from a summary judgment of the Jefferson Circuit Court holding that Keith Elkins breached no duty under Kentucky law by allowing his son to host a party at his residence where alcoholwas consumed by teenagers. On appeal, Martin argues that the Jefferson Circuit Court erred in its decision.

Thus, the trial court was correct in granting summary judgment. As has oft been stated, the proper purpose of a summary judgment “is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor[.]” Id. at 503.

Accordingly, we affirm the Jefferson Circuit Court.


The question presented here is whether a social host owes a duty to underage guests who consume alcoholic beverages on the host’s property. This presents an issue of first impression as prior cases involving the Dram Shop Act are inapplicable to a social host serving (or allowing guests to consume) liquor in his own home.2 See, e.g., Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 335 (Ky. 1987); Estate of Vosnick v. RRJC, Inc., 225 F. Supp. 2d 737, 740 (E.D. Ky. 2002). Further, no cases in Kentucky discuss this particular issue with respect to minors. Wilkerson v. Williams, 336 S.W.3d 919 (Ky. App. 2011). We review this question of law de novo. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).

Social host liability is a fledgling area of the law in this jurisdiction. To date, there is only one state law case which addresses it (outside of the Dram Shop context). In 2002, the Sixth Circuit noted Kentucky’s lack of case law on social host liability, stating as follows:

Kentucky law on social host liability is nonexistent. The parties do not cite and the Court is unable to find a Kentucky case addressing the liability of social hosts to third parties for the negligent acts of intoxicated guests. To be clear, the Court is faced with a total dearth of precedent[.]

2 Despite Martin’s arguments to the contrary, KRS 244.085(3) is inapplicable to the present case as Elkins neither served nor assisted minors in obtaining alcohol. As stated above, the minors themselves brought alcohol to the party with them.

Given the vacuum of precedential authority, the Court is faced with the task of predicting how the Kentucky courts would rule. The Court is aided in this enterprise by a review of the law in other jurisdictions[.]

Judging from the academic scholarship, other jurisdictions handle the question of social host liability in one of three ways. First, a minority have refused to impose social host liability altogether. Examples include Minnesota, Mississippi, Ohio, Pennsylvania, and Vermont. Second, some have imposed liability by statute. Examples include Georgia and Oregon. Finally, the majority have imposed liability based on common law negligence principles. This final set is further subdivided into two groups—those that extend social host liability for the provision of alcohol to both minors and adults, and those that limit social host liability to the provision of alcohol to minors only. Among the former group are California, Indiana, Iowa, Massachusetts, and New Jersey. Among the latter group are Michigan, North Carolina, and Wisconsin.

Estate of Vosnick, 225 F. Supp. 2d at 740-41 (E.D. Ky. 2002) (internal citation and footnote omitted).

This Court was presented with the opportunity to address social host liability in 2011 in Wilkerson, 336 S.W.3d 919. In Wilkerson, we stated that,

[As a general rule,] “an actor whose own conduct has not created a risk of harm has no duty to control the conduct of a third person to prevent him from causing harm to another.” Carneyhan, 169 S.W.3d at 849. . . . [However,] a duty could arise to exercise reasonable care to prevent harm by controlling a third person’s conduct where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct[.]”

… .

[Nonetheless,] “[t]he foreseeability of the injury defines the scope and character of a defendant’s duty.” Norris v. Corrections Corp. of America, 521 F. Supp. 2d 586, 588 (W.D. Ky. 2007). “The most important factor in determining whether a duty exists is foreseeability.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citation omitted). “[C]ourts have held that, except under extraordinary circumstances, individuals are generally entitled to assume that third parties will not commit intentional criminal acts.” James v. Meow Media, Inc., 300 F.3d 683, 693 (6th Cir. 2002).

Id. at 923. Unfortunately, Wilkerson is not directly on point, as it involved a tortfeasor of the age of majority.

Nevertheless, we noted in Wilkerson, that “[t]he foreseeability of the injury defines the scope and character of a defendant’s duty.” Id., quoting Norris, 521 F. Supp.2d at 588. In the present case, Elkins, an adult landowner who was aware that minors were imbibing in alcohol on his property, had a special relationship with those minors. Where minors and alcohol are concerned, the scope of foreseeability is expanded. Many ugly outcomes may be foreseeable when minors consume alcohol, including alcohol poisoning, drunk driving accidents, drowning, and other non-intentional torts.

However, the alleged tortious conduct in this case was an assault by Byrd on Martin, an act which occurred at another location and due to an automobile fender bender. This conduct was beyond the scope of reasonable foreseeability by Elkins. Wilkerson, 336 S.W.3d at 923. As previously stated, persons are generally entitled to assume that third parties will not commit intentional criminal acts. Id. Indeed, even the Dram Shop statutes, which are intended to be more stringent as they apply to businesses rather than individual social hosts, place the primary liability for injuries to third parties upon the intoxicated person rather than the business establishment. KRS 413.241(3); Isaacs v. Smith, 5 S.W.3d 500 (Ky. 1999).

