1.Construction.

This section abolishes the rule prohibiting proving acts of provocation at a different time. Renfro v. Barlow, 131 Ky. 312 , 115 S.W. 225, 1909 Ky. LEXIS 29 ( Ky. 1909 ). See Roberson v. Woodfork, 155 Ky. 206 , 159 S.W. 793, 1913 Ky. LEXIS 239 ( Ky. 1913 ); Marshall v. Glover, 190 Ky. 113 , 226 S.W. 398, 1920 Ky. LEXIS 550 ( Ky. 1920 ); Hamilton v. Howard, 234 Ky. 321 , 28 S.W.2d 7, 1930 Ky. LEXIS 174 ( Ky. 1930 ).

This section permits defendant to plead and prove any matter of provocation, although prior to time of assault and battery, in mitigation of punitive damages but not in mitigation of actual or compensatory damages. Renfro v. Barlow, 131 Ky. 312 , 115 S.W. 225, 1909 Ky. LEXIS 29 ( Ky. 1909 ). See Roberson v. Woodfork, 155 Ky. 206 , 159 S.W. 793, 1913 Ky. LEXIS 239 ( Ky. 1913 ); Marshall v. Glover, 190 Ky. 113 , 226 S.W. 398, 1920 Ky. LEXIS 550 ( Ky. 1920 ); Hamilton v. Howard, 234 Ky. 321 , 28 S.W.2d 7, 1930 Ky. LEXIS 174 ( Ky. 1930 ).

This section is broad enough to cover prior provocation caused defendant by abuse or gross behavior towards members of his family. Marshall v. Glover, 190 Ky. 113 , 226 S.W. 398, 1920 Ky. LEXIS 550 ( Ky. 1920 ).

This section did not change the rule in criminal prosecutions for assault and battery. Hill v. Commonwealth, 204 Ky. 440 , 264 S.W. 1045, 1924 Ky. LEXIS 466 ( Ky. 1924 ).

In a civil action for assault and battery, this section merely permits proof of provocation in mitigation of punitive damages. Sturgeon v. Baker, 312 Ky. 338 , 227 S.W.2d 202, 1950 Ky. LEXIS 638 ( Ky. 1950 ).

2.Insufficient Provocation.

Fact that prisoner in jail was guilty of insanitary conduct and noisy and abusive language did not justify an assault by other prisoners or furnish grounds for denying liability on part of jailer and his deputy for failing to prevent or stop assault. Lamb v. Clark, 282 Ky. 167 , 138 S.W.2d 350, 1940 Ky. LEXIS 152 ( Ky. 1940 ).

3.Contributory Negligence.

Contributory negligence is no defense in an action for assault. Lamb v. Clark, 282 Ky. 167 , 138 S.W.2d 350, 1940 Ky. LEXIS 152 ( Ky. 1940 ).

4.Pleading.

Before any matter of provocation can be introduced in evidence, it must be pleaded, and the right to plead it is limited to mitigation of punitive damages. Barth v. Stewart, 229 Ky. 840 , 18 S.W.2d 275, 1929 Ky. LEXIS 847 ( Ky. 1929 ).

Where provocation was not pleaded, an instruction on that issue would not have been proper. Gargotto v. Isenberg, 244 Ky. 493 , 51 S.W.2d 443, 1932 Ky. LEXIS 450 ( Ky. 1932 ).

5.Evidence.

Evidence of previous overtures to defendant’s wife was admissible in mitigation of punitive damages for assault and battery. Hamilton v. Howard, 234 Ky. 321 , 28 S.W.2d 7, 1930 Ky. LEXIS 174 ( Ky. 1930 ).

In action for assault and battery and false arrest, defendant’s testimony that unidentified persons had shot pistols and shotguns near his home; that the roof of his barn had been damaged by bullets; that a lock on his barn had been shot off; that property had been stolen from his barn and from his storehouse; that one of his gates had been carried away; and that his watering trough had been destroyed were all admissible under the peculiar facts of the case, although plaintiffs were not identified as the perpetrators of the acts, for said acts might have had some bearing upon defendant’s state of mind at the time of the shooting and could have been construed by the jury as offering some justification for his conduct. Alexander v. Jones, 249 S.W.2d 35, 1952 Ky. LEXIS 788 ( Ky. 1952 ).

6.Proof.

Proof of malice is not essential to recover in civil action for damages resulting from assault and battery. Sigler v. Ralph, 417 S.W.2d 239, 1967 Ky. LEXIS 253 ( Ky. 1967 ).

7.Instructions to Jury.

Where there is a plea and proof of provocation, the court should instruct the jury to consider proof heard in support of plea by way of mitigation of punitive damages. Louisville R. Co. v. Frick, 158 Ky. 450 , 165 S.W. 649, 1914 Ky. LEXIS 640 ( Ky. 1914 ).

Error, if any, arising from failure of court to define the words “wilfully and maliciously,” in an instruction to the jury on punitive damages, was not prejudicial, where award was modest and not in excess of a reasonable allowance for compensatory damages alone and the evidence showed the assault was willful and not without malice. Herring v. Lunderman, 302 Ky. 271 , 194 S.W.2d 506, 1946 Ky. LEXIS 650 ( Ky. 1946 ).

In an action for assault, an instruction offered under this section to the effect that the law was for the defendant if the jury believed from the evidence that the conduct of the plaintiff was such as to excuse an ordinarily prudent man in making the assault was properly refused for failing to limit its application to mitigation of punitive damages and for failure to plead provocation as provided by this section. Herring v. Lunderman, 302 Ky. 271 , 194 S.W.2d 506, 1946 Ky. LEXIS 650 ( Ky. 1946 ).

The statute does not require the trial court to instruct the jury on punitive damages in any civil action seeking recovery for assault and battery; the statute merely permits a defendant to introduce evidence of provocation in mitigation of a claim for punitive damages. Banks v. Fritsch, 39 S.W.3d 474, 2001 Ky. App. LEXIS 22 (Ky. Ct. App. 2001).

Research References and Practice Aids

Cross-References.

Action against non-resident operator of motor vehicle, KRS ch. 188.

Action against the Commonwealth, Ky. Const., § 231.

Actions, limitations on, KRS ch. 413.

Actions to recover for:

Cattle injured by railroad, KRS 277.330 .

Confession of judgment for another, KRS 372.140 , 372.990 .

Entering inclosed grounds and injuring game, KRS 150.300 .

Failure of court to require sufficient bond of guardian, KRS 387.070 .

Failure of officer to return execution, KRS 426.340 , 426.350 , 426.990 .

Improper fee bill of officer, KRS 64.450 .

Interest paid over legal rate, KRS 360.020.

Loss in game of chance, KRS 372.020 to 372.050 .

Mining within 25 feet of adjoining land, KRS 352.490 .

Overcharge or delay by tollkeeper or ferryman, KRS 280.250 , 280.260 , 280.990 .

Taking or destroying property by felon, KRS 431.200 to 431.210 .

Using timber brand of another, KRS 364.090.

Work of laborer, workman or mechanics on public works, KRS 337.550 .

Wrongful act of crew of vessel, KRS 376.370 .

Cruelty to animals, KRS 525.125 , 525.130 .

Landowner, liability when consenting to hunting, trapping, camping or hiking on premises, KRS 150.645 .

Private fish pond, treble damages for destroying, KRS 150.700 .

Property, criminal damage to, criminal mischief, KRS 512.020 to 512.040 .

Kentucky Law Journal.

Taylor, With Temperate Rod: Maintaining Academic Order in Secondary Schools, 58 Ky. L.J. 616 (1970).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Provocation in Mitigation of Punitive Damages Claim, Form 120.04.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Assault and Battery, § 120.00.

1.Battery with Blackjack.

Verdict of $7,500, including both compensatory and punitive damages, was not excessive where plaintiff was struck on the head with a blackjack and received permanent injuries. Brink v. Kennedy, 286 Ky. 566 , 151 S.W.2d 58, 1941 Ky. LEXIS 287 ( Ky. 1941 ).

2.Punitive Damages.

Punitive damages must have some reasonable relation to the injuries and cause of them but need bear no relation to actual damages sustained and are allowable even when compensatory damages are nominal. Brink v. Kennedy, 286 Ky. 566 , 151 S.W.2d 58, 1941 Ky. LEXIS 287 ( Ky. 1941 ).

1.Construction.

This section does not repeal the common-law remedy but has afforded a cumulative remedy. Monahan v. Clemons, 212 Ky. 504 , 279 S.W. 974, 1926 Ky. LEXIS 185 ( Ky. 1926 ). See Kelly v. Combs, 229 Ky. 502 , 17 S.W.2d 435, 1929 Ky. LEXIS 792 ( Ky. 1929 ).

By this section the seduction act is made the cause of action, and not loss of service or expense. Kelly v. Combs, 229 Ky. 502 , 17 S.W.2d 435, 1929 Ky. LEXIS 792 ( Ky. 1929 ).

2.Definition of “Seduction.”

The word “seduction,” when applied to the conduct of a man towards a woman, means the use of some influence, artifice, promise or means on his part by which he induces the woman who is then, and has theretofore for a reasonable time been, a woman of chaste conduct to submit to unlawful intercourse with him. Stowers v. Singer, 113 Ky. 584 , 68 S.W. 637, 24 Ky. L. Rptr. 395 , 1902 Ky. LEXIS 83 ( Ky. 1902 ).

3.Persons Who Could Bring Action.

Female could not sue for her seduction. The law gave the right of action to those only who could sue at common law. Its object was to dispense allegation and proof of loss of service. Woodward v. Anderson, 72 Ky. 624 , 1873 Ky. LEXIS 14 ( Ky. 1873 ). See Cline & Co. v. Templeton, 78 Ky. 550 , 1 Ky. L. Rptr. 276 , 1880 Ky. LEXIS 59 ( Ky. 1880 ) (decided under prior law).

This section being silent on the question as to who may bring an action for seduction, the common-law rule upon this question is therefore in full force, and the relation of master and servant, or parent and child, must still appear in the pleading. Taylor v. Daniel, 98 S.W. 986, 30 Ky. L. Rptr. 377 , 1907 Ky. LEXIS 382 (Ky. Ct. App. 1907).

4.Age.

Where mother in her petition failed to allege that her illegitimate daughter was under 21 years of age, she failed to state a cause of action for seduction under this section. Taylor v. Daniel, 98 S.W. 986, 30 Ky. L. Rptr. 377 , 1907 Ky. LEXIS 382 (Ky. Ct. App. 1907).

5.Loss of Services.

This section did not repeal the common-law remedy but gives the parent a right of action for daughter’s seduction, and his resulting loss of service, without allegation or proof of loss of service. Monahan v. Clemons, 212 Ky. 504 , 279 S.W. 974, 1926 Ky. LEXIS 185 ( Ky. 1926 ).

Slight evidence of loss of service is all that is required in action at common law and no loss of service is required under this section. Kelly v. Combs, 229 Ky. 502 , 17 S.W.2d 435, 1929 Ky. LEXIS 792 ( Ky. 1929 ).

An action for seduction brought under this section does not require any proof of loss of services of the female but, in an action brought under the common law, it is necessary for plaintiff to establish some right to the services of the one seduced and to allege and prove the loss of her services, although slight evidence of loss of services is all that is required and proof of emancipation, if alleged and proved, is a defense. Collis v. Hoskins, 306 Ky. 391 , 208 S.W.2d 70, 1948 Ky. LEXIS 570 ( Ky. 1948 ).

6.Defenses.

A showing that intercourse was accomplished by force will not defeat the action. Monahan v. Clemons, 212 Ky. 504 , 279 S.W. 974, 1926 Ky. LEXIS 185 ( Ky. 1926 ).

7.Exemplary Damages.

Malice is not necessary to authorize exemplary damages. Stowers v. Singer, 113 Ky. 584 , 68 S.W. 637, 24 Ky. L. Rptr. 395 , 1902 Ky. LEXIS 83 ( Ky. 1902 ).

8.Instruction to Jury.

An instruction that if the jury believes that defendant seduced, debauched, and carnally knew plaintiff’s daughter and that by reason or means of such seduction and carnal knowledge of defendant of said daughter, said daughter became pregnant and they should find for plaintiff is not sufficient. Stowers v. Singer, 113 Ky. 584 , 68 S.W. 637, 24 Ky. L. Rptr. 395 , 1902 Ky. LEXIS 83 ( Ky. 1902 ).

9.Action at Common Law.

Law that provided for an action for seduction did not repeal the common-law remedy for seduction. Wilhoit v. Hancock, 68 Ky. 567 , 1869 Ky. LEXIS 53 ( Ky. 1869 ) (decided under prior law).

In common-law action for seduction, defense that daughter was emancipated must be specifically pleaded. Collis v. Hoskins, 306 Ky. 391 , 208 S.W.2d 70, 1948 Ky. LEXIS 570 ( Ky. 1948 ).

Proof of emancipation, if alleged and proved, is an affirmative defense to an action for seduction brought under the common law. Collis v. Hoskins, 306 Ky. 391 , 208 S.W.2d 70, 1948 Ky. LEXIS 570 ( Ky. 1948 ).

10.Limitation on Action.

In an action under the law, the limitation of one year commenced to run from the act of seduction. In the common-law action, the limitation started to run from the female’s recovery after the birth of the child. Wilhoit v. Hancock, 68 Ky. 567 , 1869 Ky. LEXIS 53 ( Ky. 1869 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Limitation of action on seduction, KRS 413.140 .

Parents entitled to earnings of minor child, KRS 405.010 .

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Seduction, § 262.00.

Petrilli, Kentucky Family Law, Minors, § 30.27.

Petrilli, Kentucky Family Law, Promise of Marriage, § 2.7.

Petrilli, Kentucky Family Law, Suits for Breach of Marriage Promise, § 3.1.

1.Construction.

It is actionable under this section to impute a want of chastity to a female without allegation or proof of special damage and it is not necessary that the words make the charge in express terms. Williams v. Riddle, 145 Ky. 459 , 140 S.W. 661, 1911 Ky. LEXIS 882 ( Ky. 1911 ). See Martin v. White, 188 Ky. 153 , 221 S.W. 528, 1920 Ky. LEXIS 248 ( Ky. 1920 ); Holman v. Plumlee, 206 Ky. 275 , 267 S.W. 221, 1924 Ky. LEXIS 361 ( Ky. 1924 ).

Were it not for this law, a charge of fornication against a female would not be actionable per se. Hickerson v. Masters, 190 Ky. 168 , 226 S.W. 1072, 1921 Ky. LEXIS 405 ( Ky. 1921 ).

To be slanderous per se under this section, the words uttered must clearly and unequivocally import the charge alleged. Bishop v. Smith, 198 Ky. 230 , 248 S.W. 538, 1923 Ky. LEXIS 420 ( Ky. 1923 ).

2.Actionable Language.

The words “Has one of N’s girls had a young one? I heard it” made a charge of fornication and are therefore actionable per se. Nicholson v. Merritt, 109 Ky. 369 , 59 S.W. 25, 22 Ky. L. Rptr. 914 , 1900 Ky. LEXIS 214 ( Ky. 1900 ).

“You often went to Dr. Duvall’s office, pulled the blinds down and locked the door, and stayed for hours, and got the medicine you went for. You are a bitch and I can prove it” was sufficient to prefer a charge of unchastity and adulterous conduct, independent of the innuendo. Martin v. White, 188 Ky. 153 , 221 S.W. 528, 1920 Ky. LEXIS 248 ( Ky. 1920 ).

Words accusing a woman of being a whore are actionable per se, as they accuse her of fornication or adultery. Justice v. Wellman, 260 Ky. 479 , 86 S.W.2d 132, 1935 Ky. LEXIS 488 ( Ky. 1935 ).

A statement by landlord to woman tenant in the presence of third parties that the police were making him get rid of all lewd women and that she had to move was actionable per se. Vanover v. Wells, 264 Ky. 461 , 94 S.W.2d 999, 1936 Ky. LEXIS 335 ( Ky. 1936 ).

In an action of slander by a female where the alleged slanderous language was “She (plaintiff) is going to have a baby, she is in a family way,” it was essential to plaintiff’s cause of action that her petition expressly set out that she was a single woman, since such an accusation concerning a married woman would not impute a want of chastity. Parks v. Berry, 307 Ky. 21 , 209 S.W.2d 726, 1948 Ky. LEXIS 675 ( Ky. 1948 ).

Presumption of singleness which arose from statement that plaintiff was under 16 years of age did not cure fatal error in petition of failure to allege that plaintiff was unmarried. Parks v. Berry, 307 Ky. 21 , 209 S.W.2d 726, 1948 Ky. LEXIS 675 ( Ky. 1948 ).

3.Words Not Actionable.

The words “She is a dirty bitch; she has no character, and is no account” could not be extended beyond their natural meaning by innuendo and are not actionable words in themselves importing that she was a whore, common prostitute or was guilty of fornication or adultery. Craig v. Pyles, 101 Ky. 593 , 39 S.W. 33, 18 Ky. L. Rptr. 1043 , 1897 Ky. LEXIS 141 ( Ky. 1897 ).

The use of the words “She is a damned slut, she is a damned bitch, she is a damned sow and those who know her know that she is no account” could not be extended by innuendo to mean that the person about whom they were spoken was an improper, indecent, and unchaste character who indulged in vile and improper practices and that she was not worthy of association of the people, and were not actionable. Peters v. Barth, 50 S.W. 682, 20 Ky. L. Rptr. 1934 (1899).

4.Innuendo.

Innuendo may not enlarge meaning of spoken words beyond their natural and ordinary import. Martin v. White, 188 Ky. 153 , 221 S.W. 528, 1920 Ky. LEXIS 248 ( Ky. 1920 ).

5.Publication.

Addressing defamatory remarks to woman in presence and hearing of others was sufficient publication, although her name was not mentioned. Justice v. Wellman, 260 Ky. 479 , 86 S.W.2d 132, 1935 Ky. LEXIS 488 ( Ky. 1935 ). See Vanover v. Wells, 264 Ky. 461 , 94 S.W.2d 999, 1936 Ky. LEXIS 335 ( Ky. 1936 ).

6.Malice.

Decedent's beneficiaries did not have to arbitrate wrongful death claims against a nursing home because the decedent's arbitration agreement, when admitted to the nursing home, did not bind the beneficiaries, as the beneficiaries' claims accrued independently, so no such agreement could encompass the claims. HQM of Pikeville, LLC v. Collins, 2014 Ky. App. LEXIS 127 (Ky. Ct. App., sub. op., 2014 Ky. App. Unpub. LEXIS 1049 (Ky. Ct. App. July 18, 2014).

Charge of fornication is actionable without proof of malice. Nicholson v. Dunn, 52 S.W. 935, 21 Ky. L. Rptr. 643 , 1899 Ky. LEXIS 363 (Ky. Ct. App. 1899). See Morris v. Curtis, 45 S.W. 86, 20 Ky. L. Rptr. 56 , 1898 Ky. LEXIS 268 (Ky. Ct. App. 1898).

It was error to require jury to believe words were spoken maliciously in order to find for plaintiff. Nicholson v. Merritt, 109 Ky. 369 , 59 S.W. 25, 22 Ky. L. Rptr. 914 , 1900 Ky. LEXIS 214 ( Ky. 1900 ).

If words are libelous per se, a showing of malice is not required in order to recover punitive damages. Justice v. Wellman, 260 Ky. 479 , 86 S.W.2d 132, 1935 Ky. LEXIS 488 ( Ky. 1935 ).

7.Truth.

Evidence in action for accusation of fornication that defendant at the time he repeated slanderous rumor stated his disbelief in its truth is admissible, but only in mitigation of damages. Nicholson v. Merritt, 109 Ky. 369 , 59 S.W. 25, 22 Ky. L. Rptr. 914 , 1900 Ky. LEXIS 214 ( Ky. 1900 ).

8.Accusation.

To say a female “is a drunken whore“ was to accuse her of fornication or adultery. Williams v. Greenwade, 33 Ky. 432 , 1835 Ky. LEXIS 121 ( Ky. 1835 ) (decided under prior law).

For a man to say of a woman that he had sexual intercourse with her was an accusation of fornication or adultery. Adams v. Rankin, 62 Ky. 58 , 1863 Ky. LEXIS 20 ( Ky. 1863 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Incest, Penal Code, KRS 530.020 .

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Treatises

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Libel and Slander, § 129.00.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

1.Denial Must Be Positive.

Averment that defendant had no knowledge or information sufficient to form a belief that he ever spoke the words of and concerning the plaintiff, “I discharged E for stealing,” and had no recollection of speaking the words, and therefore denies he ever spoke such words, is not a denial of the charge made. Defendant is presumed to know whether or not he spoke the words and must make a positive denial that he ever made the charge or an admission of the facts will follow. McCauley v. Elrod, 27 S.W. 867, 16 Ky. L. Rptr. 291 (1894).

2.Truth.

Where defendant, by his answer, admitted that he spoke the words charged but averred they were spoken to his wife in the privacy of his family and were accidentally overheard by another person in the house not known to be within hearing and thus, without having been so intended by him, became public and, in reply, the plaintiff averred that it was not true that the defendant spoke the words complained of under the circumstances stated in the answer and also averred that the defendant had often spoken the words, or the substance of them, in the presence of divers persons, the court held that the plaintiff had no right to recover for any other publication than that admitted in the answer. Campbell v. Bannister, 79 Ky. 205 , 2 Ky. L. Rptr. 72 , 1880 Ky. LEXIS 113 (Ky. Ct. App. 1880).

In action for libel charging appellee with acting corruptly as a juror and perjuring himself wherein the defendants pleaded the truth of the accusation in justification and, by way of mitigation, also relied upon general rumor that the appellant would act as charged and that defendants had good reasons for their belief that the publication was true, the court held: (1) where the truth of the words was pleaded in justification, it was a complete defense to a civil action for libel and the burden of the issue was upon the defendants; (2) the object of offering matters in mitigation was, as the very name implied, to mitigate the damages that might be recovered and therefore, where recovery was denied, plaintiff was not prejudiced by evidence of any circumstances in mitigation; and (3) the jury having found the publication was in fact true, it was entirely immaterial whether the appellees were or were not actuated by malice, and testimony to that effect was not prejudicial to appellant. McIntyre v. Bransford, 17 S.W. 359, 13 Ky. L. Rptr. 454 (1891).

Where publication was admitted and defendant pleaded the truth of the same but utterly failed to sustain the truth, he was guilty of libel and the mere fact that he may have believed that the statements or charges made were true was no defense. Louisville Press Co. v. Tennelly, 105 Ky. 365 , 49 S.W. 15, 20 Ky. L. Rptr. 1231 , 1899 Ky. LEXIS 209 ( Ky. 1899 ).

Ordinarily, the truth of an alleged libel must be pleaded as a defense, but that rule can only apply when there is a necessity for such a plea and, if the petition shows that to be true which would be a good defense on plea, the latter becomes unnecessary and a demurrer exposes the infirmity of the petition. Rollins v. Louisville Times Co., 139 Ky. 788 , 90 S.W. 1081, 28 Ky. L. Rptr. 1054 , 1906 Ky. LEXIS 5 (Ky. Ct. App. 1906).

The rule is well settled that in a civil action for libel the substantial truth of the publication is a complete defense. Rollins v. Louisville Times Co., 139 Ky. 788 , 90 S.W. 1081, 28 Ky. L. Rptr. 1054 , 1906 Ky. LEXIS 5 (Ky. Ct. App. 1906).

The rule that the truth of an alleged libel must be pleaded as a defense did not apply and a demurrer reached the defect where the petition alleged that the statement that plaintiff had “left the county and his friends were unable to locate him” was false but, as amended, showed a number of his friends knew his whereabouts and that he had been summoned by the sheriff to appear as a witness in another county and that he returned home the day after the article was published, since the petition showed on its face that he had left the county and that some of his friends did not know where he was. Rollins v. Louisville Times Co., 139 Ky. 788 , 90 S.W. 1081, 28 Ky. L. Rptr. 1054 , 1906 Ky. LEXIS 5 (Ky. Ct. App. 1906).

Defendant by his plea admitted that he spoke the words alleged except that he did not use the word “dishonestly” and pleaded that the words spoken by him were spoken in confidence and were a privileged communication and, being required to elect whether he would stand by his denial of having charged the plaintiff with taking the goods “dishonestly” or upon his plea of privileged communication, under protest, elected to stand upon the latter defense. The court in its instruction said to the jury that it was admitted by the pleadings that the defendant had spoken the words alleged in the petition, which included the word “dishonestly.” The court held that this was error and prejudicial to the defendant. Shipp v. Patton, 123 Ky. 65 , 93 S.W. 1033, 29 Ky. L. Rptr. 480 , 1906 Ky. LEXIS 125 ( Ky. 1906 ).

In an action for libel, pleading and proof of the truth of the written statements is always a complete defense, although the publication may be inspired by malice or ill will and be libelous per se. Pennington v. Little, 266 Ky. 750 , 99 S.W.2d 776, 1936 Ky. LEXIS 726 ( Ky. 1936 ).

Where petition made no allegation by way of colloquium or innuendo tending to extend the meaning of the written statement or to show that the language of the letter was libelous per se in its statements by reason of their tending to discredit or injure the plaintiff as a public officer, alleging that he was such, and, defendant answered, denying only that he had falsely or maliciously made the statements complained of in the letter as libelous, and where the things set forth as done by defendant were, by complainant’s testimony, shown and admitted to have been in fact done by him, demurrer to the petition should have been sustained and peremptory instruction given to the jury to find for the defendant. Pennington v. Little, 266 Ky. 750 , 99 S.W.2d 776, 1936 Ky. LEXIS 726 ( Ky. 1936 ).

3.Mitigating Circumstances.

It is no justification for a repetition of the slander that it had been reported in the neighborhood or that appellant, at the time he communicated the slander, gave the party to whom he related it the name of the person from whom he learned said report or that he informed him at the time that he did not believe said report to be true, and it cannot be relied on by way of justification that he did not intend to charge appellant with the offense of fornication. It was, however, competent under this action to have inquired of all witnesses whether or not the report spoken of was generally known in the neighborhood, but there the inquiry should have ceased. It was also competent for appellee to prove the fact that he had stated he did not believe the report and that he gave the name of his author and any other mitigating circumstances for the purpose of rebutting actual malice and to escape the infliction of punitive damages. Nicholson v. Rust, 52 S.W. 933, 21 Ky. L. Rptr. 645 , 1899 Ky. LEXIS 392 (Ky. Ct. App. 1899).

This section, which permits the pleading of mitigating circumstances in connection with a plea of the truth of the alleged slander, does not seem to have changed the common-law rule, and the mitigating circumstances might properly be introduced in evidence under the general issue without a plea setting them forth. Nicholson v. Merritt, 109 Ky. 369 , 59 S.W. 25, 22 Ky. L. Rptr. 914 , 1900 Ky. LEXIS 214 ( Ky. 1900 ).

Since it is well settled in this state that although it is no justification to say that defendant merely repeated what he had heard, it is competent for the defendant, in an action of this character, to show in mitigation of damages that the rumor was generally known in the neighborhood, although he will not be permitted to show, in detail, conversations had with different persons with regard to the alleged rumor. Provision of this section which permits the pleading of mitigating circumstances in connection with a plea of the truth of the alleged libel or slander does not seem to have changed the common-law rule that such testimony might have been introduced under the general issue; therefore, such mitigating circumstances might properly be shown without a plea setting them forth. Marksberry v. Weir, 173 Ky. 316 , 190 S.W. 1108, 1917 Ky. LEXIS 454 ( Ky. 1917 ).

4.Privileged Communications.

Where, upon trial of a member before a lodge of Masons, plaintiff was called before a committee of the lodge to testify, whereupon defendant made an affidavit in reference to plaintiff’s evidence that he could not be believed on oath, the court held that defendant’s affidavit could not be regarded as a privileged communication, neither plaintiff nor defendant being members of the lodge. Nix v. Caldwell, 81 Ky. 293 , 5 Ky. L. Rptr. 275 , 1883 Ky. LEXIS 62 (Ky. Ct. App. 1883).

5.Evidence.

In an action for libel for falsely publishing that it was rumored that plaintiff had committed murder, it was competent, under this section, for the defendant to show that the rumor was generally known in the neighborhood; but it was not competent to show in detail the conversations had with different persons with regard to the alleged rumor. Reid v. Sun Pub. Co., 158 Ky. 727 , 166 S.W. 245, 1914 Ky. LEXIS 710 ( Ky. 1914 ).

6.Opinion.

Kentucky has adopted the view that defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion. In the case at bar, the evidence at trial, in which the book was scrutinized in detail, showed that defendant arrived at the conclusion that the plaintiff had committed adultery on the basis of rumor and circumstantial evidence which was persuasive to her; the facts on which she based the conclusion were disclosed in the book. Therefore, the action for defamation must fail. Lassiter v. Lassiter, 456 F. Supp. 2d 876, 2006 U.S. Dist. LEXIS 70286 (E.D. Ky. 2006 ), aff'd, 280 Fed. Appx. 503, 2008 FED App. 0318N, 2008 U.S. App. LEXIS 12064 (6th Cir. Ky. 2008 ).

6.Denial of Speaking Words Charged.

Where the answer was merely a denial of speaking the words charged, nothing was admissible in evidence which tended either to prove the truth of the charge or to establish a defense on the ground that they were spoken on a justifiable occasion. Harper v. Harper, 73 Ky. 447 , 1874 Ky. LEXIS 72 ( Ky. 1874 ) (decided under prior law).

7.Multiple Defenses.

In action for slander by appellee against appellant for accusing her of the crime of perjury in testifying to which appellant set up the defenses of not guilty and of justification, action of lower court in requiring defendant to elect was held erroneous in view of law which permitted defendant to set forth in his answer as many grounds of defense, counterclaim, and setoff, whether legal or equitable, as he had. Horton v. Banner, 69 Ky. 596 , 1869 Ky. LEXIS 220 ( Ky. 1869 ) (decided under prior law).

The defendant could, in his answer, deny the speaking of the defamatory matter charged, in a second paragraph admit the publication and allege its truth, and in still another admit the words and, without averring their truth or falsity, justify by alleging such facts as were relied on to excuse their publication. Harper v. Harper, 73 Ky. 447 , 1874 Ky. LEXIS 72 ( Ky. 1874 ) (decided under prior law).

8.Plea in Confession and Avoidance.

Answer which, in effect, admitted the speaking of the words complained of and set up and relied on the time and circumstances attending the speaking to show that they were privileged and therefore not the subject of an action for slander was held essentially a plea in confession and avoidance. Morgan v. Booth, 76 Ky. 480 , 1877 Ky. LEXIS 94 ( Ky. 1877 ) (decided under prior law).

Research References and Practice Aids

Kentucky Law Journal.

Cox, Torts—Right of Privacy in Kentucky, 38 Ky. L.J. 487 (1950).

Kentucky Law Survey, Mobley, Torts, 70 Ky. L.J. 527 (1981-82).

1.Libelous Per Se.

Where a newspaper article erroneously stated that an older boy pounded the victim’s head against the pavement, and that he was “beaten into insensibility,” no extrinsic facts were needed to show that the statement was defamatory, for friends and acquaintances who were familiar with the incident were certain to recognize the unnamed perpetrator of the offense; therefore, the article was libelous per se. E. W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700, 1978 Ky. App. LEXIS 567 (Ky. Ct. App. 1978).

2.Malice.

If words were libelous per se, a showing of malice was not required in order to recover punitive damages. Reid v. Sun Pub. Co., 158 Ky. 727 , 166 S.W. 245, 1914 Ky. LEXIS 710 ( Ky. 1914 ) (decided under prior law).

Where publication was libelous per se, the law presumed malice and authorized recovery of punitive damages. Reid v. Sun Pub. Co., 158 Ky. 727 , 166 S.W. 245, 1914 Ky. LEXIS 710 ( Ky. 1914 ). See Reid v. Nichols, 166 Ky. 423 , 179 S.W. 440, 1915 Ky. LEXIS 722 ( Ky. 1915 ) (decided under prior law).

Defendant’s attempt to verify his story and his readiness to write another article giving the defamed person’s side of the story are not examples of reckless disregard for the truth, nor do they indicate that defendant knew the story was false, and while defendant’s reporting may not have met the proper standards for a journalist, his reporting was not so reckless as to be malicious; thus the trial court should have directed a verdict for defendant on the issue of punitive damages. E. W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700, 1978 Ky. App. LEXIS 567 (Ky. Ct. App. 1978).

Where a newspaper article was defamatory per se, the argument that the reasonably prudent editor and publisher were not warned of the article’s defamatory potential was without substance, and the argument that the defamed person had to prove legal malice and special damages was without merit. E. W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700, 1978 Ky. App. LEXIS 567 (Ky. Ct. App. 1978).

3.Damages.

The publication of a libel exposed the publisher not only to compensatory damages for the loss of business but also to a judgment for the mental suffering that the libel or slander inflicted upon the plaintiff; if the publication was malicious or made in reckless disregard of the rights of the plaintiff, the defendant was also liable for punitive damages. Louisville Press Co. v. Tennelly, 105 Ky. 365 , 49 S.W. 15, 20 Ky. L. Rptr. 1231 , 1899 Ky. LEXIS 209 ( Ky. 1899 ) (decided under prior law).

If statements contained in an article published by a newspaper were false, and the defendants were negligent in investigating, researching, reporting and publishing the article, then the defamed person was entitled to compensatory damages for libel. E. W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700, 1978 Ky. App. LEXIS 567 (Ky. Ct. App. 1978).

3.1.—Correction Demand Required for Punitive Damages.

Court denied a newspaper owner’s motion to dismiss a physician’s claim for punitive damages in a defamation action because the available evidence regarding the conspicuousness of the publication of the physician’s demand letter was not so persuasive as to require the conclusion that the publication was conspicuous within the meaning of KRS 411.051(4). A reasonable jury could determine that the publication was not substantially as conspicuous as the original articles. Trover v. Kluger, 2005 U.S. Dist. LEXIS 21585 (W.D. Ky. Sept. 26, 2005).

Decision of whether a correction is substantially as conspicuous under KRS 411.051(4) should remain with a jury, unless a court can decide it as a matter of summary judgment. Such an interpretation should not prevent the fair application of subsection (4) protecting publishers from punitive damage claims. Trover v. Kluger, 2005 U.S. Dist. LEXIS 21585 (W.D. Ky. Sept. 26, 2005).

4.—Correction Demand Required for Punitive Damages.

Since plaintiff, in an action for defamation, invasion of privacy and outrageous conduct as a result of an allegedly untrue and insulting newspaper article published by defendants, failed to make a written demand for correction prior to filing her defamation claim as required by subsection (1) of this section, she was not entitled to punitive damages on that claim. White v. Manchester Enter., 871 F. Supp. 934, 1994 U.S. Dist. LEXIS 18671 (E.D. Ky. 1994 ).

5.—Correction Demand Required in False Light Claims.

Because the torts of defamation and false light invasion of privacy are so closely related, courts have held that the procedural requirements applicable to one of these causes of action are applicable to the other as well; accordingly, plaintiff’s failure to submit a written demand for retraction prior to initiating this action, as required by this section, bars her demand for punitive damages on both her defamation and false light claims. White v. Manchester Enter., 871 F. Supp. 934, 1994 U.S. Dist. LEXIS 18671 (E.D. Ky. 1994 ).

6.Class Defamation.

To defame a class, the statement must be applicable to every member of the class, and if the words used contain no reflection upon any particular individual, no averment can make them defamatory. Kentucky Fried Chicken, Inc. v. Sanders, 563 S.W.2d 8, 1978 Ky. LEXIS 336 ( Ky. 1978 ).

7.Actionable Words.

A newspaper publication that an undertaker was the meanest man on earth and that he conducted a note-shaving business and refused to release a little girl for burial unless the expense of embalming was paid and, when the father went away, kept the body of the little girl in a back room as an advertisement for the superiority of his embalming fluid was libelous. Louisville Press Co. v. Tennelly, 105 Ky. 365 , 49 S.W. 15, 20 Ky. L. Rptr. 1231 , 1899 Ky. LEXIS 209 ( Ky. 1899 ) (decided under prior law).

8.Retraction.

Law that provided in an action for libel either party could prove that plaintiff requested retraction or omitted to request retraction and that, upon such proof, plaintiff could not recover punitive damages conferred upon defendant the right to show a retraction to defeat punitive damages; it did not give plaintiff the right to show a failure to retract in order to show malice or aggravating damages. Reid v. Nichols, 166 Ky. 423 , 179 S.W. 440, 1915 Ky. LEXIS 722 ( Ky. 1915 ) (decided under prior law).

9.Place of Action.

An action for libel could, at the option of the plaintiff, be brought in the county of defendant’s residence or in any county in which the injury to his character had been inflicted by the publication of the libel. Louisville Press Co. v. Tennelly, 105 Ky. 365 , 49 S.W. 15, 20 Ky. L. Rptr. 1231 , 1899 Ky. LEXIS 209 ( Ky. 1899 ) (decided under prior law).

10.Pleadings.

It was not necessary to state any extrinsic facts for the purpose of showing the application to plaintiff, but it was sufficient to allege the publication was intended to apply to plaintiff. Louisville Press Co. v. Tennelly, 105 Ky. 365 , 49 S.W. 15, 20 Ky. L. Rptr. 1231 , 1899 Ky. LEXIS 209 ( Ky. 1899 ) (decided under prior law).

Cited in:

McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 1981 Ky. LEXIS 289 ( Ky. 1981 ), cert. denied, Courier-Journal v. McCall, 456 U.S. 975, 102 S. Ct. 2239, 72 L. Ed. 2d 849, 1982 U.S. LEXIS 2104, 50 U.S.L.W. 3916 (1982); O’Brien v. Williamson Daily News, 735 F. Supp. 218, 1990 U.S. Dist. LEXIS 11395 (E.D. Ky. 1990 ); Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758, 1990 Ky. LEXIS 39 ( Ky. 1990 ); Shepherd v. Wellman, 313 F.3d 963, 2002 U.S. App. LEXIS 26449 (6th Cir. 2002).

Research References and Practice Aids

Cross-References.

Indictment for libel, RCr 6.10.

Venue of a lien for libel, KRS 452.460 .

Venue of prosecution for publishing libelous matter in newspaper, KRS 452.610 .

Kentucky Law Journal.

Kentucky Law Survey, Mobley, Torts, 70 Ky. L.J. 527 (1981-82).

Northern Kentucky Law Review.

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

2012 Law & Informatics Issue: Article: The Emerging Conflict between Newsworthiness and the Right to be Forgotten, 39 N. Ky. L. Rev. 119 (2012).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Other Defenses Applicable to Media Defendants, Form 129.08.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Libel Against Newspaper, Form 129.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Libel and Slander, § 129.00.

ALR

What constitutes “publication” of libel in order to start running of period of limitations. 42 A.L.R.3d 807.

1.Privileged Communications.

Trial court erred in granting summary judgment dismissal to a former mayor’s defamation claims against a current mayor, arising from publication of a newsletter that recounted remarks made at a city council meeting, as the publication was entitled to a qualified privilege under KRS 411.060 if the defense applied, but the trial court failed to determine whether the privilege applied; the trial court did not determine whether the newsletter was fair and accurate or whether it was maliciously made. Smith v. Martin, 331 S.W.3d 637, 2011 Ky. App. LEXIS 22 (Ky. Ct. App. 2011).

2.Fair and Impartial Report.

Newspaper headline “Rustlers Get Cow” and the item following which stated that a cow had been stolen and three named individuals arrested and charged with grand larceny in the theft of a cow had to be read together to determine whether they constituted a “fair and impartial” report of the indictment as a privileged document under this section and, when that was done, the use of the term “rustlers” was sufficiently explained and did not constitute libel per se or malicious publication. Helton v. Joplin, 281 S.W.2d 917, 1955 Ky. LEXIS 214 ( Ky. 1955 ).

There was no proof that publication of a filler “It’s surprising how few breaks really deserving people sometimes get,” which was separated from acquittal article by a cutoff line, in any way referred to the acquittal article, and to connect the two was fanciful. Helton v. Joplin, 281 S.W.2d 917, 1955 Ky. LEXIS 214 ( Ky. 1955 ).

The question of whether an article impartially and fairly stated the situation and plaintiff’s part in it should have been submitted to the jury for determination where different conclusions could have been drawn, and trial court erred in dismissing complaint on ground the allegedly libelous publication was privileged. Kremer v. Kopmeyer, 418 S.W.2d 237, 1967 Ky. LEXIS 205 ( Ky. 1967 ).

Newspaper publisher was entitled to summary judgment on a physician’s claim of false-light invasion of privacy, which arose from the publication of articles that reported on a medical center’s investigation into the physician’s work as a radiologist, because the articles were accurate accounts where the court previously held that the newspaper was shielded from defamation liability for the articles at issue under KRS 411.060 . Trover v. Paxton Media Group, L.L.C., 2007 U.S. Dist. LEXIS 89549 (W.D. Ky. Dec. 4, 2007).

3.Malice.

The issue of malice in publication was for the jury, since the great weight of authority supports the view that the motive by which defendant was activated must be determined by the triers of the fact whenever the evidence raises the issue. Kremer v. Kopmeyer, 418 S.W.2d 237, 1967 Ky. LEXIS 205 ( Ky. 1967 ).

As used in this section, the phrase “maliciously made,” with respect to defamatory publications, means a statement made solely for the purpose of causing harm to the person defamed. Pearce v. Courier-Journal, 683 S.W.2d 633, 1985 Ky. App. LEXIS 496 (Ky. Ct. App. 1985).

4.Sovereign Immunity.

This section did not waive the doctrine of sovereign immunity in action for slander against the school board for statement by a member thereof. Carter v. Pfannenschmidt, 467 S.W.2d 777, 1971 Ky. LEXIS 405 ( Ky. 1971 ).

1.Privileged Communications.

Unpublished decision: Certain statements in an affidavit made preparatory to the filing of a petition to set aside a judgment on the ground of fraud were libelous per se unless they were privileged, and they were privileged if they were material and pertinent to the cause, regardless of whether the statements were made maliciously or in good faith. Schmitt v. Mann, 291 Ky. 80 , 163 S.W.2d 281, 1942 Ky. LEXIS 183 ( Ky. 1942 ).

Unpublished decision: Dismissal of a libel complaint filed against a newspaper was proper because the term “carjacking” was a fair and accurate description of the alleged facts giving rise to an accused’s criminal charges; moreover, the newspaper article was absolutely privileged under KRS 411.060 . The accused’s complaint was devoid of any allegation of maliciousness, and he did not request an explanation or contradiction concerning the article. Akins v. News Enter., 2011 Ky. App. Unpub. LEXIS 954 (Ky. Ct. App. Jan. 28, 2011), review denied, ordered not published, 2011 Ky. LEXIS 299 (Ky. Nov. 16, 2011).

Research References and Practice Aids

Cross-References.

Venue of a lien for libel, KRS 452.460 .

Kentucky Bench & Bar.

Mitchell, Beyond McCall: Toward a Neutral Reportage Privilege in Kentucky, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 32.

Kentucky Law Journal.

Kentucky Law Survey, Mobley, Torts, 70 Ky. L.J. 527 (1981-82).

Northern Kentucky Law Review.

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

2012 Law & Informatics Issue: Article: The Emerging Conflict between Newsworthiness and the Right to be Forgotten, 39 N. Ky. L. Rev. 119 (2012).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Alleging Some Qualified Privilege Defenses, Form 129.07.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Other Defenses Applicable to Media Defendants, Form 129.08.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Libel and Slander, § 129.00.

ALR

Libel and slander: Privilege of reporting judicial proceedings as extending to proceeding held in secret or as to which record is sealed by court. 43 A.L.R.3d 634.

1.Jury Instructions.

In an amusement park’s defamation suit arising out of statements broadcast by a television station following an accident involving a roller coaster at the park, the trial court’s instructions to the jury on punitive damages, which included language from KRS 411.061 , was not erroneous. The jury found actual malice and also malice and oppression as those terms are defined in KRS 411.184 by clear and convincing evidence. Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 2005 Ky. LEXIS 242 ( Ky. 2005 ).

Cited:

Belo Ky., Inc. v. Ky. Kingdom Amusement Co., 75 S.W.3d 218, 2000 Ky. App. LEXIS 97 (Ky. Ct. App. 2000), rehearing denied, 2001 Ky. App. LEXIS 1188 (Ky. Ct. App. 2001), rev’d, 179 S.W.3d 785, 2005 Ky. LEXIS 242 ( Ky. 2005 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Mobley, Torts, 70 Ky. L.J. 527 (1981-82).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Other Defenses Applicable to Media Defendants, Form 129.08.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Against Television Station for Libel of Professional, Form 129.04.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Libel and Slander, § 129.00.

1.Oral False Representations.

To make one civilly liable for false representations as to credit of himself or another, he must make those representations in writing. Ramsey v. Reynierson, 200 Ky. 624 , 255 S.W. 274, 1923 Ky. LEXIS 159 ( Ky. 1923 ), rev’g Vertrees v. Head & Matthews, 138 Ky. 83 , 127 S.W. 523, 1910 Ky. LEXIS 43 ( Ky. 1910 ). See Hill v. Halmhuber, 225 Ky. 394 , 9 S.W.2d 55, 1928 Ky. LEXIS 793 ( Ky. 1928 ).

This section did not repeal the common-law action of deceit where the false representations were not in writing and an oral misrepresentation of financial standing to influence purchase of stock was actionable. Hill v. Halmhuber, 225 Ky. 394 , 9 S.W.2d 55, 1928 Ky. LEXIS 793 ( Ky. 1928 ), rev’g Ramsey v. Reynierson, 200 Ky. 624 , 255 S.W. 274, 1923 Ky. LEXIS 159 ( Ky. 1923 ), so far as in conflict.

Cited:

Local Industrial Finance Co. v. McDougale, 404 S.W.2d 789, 1966 Ky. LEXIS 307 ( Ky. 1966 ).

Research References and Practice Aids

Cross-References.

Blue Sky Law, sale in violation voidable, KRS 292.480 .

Issuing false financial statement, Class A misdemeanor, KRS 517.090 .

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Libel and Slander, § 129.00.

1.Application.

This section has no reference to attachment bonds; no one other than the party suing out the distress or attachment is liable under it. Martin v. Turpin, 108 Ky. 709 , 57 S.W. 459, 22 Ky. L. Rptr. 424 , 1900 Ky. LEXIS 88 ( Ky. 1900 ).

Defendant, in action to recover unpaid balance of purchase price of goods sold under conditional sale contract, may not counterclaim for damages suffered by reason of wrongful attachment of goods in action. Patton v. Clay Motor Co., 290 Ky. 84 , 160 S.W.2d 335, 1942 Ky. LEXIS 346 ( Ky. 1942 ).

2.Tenant’s Remedies for Wrongful Distress.

If tenant prefers not to do so or is unable to replevy or to discharge under KRS 383.063 (now repealed) or suspend under KRS 383.068 (now repealed), he may bring an action for recovery of the property under KRS 383.061 (now repealed) or he may proceed under this section or KRS 383.020 or at common law to recover damages for wrongfully procuring the distress warrant. Board v. Luigart, 150 Ky. 791 , 151 S.W. 9, 1912 Ky. LEXIS 998 ( Ky. 1912 ). See Rothenburger v. Dix, 254 Ky. 107 , 71 S.W.2d 30, 1934 Ky. LEXIS 46 ( Ky. 1934 ).

3.Attachment by Constructive Possession.

In action for wrongful attachment of well-drilling machinery and equipment, proof that sheriff went to premises on which owners were drilling a well for landowner, levied upon the machine, and took constructive possession was sufficient to establish that an attachment was made as against contention of defendants that there was never any attachment because sheriff did not physically remove the machine from the premises. Osborne v. Durbin, 301 Ky. 412 , 192 S.W.2d 198, 1946 Ky. LEXIS 497 ( Ky. 1946 ).

4.Without Good Cause.

That property was wrongfully attached is concluded by the judgment discharging the attachment, and the property owner’s right to maintain an action directly against those who wrongfully caused the attachment to be issued and levied upon his property, instead of suing upon the attachment bond, is specifically conferred by this section. Crawford v. Staples, 184 Ky. 477 , 212 S.W. 119, 1919 Ky. LEXIS 81 ( Ky. 1919 ).

In suit for recovery of damages based upon attachment bond executed to obtain order of attachment, discharge of the attachment on the merits is conclusive that it was issued without probable cause. Watkins v. Carter, 267 Ky. 241 , 101 S.W.2d 932, 1937 Ky. LEXIS 300 ( Ky. 1937 ).

In an action under this section, the fundamental issue is whether or not the property was attached without good cause, and the plaintiff is not required to allege or prove malice. City Lumber Co. v. Barrett, 327 S.W.2d 402, 1959 Ky. LEXIS 74 ( Ky. 1959 ).

It has been recognized that an attachment suit is wrongful if the defendant is not indebted to the plaintiff and, if there is some question on this, it is a matter for the jury. City Lumber Co. v. Barrett, 327 S.W.2d 402, 1959 Ky. LEXIS 74 ( Ky. 1959 ).

The obvious purpose of agreed order appointing receiver in the original suit was to permit the continuation of timber operations which the company’s attachment had held up and was in no sense an acknowledgment or judicial admission of debtor of his indebtedness and a justification of the attachment. City Lumber Co. v. Barrett, 327 S.W.2d 402, 1959 Ky. LEXIS 74 ( Ky. 1959 ).

5.Defenses.

Advice of counsel obtained by company after suit was filed where full and true disclosure was questioned was not a defense to timber operator’s subsequent suit against company for damages for wrongful attachment. City Lumber Co. v. Barrett, 327 S.W.2d 402, 1959 Ky. LEXIS 74 ( Ky. 1959 ).

Where malice is not an element of the cause of action, advice of counsel is not a defense as a matter of law. City Lumber Co. v. Barrett, 327 S.W.2d 402, 1959 Ky. LEXIS 74 ( Ky. 1959 ).

6.Damages.

A suit to set aside a conveyance as fraudulent creates a lis pendens lien on the property sought to be thus subjected without any attachment, or any indorsement on the summons of the object of the action, and as the attachment in such suit does not cause the damage, no damages can be recovered for its levy. Caldwell v. Deposit Bank, 109 Ky. 197 , 58 S.W. 589, 22 Ky. L. Rptr. 684 , 1900 Ky. LEXIS 185 ( Ky. 1900 ).

As to such property as is owned and held for use, the criterion of damages for the loss of the use is the value of such use, but where the property is not owned and held by the owner for use but for sale, the value of the loss of possession, not being capable of estimation on a basis of its usable value, as it has no such value to the owner, is estimated on the basis of the deterioration or depreciation in its salable value caused by the attachment. Crawford v. Staples, 184 Ky. 477 , 212 S.W. 119, 1919 Ky. LEXIS 81 ( Ky. 1919 ).

The measure of damages for the loss of use of property used by owners in their business while held under an attachment unlawfully obtained was the value of the use of property during the time owners were deprived of possession. Watkins v. Carter, 267 Ky. 241 , 101 S.W.2d 932, 1937 Ky. LEXIS 300 ( Ky. 1937 ).

The mere fact that the seller, under a conditional sales contract, retained title to the car certainly was not inconsistent with nor denied the plaintiff, in an action for wrongful attachment, the right to the use and possession of the car which he had acquired under the contract, and he could not recover damages for loss of use and possession prior to the time the car was wrongfully attached without default in payment. Watkins v. Carter, 267 Ky. 241 , 101 S.W.2d 932, 1937 Ky. LEXIS 300 ( Ky. 1937 ).

In action against sureties on attachment bond for damages resulting from loss of use of well-drilling machine during period of alleged wrongful attachment, it was not necessary for plaintiff to show that he could have operated the machine at a profit. Osborne v. Durbin, 301 Ky. 412 , 192 S.W.2d 198, 1946 Ky. LEXIS 497 ( Ky. 1946 ).

In a wrongful garnishment action, attorney fees incurred in establishing the right to the funds in question are recoverable as damages. Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385, 1996 Ky. App. LEXIS 18 (Ky. Ct. App. 1996).

7.Seizure of Property of Third Persons.

The damages recoverable for the wrongful seizure of the property under an attachment by direction of plaintiff therein, where no attachment was sought against the persons whose property was seized, do not include attorney’s fees but only the actual and direct damages to the property itself. Farmers' & Shippers' Tobacco Warehouse Co. v. Gibbons, 107 Ky. 611 , 55 S.W. 2, 21 Ky. L. Rptr. 1348 , 1900 Ky. LEXIS 142 ( Ky. 1900 ).

Where no attachment was sought against a person or his property but his name was inserted in the copies of the attachment by error, he could not maintain an action for the wrongful suing out of the attachment; his cause of action was an action for damages for the wrongful seizure of his property by attachment at the direction of the plaintiff in the attachment. Farmers' & Shippers' Tobacco Warehouse Co. v. Gibbons, 107 Ky. 611 , 55 S.W. 2, 21 Ky. L. Rptr. 1348 , 1900 Ky. LEXIS 142 ( Ky. 1900 ).

Intervening claimants, in an action between the attachment defendant and the plaintiff who were finally on appeal adjudged owners of the property, could sue the attachment plaintiff for damages and they were not concerned with whether he had grounds for the attachment or acted without probable cause but the basis of their action was that the property was seized by the sheriff at the insistence of plaintiff and kept for a period of nine months; the question of ownership rested on the final judgment on appeal and not the judgment in trial court which was reversed on appeal. Eureka Dry Cleaners v. Stone Bros. & Shrout, 261 Ky. 15 , 86 S.W.2d 1032, 1935 Ky. LEXIS 582 ( Ky. 1935 ).

Where property of third person is seized and taken from its true owner by unlawful attachment, there can be no recovery of counsel fees and expenses incurred in establishing ownership of the property; the measure of damages where the property is used by the owners is the value of the use of the property during the time they were deprived of its possession. Eureka Dry Cleaners v. Stone Bros. & Shrout, 261 Ky. 15 , 86 S.W.2d 1032, 1935 Ky. LEXIS 582 ( Ky. 1935 ).

A third party whose property was wrongfully attached may not maintain an action for malicious prosecution based upon attachment issued in action between other parties. H. Eilerman & Sons v. Nestley, 285 Ky. 412 , 148 S.W.2d 287, 1941 Ky. LEXIS 402 ( Ky. 1941 ).

The only remedy or cause of action, if any, for wrongful attachment of third party’s automobile is for damage for its wrongful seizure and detention. H. Eilerman & Sons v. Nestley, 285 Ky. 412 , 148 S.W.2d 287, 1941 Ky. LEXIS 402 ( Ky. 1941 ).

8.Malicious Prosecution.

If attachment suit terminated in favor of the attachment plaintiff and the judgment was not void, the fact that the attachment suit was brought with malicious intent did not give cause of action for maliciously prosecuting an attachment. Union Bank & Trust Co. v. Edwards, 281 Ky. 693 , 137 S.W.2d 344, 1940 Ky. LEXIS 98 ( Ky. 1940 ).

