RENDERED: DECEMBER 14, 2017
TO BE PUBLISHED
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2016-SC-000457-DG
RICHARD STORM APPELLANT
ON REVIEW FROM COURT OF APPEALS
v. ' CASE NO. 2015-CA-000762
JEFFERSON CIRCUIT COURT NO. 09-CI-006073
LOUIS MARTIN APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING IN PART, REVERSING IN PART
Richard Storm appeals the Court of Appeals' opinion reversing the .
unanimous jury verdict in his favor on a personal injury action brought by
Louis Martin. For the reasons stated herein, we affirm in part and reverse in
part.
I. FACTUAL AND PROCEDURAL BACKGROUND.
On September 14, 2008, a significant windstorm resulted in downed
power lines and trees across the Louisville area. Three 9ays later, Martin was
driving his motorcycle on Phillips Lane in Louisville when he collided with a
downed tree in the roadway. Martin suffered significant injuries as a'result of
the accident. At the time, Appellee, Richard Storm, was the Metro Louisville
County Engineer and an Assistant Director of Public Works. He reported
directly to Ted Pullen, the Director of Public Works.
On June 17, 2009, Martin filed an action in the Jefferson Circuit Court
against Pullen, in his individual and official capacities, as well as Louisville Gas
and Electric Company, alleging negligence due to defendants' failure to remove
the tree on Phillips Lane or to-warn motorists of the hazard. Subsequently,
Martin amended his complaint to name Storm, also in his individual and
official capacities. ~ecognizing that both Pullen and Storm were entitled to
governmental immunity in their official capacities, Martin filed a second
amended complaint in January 2010, naming them both in their individual
. capacities only.
Following discovery, Pullen arid Storm filed a joint motion for summary
judgment on grounds that they were entitled to qualified official immunity in
their individual capacities. By order entered January 31, 2012, the trial court
'
held that Pullen was entitled to qualified immunity and dismissed the claims
against him. However, it denied the motion with respect to Storm.
Storm thereafter filed an interlocutory appeal on the issue of
immunity. A panel of the Court of Appeals noted that KRSl 179.070, which
sets forth the powers and duties of a county engineer, specifically states that
"(l) [t]he county engineer shall: ... U) Remove trees or other obstacles from the
right-of-way of any publically dedicated.road when the tree or other obstacles
1 Kentucky Revised Statutes.
. 2
become a hazard to traffic[.]" Rejecting Storm's argument that .he was not
aware of the statute and that the operations and maintenance division of the
Department of Public Works was the entity responsible for tree removal, the
panel cited to the recent decision in Wales v. Pullen, 390 S.W.3d 160 (Ky. App.
2012) (a contemporaneous case against Storm involving a motorist injured by a
downed tree in the same windstorm following Hurricane.Ike):
During the pendency of this appeal, this Court
rendered its decision in Wales v. Pullen, 390 S.W.3d
160 (Ky. App. 2012), where a motorcyclist was injured
when a downed tree allegedly caused him to crash on
September 20, 2008, in Louisville. The motorcyclist
filed an action against Storm in his individual capacity
and, as here, Storm asserted qualified official
immunity and argued that he was not responsible for
removing trees from the roadways. This Court rejected
his contention and held despite that the Louisville
Metro Government Department of Public Works may
have chosen to structure its department differently,
"based on the statutes as written, a member of the
public ... would expect the county engineer to remove
trees, as evidenced by the clear statutory mandate and
power to do so." Id. at 166. Storm's ignorance of his
statutory duty was inconsequential. Id. at 167. The
statutory language and.the use of the word "shall"
rendered his duty ministerial and, therefore, this
Court held he was liable for any negligence in failing to
remove the ·trees or improperly removing the trees. Id.
We are compelled to reach the same conclusion in this
Cqse ..Storm's compliance with his statutory duties
involved "merely executfon of a specific act arising
from fixed and designated facts." Yanero, 6.5 S.W.3d
at 522. He either complied with KRS 179.070, or he
did not. The circuit court properly ruled that Storm
owed a duty to Martin, and that duty was ministerial.
3
Storm v. Martin, 2012-CA-000378, 2013 WL 4036466 at *2 (Ky. App. Aug. 9,
2013). Accordingly, the Court of Appeals ruled that Storm was not entitled to
· qualified immunity.