In Wilkerson, this Court held that a social host could not foresee that a drunken party guest would punch another guest in the face. Wilkerson, 336 S.W.3d at 923. In Isaacs, the Supreme Court stated that, in the dram shop context, a night club owner could not foresee that a bar patron who got into a shouting match with another patron would later in the evening draw a weapon and shoot the other patron. Isaacs, 5 S.W.3d at 503. The law is clear that intentional torts against third parties, such as bar fights, assaults, and shootings, are not foreseeable to social hosts or bar owners. Thus, viewing the evidence in a light most favorable to Martin, Elkins is entitled to judgment as a matter of law. As the Supreme Court noted in Isaacs, although proximate cause is typically a question for the jury, “a duty applies only if the injury is foreseeable.” 5 S.W. 3d at 502. Without a duty, there can be no breach or causation.

Thus, the trial court was correct in granting summary judgment. As has oft been stated, the proper purpose of a summary judgment “is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor[.]” Id. at 503.

Accordingly, we affirm the Jefferson Circuit Court.



ACREE, CHIEF JUDGE: Randall and Bobbie Stathers, and Brandalyn Elkins appeal the Garrard Circuit Court’s November 8, 2010 order granting summary judgment in favor of appellees Garrard County Board of Education (Board), Branscum Construction Company, Inc. (Branscum), Elza Construction, LLC (Elza), Impact Drilling & Blasting, Inc.,1 and Irvine and Pyles Drilling Company, Inc. (Irvine and Pyles). The circuit court found that the Stathers and Elkins failed to present sufficient evidence that blasting by the appellees caused damage to their respective homes.

The Board, Branscum, and Elza cross-appeal the circuit court’s June 7, 2010 order finding that the Board is not entitled to governmental immunity and, in turn, denying the Board’s motion to dismiss.

For the reasons that follow, we reverse as to the appeal, affirm as to the cross-appeal, and remand for additional proceedings.


his is a blasting case and, therefore, a strict liability case. See Island Creek Coal Co. v. Rodgers, 644 S.W.2d 339, 348 (Ky. App. 1982) (“Kentucky has expressly renounced the ‘negligence’ theory in blasting cases.”); David J. Leibson, 13 Ky. Prac. Tort Law § 12:6 (2011) (“Blasting is an activity which has repeatedly been held subject to strict liability.”). Under a blasting strict liability analysis, proof of causation between the blasting and the claimed property damage is required. Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970) (noting “one common denominator” between strict liability and similar tort-based causes of action is the need to establish causation); Island Creek Coal, 644 S.W.2d at 348 (explaining it is only necessary to prove causation and damages in blasting strict liability cases); Wolf Creek Collieries Co. v. Davis, 441 S.W.2d 401, 402-03 (Ky. App. 1969). The Appellants must therefore show a genuine issue of material fact exists as to causation to maintain their strict liability claim and survive summary judgment. We think they have.

We begin by noting that “causation . . . presents a mixed question of law and fact.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citing Deutsch v. Shein, 597 S.W.2d 141, 145 (Ky. 1980)). Therefore, whether a plaintiff’s damage was caused by the tort defendant typically “should be left to the jury to determine.” Eichstadt v. Underwood, 337 S.W.2d 684, 686 (Ky. 1960) (reviewing denial of defendant’s directed verdict motion). It is not surprising then that, with the exception of medical malpractice cases,4 we could find no Kentucky appellate opinion affirming any grant of summary judgment based on a plaintiff’s inability to establish, through expert testimony, the existence of a genuine issue of the material fact – in this case, a genuine issue regarding causation.

Despite our inability to locate such a case, we acknowledge that there is an exception to this general rule. That exception is where it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.

4 “Under Kentucky law, a plaintiff alleging medical malpractice is generally required to put forth expert testimony to show that the defendant medical provider failed to conform to the standard of care.” Blankenship v. Collier, 302 S.W.3d 665, 670 (Ky. 2010) (citation omitted). “When it is evident that the plaintiff has not secured a single expert witness and has failed to make any expert disclosures after a reasonable period of time, there truly is a failure of proof and a summary judgment motion is appropriate.” Id. at 674. This rule has never been applied to a blasting case and, to our understanding, has never been applied to any case other than medical malpractice cases. Even in these cases, summary judgment is not granted for lack of proof of causation; summary judgment is granted because there was no proof of the standard of care (i.e., the measure of the duty) and, therefore, no proof of a breach. Id. (Plaintiff “never created a genuine issue of material fact regarding [defendant physician’s] negligence by identifying a medical expert who could testify about a breach of the standard of care.”).