To sustain an action for malicious attachment, the plaintiff must show that the attachment action terminated favorably to him, since otherwise it was brought with probable cause. Union Bank & Trust Co. v. Edwards, 281 Ky. 693 , 137 S.W.2d 344, 1940 Ky. LEXIS 98 ( Ky. 1940 ).

Where attachment affidavit did not contain allegation that claim was just, the attachment issued thereon was not void but voidable and could not be attacked collaterally in suit for malicious attachment. Union Bank & Trust Co. v. Edwards, 281 Ky. 693 , 137 S.W.2d 344, 1940 Ky. LEXIS 98 ( Ky. 1940 ).

Where defendant in attachment suit alleged to have been maliciously brought did not in any way directly attack the validity of the proceeding, he could not attack it collaterally in an action for maliciously prosecuting an attachment unless the attachment was void and not merely voidable. Union Bank & Trust Co. v. Edwards, 281 Ky. 693 , 137 S.W.2d 344, 1940 Ky. LEXIS 98 ( Ky. 1940 ).

In action for malicious prosecution, evidence was not sufficient to establish that as a natural and proximate result of the closing of the store for a ten-day period, there would be continued loss of profits for such period extending into the future as to warrant substantial award of damages based on long-term loss for the wrongful attachment. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

In applying the rule that before a party has a cause of action for malicious prosecution the lawsuit or proceeding must terminate in his favor, defendants had a proper adjudicated basis on which to rest their claim where plaintiff maliciously prosecuted an indemnity proceeding under KRS 425.375 (now repealed) and wrongfully obtained an attachment, which proceeding terminated favorably to defendants when the court discharged the attachment; the fact that plaintiff sued on notes on an action which accrued after the attachment proceedings and recovered judgment on the notes was not an issue. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

In cases for malicious prosecution, some latitude must be allowed jury in assessing damages. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

Only such damages were recoverable as were the natural and proximate result of wrongful act of attachment. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

Remote, conjectural or speculative damages may not be recovered in counterclaim for malicious prosecution. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

Since want of probable cause and actual malice must be shown to recover for malicious prosecution, advice of counsel, given upon full disclosure of facts, constitutes a defense. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

The award of $20,000 for the combined items of damages (loss of profits, loss of reputation and standing, humiliation, embarrassment and mental suffering) resulting from wrongful attachment was so excessive as to have been the result of passion and prejudice and the entire verdict should be set aside and a new trial granted on the question of damages. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

The right of a party to assert a common-law cause of action for malicious prosecution based upon wrongful attachment is specifically recognized and the remedy is available even though the complaining party could have sued on attachment bond or under this section. Blankenship v. Staton, 348 S.W.2d 925, 1961 Ky. LEXIS 45 ( Ky. 1961 ).

9.Attorneys’s Fees

Trial court could award the Housing Authority its requested legal fees where a party could recover his attorney’s fees incurred in resisting or attacking a wrongful attachment, and under KRS 411.080 , reasonable attorney’s fees were recoverable in a wrongful garnishment action. Brooks v. Lexington-Fayette Urban County Hous. Auth., 332 S.W.3d 85, 2009 Ky. App. LEXIS 219 (Ky. Ct. App. 2009).

Cited:

Duo—Therm Div., Motor Wheel Corp. v. Sheergrain, Inc., 504 S.W.2d 689, 1973 Ky. LEXIS 34 ( Ky. 1973 ); Riley v. West Kentucky Production Credit Asso., 603 S.W.2d 916, 1980 Ky. App. LEXIS 347 (Ky. Ct. App. 1980).

Research References and Practice Aids

Cross-References.

Grounds and procedure for attachment, KRS 425.301 , 425.302 , 425.306 to 425.309 , 425.316 .

Wrongful distress or attachment for rent, KRS 383.020 .

Kentucky Bench & Bar.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint to Recover for Wrongful Attachment, Form 150.18.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Verified Complaint in Action on Attachment Bond, Form 150.17.

Kentucky Instructions to Juries (Civil), 5th Ed., Abuse of Legal Process, § 27.06.

1.Application.

This section does not authorize a recovery against a city for personal injury resulting from the malfeasance or negligence of city officers. Dudley v. Flemingsburg, 115 Ky. 5 , 72 S.W. 327, 24 Ky. L. Rptr. 1804 , 1903 Ky. LEXIS 66 ( Ky. 1903 ). See Board of Park Comm'rs v. Prinz, 127 Ky. 460 , 105 S.W. 948, 32 Ky. L. Rptr. 359 , 1907 Ky. LEXIS 153 ( Ky. 1907 ).

2.Riotous and Tumultuous Assemblage.

An assemblage of 1,000 people in the main street of a city, obstructing the street and discharging bombs, skyrockets, Roman candles and other missiles, endangering life and preventing use of street for business purposes, was a “riotous and tumultuous assemblage of people,” within this section. Madisonville v. Bishop, 113 Ky. 106 , 67 S.W. 269, 23 Ky. L. Rptr. 2363 , 1902 Ky. LEXIS 25 ( Ky. 1902 ).

3.Notice.

Evidence did not show that the city authorities had notice or good reason to believe that an assault would be made on tobacco warehouses by “night riders” so owner of tobacco warehouses burned by the “night riders” could not recover from the city under this section. Tandy v. Hopkinsville, 160 Ky. 220 , 169 S.W. 703, 1914 Ky. LEXIS 431 ( Ky. 1914 ).

A city did not incur liability under this section where the city had no notice of imminent danger to the specific property involved, although it was aware of riots occurring in the city, and where city, county and state police were left in the area in which the damage occurred but were unable to prevent the destruction. Louisville v. Habeeb, 556 S.W.2d 665, 1977 Ky. LEXIS 522 ( Ky. 1977 ).

4.Liability of City.

The citizen who comes within the shield of this statute has a right to depend on the city for the protection of his property, and under this statute, if the city fails in its duty, its liability is not diminished by the failure of the citizens to have it guarded since the statute, subject to specified conditions, imposes upon the city a liability, and this liability it can escape only by performing its duty as described in the statute. Tandy v. Hopkinsville, 160 Ky. 220 , 169 S.W. 703, 1914 Ky. LEXIS 431 ( Ky. 1914 ).

5.Guards.

The private citizen who owns property in a city may of course employ guards and resort to other lawful methods to protect his property, if he desires to do so, but his failure to do this, although he may have reason to anticipate its destruction by a mob, will not excuse the city from its duty to protect the property of its citizens from injury or destruction. Tandy v. Hopkinsville, 160 Ky. 220 , 169 S.W. 703, 1914 Ky. LEXIS 431 ( Ky. 1914 ).

6.Police Officers.

Statute making a city liable for damages to property by riotous and tumultuous assemblages of people did not apply to personal injuries to persons by police officers but the police officers were personally liable for their malfeasance or nonfeasance in office. Jolly's Adm'x v. Hawesville, 89 Ky. 279 , 12 S.W. 313, 11 Ky. L. Rptr. 477 , 1889 Ky. LEXIS 128 ( Ky. 1889 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Criminal conspiracy, KRS 506.040 , 506.050 .

Collateral References.

ALR

Duty and liability of municipality as regards barriers for protection of adult pedestrians who may unintentionally deviate from street or highway into marginal or external hazards. 44 A.L.R.2d 633.

Liability of municipality for failure to erect traffic warnings against entering or using street which is partially barred or obstructed by construction or improvement work. 52 A.L.R.2d 689.

Liability for injury or damage by tree or limb overhanging street or highway. 54 A.L.R.2d 1195.

Liability of state, municipality, or public agency for vehicle accident occurring because of accumulation of water on street or highway. 61 A.L.R.2d 425.

Liability of municipality for injury or death resulting from temporary condition or obstruction in street in connection with holiday, entertainment, parade, or other special event. 84 A.L.R.2d 508.

Existence of actionable defect in street or highway proper question for court or for jury. 1 A.L.R.3d 496.

Municipal liability for personal injury or death under mob violence or antilynching statutes. 26 A.L.R.3d 1142.

Municipal liability for property damaged under mob violence statutes. 26 A.L.R.3d 1198.

Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection. 22 A.L.R.4th 624.

1.Constitutionality.

This section does not purport to prescribe a period of limitation within which suit must be brought but merely requires the giving of notice as a prerequisite to the right to sue and thus does not violate constitutional prohibitions against class or special legislation. Galloway v. Winchester, 299 Ky. 87 , 184 S.W.2d 890, 1945 Ky. LEXIS 388 ( Ky. 1945 ).

2.Purpose.

The purposes of the statute are to give the city an opportunity to investigate the scene of an accident and correct any defective condition, if such exists, to enable the city to investigate and evaluate the case so that if liability exists it might have an opportunity to settle it without long and expensive litigation, and to give the city an opportunity to protect its funds against unjust and illegal claims. Louisville v. O'Neill, 440 S.W.2d 265, 1969 Ky. LEXIS 338 ( Ky. 1969 ).

3.Construction.

Substantial compliance with this section is not enough. Treitz v. Louisville, 292 Ky. 654 , 167 S.W.2d 860, 1943 Ky. LEXIS 730 ( Ky. 1943 ).

The statute must be strictly complied with. Elsemere v. Brown, 297 Ky. 323 , 180 S.W.2d 86, 1944 Ky. LEXIS 726 ( Ky. 1944 ). See Louisville v. O'Neill, 440 S.W.2d 265, 1969 Ky. LEXIS 338 ( Ky. 1969 ).

This section is not a statute of limitations. Roehrig v. Louisville, 454 S.W.2d 703, 1970 Ky. LEXIS 288 ( Ky. 1970 ).

4.Defect.

Branch of tree overhanging city street, which dislodged body of a passing truck with resulting injury to a pedestrian, was a “defect” in the street within the meaning of this section. Galloway v. Winchester, 299 Ky. 87 , 184 S.W.2d 890, 1945 Ky. LEXIS 388 ( Ky. 1945 ).

The word “defect,” as used in this section, includes any defect, whether overhead or underfoot, which it is the duty of the city to correct to render the street in a reasonably safe condition for travel by the public. Galloway v. Winchester, 299 Ky. 87 , 184 S.W.2d 890, 1945 Ky. LEXIS 388 ( Ky. 1945 ).

5.Notice.

Giving oral notice of accident to mayor was not sufficient, even though mayor caused claimant to be examined by physicians and expressed opinion that claimant should be compensated by the city. Ballinger v. Harlan, 294 Ky. 72 , 170 S.W.2d 912, 1943 Ky. LEXIS 381 ( Ky. 1943 ).

The statute, while not expressly saying so, clearly provides for a written notice. Irvine v. Cox, 296 Ky. 680 , 178 S.W.2d 199, 1944 Ky. LEXIS 609 ( Ky. 1944 ).

Failure to give notice as required by this section applies to tort actions against cities. Louisville v. Pirtle, 297 Ky. 553 , 180 S.W.2d 303, 1944 Ky. LEXIS 747 ( Ky. 1944 ), overruled in part, Haney v. Lexington, 386 S.W.2d 738, 1964 Ky. LEXIS 178 ( Ky. 1964 ).

One of the purposes of the notice required by this section is to permit the city to investigate the cause of the accident, and to determine the condition of the defect claimed at the time of the accident. Galloway v. Winchester, 299 Ky. 87 , 184 S.W.2d 890, 1945 Ky. LEXIS 388 ( Ky. 1945 ).

The requirement of giving the notice required by this section applies to all persons irrespective of age or disability and is not suspended during the infancy of a claimant. Galloway v. Winchester, 299 Ky. 87 , 184 S.W.2d 890, 1945 Ky. LEXIS 388 ( Ky. 1945 ).

Notice required by this section is jurisdictional and failure to give it is fatal. Broaddus v. Cox, 300 Ky. 501 , 189 S.W.2d 726, 1945 Ky. LEXIS 586 ( Ky. 1945 ).

Giving of notice under this section is not a prerequisite to the bringing of an action for wrongful death by personal representative of person killed as a result of alleged defect in street. Spangler's Adm'r v. Middlesboro, 301 Ky. 237 , 191 S.W.2d 414, 1945 Ky. LEXIS 735 ( Ky. 1945 ).

The city’s actual or constructive notice of defect in thoroughfare is not a substitute for notice. Berry v. Louisville, 249 S.W.2d 818, 1952 Ky. LEXIS 882 ( Ky. 1952 ).

The purpose of notice is “to give the city an opportunity to investigate the cause of the accident and to determine the condition of the defect complained of, at or about the time of the accident, as well as to permit an examination of the injuries alleged to have been sustained by the claimant.” Berry v. Louisville, 249 S.W.2d 818, 1952 Ky. LEXIS 882 ( Ky. 1952 ).

An action could not be maintained against a city for an injury growing out of a condition in a public sidewalk—a loose lid or top on a city-owned water meter box—when notice of the injury was not served on the city within 90 days of the occurrence of the injury in accordance with this section, since the water meter box was located in the sidewalk and the statute specifically covers defects in the sidewalk and does not exclude defects in a sidewalk of any kind whether of proprietary or governmental origin. Hancock v. Anchorage, 299 S.W.2d 794, 1957 Ky. LEXIS 426 ( Ky. 1957 ). See City of Elizabethtown v. Baker, 373 S.W.2d 593, 1963 Ky. LEXIS 165 ( Ky. 1963 ).

The notice required by this section relates to actions against the city and is not required in an action against a municipal water and electric board of a second-class city operated as an independent board under the authority of KRS 96.172 . McIntosh v. Electric & Water Plant Board, 394 S.W.2d 471, 1965 Ky. LEXIS 186 ( Ky. 1965 ).

The reason for the requirement of notice is to provide an opportunity for the city to investigate all the circumstances and prepare its defense. Dukes v. Louisville, 415 S.W.2d 110, 1967 Ky. LEXIS 304 ( Ky. 1967 ).

Although one of the primary purposes of the notice is to give the city an opportunity to investigate the cause of the accident and to determine the condition of the defect complained of, another purpose is to enable the city to examine the injuries alleged to have been sustained. Roehrig v. Louisville, 454 S.W.2d 703, 1970 Ky. LEXIS 288 ( Ky. 1970 ).

This section contemplates that the notice is to be given by or at the direction of the injured person. Roehrig v. Louisville, 454 S.W.2d 703, 1970 Ky. LEXIS 288 ( Ky. 1970 ).

KRS 411.110 and CR 5.02, when construed together, mean that the notice required by the statute must be served on the “mayor, city clerk or clerk of the board of aldermen” by delivering or mailing a copy of the notice to one of these enumerated officials. Dreifus v. City of Grayson, 2001 Ky. App. LEXIS 16 (Ky. Ct. App. Feb. 16, 2001).

On a matter of first impression, the exterior stairs attached to the police department building were not a public thoroughfare for purposes of the Ky. Rev. Stat. Ann. § 411.110 notice requirement where the stairs did not merely provide a means of access to the building, but were physically part of the structure, and as such, they were not a public thoroughfare in the same way as were bridges, street, sidewalks, or alleys. Krietemeyer v. City of Madisonville, 576 S.W.3d 157, 2018 Ky. App. LEXIS 230 (Ky. Ct. App. 2018).

6.—Condition Precedent to Action.

The giving of the notice required by this section is a condition precedent to the bringing of an action. Whether notice has been given is a question of jurisdiction which can be raised at any time during the action. The fact that the city filed a motion to make the complaint more definite and certain before demurring on ground of failure to give notice would not waive the lack of notice. Treitz v. Louisville, 292 Ky. 654 , 167 S.W.2d 860, 1943 Ky. LEXIS 730 ( Ky. 1943 ).

The giving of notice is a condition precedent to bringing suit and is jurisdictional. Elsemere v. Brown, 297 Ky. 323 , 180 S.W.2d 86, 1944 Ky. LEXIS 726 ( Ky. 1944 ). See Treitz v. Louisville, 292 Ky. 654 , 167 S.W.2d 860, 1943 Ky. LEXIS 730 ( Ky. 1943 ); Dukes v. Louisville, 415 S.W.2d 110, 1967 Ky. LEXIS 304 ( Ky. 1967 ).

The giving of the notice is a condition precedent to maintaining an action against the city. Elsemere v. Brown, 297 Ky. 323 , 180 S.W.2d 86, 1944 Ky. LEXIS 726 ( Ky. 1944 ).

The giving of notice under this section is a condition precedent to the maintaining of an action against a city for damages arising from a defect in a sidewalk, regardless of whether the city had actual knowledge of the defect. Reibel v. Woolworth, 301 Ky. 76 , 190 S.W.2d 866, 1945 Ky. LEXIS 693 ( Ky. 1945 ).

Compliance with this section is a prerequisite to the right to invoke the help of the courts. Hancock v. Anchorage, 299 S.W.2d 794, 1957 Ky. LEXIS 426 ( Ky. 1957 ).

The notice required by this section is a mandatory prerequisite to an action and a notice of an accident in which several people were injured which was otherwise sufficient but which omitted the name of one of the injured persons precluded the omitted person from maintaining an action although the city had actual notice. Dawson Springs v. Reddish, 344 S.W.2d 826, 1961 Ky. LEXIS 259 ( Ky. 1961 ).

7.—Persons to Receive.

Acceptance of service of notice from plaintiff’s attorney by city clerk did not constitute waiver of immunity from suit and was a sufficient compliance with this section. Elsemere v. Brown, 297 Ky. 323 , 180 S.W.2d 86, 1944 Ky. LEXIS 726 ( Ky. 1944 ).

Service of notice of action as required by this section had to be on the persons named in the statute and service upon the city attorney was held insufficient. Wellman v. Owensboro, 282 S.W.2d 628, 1955 Ky. LEXIS 259 ( Ky. 1955 ).

8.—Sufficiency.

Mere mailing of letter to mayor of city is not sufficient compliance with this section, and the fact that the city attorney replies to the letter and denies the liability of the city does not estop the city to rely on the failure to give notice in the statutory form. Treitz v. Louisville, 292 Ky. 654 , 167 S.W.2d 860, 1943 Ky. LEXIS 730 ( Ky. 1943 ).

Commencement of action against city and service of summons on mayor, within 90 days of accident, does not constitute compliance with the requirement that notice be given, even though the pleadings in the action contain all the required information. This section must be literally complied with. Ballinger v. Harlan, 294 Ky. 72 , 170 S.W.2d 912, 1943 Ky. LEXIS 381 ( Ky. 1943 ).

The service of a bare summons on the city does not furnish the information required in the notice. Irvine v. Cox, 296 Ky. 680 , 178 S.W.2d 199, 1944 Ky. LEXIS 609 ( Ky. 1944 ).

Notice served on mayor within 90 days of accident setting out that plaintiff suffered “a broken hip and other injuries” on a certain date, that the injuries were due to defective condition of sidewalk at a certain location, and that she intended to claim damages from city was sufficient to satisfy requirements of this section. Louisville v. Verst, 308 Ky. 46 , 213 S.W.2d 517, 1948 Ky. LEXIS 862 ( Ky. 1948 ).

Notice stating a named person sustained injuries to his head on a given date and time in front of a street address in a named city and that his automobile was also damaged was inadequate as it clearly did not set out the “character and circumstances” of the injury where from reading the notice one could not tell how the injuries were received and it did not state whether the accident occurred in the street, on the sidewalk, or at the curb and did not set out the alleged defect in the thoroughfare. Berry v. Louisville, 249 S.W.2d 818, 1952 Ky. LEXIS 882 ( Ky. 1952 ).

Notice was held adequate as to the persons named in it although it omitted the name of one of the persons injured in the accident, the time of day the accident occurred, and the exact manhole at which the accident occurred where the street was five (5) blocks long and had at least five (5) manholes in it and gave the cause of the accident as “a manhole protruding upwards above the surface” of a named street in a named city over which street the injured persons were traveling in an automobile. Dawson Springs v. Reddish, 344 S.W.2d 826, 1961 Ky. LEXIS 259 ( Ky. 1961 ).

Notice was not indefinite but it was too specific or specific to the point of being erroneous and thus insufficient where it stated plaintiff slipped and fell on second section of sidewalk when in fact she slipped and fell on section three (3) of sidewalk and city discovered at the onset that the accident could not have happened as specifically stated in the notice because of the newness of section two (2) which lulled it into justifiable belief that there was no need for any further investigation. Dukes v. Louisville, 415 S.W.2d 110, 1967 Ky. LEXIS 304 ( Ky. 1967 ).

Where the notice given to the city of the injury did not specify in what way the street was defective nor attempt to describe the personal injuries the plaintiff sustained, the notice was defective. Louisville v. O'Neill, 440 S.W.2d 265, 1969 Ky. LEXIS 338 ( Ky. 1969 ).

The plaintiff satisfied the notice requirement by leaving a copy of a notice letter at the mayor’s office with the person in charge thereof and by mailing the notice to the mayor on the 90th day. Dreifus v. City of Grayson, 2001 Ky. App. LEXIS 16 (Ky. Ct. App. Feb. 16, 2001).

9.— —Correct Date.

Where timely notice of accident was transmitted to municipality, failure to give correct date of accident was fatal and dismissal of suit was not reversible error, since the correct date of any alleged accident is an essential and mandatory element of a statutory notice. Baldridge v. Ashland, 613 S.W.2d 430, 1981 Ky. App. LEXIS 228 (Ky. Ct. App. 1981).

Where plaintiff fell on a sidewalk outside of a city building and provided pre-suit notice indicating that she sustained injury “on or about January 18” and where plaintiff learned after filing suit that the actual date of her injury was January 20 and she amended her complaint to reflect the accurate date, the trial court erred in granting a judgment on the pleadings in favor of the city based upon its argument that plaintiff failed to strictly comply with the statutory notice requirement regarding the time of her injury because the phrase “on or about,” when used in connection with a definite point of time, did not put the time at large but indicated that it was stated with approximate accuracy. A period of three or four months would not be within the referenced time frame, but “on or about” a certain date could cover a period of several days; clearly, two days was within the span of several days, and thus, notice that an accident occurred “on or about” a particular date included a date two days subsequent thereto. Denton v. City of Florence, 301 S.W.3d 23, 2009 Ky. LEXIS 283 ( Ky. 2009 ).

10.—Third Party Joinder.

Where the executor of an estate was sued and the executor joined the city as a party alleging a claim for contribution, the failure of the executor to give the notice required by this section would not bar the prosecution of a claim for contribution. Roehrig v. Louisville, 454 S.W.2d 703, 1970 Ky. LEXIS 288 ( Ky. 1970 ).

Cited in:

Louisville Water Co. v. Wells, 664 S.W.2d 525, 1984 Ky. App. LEXIS 464 (Ky. Ct. App. 1984); Schilling v. Schoenle, 782 S.W.2d 630, 1990 Ky. LEXIS 5 ( Ky. 1990 ); Carter v. Cornwell, 983 F.2d 52, 1993 U.S. App. LEXIS 118 (6th Cir. 1993).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Claim for Injury Caused by Dangerous Condition of Sidewalk, Form 331.16.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Against Municipal Corporation for Injuries Sustained Because Shrubbery Obscured View of Oncoming Traffic, Form 331.17.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Against Municipality for Injuries Caused by Dangerous Condition of Roadway and Underpass, Form 135.27.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Against Municipality for Injuries Caused by Dangerous Condition on Shoulder of Road, Form 130.11.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Injury by Falling on Defective Sidewalk, Form 331.04.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Notice of Personal Injury under KRS 411.110 , Form 331.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Automobiles/No Fault/Uninsured Motorist, § 135.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Municipal Corporations, § 331.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Synopsis to Chapter 331 Municipal Corporations, § 331.syn.

Kentucky Instructions to Juries (Civil), 5th Ed., Owners and Occupiers of Real Estate, § 24.42.

1.Application.

This section provides for notice prior to litigation, but if the governmental unit is immune from tort actions, then this section has no application; this section is not a waiver of sovereign immunity. Inco, Ltd. v. Lexington-Fayette Urban County Airport Bd., 705 S.W.2d 933, 1985 Ky. App. LEXIS 679 (Ky. Ct. App. 1985).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Municipal Corporations, § 331.00.

1.Construction.

Only those who have a clear legal and equitable title to land connected with actual possession may sue in equity to quiet title. Whipple v. Earick, 93 Ky. 121 , 19 S.W. 237, 14 Ky. L. Rptr. 85 , 1892 Ky. LEXIS 62 ( Ky. 1892 ). See Smith v. Lewis, 55 S.W. 551, 21 Ky. L. Rptr. 1400 , 1900 Ky. LEXIS 527 ( Ky. 1900 ); Fox v. Cornett, 124 Ky. 139 , 92 S.W. 959, 29 Ky. L. Rptr. 246 , 1906 Ky. LEXIS 228 ( Ky. 1906 ); Musick v. Horn, 145 Ky. 639 , 140 S.W. 1014, 1911 Ky. LEXIS 9 01 ( Ky. 1911 ); Nugent v. Mallory, 145 Ky. 824 , 141 S.W. 850, 1911 Ky. LEXIS 9 59 ( Ky. 1911 ); Perry v. Eagle Coal Co., 170 Ky. 824 , 186 S.W. 875, 1916 Ky. LEXIS 1 36 ( Ky. 1916 ); Taylor v. Wilson, 182 Ky. 592 , 206 S.W. 865, 1918 Ky. LEXIS 408 ( Ky. 1918 ), modified, 183 Ky. 695 , 210 S.W. 670, 1919 Ky. LEXIS 571 ( Ky. 1919 ); Southern Oil Co. v. Holman, 196 Ky. 250 , 244 S.W. 762, 1922 Ky. LEXIS 510 ( Ky. 1922 ); Boreing v. Garrard, 210 Ky. 135 , 275 S.W. 374, 1925 Ky. LEXIS 638 ( Ky. 1925 ); Brown v. Martin, 239 Ky. 146 , 39 S.W.2d 243, 1931 Ky. LEXIS 754 ( Ky. 1931 ); Hale v. Horn, 265 Ky. 560 , 97 S.W.2d 402, 1936 Ky. LEXIS 533 ( Ky. 1936 ); Warfield Natural Gas Co. v. Danks, 271 Ky. 452 , 112 S.W.2d 674, 1938 Ky. LEXIS 9 ( Ky. 1938 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

This section gives to the owner in possession of land a right to maintain an equitable action to quiet his title and the fact that the defendant has an action of forcible entry and detainer pending against the owner involving the naked right of possession only without showing the relationship of landlord and tenant will neither bar nor abate the owner’s right to settle adverse claims as to the title, since the right of possession in one person is not inconsistent with the right of property in another. Engle v. Tennis Coal Co., 125 Ky. 239 , 101 S.W. 309, 30 Ky. L. Rptr. 1269 , 1907 Ky. LEXIS 280 ( Ky. 1907 ).

2.Lack of Notice.

Where the defendants argued that this quiet title statute was void due to a lack of a sufficient notice provision, but did not give the Attorney General notice of the action challenging this section, the court properly refused to consider the constitutionality issue. Field v. Evans, 675 S.W.2d 3, 1983 Ky. App. LEXIS 370 (Ky. Ct. App. 1983).

In a dispute involving the ownership and leasehold of oil and gas rights underlying the surface property filed by the owners of the property, because the heirs of the owner of the mineral rights on the property at issue were never made parties to the litigation, as such were necessary and indispensable parties, the court could not address the surface owners’ adverse possession claim. Baker v. Weinberg, 266 S.W.3d 827, 2008 Ky. App. LEXIS 159 (Ky. Ct. App. 2008), modified, 2008 Ky. App. LEXIS 303 (Ky. Ct. App. Sept. 12, 2008).

3.Title of Plaintiff.

Even if the defendant’s claim is faulty, the plaintiff’s right to recover is dependent not upon good faith of his claim but the validity of his title. Phillips v. Alma Coal Co., 7 F.2d 42, 1925 U.S. App. LEXIS 3479 (6th Cir. Ky. 1925 ), cert. denied, 271 U.S. 669, 46 S. Ct. 483, 70 L. Ed. 1142, 1926 U.S. LEXIS 747 (U.S. 1926).

Plaintiff must be the owner of the land. Bowling v. Breathitt Coal, Iron & Lumber Co., 134 Ky. 249 , 120 S.W. 317, 1909 Ky. LEXIS 388 ( Ky. 1909 ).

The question of title to land may not be litigated in action by claimants against the secretary of state. Daniel v. New Era Land Co., 137 Ky. 535 , 126 S.W. 108, 1910 Ky. LEXIS 596 ( Ky. 1910 ).

In an action to quiet title, plaintiff must succeed on the strength of his own title, and not on the weakness of defendant’s title. Slone v. Hall, 145 Ky. 232 , 140 S.W. 188, 1911 Ky. LEXIS 825 ( Ky. 1 911). See Engle v. Bond-Foley Lumber Co., 173 Ky. 35 , 189 S.W. 1146, 1916 Ky. LEXIS 287 ( Ky. 1 916); Bryant v. Hamblin, 183 Ky. 716 , 210 S.W. 786, 1919 Ky. LEXIS 574 ( Ky. 1919 ); Gray-Mellon Oil Co. v. Fairchild, 219 Ky. 143 , 292 S.W. 743, 1927 Ky. LEXIS 290 ( Ky. 1927 ); Campbell v. Schorr, 224 Ky. 1, 5 S.W.2d 278, 1927 Ky. LEXIS 965 ( Ky. 1927 ); McKeehan v. Moore, 225 Ky. 580 , 9 S.W.2d 711, 1928 Ky. LEXIS 821 ( Ky. 1928 ); Liberty Coal Co. v. Baker, 231 Ky. 761 , 22 S.W.2d 252, 1929 Ky. LEXIS 362 ( Ky. 1929 ); Webster County Board of Education v. Gentry, 233 Ky. 35 , 24 S.W.2d 910, 1930 Ky. LEXIS 486 ( Ky. 1930 ); Ratcliff v. Coleman, 241 Ky. 791 , 45 S.W.2d 493, 1931 Ky. LEXIS 166 ( Ky. 1931 ); Alcorn v. Superior Oil Corp., 245 Ky. 343 , 53 S.W.2d 528, 1932 Ky. LEXIS 577 ( Ky. 1932 ); Fugate v. Fugate, 252 Ky. 587 , 67 S.W.2d 952, 1934 Ky. LEXIS 820 ( Ky. 1934 ); Hale v. Horn, 265 Ky. 560 , 97 S.W.2d 402, 1936 Ky. LEXIS 533 ( Ky. 1936 ).

Where father had executed deed to son prior to bringing suit under this section which son did not lodge of record but held in his possession until the morning of the day he gave his deposition in the action brought by his father under this section to quiet title, at which time he returned the deed to his father with the understanding that if his father won the quiet title suit the son would “fall owner to the same,” the return of the deed was not in good faith and the father failed to establish in himself title to the land in controversy. Collins v. Adams, 167 Ky. 228 , 180 S.W. 374, 1915 Ky. LEXIS 838 ( Ky. 1915 ).

In a suit to quiet title, plaintiffs must recover on the strength of their title, though a suit to enjoin a trespass can be maintained by proof of possession when the trespass was committed, and when the suit was filed. Combs v. Turner, 193 Ky. 636 , 237 S.W. 37, 1922 Ky. LEXIS 47 ( Ky. 1922 ).

Plaintiff must establish ownership of legal title. Burger v. Allen, 211 Ky. 742 , 277 S.W. 1032, 1925 Ky. LEXIS 962 ( Ky. 1925 ).

Where wife intervened in suit against husband asking that her title to land be quieted, she had to recover on the strength of her title and not on the weakness of that of plaintiff. Lawson v. First Nat'l Bank, 225 Ky. 58 , 7 S.W.2d 495, 1928 Ky. LEXIS 693 ( Ky. 1928 ).

Plaintiff in a quiet title suit, who was found by the court to have no interest in the land as he did not own it, had no concern as to who the court determined was the true owner and could not object to a decree adjudging defendant to be the owner of the land. Hopkins v. Slusher, 266 Ky. 300 , 98 S.W.2d 932, 1936 Ky. LEXIS 657 ( Ky. 1936 ).

There are three (3) ways in which the title to land may be shown: (1) paper title deducible from the Commonwealth; (2) adverse possession for the statutory period; and (3) title to a common source. Strunks Lane & Jellico Mountain Coal & Coke Co. v. Anderson, 276 Ky. 576 , 124 S.W.2d 779, 1939 Ky. LEXIS 552 ( Ky. 1939 ). See Noland v. Wise, 259 S.W.2d 46, 1953 Ky. LEXIS 922 ( Ky. 1953 ).

In action to quiet title under this section where both parties claimed under a common grantor who was the father of defendant, defendant who failed to record his deed was estopped from asserting superior title to plaintiff who was an innocent purchaser for value. Chestnut v. Allen, 282 Ky. 703 , 139 S.W.2d 729 ( Ky. 1940 ).

Where plaintiffs failed to show title in themselves deducible from the Commonwealth or from a common source and they were not in actual possession of any part of the land, judgment of lower court quieting title in plaintiffs could not be sustained. Noland v. Wise, 259 S.W.2d 46, 1953 Ky. LEXIS 922 ( Ky. 1953 ).

Person seeking to have title quieted and to establish ownership and possession by record title or adverse possession must succeed on the strength of his title and not on the weakness of defendant’s title. Aluminum Co. of America v. Frazer, 328 S.W.2d 142, 1958 Ky. LEXIS 3 ( Ky. 1958 ). See Letcher County Coal & Improv. Co. v. Marlowe, 398 S.W.2d 870, 1965 Ky. LEXIS 51 ( Ky. 1965 ); Vogler v. Salem Primitive Baptist Church, 415 S.W.2d 72, 1967 Ky. LEXIS 292 ( Ky. 1967 ).

Where a person under KRS 416.070 (repealed) failed to establish ownership of land condemned by constructive service, that person had no title to quiet under this section. St. Matthews v. Roberts, 490 S.W.2d 750, 1973 Ky. LEXIS 644 ( Ky. 1973 ).

4.—Paper Title.

Where pleadings and testimony in quiet title action claimed plaintiff was owner of land but did not claim legal title to it, although plaintiff was in possession of the land under a title bond from his father in a transfer obviously made to defeat creditors, the court did not err in refusing to quiet title. Brandenburg v. Louisville Tin & Stone Co., 36 S.W. 7, 18 Ky. L. Rptr. 297 (1896).

Plaintiff had no title to the land in a quiet title action where the land under his patent was embraced in an older patent issued to another, so he could not be in constructive possession and, being without actual possession, he could not question defendant’s title or right to possession. Nolen v. Hall, 82 S.W. 418, 26 Ky. L. Rptr. 773 , 1904 Ky. LEXIS 436 (Ky. Ct. App. 1904).

That holder under title bond executed deed by attorney in fact, created before his title was perfected, did not show defect. Stephens v. Perkins, 209 Ky. 651 , 273 S.W. 545, 1925 Ky. LEXIS 569 ( Ky. 1925 ).

Where deed from common grantor to plaintiff’s predecessors exempted mineral rights, plaintiff acquired no title to minerals and could not maintain action to quiet title thereto. Liberty Coal Co. v. Baker, 231 Ky. 761 , 22 S.W.2d 252, 1929 Ky. LEXIS 362 ( Ky. 1929 ).

Purchaser from one daughter of deceased owner had not acquired legal title requisite to prosecute statutory suit to quiet title against other daughter claiming interest. Pendley v. Lee, 233 Ky. 372 , 25 S.W.2d 1030, 1930 Ky. LEXIS 571 ( Ky. 1930 ).

The fact that grantor in deed excepted a portion of the conveyed property from the warranty clause did not constitute an admission that grantor did not claim title to such portion. Conyers' Adm'x v. McGee, 294 Ky. 382 , 171 S.W.2d 450, 1943 Ky. LEXIS 436 ( Ky. 1943 ).

5.—Common Source.

It was not necessary for plaintiff in quiet title action to prove title to mineral in a tract of land beyond the common source through which he and defendants both claimed and whether the patent under which the owner of the common source obtained title was valid was not in issue. Stoffler v. Edgewater Coal Co., 198 Ky. 523 , 249 S.W. 753, 1923 Ky. LEXIS 493 ( Ky. 1923 ).

Where title of both plaintiffs and defendants were derived by deeds from common grantor, plaintiffs were not required to trace title back to Commonwealth. Jones v. O'Connell, 237 Ky. 219 , 35 S.W.2d 290, 1931 Ky. LEXIS 582 ( Ky. 1931 ).

Plaintiff need not show title back to a common grantor through whom both parties claim. Brown v. Martin, 239 Ky. 146 , 39 S.W.2d 243, 1931 Ky. LEXIS 754 ( Ky. 1931 ). See Stoffler v. Edgewater Coal Co., 198 Ky. 523 , 249 S.W. 753, 1923 Ky. LEXIS 493 ( Ky. 1923 ); Crawley v. Mackey, 283 Ky. 717 , 143 S.W.2d 171, 1940 Ky. LEXIS 402 ( Ky. 1940 ).

Where both parties claim under a common grantor, it is unnecessary for either party to show title beyond common grantor. Elkhorn Coal Corp. v. Jacks Creek Coal Co., 240 Ky. 769 , 43 S.W.2d 13, 1931 Ky. LEXIS 495 ( Ky. 1931 ).

Where plaintiff and defendants traced their titles to a common source and defendants traced their titles by inheritance from plaintiff’s grantor or subsequent deed from his heirs, plaintiff’s title was superior to defendants’ so as to entitle plaintiff to judgment except for portion defendants were found to have acquired by adverse possession. Baker v. Brown, 271 Ky. 93 , 111 S.W.2d 1036, 1937 Ky. LEXIS 237 ( Ky. 1937 ).

6.—Adverse Possession.

Legal title for action to quiet title need not necessarily be acquired under a deed but may be acquired by adverse possession. Le Moyne v. Hays, 145 Ky. 415 , 140 S.W. 552, 1911 Ky. LEXIS 858 ( Ky. 1911 ). See Williams v. Lowe, 175 Ky. 369 , 194 S.W. 342, 1917 Ky. LEXIS 323 ( Ky. 1917 ); Wilson v. Pioneer Coal Co., 191 Ky. 408 , 231 S.W. 37, 1921 Ky. LEXIS 357 ( Ky. 1921 ); Combs v. Combs, 238 Ky. 362 , 38 S.W.2d 243, 1931 Ky. LEXIS 261 ( Ky. 1931 ).

Suit to quiet title to land under this section may be maintained under a title acquired by 15 years’ adverse possession. Williams v. Lowe, 175 Ky. 369 , 194 S.W. 342, 1917 Ky. LEXIS 323 ( Ky. 1917 ). See Combs v. Turner, 193 Ky. 636 , 237 S.W. 37, 1922 Ky. LEXIS 47 ( Ky. 1922 ); Crawley v. Mackey, 283 Ky. 717 , 143 S.W.2d 171, 1940 Ky. LEXIS 402 ( Ky. 1940 ).

It is not essential that plaintiff have a paper title, but only that he have such title as would give him the right to the possession of the land, which character of title may rest on adverse possession. Turner v. Bowens, 180 Ky. 755 , 203 S.W. 749, 1918 Ky. LEXIS 155 ( Ky. 1918 ). See Crawley v. Mackey, 283 Ky. 717 , 143 S.W.2d 171, 1940 Ky. LEXIS 402 ( Ky. 1940 ).

Plaintiffs’ occupancy, use and possession and that of their vendors was such as to give them title by adverse possession, and they could maintain action to enjoin defendant from cutting timber and to quiet title. Combs v. Turner, 193 Ky. 636 , 237 S.W. 37, 1922 Ky. LEXIS 47 ( Ky. 1922 ).

One in possession of land may retain and protect his possession against everyone not legally entitled thereto. Leach v. Taylor, 206 Ky. 28 , 266 S.W. 894, 1924 Ky. LEXIS 265 ( Ky. 1924 ).

Occasional entries upon uninclosed land to cut timber is not such an adverse holding as will invest the trespasser with title though his acts continue sporadically over a period of 15 years. Combs v. Jones, 244 Ky. 512 , 51 S.W.2d 672, 1932 Ky. LEXIS 469 ( Ky. 1932 ).

Occasional acts of entering, cutting and removing timber from land do not constitute actual adverse possession. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

A suit to quiet title may be maintained upon a title acquired by 15 years’ adverse possession, and the defendant may, by answer and counterclaim setting up title acquired by 15 years’ adverse holding of the land of the owner, also maintain a defense to the quia timet action brought against him. Whitaker v. Shepherd, 280 Ky. 713 , 134 S.W.2d 604, 1939 Ky. LEXIS 199 ( Ky. 1939 ).

In a suit under this section to quiet title to land held by adverse possession under a tax deed, the champerty statute, KRS 372.070 , was not applicable as an owner in possession does not hold adversely to sovereign’s claim for taxes. Combs v. Combs, 306 Ky. 553 , 208 S.W.2d 732, 1948 Ky. LEXIS 608 ( Ky. 1948 ).

The occasional cutting of timber and payment of taxes by plaintiffs did not constitute an adverse holding sufficient to acquire title by adverse possession even though such acts continued sporadically for the prescription period. Noland v. Wise, 259 S.W.2d 46, 1953 Ky. LEXIS 922 ( Ky. 1953 ).

6.5.— —Indispensable Parties.

Circuit court erred in summarily denying the adjoining owners' motion to alter, amend, or vacate a judgment quieting title in property claimed through adverse possession to the buyers because the court failed to address the issue of indispensable parties where the controversy could not be resolved between the existing parties without prejudicing the rights of the record owners' unknown heirs where they had an interest and the suit would prejudice their rights to the property. Gilland v. Dougherty, 500 S.W.3d 217, 2016 Ky. App. LEXIS 101 (Ky. Ct. App. 2016).

7.—Boundary Lines.

The establishment of an agreed line to settle boundary dispute between landowners as to the correct location of the line had the effect of investing them with such title up to the line as gave them a right of possession and would enable them to bring a suit to quiet title to the same extent as if they had perfect paper title to it. Turner v. Bowens, 180 Ky. 755 , 203 S.W. 749, 1918 Ky. LEXIS 155 ( Ky. 1918 ).

In an action to quiet title, plaintiffs were not bound by prior reports of commissioners or by division deeds executed pursuant to those reports, where neither reports nor deeds definitely established the property line. Calhoun v. Gayhart, 280 Ky. 170 , 132 S.W.2d 760, 1939 Ky. LEXIS 83 ( Ky. 1939 ).

It is a rule universally recognized that in an action to recover land the plaintiff must recover on the strength of his own title and not by weakness of the title of his adversary and, unless he is relying on adverse possession for more than 15 years, he must show paper title back to the Commonwealth or back to a common grantor but this is not necessary where the controversy involves merely the correct location of the boundary line between the parties. Jones v. Wheeldon, 309 Ky. 184 , 217 S.W.2d 221, 1949 Ky. LEXIS 665 ( Ky. 1949 ).

8.Possession.

A person not showing actual possession of land in controversy at the time he instituted an action to quiet his title cannot maintain the action. Harris v. Smith, 32 Ky. 10 , 1834 Ky. LEXIS 3 ( Ky. 1834 ) (decided under prior law).

Where plaintiffs are not in actual possession of the territory in dispute, a bill in equity to quiet title will not lie. Coppage v. Griffith, 40 S.W. 908, 19 Ky. L. Rptr. 459 (1897). See Layne v. Ferguson, 68 S.W. 656, 24 Ky. L. Rptr. 444 , 1902 Ky. LEXIS 313 (Ky. Ct. App. 1902); Hall v. Pratt, 142 Ky. 561 , 134 S.W. 900, 1911 Ky. LEXIS 236 ( Ky. 1911 ), overruled in part, E. W. Ross Co. v. Akers, 192 Ky. 389 , 233 S.W. 786, 1921 Ky. LEXIS 69 ( Ky. 1921 ).

Under this section, a mortgagor in possession may sue the mortgagee asserting legal title to the land. Sheffield v. Day, 90 S.W. 545, 28 Ky. L. Rptr. 754 (1906).

Where plaintiff brought suit to have title quieted and defendant by his counterclaim asserted ownership to the land and asked that his title to it be quieted, tendering an issue involving the question of superior title, it was competent for the court to try and determine it; and for the further reason that the quiet title action was an effort on the part of plaintiff to deprive defendant of his title to the property by converting same to his own use, defendant, whose counterclaim was based on wrongful seizure, could maintain his action although not in the actual possession of the property. Fox v. Cornett, 124 Ky. 139 , 92 S.W. 959, 29 Ky. L. Rptr. 246 , 1906 Ky. LEXIS 228 ( Ky. 1906 ).

A person not showing actual possession of land in controversy at the time he instituted an action to quiet his title cannot maintain the action under this section. Brown v. Ward, 105 S.W. 964, 32 Ky. L. Rptr. 261 (1907). See Dupoyster v. Turk, 110 S.W. 260, 33 Ky. L. Rptr. 320 (1908); Dupoyster v. Dunn, 113 S.W. 880 ( Ky. 1908 ); Horn v. Bates, 114 S.W. 763 ( Ky. 1908 ); Cockrell v. Colson, 116 S.W. 775 ( Ky. 1909 ); Louisville & N. R. Co. v. Taylor, 138 Ky. 437 , 128 S.W. 325, 1910 Ky. LEXIS 89 ( Ky. 1910 ); Le Moyne v. Hays, 145 Ky. 415 , 140 S.W. 552, 1911 Ky. LEXIS 858 ( Ky. 1911 ); Nugent v. Mallory, 145 Ky. 824 , 141 S.W. 850, 1911 Ky. LEXIS 959 ( Ky. 1911 ); Bowling v. Breathitt Coal, Iron & Lumber Co., 134 Ky. 249 , 120 S.W. 317, 1909 Ky. LEXIS 388 ( Ky. 1909 ); Reynolds v. Binion, 177 Ky. 189 , 197 S.W. 641, 1917 Ky. LEXIS 563 ( Ky. 1917 ); Blythe v. Warner, 190 Ky. 104 , 226 S.W. 669, 1920 Ky. LEXIS 552 ( Ky. 1920 ).

When a party is in physical possession of any part of body of land to which he has good title, he is in possession of the whole of it, and may quiet title to any part of it. Williams v. Lowe, 175 Ky. 369 , 194 S.W. 342, 1917 Ky. LEXIS 323 ( Ky. 1917 ). See Turner v. Bowens, 180 Ky. 755 , 203 S.W. 749, 1918 Ky. LEXIS 155 ( Ky. 1918 ); Osborn v. Roberts, 186 Ky. 160 , 216 S.W. 359, 1919 Ky. LEXIS 181 ( Ky. 1919 ).

Possession of land through tenants will support an action to quiet title. Upchurch v. Sutton Bros., 142 Ky. 420 , 134 S.W. 477, 1911 Ky. LEXIS 211 ( Ky. 1911 ). See Sasseen v. Farmer, 179 Ky. 632 , 201 S.W. 39, 1918 Ky. LEXIS 276 ( Ky. 1918 ); Williams v. Thomas, 285 Ky. 776 , 149 S.W.2d 525, 1941 Ky. LEXIS 470 ( Ky. 1941 ).

Ejectment is the proper action against a person who is in actual possession and claims the land as his own and not an action to quiet title. Newsome v. Hamilton, 142 Ky. 5 , 133 S.W. 952, 1911 Ky. LEXIS 117 ( Ky. 1911 ). See Taylor v. Wilson, 182 Ky. 5 92 , 206 S.W. 865, 1918 Ky. LEXIS 408 ( Ky. 1918 ), modified, 183 Ky. 695 , 210 S.W. 670, 1919 Ky. LEXIS 571 ( Ky. 1919 ); Crawley v. Mackey, 283 Ky. 717 , 143 S.W.2d 171, 1940 Ky. LEXIS 402 ( Ky. 1940 ).

If defendant should take possession under invalid patents, plaintiffs would have a complete remedy by ejectment to oust him and recover possession. Childers v. York, 187 Ky. 332 , 218 S.W. 1027, 1920 Ky. LEXIS 123 ( Ky. 1920 ).

Legal title holder and possessor may sue to quiet title without reference to time when possession or title was acquired. Lauderbach v. Lewis, 214 Ky. 521 , 283 S.W. 973, 1926 Ky. LEXIS 385 ( Ky. 1926 ).

Where plaintiff and his servants climbed fences to get onto land, nailed notices on trees that property belonged to plaintiff, and remained on premises about two hours, plaintiff did not have possession sufficient to entitle him to maintain action under this section. Middlesboro Town & Land Co. v. Louisville & N. R. Co., 274 Ky. 756 , 120 S.W.2d 394, 1938 Ky. LEXIS 340 ( Ky. 1938 ).

Where the defendants in the action claimed the tract under a title different and hostile to the plaintiff’s title and not through or under the title and they made no attack on and did not seek to destroy any link in the plaintiff’s chain of title, merely traversing, it was necessary for the plaintiff to allege and prove possession and on failure to do so the action was properly dismissed. McGiboney v. Newman, 277 Ky. 835 , 127 S.W.2d 860, 1939 Ky. LEXIS 738 ( Ky. 1939 ).

One in possession of a tract of land claiming ownership under a deed with intention to possess it all is inconstructive actual possession of the land to the extent of the boundaries described in the deed, except such as may be in the actual possession of another. Calhoun v. Gayhart, 280 Ky. 170 , 132 S.W.2d 760, 1939 Ky. LEXIS 83 ( Ky. 1939 ).

A person who fences off property in the possession of another who claims either under paper title or adverse possession merely becomes a trespasser and does not deprive the other of the possession necessary to maintain an action to quiet title. Conyers' Adm'x v. McGee, 294 Ky. 382 , 171 S.W.2d 450, 1943 Ky. LEXIS 436 ( Ky. 1943 ).

9.—Waiver by Defendant.

Although plaintiff in a quiet title action is not in possession, where defendant asserts title in himself and asks for affirmative relief, the question of title may be settled. Vance v. Gray, 142 Ky. 267 , 134 S.W. 181, 1911 Ky. LEXIS 179 ( Ky. 1911 ). See Hall v. Hall, 149 Ky. 817 , 149 S.W. 1128, 1912 Ky. LEXIS 726 ( Ky. 1912 ); Clark's Heirs v. Boyd, 152 Ky. 234 , 153 S.W. 227, 1913 Ky. LEXIS 631 ( Ky. 1913 ); Lipps v. Turner, 164 Ky. 626 , 176 S.W. 42, 1915 Ky. LEXIS 435 ( Ky. 1915 ); Sackett v. Jeffries, 182 Ky. 696 , 207 S.W. 454, 1919 Ky. LEXIS 398 ( Ky. 1919 ); Cooper v. Williamson, 191 Ky. 213 , 229 S.W. 707, 1921 Ky. LEXIS 292 ( Ky. 1921 ); Taylor v. Arndell, 192 Ky. 249 , 232 S.W. 658, 1921 Ky. LEXIS 49 ( Ky. 1921 ); Burger v. Allen, 211 Ky. 742 , 277 S.W. 1032, 1925 Ky. LEXIS 962 ( Ky. 1925 ); Bennett v. Parsons, 226 Ky. 782 , 11 S.W.2d 935, 1928 Ky. LEXIS 173 ( Ky. 1928 ); Combs v. Jones, 244 Ky. 512 , 51 S.W.2d 672, 1932 Ky. LEXIS 469 ( Ky. 1932 ); Whitaker v. Shepherd, 280 Ky. 713 , 134 S.W.2d 604, 1939 Ky. LEXIS 199 ( Ky. 1939 ); Martt v. McBrayer, 292 Ky. 479 , 166 S.W.2d 823, 1942 Ky. LEXIS 89 ( Ky. 1942 ); Hopper v. McBurney, 293 Ky. 31 , 168 S.W.2d 374, 1943 Ky. LEXIS 565 ( Ky. 1943 ); Smith v. Williamson, 306 Ky. 467 , 208 S.W.2d 503, 1948 Ky. LEXIS 596 ( Ky. 1948 ); Waller v. Parsley, 312 Ky. 758 , 229 S.W.2d 741, 1950 Ky. LEXIS 752 ( Ky. 1950 ).

Where defendants never insisted upon actual possession as a prerequisite to plaintiff’s right to sue and issues were joined on the claim of possession made by each, proof heard and the case submitted, defendants were deemed to have waived any objection to the action on the ground that plaintiff was not in actual possession. Kypadel Coal & Lumber Co. v. Millard, 165 Ky. 432 , 177 S.W. 270, 1915 Ky. LEXIS 554 ( Ky. 1915 ).

Defendants in quiet title suit waived the question of possession when by answer and counterclaim they asserted superior title in themselves and sought to have same quieted. Frasure v. Northern Coal & Coke Co., 189 Ky. 574 , 225 S.W. 479, 1920 Ky. LEXIS 477 ( Ky. 1920 ).

Defendant was held to have waived question of possession. Johnson v. Collins, 209 Ky. 82 , 272 S.W. 47, 1925 Ky. LEXIS 430 ( Ky. 1925 ).

Where defendants asserted title to land by answer and counterclaim and seek affirmative relief, the court will consider the entire evidence and pass on the question of superiority of title, even though plaintiff did not have possession required to maintain action. Strunks Lane & Jellico Mountain Coal & Coke Co. v. Anderson, 276 Ky. 576 , 124 S.W.2d 779, 1939 Ky. LEXIS 552 ( Ky. 1939 ).

Ordinarily, both paper title and possession must be shown by the plaintiff in an action to quiet title, but where defendant asserts title by counterclaim and asks affirmative relief, the courts will pass upon the question of inferiority of title notwithstanding plaintiff’s failure to show actual possession. Justice v. Staton, 291 Ky. 179 , 163 S.W.2d 471, 1942 Ky. LEXIS 206 ( Ky. 1942 ). See Spencer v. Steele, 296 Ky. 3 , 175 S.W.2d 1008, 1943 Ky. LEXIS 756 ( Ky. 1943 ).

To maintain successfully an action to quiet title, it is necessary for the plaintiff to allege and prove title and possession, except proof of possession by plaintiff is waived by defendant and the case will be decided on its merits if defendant asserts title by answer and counterclaim and seeks to have his title quieted. Davis v. Daniel, 295 Ky. 717 , 175 S.W.2d 501, 1943 Ky. LEXIS 340 ( Ky. 1943 ).

An answer to a complaint seeking relief under this section which consists of a denial, an allegation of title by adverse possession under color of title and a claim of estoppel by agreement as to the disputed line but which does not seek affirmative relief by counterclaim does not waive the requirement that plaintiff have actual possession at the time the complaint is filed. Haws v. Short, 304 S.W.2d 924, 1957 Ky. LEXIS 289 ( Ky. 1957 ).

The requisite proof of possession is waived, generally, when defendant asserts ownership by counterclaim; however, the waiver of proof of possession does not waive the required proof of title by plaintiff in quiet title action. Kephart v. Rucker, 379 S.W.2d 244, 1964 Ky. LEXIS 229 ( Ky. 1964 ).

10.—Exceptions.

Plaintiff had a right to maintain an action under this section where neither he nor the defendant had actually occupied or inclosed the disputed strip and it was within the true boundary of plaintiff’s record title. Weaver v. Bates, 33 S.W. 1118, 17 Ky. L. Rptr. 1218 (1896).

