COAKY Minutes: March 29, 2013 — Re: evidence rulings (expert opinions, ultimate issue, inconsistent statements, closing arguments) and landlord’s tort liability to tenant for premises

Published and Unpublished Decisions for COAKY
March 29, 2013

Two decisions address tort-related matters.  In Crutcher v. Harrod Concrete, COA dealt with compensatory damages resulting from a wilfull trespasser’s removal of limestone; and in

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No. 315-329;  15 decisions; none published


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299.  Evidence rulings on prior inconsistent statements; expert witnesses; closing argument
Wilson vs. Madzhitov
COA, Not Published

VANMETER, JUDGE: Alisha Wilson appeals from the Jefferson Circuit Court judgment ruling in favor of Mikail Madzhitov following a jury trial on her claim of negligence. Mikail cross-appeals from the same judgment. Based on the following, we affirm.

Issue:  Expert testimony

Alisha first argues that the trial court erred by permitting Mikail’s expert accident reconstructionist, Sonny Cease, to testify as to the issue of liability without any scientific basis, and thereby invading the province of the jury. We disagree.

KRE1 702 permits expert testimony “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue[.]” Upon acceptance as an expert, the witness is not permitted to draw legal conclusions from the evidence. Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711, 724 (Ky. App. 1992).

In the case at hand, our review of the record indicates that Cease did not testify as to a legal conclusion within the context of the negligence action. The only conceivable instance cited by Alisha when Cease could have testified as to a legal conclusion is when Cease was asked whether Mikail could have avoided Alisha. However, Alisha’s counsel objected to the question, which was sustained, and the jury was admonished accordingly. As such, the appropriateness of the question is not a basis for appellate review. See Derossett v. Commonwealth, 867 S.W.2d 195, 198 (Ky. 1993) (holding that when a trial court sustained objections to questions, admonished the jury, and no further relief was sought, any error regarding the questions was not preserved for review). With respect to the scientific basis for Cease’s testimony, the record indicates his testimony was based upon his expert observation of the intersection, his study of the sequence and timing of the traffic lights at the intersection, his observation of the photos of Mikail’s vehicle taken after the accident, and his review of the eyewitness accounts of the accident. A detailed history of Cease’s educational background and work experience were elicited during his testimony, which the court found qualified him to provide expert opinion concerning traffic collisions. Alisha points to no other instance in which Cease’s testimony invaded the province of the jury. As such, we find that Cease’s testimony complied with KRE 702 and did not usurp the role of the jury to draw legal conclusions.

Issue 2:  Prior inconsistent statements:

Next, Alisha argues the trial court erred by permitting Mikail to attack Alisha’s credibility with a prior inconsistent statement made in an answer to an interrogatory that was later supplemented to omit and deny the statement. We disagree.

KRE 801A(a)(1) permits the admission of prior statements of witnesses if the statement is inconsistent with the declarant’s testimony. Here, in response to an interrogatory, Alisha answered under oath that she was waved into the crosswalk by a bus driver stopped at the intersection. Later, Alisha supplemented her answer and specifically denied that the bus driver waved her into the crosswalk. During cross-examination of Alisha, counsel for Mikail used the prior inconsistent statement to impeach her testimony regarding her recollection of the circumstances leading to the accident.

Alisha argues that since she supplemented her interrogatory, the prior statement was not inconsistent, and that Mikail is attempting to create a credibility issue similar to that in Simmons v. Small, 986 S.W.2d 452 (Ky. App. 1998). However, we find Simmons distinguishable. In Simmons, the appellant filed a negligence action against the driver of an automobile that rear-ended him. Id. at 453. Months later, the appellant was involved in a second automobile accident. Id. In an interrogatory, the appellant answered that he had not yet settled the case he filed against the driver in the latter accident. Id. at 454. Upon reaching a settlement, Appellant then supplemented the answer to reflect that he settled the matter with the second driver. Id. at 455. At trial, Appellee attempted to use the initial interrogatory answer as a prior inconsistent statement to damage Appellant’s credibility. Id. This court found such use to be an attempt to manufacture a credibility issue since at the time the interrogatory was answered the statement that the case had not been settled was true. Id. In other words, both answers were and could have been true at the time given, and thus not inconsistent with one another.

Here, unlike in Simmons, both statements by Alisha could not have been an accurate account of the circumstances. Thus, Alisha’s prior statement was inconsistent with her subsequent supplemented answer and testimony at trial regarding her account of the circumstances leading to the accident in question. Since the two statements reflect an inconsistency in Alisha’s account of the circumstances, the prior inconsistent statement was relevant to her credibility as an eyewitness to the accident. We further note that, as required by Kentucky law, Alisha was afforded an opportunity at trial to explain the inconsistency. See White v. Piles, 589 S.W.2d 220, 223 (Ky. App. 1979) (holding “that where a witness has made a prior sworn statement which is arguably contradictory, he is especially entitled to have that fact pointed out to him and to be afforded an opportunity to explain the inconsistency[]”). As a result, we do not find the trial court to have abused its discretion by admitting the prior inconsistent statement.

Issue No. 3:  improper closing argument

Finally, Alisha argues the trial court erred by allowing Mikail’s counsel to make statements during closing argument about counsel’s own observations of the intersection where the accident took place, and thereby comment upon matters outside of the record. We disagree.