1991) (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)). The word “impossible” in the context of the summary judgment standard is to be “used in a practical sense, not in an absolute sense.” Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). As we explain, we do not believe it is a practical impossibility that Appellants will be able to produce evidence at trial warranting a judgment in their favor.

Cause of Action: Dram Shop (Carruthers v. Edwards, COA, Pub. 8/10/2012)

In this published decision from the COA, not only is the Dram Shop Act addressed as a normal cause of action for bar’s liability for serving too much alcohol to a patron, but the constitutionality of the act is affirmed AND some creative drafting to pursue claim against the property owner under the dram shop, common law negligence, and landlord liability.


ACREE, CHIEF JUDGE: Appellant Monica Carruthers was injured when Lucas Watson, a patron of Foolish Heart, Inc., d/b/a/ Froggy’s Sports Bar, purportedly drove his vehicle while intoxicated, striking Carruthers in Foolish Heart’s parking lot. Carruthers filed suit against several individuals, including Appellees Max and Lois Ann Edwards, the owners of the premises on which Foolish Heart is located. The issue in the case before us may be summarized as this: what liability can be imputed to an owner of real property, on which a bar or similar establishment is operated by a tenant, when a patron of that bar consumes alcohol and, thereafter, drives a motor vehicle causing injury or death to a third party? Following a careful review, we affirm the McCracken Circuit Court’s July 28, 2011 order granting the Appellees’ motion to dismiss Carruthers’ complaint for failing to state a claim upon which relief may be granted.


We first address whether Carruthers’ complaint stated a valid claim under the Dram Shop Act against the Appellees. Kentucky’s Dram Shop Act, KRS 413.241, provides, in pertinent part:

(1) The General Assembly finds and declares that the consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person.

(2) [N]o person holding a permit under KRS 243.030, 243.040, 243.050, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person . . . for any injury suffered off the premises . . . because of the intoxication of the person to whom the intoxicating beverages were sold or served, unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.

The parties first dispute the continuing validity of the Dram Shop Act following this Court’s recent opinion Taylor v. King, 345 S.W.3d 237 (Ky. App. 2010). In Taylor, this Court declared unconstitutional KRS 413.241’s provision governing proximate cause “to the extent it would prevent a fact-finder from determining whether an injury was a foreseeable consequence of a dram shop’s improper service of alcohol.” Id. at 244. In so doing, we explained “the legislative finding regarding proximate causation in KRS 413.241(1) intrudes upon the fact- finding role of the courts[.]” Id. at 243. Accordingly, in light of Taylor, KRS 431.241(1)’s presumption or imputation of proximate cause no longer exists. Id.

The relevant sections of KRS 413.241 “imposing liability upon a dram shop or its creation of a priority of liability between the dram shop and the intoxicated tortfeasor[,]” however, remain unchanged. Id. at 244. KRS 413.241 still imposes a duty upon a dram shop and its employees, before selling or serving alcohol to a person, to use their powers of observation to perceive readily visible warning signs that a person is intoxicated, and to refrain from serving or selling alcohol to that patron. KRS 413.241(2). If the dram shop or its employees fail to perceive, or simply ignore, those warning signs, the dram shop may be held liable pursuant to KRS 413.241 provided the dram shop’s negligent conduct is also the proximate cause of the plaintiff’s injuries. Id.; Taylor, 345 S.W.3d at 244.

In sum, while Taylor struck down as unconstitutional the presumption of proximate cause codified in KRS 423.241(1), it neither addressed nor held the remainder of KRS 413.241 unconstitutional. 345 S.W.3d at 244. Dram shop liability – under specifically delineated circumstances – still exists in this Commonwealth, as does the statutory limitation on liability. See KRS 413.241(2).

Carruthers next argues that if the circuit court based its order dismissing her complaint on the Dram Shop Act, the order is erroneous as a matter of law and must be reversed because, in Carruthers’ view, she asserted a valid Dram Shop Act claim against the Appellees. We disagree because Carruthers’ complaint cannot be read as asserting such a claim under the Dram Shop Act against these Appellees.

The statute addresses two types of persons: a dram shop (and its servers) who serve alcohol to an intoxicated person, and the intoxicated person the dram shop serves. KRS 423.241(2). It does not create or comment upon the liability of a third-party who fits neither description. Although Appellees run their own dram shop, they served no alcohol to Watson. We conclude that no purpose intended by our Legislature’s passage of the Dram Shop Act would be served by imposing liability upon a lessor who simply holds title to property on which his properly licensed lessee engages in the regulated sale of intoxicating liquors. See Robinson v. Walker, 211 N.E.2d 488, 491 (Ill. App. 1965). Therefore, the complaint failed to state a claim based upon the Dram Shop Act.