Remaindermen can maintain an action to quiet title during the life of the original life tenant who conveys the fee although they are out of possession, since the lapse of time would rob them of the sources of evidence by which to establish their disputed claim and in this class of cases the possession of the life tenant is the possession of the remaindermen. Alley v. Alley, 91 S.W. 291, 28 Ky. L. Rptr. 1073 , 1906 Ky. LEXIS 349 (Ky. Ct. App. 1906).

This section did not apply and it was not necessary to show possession of the land where plaintiff’s deed to mineral rights was on record and defendants attempted to convert the mineral rights to their use by conveyances. Eversole v. Virginia Iron, Coal & Coke Co., 122 Ky. 649 , 92 S.W. 593, 29 Ky. L. Rptr. 151 , 1906 Ky. LEXIS 84 ( Ky. 1906 ).

Where action is to prevent the appropriation and conversion of plaintiff’s own title, it is not necessary to allege or prove possession, but where the defendant is casting a cloud on the plaintiff’s title by claiming the property under a different and hostile title and not through and under the plaintiff’s own title, then it is necessary to allege and prove possession. McGiboney v. Newman, 277 Ky. 835 , 127 S.W.2d 860, 1939 Ky. LEXIS 738 ( Ky. 1939 ).

In action to quiet title to uninclosed forest land of which plaintiffs had constructive possession, fact that defendants had fenced off land did not deprive plaintiffs of such possession as was necessary to maintain action to quiet title, defendants being mere trespassers. Calhoun v. Gayhart, 280 Ky. 170 , 132 S.W.2d 760, 1939 Ky. LEXIS 83 ( Ky. 1939 ).

Where both parties in action to quiet title had possession of their respective farms, and both claimed title to the four (4) acres in dispute, this four acres being uninclosed forest land between the lines, the possession of the land in controversy, not being actually occupied, attached to the better title. Calhoun v. Gayhart, 280 Ky. 170 , 132 S.W.2d 760, 1939 Ky. LEXIS 83 ( Ky. 1939 ).

Action to quiet title may be maintained by an owner not in possession when effort is made by defendant to seize and fraudulently appropriate particular title under which plaintiff claims. Williams v. Thomas, 285 Ky. 776 , 149 S.W.2d 525, 1941 Ky. LEXIS 470 ( Ky. 1941 ).

Where defendant had seized and fraudulently appropriated particular title under which plaintiff claimed, plaintiff, in that event, could maintain the quiet title action by showing ownership of the land, although he could not show actual possession. Spencer v. Steele, 296 Ky. 3 , 175 S.W.2d 1008, 1943 Ky. LEXIS 756 ( Ky. 1943 ).

11.Jurisdiction and Venue.

In quiet title action under this section where defendants’ claim arose by virtue of mortgage executed by them to plaintiff and the only relief sought was for fraud and deceit practiced upon plaintiff by defendants, defendants’ claim was not hostile to plaintiff but was a transitory action which must be brought in the county in which some of the defendants who may be properly joined as such reside or are summoned and not in the county where the land was located. Shouse v. Taylor, 115 Ky. 22 , 72 S.W. 324, 24 Ky. L. Rptr. 1842 , 1903 Ky. LEXIS 65 ( Ky. 1903 ).

An action to quiet title under this section must be brought in the county where the land or some part of it lies. Daniel v. New Era Land Co., 137 Ky. 535 , 126 S.W. 108, 1910 Ky. LEXIS 596 ( Ky. 1910 ).

When a tract of land lies partly in two (2) or more counties, the aggrieved party affecting any part of it may go into the courts of any one of the counties in which any part of that tract may lie, since the action is authorized for injury to the land as an entity. Collins v. Adams, 207 Ky. 42 , 268 S.W. 828, 1925 Ky. LEXIS 9 ( Ky. 1925 ).

Where no action was pending in any court regarding liability for inheritance tax, the circuit court of the county in which property was located had jurisdiction in a quiet title action to quiet title to property against which inheritance tax lien was being asserted by the Commonwealth. Commonwealth v. Van Meter, 301 Ky. 132 , 190 S.W.2d 668, 1945 Ky. LEXIS 675 ( Ky. 1945 ).

Pursuant to KRS 452.400 , 411.120 , providing expansive and general jurisdiction over matters involving real property, the circuit court had jurisdiction over an inverse condemnation action seeking to recover damages that resulted from the filing of an invalid lien under KRS 342.770 . A determination had been made in the underlying workers’ compensation matter that the property owner was not the employer, and the circuit court did not invade the province of the administrative agency. Commonwealth v. County of Hardin Planning & Dev. Comm'n, 390 S.W.3d 840, 2012 Ky. App. LEXIS 240 (Ky. Ct. App. 2012).

12.Pleadings and Proof.

To prevent a multiplicity of suits and the creation of a cloud upon plaintiff’s title, the court had jurisdiction of a suit to enjoin register of land office from issuing patents to the defendants where the petition stated an equitable action, although it did not state a cause of action under this section, since it did not allege possession. Asher v. Uhl, 122 Ky. 114 , 87 S.W. 307, 93 S.W. 29, 27 Ky. L. Rptr. 938 , 29 Ky. L. Rptr. 396 , 1905 Ky. LEXIS 63 ( Ky. 1905 ).

Under this section, one suing to quiet title to land must not only allege and prove ownership of the land to which he desires the title to be quieted but he must also allege and prove his possession. Fields v. Couch, 169 Ky. 554 , 184 S.W. 894, 1916 Ky. LEXIS 736 ( Ky. 1916 ). See Leach v. Taylor, 206 Ky. 28 , 266 S.W. 894, 1924 Ky. LEXIS 265 ( Ky. 1924 ); Boreing v. Garrard, 210 Ky. 135 , 275 S.W. 374, 1925 Ky. LEXIS 638 ( Ky. 1925 ); Hatton v. Williams' Ex'r, 259 Ky. 548 , 82 S.W.2d 774, 1935 Ky. LEXIS 342 ( Ky. 1935 ); Madden v. Bond, 269 Ky. 31 , 106 S.W.2d 95, 1937 Ky. LEXIS 553 ( Ky. 1937 ).

In an action to quiet title, where defendant elects to try title by alleging that he has title, and asking by way of counterclaim that his title be quieted, he only waives the question of possession, and plaintiffs have the burden of proving their title. Southern Oil Co. v. Holman, 196 Ky. 250 , 244 S.W. 762, 1922 Ky. LEXIS 510 ( Ky. 1922 ).

In an action to quiet title where no counterclaim is set up, plaintiff must allege and, if denied, prove both title and possession. Southern Oil Co. v. Holman, 196 Ky. 250 , 244 S.W. 762, 1922 Ky. LEXIS 510 ( Ky. 1922 ). See Crawley v. Mackey, 283 Ky. 717 , 143 S.W.2d 171, 1940 Ky. LEXIS 402 ( Ky. 1940 ).

Action in which plaintiff did not claim any possession of the land in herself but alleged defendant was in possession, though tried in equity, constituted an action in ejectment and not an action to quiet title under this section. Ogle v. Cole's Ex'rs, 221 Ky. 726 , 299 S.W. 566, 1927 Ky. LEXIS 798 ( Ky. 1927 ).

Action and counterclaim were properly dismissed where both parties failed to establish title to land sued for. Nicholson v. Shear, 225 Ky. 53 , 7 S.W.2d 516, 1928 Ky. LEXIS 702 ( Ky. 1928 ).

Plaintiff failed to establish his right to land and, since defendants merely denied the title asserted by plaintiff without seeking any affirmative relief in respect to their title and established adverse possession, court was not authorized to adjudge a superiority of title in the plaintiff under the rule of waiver. Bentley v. Kentland Coal & Coke Co., 242 Ky. 511 , 46 S.W.2d 1077, 1932 Ky. LEXIS 308 ( Ky. 1932 ).

Plaintiff who neither pleaded nor proved any sort of possession and who failed to trace a record title back to the Commonwealth or to a common source was not entitled to quiet title against defendants establishing title by adverse possession. Bentley v. Kentland Coal & Coke Co., 242 Ky. 511 , 46 S.W.2d 1077, 1932 Ky. LEXIS 308 ( Ky. 1932 ).

In quiet title action, if the defendants do not set up any counterclaim asking for affirmative relief, the plaintiff must prove title and actual possession of the land. Warfield Natural Gas Co. v. Danks, 271 Ky. 452 , 112 S.W.2d 674, 1938 Ky. LEXIS 9 ( Ky. 1938 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

Where action was filed as a common-law action in ejectment and defendant asserted title to land in himself, it was proper to transfer action to equity on plaintiff’s motion and proceed with action as to quiet title under this section. Woods v. Garrard, 282 Ky. 233 , 138 S.W.2d 325, 1940 Ky. LEXIS 143 ( Ky. 1940 ).

It is fundamental that in an action to quiet title the plaintiff must allege and prove both title and possession. Noland v. Wise, 259 S.W.2d 46, 1953 Ky. LEXIS 922 ( Ky. 1953 ).

13.—Pleadings.

A complaint seeking relief under this section must allege that the plaintiff had actual possession of the premises at the time the complaint was filed. Haws v. Short, 304 S.W.2d 924, 1957 Ky. LEXIS 289 ( Ky. 1957 ).

14.— —Sufficient.

A petition for quieting title stating plaintiffs are the owners and in the possession of a certain described boundary of land in a named county, that defendants are interfering with them in the quiet enjoyment of the use and occupation of the land by threatening to institute vexatious suits of trespass and ejectment for said possession, and by threatening to commit trespasses on the land under a claim of right states a cause of action and demurrer should be overruled. Boyd v. Clarke, 59 S.W. 511, 22 Ky. L. Rptr. 1018 (1900).

Allegations of petition to quiet title that plaintiff was in actual possession of and owned the land described, that defendant had been setting up claim to said land and was now doing so, that he was giving it out in speeches that he was the owner of said land, that he had entered upon said land and trespassed thereon by cutting and sawing valuable oak trees standing and growing on the land and was continuing to do so and was threatening to cut and destroy and convert to his own use more of said trees and was doing all of said acts unlawfully and without right and that by all of said claims and acts the defendant was clouding plaintiff’s title to the land and injuring him in the quiet possession of same sufficiently stated facts showing defendant was setting up claim of right hostile to the right of plaintiff. Campbell v. Campbell, 64 S.W. 458, 23 Ky. L. Rptr. 869 (1901).

Under the general allegation in a quiet title action that plaintiff was the owner and entitled to possession of the land, proof of adverse possession was competent without specific pleading to that effect. Conyers' Adm'x v. McGee, 294 Ky. 382 , 171 S.W.2d 450, 1943 Ky. LEXIS 436 ( Ky. 1943 ).

Where plaintiff alleged in its amended and substituted petition to quiet title that it had both the legal title to and possession of the land in litigation and defendant was setting up an adverse claim to the property and the verified copy of the deed on which plaintiff relied was attached as Exhibit A and it confirmed the allegations of the petition, the petition stated a cause of action. Louisville & N. R. Co. v. Smith, 251 S.W.2d 855, 1952 Ky. LEXIS 937 ( Ky. 1952 ).

15.— —Insufficient.

Where in suit to quiet title under this section plaintiffs failed to allege that they were in possession of the property, the court should have sustained demurrer but given them leave to amend if they desired. Goff v. Lowe, 80 S.W. 219, 25 Ky. L. Rptr. 2176 (1904).

Petition which did not allege that defendants were still claiming the land or that plaintiff was in possession of it was insufficient under this section to remove a cloud from the title. Goosling v. Chapman, 147 Ky. 491 , 144 S.W. 380, 1912 Ky. LEXIS 276 ( Ky. 1912 ).

If plaintiff had been content to have averred that he was the owner of the land and in its actual possession, and that the defendant was wrongfully claiming to be the owner of the oil and gases therein which were a portion of the land, and to have designated the nature of the defendant’s claim as nearly as practicable without describing its chain of title but so as to show the claim was hostile and adverse to plaintiff’s title, a sufficient cause of action would have been stated under this section; but when he went further and showed defendant claimed under his grantor without showing his own deed was prior in time and therefore superior, the petition was insufficient to state a cause of action. Arnett v. Elkhorn Coal Corp., 191 Ky. 706 , 231 S.W. 219, 1921 Ky. LEXIS 369 ( Ky. 1921 ).

Petition to quiet title as against heir or original owners was insufficient, as against general demurrer, for not alleging plaintiff obtained title from or through original owners. Pendley v. Lee, 233 Ky. 372 , 25 S.W.2d 1030, 1930 Ky. LEXIS 571 ( Ky. 1930 ).

Petition alleging that plaintiffs “are seized in fee simple” of the land in question was not a sufficient allegation of actual possession, and demurrer was properly sustained. Smith v. Williamson, 306 Ky. 467 , 208 S.W.2d 503, 1948 Ky. LEXIS 596 ( Ky. 1948 ).

16.— —Answers and Counterclaims.

A defendant, in a suit to quiet title, may set up mortgages and other liens, the claims, if valid, being enforceable and, if spurious, being a cloud on the title. Sebree v. Johnson's Committee, 99 S.W. 340, 30 Ky. L. Rptr. 681 (1907).

Where defendants seek affirmative relief by their pleading, although it is styled merely an answer, it must be taken to be their answer and counterclaim. Bennett v. Parsons, 226 Ky. 782 , 11 S.W.2d 935, 1928 Ky. LEXIS 173 ( Ky. 1928 ). See Wood's Guardian v. Inter-Southern Life Ins. Co., 224 Ky. 579 , 6 S.W.2d 712, 1928 Ky. LEXIS 643 (Ky. Ct. App. 1928); Crawley v. Mackey, 283 Ky. 717 , 143 S.W.2d 171, 1940 Ky. LEXIS 402 ( Ky. 1940 ).

Where defendant in quiet title action stated in his answer that he ought to recover the land from plaintiff because he himself was also the owner of it, and he closed his prayer in the usual way for “all proper relief,” it was sufficient to entitle court to adjudge him the owner of the land if evidence justified it. Hopkins v. Slusher, 266 Ky. 300 , 98 S.W.2d 932, 1936 Ky. LEXIS 657 ( Ky. 1936 ).

Where the plaintiff in his quiet title action is not in possession, the case will be decided on its merits if the defendant asserts title by answer and counterclaim and asks that his title be quieted, but this rule has no application where the defendant merely denies plaintiff’s title and possession and asserts his own title but does not ask for affirmative relief. McGiboney v. Newman, 277 Ky. 835 , 127 S.W.2d 860, 1939 Ky. LEXIS 738 ( Ky. 1939 ).

17.—Proof.

In action to quiet title, it was immaterial that plaintiff would be inconvenienced by loss of property. Gibson v. Madden, 229 Ky. 273 , 17 S.W.2d 263, 1929 Ky. LEXIS 772 ( Ky. 1929 ).

Where starting point in patent description was described as being same as starting point in earlier patent to another, evidence as to long-continued recognition of certain point as starting point of first patent was of strong evidentiary value in determining starting point in second patent. Smith v. Slusher, 291 Ky. 600 , 165 S.W.2d 38, 1942 Ky. LEXIS 272 ( Ky. 1942 ).

Where the original action was a forcible entry action by a lessee against his lessor and the lessor then filed a quiet title action against the lessee and the two (2) actions were consolidated, neither party could achieve title because of the failure of proof on the part of his adversary so, where there was not sufficient evidence to support a judgment quieting title in either party, the lower court properly dismissed the forcible entry action but erred in finding in the quiet title suit that lessor had fee-simple title. Frasure v. Bull, 307 Ky. 726 , 212 S.W.2d 280, 1948 Ky. LEXIS 822 ( Ky. 1948 ).

In determining boundaries natural and permanent objects control courses and distances. Poff v. Richardson, 312 Ky. 237 , 227 S.W.2d 175, 1950 Ky. LEXIS 1111 (Ky. Ct. App. 1950).

18.— —Burden.

Where defendants filed counterclaim to an action in trespass asking that title be quieted in them, the burden was on them to establish title in themselves. Hatton v. Williams' Ex'r, 259 Ky. 548 , 82 S.W.2d 774, 1935 Ky. LEXIS 342 ( Ky. 1935 ).

19.— —Title.

In action to quiet title in which defendant’s counterclaim waived proof of possession, plaintiff must nevertheless prove title before he can challenge defendant’s right to cut timber. Moren v. Houston, 222 Ky. 785 , 2 S.W.2d 667, 1928 Ky. LEXIS 260 ( Ky. 1928 ).

Where both parties to a quiet title action claimed a common source, it was not necessary for plaintiff to prove title further back than common source. Jones v. Johnson, 223 Ky. 478 , 3 S.W.2d 1064, 1928 Ky. LEXIS 353 ( Ky. 1928 ), limited, Brown v. Harvey Coal Corp., 49 F.2d 434, 1931 U.S. Dist. LEXIS 1312 (D. Ky. 1931 ).

Defendant’s rights to land emanated exclusively from description in deed, not from statements in collateral writings. Friel v. Grayson Road Corp., 226 Ky. 794 , 11 S.W.2d 943, 1928 Ky. LEXIS 176 ( Ky. 1928 ).

A judgment relied on by defendant to establish paper title did not bind plaintiffs nor any of their ancestors or predecessors in title where none of them were a party to the suit and it was insufficient to establish paper title. Combs v. Jones, 244 Ky. 512 , 51 S.W.2d 672, 1932 Ky. LEXIS 469 ( Ky. 1932 ).

To maintain an action quia timet, one must show a possessory title to land involved or paper title back to Commonwealth or to a common grantor through whom both parties claim. Hatton v. Williams' Ex'r, 259 Ky. 548 , 82 S.W.2d 774, 1935 Ky. LEXIS 342 ( Ky. 1935 ).

One claiming title under an execution sale must ordinarily introduce in evidence the judgment on which the execution was issued; but where the judgment has be replevied, it is sufficient to introduce the replevin bond. Kentucky River Coal Corp. v. Culton, 276 Ky. 418 , 124 S.W.2d 82, 1938 Ky. LEXIS 555 ( Ky. 1938 ).

In order to establish title by adverse possession, plaintiff must show how authority and control was exercised over land, what use was made of it, what portions were fenced, whether timber was cut, whether buildings were erected and what kind, whether any portion was cultivated or rented, and whether any adverse claims were made. Strunks Lane & Jellico Mountain Coal & Coke Co. v. Anderson, 276 Ky. 576 , 124 S.W.2d 779, 1939 Ky. LEXIS 552 ( Ky. 1939 ).

20.—Variance.

Court erred in requiring plaintiffs to elect whether they would prosecute their action for damages for withholding possession of part of land by defendant or whether they would seek to remove the cloud from their title by cancellation of easement conveyed to defendant by owner of homestead interest only. Tudor v. Kentucky Utilities Co., 282 Ky. 277 , 138 S.W.2d 473, 1940 Ky. LEXIS 163 ( Ky. 1940 ).

Where plaintiff, in action to quiet title, pleaded specifically record title only, and defendant did not enter a specific plea asserting his own title but merely pleaded a traverse, the issue was confined to the one question of plaintiff’s record title and plaintiff could not recover on basis of adverse possession even though he proved adverse possession. Gilreath v. Stephens, 301 Ky. 689 , 192 S.W.2d 966, 1946 Ky. LEXIS 551 ( Ky. 1946 ).

Where defendant’s pleading in a quiet title action by mistake set out description of a tract of land not involved in the controversy and in his proof the defendant introduced the correct deed covering the land adjoining the farm of plaintiff, a judgment for defendant quieting title to the land described in the pleading had to be reversed for the sole reason there was a fatal variance between defendant’s pleading and proof. Waller v. Parsley, 312 Ky. 758 , 229 S.W.2d 741, 1950 Ky. LEXIS 752 ( Ky. 1950 ).

21.Limitations and Laches.

Where 15 years had not elapsed from date of death of life tenant until action was instituted, the statute of limitations did not bar remaindermen from bringing suit to quiet title against vendees of life tenant who received only a title bond good against only those who signed it, although they had been in actual adverse possession for 17 years prior to the death of the life tenant. Belcher v. Polly, 106 S.W. 818, 32 Ky. L. Rptr. 623 (1908).

Where plaintiff sued to quiet title to property purchased more than 18 years previously at a tax sale and the property had been sold subsequently at an auditor’s sale and neither purchaser had possession nor was claiming under the adverse possession statute but were both claiming under record title from a common source, the only question was superiority of title and the five-year statute of limitations did not apply to the suit since a mere claim of title, even of record, will not start the statute. Kypadel Coal & Lumber Co. v. Millard, 165 Ky. 432 , 177 S.W. 270, 1915 Ky. LEXIS 554 ( Ky. 1915 ).

While a remainderman may bring an action to establish title when it is questioned during existence of life estate, he is not required to do so and the limitation does not commence to run against him until the termination of the life estate. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

In a suit by property owner against city to quiet title to property by removing the city’s tax lien therefrom, the plaintiff cannot plead affirmatively the statute of limitations running against the city’s tax claim where defense could be asserted in suits filed by the city to enforce the tax claims. Title Ins. & Trust Co. v. Paducah, 275 Ky. 392 , 121 S.W.2d 932, 1938 Ky. LEXIS 440 ( Ky. 1938 ).

22.Purchaser with Prior Equity.

The better right as between two (2) innocent purchasers for value of the same land must be determined by the application of equitable principles and the one with the prior equity has the better right so, where petition by heirs for sale and division of real estate described the property as tracts three (3) and four (4) but each of the descriptions encompassed the same land, the purchaser of tract three, which was sold first, who took possession and thereafter erected valuable improvements must prevail in a quiet title suit brought by the purchaser of tract four, sold subsequent to tract three, who did not assume possession or expend any money except the purchase price. Childers v. Justice, 313 Ky. 64 , 230 S.W.2d 98, 1950 Ky. LEXIS 805 ( Ky. 1950 ).

23.Jury.

Where an action was brought by petition in equity under this section alleging plaintiff had both the legal title and possession of the land in controversy and that defendants were setting up claim thereto, wherein defendants answered and counterclaimed, denying plaintiff’s title or possession and alleging that the defendants owned the land and also pleading adverse possession for many years and champerty, the action was properly brought in equity, although the issues made by the defendants were essentially the same as they would have been had the action been brought on the ordinary side of the docket to recover the land as in ejectment and the defendant would have been entitled by timely motion to transfer the action to the ordinary docket where they could have demanded a jury trial; but failure to file a motion for two and one-half years was not within a reasonable time and was a waiver of the right to demand a jury trial. Chenault v. Eastern Kentucky Timber & Lumber Co., 119 Ky. 170 , 83 S.W. 552, 26 Ky. L. Rptr. 1078 , 1904 Ky. LEXIS 156 ( Ky. 1904 ).

Where a petition asking for the possession of land and the quieting of plaintiff’s title by an amendment averred that the defendant was in possession, the action was in ejectment and one at law, although the form of the petition was in equity and the defendant could have had the case transferred to the common-law docket by having seasonably moved that it be done; but his failure to do so was a waiver of the right to transfer and a consent for the judge to try the case without intervention of the jury and he could not contend it was error to deprive the defendants of the right of a jury trial. Wilxoc v. Lee, 264 Ky. 65 , 94 S.W.2d 294, 1936 Ky. LEXIS 276 ( Ky. 1936 ).

In a purely equitable action to quiet title, the chancellor may direct an issue of fact to be tried by a jury, and the verdict will not be binding on him but only advisory. Merritt v. Palmer, 289 Ky. 141 , 158 S.W.2d 163, 1942 Ky. LEXIS 514 ( Ky. 1942 ).

The chancellor, after hearing proof, on his own motion transferred case to ordinary docket for a jury to determine location of division line and beginning corners. This amounted to granting an issue out of chancery, which the court had authority to do on his own motion. Merritt v. Palmer, 289 Ky. 141 , 158 S.W.2d 163, 1942 Ky. LEXIS 514 ( Ky. 1942 ).

Where there was a failure in plaintiff’s paper title and he did not show title by adverse possession, defendant who counterclaimed, claiming paper title and title by adverse possession and who established title by adverse possession, was entitled to a directed verdict in the quiet title action. Stearns Coal & Lumber Co. v. Douglas, 299 Ky. 314 , 185 S.W.2d 385, 1944 Ky. LEXIS 1045 ( Ky. 1944 ).

In an action in equity to quiet title, the verdict of the jury is not binding on the court but is merely advisory and may be wholly disregarded by the court. Poff v. Richardson, 312 Ky. 237 , 227 S.W.2d 175, 1950 Ky. LEXIS 1111 (Ky. Ct. App. 1950).

Since suits to quiet title are and have historically been properly triable in equity before a chancellor, it is within the discretion of the court whether questions of fact will be submitted to the jury and the Rules of Civil Procedure have not changed the method of trial of equitable issues. Gibson v. Central Kentucky Natural Gas Co., 321 S.W.2d 256, 1958 Ky. LEXIS 17 ( Ky. 1958 ).

The adjudication of title to land, such as quieting title, is peculiarly one for a court of equity, and the issues are not triable by a jury. Tarter v. Medley, 356 S.W.2d 255, 1962 Ky. LEXIS 94 ( Ky. 1962 ).

24.Judgment.

A judgment in a quiet title action brought in a state court under this section must embrace all claims to the title to the land which could have been asserted by any party thereto and will bind and estop all the parties to the suit. Davis v. Planters' Trust Co., 196 F. 970, 1912 U.S. Dist. LEXIS 1610 (D. Ky. 1912 ).

Although judgment quieting title cannot be enforced because of 15-year limitation, it is still effectual as evidence of the facts which it determined. Creech v. Jenkins, 276 Ky. 163 , 123 S.W.2d 267, 1938 Ky. LEXIS 540 ( Ky. 1938 ).

Judgment quieting title estops defendant from claiming title by adverse possession so long as judgment remains in effect, although no writ of possession was issued. Creech v. Jenkins, 276 Ky. 163 , 123 S.W.2d 267, 1938 Ky. LEXIS 540 ( Ky. 1938 ).

Where claims of both parties were somewhat unsatisfactory and plaintiff failed to show possession, court was justified in awarding title to defendant on counterclaim. Justice v. Staton, 291 Ky. 179 , 163 S.W.2d 471, 1942 Ky. LEXIS 206 ( Ky. 1942 ).

Where defendant, in action of ejectment, counterclaimed, asserting title in himself, judgment against him on the counterclaim was res adjudicata as to sources of title relied upon by defendant in that action but did not preclude defendant, in subsequent action to quiet title, from setting up new source of title acquired since first action. Hopper v. McBurney, 293 Ky. 31 , 168 S.W.2d 374, 1943 Ky. LEXIS 565 ( Ky. 1943 ).

Failure to prove possession as required by this section as a condition precedent to the maintenance of an action to quiet title was waived by appellant’s filing of a counterclaim asking that he be adjudged the owner by adverse possession and that his title be quieted and, since both parties were then seeking adjudication of title, it was the duty of the court to decide the controversy by determining merely which had the superior title and when plaintiff alleged and proved a title vested in him by an apparently valid deed and defendant made no attempt to prove title in himself by adverse possession or otherwise, judgment determining plaintiff had superior title was not in error and plaintiff was not required to prove a title deducible from the Commonwealth or a common source. Goins v. Catron, 300 Ky. 583 , 190 S.W.2d 322, 1945 Ky. LEXIS 635 ( Ky. 1945 ).

25.Federal Courts.

A state could regulate and protect individual rights to her soil and declare what would form a cloud over titles and, having so declared, the courts of the United States, by removing such clouds, were only applying an old practice to a new equity created by the Legislature. Clark v. Smith, 38 U.S. 195, 10 L. Ed. 123, 1839 U.S. LEXIS 429 (1839), distinguished and extended in Wickliffe v. Owings, 58 U.S. (17 How.) 47, 15 L. Ed. 44, 1854 U.S. LEXIS 492 (1855) (decided under prior law).

Law that provided that any person who had both legal title and possession of land could institute suit against any other person setting up a claim thereto and, if complainant was able to establish his title, the defendant was decreed to have released his claim and was required to pay the costs or if defendant should have disclaimed all title and have offered to give release the complainant was required to pay all costs, having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed was substantially consistent with the ordinary modes of proceeding on the chancery side of the federal courts, no reasons existed why it should not have been pursued in the same form as in the state courts. Clark v. Smith, 38 U.S. 195, 10 L. Ed. 123, 1839 U.S. LEXIS 429 (1839), distinguished and extended in Wickliffe v. Owings, 58 U.S. (17 How.) 47, 15 L. Ed. 44, 1854 U.S. LEXIS 492 (1855) (decided under prior law).

Where trustee in bankruptcy was made a party defendant to a quiet title action in a state court suit under this section and disclosed his claim to the land by an answer filed in the suit, he could not later file a suit in equity in federal court to determine that conveyance to plaintiff in the state court suit was a mortgage void as a preference, since the state court had jurisdiction to adjudicate his claim to the land because: (1) state courts are given concurrent jurisdiction with federal courts by the bankruptcy act, (2) the claim of the trustee must be heard before the state court can determine whether the title of plaintiff should be quieted as against the trustee in bankruptcy, and (3) comity between courts of concurrent jurisdiction requires that the court in which suit is last commenced shall yield to that in which a suit involving the same subject matter was first brought. Davis v. Planters' Trust Co., 196 F. 970, 1912 U.S. Dist. LEXIS 1610 (D. Ky. 1912 ).

Under the federal equity practice, as well as under this section, bill to remove cloud or to quiet title cannot be maintained without proof of possession and legal title nor where the plaintiff is not in possession of premises. Rowe v. Hill, 215 F. 518, 1914 U.S. App. LEXIS 1261 (6th Cir. Ky. 1914 ). See Morse v. South, 80 F. 206, 1897 U.S. App. LEXIS 2594 (C.C.D. Ky. 1897 ); Rowe v. Kidd, 259 F. 127, 1919 U.S. App. LEXIS 1608 (6th Cir. Ky. 1919 ).

26.Other Actions.

An action for an injunction restraining defendants from committing the acts alleged to be threatened and from continuing the conduct charged is authorized under KRS 381.230 as distinguished from an action under this section. Colony Coal & Coke Corp. v. Napier, 28 F. Supp. 76, 1939 U.S. Dist. LEXIS 2502 (D. Ky. 1939 ).

In ejectment action involving boundary dispute, it was unnecessary for defendants to pray that their title be quieted, since that consequence would inevitably result if they prevailed in their defense. Bingham v. Mills, 275 Ky. 552 , 122 S.W.2d 133, 1938 Ky. LEXIS 466 ( Ky. 1938 ).

In action for trespass, plaintiff cannot prove his own title by proving that his predecessor in title successfully defended actions brought by third parties to quiet title and to recover value of timber removed, where those actions did not require the defendant therein to prove the validity of his own title. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

Where real estate was sold at auction with understanding that purchaser would get clear title, and, after the sale, it was discovered that there were some restrictions as to use in the chain of title constituting a cloud on the title, the seller could not remove such cloud merely by inserting allegations as to adverse possession in his petition to an action against the purchaser to compel specific performance and asking that these clouds be removed by judgment of the court. Cox v. Birchfield, 299 Ky. 250 , 185 S.W.2d 256, 1945 Ky. LEXIS 406 ( Ky. 1945 ).

Cited in:

Sanders v. Adams, 278 Ky. 24 , 128 S.W.2d 223, 1939 Ky. LEXIS 386 ( Ky. 1939 ); Sublett v. Hall, 589 S.W.2d 888, 1979 Ky. LEXIS 299 ( Ky. 1979 ).

Research References and Practice Aids

Cross-References.

Limitation of actions, real estate, KRS 413.010 .

Trespass, liability joint and several, KRS 454.040 .

Kentucky Law Journal.

Lee, Working Part of a Mineral Estate as Adverse Possession of the Whole, 46 Ky. L.J. 67 (1957).

Kentucky Law Survey, Garvey and Dorris, Civil Procedure, 67 Ky. L.J. 489 (1978-1979).

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Northern Kentucky Law Review.

Greenwell, On the Constitutionality of Kentucky’s Mineral Deed Act, 13 N. Ky. L. Rev. 219 (1986).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint in Action to Quiet Title, Form 313.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Quieting Title, § 313.00.

1.In General.

No rule of common law nor any limitation found in the married woman’s act can possibly have the effect of defeating or abridging such an explicit and mandatory provision of Ky. Const., § 241 and a legislative enactment in compliance therewith that an action may be brought in every case of wrongful death. Robinson's Adm'r v. Robinson, 188 Ky. 49 , 220 S.W. 1074, 1920 Ky. LEXIS 229 ( Ky. 1920 ).

Statute providing adoptive parents may inherit from their adopted child only such property as the adopted child owned at death does not repeal this section relating to actions for death resulting from negligence. Jackson's Adm'x v. Alexiou, 223 Ky. 95 , 3 S.W.2d 177, 1928 Ky. LEXIS 289 ( Ky. 1928 ).

KRS 397.010 (now repealed) applies only to the title or devolution of property and has no application to the right to bring an action for wrongful death or to the disposition of the proceeds of such an action. McCallum v. Harris, 379 S.W.2d 438, 1964 Ky. LEXIS 238 ( Ky. 1964 ).

This section authorizes the personal representative of the deceased to prosecute the wrongful death action and provides for distribution of the amount recovered in such an action. Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

Where a widow, who was not properly acting in the status of the personal representative of her husband’s estate, did not fulfill the requirements of one who is authorized to bring a wrongful death action nor did she take necessary steps to remedy the deficiency, the trial court had no alternative but to direct a verdict against the widow. Everley v. Wright, 872 S.W.2d 95, 1993 Ky. App. LEXIS 170 (Ky. Ct. App. 1993).

2.Constitutionality.

Kentucky Constitution, § 241, and this section, which give a personal representative the right to bring an action against “person whose wrongful act caused death of his decedent,” do not violate United States Const., Amend. 14, providing that no state may deprive a person of property without due process of law. Owensboro & N. R. Co. v. Barclay's Adm'r, 102 Ky. 16 , 43 S.W. 177, 19 Ky. L. Rptr. 997 , 1897 Ky. LEXIS 81 ( Ky. 1897 ).

3.Purpose.

It is the purpose, policy, and provision of Ky. Const., § 241 and this section that the wrongdoer shall be liable for the whole damage caused by his wrongful act. Whitney Transfer Co. v. McFarland, 283 Ky. 200 , 138 S.W.2d 972, 1940 Ky. LEXIS 270 ( Ky. 1940 ).

4.Construction.

A right of action for wrongfully causing death did not exist at common law, but is a right given solely by statute. Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671 , 117 S.W. 280, 1909 Ky. LEXIS 244 ( Ky. 1909 ). See Stewart's Administratrix v. Bacon, 253 Ky. 748 , 70 S.W.2d 522, 1934 Ky. LEXIS 730 (Ky. Ct. App. 1934).

There are two (2) statutes in this state giving the right to maintain an action for wrongful death: this section, authorizing an action by decedent’s personal representative for death through negligence or any other wrongful act, and KRS 411.150 , giving the right of action to a widow and minor children (now children under 18) of a man killed by the use of deadly weapons where such killing was not done in self-defense, and these statutes are supplementary, although they were originally complementary. Sturgeon v. Baker, 312 Ky. 338 , 227 S.W.2d 202, 1950 Ky. LEXIS 638 ( Ky. 1950 ).

In the context of the statute as a whole, “prosecute” necessarily means to commence and carry out a legal action, and the statute does not accord any benefit of the recovery to the personal representative; the right to bring an action is not always tantamount to the right to benefit from that action. Pete v. Anderson, 413 S.W.3d 291, 2013 Ky. LEXIS 588 ( Ky. 2013 ).

Under the plain language of the statute, the cause of action “belongs” to the beneficiaries of the wrongful death claim. Pete v. Anderson, 413 S.W.3d 291, 2013 Ky. LEXIS 588 ( Ky. 2013 ).

5.Application.

Under this section, there may be a recovery for death by ordinary negligence of the superior servant engaged in the same employment. Southern R. Co. v. Otis' Adm'r, 78 S.W. 480, 25 Ky. L. Rptr. 1686 (1904).

This section which follows Ky. Const., § 241, is remedial, and should be liberally construed to effectuate its objects, and it applies no less to an injury inflicted by an overt act than to those resulting from the neglect of a legal duty. Randolph's Adm'r v. Snyder, 139 Ky. 159 , 129 S.W. 562, 1910 Ky. LEXIS 19 ( Ky. 1910 ).

This section confers a right of action for death from negligence while operating a vessel on high seas. Southern P. Co. v. De Valle Da Costa, 190 F. 689, 1911 U.S. App. LEXIS 3794 (1st Cir. Mass. 1911).

Kentucky Constitution, § 241 and this section were intended to and do confer a right to sue for damages in every case where death results from injury inflicted by negligence or wrongful act except only where, under the very provisions of these enactments, an action is impossible because the responsible party is also the sole beneficiary of any possible recovery. Bays v. Cox' Adm'r, 312 Ky. 827 , 229 S.W.2d 737, 1950 Ky. LEXIS 750 ( Ky. 1950 ).

This section does not authorize an action on behalf of the estate, but on behalf of the individual beneficiaries. Citizens State Bank v. Seaboard S. R., Inc., 803 S.W.2d 585, 1991 Ky. App. LEXIS 13 (Ky. Ct. App. 1991).

Punitive damages were recoverable where an employer was not an agent of the city, and thus did not qualify as an entity of local government, and evidence of gross negligence existed, specifically; that the employer misrepresented the situation to the Department of Highways in order to circumvent the permit process, that it changed the original detour route without notifying the proper entities, that no traffic control plan was implemented, that there were no advance warning signs at the work zone, that improper barricades were placed at the ends of the work zone, and that the employer left only 90 feet of buffer zone between the barricades and the trailer, when industry standards required at least two hundred twenty (220) feet. Phelps v. Louisville Water Co., 103 S.W.3d 46, 2003 Ky. LEXIS 85 ( Ky. 2003 ).

6.—Torts.

This section is confined to actions for death caused by torts, and not by reason of breach of contract. Dice's Adm'r v. Zweigart's Adm'r, 161 Ky. 646 , 171 S.W. 195, 1914 Ky. LEXIS 130 ( Ky. 1914 ) ( Ky. 1914 ).

The words “negligence” and “wrongful act” as used in Ky. Const., § 241 and this section giving right to recover damages for wrongful death are sufficiently broad to embrace every degree of tort that can be committed against the person. Ludwig v. Johnson, 243 Ky. 533 , 49 S.W.2d 347, 1932 Ky. LEXIS 159 ( Ky. 1932 ). See Van Galder v. Foster, 243 Ky. 543 , 49 S.W.2d 352, 1932 Ky. LEXIS 160 ( Ky. 1932 ).

This section is confined to torts, and does not cover a case of breach of an ordinary contract. Barley's Adm'x v. Clover Splint Coal Co., 286 Ky. 218 , 150 S.W.2d 670, 1941 Ky. LEXIS 243 ( Ky. 1941 ).

Son’s filing of a wrongful death action for the death of his mother sufficiently tolled the time period allowed by KRS 413.140 for bringing such actions, even though son had not yet been named personal representative of his mother’s estate; an amended complaint filed after the expiration of the statutory period related back to the original complaint. Richardson v. Dodson, 832 S.W.2d 888, 1992 Ky. LEXIS 98 ( Ky. 1992 ).

Ky. Rev. Stat. Ann. § 411.130(1) reflects the language of Ky. Const. § 241, and its plain language compels the conclusion that a wrongful death action may be premised upon a bullying-induced suicide when it can be shown that the offensive conduct caused the death. Patton v. Bickford, 529 S.W.3d 717, 2016 Ky. LEXIS 681 ( Ky. 2016 ).

7.—Governmental Functions.

This section did not confer a right of action against a municipal corporation for the death of a person occurring as the result of an act done in the performance of a governmental function in removing and caring for such person, who was suffering from smallpox, at the pesthouse. Twyman's Adm'r v. Board of Councilmen, 117 Ky. 518 , 78 S.W. 446, 25 Ky. L. Rptr. 1620 , 1904 Ky. LEXIS 217 ( Ky. 1904 ).

Kentucky Constitution, § 241, and this section were not intended to give a cause of action against a municipal corporation for the death of a person occurring as a result of an act done in the performance of a duty which the municipality owed to the public and the doing of which was but an exercise of power purely governmental. Smith's Adm'r v. Commissioners of Sewerage, 146 Ky. 562 , 143 S.W. 3, 1912 Ky. LEXIS 118 ( Ky. 1912 ), overruled in part, Haney v. Lexington, 386 S.W.2d 738, 1964 Ky. LEXIS 178 ( Ky. 1964 ).

To recover in a wrongful death action against a sheriff and his deputies for the death of his wife while he was being served with a peace warrant by two (2) of the sheriff’s deputies, a plaintiff must prove that excessive force was used in the performance of an official duty as distinguished from a personal act. Lawson v. Burnett, 471 S.W.2d 726, 1971 Ky. LEXIS 259 ( Ky. 1971 ).

Supreme Court of Kentucky overruled Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 ( Ky. 1952 ) insofar as it held there was a per se no proximate cause rule where there was no contact with the pursuing vehicle, but injury or damage occurred, due to an allegedly negligent pursuit, and found that the factual allegations in the case at issue were sufficient to create a disputed issue of material fact as to whether a deputy sheriff negligently conducted his pursuit of a suspect because the duty of care owed to the public at large by pursuing officers was that of due regard. Gonzalez v. Johnson, 581 S.W.3d 529, 2019 Ky. LEXIS 206 ( Ky. 2019 ).

8.—Master and Servant.

The doctrine that where two servants are in the same field of labor and the same grade of employment, the one not superior or subordinate to the other, neither can recover from the master for an injury caused by the ordinary or gross neglect of his fellow servant applies as well to an action under this section for death caused by willful neglect. Edmonson v. Kentucky C. R. Co., 105 Ky. 479 , 49 S.W. 200, 20 Ky. L. Rptr. 1296 , 1899 Ky. LEXIS 228 ( Ky. 1899 ).

Where two servants of the same master are equal and neither superior to the other, no recovery can be had as against the master by one servant for the negligence of the other under this section or Ky. Const., § 241. Linck's Adm'r v. Louisville & N. R. Co., 107 Ky. 370 , 54 S.W. 184, 21 Ky. L. Rptr. 1097 , 1899 Ky. LEXIS 183 ( Ky. 1899 ).

An action for the death of a servant due to a breach of contract by the master will not lie under Ky. Const., § 241, or this section. Lewis' Adm'r v. Taylor Coal Co., 112 Ky. 845 , 66 S.W. 1044, 23 Ky. L. Rptr. 2218 , 1902 Ky. LEXIS 238 ( Ky. 1902 ).

Where death does not result, there can be no recovery by one in the service of the company for only the gross negligence of his superior who was engaged with him in the same service; but where death results, and the action is under this section, it controls, and there may be a recovery for ordinary negligence of the superior servants engaged in the same employment. Cincinnati, N. O. & T. P. R. Co. v. Cook's Adm'r, 113 Ky. 161 , 67 S.W. 383, 23 Ky. L. Rptr. 2410 , 1902 Ky. LEXIS 33 ( Ky. 1902 ).

Ky. Const. § 241 and KRS 411.130 authorize imposing punitive damages on an employer via vicarious liability or respondeat superior for the gross negligence of employees. In re Air Crash at Lexington, Kentucky, 2008 U.S. Dist. LEXIS 44888 (E.D. Ky. June 6, 2008).

Specific wrongful death statute, KRS 411.130 , prevailed over the general punitive damages statute, KRS 411.184(3). Under KRS 411.130 (1), punitive damages could be imposed on an employer for the gross negligence of an employee. In re Air Crash at Lexington, Kentucky, 2008 U.S. Dist. LEXIS 44888 (E.D. Ky. June 6, 2008).

9.—Sale of Intoxicating Liquors.

In action for damages for death of one caused by use of intoxicating liquors alleged to have been illegally sold, in absence of allegation that sale was made for purpose of injuring him or that seller had reasonable grounds to believe deceased could not be safely trusted with whiskey, it cannot be said act of making sale was wrongful under statute. Britton's Adm'r v. Samuels, 143 Ky. 129 , 136 S.W. 143, 1911 Ky. LEXIS 351 ( Ky. 1911 ). See Nally v. Blandford, 291 S.W.2d 832, 1956 Ky. LEXIS 405 ( Ky. 1956 ).

A merchant who, contrary to law, sells intoxicating liquors to one who while intoxicated thereby kills another is not liable in damages for the latter’s death. Waller's Adm'r v. Collinsworth, 144 Ky. 3 , 137 S.W. 766, 1911 Ky. LEXIS 535 ( Ky. 1911 ). See Nally v. Blandford, 291 S.W.2d 832, 1956 Ky. LEXIS 405 ( Ky. 1956 ).

Recovery was allowed for death by drinking whiskey where seller sold the whiskey to decedent who was intoxicated with intention of injuring him. Nally v. Blandford, 291 S.W.2d 832, 1956 Ky. LEXIS 405 ( Ky. 1956 ).

10.When Action Accrues.

The cause of action for wrongful death accrues as of the date of death and not as of the date of injury. Louisville & N. R. Co. v. Simrall's Adm'r, 127 Ky. 55 , 104 S.W. 1011, 31 Ky. L. Rptr. 1269 , 1907 Ky. LEXIS 114 ( Ky. 1907 ).

The statute of limitations for wrongful death actions runs from the death of the decedent, even where there is no viable underlying action for personal injury or medical negligence or malpractice at the time of death. Farmers Bank & Trust Co. v. Rice, 674 S.W.2d 510, 1984 Ky. LEXIS 242 ( Ky. 1984 ).

11.Persons Entitled to Sue.

If part of the cause of action is for the loss of services of a son from the date of his wrongful death until he would have attained his majority, then it is, in effect, an effort to recover for the death of the son and the father has no right to recover as the right of the father to the services of his son ceases and determines at his death. Harris v. Kentucky Lumber Co., 45 S.W. 94, 19 Ky. L. Rptr. 1732 , 1898 Ky. LEXIS 257 (Ky. Ct. App. 1898).

The Legislature is empowered to direct what persons may bring actions for negligent or wrongful death. Louisville v. Hart's Adm'r, 143 Ky. 171 , 136 S.W. 212, 1911 Ky. LEXIS 377 ( Ky. 1911 ).

The words “father” and “mother” used in this section refer to the natural mother and father and, where the mother was dead, the father was entitled to recovery for the negligent death of child, as against adoptive parents. Jackson's Adm'x v. Alexiou, 223 Ky. 95 , 3 S.W.2d 177, 1928 Ky. LEXIS 289 ( Ky. 1928 ).

The common-law disability of one spouse to sue the other or of a parent to sue a child or of a child to sue a parent for tort was inapplicable to suits brought for wrongful death under this section and Ky. Const., § 241, by the administrator of deceased child and the administrator of deceased parent. Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

Administrator of a childless wife cannot maintain action against her widower for her wrongful death to recover funeral expenses, since there is, in effect, no real plaintiff, the husband being both plaintiff and defendant and liable for wife’s funeral expenses. Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 1967 Ky. LEXIS 126 ( Ky. 1967 ).

KRS 381.280 , creating a forfeiture of the right to inherit property by one who is convicted of a felony for killing the decedent and expressly providing the property interest so forfeited descends to decedent’s other heirs at law, is in the nature of a statutory exception to the law of descent and distribution and has no application in an action for wrongful death under Ky. Const., § 241, or this section and does not give the administrator of childless wife who died of wound inflicted by her husband a right to bring an action where the husband would be the sole beneficiary of his wife’s estate and, in effect, both plaintiff and defendant in the action. Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 1967 Ky. LEXIS 126 ( Ky. 1967 ).

All actions for wrongful death must be maintained by the personal representative of the deceased, although if the personal representative refuses to bring an action, the beneficiary may do so in his or her own name. Wheeler v. Hartford Acci. & Indem. Co., 560 S.W.2d 816, 1978 Ky. LEXIS 312 ( Ky. 1978 ).

Where a mother was not the personal representative of her deceased son and where the representative had entered a settlement agreement with the insurer on behalf of the estate and executed a general release, the mother was not entitled to bring a wrongful death action on her own behalf. Wheeler v. Hartford Acci. & Indem. Co., 560 S.W.2d 816, 1978 Ky. LEXIS 312 ( Ky. 1978 ).

An illegitimate father has standing to sue for a wrongful death claim pursuant to this section and KRS 411.135 as well as to inherit from his illegitimate child. Cummins v. Cox, 799 S.W.2d 5, 1990 Ky. LEXIS 94 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 148 (Ky. Dec. 27, 1990).

Unadopted stepchild of a decedent was not entitled to share of settlement of the decedent’s wrongful death action as the stepchild was not the decedent’s “child” within meaning of KRS 411.130 . The legislature’s express inclusion of stepchildren in other statutes strongly suggested that stepchildren were intentionally excluded from KRS 411.130 . Davis v. Johnson, 295 S.W.3d 841, 2009 Ky. App. LEXIS 30 (Ky. Ct. App. 2009).

Because appellee signed the arbitration agreement with appellant’s facility in his individual capacity in addition to signing as his father’s authorized representative, the arbitration agreement was valid and enforceable as to appellee’s individual wrongful death action. 2020 Ky. LEXIS 280 .

12.—Personal Representative.

Where foreign executor filed an action for wrongful death and joined as party plaintiff an ancillary administrator who was a resident of this state and defendant was a citizen of this state, diversity of citizenship, if any, was destroyed. Seymour v. Johnson, 235 F.2d 181, 1956 U.S. App. LEXIS 3841 (6th Cir. Ky. 1956 ).

A Kentucky administrator cannot sue as an ordinary personal representative for the use and benefit of the general estate of its decedent in a Tennessee court but there is an exception to the rule when the personal representative is suing, not for the benefit of the general estate but under the Kentucky wrongful death statute, to recover for sole use and benefit of statutory beneficiary, and he can maintain such an action in Tennessee without obtaining ancillary letters of qualification in Tennessee as he sues as a “trustee” or “medium” for the benefit of the persons entitled to the proceeds and, as the recovery passes directly to the named beneficiaries, it is not an asset of the estate and the rights of local creditors are not involved. Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

Under this section, commonly known as the Kentucky wrongful death statute, where deceased is survived by one of the specified beneficiaries, the administrator sues for the beneficiary’s use and benefit alone as in the nature of a trustee. Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

Under Ky. Const., § 241, providing right of action for death by wrongful act and that it shall be prosecuted in all cases by the personal representative of the deceased, such personal representative may maintain an action for wrongful death of a man who leaves neither widow nor child. Lexington & C. C. Min. Co. v. Huffman's Adm'r, 32 S.W. 611, 17 Ky. L. Rptr. 775 (1895).

The administrator of an alien without an estate or relatives in this country, under Ky. Const., § 241, and this section, may bring an action for wrongful death whether or not the person’s own government would have given any redress for wrongful death. Trotta's Adm'r v. Johnson, Briggs, & Pitts, 121 Ky. 827 , 90 S.W. 540, 28 Ky. L. Rptr. 851 , 1906 Ky. LEXIS 260 ( Ky. 1906 ).

If the deceased, who is killed by the use of any of the weapons mentioned in KRS 411.150 , leaves a widow and minor child, or either, then the action may be maintained by them under KRS 411.150 ; but, if he leaves neither, then his personal representative may sue under this section. Howard's Adm'r v. Hunter, 126 Ky. 685 , 104 S.W. 723, 31 Ky. L. Rptr. 1092 , 1907 Ky. LEXIS 85 ( Ky. 1907 ).

An action to recover for the pain and suffering of a child before he died may be brought by his administrator. Randolph's Adm'r v. Snyder, 139 Ky. 159 , 129 S.W. 562, 1910 Ky. LEXIS 19 ( Ky. 1910 ) (see KRS 411.133 ).

An action to recover for the wrongful death of a child may be brought by the child’s administrator. Randolph's Adm'r v. Snyder, 139 Ky. 159 , 129 S.W. 562, 1910 Ky. LEXIS 19 ( Ky. 1910 ).

An administrator who has no greater or broader powers with respect to his decedent’s rights than she had is in no better position to maintain an action than she was in and cannot therefore maintain an action to recover for the death of his intestate even though it be alleged and proven that her injury was more serious than thought at the time of institution and trial of actions wherein she recovered a judgment for such injuries before her death and even though she left surviving her a husband and minor child. Perry's Adm'r v. Louisville & N. R. Co., 199 Ky. 396 , 251 S.W. 202, 1923 Ky. LEXIS 856 ( Ky. 1923 ).

The personal representative acts for, on behalf of and in stead of the deceased person only, and, if the deceased would have had no cause of action had she lived, none could pass to the administrator. Perry's Adm'r v. Louisville & N. R. Co., 199 Ky. 396 , 251 S.W. 202, 1923 Ky. LEXIS 856 ( Ky. 1923 ).

Personal representative of bystander, killed by sheriff shooting at another, may bring action under this section where widow and children failed to do so under KRS 411.150 . Wells' Adm'r v. Lewis, 213 Ky. 846 , 281 S.W. 996, 1926 Ky. LEXIS 634 ( Ky. 1926 ).

Father cannot sue and recover for the burial expenses of a child for, under this section, the administrator must pay the burial expenses out of the recovery for the death of intestate and distribute the remainder to the heirs at law. General Refractories Co. v. Mozier, 235 Ky. 252 , 30 S.W.2d 952, 1930 Ky. LEXIS 332 ( Ky. 1930 ).

Where proof showed that five-year-old child died within three (3) hours after injury and no loss of service of any value in that three hours or any expense by the father in that time, the entire cause of action for death vested in the administrator at the time the child died. General Refractories Co. v. Mozier, 235 Ky. 252 , 30 S.W.2d 952, 1930 Ky. LEXIS 332 ( Ky. 1930 ). (See KRS 411.133 .).

This statute gives a cause of action to a personal representative for the sole benefit of named beneficiaries. The administrator is merely a nominal plaintiff. Vaughn's Adm'r v. Louisville & N. R. Co., 297 Ky. 309 , 179 S.W.2d 441, 1944 Ky. LEXIS 696 ( Ky. 1944 ).

When a personal representative has been regularly appointed, his authority to bring the action for wrongful death is exclusive. Spangler's Adm'r v. Middlesboro, 301 Ky. 237 , 191 S.W.2d 414, 1945 Ky. LEXIS 735 ( Ky. 1945 ). See Louisville v. Hart's Adm'r, 143 Ky. 171 , 136 S.W. 212, 1911 Ky. LEXIS 377 ( Ky. 1911 ).

Where the deceased’s alleged widow had nominated another for appointment as administrator of the deceased’s estate, which consisted solely of a claim for damages arising from the accident in which he was killed, the court did not abuse its discretion in appointing the deceased’s father who could be expected to claim the proceeds of such claim as the only heir of the deceased on the ground that the alleged widow was never validly married to the decedent. Yeary v. Yeary, 351 S.W.2d 515, 1961 Ky. LEXIS 175 ( Ky. 1961 ).