An eight-day trial was subsequently held in .March 2015. Storm testified
that as county engineer, he and his staff were a division of the larger
Department of Public Works, had never been responsible for the removal of
trees, and that such task had always been performed by the operations and
maintenance division. Storm conceded that he was unaware of KRS 179.070,
and that he had never beeh told that tree removal was part of his job
responsibilities. In fact, Storm commented that his division did not even have
. .
the equipment to undertake tree removal. Similarly, Greg Hicks, the Assistant
Director in charge of the operations and maintenance division of Public Works;
testified that it had always been his division's responsibility to remove trees
from the roadway.
At the close of all evidence, Martin moved for a directed verdict, arguing
that ~torm admitted that he was unaware of his statutory obligation under
KRS 179.070(1)0), and that he took no part in removing the tree from Phillips
Lane before or after Martin's accident. The trial court denied the motion. The
jury returned a unanimous verdict in favor of Storm, finding that Martin had
not proven by "a preponderance of the evidence that Richard Storm failed to
comply with his duty as set forth in the instruction."
Martin thereafter filed a motion for JNOV /new trial arguing that despite
the fact that Storm's testimony conclusively established that he failed to
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comply with KRS 179.070(1)0), the jury nonetheless found that he did not
breach any duty owed to Martin. Martin pointed out that the jury's question to
the trial court during deliberations indicated that it was less concerned with
'
'
Storm's duty and more concerned with his capacity to withstand the financial
·impact of a judgment against him. ~y order entered April 30, 2015, the trial
court denied Martin's. motion without a h~aring and without any written
findings. Martin appealed.
The Court of Appeals :reversed, and remanded for a new trial, holding
that the jury's findings that Storm did not fail to comply with his duty was
against the weight of the evidence, and in so finding that he did not exercise
ordinary care, overlooked 'the specifi9 statutory duty. The Court of Appeals
held that Martin was entitled to a new trial, but not entitled to a directed
verdict. Storm's appeal follows; this Court granted discretionary review and
heard oral arguments.
'
II. ANALYSIS.
Storm argues that Martin abandoned, and therefore waived, any
challenge to Storm's duty instruction. "The question to be considered on an
appeal of an allegedly erroneous instruction is whether the instruction
misstated the law. It is within a trial court's discretion to deny a requested
instruction, and its decision will not be reversed absent an abuse of that
discretion." Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) (internal
quotations and citations omitted).
Martin proposed the following jury instructi~ns, in relevant part:
5
It was the duty of the Defendant Richard Storm
as the County Engineer in Jefferson County to comply
with KRS 179.070(1)0), which requires county (
.engineers to "[r]emove trees or any other obstacles
from the right-of-way of any publicly dedicated
road when the tree or other obstacles become a
hazard to traffic." · .
If you are satisfied from the evidence that
Defendant, Richard Storm, failed to comply with his
legal duties as County Engineer to remove the tree
from Phillips Lane, or ·to warn motorists about the
hazard posed by the 1!ee, and that Storm's frulure was
a substantial factor in causing Louis .Martin's injuries,
you will find for Plaintiff; otherwise, you will find for
Defendant.
(emphasis added). The fina.ljury instructions, in relevant part, stated:
(1) It was the duty of Defendant Richard Strom
to exercise ordinary care, including the specific duty
to remove tr~es or other obstacles from the right-
of-way of any publicly dedicated road when the
tree or other obstacles become a hazard to tra{fic
in conducting his business as the Louisville/Jefferson
County Metro County Engineer. "Ordinary Care"
means such care as a jury would expect an ordinary
prudent perso:n. engaged in the same type of business
to exercise under similar circumstances.
(emphasis added). On the "Jury Verdict Form," the jury answered
unanimously "No" to: "Are you satisfied that Plaintiff has proven by a
preponderance of the evidence that Richard Storm failed to comply with his
duty as set forth in the instructions?"2. The emphasized portion of the final
jury instructions and KRS 179.070(1)0) are identical, and also nearly identical
2 The jury also found that Louisville Gas and Electric Company did not breach
its duty to "exercise ordinary ~are in conducting its business" by a vote of 10-2. ·
6
to the instructions initially proposed by Martin, which differs only in the direct
citation to this statute.
