TORTS (duties, appeals): Higginbotham v. Keeneland Association (COA 1/29/2010)

v. Keeneland Association

2009-CA-000301 01/29/2010 2010 WL

Opinion by Judge Lambert; Judge Wine and Senior Judge
Harris concurred. The Court affirmed a summary judgment entered in favor
of appellee on appellants’ claims related to a motor vehicle accident. A
passenger was killed and a passenger was injured when the driver
improperly reacted to a flat tire, lost control of her vehicle, and a
struck a vehicle owned by appellee’s employee who had parked the vehicle
on the shoulder to activate temporary signs directing traffic into
Keeneland racetrack. The Court held that the trial court properly
granted summary judgment in favor of the employer. The Court first
declined to review appellants’ argument or supporting documentation that
the employee’s parking on the shoulder constituted negligence per se
because the argument was not raised before the trial court and the
documents, which were not part of the record on appeal, were improperly
attached as an appendix to the brief. The Court then held that the
employee did not owe appellants a duty to refrain from parking on the
shoulder of the road. The particular harm was not foreseeable as no
reasonable person could have foreseen the injuries sustained or that the
driver would lose control to the extent that she could not bring her
vehicle to a complete stop utilizing the portions of the shoulder
available. KRS 189.450(3) did not impose a duty of care because the
statute was inapplicable to the road where the accident occurred, nor
did KRS 189.290(1) because the employee was not operating the vehicle at
the time of the accident. The employee did not have a common law duty,
as there was no authority for the proposition that the shoulder was
reserved exclusively for emergency purposes. Public policy
considerations also supported the finding that the employee did not have
a duty to refrain from parking on the road, as he acted within the
guidelines of the encroachment permit. The Court finally held that the
trial court properly found that the employee’s actions were not the
proximate cause of the collision, when it was undisputed that the driver
lost control of her vehicle when she improperly reacted to a flat tire.
Further, the evidence established that the vehicle was out of control,
traveling at a high rate of speed, and would have collided with whatever
was in its path – either the temporary sign, the steep earth berm or

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