In a wrongful death action, upon a showing that previously granted letters of administration are still in force, a second grant of letters of administration will be held void but, in order for a party to make such a showing, he must have pleaded the illegality of the second grant. Lawrence v. Marks, 355 S.W.2d 162, 1961 Ky. LEXIS 17 ( Ky. 1961 ).

Under this section, the cause of action is in the personal representative for the benefit of the next of kin who share the recovery, if any. The next of kin are the real parties in interest in that they share the recovery but they are not necessary parties to the action. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Where wife, who was covered by basic reparations benefits provision of her husband’s insurance, and her husband were killed in automobile accident and were survived by three adult children, nonrelated administrator appointed by court was not “survivor,” as defined in subsection (14) of KRS 304.39-020 , entitled as kindred party to benefits under this section nor possessed of right to be enforced under KRS 304.39-030 ; thus, administrator was not proper party to bring action to recover basic reparations benefits. United States Fidelity & Guaranty Co. v. McEnroe, 610 S.W.2d 593, 1980 Ky. LEXIS 280 ( Ky. 1980 ).

Ky. Const., § 241 and this section mandate that all actions for wrongful death be maintained by the personal representative of the deceased. Where there had never been a valid personal representative of the deceased, the district court did not err in finding wrongful death actions barred by the statute of limitations. Drake v. B.F. Goodrich Co., 782 F.2d 638, 1986 U.S. App. LEXIS 21993 (6th Cir. Ky. 1986 ).

Because there was no evidence that the administrator had any knowledge of the will and the record was void of any facts that would have led the administrator to expect that the deceased had a will, the administrator’s appointment was effective with the signing of an order by the district judge under KRS 395.105 ; his administration would not cease until the putative will was produced and proved pursuant to KRS 395.040(4); thus, the trial court erred in dismissing the administrator’s wrongful death claim on the grounds the administrator was not the proper party. Bennett v. Nicholas, 250 S.W.3d 673, 2007 Ky. App. LEXIS 330 (Ky. Ct. App. 2007).

Circuit court properly denied the nursing center's motion to compel arbitration of the wrongful death claim brought by an estate on behalf of the decedent's beneficiaries where nothing in judicial precedent overturned Kentucky case law concluding that wrongful death beneficiaries were not bound by agreements executed by a decedent. Preferred Care Partners Mgmt. Grp., L.P. v. Alexander, 530 S.W.3d 919, 2017 Ky. App. LEXIS 532 (Ky. Ct. App. 2017).

Administrator was entitled to summary judgment as to the claims of a decedent’s beneficiaries because the administrator (1) diligently pursued a wrongful death claim, and (2) had no duty to reduce the administrator’s statutory share of a recovery to lessen the beneficiaries’ lesser recoveries. Reynolds v. Randolph, 2018 Ky. App. LEXIS 257 (Ky. Ct. App., sub. op., 2018 Ky. App. Unpub. LEXIS 975 (Ky. Ct. App. Oct. 26, 2018).

13.— —For Children.

Child or her natural tutrix could not maintain action for wrongful death of mother since such action can only be maintained by the personal representative of decedent. Lewis v. Harper, 371 F.2d 555, 1967 U.S. App. LEXIS 7788 (6th Cir. Ky. 1967 ).

The fact a husband is entitled to one half of the recovery for his wife’s death cannot defeat the right of her administrator to maintain an action on behalf of her children, entitled to the other half of any sum that might be recovered, against the husband causing her wrongful death. Robinson's Adm'r v. Robinson, 188 Ky. 49 , 220 S.W. 1074, 1920 Ky. LEXIS 229 ( Ky. 1920 ).

Where a wife is survived by children who are entitled to one half the recovery for wrongful death under Ky. Const., § 241, and this section, the wife’s personal representative can maintain an action against the husband who caused his wife’s wrongful death for the benefit of his decedent’s children to the extent they are entitled to any possible recovery. Robinson's Adm'r v. Robinson, 188 Ky. 49 , 220 S.W. 1074, 1920 Ky. LEXIS 229 ( Ky. 1920 ).

14.— —Exceptions.

There are two (2) exceptions under Kentucky law to the requirement that an action for wrongful death must be brought by the personal representative. The beneficiaries under the statute may bring the action in their own names (1) when the personal representative refuses to bring the action and (2) where there is fraud and collusion on the part of the personal representative and the person sought to be made liable for the death. Lewis v. Harper, 371 F.2d 555, 1967 U.S. App. LEXIS 7788 (6th Cir. Ky. 1967 ).

Widow and children of deceased may bring suit for wrongful death from fall in mine shaft where representative of deceased’s estate and mine owner conspired to prevent suit against owner and representative has refused demand of widow to bring such suit. McLemore v. Sebree Coal & Mining Co., 121 Ky. 53 , 88 S.W. 1062, 28 Ky. L. Rptr. 25 , 1905 Ky. LEXIS 177 ( Ky. 1905 ).

The widow had a right to sue for wrongful death of her husband on the refusal of administrator to sue, although the right of action was, under this section, originally in the administrator. Harris v. Rex Coal Co., 177 Ky. 630 , 197 S.W. 1075, 1917 Ky. LEXIS 634 ( Ky. 1917 ).

This action may be brought only by the representative, except (1) when the representative refuses to bring suit, or (2) when there is collusion between the representative and the defendant. Louisville & N. R. Co. v. Turner, 290 Ky. 602 , 162 S.W.2d 219, 1942 Ky. LEXIS 470 ( Ky. 1942 ).

15.—Nonresident Decedents.

Since statute did not authorize a suit in the courts of Kentucky by a foreign administrator for the wrongful death of his decedent, the federal courts could not obtain jurisdiction through diversity of citizenship. Maysville Street R. & Transfer Co. v. Marvin, 59 F. 91, 1893 U.S. App. LEXIS 2335 (6th Cir. Ky. 1893 ). See Marvin v. Maysville Street R. & Transfer Co., 49 F. 436, 1892 U.S. App. LEXIS 1626 (C.C.D. Ky. 1892 ) (decided under prior law).

The authority to bring an action for wrongful death under this section is vested solely upon the resident administrator, so an administrator of an Ohio citizen appointed by an Ohio probate court could not bring a diversity action in federal court against a Kentucky citizen for wrongful death of the Ohio citizen when he was struck by a truck and killed in Kentucky. Siebenhar v. Wise, 16 F.R.D. 479, 1951 U.S. Dist. LEXIS 3634 (D. Ky. 1951 ).

An administrator may be appointed in this state on the estate of decedent who was a nonresident of the state at the time of his death and who had no personal estate in this state at the time of appointment of the administrator other than a claim, demand, or right of action given by the law of this state to the administrator of a decedent who has been killed by the gross negligence of a railroad company in this state. Brown's Adm'r v. Louisville & N. R. Co., 97 Ky. 228 , 30 S.W. 639, 17 Ky. L. Rptr. 145 , 1895 Ky. LEXIS 183 ( Ky. 1895 ).

Before adoption of this section and Ky. Const., § 241, a personal representative could not be appointed for a nonresident decedent unless it appeared that decedent left property in Kentucky to be administered. Young's Adm'r v. Louisville & N. R. Co., 121 Ky. 483 , 89 S.W. 475, 28 Ky. L. Rptr. 451 , 1905 Ky. LEXIS 228 ( Ky. 1905 ).

Nonresident administrator of nonresident decedent had no authority to maintain action in Kentucky for wrongful death, at least without complying with KRS 395.170 . Vassill's Adm'r v. Scarsella, 292 Ky. 153 , 166 S.W.2d 64, 1942 Ky. LEXIS 56 ( Ky. 1942 ).

No provisions of the federal constitution nor rights conferred by it were denied a foreign representative in whose fiduciary capacity an action for damages for death was brought by requiring him to give bond under KRS. 395.170 . Vassill's Adm'r v. Scarsella, 292 Ky. 153 , 166 S.W.2d 64, 1942 Ky. LEXIS 56 ( Ky. 1942 ).

Where nonresident administrator of nonresident decedent instituted action for wrongful death without complying with KRS 395.170 , attempted substitution of ancillary administrator, subsequently appointed in Kentucky, as plaintiff in the action was not sufficient to toll statute of limitations which had run before appointment of ancillary administrator. Vassill's Adm'r v. Scarsella, 292 Ky. 153 , 166 S.W.2d 64, 1942 Ky. LEXIS 56 ( Ky. 1942 ).

16.—Employer Corporation.

Where Ohio resident who worked in Ohio for national business firm was killed in an airplane crash in Kentucky, employer which paid claims under Ohio Worker’s Compensation Act to employee’s survivors and was precluded by that act from recovering from third-party tort-feasor, could not bring wrongful death action under Ky. Const., § 241 and this section against the same third-party tort-feasor, since this section gives the sole right to make a claim to the injured person and his spouse if he survives and to the survivors named in the section in the event of death. Harris Corp., Data Communications Div. v. Comair, Inc., 510 F. Supp. 1168, 1981 U.S. Dist. LEXIS 11561 (E.D. Ky. 1981 ), aff'd, 712 F.2d 1069, 1983 U.S. App. LEXIS 25666 (6th Cir. Ky. 1983 ).

17.Real Parties in Interest.

It is the character of the suit on the basis of presently existing conditions which is controlling and, where there is a beneficiary in existence, the fact that if he were not in existence the general estate would benefit is immaterial. Cooper v. American Airlines, Inc., 149 F.2d 355, 1945 U.S. App. LEXIS 2596 (2d Cir. N.Y. 1945). See Citizens Fidelity Bank & Trust Co. v. Baese, 136 F. Supp. 683, 1955 U.S. Dist. LEXIS 2475 (D. Tenn. 1955).

By express provisions of this section, the widow and children are the real parties in interest and share equally any recovery by the administrator who is merely a nominal plaintiff and there is no legal principle requiring the identity of the real parties in interest to be kept a secret from the jury. McCoy v. Carter, 323 S.W.2d 210, 1959 Ky. LEXIS 323 ( Ky. 1959 ). See Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Widow’s waiver in the separation agreement of any additional claim against the decedent had no effect upon the wrongful death proceeds recovered because neither the decedent nor his estate ever had an interest in the proceeds. Rhodes v. Rhodes, 764 S.W.2d 641, 1988 Ky. App. LEXIS 171 (Ky. Ct. App. 1988).

When the administratrix of a decedent’s estate sought to prosecute a wrongful death action on behalf of the decedent’s child, whom the administratrix had adopted, such an action was precluded because the administratrix’s adoption of the child severed the child’s legal ties to the decedent, and the child was no longer “the kindred of the deceased,” as contemplated in KRS 411.130(2), defining those on whose behalf a wrongful death action could be maintained. Sluder v. Marple, 134 S.W.3d 15, 2003 Ky. App. LEXIS 131 (Ky. Ct. App. 2003).

18.Action Against Parent for Death of Infant.

Under Ky. Const., § 241, and this section, the administrator of a deceased infant’s estate has a cause of action against its parent for wrongful death caused by the latter’s negligence. Harlan Nat’l Bank v. Gross, 346 S.W.2d 482, 1961 Ky. LEXIS 309 ( Ky. 1961 ) overruling Harralson v. Thomas, 269 S.W.2d 276, 1954 Ky. LEXIS 996 ( Ky. 1954 ), overruled, Harlan Nat’l Bank v. Gross, 346 S.W.2d 482, 1961 Ky. LEXIS 309 ( Ky. 1961 ), overruled in part, Harlan Nat’l Bank v. Gross, 346 S.W.2d 482, 1961 Ky. LEXIS 309 (Ky. 1961)( to the extent of conflict).

An action may be maintained for the wrongful death of an unemancipated child against the estate of its father where both died in a common disaster. McCallum v. Harris, 379 S.W.2d 438, 1964 Ky. LEXIS 238 ( Ky. 1964 ).

The fact that a wife was a beneficiary of settlement of a claim for the wrongful death of a husband between the husband’s administrator and a third party did not bar her suit as administratrix for her child for the child’s wrongful death in the same accident against the administrator of her husband. McCallum v. Harris, 379 S.W.2d 438, 1964 Ky. LEXIS 238 ( Ky. 1964 ).

19.Viable Infant.

If, while in the womb, it (the unborn child) reaches that prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely and by artificial means from the mother, it would be so far a natural human being that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to agree there is but one life, and that is the life of the mother. Mitchell v. Couch, 285 S.W.2d 901, 1955 Ky. LEXIS 89 ( Ky. 1955 ).

When a pregnant woman is injured through negligence and the child, if it be a viable infant, suffers death as a consequence, a right of recovery exists to the personal representative provided the causal relation between the negligence and the damage to the child is established by competent evidence. Mitchell v. Couch, 285 S.W.2d 901, 1955 Ky. LEXIS 89 ( Ky. 1955 ).

Where mother, in the last stages of pregnancy, who was injured in automobile accident while returning from hospital after having been informed she was not ready to be confined, was admitted to the hospital immediately after the accident and doctor testified she had been seriously injured and was in a state of shock when admitted and that he had listened and could hear no heartbeat of her child, and the child was stillborn two days later at which time the mother died, the child was “viable” and a “person” under Ky. Const., § 241 and this section, and an action could be maintained by a personal representative for its wrongful death allegedly caused solely by prenatal injury. Mitchell v. Couch, 285 S.W.2d 901, 1955 Ky. LEXIS 89 ( Ky. 1955 ).

A “viable” unborn child is an entity in the meaning of the general word “person” within the wrongful death statute. Louisville v. Stuckenborg, 438 S.W.2d 94, 1968 Ky. LEXIS 150 ( Ky. 1968 ). See Mitchell v. Couch, 285 S.W.2d 901, 1955 Ky. LEXIS 89 ( Ky. 1955 ).

A viable fetus is a “person” within the meaning of this section. Rice v. Rizk, 453 S.W.2d 732, 1970 Ky. LEXIS 333 ( Ky. 1970 ).

Patient’s child’s estate could not bring wrongful death action, KRS 411.130 , as the child was never viable. Baxter v. AHS Samaritan Hosp., LLC, 328 S.W.3d 687, 2010 Ky. App. LEXIS 5 (Ky. Ct. App. 2010).

20.Governing Law.

Where the statute in the state where the injury is inflicted gives a right of action for death, that right may be enforced in another state having a similar statute. Bruce's Adm'r v. Cincinnati R. R. Co., 83 Ky. 174 , 7 Ky. L. Rptr. 469 , 7 Ky. L. Rptr. 59 , 1885 Ky. LEXIS 52 (Ky. Ct. App. 1885). See Louisville & N. R. Co. v. Shivell's Adm'r, 18 S.W. 944, 13 Ky. L. Rptr. 902 (1892); Wintuska's Adm'r v. Louisville & N. R. Co., 20 S.W. 819, 14 Ky. L. Rptr. 579 (1892) (decided under prior law).

Under New York law, Pennsylvania executrix could maintain action for wrongful death of Pennsylvania resident against Delaware corporation in New York federal district court, where death occurred in Kentucky and the law would be determined by the law of the state in which the district court is held or the state of New York. Cooper v. American Airlines, Inc., 149 F.2d 355, 1945 U.S. App. LEXIS 2596 (2d Cir. N.Y. 1945).

In an action brought under this section in a federal court by reason of diversity of citizenship for wrongful death of a five-year-old boy who was struck and killed by a motor vehicle as he was crossing the road, the court was required to follow the state law. Hopper v. Reed, 320 F.2d 433, 1963 U.S. App. LEXIS 4497 (6th Cir. Ky. 1963 ).

The deceased having been killed in Illinois by the willful negligence of the Illinois Central Railroad, and damages therefor recovered in this state in a county into which the road ran, the recovery should go the widow according to the law of Illinois, which provides that in such recoveries the whole shall go to the widow, in case there are no children. McDonald v. McDonald, 96 Ky. 209 , 28 S.W. 482, 16 Ky. L. Rptr. 412 , 1894 Ky. LEXIS 114 ( Ky. 1894 ).

As the injuries of decedent were received and death occurred in a sister state, although the suit was brought in this state where the administrator qualified, the right of action was conferred by the statutes of the sister state and the statutes of the sister state were controlling. Cason's Adm'r v. Covington & C. E. R. & T. & B. Co., 93 S.W. 19, 29 Ky. L. Rptr. 352 (1906).

This section has no extraterritorial effect and, although it is presumed that the common law prevails in a sister state, it is not presumed that the statutes of a sister state are the same as the statutes of this state; therefore, no action can be maintained in this state to recover for death in a sister state without proof of what the law in the sister state is. Murray's Adm'x v. Louisville & N. R. Co., 132 Ky. 336 , 110 S.W. 334, 33 Ky. L. Rptr. 545 , 1908 Ky. LEXIS 122 ( Ky. 1908 ).

Where death of the decedent occurred in this state and the cause of action arose therein, the remedy offered by its law must control as to the recovery of damages for his death under Ky. Const., § 241, and this section, relating to and providing remedies for wrongful death, and the action is in the resident administrator alone. Compton's Adm'r v. Borderland Coal Co., 179 Ky. 695 , 201 S.W. 20, 1918 Ky. LEXIS 270 ( Ky. 1918 ) ( Ky. 1918 ).

Administrator’s right of action for death is not based on the death of his decedent but on the wrongful causing of the death by the defendant, so the cause of action is governed by the laws of the state where the injury or accident occurs, although he may not have a cause of action until the death which may occur elsewhere. Melton's Adm'r v. Southern R. Co., 236 Ky. 629 , 33 S.W.2d 690, 1930 Ky. LEXIS 829 ( Ky. 1930 ).

Action for damages for death is a “transitory action,” and the law of the place where the injury occurs governs in respect to the right of action. Stewart's Administratrix v. Bacon, 253 Ky. 748 , 70 S.W.2d 522, 1934 Ky. LEXIS 730 (Ky. Ct. App. 1934). See Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 ( Ky. 1953 ).

The court did not err in directing verdict for defendants in action for damages for death of plaintiff in Canada caused by alleged negligence of defendant in Canada where there was no allegation or proof as to what the Canada law was regarding the right to maintain an action for damages for death, since the common law of Kentucky would not permit recovery for death and, on failure to plead and prove laws of foreign state or country, only one presumption arises and that is that the common law of the foreign state or country is the same as the common law of Kentucky and there is no presumption without pleading and proof as to what is the statute of any other state or foreign country. Stewart's Administratrix v. Bacon, 253 Ky. 748 , 70 S.W.2d 522, 1934 Ky. LEXIS 730 (Ky. Ct. App. 1934).

The substantive law of the place where a tortious wrong was committed determines the right of action and the distribution or apportionment of damages recovered for the wrongful death is considered part of the action and inseparable therefrom, the beneficiaries being named by the statutes of the state where the wrong occurred. Workman v. Hargadon, 345 S.W.2d 644, 1960 Ky. LEXIS 6 ( Ky. 1960 ).

An action may be maintained under this section for a death occurring on a navigable stream within the territorial limits of Kentucky in which event the law of Kentucky applies and not the rules of federal admiralty law. Gregory v. Paducah Midstream Service, 401 S.W.2d 40, 1966 Ky. LEXIS 391 ( Ky. 1966 ).

21.Venue.

In an action for wrongful death, where plaintiff’s decedent was killed in an automobile accident in Mason County, Kentucky, and defendant was a nonresident of Kentucky, plaintiff had right to bring action in Kenton County, Kentucky, where defendant was actually served with process, considering the action as transitory. Harrison v. Steffen, 51 F. Supp. 225, 1943 U.S. Dist. LEXIS 2368 (D. Ky. 1943 ). See Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 ( Ky. 1953 ).

In action for wrongful death by common carrier, the decedent is considered the plaintiff within the meaning of the provision of KRS 452.455 that the action may be brought in the county “in which the plaintiff or his property is injured.” Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

An action for wrongful death is not transitory but is limited by KRS 452.460 to the county in which the defendant resides or in which the injury is done. Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 ( Ky. 1953 ).

In a wrongful death action, although appellant claimed that the injury occurred when the decedent passed away in Muhlenberg County, venue under KRS 452.460(1) was not where the damage was suffered; the negligence or injury occurred when the doctor allegedly breached his duty as part of his treatment of the decedent in Ohio County. O'Bannon v. Allen, 337 S.W.3d 662, 2011 Ky. App. LEXIS 59 (Ky. Ct. App. 2011).

22.Jurisdiction.

Where death results from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given. Hess v. United States, 361 U.S. 314, 80 S. Ct. 341, 4 L. Ed. 2d 305, 1960 U.S. LEXIS 1883 (U.S. 1960).

Liability created by this section against a corporation of this state will be enforced in courts of another jurisdiction having similar statute if there is no violation of public policy there. Southern P. Co. v. De Valle Da Costa, 190 F. 689, 1911 U.S. App. LEXIS 3794 (1st Cir. Mass. 1911).

An action filed in circuit court for wrongful death of plaintiff’s decedent because of alleged failure of defendant railroad to furnish to decedent a reasonably safe place to work and safe tools and appliances with which to work based on several causes of action — under employers’ liability act, KRS 342.001 (now repealed) and quoting KRS 277.310 , Ky. Const., § 241, and this section and alleging decedent was engaged in intrastate commerce, another based on federal employers’ liability act and alleging decedent was engaged in interstate commerce, and a third based on the common law for negligence — was not removable to the federal court for diversity of citizenship for, while the measure of recovery is different, the recovery in each is conditioned upon the proof of negligence which is the same in each cause of action and the federal statute prohibits removal bottomed upon the federal employers’ liability act on the theory there is but a single wrongful invasion of a single right of decedent. Hall v. Illinois C. R. Co., 152 F. Supp. 549, 1957 U.S. Dist. LEXIS 3438 (D. Ky. 1957 ).

Where railroad and its servants are joined in action for death, and servants are residents of Kentucky, action is not removable to federal court on ground of nonresidence of railroad. Illinois C. R. Co. v. Leisure's Adm'r, 90 S.W. 269, 28 Ky. L. Rptr. 768 (1906). See Chesapeake & O. R. Co. v. Dixon's Adm'x, 104 Ky. 608 , 47 S.W. 615, 20 Ky. L. Rptr. 792 , 1898 Ky. LEXIS 204 ( Ky. 1898 ), aff'd, 179 U.S. 131, 21 S. Ct. 67, 45 L. Ed. 121, 1900 U.S. LEXIS 1856 (U.S. 1900); Pierce's Adm'r v. Illinois C. R. Co., 86 S.W. 703, 27 Ky. L. Rptr. 801 (1905).

The state court unquestionably had jurisdiction to try an action for wrongful death occurring on federal property since the action is transitory and the court had jurisdiction of the subject matter and the parties. Henry Bickel Co. v. Wright's Adm'x, 180 Ky. 181 , 202 S.W. 672, 1918 Ky. LEXIS 61 ( Ky. 1918 ). See Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 ( Ky. 1953 ).

Notwithstanding decedent was a nonresident of the state and his death occurred in another state, and he left no property nor indebtedness due him in this state other than his right of action, the county court of the place where he received the injury resulting in his death had jurisdiction to appoint an administrator of decedent to bring action for wrongful death. Chesapeake & O. R. Co. v. Ryan's Adm'r, 183 Ky. 428 , 209 S.W. 538, 1919 Ky. LEXIS 521 ( Ky. 1919 ).

Where infant was domiciled in county where he was shot, the county court of that county had jurisdiction to appoint the administrator to sue for wrongful death and the place where he died, although it was in another state, was immaterial. Phillips' Committee v. Ward's Adm'r, 241 Ky. 25 , 43 S.W.2d 331, 1931 Ky. LEXIS 11 ( Ky. 1931 ).

The damage provisions of the federal death on the high seas act, 46 U. S. C. § 761, were found applicable, rather than this section, in a wrongful death action resulting from an accident involving the collision on the Ohio River of a pleasure cruiser and a tow of 15 barges. In re American Commercial Lines, Inc., 366 F. Supp. 134, 1973 U.S. Dist. LEXIS 11164 (E.D. Ky. 1973 ).

For purposes of analyzing diversity of citizenship jurisdiction pursuant to 28 USCS § 1332, the executrix of the deceased’s estate was considered to be a citizen of the same state as the deceased at the time of the fatal accident. Pegourie v. Werner Enters., 2005 U.S. Dist. LEXIS 20235 (W.D. Ky. Sept. 14, 2005).

23.Joint Liability.

Although the master may be a nonresident of state in which action was brought and the servant a resident defendant, an action to recover damages for wrongful death may be prosecuted jointly against the master and the servant guilty of the negligence complained of. Cincinnati, N. O. & T. P. R. Co. v. Bohon, 200 U.S. 221, 26 S. Ct. 166, 50 L. Ed. 448, 1906 U.S. LEXIS 1470 (U.S. 1906).

Under this section the plaintiff has a right to proceed severally or jointly against those who are liable for the injury inflicted resulting in death; therefore, where administrator, under this section, alleged a joint cause of action against a resident engineer and fireman and a nonresident railroad corporation to recover damages for the wrongful death of his intestate due to the operation of a train at an unusually rapid rate of speed, the railroad corporation had no right to say that the action should be several and it was not entitled to removal to federal court by reason of diverse citizenship. Winston v. Illinois C. R. Co., 111 Ky. 954 , 65 S.W. 13, 23 Ky. L. Rptr. 1283 , 1901 Ky. LEXIS 276 (Ky. Ct. App. 1901).

Plaintiff has a right to proceed severally or jointly against those who are liable for the injury inflicted resulting in death, including a corporation and its servants, for negligence of the servants. Cincinnati, N. O. & T. P. R. Co. v. Cook's Adm'r, 113 Ky. 161 , 67 S.W. 383, 23 Ky. L. Rptr. 2410 , 1902 Ky. LEXIS 33 ( Ky. 1902 ).

An action to recover damages for wrongful death may be prosecuted jointly against the master and the servants guilty of the negligence complained of. Carter Coal Co. v. Prichard's Adm'r, 166 Ky. 776 , 179 S.W. 1038, 1915 Ky. LEXIS 781 ( Ky. 1915 ).

24.Joinder of Actions.

The cause of action created by this section is independent of any action deceased might have had if he had survived. Puget Sound Traction, Light & Power Co. v. Frescoln, 245 F. 301, 1917 U.S. App. LEXIS 1485 (9th Cir. Wash. 1917). See Chesapeake & O. R. Co. v. Dixon, 179 U.S. 131, 21 S. Ct. 67, 45 L. Ed. 121, 1900 U.S. LEXIS 1856 (U.S. 1900); Northern P. R. Co. v. Adams, 116 F. 324, 1902 U.S. App. LEXIS 4340 (9th Cir. Wash. 1902), rev'd, 192 U.S. 440, 24 S. Ct. 408, 48 L. Ed. 513, 1904 U.S. LEXIS 963 (U.S. 1904) (see KRS 411.133 ).

Where certain acts cause death, they cannot be divided so as to make two actions — one to recover the suffering caused and the other to recover for death — but the party must elect and he cannot amend a petition alleging that “gross and willful neglect” caused death to allege gross negligence caused the injury resulting in 15 days’ suffering, as the complaint would as amended make one count for killing caused by willful neglect and another for suffering caused by gross neglect. Hackett v. Louisville, S. L. & T. P. R. Co., 95 Ky. 236 , 24 S.W. 871, 15 Ky. L. Rptr. 612 , 1894 Ky. LEXIS 8 ( Ky. 1894 ) (see KRS 411.133 ).

The benefit which this section secures is in lieu of those possessed at common law so, where a personal representative has recovered for death through negligence, a husband is barred from recovering damages for loss of his wife’s society from the time of her injury until her death. Louisville & N. R. Co. v. McElwain, 98 Ky. 700 , 34 S.W. 236, 18 Ky. L. Rptr. 379 , 1896 Ky. LEXIS 29 ( Ky. 1896 ) (see KRS 411.133 ).

It was proper to require plaintiff to elect whether he would prosecute statutory action for death of his intestate or common-law action for the suffering. Thomas' Adm'r v. Maysville Gas Co., 108 Ky. 224 , 56 S.W. 153, 21 Ky. L. Rptr. 1690 (1900) (see KRS 411.133 ).

Where the wrongful acts of one person cause the death of another, the right of recovery for the wrong done cannot be severed by the representatives of the deceased so as to maintain one action for the suffering endured by the deceased after the wrong and before his death and another action for the death itself. Those entitled to maintain the action must elect to seek damages either for the death or suffering prior to the death. Louisville R. Co. v. Raymond's Adm'r, 135 Ky. 738 , 123 S.W. 281, 1909 Ky. LEXIS 332 ( Ky. 1909 ) (see KRS 411.133 ).

25.Negligence.

The word “negligence,” as used in this section and in Ky. Const., § 241, which will authorize a recovery when death results, is the actionable negligence which would authorize a recovery if death had not ensued. Singleton v. Felton, 101 F. 526, 1900 U.S. App. LEXIS 4429 (6th Cir. Ohio 1900). See Harlan Nat'l Bank v. Gross, 346 S.W.2d 482, 1961 Ky. LEXIS 309 ( Ky. 1961 ).

Instructions were more favorable to the defendant than it was entitled to receive where under them inferior servant could only recover compensatory damages by showing gross negligence of superior servant. Illinois C. R. Co. v. Josey's Adm'x, 110 Ky. 342 , 61 S.W. 703, 22 Ky. L. Rptr. 1795 , 1901 Ky. LEXIS 93 ( Ky. 1901 ).

Under this section, gross negligence need not be shown. Cincinnati, N. O. & T. P. R. Co. v. Evans's Adm'r, 129 Ky. 152 , 110 S.W. 844, 33 Ky. L. Rptr. 596 , 1908 Ky. LEXIS 149 ( Ky. 1908 ).

In an action for wrongful death under this section, proof of ordinary negligence is sufficient. Louisville & N. R. Co. v. Stewart's Adm'x, 131 Ky. 665 , 115 S.W. 775, 1909 Ky. LEXIS 55 ( Ky. 1909 ).

If the death of a person results from injury inflicted as a result of the negligence of others, the deceased’s estate may recover damages. However, where decedent pointed an unloaded pistol at a SWAT officer serving a search warrant, the shooting of decedent was an act of self-defense, and decedent’s estate could not recover. Whitlow v. City of Louisville, 39 Fed. Appx. 297, 2002 U.S. App. LEXIS 13357 (6th Cir. Ky. 2002 ).

Punitive damages were recoverable where an employer was not an agent of the city, and thus did not qualify as an entity of local government, and evidence of gross negligence existed, specifically: that the employer misrepresented the situation to the Department of Highways in order to circumvent the permit process, that it changed the original detour route without notifying the proper entities, that no traffic control plan was implemented, that there were no advance warning signs at the work zone, that improper barricades were placed at the ends of the work zone, and that the employer left only 90 feet of buffer zone between the barricades and the trailer, when industry standards required at least two hundred twenty (220) feet. Phelps v. Louisville Water Co., 103 S.W.3d 46, 2003 Ky. LEXIS 85 ( Ky. 2003 ).

26.Pleading.

Kentucky Constitution, § 241 gave a right of recovery to the personal representative regardless of whether the decedent left a widow or child and a petition for death of the plaintiff’s intestate caused by the “willful, gross, and reckless negligence” of a telephone company which showed it was brought under Ky. Const., § 241, was sufficient against demurrer. East Tennessee Tel. Co. v. Simms' Adm'r, 99 Ky. 404 , 36 S.W. 171, 1896 Ky. LEXIS 102 ( Ky. 1896 ).

The rule that plaintiff must aver and show that decedent was not aware of the danger of risk which applies in common-law actions for injuries to servants which do not result in immediate death does not apply in actions under Ky. Const., § 241, and this section, and contributory negligence is a matter of defense in these actions. Lexington & Carter County Min. Co. v. Stephens' Adm'r, 104 Ky. 502 , 47 S.W. 321, 20 Ky. L. Rptr. 696 , 1898 Ky. LEXIS 179 ( Ky. 1898 ).

Where the petition shows a contributory negligence that, if pleaded as a defense, would defeat a recovery, the question may be reached by a demurrer to the petition. Stillwell's Adm'r v. South Louisville Land Co., 58 S.W. 696, 22 Ky. L. Rptr. 785 , 1900 Ky. LEXIS 310 (Ky. Ct. App. 1900).

Under petition charging gross neglect, plaintiff may recover for any lesser degree of negligence. Pendly v. Illinois Cent. R.R. Co., 92 S.W. 1, 28 Ky. L. Rptr. 1324 , 1906 Ky. LEXIS 286 (Ky. Ct. App. 1906).

In action to recover for death under this section, it is unnecessary to allege decedent did not know of danger or defect; knowledge on decedent’s part is matter of defense. Louisville & N. R. Co. v. Greenwell's Adm'r, 155 Ky. 799 , 160 S.W. 479, 1913 Ky. LEXIS 340 ( Ky. 1913 ). See Brown's Adm'r v. Cincinnati, N. O. & T. P. R. Co., 92 S.W. 583, 29 Ky. L. Rptr. 146 (1906).

Since accident occurred within state limits, the burden was on the defendant to plead and prove that the place of the accident was upon federal territory excluded from state jurisdiction making state laws inapplicable. Henry Bickel Co. v. Wright's Adm'x, 180 Ky. 181 , 202 S.W. 672, 1918 Ky. LEXIS 61 ( Ky. 1918 ).

Petition in action by administratrix for intestate’s wrongful death by gunshot wound by coal company clerk and alleging a conspiracy of the company and its employees to shoot striking union members who entered the company store was sufficient for an action for wrongful death, as there was a charge that a conspiracy was formed between the company and its employees to commit a wrongful act and that pursuant to and in furtherance of that act plaintiff’s intestate, who was an invitee in the store and an innocent party, was killed. Davenport's Adm'x v. Crummies Creek Coal Co., 299 Ky. 79 , 184 S.W.2d 887, 1945 Ky. LEXIS 386 ( Ky. 1945 ).

27.— Amendment of Petition.

Where original complaint which alleged that the death of intestate resulted from willful neglect of engineer in charge of and operating the engine attached to and drawing the train which killed him was amended to withdraw allegation of “willful neglect” and substituting “negligence,” the amendment merely alleged a different degree of neglect and not a new cause of action. Roseberry's Adm'r v. Newport News & M. V. R. Co., 39 S.W. 407, 19 Ky. L. Rptr. 194 (1897).

An amendment charging for the first time that there was a statute of Virginia allowing a recovery for the death of one produced by the negligence of another was germane to the original cause of action sued on, therefore relating back to the time of the filing of the original petition so as to save the running of the statute, since it did not change the parties, the nature of the action, or the cause of it but merely perfected that which was imperfect. Louisville & N. R. Co. v. Pointer's Adm'r, 113 Ky. 952 , 69 S.W. 1108, 24 Ky. L. Rptr. 772 , 1902 Ky. LEXIS 122 ( Ky. 1902 ).

Where original petition brought by father individually sought damages for refusing to treat child resulting in its death and the petition was amended to seek damages for negligently treating child resulting in its death and to bring the action by administrator, the amended petition stated an entirely new cause of action and should not have been filed. Randolph's Adm'r v. Snyder, 139 Ky. 159 , 129 S.W. 562, 1910 Ky. LEXIS 19 ( Ky. 1910 ).

If case is brought under state law and, during trial, it develops by undisputed evidence that it is one exclusively within provisions of federal act, plaintiff must amend his pleadings to conform. Hines v. Burns' Adm'x, 189 Ky. 761 , 226 S.W. 109, 1920 Ky. LEXIS 511 ( Ky. 1920 ).

A father who brought a wrongful death action for the death of his seven-year-old son when struck by an automobile could, if he had not secured a valid appointment as administrator of his son’s estate and if the judgment were set aside for that reason, still remedy the omission and proceed by amendment, although the statute of limitations had run, as the amendment would relate back to the filing of the original complaint and the case of Totten v. Loventhal (1963), 373 S.W.2d 421, 1963 Ky. LEXIS 157 , would be inapplicable, since in that case the attempted amendment asserted “a new and different cause of action.” Modern Bakery, Inc. v. Brashear, 405 S.W.2d 742, 1966 Ky. LEXIS 269 ( Ky. 1966 ).

28.Defenses.

In wrongful death action, defense that accident occurred upon federal property and was within its jurisdiction and that state law did not apply was a separate and distinct defense from that of contributory negligence made in original answer and, where it was not offered until after the case had gone to trial and after plaintiff had introduced her evidence, it was within the sound discretion of the trial court to give or withhold permission to file the amended answer. Henry Bickel Co. v. Wright's Adm'x, 180 Ky. 181 , 202 S.W. 672, 1918 Ky. LEXIS 61 ( Ky. 1918 ).

Where the two persons had been on good terms and had previously hunted together and the victim ceased his teasing when the defendant became agitated, recovery would not be barred by the victim’s own conduct because the evidence was not sufficient to support a finding that the tragic consequence was reasonably foreseeable. Bolen v. Howard, 452 S.W.2d 401, 1970 Ky. LEXIS 358 ( Ky. 1970 ).

Summary judgment for a tortfeasor was reversed as under the public policy of Kentucky, KRS 413.140 did not bar a decedent’s administrator from bringing a wrongful death suit against a tortfeasor convicted of murdering the decedent more than one-year after discovering, when the tortfeasor’s preliminary criminal hearing was held, that the tortfeasor might have been responsible for the crime; the public policy was furthered by allowing the family of a murder victim to wait until a tortfeasor’s conviction before filing suit. DiGiuro v. Ragland, 2004 Ky. App. LEXIS 188 (Ky. Ct. App. June 25, 2004), overruled, Flick v. Estate of Wittich, 2015 Ky. App. Unpub. LEXIS 859 (Ky. Ct. App. Feb. 6, 2015).

29.—Workers’ Compensation Act.

The personal representative of an employee, who accepted provisions of workers’ compensation act, although his death was caused by negligence of employer, could not maintain action to recover damages for death under Ky. Const., § 241. Grannison's Adm'r v. Bates & Rogers Const. Co., 187 Ky. 538 , 219 S.W. 806, Ky. LEXIS 161 (Ky.), writ of error dismissed, 254 U.S. 613, 41 S. Ct. 62, 65 L. Ed. 438, 1920 U.S. LEXIS 1133 (U.S. 1920).

By his acceptance of the workers’ compensation act, the employee elected that the loss resulting from his death should be compensated for in the manner provided by the act and foreclosed the assertion by the personal representative of the constitutional right under Ky. Const., § 241, and the statutory right under this section. Davis v. Solomon, 276 S.W.2d 674, 1955 Ky. LEXIS 441 ( Ky. 1955 ).

In an action brought against an employer under this section by administrator of 16-year-old boy who was drowned when a soft-drink truck on which he was employed as a helper ran off the road into a river, the workers’ compensation act was a defense to the action since the action under this section did not come under the saving feature of the workers’ compensation law (KRS 342.170 (now repealed)) which makes the workers’ compensation act inapplicable where employer employed minor in willful and known violation of any law of Kentucky regulating the employment of minors. Campbell v. East Kentucky Beverage Co., 355 S.W.2d 291, 1962 Ky. LEXIS 62 ( Ky. 1962 ).

An administrator was precluded from bringing a wrongful death action against a fellow employee of his decedent where he was barred by the workers’ compensation act from maintaining an action against his decedent’s employer because the death of the employee was not through the deliberate intention of his employer which would bring the action within the exception of subsection (2) of KRS 342.015 (now repealed). McCray v. Davis H. Elliott Co., 419 S.W.2d 542, 1967 Ky. LEXIS 157 ( Ky. 1967 ).

30.—Contributory Negligence.

In Kentucky, contributory negligence may be pleaded as a defense to action to recover damages for wrongful death. Feige v. Hurley, 89 F.2d 575, 1937 U.S. App. LEXIS 3529 (6th Cir. Ky. 1937 ).

Kentucky Constitution, § 241, giving a personal representative the right to sue for death by negligence or wrongful act, was not designed to deprive a defendant of the right as then existed to plead and prove contributory negligence as a defense. Passamaneck v. Louisville R. Co., 98 Ky. 195 , 32 S.W. 620, 17 Ky. L. Rptr. 763 , 1895 Ky. LEXIS 40 ( Ky. 1895 ).

Kentucky Constitution, § 241 is not intended to deprive a defendant of the right to rely on contributory negligence as a defense and it is available as a defense in an action by a personal representative. Clark's v. Louisville & N. R. Co., 101 Ky. 34 , 39 S.W. 840 ( Ky. 1897 ).

Contributory negligence is a defense to an action under this section, giving a right to sue for death by wrongful act for death of an infant while employed in a mine in violation of KRS 339.220 prohibiting employment of infants under 14 years of age. Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671 , 117 S.W. 280, 1909 Ky. LEXIS 244 ( Ky. 1909 ).

The rule is that if the injury or loss complained of by a person seeking recovery was caused by his own negligence, it will defeat a recovery, although the person committing the injury may also have been negligent, and the fact that the action is brought under this section for the destruction of life does not change the rule; the only difference is that in such case the burden is upon the defendant to show the contributory negligence that is relied upon to defeat a recovery. Cincinnati v. Yocum's Admr, 137 Ky. 117 , 123 S.W. 247, 1909 Ky. LEXIS 485 ( Ky. 1909 ).

Contributory negligence is a good defense to an action to recover damages for death caused by negligent or wrongful act if it is of such a character that death would not have occurred except for the contributory negligence. Cincinnati, N. O. & T. P. R. Co. v. Lovell's Adm'r, 141 Ky. 249 , 132 S.W. 569, 1910 Ky. LEXIS 460 ( Ky. 1 910), modified, 142 Ky. 1 , 133 S.W. 788, 1911 Ky. LEXIS 115 ( Ky. 1911 ).

When a child is employed in a prohibited occupation, and is injured while so employed, employer cannot defeat a recovery on ground of assumption of risk, contributory negligence, or act of fellow servant. Louisville, H. & St. L. R. Co. v. Lyons, 155 Ky. 396 , 159 S.W. 971, 1913 Ky. LEXIS 277 ( Ky. 1913 ).

If one’s death is caused solely by his own negligence, there cannot be a recovery under either the state law or federal employers’ liability act. Ellis' Adm'r v. Louisville, H. & S. L. R. Co., 155 Ky. 745 , 160 S.W. 512, 1913 Ky. LEXIS 355 ( Ky. 1913 ).

Contributory negligence on the part of the deceased infant is available to defendant as a defense in an action based on violation of child labor law. Armstrong's Adm'r v. Sumne & Ratterman Co., 211 Ky. 750 , 278 S.W. 111, 1925 Ky. LEXIS 963 ( Ky. 1925 ).

It was a reciprocal duty of decedents to take such care for their own safety as a reasonably prudent person would have exercised under circumstances similar to those proven in this case, considering the character of the crossing and the obstruction, if any, and if they failed to do this, their personal representative would be precluded from a recovery under this section. Cox's Adm'r v. Cincinnati, N. O. & T. P. R. Co., 238 Ky. 312 , 37 S.W.2d 859, 1931 Ky. LEXIS 232 ( Ky. 1931 ).

Where complaint in action for wrongful death alleged that vendor knew when he sold the liquor to intoxicated person that such person intended to drink all of it without ceasing and that the vendee could not be safely trusted with it, the vendor could reasonably foresee that death might result and the defense of contributory negligence was not available because the act of the vendor was alleged to be intentionally wrongful. Nally v. Blandford, 291 S.W.2d 832, 1956 Ky. LEXIS 405 ( Ky. 1956 ).

An action brought under this section for wrongful death of decedent while he was standing in the highway beside his parked automobile in which a verdict for $21,197, including funeral expenses and damages to decedent’s automobile, was awarded was reversed for jury determination of whether recovery was due under the last clear chance doctrine, since decedent was clearly contributorily negligent for standing in the highway. Mullins v. Bullens, 383 S.W.2d 130, 1964 Ky. LEXIS 15 ( Ky. 1964 ).

Contributory negligence is a complete bar to recovery under this section. Gregory v. Paducah Midstream Service, 401 S.W.2d 40, 1966 Ky. LEXIS 391 ( Ky. 1966 ).

Pregnant woman who fell on a public sidewalk because her attention was diverted toward a bus stop across the street was contributorily negligent in walking into the sidewalk defect. Louisville v. Stuckenborg, 438 S.W.2d 94, 1968 Ky. LEXIS 150 ( Ky. 1968 ).

Court properly based its allowance of attorney fees on the actual recovery, rather than the damages found by the jury, where the jury apportioned 50 percent of the damages to plaintiff’s negligence. Cox v. Cooper, 510 S.W.2d 530, 1974 Ky. LEXIS 553 ( Ky. 1974 ).

Where an 18-year-old boy was killed while riding as the passenger of a deputy sheriff, when the deputy sheriff lost control of his police cruiser while chasing some speeders, the issue of the passenger’s contributory negligence was a fact question for the jury and the trial court did not err in refusing to enter a directed verdict on the issue in favor of the defendant deputy sheriff. Prater v. Arnett, 648 S.W.2d 82, 1983 Ky. App. LEXIS 278 (Ky. Ct. App. 1983).

31.— —By Parents of Infant.

Contributory negligence of mother was imputed to the father in an action by the father as administrator for the wrongful death of his four-year-old son. Toner's Adm'r v. South C. & C. S. R. Co., 109 Ky. 41 , 58 S.W. 439, 22 Ky. L. Rptr. 564 , 1900 Ky. LEXIS 165 ( Ky. 1900 ).

Instruction that recovery for death of boy under 16, employed contrary to statute, would be defeated by father’s violation of statute was erroneous where mother was also beneficiary, though she died before trial. Kentucky Utilities Co. v. McCarty's Adm'r, 169 Ky. 38 , 183 S.W. 237, Ky. LEXIS 645 (Ky.), modified, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ).

Parent’s violation of the child labor law did not defeat recovery for death for benefit of the other innocent parent. Kentucky Utilities Co. v. McCarty's Adm'r, 169 Ky. 38 , 183 S.W. 237, Ky. LEXIS 645 (Ky.), modified, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ).

In a suit against the employer by a father for wrongful death of child under 16, employer may aver in answer that father consented to employment of boy. Carter Coal Co. v. Love, 173 Ky. 49 , 190 S.W. 481, 1917 Ky. LEXIS 412 ( Ky. 1917 ).

The recovery in the wrongful death action is solely for the benefit of the father and not for the estate of the deceased son, though the action under the statute authorizing it is prosecuted in the name of the personal representative of the deceased son and a recovery for his benefit is not allowed if the father knew of and suffered the unlawful employment. Cincinnati Times Star Co. v. Clay's Adm'r, 195 Ky. 465 , 243 S.W. 16, 1922 Ky. LEXIS 371 ( Ky. 1922 ).

In action for wrongful death of three-year-old child, where father was not at home and the mother was at work in the back part of the house and had directed the child to go into the house and dry his feet, but he disobeyed and escaped out the front door into the road without her knowledge and was struck and killed by a truck the mother was not contributorily negligent. Brown McClain Transfer Co. v. Major's Adm'r, 251 Ky. 741 , 65 S.W.2d 992, 1933 Ky. LEXIS 945 ( Ky. 1933 ).

The test of parent’s negligence is always whether under the circumstances they or either of them exercised that degree of care which an ordinarily prudent person would have exercised under like circumstances. Brown McClain Transfer Co. v. Major's Adm'r, 251 Ky. 741 , 65 S.W.2d 992, 1933 Ky. LEXIS 945 ( Ky. 1933 ).

Negligence of the parents directly and proximately contributing to the death of a child non sui juris will preclude recovery on their part, and the question of the parents’ negligence is usually for the jury. Burton v. Spurlock's Adm'r, 294 Ky. 336 , 171 S.W.2d 1012, 1943 Ky. LEXIS 459 ( Ky. 1943 ).

Where six-year-old child, delivering newspapers for mother with father’s consent, ran into road in front of defendant’s car, it was proper, in action for wrongful death, to give instruction on parent’s contributory negligence. Burton v. Spurlock's Adm'r, 294 Ky. 336 , 171 S.W.2d 1012, 1943 Ky. LEXIS 459 ( Ky. 1943 ).

Recovery in action by administrator of the estate of two-year-old child for his wrongful death when he was struck by an automobile while crossing the highway alone was barred by the contributory negligence of his mother in placing the child in the care of his nine-year-old sister, which contributory negligence was imputed to the father. Wheat's Adm'r v. Gray, 309 Ky. 593 , 218 S.W.2d 400, 1949 Ky. LEXIS 765 ( Ky. 1949 ). See Kentucky Utilities Co. v. McCarty's Adm'r, 169 Ky. 38 , 183 S.W. 237, Ky. LEXIS 645 (Ky.), modified, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ); Brown McClain Transfer Co. v. Major's Adm'r, 251 Ky. 741 , 65 S.W.2d 992, 1933 Ky. LEXIS 945 ( Ky. 1933 ); Caldwell v. Jarvis, 299 Ky. 439 , 185 S.W.2d 552, 1945 Ky. LEXIS 432 ( Ky. 1945 ).

Unless there is something more shown than the marital relation or a parent-child relation, negligence should not be imputed, so the negligence of the father will not bar recovery for the benefit of the mother in an action by administrator of a child’s estate for damages for its wrongful death. Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

Court of Appeals is definitely committed to the doctrine that a father may not recover where his wife’s negligence contributed to the death of a child, since the wife-mother is considered the father’s agent as to the custody of the child and since the recovery sought is for their joint benefit. Emerine v. Ford, 254 S.W.2d 938, 1953 Ky. LEXIS 625 ( Ky. 1953 ).

Paragraph (d) of subsection (2) of this section precludes negligent parents from obtaining a recovery for a tortious act to the child, but the failure of parent to remove disabled vehicle to a narrow shoulder was not negligent as a matter of law nor was the failure to remove three babies in the night to a narrow shoulder of a road grown up in weeds in close proximity to heavy traffic passing by at high speed and the administrator for two of the infants who were killed when the automobile was struck in the rear by a truck could recover for their wrongful death. Service Lines, Inc. v. Mitchell, 419 S.W.2d 525, 1967 Ky. LEXIS 150 ( Ky. 1967 ).

To the extent that any parent may be found guilty of contributory negligence or of imputed contributory negligence, the rule is that such parent is barred from recovery under this section, known as the wrongful death act, and this is true in cases involving violations of the child labor act. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Where the statutory beneficiary under this section is guilty of wrongdoing or negligence that proximately causes or contributes to the wrongful death, he is barred from recovery of his share and he cannot remove the bar by an assignment to the beneficiary or beneficiaries next in the line of succession, any such assignments being considered ineffectual efforts to circumvent the defense of contributory negligence. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

The contributory negligence of a pregnant woman in walking into a sidewalk defect while looking at a bus stop in a wrongful death action brought by the administrator of her “viable” child could not be imputed to the father of the child and bar him from recovery for his share. Louisville v. Stuckenborg, 438 S.W.2d 94, 1968 Ky. LEXIS 150 ( Ky. 1968 ). See Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

32.Presumptions and Burden of Proof.

In an action brought under this section, which was enacted in pursuance of Ky. Const., § 241, to recover for death, it was not necessary that the plaintiff should prove that the deceased exercised ordinary care for his own safety or did not know of the danger, but the defendant may show, to establish contributory negligence, that the deceased was not exercising ordinary care and that he did know of the unsafe appliance or place. Warren's Adm'r v. Jeunesse, 122 S.W. 862 ( Ky. 1909 ).

In cases where one person is killed by the negligent or wrongful act of another, the plaintiff is not required to prove that the defendant was exercising ordinary care for his own safety at the time of his death. Johnson v. Westerfield's Adm'r, 143 Ky. 10 , 135 S.W. 425, 1911 Ky. LEXIS 330 ( Ky. 1911 ).

In action for death of employee, defendant has the burden of showing parent’s violation of child labor law. Kentucky Utilities Co. v. McCarty's Adm'r, 169 Ky. 38 , 183 S.W. 237, Ky. LEXIS 645 (Ky.), modified, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ).

Although no punitive damages could be awarded against a lunatic for wrongful death, it was nevertheless necessary for the plaintiff to prove the facts showing commission and consequence of the tort and that the lunatic did not act in self-defense as was claimed where defendant tendered the issues made by a traverse and a plea of self-defense. Phillips' Committee v. Ward's Adm'r, 241 Ky. 25 , 43 S.W.2d 331, 1931 Ky. LEXIS 11 ( Ky. 1931 ).

Where there was neither verbal nor circumstantial evidence tending to show that the conduct of defendants in any manner or to any extent contributed to the loss of their lives, there was a presumption of due care on their part. Owen Motor Freight Lines v. Russell's Adm'r, 260 Ky. 795 , 86 S.W.2d 708, 1935 Ky. LEXIS 556 ( Ky. 1935 ).

Where petition in action for assault expressly averred that the attempted arrest of decedent by deputy was lawful because he committed a misdemeanor in the presence of the deputy and the deputy committed the acts complained of, if at all, in the exercise of his authority and discharge of his duty as an arresting officer, the burden was on defendant to show excess authority on the part of the deputy. West v. Nantz' Adm'r, 267 Ky. 113 , 101 S.W.2d 673, 1937 Ky. LEXIS 289 ( Ky. 1937 ).

In action by wife’s mother as administratrix of her daughter’s estate against husband’s estate for wrongful death of wife in automobile accident in Ohio, the burden was on plaintiff to prove the contractual relationship, express or implied, to establish the relationship of the wife as a paying passenger rather than as a social guest. Workman v. Hargadon, 345 S.W.2d 644, 1960 Ky. LEXIS 6 ( Ky. 1960 ).

33.Evidence.

In an action for wrongful death, the failure to introduce evidence of earning capacity is not fatal to a recovery. Keys v. Nash's Adm'x, 264 Ky. 398 , 94 S.W.2d 1006, 1936 Ky. LEXIS 338 ( Ky. 1936 ).

An instruction to the jury in a wrongful death action which denied the right of self-defense to defendants if they provoked the encounter was erroneous where there was no evidence whatever that the defendants brought on the encounter which resulted in death of plaintiff’s decedent. Flanary's Adm'x v. Griffin, 239 S.W.2d 248, 1951 Ky. LEXIS 870 ( Ky. 1951 ).

A showing of decedent’s potential capacity or power to earn money is not required in the case of a four-day-old child born prematurely, since it is impossible to furnish any direct evidence of it and to require it would deny recovery entirely. Louisville v. Stuckenborg, 438 S.W.2d 94, 1968 Ky. LEXIS 150 ( Ky. 1968 ).

The defendant in a malpractice suit was not entitled to a directed verdict where the medical testimony was such as to properly present a jury issue under the instructions of the trial court. Rice v. Rizk, 453 S.W.2d 732, 1970 Ky. LEXIS 333 ( Ky. 1970 ).

The testimony of an economic expert is an acceptable way of proving damages to an estate in wrongful death. Prater v. Arnett, 648 S.W.2d 82, 1983 Ky. App. LEXIS 278 (Ky. Ct. App. 1983).

34.—Admissibility.

In an action for wrongful death, it was not proper that evidence of the suffering of deceased between the hour of his injury and that of his death should go to the jury. Chesapeake & O. R. Co. v. Banks' Adm'r, 142 Ky. 746 , 135 S.W. 285, 1911 Ky. LEXIS 290 ( Ky. 1911 ). (See KRS 411.133 ).