Although Martin did not allege erroneous jury instructions on appeal, the
Court of Appeals saw fit to opine that "[w]e are of the opinion that the
instruction· setting forth Storm's duty likely contributed to the jury's erroneous
verdict. ... We believe the wording of the instruction herein is subject to a
misinterpretation that Storm was only required to use ordinary care in
complying with his statutory duty." The Court of Appeals emphasized that,
pursuant to Henson v. Klein, 319 S.W.3d 413, 421 (Ky. 2010), "[w]hen a
statutory duty is supported by evidence, it must be incorporated into a jury
instruction as a 'specific duty."' Henson further stated that:
Moreover, when a statutory duty is applicable,
the jury instructions should, after explaining the
general duty, specify that it "includes" certain
enumerated specific duties because the breach of a
duty imposed by statute or ordinance is negligence per
se if the harm which occurred incident to violation of
the statute is that type of harm which the statute was
intended to prevent.
Id. Martin and the Court of Appeals are correct that the jury instructions
should have contained the "specific" duty language, and indeed, the final
instructions enumerated specific duties as required by Henson. ·
CR3 51(3) provides:
No party may assign as error the giving or the failure
to give an instruction unless he has fairly and
adequately presented his position by an offered
instruction or by motion, or un!ess he makes objection
3 Kentucky Rules of Civil Procedure.
7
before the court instructs the jury, stating specifically
the matter to which he objects and the ground or
grounds of his objection.
· As this Court has held:
The underlying purpose of CR 51(3) is to obtain the
best possible trial at the trial court level by giving the
trial judge an opportunity to correct any errors before
instructing the jury. Generally speaking, if a party's
offered instructions clearly present the party's
position, no further action is required to preserve for
appellate review an allegation that the· trial court erred
by failing to give a requested instruction. On a
number of occasions, however, in both civil and
criminal cases, Kentucky appellate courts have
explained that a tendered instruction will not fairly
and adequately present the party's position as to an
allegation of instructional error when: (1) the omitted
language or instruction was not contained in the
instruction tendered to the trial court; i.e., when the
allegation of error was not presented to the trial court
at all; (2) th_e minor differences between the language
of the tendered instruction and the instruction given
by the trial court would not call the trial court's
attention to the alleged error; or (3) the. tendered
instruction itself was otherwise erroneous or
incomplete.
Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 162-64 (Ky. 2004) (internal
quotations and citations omitted). Martin got nearly the exact jury instruction
he proposed, and did not object tO''the instruction in the trial court. Martin
cannot now make the.unpreserved argument that error occurred in these
instructions. These jury instructions did. not misstate the duties required of
Storm and the trial court did not abuse its discretion in giving these
instructions.
Regarding the Court of Appeals remand for a new trial,
8
When reviewing a trial court's denial of JNOV,
we are to affirm unless there is a complete absence of
proof on a material issue in the action, or if no
disputed issue of fact exists upon which reasonable . <
men could differ. Likewise, the trial court is vested
with a broad discretion in granting or refusing a new
trial, and this Court will not interfere unless it appears
that there has been an abuse of discretion.
Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 111 (Ky. 2012) (internal
quotations and citations omitted). The Court of Appeals determined that the
jury's verdict was "erroneous" and "not based on evidence" because KRS
179.070(1)U) created an "absolute" and non-delegable duty. The Court of
Appeals reasoned that since Storm was the county engineer and the tree was
not removed, Storm breached that absolute duty, thus the jury should have
reached proximate cause.
However, the Court of Appeals seems to confuse the issue of statutory
compliance and strict liability. As this Court has stated, the statutory use of
·"shall" does not automatically render a provision mandatory:
In order to determine whether strict compliance
or sub~tantial compliance is sufficient to satisfy a
statutory provision, it first must be determined
whether the applicable provision is mandatory or
directory. This determination is vital because a
proceeding rtot following a mandatory provision of a
statute is rendered illegal and void, while an omission
to observe or frulure to conform to a directory provision
is not. In considering whether the provision is
mandatory or directory, we depend not on form, but on
the legislative intent, whlch is to be ascertained by
interpretation from consideration of the entire act, its
nature and object, and the consequence of
construction one way or the other. In other words, if
the directions given by the statute to accomplish a
given end are violated, but the given end is in fact ·
accomplished, without affecting the real merits of the
9
case, then the statute is to be regarded as directory
merely .