Specifically, Alisha takes issue with the following portion of Mikail’s counsel’s closing argument:

On my way here today I was sitting on the corner of Jefferson and 7th Street and Jefferson is a one-way headed west and I was in the curb, and my light was green and I could see pedestrians on the corner that were intending to cross heading south and when the lights were green I could see cars coming up from my left and I thought “there is no way, there is no way that if a car coming up . . .”

[objection by Plaintiff and bench conference]

So as I sat there in the westbound turn lane of Jefferson and cars were coming upon my left it occurred to me the similarities between that situation and this and I hoped we were all lucky enough that nobody decided to cross that intersection at that given time because another accident like this would have happened.”

With every alleged error we must adhere to the harmless error standard set forth in CR2 61.01, and disregard any errors or defects in the proceedings that do not affect the substantial rights of the parties. We note than an isolated instance of an alleged improper remark “will seldom be found prejudicial[,]” as opposed to when the remark “is repeated and reitareated in colorful variety[.]” Stanley v. Ellegood, 382 S.W.2d 572, 575 (Ky. App. 1964) (citation omitted). In this case, we see no prejudicial effect as a result of counsel’s comments. Of importance, the remarks were an isolated instance within the context of a broader argument summarizing the evidence. Furthermore, by way of Alisha’s counsel’s multiple  objections during closing argument, the jury was repeatedly informed by the trial court that the closing argument was not evidence to be considered, but was simply counsel’s own summary of the evidence. Given the wide latitude afforded counsel during closing arguments, we are unable to conclude a counsel’s mere mention of observing the intersection where an accident took place would justify a reversal of the trial court’s ruling. See Stopher v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky. 2001) (under Kentucky law, counsel is afforded wide latitude during closing arguments). Assuming arguendo that counsel’s comments were outside the bounds of permissible advocacy, the comments were not prejudicial nor did they affect Alisha’s substantial rights. Accordingly, this point of error is not a basis for reversal of the judgment.

320.  Insurance coverage for resident relative for UIM benefits
Moneyham vs. State Farm Mutual Automobile Ins. Co.
COA, Not Published
Marshall County

TAYLOR, JUDGE: Casey Mooneyham brings Appeal No. 2011-CA-002073-MR and Appeal No. 2011-CA-002074-MR from two separate orders of the Marshall Circuit Court entered November 1, 2011, determining that neither underinsured motorist or uninsured motorist (UIM/UM) coverage was available to Mooneyham under motor vehicle insurances policies issued by State Farm Mutual Automobile Insurance Company (State Farm). We affirm both appeals.

In this case, the Court examined three separate policies with State Farm.  In two of these policies, the named insured was the appellant’s wife parents, and although each provided UIM benefits, appellant’s wife was not a named insured and the appellant did not live at their residence (but in adjoining property).  In the third policy, the appellant’s wife was a named insured, but there was no UIM benefits.

324.  Premises liability.  Landlord’s duty to tenant.
McKenzie vs. Turner
COA, Not Published
Campbell County

CLAYTON, JUDGE: Sandra and Jerry McKenzie appeal from the December 2, 2011, order of the Campbell Circuit Court which granted summary judgment to Charles Turner in the McKenzies’ personal injury action. Because we hold that the trial court did not err, we affirm.

McKenzie argues that the trial court erred when it failed to apply the assumption of duty doctrine and cites to Mahan-Jellico Coal Co. v. Dulling, 282 Ky. 698, 139 S.W.2d 749 (Ky. App. 1940), in support of her argument. The Court in Dulling held that a landlord was liable after he attempted to repair faulty steps, assured his tenant that they were then safe, and the tenant then suffered injuries after relying on the landlord’s false assurances. Id. McKenzie maintains that the holding in Dulling demonstrates that a landlord, once he attempts to make a repair, is under a duty to continue making the same repair. We do not agree.

The law is well established that a tenant takes the premises as he or she finds them and there is no obligation upon the landlord to repair the premises. Miller v. Cundiff, 245 S.W.3d 786, 788 (Ky. App. 2007). Under the Uniform Residential Landlord Tenant Act (“URLTA”),1 a landlord has a duty to make repairs and maintain the premises in a “fit and habitable condition.” Kentucky Revised Statutes (“KRS”) 383.595(1)(b). However, Miller is clear that URLTA does not alter the common-law rule regarding landlord liability. Miller, 245 S.W.3d at 789. Similar to the facts before us, the tenant plaintiff in Miller injured herself after tripping on loose carpet that was an obvious condition. Id. Had McKenzie injured herself as a result of relying upon assurances from Turner that the handrail was safe, then she may have a cause of action under the principles of Dulling. However, McKenzie’s testimony is clear that she was aware the handrail was not functioning and also that her fall was not as a result of utilizing the broken handrail. The handrail’s status was not concealed from her as it was from the plaintiff in Dulling, making her situation akin to that in Miller, and therefore unrecoverable. Moreover, the Court in Miller made clear that damages for personal injuries are not recoverable under URLTA. Id. at 789-90. Accordingly, there is no way in which McKenzie could have prevailed at trial and Turner was entitled to judgment as a matter of law, making summary judgment proper. See Steelvest, 807 S.W.2d 476; CR 56.03.

For the foregoing reasons, the December 2, 2011, order of the Campbell Circuit Court is affirmed.

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