Evidence describing acts of defendant two or three days preceding shooting and killing plaintiff’s decedent which were similar to his conduct at the time of the shooting had a bearing and was admissible on the issue of self-defense, although defendant was insane. Phillips' Committee v. Ward's Adm'r, 241 Ky. 25 , 43 S.W.2d 331, 1931 Ky. LEXIS 11 ( Ky. 1931 ).

In an action brought under this section for the benefit of the estate, court did not err in refusing to permit the infant children to be made parties to the action and in refusing to allow testimony to be introduced concerning them. Flanary's Adm'x v. Griffin, 239 S.W.2d 248, 1951 Ky. LEXIS 870 ( Ky. 1951 ).

Ordinarily, evidence concerning the character and habits of the decedent is relevant because they have a bearing on his earning capacity, but evidence reflecting adversely on the moral character of the decedent should be permitted only in the clearest of cases in which its probative value distinctly outweighs its prejudicial effect. Empire Metal Corp. v. Wohlwender, 445 S.W.2d 685, 1969 Ky. LEXIS 170 ( Ky. 1969 ).

Under the Kentucky statute, the character of the husband of the deceased and the relations existing between him and the wife and child were not pertinent to the measure of recovery. Empire Metal Corp. v. Wohlwender, 445 S.W.2d 685, 1969 Ky. LEXIS 170 ( Ky. 1969 ).

Where evidence that the deceased wife was living in the adultery had little more than speculative bearing on her capacity to earn the minimum wage of a waitress or clerk-typist, the evidence was properly excluded. Empire Metal Corp. v. Wohlwender, 445 S.W.2d 685, 1969 Ky. LEXIS 170 ( Ky. 1969 ).

Where widow received benefits under Ohio worker’s compensation statute due to death of her husband, in course of his employment for an Ohio Corporation, KRS 411.188 does not consider such payments to be payments from a collateral source, paid to, or for, the benefit of the estate of the husband, and as such, evidence of the worker’s compensation payments was not admissible at trial in a wrongful death action. Birkenshaw v. Union Light, Heat & Power Co., 889 S.W.2d 804, 1994 Ky. LEXIS 143 ( Ky. 1994 ).

35.—Insufficient.

When the question is one of negligence or no negligence, it is well-settled law that where the evidence is equally consistent with either view, the court should not submit the case to the jury for the party affirming the negligence has failed to prove it; therefore, where evidence taken as a whole tended as much to show that the death of a patient was due to the delay in performing a mastoid operation as any other cause, and it was wholly a matter of conjecture that if the operation had been performed on the day the patient went to see the doctor, the patient’s life could have been saved, the court properly refused to submit the case to the jury. Cochran's Adm'x v. Krause, 144 Ky. 202 , 137 S.W. 1053, 1911 Ky. LEXIS 581 ( Ky. 1911 ).

Where no competent evidence was introduced to show that driver of defendant’s automobile was defendant’s agent or acting in the course of defendant’s business, verdict for plaintiff in action for wrongful death was flagrantly against the weight of the evidence. Davis v. Bennett's Adm'r, 279 Ky. 799 , 132 S.W.2d 334, 1939 Ky. LEXIS 362 ( Ky. 1939 ).

Testimony that a negligently inflicted injury merely hastened a death resulting solely from a previously contracted fatal disease is not equivalent to proof that the injury was a proximate cause thereof when neither the extent of the “hastening” nor the manner in which the injury operated to produce it is shown and hence such testimony is insufficient to sustain a recovery in an action instituted by the personal representative under the authority of Ky. Const., § 241, to recover the damages sustained by the estate through the loss of life. Louisville & N. R. Co. v. Newell, 299 Ky. 65 , 184 S.W.2d 214, 1944 Ky. LEXIS 1013 ( Ky. 1944 ).

Where girl suffering from acute tuberculosis was subjected to exposure to rain due to alleged negligence of ambulance operator and died 51 days later from tuberculosis, and the only evidence that the exposure hastened her death was testimony of a physician in answer to a hypothetical question in which the circumstances were prejudicially exaggerated, while other physicians testified positively that the exposure developed no other disease or complication, defendant ambulance operator was entitled to a directed verdict in action for wrongful death under the authority of Ky. Const., § 241. Louisville & N. R. Co. v. Newell, 299 Ky. 65 , 184 S.W.2d 214, 1944 Ky. LEXIS 1013 ( Ky. 1944 ).

In wrongful death action, where fire destroyed home outside of which the deceased’s burned body was found, and the record did not disclose any evidence of substance upon which a verdict could be based, the cause of death and the origin of the fire which destroyed the home was a matter of conjecture and speculation. Cole's Adm'r v. Cole's Adm'r, 314 Ky. 672 , 236 S.W.2d 927, 1951 Ky. LEXIS 724 ( Ky. 1951 ).

In an action by decedent’s administrator brought in behalf of decedent’s widow and infant child for wrongful death, evidence failed to prove cause of death or any negligent act which could be determined to have been the cause of death where only proof was decedent died from lack of oxygen, and doctor performing autopsy testified that had he been poisoned by gas the result of the autopsy would have been the same and there was no testimony that the conversion to natural gas was done in an unworkmanlike manner or that the furnace had caused any trouble, but the testimony disclosed the cabin was small, four people were present that day, the thermostat controlling the furnace was set high and the heat was excessive, which three factors could have caused the lack of oxygen. James v. England, 349 S.W.2d 359, 1961 Ky. LEXIS 55 ( Ky. 1961 ).

Summary judgment was properly granted to the defendant employer in a wrongful death action where an expert witness for the plaintiff opined that the decedent was delirious or insane when he committed suicide and that ethnic scapegoating, name calling, and verbal hostility at his place of employment were a substantial contributing factor in his psychotic depression and eventual suicide, but did not suggest that the decedent was delirious or insane and either incapable of realizing the nature of his act or unable to resist an impulse to commit it. Epelbaum v. Elf Atochem N. Am., Inc., 2000 U.S. App. LEXIS 17581 (6th Cir. Ky. July 19, 2000).

36.—Sufficient.

Considering testimony improperly rejected by the lower court, there was evidence of a contractual relationship between the wife and the husband under Ohio law and evidence that husband collided head-on with another car while he was trying to pass one or two other cars on a curve was prima facie sufficient to take to the jury the question of his failure to exercise ordinary care, which is the measure of duty to a passenger who is not a guest under the Ohio law. Workman v. Hargadon, 345 S.W.2d 644, 1960 Ky. LEXIS 6 ( Ky. 1960 ).

In an action for the wrongful death of a 14-year-old boy who was standing in the highway, the fact that the driver, blinded by the rays of the sun, continued to proceed ahead causing injury to another in the highway justified or required a finding of actionable negligence. Bell v. Cooksey, 419 S.W.2d 548, 1967 Ky. LEXIS 160 ( Ky. 1967 ).

Testimony of doctor, who delivered baby three days after a fall by its mother on a defective sidewalk, that the fall caused premature labor and birth which resulted in the death of the child was sufficient to establish the necessary causal relationship between the fall and the death where doctor had examined pregnant mother the afternoon prior to the fall and her pregnancy had been proceeding normally. Louisville v. Stuckenborg, 438 S.W.2d 94, 1968 Ky. LEXIS 150 ( Ky. 1968 ).

37.—Competency of Witnesses.

In an action for wrongful death brought under this section by a mother who was administratrix of her daughter’s estate against her daughter’s husband arising out of an automobile accident in Ohio, the competency of the mother as a witness and of her proposed testimony would involve the ascertainment of whether she had a pecuniary interest as a matter of fact under the Ohio law, but other factors which might be considered, such as a disclaimer or extinguishment of any interest by the witness and her qualification to testify on behalf of her decedent’s minor child, although not for herself as a beneficiary, if it would be found that she would be such beneficiary, would be determinable under Kentucky law where the action was brought. Workman v. Hargadon, 345 S.W.2d 644, 1960 Ky. LEXIS 6 ( Ky. 1960 ).

Testimony of mother that her deceased daughter told her over the telephone that she and her husband had spent $300 on an automobile trip was self-serving, but her testimony that the deceased husband confirmed the statement in his conversation may be regarded as an admission against his interests in that it recognized contractual relationship giving wife the status of a paying passenger rather than as a social guest. Workman v. Hargadon, 345 S.W.2d 644, 1960 Ky. LEXIS 6 ( Ky. 1960 ).

The mother of deceased is only potentially a beneficiary of a recovery for wrongful death of her daughter who was survived by a young child and her interest does not disqualify her as a witness. Workman v. Hargadon, 345 S.W.2d 644, 1960 Ky. LEXIS 6 ( Ky. 1960 ).

Under this section, mother of deceased whose estate is seeking to recover damages would not be disqualified as witness on ground of being beneficiary, since the deceased was survived by a child, nor would she be disqualified as a personal representative. Workman v. Hargadon, 345 S.W.2d 644, 1960 Ky. LEXIS 6 ( Ky. 1960 ).

38.Damages.

In estimating compensatory damages in wrongful death actions, the jury may receive evidence concerning the habits, character, physical condition, earning capacity, and probably duration of life of deceased. Cincinnati, N. O. & T. P. R. Co. v. Lovell's Adm'r, 141 Ky. 249 , 132 S.W. 569, 1910 Ky. LEXIS 460 ( Ky. 1 910), modified, 142 Ky. 1 , 133 S.W. 788, 1911 Ky. LEXIS 115 ( Ky. 1911 ).

Damages for wrongful death must be left to the sound discretion of a jury and the court will not interfere with the discretion of the jury unless the amount of damages allowed is so large and disproportional to the probable loss as to strike the mind at first blush as necessarily the result of passion and prejudice on the part of the jury or the consequence of a mistake in the application of the law. West Kentucky Coal Co. v. Shoulders' Adm'r, 234 Ky. 427 , 28 S.W.2d 479, 1930 Ky. LEXIS 200 ( Ky. 1930 ).

Kentucky Constitution, § 54, prohibiting limitation of amount recoverable for injuries, inhibits the Legislature from abolishing rights of action for damages for death or injuries caused by negligence. Ludwig v. Johnson, 243 Ky. 533 , 49 S.W.2d 347, 1932 Ky. LEXIS 159 ( Ky. 1932 ). See Van Galder v. Foster, 243 Ky. 543 , 49 S.W.2d 352, 1932 Ky. LEXIS 160 ( Ky. 1932 ).

The quantum of damages recoverable under the federal employers’ liability act is substantially different from the measure of damages for wrongful death under this section. Roland v. Beckham, 408 S.W.2d 628, 1966 Ky. LEXIS 126 ( Ky. 1966 ).

In action by plaintiffs to recover damages (1) for destruction of their son’s earning power, (2) for the pain and suffering of their son prior to his death and (3) for loss of affection and companionship of their son, defendants were entitled to credit for any amount previously collected by son’s estate from the Department of Transportation, Bureau of Highways for damages for his death, only against the amount plaintiffs recovered for destruction of earning capacity of decedent, since the Board of Claims has no authority to award damages for pain and suffering or for loss of affection and companionship. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

Measure of damages for wrongful death under this section is the value of the destruction of the power of the decedent to earn money and the action is properly brought by the personal representative of the deceased. Birkenshaw v. Union Light, Heat & Power Co., 889 S.W.2d 804, 1994 Ky. LEXIS 143 ( Ky. 1994 ).

In a 42 U.S.C. § 1983 action brought by the administrator of a decedent’s estate arising out of the decedent’s death, the decedent’s Social Security disability payments could be considered by the jury in determining compensatory damages under KRS 411.130(1) because the decedent likely would have continued to receive disability benefits but for his death, and thus, the disability payments were a substitute for earning power and were recoverable. Meinhart v. Campbell, 2009 U.S. Dist. LEXIS 111511 (W.D. Ky. Nov. 30, 2009).

Partial summary judgment was properly granted for physicians in a wrongful death action filed by parents for the loss of their son’s future earning capacity against the physicians under KRS 411.130 . The decedent who was five years old experienced no destruction of his power to labor at the hands of the physicians, so no recovery was available. Aull v. Houston, 345 S.W.3d 232, 2010 Ky. App. LEXIS 8 5 (Ky. Ct. App. 2010), limited, Savage v. Allstate Ins. Co., 2021 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 15, 2021).

Although the decedent was in poor health and without work experience for 15 years, the administrator of her estate averred that the decedent was capable of daily housework and caring for her parents, services that were roughly valued at $25,000. The factual dispute between the healthcare provider and the administrator of the estate concerning what the decedent was physically capable of doing and what value to put on the services she provided (i.e., her ability to earn money) was enough to demonstrate that summary judgment was inappropriate; thus, a decision regarding the sufficiency of the administrator’s damages claims under KRS 411.130 was best left in the sound discretion of the jury. Radford v. DVA Renal Healthcare, Inc., 2010 U.S. Dist. LEXIS 121114 (W.D. Ky. Nov. 16, 2010).

39.—Nature.

As used in Ky. Const., § 241, the word “damages” is used in its broadest sense and includes both compensatory and exemplary damages for injuries resulting in death. Louisville & N. R. Co. v. Kelly's Adm'x, 100 Ky. 421 , 38 S.W. 852, 19 Ky. L. Rptr. 69 , 1897 Ky. LEXIS 20 ( Ky. 1897 ).

In an action arising under Ky. Const., § 241, prior to the enactment of this section, punitive damages were recoverable for death by gross negligence. Louisville & N. R. Co. v. Kelly's Adm'x, 100 Ky. 421 , 38 S.W. 852, 19 Ky. L. Rptr. 69 , 1897 Ky. LEXIS 20 ( Ky. 1897 ).

The court properly instructed the jury that they might allow compensatory damages if there was ordinary negligence, and punitive damages if there was gross negligence. Cincinnati, N. O. & T. P. R. Co. v. Cook's Adm'r, 113 Ky. 161 , 67 S.W. 383, 23 Ky. L. Rptr. 2410 , 1902 Ky. LEXIS 33 ( Ky. 1902 ).

There was no error in the court giving an instruction on punitive damages, since it was gross negligence for a railroad to direct or suffer its trains to be run from 20 to 30 miles an hour over a roadbed it knew to be weak, rotten, defective and without cattle guards. Illinois C. R. Co. v. Sheegog's Adm'r, 126 Ky. 252 , 103 S.W. 323, 31 Ky. L. Rptr. 691 , 1907 Ky. LEXIS 45 ( Ky. 1907 ), aff'd, 215 U.S. 308, 30 S. Ct. 101, 54 L. Ed. 208, 1909 U.S. LEXIS 1760 (U.S. 1909).

The failure of those in charge of a train to give the usual signals of its approach to a crossing at the usual rate of speed at which freight trains travel was not gross, but ordinary, negligence and a punitive damage instruction was not authorized under the evidence. Illinois C. R. Co. v. Moss' Adm'r, 142 Ky. 658 , 134 S.W. 1122, 1911 Ky. LEXIS 250 ( Ky. 1911 ).

In an action under this section for wrongful death while passing over a public railroad crossing, there may be a recovery of compensatory damages for ordinary negligence; and, if the circumstances are such as to bring the case within the purview of KRS 277.060 , there may be recovery of punitive damages. Schmid's Adm'r v. Louisville & N. R. Co., 155 Ky. 237 , 159 S.W. 786, 1913 Ky. LEXIS 236 ( Ky. 1913 ). See Illinois C. R. Co. v. Moss' Adm'r, 142 Ky. 658 , 134 S.W. 1122, 1911 Ky. LEXIS 250 ( Ky. 1911 ).

The failure of employees of railroad in charge of the engine to give the signals required by the law on approaching a crossing in a thinly populated locality was not gross negligence which under this section would entitle plaintiff to recover punitive damages. Schmid's Adm'r v. Louisville & N. R. Co., 155 Ky. 237 , 159 S.W. 786, 1913 Ky. LEXIS 236 ( Ky. 1913 ). See Illinois C. R. Co. v. Moss' Adm'r, 142 Ky. 658 , 134 S.W. 1122, 1911 Ky. LEXIS 250 ( Ky. 1911 ).

Where the services which were compensated for by the basic reparations benefits (BRB’s) were but the ordinary and necessary services that come with day-to-day family life and not services producing economic benefit, these services are clearly not an element of damages for wrongful death, thus the survivor’s replacement services loss benefits should not be credited against a wrongful death award. Luttrell v. Wood, 902 S.W.2d 817, 1995 Ky. LEXIS 64 ( Ky. 1995 ).

To extend the damages for loss of consortium beyond the date of death would result in a double recovery for the surviving spouse beyond that which the wrongful death statute affords which was never available under the common law. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 1995 Ky. LEXIS 136 ( Ky. 1995 ), overruled in part, Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104, 2009 Ky. LEXIS 234 ( Ky. 2009 ).

In seeking the value of room, board, and other essentials provided to the decedent, i.e., approximately $25,000, which the decedent received as payment for the daily care she provided to her parents, her father, as the administrator of the estate, was not seeking compensation for the lost benefit of having the decedent work in his house, but instead was attempting to articulate the basis for the destruction of the decedent’s earnings claims under KRS 411.130 . Radford v. DVA Renal Healthcare, Inc., 2010 U.S. Dist. LEXIS 121114 (W.D. Ky. Nov. 16, 2010).

Future Social Security disability payments to the decedent could not be included in calculating the administrator of the estate’s damages claim under KRS 411.130 because the decedent did not labor for or earn her Social Security disability benefits; instead, she received these payments because she was disabled within the meaning of 42 U.S.C.S. § 423(d)(1)(A), which defines “disability” under the Social Security Act. Radford v. DVA Renal Healthcare, Inc., 2010 U.S. Dist. LEXIS 121114 (W.D. Ky. Nov. 16, 2010).

40.—Measure.

In an action for wrongful death, it is the duty of the jury to fix the actual sum of money which would fairly compensate the estate of decedent for the destruction of decedent’s power to earn money and the affliction which has overtaken the family by reason of the death or the number of children can have no legitimate bearing on the question. Louisville & N. R. Co. v. Eakins' Adm'r, 103 Ky. 465 , 45 S.W. 529, 20 Ky. L. Rptr. 736 , 1898 Ky. LEXIS 22 ( Ky. 1898 ).

If the administrator sues to recover for the death of his intestate caused by the negligence of another, there can be no recovery for the physical or mental suffering of his intestate or the mere impairment of his power to earn money, but recovery is for the death of the intestate alone and is limited to such a sum as will compensate his estate for the destruction of his power to earn money. Louisville & N. R. Co. v. Simrall's Adm'r, 127 Ky. 55 , 104 S.W. 1011, 31 Ky. L. Rptr. 1269 , 1907 Ky. LEXIS 114 ( Ky. 1907 ).

The wages being earned is merely evidence for the jury to consider, and the damages recoverable under this section do not depend solely upon the earnings but are an important circumstance constituting one element that must be considered in connection with many other pertinent facts. West Kentucky Coal Co. v. Shoulders' Adm'r, 234 Ky. 427 , 28 S.W.2d 479, 1930 Ky. LEXIS 200 ( Ky. 1930 ).

Hospital and physician’s bills are not recoverable in an action brought under this section, since the only recovery that can be had is for the destruction of decedent’s power to earn money, which confines the right of recovery to damages for the death of the decedent and does not allow for any financial loss sustained by him prior to his death. West v. Nantz' Adm'r, 267 Ky. 113 , 101 S.W.2d 673, 1937 Ky. LEXIS 289 ( Ky. 1937 ) (see KRS 411.133 ).

The measure of damages for death in this state is the permanent reduction of decedent’s power to earn money and not the loss sustained by any particular claimant or claimants. Bessire & Co. v. Day's Adm'x, 268 Ky. 87 , 103 S.W.2d 644, 1937 Ky. LEXIS 404 ( Ky. 1937 ).

The jury, of course, had the right without any evidence of earning power to exercise their own judgment in the matter and determine to what extent the decedent’s earning power had been reduced. Madisonville v. Nisbet's Adm'r, 270 Ky. 248 , 109 S.W.2d 593, 1937 Ky. LEXIS 53 ( Ky. 1937 ).

Jury could consider fact that deceased was eligible to receive pension from his employer in determining damages. Wilkins v. Hopkins, 278 Ky. 280 , 128 S.W.2d 772, 1939 Ky. LEXIS 437 ( Ky. 1939 ).

Measure of damages in action for wrongful death is amount of loss to the estate of deceased because of the permanent reduction of his power to earn money. Wilkins v. Hopkins, 278 Ky. 280 , 128 S.W.2d 772, 1939 Ky. LEXIS 437 ( Ky. 1939 ).

Damages for death is such sum as fairly and reasonably compensates decedent’s estate for the destruction of his power to earn money, and the nature of the injuries has no bearing on the amount of damages. Cuniffe's Ex'x v. Johnson, 279 Ky. 663 , 132 S.W.2d 47, 1939 Ky. LEXIS 341 ( Ky. 1939 ).

Necessarily, damages for death are speculative and depend on many unpredictable factors such as the length of time the decedent would have lived but for the accident, the probable condition of his health thereafter and his ability to work, retention of his employment, amount of his earnings, and amount saved out of his earnings. Cuniffe's Ex'x v. Johnson, 279 Ky. 663 , 132 S.W.2d 47, 1939 Ky. LEXIS 341 ( Ky. 1939 ).

Failure to furnish jury with proof as to decedent’s earning power will not prevent them from exercising their own judgment in the matter and determining the amount of damages the estate has suffered. Heskamp v. Bradshaw's Adm'r, 294 Ky. 618 , 172 S.W.2d 447, 1943 Ky. LEXIS 507 ( Ky. 1943 ).

Since a pension is a substitute for earning power, a pension, especially one that will continue until the death of the recipient, is a proper element to be considered by the jury in arriving at a verdict in an action brought for damages for the death of a person by tortious act pursuant to this section. Heskamp v. Bradshaw's Adm'r, 294 Ky. 618 , 172 S.W.2d 447, 1943 Ky. LEXIS 507 ( Ky. 1943 ).

Cause of action for wrongful death accrues to the estate of the deceased and the measure of damages is the destruction of the deceased’s power to earn money. Spangler's Adm'r v. Middlesboro, 301 Ky. 237 , 191 S.W.2d 414, 1945 Ky. LEXIS 735 ( Ky. 1945 ). See Roland v. Beckham, 408 S.W.2d 628, 1966 Ky. LEXIS 126 ( Ky. 1966 ).

Funeral expenses of a deceased are an element of damages for wrongful death and should be considered in arriving at amount of recovery in an action by the personal representative of deceased against wrongdoer. Square Deal Cartage Co. v. Smith's Adm'r, 307 Ky. 135 , 210 S.W.2d 340, 1948 Ky. LEXIS 702 ( Ky. 1948 ).

Where decedent was killed in automobile collision caused by concurrent negligence of her husband and another defendant, in an action by decedent’s personal representative against the two defendants the husband was not entitled to share in the recovery; however, the decedent’s two surviving children were entitled to one half the amount of the verdict less funeral expenses and costs of administration, and judgment should have been entered for such amount, plus expenses and cost, with the amounts to be assessed against the defendants in proportion to amount of verdict against each. Bays v. Cox' Adm'r, 312 Ky. 827 , 229 S.W.2d 737, 1950 Ky. LEXIS 750 ( Ky. 1950 ).

In wrongful death actions by administrator of estates of defendant’s deceased mother and his deceased minor child, the recovery must be reduced by the father’s distributive share after the payment of deceaseds’ funeral expenses and administrative costs. Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

The measure of damages in a wrongful death action is the destruction of the deceased’s power to earn money and not the destruction of decedent’s income from the particular work in which he was engaged at the time of the wrongful death and decedent’s potential for earning money is a proper consideration. Roland v. Beckham, 408 S.W.2d 628, 1966 Ky. LEXIS 126 ( Ky. 1966 ).

The measure of damages in the destruction of the decedent’s power to earn money. Empire Metal Corp. v. Wohlwender, 445 S.W.2d 685, 1969 Ky. LEXIS 170 ( Ky. 1969 ).

The statute has been construed to measure damages by loss to the decedent’s estate, although the damages, once recovered, are distributed directly to the statutory beneficiaries. Empire Metal Corp. v. Wohlwender, 445 S.W.2d 685, 1969 Ky. LEXIS 170 ( Ky. 1969 ).

The measure of recovery under the wrongful death act is the loss to the decedent’s estate caused by the destruction of his earning power. Humble v. Mountain State Constr. Co., 441 F.2d 816, 1971 U.S. App. LEXIS 10566 (6th Cir. Ky. 1971 ).

Court properly based its allowance of attorney fees on the actual recovery, rather than the damages found by the jury, where the jury apportioned 50 percent of the damages to plaintiff’s negligence. Cox v. Cooper, 510 S.W.2d 530, 1974 Ky. LEXIS 553 ( Ky. 1974 ).

The damages recoverable in a wrongful death action are such sums as will fairly and reasonably compensate the decedent’s estate for the destruction of the decedent’s earning power and do not include the affliction which has overcome the family by reason of the wrongful death. Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

The measure of damages for a wrongful death under this statute is the value of the destruction of the power of the decedent to earn money; the existence and status of survivors has no bearing on the calculation of this value. Luttrell v. Wood, 902 S.W.2d 817, 1995 Ky. LEXIS 64 ( Ky. 1995 ).

Punitive damages were recoverable where an employer was not an agent of the city, and thus did not qualify as an entity of local government, and evidence of gross negligence existed, specifically: that the employer misrepresented the situation to the Department of Highways in order to circumvent the permit process, that it changed the original detour route without notifying the proper entities, that no traffic control plan was implemented, that there were no advance warning signs at the work zone, that improper barricades were placed at the ends of the work zone, and that the employer left only 90 feet of buffer zone between the barricades and the trailer, when industry standards required at least two hundred twenty (220) feet. Phelps v. Louisville Water Co., 103 S.W.3d 46, 2003 Ky. LEXIS 85 ( Ky. 2003 ).

41.— —Infant.

No recovery can be had for the sorrowing or suffering of the parents of a four-year-old child. The measure of damages is the fair compensation to the estate of the child for the destruction of his capacity to earn money and a verdict of $10,500 should not stand. Louisville & N. R. Co. v. Creighton, 106 Ky. 42 , 50 S.W. 227, 20 Ky. L. Rptr. 1691 , 20 Ky. L. Rptr. 1898 , 1899 Ky. LEXIS 38 ( Ky. 1899 ) (see KRS 411.135 ).

In an action for death of boy employed in violation of statute, if either parent knowingly permitted the employment, the measure of damages was one half the amount which would compensate the estate. Kentucky Utilities Co. v. McCarty's Adm'r, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ).

The father was only entitled to the services of his child while he lived. General Refractories Co. v. Mozier, 235 Ky. 252 , 30 S.W.2d 952, 1930 Ky. LEXIS 332 ( Ky. 1930 ) (see KRS 411.135 ).

Where a child is killed, the father cannot sue and recover for loss of services of his child between the time the child died and the time he would have become 21. General Refractories Co. v. Mozier, 235 Ky. 252 , 30 S.W.2d 952, 1930 Ky. LEXIS 332 ( Ky. 1930 ) (see KRS 411.135 ).

In cases of wrongful death of infant, the whole damage is to estate, and the measure of it is fair compensation for the total destruction of the power to earn money, and there is no cause of action in favor of the parents of the infant for loss of his services during the period of minority. Phillips' Committee v. Ward's Adm'r, 241 Ky. 25 , 43 S.W.2d 331, 1931 Ky. LEXIS 11 ( Ky. 1931 ) (see KRS 411.135 ).

Where an infant child dies in a common disaster with its father, leaving neither a spouse nor a child and without proof as to which survived the other, the mother is entitled to recover only one half of the loss occasioned by the child’s death on a successful wrongful death action against the administrator of the child’s father. McCallum v. Harris, 379 S.W.2d 438, 1964 Ky. LEXIS 238 ( Ky. 1964 ).

A pregnant woman who was found guilty of contributory negligence in walking into a sidewalk defect while looking at a bus stop was barred from recovery for her share by the administrator of the estate of her “viable” child under this section. Louisville v. Stuckenborg, 438 S.W.2d 94, 1968 Ky. LEXIS 150 ( Ky. 1968 ).

Lack of proof of the decedent infant’s power to earn money will not preclude recovery for the wrongful, negligent destruction of the infant’s power to earn money. Rice v. Rizk, 453 S.W.2d 732, 1970 Ky. LEXIS 333 ( Ky. 1970 ).

There is an inference that the infant would have had some earning power and this inference is the basis for recovery. Rice v. Rizk, 453 S.W.2d 732, 1970 Ky. LEXIS 333 ( Ky. 1970 ).

42.—Instructions to Jury.

The earning power of the deceased extended to the probable duration of his life is the measure of damages in an action by personal representative to recover for wrongful death and an instruction to the jury that they should award such sum as “will reasonably and fairly compensate the estate of decedent for the destruction of the power of decedent to earn money” with the entire question, without any other specific instruction on the subject of the power to earn money, left to the jury was sufficient. Louisville & N. R. Co. v. Kelly's Adm'x, 100 Ky. 421 , 38 S.W. 852, 19 Ky. L. Rptr. 69 , 1897 Ky. LEXIS 20 ( Ky. 1897 ).

An instruction to the jury that if they found for the plaintiff, they should assess such damages for the death of plaintiff’s intestate “as will, in the opinion of the jury, reasonably compensate plaintiff for the loss sustained by the death of plaintiff’s intestate” and “in fixing the amount of such compensation, the jury may take into consideration the power of the deceased to earn money” was not erroneous. Chesapeake & O. R. Co. v. Dixon's Adm'x, 104 Ky. 608 , 47 S.W. 615, 20 Ky. L. Rptr. 792 , 1898 Ky. LEXIS 204 ( Ky. 1898 ), aff'd, 179 U.S. 131, 21 S. Ct. 67, 45 L. Ed. 121, 1900 U.S. LEXIS 1856 (U.S. 1900).

Instruction “If the jury should find for the plaintiff, it should be in such a sum as you may believe from the evidence will reasonably and fairly compensate the estate of intestate for the destruction of the power of intestate to earn money, not exceeding $40,000, the amount claimed in the petition; and you can consider the age of the intestate, his capacity to earn money, and the probable duration of his life” was not erroneous for failure to contain after the words “to earn money” the further words “caused by his death.” Louisville & N. R. Co. v. Simrall's Adm'r, 127 Ky. 55 , 104 S.W. 1011, 31 Ky. L. Rptr. 1269 , 1907 Ky. LEXIS 114 ( Ky. 1907 ).

An instruction on the measure of damages “If your finding be for the plaintiff, then you will find such a sum in damages as you may believe from the evidence will reasonably compensate the estate of deceased, for the destruction of his power to earn money, not exceeding, however, the amount of $30,000, the sum claimed in the petition” has been frequently and uniformly approved. Cincinnati, N. O. & T. P. R. Co. v. Lovell's Adm'r, 141 Ky. 249 , 132 S.W. 569, 1910 Ky. LEXIS 460 ( Ky. 1 910), modified, 142 Ky. 1 , 133 S.W. 788, 1911 Ky. LEXIS 115 ( Ky. 1911 ).

The court erred in instructing the jury to credit its verdict by an amount paid by an electric company, in settlement of a suit by plaintiff as administrator of decedent’s estate, though such sum was more than sufficient to compensate plaintiff for his pecuniary loss, decedent’s estate, not plaintiff as administrator thereof, being the beneficiary of such payment, and the pecuniary resources of plaintiff as dependent not being a subject of inquiry. Chesapeake & O. R. Co. v. Maggard's Adm'r, 193 Ky. 259 , 235 S.W. 736, 1921 Ky. LEXIS 220 ( Ky. 1921 ).

The jury should be instructed only to the effect that the measure of damages in a death case is such sum as will reasonably compensate the estate of the decedent for the destruction of his power to earn money and the jury should not be told that the loss is the amount which would probably be made and saved but for the intervening death. West Kentucky Coal Co. v. Shoulders' Adm'r, 234 Ky. 427 , 28 S.W.2d 479, 1930 Ky. LEXIS 200 ( Ky. 1930 ).

Where the jury failed to follow the court’s instructions to award some sum on all elements of proven damages, a new trial had to be awarded because the verdict was contrary to the law. Rice v. Rizk, 453 S.W.2d 732, 1970 Ky. LEXIS 333 ( Ky. 1970 ).

Punitive damages awarded to an injured party in a wrongful death action violated the Due Process Clause as the jury considered a manufacturer’s conduct on a nationwide scale in awarding the punitive damages and as the jury instructions did not provide a safeguard from extraterritorial punishment. Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 2004 Ky. LEXIS 226 ( Ky. 2004 ).

43.—Not Excessive.

In an action under this section against airline by decedent’s widow as administratrix for wrongful death of her husband resulting from an airplane crash in Kentucky, airline was found guilty of negligence in allowing insufficiently trained pilot to land aircraft and judgment for $175,000 and funeral expenses was affirmed. American Airlines, Inc. v. United States, 418 F.2d 180, 1969 U.S. App. LEXIS 10660 (5th Cir. Tex. 1969).

A verdict of $6,909, as the actual pecuniary value of decedent’s life to his children, was not excessive, where testimony showed that deceased earned $630 per annum, that the probable duration of his life was 26.72 years, that he spent $15.00 to $20.00 per month upon himself when he lived away from his children and had more than ordinary health and vigor. Louisville & N. R. Co. v. Graham's Adm'r, 98 Ky. 688 , 34 S.W. 229, 17 Ky. L. Rptr. 1229 , 1896 Ky. LEXIS 26 ( Ky. 1896 ).

Although a verdict of $15,000 for damages for wrongful death of a railroad employee was unusually large, it was not so excessive as to indicate that the jury was influenced by passion or prejudice in awarding it, where the employee was 27 years of age, a strong, vigorous man of good character and habits who had been promoted and who had before him in the ordinary course of events a long and useful life. Cincinnati, N. O. & T. P. R. Co. v. Lovell's Adm'r, 141 Ky. 249 , 132 S.W. 569, 1910 Ky. LEXIS 460 ( Ky. 1 910), modified, 142 Ky. 1 , 133 S.W. 788, 1911 Ky. LEXIS 115 ( Ky. 1911 ).

Where decedent was 31 when he met his death and had at that time a life expectancy of 391/2 years and his annual earnings (not considering outside jobs such as the one he was working on when killed) aggregated at least $3,600 and his prospective life earnings was $142,000, the jury’s verdict of $40,000 was not excessive. McCoy v. Carter, 323 S.W.2d 210, 1959 Ky. LEXIS 323 ( Ky. 1959 ).

A verdict of $15,500 for the wrongful death of an 18-month-old child was not so excessive as to reflect at first blush that it resulted from passion or prejudice. McCallum v. Harris, 379 S.W.2d 438, 1964 Ky. LEXIS 238 ( Ky. 1964 ).

The life expectancy of a seven-year-old child killed when struck by a truck was 63 years and an award of $37,200 in an action for wrongful death was not excessive. Modern Bakery, Inc. v. Brashear, 405 S.W.2d 742, 1966 Ky. LEXIS 269 ( Ky. 1966 ).

A verdict for $20,000 for the wrongful death of a 56-year-old man with a life expectancy of 12.38 years earning $850 a year working 20 hours a week was not excessive where he devoted virtually all his nonworking time caring for an invalid wife for whom he had a legal and moral duty to provide care, and it was immaterial whether he worked out and earned the money to hire it done or stayed at home and performed it himself. Roland v. Beckham, 408 S.W.2d 628, 1966 Ky. LEXIS 126 ( Ky. 1966 ).

A verdict of $25,000 for the wrongful death of a “viable” child born prematurely three (3) days after its mother fell on a defective sidewalk and who died four (4) days later was not excessive as the child had a life expectancy of 72.03 years. Louisville v. Stuckenborg, 438 S.W.2d 94, 1968 Ky. LEXIS 150 ( Ky. 1968 ).

In an action for recovery for wrongful death, since under Kentucky law jury, in determining the loss to the decedent’s estate by reason of destruction of his earning power, was not limited to a consideration of the decedent’s average annual earnings, nor his highest yearly earnings, verdict of $100,000 being well within the limits of decedent’s reasonable potential lifetime earnings, district court’s denial of a new trial on the ground that the award of $100,000 for compensatory damages was excessive did not constitute an abuse of discretion. Humble v. Mountain State Constr. Co., 441 F.2d 816, 1971 U.S. App. LEXIS 10566 (6th Cir. Ky. 1971 ).

44.—Inadequate.

The trial judge, in a wrongful death action brought on behalf of an 18-year-old passenger of a deputy sheriff who died when the deputy sheriff lost control of his cruiser while chasing speeders, did not abuse his discretion in setting aside the first jury verdict for the plaintiff as inadequate and assigning the case for a new trial upon the damage issue. Prater v. Arnett, 648 S.W.2d 82, 1983 Ky. App. LEXIS 278 (Ky. Ct. App. 1983).

In a wrongful death action, a limited retrial was required because a jury verdict of zero awarded for a child’s power to earn money was inadequate. On retrial, the jury should also be informed of such sums as were previously awarded to the decedent’s estate for loss of affection and companionship, for pain and suffering from the time of the child’s injury until the child’s death, and for medical and funeral expenses. Turfway Park Racing Ass'n v. Griffin, 834 S.W.2d 667, 1992 Ky. LEXIS 83 ( Ky. 1992 ).

45.Distribution of Amount Recovered.

An action may be maintained in one (1) state for the negligent destruction of life in another state pursuant to a statute of the latter and in such event the sum received should be distributed according to the laws of the state where the cause of action accrued and not where it was brought. McDonald v. McDonald, 96 Ky. 209 , 28 S.W. 482, 16 Ky. L. Rptr. 412 , 1894 Ky. LEXIS 114 ( Ky. 1894 ).

Before distribution to the kindred of the deceased, there should have been paid out of the fund recovered under this section the cost of administering that particular fund recovered under this section the cost of administering that particular fund, including attorney’s fees, and costs incurred in connection with prosecution of the suit in which the recovery was made, and funeral expenses and all other expenses incurred in the administration of the intestate’s estate should have been paid out of his general estate. O'Malley's Adm'r v. McLean, 113 Ky. 1 , 67 S.W. 11, 23 Ky. L. Rptr. 2258 , 1902 Ky. LEXIS 13 ( Ky. 1 902).

The general assembly’s provision in this section pursuant to the authority contained in Ky. Const., § 241, that “the amount recovered, less funeral expenses and the cost of administration and costs of recovery including attorney’s fees, not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased” intended that the recovery was to go directly to the widow and children to compensate for the loss of earnings of the husband and father and was not intended as a protection for the general creditors of the deceased. O'Malley's Adm'r v. McLean, 113 Ky. 1 , 67 S.W. 11, 23 Ky. L. Rptr. 2258 , 1902 Ky. LEXIS 13 ( Ky. 1 902).

Damages recovered by an administrator for decedent’s wrongful death do not pass under will of decedent. Sturges v. Sturges, 126 Ky. 80 , 102 S.W. 884, 31 Ky. L. Rptr. 537 , 1907 Ky. LEXIS 27 ( Ky. 1907 ).

Where decedent leaves no wife, parents or children, recovery for wrongful death is properly applied to discharge of lien debts against devised property. Sturges v. Sturges, 126 Ky. 80 , 102 S.W. 884, 31 Ky. L. Rptr. 537 , 1907 Ky. LEXIS 27 ( Ky. 1907 ).

If fund held by administratrix represented settlement of action for wrongful death, decedent’s debts were not payable therefrom without beneficiaries’ consent. Rose v. Rose, 287 Ky. 224 , 152 S.W.2d 603, 1941 Ky. LEXIS 521 ( Ky. 1941 ).

Declaratory judgment action, brought by administrator to determine whether funds received from settlement of claim for wrongful death of decedent were subject to payment of common-law judgment against administrator secured by attorneys who had performed service for decedent, prior to her death, in effort to recover for personal injuries sustained in the accident out of which the wrongful death claim arose, was proper, and was not a collateral attack on the common-law judgment; and the trial court should have held that the wrongful death funds were not subject to payment of the common-law judgment, but that other funds of the estate were so subject. Emmerke's Adm'r v. Denunzio, 302 Ky. 832 , 196 S.W.2d 599, 1946 Ky. LEXIS 760 ( Ky. 1946 ).

In an action for wrongful death, when the decedent is survived by a spouse, child, or parent, the sum recovered does not become part of decedent’s estate and is not subject to the payment of debts. Emmerke's Adm'r v. Denunzio, 302 Ky. 832 , 196 S.W.2d 599, 1946 Ky. LEXIS 760 ( Ky. 1946 ).

Though defendant was still the wife of decedent at the time of his death, in all likelihood, if husband had lived just a while longer, his marriage would have been dissolved, his death intervened and this section makes no exception for a different distribution eliminating a widow or a widower from the distribution scheme if a marriage dissolution action is pending at the time of the deceased spouse’s death. Rhodes v. Rhodes, 764 S.W.2d 641, 1988 Ky. App. LEXIS 171 (Ky. Ct. App. 1988).

Where wife was a passenger in a car driven by her husband, where the car collided with a train, causing her death, where husband and railroad were both deemed 50% liable, and where the jury awarded the administrator of wife’s estate $500,000, the portion of the award to which husband was entitled by this section, $250,000, was reduced by 50% to the sum of $125,000 and the total amount of the award, $375,000 — $250,000 representing their daughter’s share, and $125,000 representing husband’s share — were to be paid in equal amounts of $187,500 each. Citizens State Bank v. Seaboard S. R., Inc., 803 S.W.2d 585, 1991 Ky. App. LEXIS 13 (Ky. Ct. App. 1991).

Where a father was behind in child support, was questionable in visitation, and lacked involvement in a child’s life, the father willfully abandoned the child and was precluded from sharing in a wrongful death settlement by Mandy Jo’s Law, KRS 411.137 , 391.033 . Kimbler v. Arms, 102 S.W.3d 517, 2003 Ky. App. LEXIS 58 (Ky. Ct. App. 2003).

Trial court could not distribute any portion of the proceeds of a federal court settlement to the first sister in the first sister’s action against the second sister to recover some of the proceeds after the second sister sued the nursing home following the death of their mother. The first sister failed to show that the federal court settlement allocated any proceeds to a wrongful death action and, thus, no such proceeds could be distributed pursuant to KRS 411.130(2). Smith v. McCurdy, 269 S.W.3d 876, 2008 Ky. App. LEXIS 97 (Ky. Ct. App. 2008).

46.—Funeral Expenses.

The widow was not entitled to be reimbursed out of the general estate for funeral expenses paid out of the fund recovered under this section. O'Malley's Adm'r v. McLean, 113 Ky. 1 , 67 S.W. 11, 23 Ky. L. Rptr. 2258 , 1902 Ky. LEXIS 13 ( Ky. 1 902).

Regardless of whether fund held by administratrix represented settlement of wrongful death action, bill for funeral expenses was enforceable claim against estate if properly presented and in absence of agreement that it should be paid out of other funds. Rose v. Rose, 287 Ky. 224 , 152 S.W.2d 603, 1941 Ky. LEXIS 521 ( Ky. 1941 ).

Since subsection (2) of this section recognizes that funeral expenses are payable from the amount recovered in a wrongful death action, the amount recovered constitutes a fund available for the payment of burial expenses and would prevent recovery of union burial benefits when the union bylaws disqualified persons with “other” funds for burial. Burial Fund v. Wyatt, 333 S.W.2d 253, 1960 Ky. LEXIS 180 ( Ky. 1960 ).

47.—Beneficiaries.

Wrongful death claimants would not be bound by a decedent’s arbitration agreement with a nursing home, even if one existed, because their statutorily distinct claim under KRS 411.130(2) did not derive from any claim on behalf of the decedent, and they therefore did not succeed to the decedent’s dispute resolution. Donna Ping v. Beverly Enters., 376 S.W.3d 581, 2012 Ky. LEXIS 108 ( Ky. 2012 ), cert. denied, 569 U.S. 954, 133 S. Ct. 1996, 185 L. Ed. 2d 879, 2013 U.S. LEXIS 3242 (U.S. 2013).

Decedent's beneficiaries did not have to arbitrate wrongful death claims against a nursing home because the decedent's arbitration agreement, when admitted to the nursing home, did not bind the beneficiaries, as the beneficiaries' claims accrued independently, so no such agreement could encompass the claims. HQM of Pikeville, LLC v. Collins, 2014 Ky. App. LEXIS 127 (Ky. Ct. App., sub. op., 2014 Ky. App. Unpub. LEXIS 1049 (Ky. Ct. App. July 18, 2014).

Trial court properly denied the nursing homes' motions for relief from judgments because, while arbitration was not only sanctioned, but indeed promoted, by the Kentucky Constitution, the arbitration agreements at issue were never validly formed where the powers vested in the attorneys-in-fact did not encompass the power to enter into an arbitration agreements regarding the claims of their decedents, the authority to waive the decedents' constitutional rights of access to the courts by court or jury and to appeal to a higher court were not explicitly set out in the power-of-attorney document, and the attorneys-in-fact were not authorized to enter into arbitration agreements on behalf of the wrongful death beneficiaries. Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 2015 Ky. LEXIS 1867 ( Ky. 2015 ), rev'd, in part, vacated, 137 S. Ct. 1421, 197 L. Ed. 2d 806, 2017 U.S. LEXIS 2948 (U.S. 2017).

Administrator of wife, deserting husband and living in adultery, was entitled to damages for death of husband. Napier's Adm'r v. Napier's Adm'r, 210 Ky. 163 , 275 S.W. 379, 1925 Ky. LEXIS 642 ( Ky. 1925 ).

The person entitled to benefits under this section is to be determined at the time of the death of the person wrongfully killed and the personal representative of the person negligently killed acts as a representative of the surviving designated relative or relatives and, if the survivor or survivors subsequently die, recovery goes to the relative’s estate or estates and descends as other personal property. Sharp's Adm'r v. Sharp's Adm'r, 284 S.W.2d 673, 1955 Ky. LEXIS 38 ( Ky. 1955 ).

In the event of recovery, the parent held liable cannot receive the benefits of such recovery as a designated beneficiary under this section. Harlan Nat'l Bank v. Gross, 346 S.W.2d 482, 1961 Ky. LEXIS 309 ( Ky. 1961 ). See Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

Anyone claiming as a beneficiary under the statute of descent and distribution which is embodied in this section must show that the persons ahead of him in the order of taking are dead. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Brothers and sisters of a deceased are entitled to a recovery only upon a showing that the deceased left no surviving spouse, child, or parent. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

The persons entitled to benefits under this section are specifically set forth and are to be determined as of the time of death of the person negligently or wrongfully killed. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

The amount recovered under this section does not inure to the decedent or his estate but goes directly to the kindred of the deceased in the order provided in this section. Rhodes v. Rhodes, 764 S.W.2d 641, 1988 Ky. App. LEXIS 171 (Ky. Ct. App. 1988).

Proceeds of uninsured motorist coverage from decedent’s insurance policy were distributed to the administrator in wrongful death action for the decedent’s intestate heirs rather than to the executrix who was the sole beneficiary of the decedent’s will. Robertson v. Vinson, 58 S.W.3d 432, 2001 Ky. LEXIS 174 ( Ky. 2001 ).

Brothers had standing to bring a legal malpractice claim because they were the intended beneficiaries of the claim and were entitled to one-half of the proceeds of any recovery and the one-year statute of limitations period, and thus, the attorneys’ actions in litigating the claim were undertaken for the brothers; the one-year statute of limitations period was tolled until the brothers reached the age of majority. Pete v. Anderson, 413 S.W.3d 291, 2013 Ky. LEXIS 588 ( Ky. 2013 ).

48.Abatement or Survival on Death of Party Beneficiary.

Mother’s death does not abate suit for damages for negligent killing of son, and administrator may continue suit for recovery of her loss up to time of her death. Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S. Ct. 452, 81 L. Ed. 685, 1937 U.S. LEXIS 1138 (U.S. 1937).

Action by a father, as administrator, to recover damages for the death of child did not abate upon death of the father, but action should have been revived in name of his successor as administrator, the recovery, after payment of funeral expenses, costs of administration, and cost of recovery, being for the benefit of the father’s estate, plaintiff’s intestate having left no widow, child, or mother. Thomas' Adm'r v. Maysville Gas Co., 112 Ky. 569 , 66 S.W. 398, 23 Ky. L. Rptr. 1879 , 1902 Ky. LEXIS 198 ( Ky. 1902 ).

49.Notice to City.

The notice to a city required by KRS 411.110 to be given within 90 days of the accident does not apply to an action for wrongful death. Spangler's Adm'r v. Middlesboro, 301 Ky. 237 , 191 S.W.2d 414, 1945 Ky. LEXIS 735 ( Ky. 1945 ).

50.Settlement of Action.

In an action against a city and a street railway company for negligent death caused by their concurrent negligence, the administrator’s right to recover against the city is not affected by the sole heir’s settlement with the railway company. Louisville v. Hart's Adm'r, 143 Ky. 171 , 136 S.W. 212, 1911 Ky. LEXIS 377 ( Ky. 1911 ).

The Legislature is empowered to direct what person may settle actions for negligent or wrongful death. Louisville v. Hart's Adm'r, 143 Ky. 171 , 136 S.W. 212, 1911 Ky. LEXIS 377 ( Ky. 1911 ).

The recovery under this section not being that character of property never having been owned by an adopted child is not susceptible of being inherited from it by its adoptive parents, but goes directly to those named in this section as beneficiaries of the recovery and settlement with personal representative for wrongful death of adopted child was bar to adoptive parent’s action for negligence causing adoptive child’s death. Jackson's Adm'x v. Alexiou, 223 Ky. 95 , 3 S.W.2d 177, 1928 Ky. LEXIS 289 ( Ky. 1928 ).

Settlement with the alleged tortfeasor by the administrator of deceased employee for damages for causing death concluded in advance of application for compensation by the defendants under the state workers’ compensation law did not release employer from duty to pay the compensation. Napier v. John P. Gorman Coal Co., 242 Ky. 127 , 45 S.W.2d 1064, 1931 Ky. LEXIS 714 ( Ky. 1931 ).

A settlement of an action under this section made by a representative is binding upon the beneficiaries. Louisville & N. R. Co. v. Turner, 290 Ky. 602 , 162 S.W.2d 219, 1942 Ky. LEXIS 470 ( Ky. 1942 ).

51.Statute of Limitations.

The question of whether a libel in admiralty for the death of a boat passenger in a collision on a navigable river, based on this section and timely filed by an ancillary administrator appointed by a state court without jurisdiction over the subject matter of the death action, could be amended, at a time when a new suit would be barred by state statute of limitations, so as to allege a subsequent effective appointment of the same person as ancillary administrator by a state court having jurisdiction must be determined by federal admiralty practice rather than state law and, under such practice, the amendment should be permitted. Levinson v. Deupree, 345 U.S. 648, 73 S. Ct. 914, 97 L. Ed. 1319, 1953 U.S. LEXIS 2548 (U.S. 1953).

The limitation of one (1) year governs an action based on this section, although brought in a foreign jurisdiction. De Valle Da Costa v. Southern P. Co., 167 F. 654, 1909 U.S. App. LEXIS 5362 (C.C.D. Mass. 1909).

The limitation of one (1) year (KRS 413.140 ) for injuries to the person applies to action for wrongful death. Salyer v. Consolidation Coal Co., 246 F. 794, 1918 U.S. App. LEXIS 1784 (6th Cir. 1918), cert. denied, 246 U.S. 669, 38 S. Ct. 345, 62 L. Ed. 931, 1918 U.S. LEXIS 2039 (1918). See Irwin v. Smith, 150 Ky. 147 , 150 S.W. 22, 1912 Ky. LEXIS 850 ( Ky. 1912 ).

This section contains no limitation period and the Kentucky one-year general statute of limitations (KRS 413.140 ) is procedural only and cannot be treated as a part of the right under state law so, where in libel for wrongful death of boat passenger in collision on navigable river based on this section, amendment was made under admiralty law, it did relate back and was not barred by the one-year general statute of limitations. Deupree v. Levinson, 186 F.2d 297, 1950 U.S. App. LEXIS 3753 (6th Cir. 1950), cert. denied, 341 U.S. 915, 71 S. Ct. 736, 95 L. Ed. 1351, 1951 U.S. LEXIS 1969 (1951). See Hess v. United States, 361 U.S. 314, 80 S. Ct. 341, 4 L. Ed. 2d 305, 1960 U.S. LEXIS 1883 (U.S. 1960).

Under the laws of this state, a foreign executor is not permitted to maintain an action for wrongful death and filing of complaint by foreign executors did not suspend the running of the statute of limitations and, where the foreign executors, after the statutory period for commencing the action had elapsed, filed a motion to amend their complaint and join as party plaintiff and ancillary administrator who was a citizen of this state, the court properly overruled the motion and dismissed the case. Seymour v. Johnson, 235 F.2d 181, 1956 U.S. App. LEXIS 3841 (6th Cir. Ky. 1956 ).

The cause of action to recover for the death of a person from an injury inflicted by negligence is, by this section, vested in his personal representative, and infancy of persons who were not entitled to bring the action can have no effect upon the running of the statute of limitations requiring such an action to be commenced within one (1) year from the time of death of the person injured. Van Vactor's Adm'x v. Louisville & N. R. Co., 112 Ky. 445 , 66 S.W. 4, 23 Ky. L. Rptr. 1743 , 1902 Ky. LEXIS 180 ( Ky. 1902 ).

Administrator’s cause of action for death of his intestate under this section and under statute of limitations requiring action to be commenced “within one year next after the cause of action accrued” is barred one (1) year from death of intestate, and does not run until one (1) year from qualification of administrator, in view of legislative history of latter statute. Faulkner's Adm'r v. Louisville & N. R. Co., 184 Ky. 533 , 212 S.W. 130, 1919 Ky. LEXIS 85 ( Ky. 1919 ), overruled, Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ).

Where the defendant in a wrongful death action delayed until after the expiration of the statute of limitations to raise, by amended answer, the question of the capacity of the plaintiff, who had been appointed ancillary administrator after the deceased’s widow had been appointed ancillary administratrix by another county court, to sue without any explanation of the delay — evidence indicated by the defendant’s attorney knew of the question when the suit was commenced, and the estate would lose its cause of action, if the amendment were allowed — the trial court erred in granting the defendant leave to amend his answer. Lawrence v. Marks, 355 S.W.2d 162, 1961 Ky. LEXIS 17 ( Ky. 1961 ).

An action for wrongful death is barred one (1) year after the date of injury by the provisions of paragraph (a) of subsection (1) of KRS 413.140 and does not come under the provisions of subsection (1) of KRS 413.180 which, if the appointment of a personal representative is made within one (1) year following death, bars an action after one (1) year from the appointment of the personal representative. Totten v. Loventhal, 373 S.W.2d 421, 1963 Ky. LEXIS 157 ( Ky. 1963 ), overruled, Perkins v. Read, 616 S.W.2d 495, 1981 Ky. LEXIS 248 ( Ky. 1981 ), overruled, Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ).

52.Common-law Action.

