dissenting:
Respectfully I dissent. I do not believe that the majority opinion addresses the crucial issue in this case as raised by the appellant, Judy Lewis. I agree with the appellant that the jury instructions in this case were so confusing as to be improper. As a result, the appellant should receive a new trial.
Instruction No. 2, after noting a driver’s general duty of care and some of the more particular forms of that duty pertinent to this case, advised the jury as follows:
If you are satisfied from the evidence that the Defendant, Anita Combs, failed to comply with one (1) or more of these duties and that such failure was a substantial factor in causing the collision, you will find for the Plaintiff, Judy Lewis. Otherwise, you will find for the Defendant, Anita Combs.
*595The jury was then asked to respond to the following interrogatories:
Does the Jury believe from the evidence that the Defendant, Anita Combs, failed to abide by any of her duties set forth in Instruction No. [2]?
Answer: Yes.
Does the Jury believe from the evidence that the Plaintiff, Judy Lewis, suffered any injury as a result of the accident? ... If ... your answer to [this] interrogatory is “NO,” then you shall not deliberate further regarding the accident.
Answer: No.
Lewis objected to this second interrogatory on the ground that it confuses the issue of liability. I agree. “Injury” is a term of art in the law, an element of the plaintiffs cause of action. Under Instruction No. 2, if the jury believed that Combs negligently caused her car to collide with the car in which Lewis was a passenger, then Lewis was legally “injured”; that is, a legally protected right had been invaded. A cause of action for negligence, however, requires more than an injury in this sense. The injury must result in actual loss or damage. Capital Holding Corporation v. Bailey, Ky., 873 S.W.2d 187 (1994). Thus, although the first interrogatory noted above was apparently understood by the parties and the trial court as providing a basis for finding Combs liable, in fact it did not. It did not establish the “actual loss” element. The second interrogatory noted above may have been intended to address that element, but “injury” as used in that interrogatory does not accurately convey what Lewis was obliged to prove. “Injury” was not defined in the instructions, and absent an explanation that “injury” here means loss, it seems likely that the jury would have understood this interrogatory to ask whether Lewis had suffered a physical “injury”; that is, significant damage to her body. Yet Lewis could have suffered a loss as a result of the accident despite not having been physically injured in this sense. The accident was alleged to have necessitated medical examinations, for example, the expenses of which could be deemed recoverable. Pain and suffering were also alleged and treatment to relieve pain. These too could be found proximate, compensable results of such an accident. “Injury,” therefore, in the lay sense of significant physical damage, was not an element of Lewis’s cause of action. It thus should not have been set up as a condition to her right to recover.
Of course, whether Lewis was physically injured in the accident was an important factor in the determination of the amount of her damages, but before getting to that question the question of liability should have been more clearly addressed. Believing that the confusing “injury” interrogatory deprived Lewis of a fair trial, I would reverse the judgment and remand for new proceedings.
That the instructions were confusing appears in another aspect of this case: the question concerning the propriety of an award of costs where there are no actual damages. Because I would remand for a new trial, I would not reach that question. But on that question, too, I disagree with the majority. Confusion has arisen from the characterization of this verdict as liability but zero damages. As noted above, however, if Lewis did not prove an actual loss stemming from the accident then she did not establish Combs’s liability, she was not a prevailing party, and she was not entitled to costs under the standard rule. Period. There is no need for the new rule the majority has announced. I am concerned that the majority opinion would establish a fixed rule too broadly denying costs. In cases where only nominal damages are awarded, for example, an award of costs is clearly appropriate. There may be cases as well wherein liability is proven much more conclusively than in this case, but the proof nevertheless fails on the damage issue. I do not support a blanket rule that in all such cases costs should necessarily be denied.