. '
Knox Cnty. v. Hammons, 129 S.W.3d 839, 842-43 (Ky. 2004) (internal
quotations and, citations ~mitted). "[T]he use of the word 'shall' with reference
to some requfrements ... is usually indicative that it is mandatory, but it will
not be so regarded if the legislative intention appears otherwise." Id. at 843 ·
(quoting Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884, 886 (1936)).
Clearly the intent behind KRS 179.070(1)0) is to ensure that trees or
other obstacles do not block a public road\Yay. To effectuate this goal, the
statute requires ·that, when such obstacles become hazardous, they are
removed. KRS 179.070(1)0) does not mandate that this duty is non-delegable,
nor does it provide guidance for how the county engineer is to actually
· effectuate the removru of hazardous trees or other obstacles from a roadway.
Obviously, the ·statute does not contemplate person~ strict compliance on the
part of
.
the county engineer as the sole means
.
to accomplish this, particularly
so close in time to a severe weather event when a huge number of trees have
\
fallen. Especially· under the facts of this case, delegation of tree removal to
other agencies or persons could accomplish the intent of the statute, and
therefore, the statute is directory and substantial compliance may s~tisfy its
provisions. See Hammons, 129 S.W.3d at 843.
This duty is ministerial, meaning that Storm is not entitled to immunity,
but that does not dictate the duty is absolute. "Whether Storm acted
'
negligently by failing to perform a ministerial duty is an issue for the jury to
10
determine." Wales, 390 S.W.3d at 167. Tl:J.e jury heard extensive testimony,
including from Pullen, the Director of Public Work~, and Hi~ks, an Assistant
Director of Public Works, that the long-standing practice of Jefferson-County
was that the Operations and Maintenance Division' was responsible for tree
removal and that Pullen had assigned the duty of tree removal to Hicks. 4 . After
hear~ng this testimony, and being instructed on the specific duties required of
the county engineer, the jury 'unanimously found that Storm had not breached.
his duty. The jury· did not need to reach proximate, cause.
The Court of Appeals erred in granting a ·new trial because ample
evidence on the issue of duty was presented and supported the jury verdict.
Although we are sympathetic to Martin that further relief is not available, we
have entrusted juries with the duty to determine fault, and we are hesitant to
invade the province of a properly instructedjury.s
· 4 The jury also heard testimony from Hicks that his job was to remove trees
·from the roadway and that "the buck stopped" with him. ,Hamilton, the Director of
Louisville Metro's Emergency Management Agency, described the coordinated federal,
state, and county cleanup effort following this emergency weather event and that the
public had been warned on both the radio and television about the presence of
downed trees and wires. Hamilton further noted that o,n the day of Martin's accident,
only three days after the storm, 23 streets were confirnied to still be blocked by trees
or utility wires. f" ,,
We are not concemed that thi_s opinion creates a scenario in which n~ county
. 5
engineer may be found liable for a breach of this ministerial, directory duty. If the jury ·
had found that Storm did not comply with his specific duties, the jury would proceed
to determine proximate cause and any damages.
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III. CONCLUSION.
For the reasons set forth above, we reverse the opinion of the Court of
Appeals remanding to Jefferson Circuit Court for a new trial, and affirm the
Court of Appeals denial of a directed verdict.
All sitting. Minton, C.J., Hughes, VanMeter, Wright, JJ., concur.
Venters, J., dissents by separate opinion in which Cunningham and Keller, JJ.,.
JOlnS .
. VENTERS, J., DISSENTING: Whether he knew it or not, and whether we
like it or not, Richard Storm, as the County Engineer for Louisville/Jefferson
County Metro, had a statutory duty pursuant to KRS 179.070(1)0) to exercise
ordinary care for the removal of trees and other hazardous debris from the
streets in Jefferson County and he did absolutely nothing to comply with that
duty. Of course, his duty does not require that he personally wield the
chainsaws after each storm. He could perform his statutory duty by managing
and overseeing the work of other employees or contractors undertaking the
task. But he did not do that either.
Even if he had knowingly acquiesced in an arrangement for surrogates to
do the job, he would still be liable for negligent performance of the duty. "[O]ne
charged with a statutory duty 'cannot escape from the responsibi~ity attaching
on him of seeing that duty performed by delegating it to the contractor, and
cannot relieve himself from liability to any person injured by a failure to
perform it."' Saint Joseph Healthcare, Inc. v. Thomas, 487 S.W.3d 864, 876 (Ky.