In an action by the administrator of an infant’s estate to recover damages for the wrongful death of the infant, contributory negligence of the infant may be relied on as a defense. Caldwell v. Jarvis, 299 Ky. 439 , 185 S.W.2d 552, 1945 Ky. LEXIS 432 ( Ky. 1945 ).

In common-law action by administrator of deceased infant employee against employer to recover damages for wrongful death of employee, in which action recovery could be had only on proof that employer had employed the infant in wilful and known violation of child labor laws, knowledge of such illegal employment on the part of the parents of the infant would bar them from sharing in the recovery, and knowledge by one parent would bar the other parent from receiving more than half of the amount sued for. Caldwell v. Jarvis, 299 Ky. 439 , 185 S.W.2d 552, 1945 Ky. LEXIS 432 ( Ky. 1945 ).

53.Federal Employers’ Liability Act.

Where interstate carrier was liable for death of servant under federal employer’s liability act, it could not also be made liable under state statute for wrongful death, the federal act, where it applies, being exclusive. Kelly's Adm'x v. Chesapeake & O. R. Co., 201 F. 602, 1912 U.S. Dist. LEXIS 1058 (D. Ky. 1912 ).

Action provided by federal employers’ liability act is exclusive of one for same cause under state laws and when coming within provisions of federal act must be brought thereunder though prosecuted in state court. Hines v. Burns' Adm'x, 189 Ky. 761 , 226 S.W. 109, 1920 Ky. LEXIS 511 ( Ky. 1920 ).

The law applicable to an action for death of a young brakeman killed in a collision while engaged in interstate commerce is the federal employers’ liability act and the interpretations thereof given by the Supreme Court of the United States which are to be regarded as an integral part of it. Louisville & N. R. Co. v. Noble's Adm'x, 246 Ky. 86 , 54 S.W.2d 636, 1932 Ky. LEXIS 719 ( Ky. 1932 ).

54.Federal Tort Claims Act.

Where recovery was sought under this section by personal representative of estate in federal court under the federal tort claims act by reason of the death of his decedent who was an engineer on a train and the United States as defendant impleaded the railroad company charging its negligence was the sole or contributory cause of the accident resulting in the death, evidence was sufficient to support judgment in favor of the administrator for $25,000 for destruction of his decedent’s earning power and the United States was entitled to recover 50 percent of that amount from the railroad company. Anderson v. United States, 118 F. Supp. 498, 1953 U.S. Dist. LEXIS 4189 (D. Ky. 1953 ).

Cited in:

Casey v. Fidelity & Casualty Co., 278 Ky. 426 , 128 S.W.2d 939, 1939 Ky. LEXIS 449 ( Ky. 1939 ); Bryant v. Old Republic Ins. Co., 431 F.2d 1385, 1970 U.S. App. LEXIS 7109 (6th Cir. 1970); Cooper v. Barth, 464 S.W.2d 233, 1971 Ky. LEXIS 474 ( Ky. 1971 ); Brown v. YWCA, 729 S.W.2d 190, 1987 Ky. App. LEXIS 479 (Ky. Ct. App. 1987); Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ); Sparks v. Craft, 75 F.3d 257, 1996 U.S. App. LEXIS 1604 (6th Cir. 1996); Daley v. Reed, 87 S.W.3d 247, 2002 Ky. LEXIS 199 ( Ky. 2002 ); Estate of Adams v. Trover, 547 S.W.3d 545, 2018 Ky. App. LEXIS 97 (Ky. Ct. App. 2018); Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

1.Beneficiaries.

Unpublished decision: District court erred by granting summary judgment in a professional negligence suit brought against defendant attorney who filed a wrongful death action on behalf of an estate; because plaintiffs, decedent’s children, were statutory beneficiaries of the estate under KRS 411.130(2), the attorney could be held liable to them for negligence. The attorney’s actions in filing the wrongful death suit were intended for their benefit, irrespective of any lack of privity. Anderson v. Pete, 2011 Ky. App. Unpub. LEXIS 989 (Ky. Ct. App. Oct. 7, 2011), aff'd, 413 S.W.3d 291, 2013 Ky. LEXIS 588 ( Ky. 2013 ).

2.Persons Entitled to Sue.

Unpublished decision: In a widow’s wrongful death suit, the motion to intervene filed by decedent’s sister, mother, and father was properly denied because, inter alia, Kentucky law applied to the wrongful death claim, and the Kentucky wrongful death statute would not allocate any damages to them. Boggess v. Price, 2005 FED App. 0497N, 2005 U.S. App. LEXIS 11281 (6th Cir. Ky. June 10, 2005).

33.Evidence.;

35.— Insufficient.

Unpublished decision: In a tort action for negligence, products liability, loss of consortium and wrongful death arising from a collision between a tractor trailer and a car driven by decedent, the trial court properly ruled for defendants because plaintiffs were unable show that any of the defendants committed a wrongful or negligent act. There was no evidence that the underride guard design was defective or that it was in a state of disrepair. Richardson v. Rose Transp., Inc., 617 Fed. Appx. 480, 2015 FED App. 0484N, 2015 U.S. App. LEXIS 11756 (6th Cir. Ky. 2015 ).

Research References and Practice Aids

Cross-References.

Action for negligence causing death survives, Ky. Const., § 241.

Bonds having effect of judgments, death of obligor or obligee, KRS 426.610 .

Death of execution defendant, procedure in case of, KRS 426.555 .

Descent and distribution, KRS ch. 391.

General Assembly not to limit recovery, Ky. Const., § 54.

Right of contribution survives, KRS 412.010 .

Kentucky Bench & Bar.

Savage, Humpty Dumpty in the Street, Vol. 39, No. 2, April 1975 Ky. Bench & B. 9.

Turley, The “New” Doctrine of Comparative Negligence in Kentucky, Volume 49, No. 1, January, 1985 Ky. Bench & B. 8.

Kentucky Law Journal.

Oberst, Recent Developments in Torts: Decisions of the Court of Appeals at the 1956-57 Terms, 46 Ky. L.J. 193 (1958).

Sedler, Babcock v. Jackson in Kentucky: Judicial Method and the Policy-Centered Conflict of Laws, 56 Ky. L.J. 27 (1967).

Germain, Remedies, 63 Ky. L.J. 777 (1974-1975).

Note, Kentucky No-Fault: An Analysis and Interpretation, 65 Ky. L.J. 466 (1976-77).

Kentucky Law Survey, Underwood, Insurance, 70 Ky. L.J. 255 (1981-82).

Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Render, On Unpublished Opinions, 73 Ky. L.J. 145 (1984-85).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Notes, Gehle, Loss of Consortium: Kentucky Should No Longer Prohibit a Child’s Claim for Loss of Parental Consortium Due to the Negligent Act of a Third Party, 84 Ky. L.J. 173 (1995-96).

A Post-Impact Fear of Pre-Impact Fright, 99 Ky. L.J. 401 (2010/2011).

Northern Kentucky Law Review.

Note — Criminal Law — Murder — Intentional Killing of Viable Fetus Not Murder, 11 N. Ky. L. Rev. 213 (1984).

Notes, After Hilen v. Hays — Kentucky’s New Comparative Negligence, 13 N. Ky. L. Rev. 129 (1986).

Note, Jones v. Commonwealth, 20 N. Ky. L. Rev. 831 (1993).

Calvert, Probate Law, 21 N. Ky. L. Rev. 367 (1994).

Article: Recovery of Nonpecuniary Damages in Mass Tort Actions in Kentucky: A Defense Perspective, 35 N. Ky. L. Rev. 197 (2008).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Action by Parents for Loss of Consortium of Child under KRS 411.135 , Form 141.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Wrongful Death of Child, Form 256.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Wrongful Death of Parent—Child’s Loss of Consortium, Form 256.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint to Recover for Damages Suffered Prior to Death and for Wrongful Death Caused by Automobile Accident under KRS 411.130 and KRS 411.133 , Form 141.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Motion for Declaratory Judgment Asserting “Mandy Jo’s Law”, Form 141.04.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Wrongful Death, § 141.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Synopsis to Chapter 141 Wrongful Death, § 141.syn.

Kentucky Instructions to Juries (Civil), 5th Ed., Damages, § 39.01.

Petrilli, Kentucky Family Law, Actions, § 17.6.

Petrilli, Kentucky Family Law, Minors, § 30.29; 1991 Supp., § 30.29.

1.Damages.

In action by plaintiffs to recover damages (1) for destruction of their son’s earning power, (2) for the pain and suffering of their son prior to his death and (3) for loss of affection and companionship of their son, defendants were entitled to credit for any amount previously collected by son’s estate from the Department of Transportation, Bureau of Highways for damages for his death, only against the amount plaintiffs recovered for destruction of earning capacity of decedent, since the Board of Claims has no authority to award damages for pain and suffering or for loss of affection and companionship. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

While the second sister pled a cause of action for wrongful death against the nursing home following the death of the mother, the first sister did not show that a factual basis for a recovery under a wrongful death theory pursuant to existing Kentucky law. Thus, the first sister’s argument about how the federal court settlement proceeds in the matter should be distributed, nothwithstanding the fact that KRS 411.133 did not provide a distribution scheme, was academic at best because no such recovery was involved. Smith v. McCurdy, 269 S.W.3d 876, 2008 Ky. App. LEXIS 97 (Ky. Ct. App. 2008).

2.Time Limit.

Personal injury and wrongful death claims may be prosecuted by the personal representative in one action as was done in this case. It is reasonable to conclude the General Assembly intended for the personal representative to have the same amount of time to prosecute all claims resulting from injury to the decedent including injuries resulting in death. Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ).

Research References and Practice Aids

Kentucky Law Journal.

A Post-Impact Fear of Pre-Impact Fright, 99 Ky. L.J. 401 (2010/2011).

Northern Kentucky Law Review.

Article: Recovery of Nonpecuniary Damages in Mass Tort Actions in Kentucky: A Defense Perspective, 35 N. Ky. L. Rev. 197 (2008).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint to Recover for Damages Suffered Prior to Death and for Wrongful Death Caused by Automobile Accident under KRS 411.130 and KRS 411.133 , Form 141.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Wrongful Death, § 141.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Synopsis to Chapter 141 Wrongful Death, § 141.syn.

1.Application.

The damage provisions of the federal death on the high seas act, 46 USCS § 761, rather than this section, were found applicable in a wrongful death action resulting from an accident involving the collision on the Ohio River of a pleasure cruiser and a tow of 15 barges. In re American Commercial Lines, Inc., 366 F. Supp. 134, 1973 U.S. Dist. LEXIS 11164 (E.D. Ky. 1973 ).

Because Kentucky law did not recognize a claim by an adult parent for the loss of a minor’s consortium, or a claim by a minor child for the loss of a parent’s consortium, and limited both types of consortium claims to wrongful death actions, pursuant to KRS 411.135 , the parent and child’s consortium claims were dismissed. Ferguson v. Aventis Pasteur, Inc., 444 F. Supp. 2d 755, 2006 U.S. Dist. LEXIS 14425 (E.D. Ky. 2006 ).

In an action arising from an airplane crash, the airline company was entitled to dismissal of the survivors’ claims for an award of loss of consortium to the parents of adult children; the plain language of KRS 411.135 restricted such claims to parents of minor children. Combs v. Comair, Inc. (In re Air Crash at Lexington, KY), 556 F. Supp. 2d 665, 2008 U.S. Dist. LEXIS 1216 (E.D. Ky. 2008 ).

In an action arising from an airplane crash, the airline company was entitled to dismissal of the survivors’ claims for an award of loss of consortium to adult children for the loss of their parents; in light of KRS 2.015 , the federal court was not convinced that the Kentucky Supreme Court would recognize an adult child’s claim for loss of consortium of a parent under KRS 411.135 . Combs v. Comair, Inc. (In re Air Crash at Lexington, KY), 556 F. Supp. 2d 665, 2008 U.S. Dist. LEXIS 1216 (E.D. Ky. 2008 ).

1.5.Construction.

By authorizing damages to the parents of a “minor” child for loss of affection and companionship that would have been derived from such child “during its minority,” the Kentucky legislature excluded an award of loss of consortium to the parents of an adult child; any other interpretation of KRS 411.135 renders the modifier “minor” and the words “during its minority” meaningless. Combs v. Comair, Inc. (In re Air Crash at Lexington, KY), 556 F. Supp. 2d 665, 2008 U.S. Dist. LEXIS 1216 (E.D. Ky. 2008 ).

2.Nature of Claim.

The parents of a deceased child have a claim under this section for loss of affection and companionship without regard to whether the personal representative of the decedent ever asserts a claim for wrongful death under KRS 411.130 , and, indeed, without regard to whether a personal representative is ever appointed; therefore, the parents’ claim is separate and apart from that of the personal representative. Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

As the legislature recognized the individuality of children in this section by providing a loss of consortium claim to parents who lose a child, children have a common-law claim for loss of parental consortium. There is no legal distinction between the two (2) causes of action as both seek to redress wrongs which destroy the parent-child relationship. Giuliani v. Guiler, 951 S.W.2d 318, 1997 Ky. LEXIS 74 ( Ky. 1997 ).

3.Sovereign Immunity.

The waiver of sovereign immunity granted by the Board of Claims Act, KRS 44.070 to 44.160 , does not exclude a parent’s claim for loss of affection and companionship of a minor child as created by this section. Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

KRS 411.145(2) which sets out the right of a spouse to recover damages for loss of consortium, is similar in wording to KRS 411.135 , which sets out the right of a parent to recover damages for loss of affection and companionship resulting from the wrongful death of their child, and it follows that the two (2) statutes should be interpreted consistently; a wife’s loss of spousal consortium claim in the Kentucky Board of Claims arising from an injury to her husband caused by a malfunctioning pedestrian control device was barred by KRS 44.070(1), which precluded liability for collateral or dependent claims. City of Danville v. Goode, 122 S.W.3d 591, 2003 Ky. App. LEXIS 314 (Ky. Ct. App. 2003).

4.Father of Illegitimate Child.

The father of an illegitimate child has standing to sue for a wrongful death claim pursuant to KRS 411.130 and this section as well as to inherit from his illegitimate child. Cummins v. Cox, 799 S.W.2d 5, 1990 Ky. LEXIS 94 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 148 (Ky. Dec. 27, 1990).

5.Lost Earning Power.

In a wrongful death action, a limited retrial was required because a jury verdict of zero awarded for a child’s power to earn money was inadequate. On retrial, the jury should also be informed of such sums as were previously awarded to the decedent’s estate for loss of affection and companionship, for pain and suffering from the time of the child’s injury until the child’s death, and for medical and funeral expenses. Turfway Park Racing Ass'n v. Griffin, 834 S.W.2d 667, 1992 Ky. LEXIS 83 ( Ky. 1992 ).

The Supreme Court recognizes that there is measurable value to one’s life other than his or her earning capacity; however, this value is already recoverable in the recognized category of mental suffering, and there is no need to allow for the recoupment of hedonic damages as a separate category of loss. Adams v. Miller, 908 S.W.2d 112, 1995 Ky. LEXIS 122 ( Ky. 1995 ), overruled, Giuliani v. Guiler, 951 S.W.2d 318, 1997 Ky. LEXIS 74 ( Ky. 1997 ).

Tractor-trailer owner, independent trucking operator, and a truck driver were not entitled to a new trial or, in the alternative, remittitur as to the compensatory damages awarded by a jury in an action under KRS 411.135 arising out of an automobile-truck collision; the $1.83 million award to the estate of an infant for the loss of his earning power was not grossly excessive as a matter of law. Estate of Embry v. Geo Transp. of Ind., Inc., 478 F. Supp. 2d 914, 2007 U.S. Dist. LEXIS 51250 (E.D. Ky. 2007 ).

6.Loss of Consortium.

Tractor-trailer owner, independent trucking operator, and a truck driver were not entitled to a new trial or, in the alternative, remittitur as to the compensatory damages awarded by a jury in an action under KRS 411.135 arising out of an automobile-truck collision; the $2.7 million loss-of-parental-consortium verdicts and the $1.475 million loss-of-child consortium verdict were not grossly excessive as a matter of law or otherwise influenced by passion or prejudice. Estate of Embry v. Geo Transp. of Ind., Inc., 478 F. Supp. 2d 914, 2007 U.S. Dist. LEXIS 51250 (E.D. Ky. 2007 ).

A mentally handicapped adult child of woman who was killed in an airplane crash was not entitled pursue a claim for loss of parental consortium; the language of KRS 411.135 , in conjunction with KRS 2.015 setting the age of majority, was plain in restricting claims for loss of consortium to minor children. In re Air Crash at Lexington, 2008 U.S. Dist. LEXIS 18374 (E.D. Ky. Mar. 10, 2008).

Children’s claims for loss of parental consortium were dismissed because Kentucky law prohibited recovery for a minor’s loss of consortium claim if it was not accompanied by a wrongful death claim. Since KRS 411.135 provided a parent with a loss of consortium claim for the loss of a minor child only in wrongful death actions; the “reciprocal” of KRS 411.135 was also limited to wrongful death cases. Brown v. Mason & Dixon Lines, Inc., 2008 U.S. Dist. LEXIS 42062 (W.D. Ky. May 23, 2008).

Summary judgment for an employer and the driver of a work vehicle that struck a deceased grandchild just prior to her death was proper in an action by her grandparent guardian, seeking to recover for loss of consortium, as the clear language of KRS 411.135 included only certain particular classes of persons and excluded other unmentioned classes such as grandparents. Willis v. Louisville/Jefferson County Metro. Sewer Dist., 2010 Ky. App. LEXIS 198 (Ky. Ct. App. Oct. 22, 2010), review denied, ordered not published, 2011 Ky. LEXIS 257 (Ky. Oct. 19, 2011).

While the court did not expressly restrict a child’s claim for loss of parental consortium, the court did say that it was creating a reciprocal claim to the statute; however, there was no reciprocity interest in this case because Kentucky statutes do not recognize a parent’s claim for loss of consortium with their adult children. Pauly v. Chang, 498 S.W.3d 394, 2015 Ky. App. LEXIS 172 (Ky. Ct. App. 2015).

Zero award of damages to parents of a minor child who drowned in a hotel pool required a new trial for the award of some amount for the parents’ loss as the parents testified regarding memories with the child, the emotional pain endured while the child lingered on life support following the drowning, and the loss suffered after the child’s death. While one parent shared fault with the hotel for the child’s drowning, that fault did not preclude recovery, but only required that any award be apportioned based on the percentage of fault. Louisville SW Hotel v. Lindsey, 2019 Ky. App. LEXIS 91 (Ky. Ct. App. May 17, 2019).

Cited in:

Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor, 756 S.W.2d 467, 1988 Ky. LEXIS 56 ( Ky. 1988 ); Charash v. Johnson, 43 S.W.3d 274, 2000 Ky. App. LEXIS 42 (Ky. Ct. App. 2000); Reed v. Daley, — S.W.3d —, 2000 Ky. App. LEXIS 50 (Ky. Ct. App. 2000), rev’d, 87 S.W.3d 247, 2002 Ky. LEXIS 199 ( Ky. 2002 ); Smith v. Vilvarajah, 57 S.W.3d 839, 2000 Ky. App. LEXIS 136 (Ky. Ct. App. 2000); Daley v. Reed, 87 S.W.3d 247, 2002 Ky. LEXIS 199 ( Ky. 2002 ); Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 2008 Ky. LEXIS 335 ( Ky. 2008 ); Davis v. Johnson, 295 S.W.3d 841, 2009 Ky. App. LEXIS 30 (Ky. Ct. App. 2009).

Research References and Practice Aids

Kentucky Bench & Bar.

Savage, Humpty Dumpty in the Street, Vol. 39, No. 2, April 1975, Ky. Bench & Bar 9.

Toner & Asseff, Do Appellate Court Decisions Affect Health Care Costs?, Volume 75, No. 3, May 2011, Ky. Bench & Bar 23.

Kentucky Law Journal.

Notes, Gehle, Loss of Consortium: Kentucky Should No Longer Prohibit a Child’s Claim for Loss of Parental Consortium Due to the Negligent Act of a Third Party, 84 Ky. L.J. 173 (1995-96).

Note: Loss of Parental Consortium: Why Kentucky Should Re-Recognize the Claim Outside the Wrongful Death Context, 98 Ky. L.J. 919 (2009/2010).

A Post-Impact Fear of Pre-Impact Fright, 99 Ky. L.J. 401 (2010/2011).

Northern Kentucky Law Review.

Cetrulo, A Practitioner’s Analysis of the Loss of Parental Consortium in Kentucky, 26 N. Ky. L. Rev. 1 (1999).

Article: Recovery of Nonpecuniary Damages in Mass Tort Actions in Kentucky: A Defense Perspective, 35 N. Ky. L. Rev. 197 (2008).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Action by Parents for Loss of Consortium of Child under KRS 411.135 , Form 141.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Wrongful Death of Child, Form 256.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Wrongful Death, § 141.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context Parent and Child, § 256.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Synopsis to Chapter 141 Wrongful Death, § 141.syn.

Petrilli, Kentucky Family Law, Minors, § 30.29; 1991 Supp., § 30.29.

1.Evidence of Abandonment.

Where a father was behind in child support, was questionable in visitation, and lacked involvement in a child’s life, the father willfully abandoned the child and was precluded from sharing in a wrongful death settlement by Mandy Jo’s Law, KRS 411.137 , 391.033 . Kimbler v. Arms, 102 S.W.3d 517, 2003 Ky. App. LEXIS 58 (Ky. Ct. App. 2003).

For the purposes of applying Mandy Jo’s law, KRS 411.137 , 391.033 , “abandon” means neglect and refusal to perform natural and legal obligations to care and support, withholding of parental care, presence, opportunity to display voluntary affection and neglect to lend support and maintenance; it means also the failure to fulfill responsibility of care, training and guidance during the child’s formative years. Kimbler v. Arms, 102 S.W.3d 517, 2003 Ky. App. LEXIS 58 (Ky. Ct. App. 2003).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the lack of a visitation order did not bar holding the father’s lack of contact with the child against the father because the father was not relieved of parental obligations. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App., sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the father’s payment of court-ordered child support was not determinative because the father’s obligation of “care and maintenance” required more. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App., sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

A father was precluded from recovering the father’s intestate share of the settlement proceeds connected with the wrongful death of the father’s adult child because the father willfully abandoned the child. While the father maintained support payments, the father had not seen the child, nor had significant interaction within 15 years of the child’s death, at no time did the father seek visitation, formally or informally, with the child, and the doctrine of equitable estoppel did not bar the mother from claiming abandonment. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Trial court did not err in finding appellant had abandoned his stillborn infant daughter and was consequently not entitled to any settlement proceeds or distribution from her estate under Mandy Jo’s Law, because the trial court found clear intent on his part to abandon the child as evidenced by his fleeing after the mother informed him she was pregnant. Miller v. Bunch, 2021 Ky. App. LEXIS 16 (Ky. Ct. App. Feb. 5, 2021).

2.Burden of Proof.

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the applicable burden of proof was a preponderance of the evidence because the issue involved the receipt of money. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App., sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

When determining if a father forfeited a share of his child’s wrongful death proceeds by abandoning the child, the child’s estate had no burden of proof as to distribution of the proceeds because (1) the proceeds were not part of the estate, and (2) the estate’s administrator had no interest in the proceeds’ distribution, once the proceeds were recovered. Simms v. Estate of Blake, 2018 Ky. App. LEXIS 132 (Ky. Ct. App., sub. op., 2018 Ky. App. Unpub. LEXIS 961 (Ky. Ct. App. May 11, 2018).

The rights at stake in a case arising under the Kentucky Mandy Jo’s Law do not warrant a heightened standard of proof. Accordingly, trial courts must use the preponderance of the evidence standard when considering claims under Mandy Jo’s Law. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

3.Applicability.

Although a parent asserted that the parent was permitted to recover under the wrongful death statute upon the death of the parent’s adult child, the statute was inapplicable because, while the parent complied with a court order requiring the parent to contribute to the child’s support, the parent was not deprived of custody via a court order. Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Wrongful Death of Child, Form 256.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Motion for Declaratory Judgment Asserting “Mandy Jo’s Law”, § 141.04.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Wrongful Death, § 141.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context Parent and Child, § 256.00.

1.Construction.

This section is procedural only. Deupree v. Levinson, 186 F.2d 297, 1950 U.S. App. LEXIS 3753 (6th Cir. 1950), cert. denied, 341 U.S. 915, 71 S. Ct. 736, 95 L. Ed. 1351, 1951 U.S. LEXIS 1969 (1951). See Levinson v. Deupree, 345 U.S. 648, 73 S. Ct. 914, 97 L. Ed. 1319, 1953 U.S. LEXIS 2548 (U.S. 1953).

2.State Courts.

Whether an action should survive to the personal or real representative of the plaintiff is a matter of policy to be settled for itself by each state and, although under Indiana law the cause of action for wrongful death dies with the decedent, an action filed in Kentucky by an Indiana resident for injuries in Indiana who died while the action was pending could be revived in the name of the decedent’s personal representative appointed in Kentucky since the law of the forum applied. Austin's Adm'r v. Pittsburg, C., C. & S. L. R. Co., 122 Ky. 304 , 91 S.W. 742, 28 Ky. L. Rptr. 1235 , 1906 Ky. LEXIS 52 ( Ky. 1906 ).

3.Federal Courts.

Under federal law, an action for penalties and forfeitures recoverable under congressional enactment does not survive, but abates with death of claimed violator of statute. Bowles v. Farmers Nat'l Bank, 147 F.2d 425, 1945 U.S. App. LEXIS 2154 (6th Cir. Ky. 1945 ).

The question of the survival of an action, which did not exist at common law and was purely the creature of congressional enactment, was not governed by state statute of survival and, in the absence of an act of congress, the federal courts were entitled to apply the proper rules of federal law under their own standards. Bowles v. Farmers Nat'l Bank, 147 F.2d 425, 1945 U.S. App. LEXIS 2154 (6th Cir. Ky. 1945 ).

4.Actions Ceasing with Death.

The word “slander” as used in this section embraces libel, and the right of action for a libel does not survive the death of plaintiff. Johnson's Adm'x v. Haldeman, 102 Ky. 163 , 43 S.W. 226, 19 Ky. L. Rptr. 1164 , 1897 Ky. LEXIS 89 ( Ky. 1897 ). See Gross' Adm'r v. Ledford, 190 Ky. 526 , 228 S.W. 24, 1921 Ky. LEXIS 490 ( Ky. 1921 ).

The actions which survive in this state are those which survived at the common law and such others as are specifically named in this section and, since this section does not make provision for survivorship of election contests and at common law the courts did not have jurisdiction to try election contests, an appeal in an election contest abates upon the death of either party to it. Galvin v. Shafer, 130 Ky. 563 , 113 S.W. 485, 1908 Ky. LEXIS 288 ( Ky. 1908 ).

An action by husband for damages for the alienation of the affections of his wife is in the same nature and genus as an action for criminal conversation with her and the measure of damages, and the only basis upon which damages may be recovered, in each action are the same, and they are actions to recover damages for personal injuries — not for physical injuries to the person — and they do not survive. Gross' Adm'r v. Ledford, 190 Ky. 526 , 228 S.W. 24, 1921 Ky. LEXIS 490 ( Ky. 1921 ).

A claim for libel and slander ceases or dies with the death of the person injured or the person injuring. Hayes v. Rodgers, 447 S.W.2d 597, 1969 Ky. LEXIS 86 ( Ky. 1969 ).

The death of an air board member terminated the cause of action against him and his estate for slander. Gray v. Central Bank & Trust Co., 562 S.W.2d 656, 1978 Ky. App. LEXIS 472 (Ky. Ct. App. 1978).

5.—Assault.

A contract of employer to furnish a guard to protect an employee from assault by a mob cannot bring the action for wrongful death within KRS 411.130 and Ky. Const., § 241, nor can it have the effect of keeping alive a cause of action, if it existed, which this section declares does not survive. Lewis' Adm'r v. Taylor Coal Co., 112 Ky. 845 , 66 S.W. 1044, 23 Ky. L. Rptr. 2218 , 1902 Ky. LEXIS 238 ( Ky. 1902 ) (decision prior to 1952 amendment).

Since an action for assault does not survive under this section and cannot be prosecuted against the personal representative of the wrongdoer, if the defendant in an action for assault dies pending an appeal, the action should be dismissed. Shields’ Adm’rs v. Rowland, 151 Ky. 136 , 151 S.W. 408, 1912 Ky. LEXIS 787 ( Ky. 1912 ), modified on other grounds, Shields’ Adm’rs v. Rowland, 151 Ky. 822 , 152 S.W. 943, 1913 Ky. LEXIS 571 (1913) (decision prior to 1952 amendment).

City marshal’s estate was not liable for assault and battery by deputy, since action for assault and battery does not survive. Veatch v. Derrick, 224 Ky. 332 , 6 S.W.2d 279, 1928 Ky. LEXIS 599 ( Ky. 1928 ) (decision prior to 1952 amendment).

If plaintiff had any cause of action for injury by gunshot wound, it did not survive, but died with death of his assailant, as it was founded upon assault. Hunt's Ex'x v. Mutter, 238 Ky. 396 , 38 S.W.2d 215, 1931 Ky. LEXIS 251 ( Ky. 1931 ) (decision prior to 1952 amendment).

An action for damages for assault and battery does not survive under this section. Fields v. Middleton, 254 Ky. 159 , 71 S.W.2d 39, 1934 Ky. LEXIS 51 ( Ky. 1934 ) (decision prior to 1952 amendment).

6.Surviving Actions.

Estate of life tenant should be answerable after his death for cost of repairs he should have made during his life; the action for waste survives. Prescott v. Grimes, 143 Ky. 191 , 136 S.W. 206, 1911 Ky. LEXIS 374 ( Ky. 191 1).

The right to contest a will, if unrelinquished by its immediate possessor through his acceptance of benefits thereunder, or otherwise, survives his death. Hall v. Blackard, 298 Ky. 354 , 182 S.W.2d 904, 1944 Ky. LEXIS 901 ( Ky. 1944 ).

The death of an employee who is disabled by a compensable cause, occurring after the filing of his claim for compensation benefits before the workmen’s compensation board but before an award in his favor has been made, does not extinguish his right to compensation for disability preceding his demise in those instances where death is caused from a nonwork-connected and noncompensable cause. Young v. Bentley, 449 S.W.2d 755, 1970 Ky. LEXIS 473 ( Ky. 1970 ).

Where prisoner was murdered by his drunken fellow inmates and decedent’s mother filed suit on the grounds that defendants failed to maintain jail in a condition of safety for its inmates, decedent’s civil rights were violated under 42 USCS, § 1983 and according to 42 USCS, § 1998, which grants to United States district courts the power to apply state statutes, the law of the forum state should be adopted as federal common law and the cause of action alleged, by the laws of Kentucky, survived the death of the injured person and could be maintained by his legal representative. Hall v. Wooten, 506 F.2d 564, 1974 U.S. App. LEXIS 5995 (6th Cir. Ky. 1974 ).

The fact that a particular statute giving rise to subrogation does not contain a specific provision that the action shall survive is without importance; unless survival of the action is specifically precluded, the action does survive. Ohio Casualty Ins. Co. v. Atherton, 656 S.W.2d 724, 1983 Ky. LEXIS 297 ( Ky. 1983 ).

Claims of employment discrimination and retaliatory discharge under the Kentucky Civil Rights Act, KRS 344.040(1), and KRS 344.280 , and a claim for general injunctive relief by a former employee, survived the employee’s death because the claims were plainly not for slander, libel, criminal conversation, or malicious prosecution. Turner v. Sullivan Univ. Sys., 420 F. Supp. 2d 773, 2006 U.S. Dist. LEXIS 9580 (W.D. Ky. 2006 ).

Court of Appeals erred in affirming a circuit court’s dismissal of a creditor’s claim against a decedent’s heirs because the creditor was a creditor of the decedent and his estate where he filed his tort action prior to the decedent’s death, timely revived the action against the estate administrator, proceeded to obtain a judgment in that action, and filed a judgment lien, which established his status as a creditor of the decedent’s estate and entitlement to a remedy. Gregory v. Hardgrove, 562 S.W.3d 911, 2018 Ky. LEXIS 523 ( Ky. 2018 ).

7.—To Widow and Children.

Action for death of man killed with bar of iron may be revived by his widow and children against personal representative of defendant who died pending litigation; action was not for an “assault” under this section but was an action under KRS 411.150 . Morehead's Adm'x v. Bitner, 106 Ky. 523 , 50 S.W. 857, 20 Ky. L. Rptr. 1986 , 1899 Ky. LEXIS 66 ( Ky. 1899 ) (decision prior to 1952 amendment).

The action given widow or minor child under KRS 411.150 for killing of person with a deadly weapon survives against personal representative of wrongdoer. Merrill v. Puckett's Curator, 93 S.W. 912, 29 Ky. L. Rptr. 595 (1906).

Where a man was killed and his adult son wounded in a gunfight in which the defendant’s decedent was also killed, the widow and minor children of the man who was killed had a right of action against the defendant’s estate under KRS 411.150 . Hunt's Ex'x v. Mutter, 238 Ky. 396 , 38 S.W.2d 215, 1931 Ky. LEXIS 251 ( Ky. 1931 ).

8.—To Personal Representative.

The right of action for use and occupation of land survives to the personal representative, and not to the devisees. Swart v. Reveal, 29 S.W. 24, 16 Ky. L. Rptr. 503 (1895).

Recovery of damages for pain, suffering and anguish endured by child from the time she was bitten and lacerated by a dog until the date of her death from hydrophobia, a period of about 35 days, survived to her personal representative under this section and her parents never at any time had any right of action for the pain and suffering of the child, since the right existed in the child alone until her death. Meyer's Adm'r v. Zoll, 119 Ky. 480 , 84 S.W. 543, 27 Ky. L. Rptr. 167 , 1905 Ky. LEXIS 23 ( Ky. 1905 ) (see KRS 411.133 ).

Action for damage to realty may be revived by the personal representative, but not by the heirs. Norfolk & W. R. Co. v. McCoy, 288 Ky. 458 , 156 S.W.2d 493, 1941 Ky. LEXIS 131 ( Ky. 1941 ).

Where a party died after commencing suit for her own personal injuries, the party’s personal representative and not her daughter had a right to bring suit for those injuries and, therefore, the disability of the daughter did not affect the period of limitations for revival of the suit. New Farmers Nat'l Bank v. Thomas, 411 S.W.2d 672, 1967 Ky. LEXIS 480 ( Ky. 1967 ).

Although a medical malpractice action alleging delay in the diagnosis of breast cancer had to be revived or brought in the name of the personal representative of the estate when the patient/party in interest died under CR 25.01(1), KRS 411.140 , and KRS 395.278 , a radiologist’s employer waived the revival requirement by continuing to actively litigate the case for over three years after the expiration of the revival statute of limitations. Burnham v. Radiology Group of Paducah, P.S.C., 2010 Ky. App. LEXIS 44 (Ky. Ct. App. Feb. 19, 2010).

Trial court properly set aside the jury verdict and granted a long-term care facility a new trial because not only had the facility preserved the issue of standing, but an estate’s claims under the long-term Residents’ Rights Act were improperly submitted to the jury since the resident had predeceased the claim; the statutory duties merely codify the common-law standard of care and do not survive the death of the resident. Jennings v. Berea Area Dev., LLC, 2018 Ky. App. LEXIS 185 (Ky. Ct. App., sub. op., 2018 Ky. App. Unpub. LEXIS 964 (Ky. Ct. App. June 15, 2018).

9.—To Subrogee.

Where a reparations obligor has paid the death benefits to the estate of a person killed in an accident involving a vehicle of an uninsured motorist, this death is an injury under the statute and the reparations obligor, by independent action as the subrogee, may seek recovery of the reasonable charges for funeral or burial expenses, not to exceed the statutory amount, against the uninsured party, his estate or such other persons against whom the action may survive. Ohio Casualty Ins. Co. v. Atherton, 656 S.W.2d 724, 1983 Ky. LEXIS 297 ( Ky. 1983 ).

10.—Breach of Contract.

Actions for personal injuries include such as result from a breach of contract obligation and such actions survive. Wood v. Downing's Adm'r, 110 Ky. 656 , 62 S.W. 487, 23 Ky. L. Rptr. 62 , 1901 Ky. LEXIS 116 ( Ky. 1901 ).

The exceptions to this section do not embrace causes of action for contract and a cause of action based on failure of father to make illegitimate child an equal heir as promised in lieu of bastardy proceedings by the child’s mother is an action in the nature of a claim for damages for a breach of contract which survives under this section even though the child predeceases the father. Moore's Adm'r v. Wagner's Adm'r, 243 Ky. 351 , 48 S.W.2d 15 ( Ky. 1932 ).

This section has no application to tort actions which are founded upon contract and grow out of the contractual relations between the parties and therefore such actions survive. Grundy v. Manchester Ins. & Indem. Co., 425 S.W.2d 735, 1968 Ky. LEXIS 432 ( Ky. 1968 ).

11.Death Pending Appeal.

Where an appellee dies before submission of the appeal, the appeal is abated and a revivor is necessary in order to proceed. Mason v. Anderson, 242 S.W.2d 1011, 1951 Ky. LEXIS 1102 ( Ky. 1951 ).

12.Common Law.

At common law, whether an action survived the death of one of the parties depended upon the nature of the action and the damages sought and not upon the form of remedy and, according to the principle of the same law, all actions and causes of action for injuries to the person, which were founded upon torts, died with the person. Gross' Adm'r v. Ledford, 190 Ky. 526 , 228 S.W. 24, 1921 Ky. LEXIS 490 ( Ky. 1921 ).

At common law all causes of action for injuries to the person which rested upon tort died with either of the parties. Hunt's Ex'x v. Mutter, 238 Ky. 396 , 38 S.W.2d 215, 1931 Ky. LEXIS 251 ( Ky. 1931 ).

13.Assignability of Claims.

Claim for professional malpractice against an insurance agent or broker can be assigned because KRS 411.140 does not prohibit the assignment of a negligence claim resulting in injury to property or pecuniary loss and no judicially-created exception exists. Associated Ins. Serv. v. Garcia, 307 S.W.3d 58, 2010 Ky. LEXIS 21 ( Ky. 2010 ).

Insured pleasure craft could assign to guests whose legs were crushed on a dinner cruise the insured’s claims of fraudulent misrepresentation and negligent procurement of insurance against its insurance agent and broker that obtained marine insurance coverage from an insolvent insurer because KRS 411.140 did not prohibit the assignment of a negligence claim resulting in injury to property or pecuniary loss. Associated Ins. Serv. v. Garcia, 307 S.W.3d 58, 2010 Ky. LEXIS 21 ( Ky. 2010 ).

Cited in:

Boggs v. Blue Diamond Coal Co., 497 F. Supp. 1105, 1980 U.S. Dist. LEXIS 13299 (E.D. Ky. 1980 ); McLain v. Dana Corp., 16 S.W.3d 320, 1999 Ky. App. LEXIS 133 (Ky. Ct. App. 1999).

Research References and Practice Aids

Cross-References.

Time for revivor, KRS 395.278 .

Kentucky Law Journal.

A Post-Impact Fear of Pre-Impact Fright, 99 Ky. L.J. 401 (2010/2011).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Some Other Defenses, Form 129.09.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Malicious Prosecution and Wrongful Use of Civil Proceedings, § 123.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Wrongful Death, § 141.00.

1.Construction.

Where a wife’s suit for damages against a third party arose before the enactment of this section which is nonretroactive, the question of recovery is governed by common law which was declared to be, in the case of Kotsiris v. Ling, 451 S.W.2d 411, 1970 Ky. LEXIS 390 ( Ky. 1970 ), that a wife may sue a third party for negligence which resulted in the wife’s loss of the right of consortium. Thomas v. Deason, 317 F. Supp. 1098, 1970 U.S. Dist. LEXIS 9915 (W.D. Ky. 1970 ).

KRS 411.145(2) which sets out the right of a spouse to recover damages for loss of consortium, is similar in wording to KRS 411.135 , which sets out the right of a parent to recover damages for loss of affection and companionship resulting from the wrongful death of their child, and it follows that the two (2) statutes should be interpreted consistently; a wife’s loss of spousal consortium claim in the Kentucky Board of Claims arising from an injury to her husband caused by a malfunctioning pedestrian control device was barred by KRS 44.070(1), which precluded liability for collateral or dependent claims. City of Danville v. Goode, 122 S.W.3d 591, 2003 Ky. App. LEXIS 314 (Ky. Ct. App. 2003).

In Kentucky, loss of consortium is an independent cause of action authorized by statute, KRS 411.145(2). The fact that an injured spouse prevails on his or her claim does not of itself necessarily require an award of damages to the other spouse who alleges loss of consortium. Poplar v. KKI, LLC, 2005 U.S. Dist. LEXIS 24803 (W.D. Ky. Oct. 21, 2005).

Loss of consortium damages do not cease at death. Therefore, where a decedent was involved in an automobile accident and succumbed after the hospital failed to timely provide appropriate medical care, the decedent’s husband was entitled to pursue a claim for loss of consortium for that short time period following the accident and the decedent’s demise. Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104, 2009 Ky. LEXIS 234 ( Ky. 2009 ).

2.Application.

The damage provisions of the federal death on the high seas act, 46 U. S. C. § 761, rather than this section, were found applicable in a wrongful death action resulting from an accident involving the collision on the Ohio River of a pleasure cruiser and a tow of 15 barges. In re American Commercial Lines, Inc., 366 F. Supp. 134, 1973 U.S. Dist. LEXIS 11164 (E.D. Ky. 1973 ).

Although KRS 304.39-230 (6) provides a statute of limitations for those actions involving motor vehicle collisions which fall within the purview of no-fault benefit recovery which have met or exceeded the statutory thresholds of KRS 304.39-060 (2), an action for loss of consortium does not fall within the perimeters of Motor Vehicle Reparations Act (MVRA) benefit recovery nor is a claim for loss of consortium “akin” to a claim for replacement services loss under the MVRA. Floyd v. Gray, 657 S.W.2d 936, 1983 Ky. LEXIS 273 ( Ky. 1983 ), limited, Hardin v. Action Graphics, Inc., 57 S.W.3d 844, 2001 Ky. App. LEXIS 7 (Ky. Ct. App. 2001).

The two-year statute of limitations set forth in KRS 304.39-230 (6) applies only to those tort actions within the purview of the Motor Vehicle Reparations Act (MVRA), and the loss of consortium is not a recoverable injury within the purview of the MVRA; accordingly, a wife’s action for loss of consortium, brought nearly 15 months after her husband was injured in an automobile accident, was barred by the applicable one-year statute of limitations of KRS 413.140 (a). Floyd v. Gray, 657 S.W.2d 936, 1983 Ky. LEXIS 273 ( Ky. 1983 ), limited, Hardin v. Action Graphics, Inc., 57 S.W.3d 844, 2001 Ky. App. LEXIS 7 (Ky. Ct. App. 2001).

District Court correctly granted an employer summary judgment on a wife’s claim for loss of marital consortium under KRS 411.145 , where there was no evidence that the basic aspects of the employee’s and wife’s married life had changed as a result of the employer’s retaliatory conduct. Ford v. GMC, 305 F.3d 545, 2002 FED App. 0336P, 2002 U.S. App. LEXIS 20501 (6th Cir. Ky. 2002 ).

Court dismissed a wife’s personal injury claim against an amusement park for lack of jurisdiction because her admission in her initial disclosures that she was entitled to $29,157 in damages could only mean that she was never entitled to $75,000 in damages. Pursuant to KRS 411.145(2), the wife’s personal injury claim and her husband’s loss of consortium claim were not based on a common and undivided interest; even if the husband had continued to pursue his claim, that would not have affected the court’s analysis of the amount in controversy. Poplar v. KKI, LLC, 2005 U.S. Dist. LEXIS 24803 (W.D. Ky. Oct. 21, 2005).

Trial court erred in a hospital’s motion for a directed verdict as to a husband’s loss of consortium claim under KRS 411.145(2) where no appreciable amount of time elapsed between the hospital’s alleged negligent act and his wife’s death; the husband could not have suffered loss of consortium damages during that time. Ohio County Hosp. Corp. v. Martin, 2008 Ky. App. LEXIS 45 (Ky. Ct. App. Feb. 22, 2008), rev'd, in part, aff'd, 295 S.W.3d 104, 2009 Ky. LEXIS 234 ( Ky. 2009 ).

In an action arising from an airplane crash, the airline company was entitled to dismissal of the survivors’ claims for loss of spousal consortium under KRS 411.145 ; Kentucky law did not recognize claims for post-death loss of spousal consortium, and the federal court was not authorized to speculate as to yet unarticulated law. Combs v. Comair, Inc. (In re Air Crash at Lexington, KY), 556 F. Supp. 2d 665, 2008 U.S. Dist. LEXIS 1216 (E.D. Ky. 2008 ).

Circuit court erred in holding that the insureds could recover under a loss of consortium claim against the insurer because, while either a wife or husband could statutorily recover damages against a third person for loss of consortium and loss of consortium was an independent cause of action, neither spouse had a substantive, bodily injury claim against the insurer under the policy where the insurance policy clearly and unambiguously excluded underinsured motorists coverage for bodily injury sustained by an insured while occupying an owned motorcycle. Ky. Farm Bureau Mut. Ins. Co. v. Armfield, 2016 Ky. App. LEXIS 23 (Ky. Ct. App. Feb. 26, 2016).

3.Workers’ Compensation.

Where a husband, who had elected coverage under the Workers’ Compensation Act, received injuries while in the scope of his employment, his wife could not recover for loss of consortium since one spouse’s decision to be covered by workers’ compensation must be binding on his or her marital partner. Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ), overruled, Giuliani v. Guiler, 951 S.W.2d 318, 1997 Ky. LEXIS 74 ( Ky. 1997 ), overruled in part, Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104, 2009 Ky. LEXIS 234 ( Ky. 2009 ).

4.Liability as Matter of Law.

When defendant admitted liability for negligent injury to plaintiff, it became liable under this section to plaintiff’s wife as a matter of law for any loss of consortium which resulted from that injury. The fact that defendant contested the severity of plaintiff’s injuries did not relieve it of liability for his wife’s claim. The jury was always free to decide that defendant’s injuries were too slight to impact his wife’s right to consortium. Transit Authority of River City (TARC) v. Vinson, 703 S.W.2d 482, 1985 Ky. App. LEXIS 681 (Ky. Ct. App. 1985).

Though the legislature failed to pass a bill to expand this section to include a right of action for a child’s loss of consortium from the wrongful death of a parent, the court extended the common law to include such right of action. The failure of the legislature to act “does not negatively impact the authority of this Court to adopt and conform the common law.” Giuliani v. Guiler, 951 S.W.2d 318, 1997 Ky. LEXIS 74 ( Ky. 1997 ).

5.Military Death.

Where husband on active military service committed suicide after informing his superiors many times that he intended to do so and even displayed the weapon he planned to use to them, a claim for loss of consortium in this context was derivative of a serviceman’s death in the course of activity incident to service, and thus was barred. Skees v. United States by & Through Department of the Army, 107 F.3d 421, 1997 FED App. 0071P, 1997 U.S. App. LEXIS 3035 (6th Cir. Ky. 1997 ).

6.Claims by Children.

Children’s claims for loss of parental consortium were dismissed because Kentucky law prohibited recovery for a minor’s loss of consortium claim if it was not accompanied by a wrongful death claim. Since KRS 411.135 provided a parent with a loss of consortium claim for the loss of a minor child only in wrongful death actions; the “reciprocal” of KRS 411.135 was also limited to wrongful death cases. Brown v. Mason & Dixon Lines, Inc., 2008 U.S. Dist. LEXIS 42062 (W.D. Ky. May 23, 2008).

Cited in:

Burden v. Evansville Materials, Inc., 550 F. Supp. 41, 1982 U.S. Dist. LEXIS 9864 (W.D. Ky. 1982 ); Moore v. State Farm Mut. Ins. Co., 710 S.W.2d 225, 1986 Ky. LEXIS 268 ( Ky. 1986 ); Frankfort Med. Inv?rs, LLC v. Thomas, 2019 Ky. App. LEXIS 101 (June 14, 2019); Frankfort Med. Inv?rs, LLC v. Thomas, 2019 Ky. App. LEXIS 101 (June 14, 2019).

7.Time-barred.

Unpublished decision: In a tort action arising from a collision between a tractor trailer and a car driven by decedent, plaintiff's loss-of-consortium claim accrued on the day of her husband's accident and was barred by the one-year statute of limitations; she waited nearly three years before she sued two defendants and four years before she sued the third defendant. The claim also failed, because plaintiffs were unable show that any of defendants committed a wrongful or negligent act. Richardson v. Rose Transp., Inc., 617 Fed. Appx. 480, 2015 FED App. 0484N, 2015 U.S. App. LEXIS 11756 (6th Cir. Ky. 2015 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Toner & Asseff, Do Appellate Court Decisions Affect Health Care Costs?, Volume 75, No. 3, May 2011, Ky. Bench & Bar 23.

Kentucky Law Journal.

Pitt, The “Equal Rights” Amendment — Positive Panacea or Negative Nostrum?, 59 Ky. L.J. 953 (1971).

Note: Loss of Parental Consortium: Why Kentucky Should Re-Recognize the Claim Outside the Wrongful Death Context, 98 Ky. L.J. 919 (2009/2010).

Northern Kentucky Law Review.

Article: Recovery of Nonpecuniary Damages in Mass Tort Actions in Kentucky: A Defense Perspective, 35 N. Ky. L. Rev. 197 (2008).

Kentucky Survey Issue: Article: Martin v. Ohio County Hospital Corp.: The Long Overdue Recognition of Post-Death Loss of Spousal Consortium and Justifications for Further Expansion of Kentucky Loss of Consortium Law, 38 N. Ky. L. Rev. 307 (2011).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Wrongful Death of Parent—Child’s Loss of Consortium by Spouse, Form 256.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Wrongful Death, Pre-Death Damages, and Loss of Consortium by Spouse, Form 141.06.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Medical Malpractice, § 136.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Damages, § 39.09.

Petrilli, Kentucky Family Law, Actions, § 17.6.

1.Constitutionality.

Adoption of KRS 411.148 is within the legislature’s police powers, and does not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241, as the purpose of KRS 411.148 is to encourage the rendering of medical assistance to those in need by trained medical personnel by removing the fear of liability that accompanies rendering aid under the common law. Cook v. Taylor, 2008 Ky. App. LEXIS 264 (Ky. Ct. App. Aug. 22, 2008), review denied, ordered not published, 2009 Ky. LEXIS 212 (Ky. Aug. 19, 2009).

2.Applicability.

Paramedic and emergency medical technicians were not subject to the Good Samaritan immunity under KRS 411.148 and KRS 311A.150 as KRS 411.148 did not apply to the regular professional work responsibilities of paramedics for which they were paid; the paramedics provided care to a decedent in the normal course of their work, and they had a pre-existing duty to assist the decedent that was specifically exempted from the immunity granted by KRS 411.148. Cook v. Taylor, 2008 Ky. App. LEXIS 264 (Ky. Ct. App. Aug. 22, 2008), review denied, ordered not published, 2009 Ky. LEXIS 212 (Ky. Aug. 19, 2009).

3.Pre-existing Duty.

Care or treatment for remuneration or due to a pre-existing duty is specifically exempted from the immunity granted by KRS 411.148 . Cook v. Taylor, 2008 Ky. App. LEXIS 264 (Ky. Ct. App. Aug. 22, 2008), review denied, ordered not published, 2009 Ky. LEXIS 212 (Ky. Aug. 19, 2009).

Opinions of Attorney General.

The immunity from suit provided for medical technicians would apply where the emergency aid was gratuitous as between the patient and technician even though the technician was being paid from another source. OAG 76-36 .

Laymen are not immune under this section from liability in civil damages for administering emergency care or treatment at the scene of an emergency. OAG 77-47 .

In absence of any court decisions on the matter, properly certified medical technicians employed by county ambulance board would be covered by the immunity provisions of this section so long as those persons are not paid directly by the persons to whom they render aid and assistance and further assuming that their actions do not constitute willful or wanton misconduct and that the aid rendered is confined to those places mentioned in the statute. OAG 78-258 .

The immunity provisions of this section do not apply to mere ambulance drivers, the board members of the ambulance service organization, or to those medical technicians not properly certified. OAG 78-258 .

A state police officer who renders emergency medical aid or treatment, while not properly certified as an emergency medical technician, may be liable in “ordinary tort” for negligence resulting in injury to persons or property or in death. OAG 79-71 .

To the extent this section relieves the persons named therein from liability arising from death or physical injury to persons caused by negligence, the statute is unconstitutional under Const., § 54 and, to the extent therefore, void. OAG 79-535 .

Although there is no specific statute authorizing the board of trustees of a fire protection district to expend district funds to train personnel in emergency medical technician techniques and to furnish equipment for such personnel to utilize, the board may undertake such expenditures as protecting and saving lives and the rendering of emergency first aid are generally recognized functions of firemen; however, those personnel rendering emergency first aid may be held personally liable for intentional wrongdoing or acts of negligence in connection therewith and, they probably cannot claim immunity under the provisions of the so-called “Good Samaritan Law,” KRS 411.148 . OAG 80-660 .

Research References and Practice Aids

Kentucky Law Journal.

Notes, Statutes Establishing a Duty to Report Crimes or Render Assistance to Strangers: Making Apathy Criminal, 72 Ky. L.J. 827 (1983-84).

1.Construction.

Kentucky Constitution, § 241, providing that a cause of action for damages for negligent or wrongful death must be prosecuted by the personal representative, was intended to apply only to KRS 277.310 and 411.130 and does not refer to or affect this section. McClure v. Alexander, 24 S.W. 619, 15 Ky. L. Rptr. 732 (1894).

2.Application.

Where plaintiff averred his son who was past 18 years of age was “enticed, seduced, overpersuaded, and hired” by defendant’s agent without plaintiff’s knowledge or consent to labor for defendant at a sawmill, that defendant unlawfully placed plaintiff’s said son to work among lawless boys and negligently, carelessly and knowingly permitted said minor boys to wrangle and lawlessly fight with sticks, clubs, rocks, knives and pistols at divers times, all of which was unknown to plaintiff or plaintiff’s son until his son was shot and killed by the minor employees of defendant, the facts alleged were not such as would entitle anyone to maintain a cause of action under this section. Harris v. Kentucky Timber & Lumber Co., 43 S.W. 462, 19 Ky. L. Rptr. 1731 ( Ky. 1897 ).

A wanton act is an unrestrained act and the act of a lunatic is precisely of that character and he is liable under this section to widow of deputy sheriff killed by him. Young v. Young, 141 Ky. 76 , 132 S.W. 155, 1910 Ky. LEXIS 406 ( Ky. 1910 ).

Where a man was killed and his adult son wounded in a gunfight in which the defendant’s decedent was also killed, the widow and minor children of the man who was killed had a right of action against the decedent’s estate but the adult son’s action for personal injuries did not survive the death of the defendant’s decedent, since it was based on assault. Hunt's Ex'x v. Mutter, 238 Ky. 396 , 38 S.W.2d 215, 1931 Ky. LEXIS 251 ( Ky. 1931 ).

