779. TORTS. STRICT LIABILITY AND BLASTING CASES.
STATHERS (RANDALL L.), ET AL.
GARRARD COUNTY BOARD OF EDUCATION, ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND VANMETER (CONCURS)
TO BE PUBLISHED
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.
CAUSE OF ACTION – BLASTING DAMAGES
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.