2016) (quoting Brown Hotel Co. v. Sizemore, 197 S.W.2d 911, 913 (Ky. 1946)).
12
Here, the trial court knew with mathematical certainty that Storm failed· .
to comply with his statutory duty because he admitted that he had done
nothing to ameliorate the hazard of fallen trees and he was completely unaware
of the law requiring him to do so. There is a complete absence of any proof to
the contrary. Ston:n's breach of duty is established as Aristotelian truth; it
cannot be rationally denied. Storm manifestly failed to perform his duty and
so, a directed verdict on that factual issue wa_s absolutely compelled by the
evidence.
We have said on countless occasions that a directed verdict is required
when there has been· a complete absence of proof on a material issue; when ·
there is no disputed fact upori which reasonable minds could differ. See e.g.
Fleming v. EQT Gathering, LLC, 509 S.W.3d 18, 21 (Ky. 2017). A directed
verdict on the undisputed issue, or subsequently a judgment n.o.v., must be
granted "when (1) there is a compkte absence of pleading or proof on an issue
or issues material to the cause of action or defense, or (2) there are no
controverted issues of fact upon which reasonable men could differ." Sutton v.
Combs, 419 S.W.2d 775, 777 (Ky. 1967) .. The failure of the trial court to direct
a verdict on the factual issue of breach, o_r subsequently to grantj:n.o.v., was
clear error. Correspondingly, the jury~s verdict on that issue was utterly
/
without evidentiary support and, since it was left uncorrected by the trial
court, must be corrected on appeal.
Just as the Court of Appeals did here, this Court and our pred~cessor
court have steadfastly held that a jury verdict which is "palpably or flagrantly
13
against the evidence so as to indicate that it was reached as a result of passion
or prejudice" cannot stand. Indiana Insurance Company v. Demetre, 527
. S.W.3d 12 (Ky. 2017) (quoting Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d
459, 461-62 (Ky. 1990) and NCAA v. Hornung, 754 S.W.2d 855, 860 (Ky.
'1988)); see Nissan Motor Company, Ltd. v. Maddox, 486 S.W.3d 838, 840 (Ky ..
2016) ("[T]he jury verdict awarding punitive damages was palpable and
flagrantly against the evidence" and was, therefore, reversed.).
Storm failed to comply with his statutory duty. Fidelity to the foregoing
principles compels us to set aside the jury verdict as flagrantly against the
evidence. That does not mean that Storm is liable for Martin's injury. The
breach of the duty is merely the first stage of tort .analysis as clearly laid out by
the trial court's jury instructions. Liability arises only if Storm's breach of duty
proximately caused Martin's injury. It is entirely possible and perhaps even
likely, that Storm's duty did not go unattended because someone else, another
departmen~ of Metro goverpment;, competently performed it. In that case,
Storm's failure to comply with his duty did not cause Martin's injury. It is also
possible that Martin caused his own injury. But regardless of these
possibilities, the trial court was obligated to direct the jury past the
interrogatory instruction regarding the breach of duty, and requfre instead that
it address the truly disputed factual issue: whether Storm's undeniabie failure
to exercise ordinary care caused any injury. We should be remanding for a
resolution of that factual issue instead of ~ustaining the fiction that Storm
performed his duty despite absolute proof to the contrary.
14
The real mischief lurking within our tolerance of this false verdict is that,
in f~ture situations in which the clearing of dangerous storm. debris has been
performed negligently or neglected alfogether, no one can be held to account.
For example, if crews sent to clear dangerous debris sat in their.trucks and did
nothing, .they avoid liability by correctly pain.ting to the statute and reminding.
us that the legislature put that duty on the county engineer, not on them. And
despite ·the statute, the county engineer, as di~ Storm in this· case, avoids
liability by saying, "It's not my job to do that; we don't go by the statute here,
we do things our own way." The Court of Appeals correctly remanded this case
for a new trial. I therefore dissent.
Cunningham and Keller, JJ., join.
COUNSEL FOR APPELLANT:
Michael J. O'Connell
Jefferson County Attorney
Gregory Scott Gowen
Paul Guagliardo
Assistant Jefferson County Attorney
COUNSEL FOR APPELLEE:
Alexander Davis
Lawrence Lee Jones II
Ashton Smith
·JONES WARD PLC
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