An action filed under this section by widow as next friend of infant children against the brother, as heir and devisee, of the man who shot and killed her husband, for $1,000 as actual damages and $1,000 as vindictive damages and seeking a general order of attachment against the estate of the man who shot her husband, although it stated a cause of action against the man who shot her husband but wholly failed to state a cause of action against his brother and failed to allege that attachment was just, rendered the attachment against the estate defective. Collett v. Helton, 264 Ky. 214 , 94 S.W.2d 603, 1936 Ky. LEXIS 296 ( Ky. 1936 ).

3.When Personal Representative May Bring Action.

Administrator of one killed by wrongful use of firearms had right of action therefor, where deceased was not survived by widow or child. Howard's Adm'r v. Hunter, 126 Ky. 685 , 104 S.W. 723, 31 Ky. L. Rptr. 1092 , 1907 Ky. LEXIS 85 ( Ky. 1907 ).

Personal representative of bystander killed by sheriff shooting at another may bring action, where widow and children fail to do so. Wells' Adm'r v. Lewis, 213 Ky. 846 , 281 S.W. 996, 1926 Ky. LEXIS 634 ( Ky. 1926 ).

4.Deadly Weapon.

This section intended to embrace any killing done with a weapon either in itself deadly or deadly when used in the manner in which it was used, and an iron bar is a deadly weapon within the meaning of this section. Morehead's Adm'x v. Bitner, 106 Ky. 523 , 50 S.W. 857, 20 Ky. L. Rptr. 1986 , 1899 Ky. LEXIS 66 ( Ky. 1899 ).

In light of the history and purpose of this section, a motor vehicle is not to be considered a deadly weapon. Shepherd v. Suburban Motor Freight, Inc., 780 S.W.2d 633, 1989 Ky. App. LEXIS 97 (Ky. Ct. App. 1989).

5.Officers and Sureties as Defendants.

Compensatory damages may be recovered from sheriff and his surety for wrongful killing of innocent man by sheriff’s deputies. Johnson v. Williams' Adm'r, 111 Ky. 289 , 63 S.W. 759, 23 Ky. L. Rptr. 658 , 1901 Ky. LEXIS 206 ( Ky. 1901 ). See Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ).

Widow of deceased was not permitted to recover against sheriff and his sureties for death of husband killed by deputy sheriff, where petition merely alleged killer held position of deputy sheriff when he killed deceased, and not that it was in performance of an official act. Commonwealth v. Hurt, 64 S.W. 911, 23 Ky. L. Rptr. 1171 , 1901 Ky. LEXIS 619 (Ky. Ct. App. 1901).

Widow of fleeing man killed by officer had action for his death, where officer acted only on suspicion of a felony and no felony had in fact been committed. Petrie v. Cartwright, 114 Ky. 103 , 70 S.W. 297, 24 Ky. L. Rptr. 954 , 1902 Ky. LEXIS 145 ( Ky. 1902 ).

Widow of man unnecessarily and maliciously killed by city marshal may maintain an action for killing on the bond of marshal. Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ).

City marshal and his sureties were liable to infant children of deceased bystander unlawfully killed by marshal. Martin v. Smith, 136 Ky. 804 , 125 S.W. 249, 1910 Ky. LEXIS 545 ( Ky. 1910 ).

Where bystander was killed by a sheriff who was shooting at a third party, an action for damages could have been brought and maintained by the bystander’s widow and minor children under this section, but an action by the bystander’s personal representative for wrongful death under KRS 411.130 for the benefit of his decedent’s widow and minor children was also proper. Wells' Adm'r v. Lewis, 213 Ky. 846 , 281 S.W. 996, 1926 Ky. LEXIS 634 ( Ky. 1926 ).

While KRS 134.200 makes the sheriff and his surety liable for certain acts of his deputy, it is not broad enough to make the deputy the agent of the sheriff in the sense that if the deputy maliciously kills another, the sheriff is “the person who committed the killing” under this section and, since this section limits liability to the person committing the killing and persons aiding and abetting him, neither a sheriff nor his surety is liable under this section. Howard v. Caudill, 228 Ky. 403 , 15 S.W.2d 245, 1929 Ky. LEXIS 554 ( Ky. 1929 ).

An action was maintainable under this section by decedent’s widow against the chief of police and the sureties under his bond as provided under KRS 95.750 (now repealed) where the chief of police allegedly wrongfully and maliciously shot decedent while he was intoxicated and discharging a pistol and he subsequently died of the injury. Howard v. Hyden, 239 Ky. 233 , 39 S.W.2d 265, 1931 Ky. LEXIS 764 ( Ky. 1931 ).

6.Remarriage of Widow.

Under this section, the widow’s remarriage pending the suit did not affect her right of recovery or that of the children. Archer v. Bowling, 166 Ky. 139 , 179 S.W. 15, 1915 Ky. LEXIS 653 ( Ky. 1915 ). See Hunt's Ex'x v. Mutter, 238 Ky. 396 , 38 S.W.2d 215, 1931 Ky. LEXIS 251 ( Ky. 1931 ).

7.Pleading.

The petition need not be couched in the language of the statute, for the use of any words sufficiently broad to embrace the idea contained in any one of the words in this section is sufficient and allegations in petition charging that the killing was unlawful and wrongful and not in necessary or apparently necessary self-defense were sufficient. Young v. Young, 141 Ky. 76 , 132 S.W. 155, 1910 Ky. LEXIS 406 ( Ky. 1910 ). See Howard's Adm'r v. Hunter, 126 Ky. 685 , 104 S.W. 723, 31 Ky. L. Rptr. 1092 , 1907 Ky. LEXIS 85 ( Ky. 1907 ).

8.Joinder of Plaintiffs.

There was no error in permitting the infant children to be joined in an action by a surviving wife to recover damages for the killing of her husband who was the father of the infant children. McClurg v. Igleheart, 33 S.W. 80, 17 Ky. L. Rptr. 913 (1895).

If an action is brought under this section by the widow alone, the minor child or children, appearing by their guardian or next friend, have the right to be made parties plaintiff and the widow cannot control the action so as to defeat a recovery by the minor child or children. She may dismiss it insofar as she is concerned but the dismissal as to her will not be permitted to interfere with its prosecution by the child or children if they are parties to it, nor will it bar an action instituted by them within the proper time. Martin v. Smith, 110 S.W. 413, 33 Ky. L. Rptr. 582 (1908).

Infant children of one allegedly killed by malicious use of firearms were entitled to join as parties plaintiff in a suit originally brought by the widow alone. Archer v. Bowling, 166 Ky. 139 , 179 S.W. 15, 1915 Ky. LEXIS 653 ( Ky. 1915 ).

9.Self-defense.

An instruction given by the court was objectionable where it in effect made defendant’s right of self-defense depend on the belief of the jury as to whether he was in danger at the time he killed the decedent, while the true rule was for the jury to find from the evidence whether the accused, at the time he shot and killed the decedent, then had reasonable grounds to believe, and did in good faith believe, that his life was in danger from violence at the hands of the decedent with the usual limitation added that accused might then only take the life of decedent provided he had no apparent and safe means of protecting his own life and person than by so taking the life of decedent. McClurg v. Igleheart, 33 S.W. 80, 17 Ky. L. Rptr. 913 (1895).

If the jury believes that defendant, with intent to assault, beat or kill deceased, sought and first attacked deceased, and never abandoned said attack until he shot deceased, the jury should not find for defendant on the ground of self-defense. McClurg v. Igleheart, 33 S.W. 80, 17 Ky. L. Rptr. 913 (1895).

Unless defendant is excusable upon the ground of self-defense, then he is not excusable for the killing, though he did it under such circumstances as would make it manslaughter only, and not murder. McClurg v. Igleheart, 33 S.W. 80, 17 Ky. L. Rptr. 913 (1895).

There is no reason for a distinction between civil and criminal actions as to a plea of self-defense and an instruction conforming to that laid down in Wagner v. Commonwealth, 32 K.L.R. 1185, 108 S.W. 318 (1908), should have been given. Taylor v. Franklin, 208 Ky. 43 , 270 S.W. 462, 1925 Ky. LEXIS 211 ( Ky. 1925 ). See Poe v. Hankins' Adm'x, 251 Ky. 466 , 65 S.W.2d 457, 1933 Ky. LEXIS 897 ( Ky. 1933 ).

Although pleas of self-defense and mutual combat are ordinarily inconsistent, it was prejudicial for the court not to give a self-defense instruction where the defendant pleaded both and the court did not require him to elect but he did in effect make an election when he offered an instruction on self-defense and objected to the giving of an instruction on mutual combat and the evidence showed a possibly inferable abandonment of the conflict by the defendant which was consistent with a plea of self-defense but inconsistent with a plea of mutual combat. Coleman v. Hager, 307 Ky. 70 , 208 S.W.2d 316, 1948 Ky. LEXIS 581 ( Ky. 1948 ).

A self-defense plea is available to a defendant in an action brought under this section. Coleman v. Hager, 307 Ky. 70 , 208 S.W.2d 316, 1948 Ky. LEXIS 581 ( Ky. 1948 ).

10.—Burden of Proof.

This section does not place the burden of negativing self-defense upon the plaintiff but simply emphasizes a plea of self-defense based on the evidence and, in the absence of such evidence, an affirmative instruction upon it is, as a general rule, improper. Clolinger v. Callahan, 204 Ky. 33 , 263 S.W. 700, 1924 Ky. LEXIS 406 ( Ky. 1924 ).

An admission of the assault charged in a civil action and a plea of self-defense by the defendant places on the defendant the burden of proof of self-defense with the accompanying right to conclude the argument. Johnson v. Porter, 208 Ky. 390 , 270 S.W. 813, 1925 Ky. LEXIS 294 ( Ky. 1925 ).

In action under this section, mere proof of homicide by defendant without any evidence with respect to having been committed maliciously and not in self-defense was not sufficient to warrant submission of case to jury. Sturgeon v. Baker, 312 Ky. 338 , 227 S.W.2d 202, 1950 Ky. LEXIS 638 ( Ky. 1950 ).

The burden rests upon the plaintiff in an action brought under this section to introduce evidence tending to show that the homicide was “by the careless, wanton or malicious use of a deadly weapon, not in self-defense,” and on failing to sustain such burden, there is no right of recovery. Sturgeon v. Baker, 312 Ky. 338 , 227 S.W.2d 202, 1950 Ky. LEXIS 638 ( Ky. 1950 ).

In actions under this section, the burden is upon the plaintiff to prove that the killing is not in self-defense. Arthurs v. Johnson, 280 S.W.2d 504, 1955 Ky. LEXIS 163 ( Ky. 1955 ).

Plaintiff adequately met the burden of proving that killing was not in self-defense where evidence established defendant shot and killed her husband, who was a deputy sheriff, while he and other officers were attempting to serve warrant for a lunacy inquest, not because of fear decedent was planning to subject him to death or great bodily harm but because he had determined to resist by force any effort to remove him from the house and, under these circumstances, even if the arresting procedure had been unlawful, defendant would have had no right to kill one of the officers in resisting arrest. Arthurs v. Johnson, 280 S.W.2d 504, 1955 Ky. LEXIS 163 ( Ky. 1955 ).

11.Abatement or Survival of Action.

The cause of action created by this section involves more than an assault and battery and is given to those who cannot maintain an action for assault and battery; therefore, by virtue of KRS 411.140 , it survives against the personal representative of the wrongdoer. Merrill v. Puckett's Curator, 93 S.W. 912, 29 Ky. L. Rptr. 595 (1906) (decision prior to 1952 amendment of KRS 411.140 ).

A suit by the widow and children, under the authority of this section and because founded upon a different theory or right than actions under KRS 411.140 , survives and may be maintained against the estate of the one causing death of the husband and father. Hunt's Ex'x v. Mutter, 238 Ky. 396 , 38 S.W.2d 215, 1931 Ky. LEXIS 251 ( Ky. 1931 ).

12.Damages.

An instruction “At the time of his death the life expectancy of . . . . . (deceased) was 28.6 years, and in estimating the actual damages the plaintiffs have sustained the jury will consider the probable net earnings of the deceased during that period, taking into consideration his capacity to earn and his business habits,” without any testimony having been introduced on the subject of life expectancy, isolates the expectancy from all, or nearly all, other facts and circumstances with which, under the evidence, it properly stands connected, such as that the health of the deceased was only fairly good, that for a year he had not been able to work continuously, that his habits were only fairly good and that he was reasonably industrious and gives undue prominence to the life expectancy. McClurg v. Igleheart, 33 S.W. 80, 17 Ky. L. Rptr. 913 (1895).

The measure of damages in an action for killing by malicious use of firearms was such a sum as would reasonably compensate the widow and children for the loss they sustained of the power of deceased to earn money, and, in addition thereto, the jury could give vindictive damages, the total recovery being divided one half to the widow and the other one half to the children. Archer v. Bowling, 166 Ky. 139 , 179 S.W. 15, 1915 Ky. LEXIS 653 ( Ky. 1915 ).

The measure of damages to be recovered by a widow bringing an action under this section is the amount that would compensate her for the loss of the power of decedent to earn money. Souther v. Belleau, 203 Ky. 508 , 262 S.W. 619, 1924 Ky. LEXIS 938 ( Ky. 1924 ).

13.Limitation of Action.

The limitation of one year declared under KRS 413.140 applies to an action for death under this section. Irwin v. Smith, 150 Ky. 147 , 150 S.W. 22, 1912 Ky. LEXIS 850 ( Ky. 1912 ). See Archer v. Bowling, 166 Ky. 139 , 179 S.W. 15, 1915 Ky. LEXIS 653 ( Ky. 1915 ).

The one-year limitation prescribed in KRS 413.140 and not the five-year limitation in KRS 413.120 applies to an action by a widow to recover damages for the wanton shooting of her husband. Irwin v. Smith, 150 Ky. 147 , 150 S.W. 22, 1912 Ky. LEXIS 850 ( Ky. 1912 ).

14.Intent.

Where defendant presented his pistol in a room in which were many people and killed plaintiff’s intestate, he was liable for the death, though the person killed was not the one he was quarreling with, and it appeared that he had no intent to injure deceased. Chiles v. Drake, 59 Ky. 146 , 1859 Ky. LEXIS 69 ( Ky. 1859 ) (decided under prior law).

Cited in:

Commonwealth v. Hallahan, 391 S.W.2d 378, 1965 Ky. LEXIS 305 ( Ky. 1965 ); Shepherd v. Wellman, 313 F.3d 963, 2002 U.S. App. LEXIS 26449 (6th Cir. 2002), rehearing denied, — F.3d —, 2003 U.S. App. LEXIS 4286 (6th Cir. 2003).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint by Widow under KRS 411.150 for Death by Deadly Weapon, Seeking Punitive Damages, Form 141.05.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Wrongful Death of Parent—Child’s Loss of Consortium, Form 256.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Wrongful Death, § 141.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Synopsis to Chapter 141 Wrongful Death, § 141.syn.

1.Constitutionality.

Regardless of its purpose, this section patently offends Ky. Const., § 14, as well as Ky. Const., § 54 which prevents the General Assembly from limiting the amount of damages recoverable. Waldon v. Housing Auth. of Paducah, 854 S.W.2d 777, 1991 Ky. App. LEXIS 146 (Ky. Ct. App. 1991).

Research References and Practice Aids

Northern Kentucky Law Review.

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

1.Application.

In the client’s legal malpractice action against her attorney, the recovery of lost punitive damages in legal malpractice actions was prohibited, KRS 411.184(1)(f). Allowing the client to recover lost punitive damages would not advance the policy underlying punitive damages in any way; in fact, allowing recovery would be antithetical to what punitive damages stand for, which was untying the concept of punitive damages from its doctrinal moorings. Osborne v. Keeney, 399 S.W.3d 1, 2012 Ky. LEXIS 203 ( Ky. 2012 ), limited, Ind. Ins. Co. v. Demetre, 527 S.W.3d 12, 2017 Ky. LEXIS 364 ( Ky. 2017 ).

Because of the longstanding case law noting the purpose of punitive damages and Kentucky’s stated requirement of allowing recovery only against the wrongdoer, it aligns with those jurisdictions that prohibit recovery of lost punitive damages in legal malpractice actions. Osborne v. Keeney, 399 S.W.3d 1, 2012 Ky. LEXIS 203 ( Ky. 2012 ), limited, Ind. Ins. Co. v. Demetre, 527 S.W.3d 12, 2017 Ky. LEXIS 364 ( Ky. 2017 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Wolff, Legal Malpractice Primer., Vol. 71, No. 1, January 2007, Ky. Bench & Bar 19.

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Hourly Fee Agreement, Form 1.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Attorney and Client, § 1.00.

1.Notes.

Where a note upon which an action was brought was indorsed by the defendant, it then became transferable by delivery, and covered by this section. Hoyland v. National Bank of Middlesborough, 137 Ky. 682 , 126 S.W. 356, 1910 Ky. LEXIS 612 ( Ky. 1910 ).

2.— Without Fraud on Part of Plaintiff.

In the absence of proof that the note in controversy was lost or destroyed without fault of the deceased or the executor bringing the action, the executor could not recover thereon. Sutton v. Russell's Ex'r, 236 Ky. 535 , 33 S.W.2d 629, 1930 Ky. LEXIS 801 ( Ky. 1930 ).

In an action on a lost note where the plaintiff alleged that the original note and mortgage were lost through no fraud on his part, that no part of the note had been paid, and that the note was not transferable by delivery and plaintiff did not execute a bond to the defendant, the court erred in dismissing the action upon plaintiff’s failure to comply with defendant’s motion to produce the note. Fuson v. Henderson, 256 Ky. 729 , 77 S.W.2d 8, 1934 Ky. LEXIS 484 ( Ky. 1934 ).

In an action on a note where a lien was retained in a deed to real estate to secure payment of the note and an amended petition was filed under this section alleging the original note had been lost, the Court of Appeals, after careful consideration of the evidence, was convinced the note had been paid and that the note previously filed in the action was a forgery. Dixon v. Ward, 267 Ky. 619 , 103 S.W.2d 113, 1937 Ky. LEXIS 377 ( Ky. 1937 ).

It was held that it was a prerequisite under this section for the petition to allege that the note was lost or misplaced without fraud on the part of the plaintiff. Hoyland v. National Bank of Middlesborough, 137 Ky. 682 , 126 S.W. 356, 1910 Ky. LEXIS 612 ( Ky. 1910 ).

Where plaintiff, suing on a lost note, failed to allege that the loss was brought about through no fraud of himself or of those under whom he claimed, the trial court erred in overruling defendant’s demurrer, but where the proof showed that there was no such fraud, the court could not properly grant the defendant a judgment notwithstanding the verdict. Crawford v. Crawford, 222 Ky. 708 , 2 S.W.2d 401, 1928 Ky. LEXIS 245 ( Ky. 1928 ).

3.Bond.

A sufficient bond having been given before judgment, the circuit court properly refused to dismiss the action because bond had not been given before suit was filed. Kimbrough v. Lexington City Nat'l Bank, 150 Ky. 336 , 150 S.W. 325, 1912 Ky. LEXIS 872 ( Ky. 1912 ).

Where a note was payable to order, it was not transferable by delivery, merely, and a bond was not required to bring an action for its payment after it was lost. Ficklin v. Nickles, 238 Ky. 591 , 38 S.W.2d 456, 1931 Ky. LEXIS 284 ( Ky. 1931 ).

Research References and Practice Aids

Cross-References.

Lost records, KRS 422.200 to 422.270 .

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint by Payee Against Payor Where Instrument Lost, Form 190.02.

1.Partners.

Individuals composing a partnership are personally liable and may be sued jointly or separately, whether they carry on their business in one or any number of firm names, as long as the same individuals compose each of the firms. Hunt v. Semonin, 79 Ky. 270 , 2 Ky. L. Rptr. 334 , 1881 Ky. LEXIS 14 (Ky. Ct. App. 1881).

2.Contractor and Guarantor.

There is a distinction between a guaranty executed simultaneously with the principal contract and one subsequently made and based upon a separate consideration and, where the contract and guaranty are executed simultaneously, a joint action will be permitted against the principal and guarantor; but it is otherwise if they are not simultaneously executed, for in such case the principal and guarantor should be separately sued. Pulaski Stave Co. v. Miller's Creek Lumber Co., 138 Ky. 372 , 128 S.W. 96, 1910 Ky. LEXIS 82 ( Ky. 1910 ).

Where lumber company by written contract agreed to delivery saw logs and four (4) individuals in the same contract guaranteed performance, the guarantors could be sued jointly with the company for damages for failure to perform it, as they were parties to the contract, as well as the guaranty, and primarily liable for its breach. Pulaski Stave Co. v. Miller's Creek Lumber Co., 138 Ky. 372 , 128 S.W. 96, 1910 Ky. LEXIS 82 ( Ky. 1910 ).

3.Contractors.

A judgment in favor of less than all the parties to a contract does not bar a suit against others on the same cause of action. Ralph Wolff & Sons v. New Zealand Ins. Co., 248 Ky. 304 , 58 S.W.2d 623, 1933 Ky. LEXIS 239 ( Ky. 1933 ).

4.Bond of Employee and Sureties.

Where a bond sued on was the joint and several obligation of the employee and the sureties executed to indemnify employer, employer at his option could sue all or any one of the persons jointly liable and there was no reason why the claim should be verified and demand made of the principal’s personal representative unless such personal representative was made a party defendant. Singer Sewing Mach. Co. v. Combs, 227 Ky. 61 , 11 S.W.2d 994, 1928 Ky. LEXIS 460 ( Ky. 1928 ).

5.Executors of Supersedeas Bond.

The designated payees in a supersedeas bond were privileged at their option to file action against all or any of the parties who executed it. S. L. Crook Corp. v. Blackburn, 261 Ky. 426 , 87 S.W.2d 927, 1935 Ky. LEXIS 653 ( Ky. 1935 ).

6.Coinsurers.

Where a contract between two insurance companies imposed the obligations of coinsurers upon them, the beneficiary of a policy issued in the name of one of them could sue and recover of either or both of them and, where only one was sued, the receiver of the other did not have the right to become a party. Lincoln Nat'l Life Ins. Co. v. Means, 264 Ky. 566 , 95 S.W.2d 264, Ky. LEXIS 376 (Ky.), cert. denied, 299 U.S. 578, 57 S. Ct. 42, 81 L. Ed. 426, 1936 U.S. LEXIS 299 (U.S. 1936).

7.Sureties.

Sureties on a bond given by a bank as depository of board of education were at all times, severally and jointly, primarily liable to the obligee for the breach of covenant. Bennett v. County Board of Education, 273 Ky. 143 , 116 S.W.2d 302, 1938 Ky. LEXIS 612 ( Ky. 1938 ).

8.Joint Makers of Note.

In view of this section providing grantor has the option of bringing an action against all or any persons jointly liable, purchaser of property at commissioner’s sale could not raise the question of whether another was primarily or jointly liable for the note for which the property was sold where the face of the note showed that the owner of the property was liable for the note and since the title of the property purchased was in no way affected. Rothchild v. Wallace, 155 Ky. 676 , 160 S.W. 170, 1913 Ky. LEXIS 312 ( Ky. 1913 ).

Since the owner of a note may sue any one, or all, of the parties liable thereon, it is no defense for one of the makers to allege that another maker is not properly before the court, or that it is not proceeded against at all. Daugherty v. Bell Nat'l Bank, 175 Ky. 513 , 194 S.W. 545, 1917 Ky. LEXIS 342 ( Ky. 1917 ) (see KRS 355.3-413).

Two joint makers of note were severally liable for full amount of the note and could not complain because the other two joint makers were not made parties to an action on the note. Hibbard v. Clay County, 299 Ky. 560 , 186 S.W.2d 423, 1945 Ky. LEXIS 480 ( Ky. 1945 ) (see KRS 355.3-413).

9.Maker and Guarantor of Note.

In an action against the maker of a promissory note for part of the purchase price of machinery and one who joined as guarantor, the obligee had the option of suing either the maker or the guarantor alone. Crump v. J. I. Case Threshing Mach. Co., 136 Ky. 60 , 123 S.W. 333, 1909 Ky. LEXIS 458 ( Ky. 1909 ) (see KRS 355.3-416).

Research References and Practice Aids

Cross-References.

Survival of liability of joint obligor, KRS 412.010 .

Kentucky Law Journal.

Borden, Rights and Duties of a Bank in the Application of a Deposit to the Payment of a Depositor’s Obligation, 34 Ky. L.J. 302 (1946).

Ham, Kentucky Adopts the Uniform Partnership Act, 43 Ky. L.J. 5 (1954).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Showing Failure to Join Necessary Parties as Defendants, Form 39.10.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Wrongful Death, § 141.00.

1.In General.

Claims for common law indemnity have survived the advent of comparative negligence and apportioned liability. Degener v. Hall Contr. Corp., 27 S.W.3d 775, 2000 Ky. LEXIS 63 ( Ky. 2000 ).

It was not error to instruct the jury on the sudden emergency doctrine where a driver asserted that she lost control of her vehicle due to black ice; the sudden emergency doctrine was an expression of the reasonably prudent person standard of care and was not subsumed by the adoption of comparative negligence. Regenstreif v. Phelps, 142 S.W.3d 1, 2004 Ky. LEXIS 194 ( Ky. 2004 ).

Order granting a builder and a subcontractor separate sets of peremptory challenges was proper in a case alleging construction defects in a home because the builder and the subcontractor were antagonistic; among other things, before trial an apportionment instruction had been tendered to the trial court, and, inherent in the Kentucky law of apportionment was that the interests of codefendants may be considered antagonistic. Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767, 2007 Ky. App. LEXIS 261 (Ky. Ct. App. 2007).

No apportionment instruction was given which was mandatory for the trial court to give under KRS 411.182 . Bates v. Curtis, 2012 Ky. App. LEXIS 140 (Ky. Ct. App. Aug. 17, 2012).

2.Application.

Although this section adopts comparative negligence for all torts, including product liability cases, it was not granted expressed retroactive application and therefore did not supersede KRS 411.320 in a cause of action which arose out of an automobile accident that occurred prior to July 15, 1988. Conley v. American Motors Corp., 769 S.W.2d 75, 1989 Ky. App. LEXIS 26 (Ky. Ct. App. 1989).

This section does not have retroactive application pursuant to KRS 446.080(3). Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

This section, which adopts comparative negligence in products liability cases, overrules KRS 411.320(3). Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

Where plaintiff filed suit against defendant for defendant’s negligent operation of her vehicle and where no one made a claim against plaintiff’s husband, the driver of plaintiff’s car, and no one had sued him or settled with him by a release or agreement not to sue, the trial court erred when it instructed the jury to consider the duties of plaintiff’s husband in arriving at an apportionment of fault and damages upon one who did not fall specifically within the scope of this section. This section applies to persons named as parties, regardless of how named, and those persons who bought their peace from the litigation by way of releases or agreements. These persons affected by the statute are explicitly denominated, and plaintiff’s husband did not fit into any of the described classifications. Bass v. Williams, 839 S.W.2d 559, 1992 Ky. App. LEXIS 196 (Ky. Ct. App. 1992), overruled in part, Regenstreif v. Phelps, 142 S.W.3d 1, 2004 Ky. LEXIS 194 ( Ky. 2004 ).

This section is not clear whether apportionment may be made to settling nonparties. Carter v. Builders Transport, Inc., 812 F. Supp. 97, 1992 U.S. Dist. LEXIS 20735 (W.D. Ky. 1992 ).

KRS 452.450 and KRS 452.460 do not permit a suit in one location against two doctors who reside in different counties and hospital located in one of the counties unless venue is waived. There is no inconsistency between KRS 452.450 , 452.460 and 411.182 , as KRS 411.182 provides that apportionment may be had against all parties or settling tortfeasors, but it vests no authority to force tortfeasors to trial in improper venue. Copass v. Monroe County Medical Found., 900 S.W.2d 617, 1995 Ky. App. LEXIS 123 (Ky. Ct. App. 1995).

This section which codified the doctrine of comparative negligence merely addresses the procedure for apportioning liability among parties before the court or who have settled or been released, and it does not direct or authorize the adjudication of fault of absent, potential litigators. Copass v. Monroe County Medical Found., 900 S.W.2d 617, 1995 Ky. App. LEXIS 123 (Ky. Ct. App. 1995).

The statute does not require apportionment of liability between the drunken driver and the dram shop in an action brought under KRS 413.241 . Destock #14, Inc. v. Logsdon, 993 S.W.2d 952, 1999 Ky. LEXIS 81 ( Ky. 1999 ).

In a medical malpractice action in which a hospital was dismissed as a party on the ground of sovereign immunity, the other defendants were not entitled to have the jury nevertheless apportion fault to the hospital since there was no evidence at trial to show that the hospital was responsible for any injury to the plaintiff. Charash v. Johnson, 43 S.W.3d 274, 2000 Ky. App. LEXIS 42 (Ky. Ct. App. 2000).

Trial court in asbestosis case properly allowed the jury to consider the victims’ past history of smoking and failure to wear a protective mask in determining comparative fault between the victims and the asbestos manufacturer. Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 2001 Ky. LEXIS 185 ( Ky. 2001 ).

Question of whether fault can be apportioned against a person or an entity under KRS 411.182 is to be answered by examining the statute; a person or entity entitled to absolute immunity is not a “party to an action” under KRS 411.182 (1) for apportionment of fault purposes. Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

Possessing absolute immunity from suit is incompatible with being “a party to the action” in any sense and construing KRS 411.182 otherwise would result in a partial abrogation of the absolute immunity defense; because nothing else in KRS 411.182 indicates any intention by the Kentucky General Assembly to abrogate common-law absolute immunity, fault can not be apportioned under KRS 411.182 against a person or entity that possesses absolute immunity. Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

Because a general release executed by a passenger clearly and unambiguously released all persons, firms, or corporations liable for an automobile accident in which the passenger was severely injured, pursuant to KRS 411.182(4) the release included any possible third party claims. Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 2006 Ky. LEXIS 303 ( Ky. 2006 ).

Defendants’ motion for reconsideration was denied because their reliance on KRS 411.182 was misplaced, as the right to apportionment could not apply in the present action because the companies presented a claim for indemnity against a party with whom they are not in pari delicto. Asher v. Unarco Material Handling, Inc., 2007 U.S. Dist. LEXIS 76850 (E.D. Ky. Oct. 15, 2007).

Inability of a driver or the injured persons to present sufficient evidence of fault on the part of a car dealership, which owned the car the driver was test-driving, eliminated any proper allocation of fault to the car dealership; thus, the jury should not have been instructed on apportionment because the driver was the only party liable. Morgan v. Scott, 291 S.W.3d 622, 2009 Ky. LEXIS 98 ( Ky. 2009 ).

KRS 411.182 confirms that comparative negligence applies to products liability cases. York v. Petzl Am., Inc., 353 S.W.3d 349, 2010 Ky. App. LEXIS 173 (Ky. Ct. App. 2010).

In a case involving the malpractice of a bank auditor, an appellate court did not have to apply KRS 411.182 because, even if a trial court committed error by providing an apportionment instruction, any such error was cured by the verdict in the case. Apportionment was not a substantive cause of action, but depended upon an initial finding of fault. Peoples Bank of N. Ky., Inc. v. Horwath, 390 S.W.3d 830, 2012 Ky. App. LEXIS 113 (Ky. Ct. App. 2012).

Because the Manis rule was established under contributory negligence principles, and the law of the Commonwealth has been since 1984 by case law, Hilen v. Hays, 673 S.W.2d 713 ( Ky. 1984 ), and since 1988 by statute, Ky. Rev. Stat. Ann. § 411.182 , that all tort actions must provide for the apportionment of fault among all parties to an action, the Manis rule is no longer viable, and the Supreme Court of Kentucky holds that all open and obvious hazard cases, including obvious natural outdoor hazard cases, are subject to the comparative fault doctrine. Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 2015 Ky. LEXIS 1854 ( Ky. 2015 ).

In a breach of fiduciary case, an attorney's argument that he was not jointly and severally liable with his co-defendants was rejected because this statute did not apply to breach of attorney contracts. The attorney was bound by the Kentucky Supreme Court's determination that when he signed the agreement with the other attorneys, he signed as co-counsel, and the plaintiffs became his clients. Chesley v. Abbott, 524 S.W.3d 471, 2017 Ky. App. LEXIS 47 (Ky. Ct. App. 2017).

Settlement with the doctor who had filed for bankruptcy without an admission of fault was not a bar to prosecuting the claim against the hospital where the claim against the hospital arose from the hospital's own negligence. Lake Cumberland Reg'l Hosp., LLC v. Adams, 536 S.W.3d 683, 2017 Ky. LEXIS 444 ( Ky. 2017 ).

Non-settling non-party was not subject to any apportionment of fault. Savage v. Allstate Ins. Co., 2021 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 15, 2021).

3.Allocation of Fault.

This section limits allocation of fault to those who actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement. Baker v. Webb, 883 S.W.2d 898, 1994 Ky. App. LEXIS 77 (Ky. Ct. App. 1994).

Trial court’s failure to instruct the jury to apportion fault for infant’s injuries, that resulted in his death, between the hospital and the doctor violated both the principle that one is liable for only those damages equal to his degree of fault and this section. Reffitt v. Hajjar, 1994 Ky. App. LEXIS 57 (Ky. Ct. App. May 27, 1994), op. withdrawn, sub. op., 892 S.W.2d 599, 1994 Ky. App. LEXIS 111 (Ky. Ct. App. 1994).

This section applies to the same products liability actions covered by KRS 411.300(1); consequently, comparative fault applies to products liability actions based on breach of warranty. Morales v. American Honda Motor Co., 151 F.3d 500, 1998 FED App. 0230P, 1998 U.S. App. LEXIS 17447 (6th Cir. Ky. 1998 ).

In a products liability case, the jury’s apportionment of seventy percent fault to defendant could not be factually, legally, or logically supported where there was no proof that the fiberglass insulation distributed by defendant accounted for most of the exposure during the relevant period. Strickland v. Owens Corning, 142 F.3d 353, 1998 FED App. 0123P, 1998 U.S. App. LEXIS 7761 (6th Cir. Ky. 1998 ).

Apportionment of fault to defendants where the evidence is insufficient to support liability is error. Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 2000 FED App. 0027P, 2000 U.S. App. LEXIS 597 (6th Cir. Ky. 2000 ).

Trial court in asbestosis case between victims and asbestos manufacturer properly allowed the jury to apportion fault to one victim’s employer who had settled that victim’s asbestos related worker’s compensation claim before trial. Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 2001 Ky. LEXIS 185 ( Ky. 2001 ).

In an action which people who were injured in a vehicle accident or who survived people who were killed in the same accident (survivors) filed against a company that manufactured a van, the trial court gave an instruction on apportionment of fault by the person who was driving the van, and that instruction was sufficient to inform the jury about fault on the part of a club that owned the van because the club’s liability was based, under the facts of the case, on the driver’s conduct. Ford Motor Co. v. Coulson, 2003 Ky. App. Unpub. LEXIS 663 (Ky. Ct. App. May 23, 2003).

When insureds died in an automobile accident caused, in part, by an unknown party, and the insureds’ estate sought underinsured motorist coverage from their insurer, after settling for the policy limits with the insurer for the other motorist involved in the accident, it was error for the trial court to instruct the jury to apportion fault between the settling motorist and the unknown party, as the unknown party was not subject to the trial court’s personal jurisdiction or bound by the jury’s verdict. Ryan v. Ky. Farm Bureau Mut. Ins. Co., 2003 Ky. App. LEXIS 207 (Ky. Ct. App. Aug. 22, 2003), rev'd, 177 S.W.3d 797, 2005 Ky. LEXIS 358 ( Ky. 2005 ).

When viewed in its entirety, KRS 411.182 limited allocation of fault to those who actively asserted claims, offensively or defensively, as parties in the litigation or who had settled by release or agreement. Ryan v. Ky. Farm Bureau Mut. Ins. Co., 2003 Ky. App. LEXIS 207 (Ky. Ct. App. Aug. 22, 2003), rev'd, 177 S.W.3d 797, 2005 Ky. LEXIS 358 ( Ky. 2005 ).

District court properly admitted evidence of an individual’s alcohol consumption in his product liability action against an automobile manufacturer where his judicial admission of fault in causing the wheels to drop off the pavement did not resolve all of the issues required to be considered under KRS 411.182(2) and the evidence was not so prejudicial as to thoroughly taint the trial. Smith v. Toyota Motor Corp., 105 Fed. Appx. 47, 2004 U.S. App. LEXIS 14892 (6th Cir. Ky. 2004 ).

In a personal injury case in which there was a great deal of testimony about whether a hazard was open and obvious, the significance of warnings given to the injured party, the sufficiency of the lighting around the hazard, and the injured party’s knowledge of the hazard’s existence, an apportionment instruction was supported under KRS 411.182(1) because there was sufficient evidence to support a finding of the injured party’s fault. Reece v. Dixie Warehouse & Cartage Co., 188 S.W.3d 440, 2006 Ky. App. LEXIS 78 (Ky. Ct. App. 2006).

An administratrix was entitled to damages resulting from the decedent’s riding of an All-Terrain Vehicle on a public highway obstructed by an indiscernible cable; the fact that the decedent was using an ATV to unlawfully travel a public road under KRS 189.515(1) did not render the Transportation Cabinet free of fault for its negligence, but rather the decedent’s negligence was a factor which the circuit court properly considered in apportioning the liability between the parties under KRS 411.182 . Commonwealth v. Guffey, 2006 Ky. App. LEXIS 150 (Ky. Ct. App. May 19, 2006), aff'd in part and rev'd in part, 244 S.W.3d 79, 2008 Ky. LEXIS 2 ( Ky. 2008 ).

Trial court violated KRS 413.241 by instructing the jury to apportion fault between an injured passenger, an allegedly negligent driver, and the two nightclubs that served them alcohol before they were involved in a one-vehicle accident. The jury should have been instructed to apportion fault between just the passenger and the driver; only if the jury found that the passenger had some percentage of fault should it have determined whether the nightclubs could be held secondarily liable under KRS 413.241 . Jackson v. Tullar, 2007 Ky. App. LEXIS 72 (Ky. Ct. App. Mar. 2, 2007), sub. op., 285 S.W.3d 290, 2007 Ky. App. LEXIS 170 (Ky. Ct. App. 2007).

Nothing was fundamentally unfair about assigning 100 percent of the fault for an injury to the only party that breached a duty and caused the injury under KRS 411.182(1) where the jury had originally apportioned fault equally between the driver and a car dealership, but the dealership was found not to be liable on appeal. Morgan v. Scott, 291 S.W.3d 622, 2009 Ky. LEXIS 98 ( Ky. 2009 ).

Taking each allegation in the manufacturer’s cross-claim for indemnity, contribution, and apportionment of fault as true, the fact remained that no agency relationship existed between the parties and it could not be said with certainty that any negligence by the instructor or supervisor was the primary cause of the chief’s injuries; a jury could find that the chief was injured based on the manufacturer’s failure to design a harness correctly or supply proper warnings, or the jury might determine all parties were equally liable, and summary judgment was not appropriate. York v. Petzl Am., Inc., 353 S.W.3d 349, 2010 Ky. App. LEXIS 173 (Ky. Ct. App. 2010).

Jury should have been instructed to apportion liability to the fault of each defendant, as KRS 411.182 provides for fault to be apportioned to a settling party; assuming the manufacturer’s cross-claim allegations were true and the jury agreed, the amount of the accident caused by the negligence of the instructor and supervisor would be apportioned to them and not the manufacturer, who would be liable only for its own negligence. York v. Petzl Am., Inc., 353 S.W.3d 349, 2010 Ky. App. LEXIS 173 (Ky. Ct. App. 2010).

Trial court did not err in failing to give a hospital’s tendered apportionment instruction, which would have permitted a jury to assign a portion of the fault for leaving a sponge in a patient’s abdomen to the surgeon who performed the operation, because the hospital failed to meet its burden of establishing by expert testimony the standard of care imposed upon the surgeon, and that the surgeon breached that standard of care. Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 2012 Ky. LEXIS 159 ( Ky. 2012 ).

In a civil rights suit, defendants were granted leave to file a third-party complaint against plaintiff’s parents because defendants had stated allegations against the parents that, if proved at trial, would warrant an apportionment instruction on plaintiff’s state law claims. Compton v. City of Harrodsburg, 2013 U.S. Dist. LEXIS 142306 (E.D. Ky. Oct. 2, 2013).

Medical device manufacturer was not entitled to an apportionment instruction because it could not prove that the dismissed component manufacturer was liable for the consumers' injuries under the Biomaterials Access Assurance Act (BAAA), and further, the BAA expressly preempted the instruction. Sadler v. Advanced Bionics, LLC, 2013 U.S. Dist. LEXIS 54697 (W.D. Ky. Apr. 16, 2013).

Plaintiff’s negligence that merely provides the occasion for the medical care, attention, and treatment that subsequently results in a medical malpractice action should not be considered by a jury assessing fault; the case concerned the care, not the cause, of the patient’s injuries, and evidence relating to the patient’s alleged negligence was not relevant. Pauly v. Chang, 498 S.W.3d 394, 2015 Ky. App. LEXIS 172 (Ky. Ct. App. 2015).

Trial court did not err by instructing the jury to apportion fault to a vehicle repair company and a former corporate director in awarding damages on the company's aiding and abetting a breach of fiduciary duty claim against a former customer where whether the joint tortfeasors were or were not in pari delicto had no bearing whether fault could be apportioned to a plaintiff, liability among joint tortfeasors was no longer joint and several, but several only, and case law interpreting comparative negligence did not provide otherwise. Insight Ky. Partners II, L.P. v. Preferred Auto. Servs., 514 S.W.3d 537, 2016 Ky. App. LEXIS 98 (Ky. Ct. App. 2016).

It was the configuration of the company's baseball field and fence that allowed the injury to the player to take place, not any failure to notice and warn, supervise or build differently than instructed, and thus the company was the primary cause of the injury; contribution was not available against third-party defendants because apportionment was required, and the company would not be responsible for any damages attributed to third-party defendants because the company was entitled to an apportionment instruction allowing allocation of fault to them. Mem'l Sports Complex, LLC v. McCormick, 499 S.W.3d 700, 2016 Ky. App. LEXIS 153 (Ky. Ct. App. 2016).

In a medical malpractice action against a radiologist, the trial court properly included another radiologist who settled with the patient in the apportionment instructions to the jury because the evidence of the other radiologist's liability was both necessary and sufficient to allow the submission of the issue of the other radiologist's fault to the jury. Fraley v. Zambos, 555 S.W.3d 441, 2018 Ky. App. LEXIS 84 (Ky. Ct. App. 2018).

4.Joint and Several Liability.

Under this section, once the court has decided which parties are liable under the proper theories, it must then apportion liability among those at fault rather than simply holding the wrongdoers jointly and severally liable. Radcliff Homes, Inc. v. Jackson, 766 S.W.2d 63, 1989 Ky. App. LEXIS 19 (Ky. Ct. App. 1989).

The trial court did not err in instructing jury to apportion fault between intentional tortfeasor and negligent tortfeasor; there was no requirement that the court hold both tortfeasors jointly and severally liable for the entire amount of the damages. Roman Catholic Diocese v. Secter, 966 S.W.2d 286, 1998 Ky. App. LEXIS 31 (Ky. Ct. App. 1998).

Joint and several liability was properly imposed against three attorneys who had taken excessive fees from settlement funds because the clients’ claims, which included both breach of contract and breach of fiduciary duties, did not sound exclusively in tort and because the attorneys had engaged in a joint enterprise to which partnership liability applied. Abbott v. Chesley, 413 S.W.3d 589, 2013 Ky. LEXIS 367 ( Ky. 2013 ), cert. denied, 572 U.S. 1135, 134 S. Ct. 2672, 189 L. Ed. 2d 210, 2014 U.S. LEXIS 3798 (U.S. 2014).

4.5.Common Law Indemnity.

Apportionment statute does not abolish the common law right of indemnity where one is only constructively or secondarily liable to a plaintiff. York v. Petzl Am., Inc., 353 S.W.3d 349, 2010 Ky. App. LEXIS 173 (Ky. Ct. App. 2010).

Because testimony established some defect in defendant oven manufacturer’s oven as a probable cause of the oven’s explosion, but there was no evidence to establish liability on the part of third-party defendant temperature regulator manufacturer, summary judgment was warranted in favor of the regulator manufacturer on the oven manufacturer’s indemnity claim; that conclusion was not affected by KRS 411.182 , because apportioned liability still required proof of the same elements of liability against the impleaded party, including causation in a product liability case, and there was insufficient evidence for a jury to find that the regulator manufacturer had manufactured a defective part. Siegel v. Dynamic Cooking Sys., 501 Fed. Appx. 397, 2012 FED App. 1033N, 2012 U.S. App. LEXIS 20416 (6th Cir. Ky. 2012 ).

5.Contributory Negligence.

In a two-party products liability case, where the facts of the case raised a jury issue of whether or not the plaintiff was negligent, and whether such negligence was a substantial factor in causing his death (and perhaps would justify a directed verdict for the defendant), the court should have applied the principle of contributory negligence pursuant to KRS 411.320 and Reda Pump Co., Etc. v. Finck, 713 S.W.2d 818, 1986 Ky. LEXIS 283 ( Ky. 1986 ), rather than the principle of comparative negligence pursuant to this section. Koching v. International Armament Corp., 772 S.W.2d 634, 1989 Ky. LEXIS 60 ( Ky. 1989 ).

Fisherman’s contributory negligence barred his estate’s recovery in a products liability action where the cause of action arose prior to the effective date of this section. Wyke v. Sea Nymph, Inc., 758 F. Supp. 418, 1990 U.S. Dist. LEXIS 18467 (W.D. Ky. 1990 ).

Because KRS 411.182 superseded KRS 411.320(1) and (2), the manufacturers were not entitled to a jury instruction on the alleged alteration of the miter saw that injured a consumer. Low v. Power Tool Specialist, Inc., 803 F. Supp. 2d 655, 2011 U.S. Dist. LEXIS 29617 (E.D. Ky. 2011 ).

6.Workers’ Compensation.

Subsection (4) of this section covers the workers’ compensation situation; thus, an agreement to operate under the act is a “similar agreement” within the statute. Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

Fact that a third-party defendant employer had paid workers’ compensation benefits to the plaintiff employee did not preclude the defendant lessor and the third-party defendant manufacturer from naming the employer as a third-party defendant for purposes of apportionment under KRS 411.182 or for common law indemnity, and the employer’s motion to dismiss the third-party complaint against it was denied. Smith v. Leveelift, Inc., 2005 U.S. Dist. LEXIS 19997 (E.D. Ky. Sept. 13, 2005).

7.Suppression of KRS 411.320 (1), (2).

This section, enacted in 1988 and which codified the comparative fault standard, supersedes subsections (1) and (2) of KRS 411.320 , for a statute that forgives the liability of manufacturers is manifestly contradictory to the purpose of the comparative fault system. Smith v. Louis Berkman Co., 894 F. Supp. 1084, 1995 U.S. Dist. LEXIS 12506 (W.D. Ky. 1995 ).

This comparative fault statute, which contains a provision to include products liability actions, negates the products liability statute enunciated in KRS 411.320(1). Caterpillar, Inc. v. Brock, 915 S.W.2d 751, 1996 Ky. LEXIS 12 ( Ky. 1996 ).

8.Discount of Liability.

The fact that defendant manufacturer of salt spreader, in which plaintiff injured his arm, met the bid specifications set by the state did not preclude a product liability suit against the manufacturer; accordingly, lower court did not err in holding that defendant could not discount its liability under the government contractor theory. Smith v. Louis Berkman Co., 894 F. Supp. 1084, 1995 U.S. Dist. LEXIS 12506 (W.D. Ky. 1995 ).

9.Statute of Repose.

KRS 411.310 , though enacted before the enactment of this section, which codified the comparative fault standard, does not contradict the principles underlying the comparative negligence doctrine, rather it acts as a statute of repose, limiting potential liability by limiting the time during which a cause of action can arise. Smith v. Louis Berkman Co., 894 F. Supp. 1084, 1995 U.S. Dist. LEXIS 12506 (W.D. Ky. 1995 ).

10.Damages.

The correct measure of damages to be applied to a subrogation case involving the destruction of a leased premises by fire is the fair and reasonable value of the building when destroyed. Continental Ins. Co. v. Plummer, 904 S.W.2d 231, 1995 Ky. LEXIS 105 ( Ky. 1995 ).

11.New Trial.

Jury verdict that plaintiff, who injured his arm in salt spreader when he attempted to extract a chain from turning augers, was not negligent in regard to his own safety was clearly against the weight of the evidence and new trial was necessary to reconsider plaintiff’s liability and the comparative fault of all the parties. Because amount of damages was not in dispute, no new trial on damages was necessary. Smith v. Louis Berkman Co., 894 F. Supp. 1084, 1995 U.S. Dist. LEXIS 12506 (W.D. Ky. 1995 ).

Administratrix was entitled to a new trial in the first of two (2) of her malpractice actions, filed in two (2) different counties against four (4) doctors and their respective hospitals, where two (2) of the doctors were found not liable after a trial in the second suit, but the court in the first suit erroneously gave an apportionment instruction therein including these non-party doctors, as they were non-party non-settling doctors in the first lawsuit. Jones v. Stern, 168 S.W.3d 419, 2005 Ky. App. LEXIS 19 (Ky. Ct. App. 2005).

Jury award to an estate administrator, in a case where the administrator claimed that a financial advisor and her mother procured an inter vivos gift from the decedent as a result of either their own undue influence or the decedent’s unsound mind, was reversed and remanded for a retrial where the trial court erred in failing to instruct the jury to apportion liability between the advisor and the mother pursuant to Kentucky’s comparative fault statute, KRS 411.182 . Hilsmeier v. Chapman, 192 S.W.3d 340, 2006 Ky. LEXIS 143 ( Ky. 2006 ).

12.Former Law Applicable.

In case involving an accident that occurred prior to July, 1988 when this apportionment statute became effective and thus required examination of prior law, defendant’s claims against third-party defendant for apportionment, contribution and indemnity had to be dismissed because prior settlement between plaintiff and defendant could only have settled that defendant’s portion of liability; settlement could not have settled or paid for a portion of liability caused by a third party defendant. Continental Marine v. Bayliner Marine Corp., 929 S.W.2d 206, 1996 Ky. App. LEXIS 152 (Ky. Ct. App. 1996), overruled in part, Degener v. Hall Contr. Corp., 27 S.W.3d 775, 2000 Ky. LEXIS 63 ( Ky. 2000 ).

13.Expert Testimony.

Although certified issue unequivocally pronouncing that subsection (1) of this section repealed KRS 411.320(1) meant that KRS 411.320(1) did not provide bulldozer manufacturer a complete defense to product liability action, judgment in favor of plaintiff, injured when bulldozer he was operating lost braking power, was reversed because allowing expert testimony as to the comparison between bulldozers that were substantially different or marketed and sold at a considerably later time was error. Brock v. Caterpillar, Inc., 94 F.3d 220, 1996 FED App. 0277P, 1996 U.S. App. LEXIS 21912 (6th Cir. Ky. 1996 ), cert. denied, 520 U.S. 1166, 117 S. Ct. 1428, 137 L. Ed. 2d 537, 1997 U.S. LEXIS 2240 (U.S. 1997).

14.Dram Shops.

Liability among multiple dram shops is properly apportioned under comparative fault principles as multiple dram shops that violate KRS 413.241 commit similar acts that have a similar relationship to a plainitff’s ultimate injury; once a jury finds that the KRS 413.241 elements are satisfied such that either or both bars can be held secondarily liable, the jury should be instructed to determine to what degree the sale or service of alcohol by each bar was a substantial factor in causing a driver’s intoxication at the time of an accident. Jackson v. Tullar, 285 S.W.3d 290, 2007 Ky. App. LEXIS 170 (Ky. Ct. App. 2007).

15.Vicarious Liability of Franchisor.

The franchisor is vicariously liable for the tortious conduct of the franchisee when it, in fact, has control or right of control over the daily operation of the specific aspect of the franchisee’s business that is alleged to have caused the harm. Since the franchisor had no control over the franchisee delivery driver’s intentional, tortious conduct in this case, the franchisor cannot be held vicariously liable. Papa John's Int'l, Inc. v. McCoy, 244 S.W.3d 44, 2008 Ky. LEXIS 16 ( Ky. 2008 ).

Cited:

Kevin Tucker & Assoc., Inc. v. Scott & Ritter, Inc., 842 S.W.2d 873, 1992 Ky. App. LEXIS 243 (Ky. Ct. App. 1992); Rice v. Cincinnati, New Orleans & Pac. Ry., 920 F. Supp. 732, 1996 U.S. Dist. LEXIS 4206 (E.D. Ky. 1996 ); Geyer v. Mankin, 984 S.W.2d 104, 1998 Ky. App. LEXIS 128 (Ky. Ct. App. 1998); United States Fid. & Guar. Co. v. Clara J. Preston, 26 S.W.3d 145, 2000 Ky. LEXIS 79 ( Ky. 2000 ); Hollar v. Cain, 36 Fed. Appx. 846, 2002 U.S. App. LEXIS 11648 (6th Cir. Ky. 2002 ); Foister v. Purdue Pharma, L.P., 295 F. Supp. 2d 693, 2003 U.S. Dist. LEXIS 24274 (E.D. Ky. 2003 ).

1.Application.

Unpublished decision: Transportation cabinet should not be subject to apportionment in the negligence action, as it was being dismissed on sovereign immunity grounds. Commonwealth v. Watson, 2016 Ky. App. LEXIS 155 (Ky. Ct. App. Sept. 2, 2016), review denied, ordered not published, 2017 Ky. LEXIS 292 (Ky. Aug. 16, 2017).

Unpublished decision: Neither the Kentucky Supreme Court’s decision in Richardson nor KRS 411.182(4) expressly requires that a party must be identified by name to be covered by a release. Pennington v. AT&T, 202 Fed. Appx. 880, 2006 FED App. 0786N, 2006 U.S. App. LEXIS 26408 (6th Cir. Ky. 2006 ).

Unpublished decision: Appellate court erred in reversing and remanding a case for a new trial because the determination by the trial judge that the health care providers in a medical malpractice case had antagonistic interests and were entitled to separate peremptory challenges was not an abuse of discretion or clearly erroneous. Accordingly, the appellate court failed to properly consider the giving of an apportionment instruction by one of the health care providers. Sommerkamp v. Linton, 114 S.W.3d 811, 2003 Ky. LEXIS 207 ( Ky. 2003 ).

Unpublished decision: District court properly interpreted existing precedent and KRS 411.182(4) to conclude that the plain, unambiguous language of a prior release signed by the administrator of a decedent’s estate included within its scope a company that was not specifically named in the release; thus, summary judgment for the company was proper in the estate administrator’s wrongful death action. Pennington v. AT&T, 202 Fed. Appx. 880, 2006 FED App. 0786N, 2006 U.S. App. LEXIS 26408 (6th Cir. Ky. 2006 ).

2.Allocation of Fault.

Unpublished decision: District court properly overruled an individual’s motion in limine to preclude instruction on the apportionment of fault and evidence of the individual’s negligence in a product liability action against an automobile manufacturer because KRS 411.182(1) required an apportionment instruction in product liability actions. Smith v. Toyota Motor Corp., 105 Fed. Appx. 47, 2004 U.S. App. LEXIS 14892 (6th Cir. Ky. 2004 ).

Unpublished decision: District court erred by requiring a bankruptcy debtor's partner to pay all of the debtor's damages resulting from a conspiracy to defraud rather than apportioning the damages between the partner and a co-conspirator; the common-law rule that co-conspirators are each liable for all of the damages that result from the conspiracy had been abrogated by this section. Waldman v. Stone, 599 Fed. Appx. 569, 2015 FED App. 0219N, 2015 U.S. App. LEXIS 4668 (6th Cir. Ky. 2015 ).

3.Common Law Indemnity.

Unpublished decision: Since jury found that neither company nor railroad breached their respective duties of care, error in jury instructions apportioning fault to company was effectively cured by jury’s ultimate verdict; erroneous instructions did not prejudice railroad worker’s substantial rights, resulting in harmless error. Downs v. CSX Transp., Inc., 2013 Ky. App. LEXIS 93 (Ky. Ct. App. June 21, 2013), review denied, ordered not published, 2014 Ky. LEXIS 278 (Ky. June 11, 2014).

Unpublished decision: Circuit court erroneously instructed jury as to defendant electronics company (under Federal Employers’ Liability Act, jury should never have been instructed to apportion fault between railroad and nonrailroad causes, and because railroad only asserted an indemnity claim against company, Kentucky law was clear that jury did not apportion fault between railroad and company under KRS 411.182 . Downs v. CSX Transp., Inc., 2013 Ky. App. LEXIS 93 (Ky. Ct. App. June 21, 2013), review denied, ordered not published, 2014 Ky. LEXIS 278 (Ky. June 11, 2014).

Research References and Practice Aids

Kentucky Bench & Bar.

Glover, Tort Reform: The Effects of Compulsory Apportionment, Volume 53, No. 1, Winter 1989 Ky. Bench & B. 16.

Eades, Some Thoughts About “Tort Reform.”, Vol. 70, No. 6, November 2006, Ky. Bench & Bar 9.

Hickey, Summary Judgment: Let’s Eliminate Any Need for Tort Reform., Vol. 70, No. 6, November 2006, Ky. Bench & Bar 15.

Feamster & White, Tort Reform: The Defense Perspective., Vol. 70, No. 6, November 2006, Ky. Bench & Bar 18.

Wolff, Legal Malpractice Primer., Vol. 71, No. 1, January 2007, Ky. Bench & Bar 19.

Kentucky Law Journal.

Note, Apportioning Liability to Nonparties in Kentucky Tort Actions: A Natural Extension of Comparative Fault or a Phantom Scapegoat for Negligent Defendants? 82 Ky. L.J. 789 (1993-94).

Northern Kentucky Law Review.

Comment, A Survey of Kentucky Tort Reform, 17 N. Ky. L. Rev. 473 (1990).

Notes, University of Louisville v. O’Bannon: Retroactive Application of Board of Claims Act Amendments, 18 N. Ky. L. Rev. 121 (1990).

Huelsman, Insurance Law in Kentucky in the 1990s — Where Will the Court Go from Here?, 20 N. Ky. L. Rev. 721 (1993).

Phillips, Crashworthiness in the Commonwealth: An Analysis of the Defectiveness of Tractors Without Rops, 23 N. Ky. Rev. 325 (1996).

Elder, 2001: An End of Millennium Odyssey Through Tort Liability of Occupiers and Owners of Land, 28 N. Ky. L. Rev. 352 (2001).

Raper & Evans, A Survey of Kentucky Medical Malpractice Law., 32 N. Ky. L. Rev. 711 (2005).

General Law Issue: Article: Almost a Century and Three Restatements After Green It’s Time to Admit and Remedy the Nonsense of Negligence, 38 N. Ky. L. Rev. 61 (2011).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Assorted Defenses, Form 130.10.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Defense of Comparative Fault of Careless Driving of “Seatbelt Defense”, Form 135.02.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Various Defenses, Form 137.15.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Various Defenses to Wrongful Death Claim Based upon Dangerous Condition, Form 141.09.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Visibility of Condition and Other Defenses, Form 131.11.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer by Defendant Tavern Asserting Defenses and Crossclaim Against Co-defendant for Indemnity, Form 132.03.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer by Defendant Tavern Asserting Defenses and Crossclaim Against Driver for Indemnity, Form 135.07.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer by Police Officer to Complaint Alleging Reasonable, Form 120.06.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer of City to Complaint of Battery Against Police Officer, Form 120.07.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer of Defendant Driver in Two-Car Accident Asserting Plaintiff Passenger’s Contributory Negligence in Riding with Reckless or Dangerous Driver, Form 135.13.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer to Malpractice Complaint Asserting Various Defenses, Form 136.10.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Carrier’s Answer to Complaint for Personal Injuries Asserting Assorted Defenses, Form 134.13.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Automobiles/No Fault/Uninsured Motorist, § 135.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Medical Malpractice, § 136.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Negligence, § 130.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Nuisance, § 139.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Animals, § 15.01.

Kentucky Instructions to Juries (Civil), 5th Ed., Assault and Battery, § 28.12.

Kentucky Instructions to Juries (Civil), 5th Ed., Bailments, § 34.11.

Kentucky Instructions to Juries (Civil), 5th Ed., Definitions Relating to Negligence, § 14.08.

Kentucky Instructions to Juries (Civil), 5th Ed., Joint Tortfeasors, § 46.01.

Kentucky Instructions to Juries (Civil), 5th Ed., Products Liability, § 49.01.

1.Constitutionality.

Subsection (1)(c), which changed the existing common law standard of gross negligence for awarding punitive damages, instead conditioning such an award on a finding that defendant acted “with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm,” violates the jural rights doctrine inherent in Ky. Const., §§ 14, 54 and 241. Williams v. Wilson, 972 S.W.2d 260, 1998 Ky. LEXIS 63 ( Ky. 1998 ).

Successive awards of punitive damages for the same course of conduct do not violate due process. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 1998 Ky. LEXIS 97 ( Ky. 1998 ).

Kentucky Supreme Court had not struck down the provision of KRS 411.184 that allowed punitive damages awards for fraud, and the Federal District Court could not predict that the Kentucky Supreme Court would strike down KRS 411.186(2)(c). Thus, the court granted plaintiff’s motion to compel discovery; plaintiff was entitled to discover defendant’s financial condition, not so plaintiff could present evidence of that condition to the trier of fact, but so that plaintiff could determine whether there was any evidence that defendant’s alleged misconduct resulted in a profit that it would not otherwise have gained. Derby Fabricating v. Packing Material Co., 2005 U.S. Dist. LEXIS 28765 (W.D. Ky. Nov. 18, 2005).

Where defendant intentionally killed the decedent, where he was convicted of murder but his conviction was reversed, where defendant pled guilty to manslaughter to avoid a retrial, where plaintiff, the decedent’s father, filed a wrongful death suit against defendant, where the trial court entered summary judgment in favor of plaintiff on the issue of liability and conducted a jury trial on the issue of damages, where the jury awarded $3.3 million in compensatory damages and $60 million in punitive damages, and where defendant challenged the propriety of the punitive damages award, the court held that the purpose of the punitive damage award was not to compensate the estate but to vindicate the state’s legitimate interests in punishment and deterrence of conduct of the type in which defendant engaged. Under that analysis, the $60 million punitive award was grossly excessive; as such, it was violative of the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, and the punitive damages award was reduced to $30 million. Ragland v. Estate of Digiuro, 352 S.W.3d 908, 2010 Ky. App. LEXIS 201 (Ky. Ct. App. 2010).

As the court found that the owner was entitled to a directed verdict as to punitive damages, the court did not need to address whether the damages award was based on prejudice or unconstitutionally excessive. Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 2013 Ky. LEXIS 29 ( Ky. 2013 ).

As the court was vacating and remanding the case for a new punitive damages determination, the court did not need to address whether the trial court properly reduced the verdict, other than to say an award of punitive damages at a rate 25 times the award of compensatory damages could easily cross the line into the area of constitutional impropriety when it has been recognized that a ratio of just 4:1 might be close to the line. Crutcher v. Harrod Concrete & Stone Co., 2013 Ky. App. Unpub. LEXIS 999 (Ky. Ct. App. Mar. 22, 2013), rev'd, 458 S.W.3d 290, 2015 Ky. LEXIS 72 ( Ky. 2015 ).

1.5.Application.

Because Kentucky prohibits courts from construing statutes as retroactive unless the statute expressly so declares and there is no such express declaration in this section and court did not construe subsection (5) of this section as being the required express declaration, this section, enacted in 1988, was inapplicable to an action in damages for fraud where the events involved occurred in late 1979 and the early 1980’s. Miller's Bottled Gas v. Borg-Warner Corp., 56 F.3d 726, 1995 FED App. 0186P, 1995 U.S. App. LEXIS 14907 (6th Cir. Ky. 1995 ).

Evidence pertaining to prior litigation involving an insurance company and its adjuster is relevant in a punitive damages action alleging bad faith and unfair settlement practices in order to show the adjuster’s pattern of unfair methods in handling claims and the insurer’s knowledge of such conduct; however, monetary amounts involved in the prior litigation are not admissible. Kentucky Farm Bureau Mut. Ins. Co. v. Troxell, 959 S.W.2d 82, 1997 Ky. LEXIS 148 ( Ky. 1997 ).

KRS 411.184 through 411.186 do not make punitive damages available under KRS 344.450 . Ky. Dep't of Corr. v. McCullough, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ), modified, 2004 Ky. LEXIS 23 (Ky. Jan. 22, 2004), modified, 2004 Ky. LEXIS 24 (Ky. Jan. 22, 2004).

Since plaintiff would be potentially able to recover punitive damages for her claims related to products liability or under the Kentucky Consumer Protection Act, consideration of a potential punitive damage award could be considered when calculating the amount in controversy under 28 USCS § 1332. Hollon v. Consumer Plumbing Recovery Ctr., 417 F. Supp. 2d 849, 2006 U.S. Dist. LEXIS 7789 (E.D. Ky. 2006 ).

When several homeowners sued the same builder for selling them four-bedroom homes that had septic systems approved for three bedrooms, it was error to instruct the jury on punitive damages under KRS 411.184(1)(b) because punitive damages for this type of fraudulent concealment were permissible only if the concealment itself caused damages independent of those flowing from the wrongful act attempted to be concealed; as to one owner, there was no evidence he incurred any damages from the concealment apart from the jury’s award of damages for breach of warranty, and as to the other homeowners, who also recovered damages based on building code violations and breach of warranty claims, even if the builder intentionally concealed information about the septic systems, there was no evidence that it did so with the intention of causing injury to the homeowners. Young v. Vista Homes, Inc., 243 S.W.3d 352, 2007 Ky. App. LEXIS 12 (Ky. Ct. App. 2007).

Where an auto dealer’s employee shot out the tires of plaintiff’s truck in order to repossess it, the dealer was entitled to summary judgment on plaintiff’s claim for punitive damages under KRS 411.184(3) as there was no evidence that the dealer ever authorized the employee to use the conduct he employed to repossess the truck, and there was no factual issue as to whether the dealer should have anticipated the employee’s conduct; retention of the truck was not ratification of the means employed to repossess it. Patterson v. Tommy Blair, Inc., 265 S.W.3d 241, 2007 Ky. App. LEXIS 467 (Ky. Ct. App. 2007).

Because of the longstanding case law noting the purpose of punitive damages and Kentucky’s stated requirement of allowing recovery only against the wrongdoer, it aligns with those jurisdictions that prohibit recovery of lost punitive damages in legal malpractice actions, KRS 411.184(1)(f). Osborne v. Keeney, 399 S.W.3d 1, 2012 Ky. LEXIS 203 ( Ky. 2012 ), limited, Ind. Ins. Co. v. Demetre, 527 S.W.3d 12, 2017 Ky. LEXIS 364 ( Ky. 2017 ).

In the client’s legal malpractice action against her attorney, the recovery of lost punitive damages in legal malpractice actions was prohibited, KRS 411.184(1)(f). Allowing the client to recover lost punitive damages would not advance the policy underlying punitive damages in any way; in fact, allowing recovery would be antithetical to what punitive damages stand for, which was untying the concept of punitive damages from its doctrinal moorings. Osborne v. Keeney, 399 S.W.3d 1, 2012 Ky. LEXIS 203 ( Ky. 2012 ), limited, Ind. Ins. Co. v. Demetre, 527 S.W.3d 12, 2017 Ky. LEXIS 364 ( Ky. 2017 ).

Punitive damages cannot be transformed into compensatory damages without negating the specific purpose of the award; while there is no standard for setting punitive damages, Kentucky’s legislature identified five factors in KRS 411.186(2). Crutcher v. Harrod Concrete & Stone Co., 2013 Ky. App. Unpub. LEXIS 999 (Ky. Ct. App. Mar. 22, 2013), rev'd, 458 S.W.3d 290, 2015 Ky. LEXIS 72 ( Ky. 2015 ).

2.Appellate Review.

To the extent an owner claimed alleged inflammatory evidence affected the compensatory damages award in addition to the punitive damages award, the error was unpreserved, as the owner made this argument solely in the context of the punitive damages award to the appellate court. Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 2013 Ky. LEXIS 29 ( Ky. 2013 ).

3.Award Held Not Excessive.

When the concept of reasonableness and other factors identified were considered in the light of evidence presented, evidence from which the jury believed the bank engaged in an elaborate fraud to gain additional security for existing loans with no intentions of performing its representations of fact and with knowledge of the likely destruction of borrower’s business, punitive judgment was not so “grossly excessive” as to violate the substantive component of the Due Process Clause. Hanson v. American Nat'l Bank & Trust Co., 865 S.W.2d 302, 1993 Ky. LEXIS 156 ( Ky. 1993 ).

The trial judge was not clearly erroneous in determining that a punitive judgment verdict of $435,000 against a manufacturer of asbestos products was not excessive. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 1998 Ky. LEXIS 97 ( Ky. 1998 ).

Award of $5,000 in punitive damages in neighbors’ action concerning the use of a dirt road which bordered the parties’ properties was affirmed, as the neighbors provided adequate proof that defendants acted with malice or oppression in denying the neighbors access to the road as required by KRS 411.184 , and the amount of the award did not violate due process rights under Ky. Const. § 2, as the award was reasonable in light of and proportionate to the conduct of the defendants, which included harassment of the neighbors. Roberie v. VonBokern, 2006 Ky. LEXIS 186 (Ky. Aug. 24, 2006).

There was no factual basis in the record for a reasonable juror to impose punitive damages based on an employer’s fraud, malice, or oppression under KRS 411.184(2) for off-the-clock work and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 . At most, the employee was trained by his store manager to clock out earlier in the store closing procedures than the company’s written store closing procedures required. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Trial court’s punitive damages award to the clients was sustainable where knowing the clients’ aversion to tax risks personally and professionally, an accounting firm made false representations and omitted material facts imperative to the clients’ fully-informed decisionmaking as to a tax shelter the accounting firm was promoting, the firm never disclosed the general or specific problems with the tax shelter despite multiple IRS notices, legal opinions, and professional articles, and when the clients discovered on their own the potential problems, the firm continued to misrepresent the product. Yung v. Thornton, 563 S.W.3d 22, 2018 Ky. LEXIS 585 ( Ky. 2018 ).

4.Instructions.

Kentucky law does not mandate the submission of instructions on punitive damages in fraud actions. Miller's Bottled Gas v. Borg-Warner Corp., 817 F. Supp. 643, 1993 U.S. Dist. LEXIS 5268 (W.D. Ky. 1993 ), aff'd, 56 F.3d 726, 1995 FED App. 0186P, 1995 U.S. App. LEXIS 14907 (6th Cir. Ky. 1995 ).

Where the trial court instructed the jury in accordance with the provisions of KRS 411.186 and this section and, where the judge set forth in detail the definitions and standards the jury was to use in its deliberation in deciding whether punitive damages should be awarded and, if so, in what amount, such instructions are the only guidance that may be given the jury. Reasonable men and women will differ in determining the amount of exemplary damages, but so long as the jury’s decision is free of passion or prejudice and is appropriately reviewed by the trial judge, there is no basis for substituting the court’s opinion in the place of the jury’s. Hanson v. American Nat'l Bank & Trust Co., 865 S.W.2d 302, 1993 Ky. LEXIS 156 ( Ky. 1993 ).

Although the evidence of defendant physician’s negligence was overwhelming, and plaintiff asserted that defendant physician did not pay sufficient attention to her or her infant while in labor because of her status as a welfare patient, no evidence was shown that defendant physician discriminated against plaintiff or her infant because of her status and plaintiff’s assertion did not support an instruction on punitive damages as it did not meet the standards set forth in this section, requiring the conduct complained of to be carried out both with a flagrant indifference to the rights of the plaintiff and her infant and with a subjective awareness that such conduct would result in human death or bodily harm. Reffitt v. Hajjar, 1994 Ky. App. LEXIS 57 (Ky. Ct. App. May 27, 1994), op. withdrawn, sub. op., 892 S.W.2d 599, 1994 Ky. App. LEXIS 111 (Ky. Ct. App. 1994).

While a proper verdict in most civil actions requires only that the jury “believe” or be “satisfied” from the evidence, for those civil actions requiring a heightened degree of proof such as “clear and convincing evidence” it is necessary to expressly state the standard to assure an appropriately informed jury. Hardin v. Savageau, 906 S.W.2d 356, 1995 Ky. LEXIS 108 ( Ky. 1995 ).

In light of the determination that plaintiff, injured in an accident with another driver who had been drinking, was wrongfully deprived of a jury instruction on punitive damages, granting of a retrial on the issue of punitive damages alone was appropriate. Shortridge v. Rice, 929 S.W.2d 194, 1996 Ky. App. LEXIS 47 (Ky. Ct. App. 1996).

Jury’s determination that a manufacturer’s conduct authorized a punitive damages award was law of the case even though portions of KRS 411.184 that had subsequently been held to be unconsitutional were included in the jury instructions; neither party had challenged those portions of the statute. Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 2004 Ky. LEXIS 226 ( Ky. 2004 ).

5.Proof.

Where plaintiff met its burden of production on the issue of fraudulent intent by only the barest of margins, much less a showing of aggravated circumstances, and where there was no showing of spite, evil or fraudulent motive that so enhance the intentional tort to warrant an instruction on punitive damages, plaintiff failed to carry its burden of production on the issue of punitive damages. Miller's Bottled Gas v. Borg-Warner Corp., 817 F. Supp. 643, 1993 U.S. Dist. LEXIS 5268 (W.D. Ky. 1993 ), aff'd, 56 F.3d 726, 1995 FED App. 0186P, 1995 U.S. App. LEXIS 14907 (6th Cir. Ky. 1995 ).

Recovery of punitive damages, under this section, where a defendant has acted toward the plaintiff with oppression, fraud or malice, only requires one of these elements for the levying of damages. Holliday v. Campbell, 873 S.W.2d 839, 1994 Ky. App. LEXIS 37 (Ky. Ct. App. 1994).

Even if the estate offered sufficient proof to warrant punitive damages against the truck drivers, the estate would not be able to recover punitive damages against the corporation or the trucking company as the drivers’ employers because under Kentucky law, punitive damages cannot be assessed against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question, KRS 411.184(3), and the estate had not introduced any evidence that showed that either the corporation or the trucking company condoned or authorized such unsafe driving, or should have anticipated the accident; therefore, the corporation and the trucking company were entitled to summary judgment on the punitive damages claim. Estate of Presley v. CCS of Conway, 2004 U.S. Dist. LEXIS 9583 (W.D. Ky. May 18, 2004).

A drilling company was entitled to summary judgment on a vicarious liability claim and on a punitive damages claim under KRS 411.184 ; the company’s employee was acting outside the scope of his employment when he rammed the rear of a plaintiff’s vehicle with the company truck while intoxicated. Further, the plaintiff did not demonstrate that the company should have anticipated the employee’s conduct on the night of the accident for purposes of KRS 411.184 (3). McGonigle v. Whitehawk, 481 F. Supp. 2d 835, 2007 U.S. Dist. LEXIS 26978 (W.D. Ky. 2007 ).

Court agreed that punitive damages were not warranted; the trial court found that the facts did not rise to fraud, malice, or oppression. McAlpin v. Bailey, 376 S.W.3d 613, 2012 Ky. App. LEXIS 86 (Ky. Ct. App. 2012).

Truck owner claimed that the punitive damages instruction erroneously excluded the clear and convincing evidentiary requirement under KRS 411.184(2), but the court would not address the argument because it was not properly preserved for review because the owner did not offer a proposed instruction or object, for purposes of CR 51(3); the court also did not address the estate’s responsive argument. Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 2013 Ky. LEXIS 29 ( Ky. 2013 ).

Issue of causation had not been expressly presented to the court as a grounds for reversal of the judgment setting aside the punitive damages award, but even when insufficiently raised on appeal, the court will not disregard obvious error, under CR 61.02. Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 2013 Ky. LEXIS 29 ( Ky. 2013 ).

Estate failed to establish what caused the owner’s truck to overturn, and even accepting as true that the owner did not maintain the fifth wheel property, nothing showed that wheel caused the accident; thus, the owner was entitled to a directed verdict as to punitive damages. Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 2013 Ky. LEXIS 29 ( Ky. 2013 ).

5.5.Expert Testimony.

Expert had sufficient credentials to qualify as an expert, and his testimony was relevant and helped the jury in its award of compensatory and punitive damages, as the expert discussed the value of limestone, which was something an average juror would unlikely know but need to know in order to properly assess damages; as the testimony developed, there was no error under Daubert or KRE. 702, and if offered at a retrial, the expert’s testimony was to be admitted. Crutcher v. Harrod Concrete & Stone Co., 2013 Ky. App. Unpub. LEXIS 999 (Ky. Ct. App. Mar. 22, 2013), rev'd, 458 S.W.3d 290, 2015 Ky. LEXIS 72 ( Ky. 2015 ).

6.Jury’s Discretion.

In a statutory bad faith claim case against insurer, where insurer presented various arguments against submitting the issue of punitive damages to the jury based on its interpretation of statutory language found in the new punitive damages statute enacted in 1988, now codified as this section, the court could not interpret this section to destroy a cause of action for punitive damages otherwise appropriate without fatally impaling upon jural rights guaranteed by Ky. Const., §§ 14, 54, and 241. Wittmer v. Jones, 864 S.W.2d 885, 1993 Ky. LEXIS 138 ( Ky. 1993 ).

There must be sufficient evidence of intentional misconduct or reckless disregard of the rights of an insured or a claimant to warrant submitting the right to award punitive damages to the jury. If there is such evidence, the jury should award consequential damages and may award punitive damages. The jury’s decision as to whether to award punitive damages remains discretionary because the nature of punitive damages is such that the decision is always a matter within the jury’s discretion. Wittmer v. Jones, 864 S.W.2d 885, 1993 Ky. LEXIS 138 ( Ky. 1993 ).

7.Submission to Jury.

Where loggers knew they were cutting trees on landowner’s property, where trees were topped so as to damage nearby seedlings, where loggers failed to maintain a logging road so as to increase the probability of increased soil erosion to landowner’s property, where loggers sold landowner’s timber for $10,000 yet offered her but $1,000 after the cutting, and where loggers caused additional loads of logs to be removed after landowner told them they were trespassing, the matter of punitive damages was properly submitted to the jury. Holliday v. Campbell, 873 S.W.2d 839, 1994 Ky. App. LEXIS 37 (Ky. Ct. App. 1994).

Evidence that a manufacturer of asbestos products knew of the health risks associated therewith both before and during the time it placed them in the stream of commerce was sufficient to overcome its motion for a directed verdict on the issue of punitive damages asserting that the products conformed to the state of the art at the time. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 1998 Ky. LEXIS 97 ( Ky. 1998 ).

Trial judge did not err by refusing to instruct the jury on punitive damages, pursuant to KRS 411.184(3), where there was no party remaining in the case against whom punitive damages could be assessed after plaintiff voluntarily dismissed all claims against defendant employees with prejudice and there was no evidence that the defendant employer authorized or ratified the alleged misconduct on the part of the employees. Berrier v. Bizer, 57 S.W.3d 271, 2001 Ky. LEXIS 163 ( Ky. 2001 ).

In a diversity action involving two American real estate investment trusts specializing in health care related properties (plaintiff and defendant), in which plaintiff accused defendant of tortious interference with a prospective advantage, the district court erred in granting defendant’s motion for a directed verdict on the issue of punitive damages under KRS 411.184 et seq., because there was sufficient evidence of fraud to submit the issue of punitive damages to the jury. The record contained evidence that defendant’s offer of $18 per unit for the Canadian real estate investment trust, for which both defendant and plaintiff were bidders, was not genuine and that defendant’s tortious interference harmed plaintiff by causing plaintiff to pay an additional $1.50 per unit for the Canadian real estate investment trust beyond plaintiff’s initial offer of $15 per unit. Ventas, Inc. v. HCP, Inc., 647 F.3d 291, 2011 FED App. 0130P, 2011 U.S. App. LEXIS 9941 (6th Cir. Ky. 2011 ), cert. dismissed, 565 U.S. 1031, 132 S. Ct. 572, 181 L. Ed. 2d 418, 2011 U.S. LEXIS 8079 (U.S. 2011).

Creditor established by clear and convincing evidence that the attorney committed fraud by telling the creditor that the loan the creditor made to the attorney’s client would be reimbursed once the client received an expected personal injury settlement and the reimbursement was not then forthcoming once the settlement was reached. Since the client showed that fraud had occurred, the trial court should have granted the creditor’s request to instruct the jury on the creditor’s punitive damage claim, pursuant to KRS 411.184 , and on remand a new trial had to be held on the issue of punitive damages to see if the criteria for awarding them under KRS 411.186 had been met. Pezzarossi v. Nutt, 392 S.W.3d 417, 2012 Ky. App. LEXIS 303 (Ky. Ct. App. 2012).

Passengers could not recover punitive damages from a bus driver because the driver's conduct in the accident was ordinary negligence as a matter of Kentucky law, any misrepresentation or failure to disclose the driver's medical condition did not justify punitive damages since that condition did not cause the accident, testimony characterizing the driver's driving as reckless was inadmissible and could not serve as a basis for punitive damages. M.T. v. Saum, 3 F. Supp. 3d 617, 2014 U.S. Dist. LEXIS 31674 (W.D. Ky. 2014 ).

8.Wrongful Termination Action.

Lower court did not err by allowing recovery of punitive damages in action by employees for wrongful termination as a result of union activity where evidence demonstrated a violation of KRS 336.130 , employees were threatened about attending a union meeting and employees were dismissed after attending such meeting and instructions and jury assessments were in line with this section and 411.186 . Simpson County Steeplechase Ass'n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995).

In an action for wrongful termination, the plaintiff was not entitled to punitive damages on the basis of the defendant’s allegedly fraudulent notation that the termination was due to “lack of work-services not needed,” notwithstanding the contention that such notation was intended to conceal the real reason for termination, since the plaintiff did not sustain any separate and distinct damages as a result of the alleged fraud. Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 1998 Ky. LEXIS 137 ( Ky. 1998 ).

A punitive damages award was proper where two (2) employees were constructively discharged for refusing their supervisor’s request to perform illegal activities when they were segregated from other employees and each other, and were otherwise ostracized. Northeast Health Mgmt., Inc. v. Cotton, 56 S.W.3d 440, 2001 Ky. App. LEXIS 701 (Ky. Ct. App. 2001).

Since the employer did have knowledge of the employee’s protected activity, and despite this knowledge, and with the recommendation of the employee’s immediate supervisor, the employee was fired days after exercising her right, sufficient support existed for an award of punitive damages under Kentucky law. Layne v. Huish Detergents, Inc., 40 Fed. Appx. 200, 2002 U.S. App. LEXIS 14015 (6th Cir. Ky. 2002 ).

9.Drunk Driver.

Because evidence that an individual was driving under the influence undoubtedly shows “a flagrant indifference to the rights of other drivers and pedestrians,” this section should be interpreted to cover injuries caused by a drunk driver. Shortridge v. Rice, 929 S.W.2d 194, 1996 Ky. App. LEXIS 47 (Ky. Ct. App. 1996).

10.Sexual Abuse.

Trial court did not err in allowing punitive damages against diocese that employed teacher who sexually abused plaintiff; subsection (2) did not require that diocese have actual knowledge of abuse against plaintiff, where it was shown that it had knowledge of abuse against other students. Roman Catholic Diocese v. Secter, 966 S.W.2d 286, 1998 Ky. App. LEXIS 31 (Ky. Ct. App. 1998).

11.Breach of Contract.

12.—Damages.

Although subsection (4) of this section and case law are clear that punitive damages are not recoverable for mere breach of contract, if the breach included separately tortuous conduct, punitive damages may be awarded. Faulkner Drilling Co. v. Gross, 943 S.W.2d 634, 1997 Ky. App. LEXIS 36 (Ky. Ct. App. 1997).

In action for breach of contract to drill a water well, where developer asserted fraud and misrepresentation in the inducement of the contract as a defense to driller’s breach of contract action, and developer’s counterclaim contained a separate action for fraud and misrepresentation for which he sought punitive damages, appellate court remanded court’s ruling denying punitive damages to determine whether such damages were allowable under the facts as applied to this section and KRS 411.186 . Faulkner Drilling Co. v. Gross, 943 S.W.2d 634, 1997 Ky. App. LEXIS 36 (Ky. Ct. App. 1997).

Where an investor’s only surviving claim against a natural gas company was for breach of contract, the investor’s punitive damages claim failed as a matter of law. Pioneer Res. Corp. v. Nami Res. Co., LLC, 2006 U.S. Dist. LEXIS 43192 (E.D. Ky. June 26, 2006).

Lessor was not entitled to a punitive damages award where it was made whole through its award for unpaid royalties, it asserted no compensable injury beyond its claim for unpaid royalties, and it alleged no misconduct by the lessee other than the conduct of breaching the contract by underpaying the royalties due. Nami Res. Co., L.L.C. v. Asher Land & Mineral, L.T.D., 554 S.W.3d 323, 2018 Ky. LEXIS 353 ( Ky. 2018 ).

13.Malpractice Actions.

Attorney’s actions in failing to diligently pursue plaintiff’s workers’ compensation claim, and in subsequently lying to conceal his neglect, constituted malpractice and entitled plaintiff to punitive damages under this section. Bierman v. Klapheke, 967 S.W.2d 16, 1998 Ky. LEXIS 55 ( Ky. 1998 ).

Pursuant to KRS 411.184(3), the question of whether the hospital ratified the conduct of its employees in discharging decedent from its facility while decedent was suffering from a serious medical issue and had not been stabilized involved an issue of fact for the jury to decide and, thus, the jury could award punitive damages. However, the punitive damage award was excessive in part because the trial court did not instruct the jury as to any of the factors to consider in calculating the amount of punitive damages to be awarded as the trial court should have done pursuant to KRS 411.186(2). Thomas v. St. Joseph Healthcare, Inc., 2008 Ky. App. LEXIS 371 (Ky. Ct. App. Dec. 5, 2008).

Where a small airplane crashed into a client’s home and the attorney failed to inform the client of the dismissal of the client’s negligence suit against the pilot on statute-of-limitations grounds, the client was properly awarded punitive damages against the attorney in a legal malpractice action, but the client was limited under CR 8.01(2) to punitive damages in the amount of $1 million based on the client’s last itemization of such damages in the client’s trial memorandum. Keeney v. Osborne, 2010 Ky. App. LEXIS 57 (Ky. Ct. App. Mar. 5, 2010), rev'd, 399 S.W.3d 1, 2012 Ky. LEXIS 203 ( Ky. 2012 ).

Where a patient suffered an unexpected and substantial blood loss during surgery, where there was an extraordinary delay in obtaining blood from the medical center’s blood bank, where the patient sustained an anoxic brain injury as a result and subsequently succumbed, and where her family filed a medical malpractice action, the trial court erred in instructing the jury on punitive damages because, even if the delay in obtaining blood for transfusion were found to constitute gross negligence, a punitive damages instruction was proper only if the evidence supported a finding that the medical center should have anticipated the inordinate delay in obtaining blood for transfusion or that it authorized or ratified the delay. Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d 783, 2011 Ky. LEXIS 162 ( Ky. 2011 ).

14.Negligence Actions.

In an action against a utility arising from a natural gas explosion which destroyed four (4) houses, the evidence was insufficient to show malice where it appeared that a gas pipe burst suddenly and without warning due to extremely cold temperatures and where there was no evidence that the gas line had leaked for an extended period of time and that the utility had disregarded the danger or failed to discover the leak. Bowling Green Mun. Utils v. Atmos Energy Corp., 989 S.W.2d 577, 1999 Ky. LEXIS 53 ( Ky. 1999 ).

Motorists could not recover punitive damages from an employee in their action against the employee and his employer for injuries sustained when the employee’s tractor-trailer struck the motorists’ pickup truck because there was no evidence of fraud, oppression, or the type of subjective malice required for an award of punitive damages under KRS 411.184(2), and there was no evidence that the employee acted with wanton disregard for the safety of others. Driving while sleepy, but within the speed limit, apparently within the proper lane, and without any suggestion of intoxication did not constitute gross negligence. Turner v. Werner Enters., 442 F. Supp. 2d 384, 2006 U.S. Dist. LEXIS 56572 (E.D. Ky. 2006 ).

In motorists’ action against an employee and his employer for injuries sustained when the employee’s tractor-trailer struck the motorists’ pickup truck, the motorists’ claim for punitive damages against the employer was barred by KRS 411.184(3) because there was no case law supporting the motorists’ theory that the employer’s failure to discipline the employee after he caused the accident by driving while sleepy constituted ratification of the employee’s conduct. Turner v. Werner Enters., 442 F. Supp. 2d 384, 2006 U.S. Dist. LEXIS 56572 (E.D. Ky. 2006 ).

In litigation over an auto accident, since plaintiff did not sustain any separate and distinct damages as a result of defendant’s alleged concealment regarding discovery issues, the trial court erred by allowing testimony regarding it. However, the error was harmless, as there was sufficient admissible evidence that defendant’s conduct while driving amounted to gross negligence to justify a jury instruction on punitive damages. Gersh v. Bowman, 239 S.W.3d 567, 2007 Ky. App. LEXIS 372 (Ky. Ct. App. 2007).

Tractor-trailer owner, independent trucking operator, and a truck driver were entitled to summary judgment on a claim for punitive damages under KRS 411.184(2) in an action arising out of an automobile-truck collision; the truck driver’s ordinary negligence in losing control after choking on coffee did not rise to the level of gross negligence so as to support an award of punitive damages under KRS 411.184(2), and the driver’s extraterritorial conduct of failing to report his whole medical history to his employer did not satisfy the constitutional nexus requirement. Estate of Embry v. Geo Transp. of Ind., Inc., 478 F. Supp. 2d 914, 2007 U.S. Dist. LEXIS 51250 (E.D. Ky. 2007 ).

A bank could not be barred from seeking punitive damages against its auditors in the bank’s action against them for not discovering and disclosing sooner financial misconduct that resulted in destruction of the bank. Under the common law, punitive damages could be awarded on a showing of gross negligence and KRS 411.184 could not constitutionally exclude recovery of punitive damages on that basis. Peoples Bank of N. Ky., Inc. v. Crowe Chizek & Co. LLC, 277 S.W.3d 255, 2008 Ky. App. LEXIS 176 (Ky. Ct. App. 2008).

Where the driver of a coal truck entered the wrong lane and overcorrected, causing his rig to overturn and moments later, the vehicle in which the decedent was a passenger crashed into the coal debris, and the decedent sustained fatal injuries, an award of punitive damages in the ensuing wrongful death action was improper because, although the driver may have failed to exercise reasonable care, his actions did not rise to the level of wanton or reckless disregard for others. An award of punitive damages under the circumstances would eliminate the distinction between ordinary and gross negligence. Fuel Transp., Inc. v. Gibson, 2009 Ky. App. LEXIS 183 (Ky. Ct. App. Sept. 25, 2009), aff'd, 410 S.W.3d 56, 2013 Ky. LEXIS 29 ( Ky. 2013 ).

Landowners’ motion to reconsider the court’s prior decision as to the availability of punitive damages on the negligence claims was granted where the court failed to recognize that KRS 411.560(4) provided for punitive damages if the landowners recovered for private nuisance and proved that the conduct met the KRS 411.184 standards. Powell v. Tosh, 2013 U.S. Dist. LEXIS 63567 (W.D. Ky. May 3, 2013).

Where a former employee alleged sexual harassment, gender discrimination, and wrongful termination under the Kentucky Civil Rights Act, remand to state court was not warranted, because it was more likely than not that the amount in controversy was at least $75,000 since the calculation of backpay appropriately included accruals through the projected trial date, and the employee allegedly was entitled to punitive damages for gross negligence. Shupe v. Asplundh Tree Expert Co., 566 Fed. Appx. 476, 2014 FED App. 0382N, 2014 U.S. App. LEXIS 9668 (6th Cir. Ky. 2014 ).

Employee was granted summary judgment on an injured driver's punitive damages claim where the employee's acts and omissions while driving a tractor-trailer amounted to nothing more than poor driving choices resulting in a collision. Martin v. Matthew R. Browning & U.S. Xpress, Inc., 2016 U.S. Dist. LEXIS 82974 (E.D. Ky. June 27, 2016).

15.Actions Against An Insurer for Bad Faith.

Plaintiff is not required to prove oppression or fraud pursuant to KRS 411.184(2) in order to establish a bad faith claim under the Unfair Claims Settlement Practices Act, KRS 304.12-230 . Plaintiff proved that an insurer was obligated to pay a claim under the terms of a policy, that the insurer’s reliance on its agreement with a car owner to not pay a claim through the insurance was unreasonable, and that the insurer had a statutory duty to attempt to negotiate settlement in good faith. Thomas v. Grange Mut. Cas. Co., 2004 Ky. App. LEXIS 163 (Ky. Ct. App., sub. op., 2004 Ky. App. Unpub. LEXIS 999 (Ky. Ct. App. June 4, 2004).

Punitive damages are available to a plaintiff in a suit for bad faith against an insurance company even in the absence of a showing of actual damages. Thomas v. Grange Mut. Cas. Co., 2004 Ky. App. LEXIS 163 (Ky. Ct. App., sub. op., 2004 Ky. App. Unpub. LEXIS 999 (Ky. Ct. App. June 4, 2004).

16.Defamation Actions.

In an amusement park’s defamation suit arising out of statements broadcast by a television station following an accident involving a roller coaster at the park, the trial court’s instructions to the jury on punitive damages, which included language from KRS 411.061 , was not erroneous. The jury found actual malice and also malice and oppression as those terms are defined in KRS 411.184 by clear and convincing evidence. Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 2005 Ky. LEXIS 242 ( Ky. 2005 ).

16.5.Fraud Actions.

Claim for statutory punitive damages pursuant to KRS 411.184(1)(b) and KRS 411.186 remained for trial because plaintiff trust beneficiaries presented enough evidence of possible fraud, through intentional concealment of material facts, to survive summary judgment. Anderson v. Old Nat'l Bancorp, 675 F. Supp. 2d 701, 2009 U.S. Dist. LEXIS 116124 (W.D. Ky. 2009 ).

Punitive damages under KRS 411.184(1)(b) were available because (1) a former business partner and the attorney acted fraudulently; (2) the attorney violated the Rules of Professional Conduct and breached his fiduciary duty; (3) the fraudulent and overreaching conduct of the attorney was the type of conduct that undermined public confidence in the entire legal profession; and (4) the partner was a sophisticated businessman with extensive experience and success. Stone v. Atherton (In re Stone), 421 B.R. 401, 2009 Bankr. LEXIS 3476 (Bankr. W.D. Ky. 2009 ), aff'd, 2010 U.S. Dist. LEXIS 124172 (W.D. Ky. Nov. 22, 2010), aff'd in part, vacated in part, 698 F.3d 910, 2012 FED App. 0372P, 2012 U.S. App. LEXIS 22230 (6th Cir. Ky. 2012 ).

Husband and wife who owned and operated a Kentucky oil and gas drilling company were ordered to pay investors $5,662,662 in compensatory damages plus prejudgment interest because they committed fraud, breach of contract, and conversion when they made misrepresentations that induced an elderly investor, members of his family, and family trusts to invest in nonexistent and worthless gas wells, and the debt was nondischargeable under 11 U.S.C.S. § 523. Although the investors asked the court for an award of punitive damages under KRS 411.184 , the court denied plaintiffs’ request because punitive damages were not required to deter the husband and wife from engaging in the same type of conduct in the future. Fontaine v. P&J Resources, Inc. (In re P&J Resources Inc.), 475 B.R. 838, 2012 Bankr. LEXIS 2167 (Bankr. E.D. Ky. 2012 ).

Misconduct on the part of a mortgage loan servicer including its imposition of unauthorized fees and charges and its failure to apply a debtor’s payments thereon in accordance with the terms of the loan was grossly reckless and fraudulent and justified the imposition of punitive damages under KRS 411.184 . Tolliver v. U.S. Bank (In re Tolliver), 2012 Bankr. LEXIS 3333 (Bankr. E.D. Ky. July 19, 2012).

17.Actions Against an Insurer.

District Court erred in denying plaintiffs’ request for an instruction on the availability of punitive damages against defendant insured in their action alleging bad faith. Both contract formation and the insurer’s alleged bad faith refusal to pay a valid claim were issues for jury determination; that being so, the jurors should have been instructed that, under Kentucky law, they were free to consider punitive damages if they first found the insurer had deliberately rejected the plaintiffs’ claim in bad faith. Estate of Riddle v. S. Farm Bureau Life Ins. Co., 421 F.3d 400, 2005 FED App. 0370P, 2005 U.S. App. LEXIS 18414 (6th Cir. Ky. 2005 ).

17.5.Trespass actions.

Appellant knew its mining operation was in the vicinity of appellee’s land, but assumed appellant was within its acreage and continued mining; appellant’s conduct in not bothering to confirm its precise location was outrageous and an award of punitive damages was appropriate under KRS 411.184(1)(f). Crutcher v. Harrod Concrete & Stone Co., 2013 Ky. App. Unpub. LEXIS 999 (Ky. Ct. App. Mar. 22, 2013), rev'd, 458 S.W.3d 290, 2015 Ky. LEXIS 72 ( Ky. 2015 ).

For punitive damages purposes, it was proper for the jury to know the market value of the limestone removed by appellant on appellee’s land, in order to determine compensatory damages and quantify the nature of the harm, but it was wrong to award appellee the market value of the limestone as punitive damages, given that there was no direct correlation between those damages and the loss. Crutcher v. Harrod Concrete & Stone Co., 2013 Ky. App. Unpub. LEXIS 999 (Ky. Ct. App. Mar. 22, 2013), rev'd, 458 S.W.3d 290, 2015 Ky. LEXIS 72 ( Ky. 2015 ).

18.Summary Judgment Not Appropriate.

Motion for summary judgment was denied in a case where punitive damages were sought because there was a genuine issue of material fact as to whether certain conduct rose to the level of oppression, fraud, or malice. Marcus & Millichap Real Estate Inv. Brokerage Co. v. Skeeters, 395 F. Supp. 2d 541, 2005 U.S. Dist. LEXIS 24358 (W.D. Ky. 2005 ).

Trial for punitive damages under KRS 411.184(3) was warranted, and therefore the trial court erred by granting the bus company summary judgment, because the bus driver’s and the bus company’s treatment of the passenger immediately after the accident could rise to the level of gross negligence or reckless disregard for her life and safety, as neither called EMS or the police. There was also proof that the bus company authorized and ratified the driver’s conduct, as she was trained to not admit fault for an accident and not to speak with victims and witnesses, and she was not instructed on all of the company’s safety policies. Allgeier v. MV Transp., Inc., 2012 Ky. App. Unpub. LEXIS 1019 (Ky. Ct. App. May 11, 2012), aff'd, 433 S.W.3d 324, 2014 Ky. LEXIS 230 ( Ky. 2014 ).

19.Dram Shop Act.

As there can be no punitive damages absent proximate cause, and KRS 413.241(1) provides that a dram shop’s sale of alcohol cannot be the proximate cause of any injury caused by an intoxicated tortfeasor, a trial court erred by awarding a passenger who was injured in auto accident punitive damages against a nightclub and its owner. Jackson v. Tullar, 2007 Ky. App. LEXIS 72 (Ky. Ct. App. Mar. 2, 2007), sub. op., 285 S.W.3d 290, 2007 Ky. App. LEXIS 170 (Ky. Ct. App. 2007).

The focus of KRS 413.241 on dram shop liability for “injuries suffered” indicates that the legislature did not intend for a dram shop to be liable for an award of punitive damages. Jackson v. Tullar, 2007 Ky. App. LEXIS 72 (Ky. Ct. App. Mar. 2, 2007), sub. op., 285 S.W.3d 290, 2007 Ky. App. LEXIS 170 (Ky. Ct. App. 2007).

Punitive damages cannot be awarded against a dram shop as under KRS 411.184(1)(f) a plaintiff cannot recover punitive damages against a defendant unless that defendant’s conduct was the proximate cause of any injury to the plaintiff; under KRS 413.241(1), a dram shop’s sale or service of intoxicating beverages cannot be the proximate cause of any injury caused by an intoxicated tortfeasor. Jackson v. Tullar, 285 S.W.3d 290, 2007 Ky. App. LEXIS 170 (Ky. Ct. App. 2007).

20.Liability of Employer.

The specific wrongful death statute, KRS 411.130 , prevailed over the general punitive damages statute, KRS 411.184(3). Under KRS 411.130 (1), punitive damages could be imposed on an employer for the gross negligence of an employee. In re Air Crash at Lexington, Kentucky, 2008 U.S. Dist. LEXIS 44888 (E.D. Ky. June 6, 2008).

Where a restaurant corporation knew of a hoax that was being perpetrated at fast-food restaurants where a caller would represent himself to be a police officer, falsely accuse a female employee of theft, and convince managers and other employees to hold the employee in a locked room and subject her to strip and body cavity searches, where the hoax had been perpetrated at one of the restaurant corporation’s own restaurants, where corporate management made an executive decision not to inform employees and managers of the hoax or to provide training and guidance or instruction to prevent the hoax from successfully occurring again, and where the hoax was perpetrated again and the victim was sexually assaulted by one of her captors, the jury’s award of punitive damages was not unreasonable because the evidence permitted the jury to conclude that the restaurant corporation owed a duty to train, supervise, or warn about the hoax calls and that it failed in that duty. McDonald's Corp. v. Ogborn, 309 S.W.3d 274, 2009 Ky. App. LEXIS 236 (Ky. Ct. App. 2009).

Court erred when it found that Kentucky’s punitive damages statute, KRS 411.184 , did not apply to a wrongful death case because Ky. Const. § 241 prohibited limitations on damages in wrongful death cases, and held that Kentucky courts would apply § 411.184 to wrongful death cases, including the instant case; the court granted partial summary judgment in favor of the airline on the issue of punitive damages because plaintiffs had not shown by clear and convincing evidence that there were similar incidents from which the airline should have anticipated the pilots’ conduct that caused the plane crash or that the airline authorized or ratified the conduct of the pilots, and thus, plaintiffs failed to present clear and convincing evidence of gross negligence on the part of the airline management such that it should be held liable for punitive damages for the conduct of the pilots. In re Air Crash at Lexington, Ky., 2011 U.S. Dist. LEXIS 10429 (E.D. Ky. Feb. 2, 2011).

Passengers could not recover punitive damages from the company that chartered the bus involved in the accident based on vicarious liability because no direct employment relationship existed between the bus driver and the company, and the particular risk created by the company delegating driver screening responsibilities to the driver's employer was not the risk that resulted in the accident, but rather, the passenger's injuries were caused by the driver's ordinary negligence. M.T. v. Saum, 3 F. Supp. 3d 617, 2014 U.S. Dist. LEXIS 31674 (W.D. Ky. 2014 ).

Passengers could not recover punitive damages from the bus driver's employer based on vicarious liability because they failed to demonstrate that the employer should have anticipated the driver's conduct on the night of the accident, and plaintiffs' negligent hiring, training, and supervision claim against the employer also failed as a matter of law. M.T. v. Saum, 3 F. Supp. 3d 617, 2014 U.S. Dist. LEXIS 31674 (W.D. Ky. 2014 ).

Employer was granted summary judgment on an injured driver's punitive damages claim where its alleged failings in hiring the tractor-trailer driver, including not noticing that he listed the wrong birth year on his application twice and allowing him to be medically certified for two years, when he should have only been certified for one, did not rise to the level of gross negligence. Martin v. Matthew R. Browning & U.S. Xpress, Inc., 2016 U.S. Dist. LEXIS 82974 (E.D. Ky. June 27, 2016).

20.5.Ratification.

Hospital was properly denied a directed verdict on the issue of ratification under this section because there was evidence showing that it approved of the actions of its staff, as it did not conduct any investigation or review of the deceased patient’s treatment at the emergency room and it asserted that its staff’s actions were entirely appropriate under the circumstances. St. Joseph Healthcare, Inc. v. Thomas, 2013 Ky. App. Unpub. LEXIS 1011 (Ky. Ct. App. Dec. 6, 2013), aff'd, 487 S.W.3d 864, 2016 Ky. LEXIS 179 ( Ky. 2016 ).

21.Procedure.

In an action relating to protestors being ejected from a campaign rally by supporters, the court declined to strike paragraphs in the complaint discussing defendant supporter's association with a white nationalist group and his statements about how the candidate might further the interests of that group because those paragraphs supported a claim for punitive damages. Nwanguma v. Trump, 273 F. Supp. 3d 719, 2017 U.S. Dist. LEXIS 49013 (W.D. Ky. 2017 ), modified, dismissed, in part, 2017 U.S. Dist. LEXIS 126039 (W.D. Ky. Aug. 8, 2017).

Cited:

Klepper v. First Am. Bank, 916 F.2d 337, 1990 U.S. App. LEXIS 17437 (6th Cir. Ky. 1990 ); Carter v. Builders Transport, Inc., 812 F. Supp. 97, 1992 U.S. Dist. LEXIS 20735 (W.D. Ky. 1992 ); Tractor & Farm Supply v. Ford New Holland, 898 F. Supp. 1198, 1995 U.S. Dist. LEXIS 13296 (W.D. Ky. 1995 ); Nicely v. McBrayer, McGinnis, Leslie, & Kirkland, 163 F.3d 376, 1998 FED App. 0366P, 1998 U.S. App. LEXIS 31482 (6th Cir. Ky. 1998 ); Steinhoff v. Upriver Restaurant Joint Venture, 117 F. Supp. 2d 598, 2000 U.S. Dist. LEXIS 15413 (E.D. Ky. 2000 ); Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 2000 Ky. LEXIS 122 ( Ky. 2000 ); Hurst v. Curtsinger, 2004 Ky. App. LEXIS 17 (Ky. Ct. App. Jan. 23, 2004); Strathmore Web Graphics v. Sanden Mach., Ltd., 2000 U.S. Dist. LEXIS 22618 (W.D. Ky. May 16, 2000).

1.Application.

Unpublished decision: Automobile accident victims could not recover punitive damages from the drunken driver’s estate or executrix after they were substituted as parties defendant upon the death of the drunken driver, because the accident victims could not show oppressive, fraudulent, or malicious conduct on the part of the estate and the executrix as the plain language of KRS 411.184(2) required. Stewart v. Estate of Cooper, 102 S.W.3d 913, 2003 Ky. LEXIS 72 ( Ky. 2003 ).

2.Submission to Jury.

Unpublished decision: Court properly submitted the issue of bad faith to the jury to consider whether punitive damages were warranted under KRS 411.184 because the 27-month delay between plaintiff’s injury and an initial settlement offer, where fault was clear, was not “mere delay” even though an insurer had to investigate plaintiff’s injury. Medical Protective Co. v. Wiles, 2011 Ky. App. Unpub. LEXIS 983 (Ky. Ct. App. June 17, 2011), review denied, ordered not published, 2012 Ky. LEXIS 625 (Ky. Aug. 15, 2012).

Research References and Practice Aids

Kentucky Bench & Bar.

Moore, Punitive Damages in Wrongful Death Actions: Is KRS 411.184 Constitutional?, Vol. 54, No. 3, Summer 1990, Ky. Bench & Bar 18.

Rankin, Punitive Damages Under KRS 411.184 and 411.186 : A View from the Defense Bar, 56 Ky. Bench & B. 29.

Feamster & White, Tort Reform: The Defense Perspective., Vol. 70, No. 6, November 2006, Ky. Bench & Bar 18.

Kentucky Law Journal.

Murphy, “Common Sense Legal Reform” and Bell’s Toll: Eliminating Punitive Damage Claims from Jurisdictional Amount Calculations in Federal Diversity Cases, 84 Ky. L.J. 71 (1995-96).

McIntyre, The Future of Kentucky’s Punitive Damages Statute and Jural Rights Jurisprudence: A Call for Separation of Powers, 88 Ky. L.J. 719 (1999-2000).

Northern Kentucky Law Review.

Comment, A Survey of Kentucky Tort Reform, 17 N. Ky. L. Rev. 473 (1990).

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

Kareth, Owens-Corning Fiberglas Corp. v. Golightly: A Lost Opportunity for the Kentucky Supreme Court, 26 N. Ky. L. Rev. 159 (1999).

Burns & Fischesser, A Survey of Kentucky Employment Law., 31 N. Ky. L. Rev. 85 (2004).

Article: Recovery of Nonpecuniary Damages in Mass Tort Actions in Kentucky: A Defense Perspective, 35 N. Ky. L. Rev. 197 (2008).

General Law Issue: Article: The Doctrine of Other Wrongs: A Framework for Punishing Civil Recidivism, 36 N. Ky. L. Rev. 67 (2009).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Appellant’s Brief, Form 101.25.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Against Bar KRS 413.241 by Third Party Injured by Intoxicated Driver, Form 132.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Against Contractor for Trespass, Form 304.05.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Against Tavern and Driver by Pedestrian Struck by Intoxicated Driver on Sidewalk, Failure to Keep Control of Vehicle, Form 135.06.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint by Business Invitee Injured by Dangerous Condition of Premises Against Owner of Premises, Form 131.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint by Landlord Against Tenant for Fixtures Removed, Form 302.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Abuse of Process—Criminal Proceedings Filed to Thwart First Amendment Rights, Form 124.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Assault With a Firearm, Form 120.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Damage of Chattel, Form 126.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Independent Action under KRS 344.650 , Alleging Violation of KRS 344.36, Form 308.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Injuries to Child—Parent’s Loss of Consortium, Form 256.02.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Intentional Infliction of Emotional Distress, Form 262.02.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Intentional Infliction of Emotional Distress for Racial Insults, Form 125.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Intentional Trespass (General Form), Form 304.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Interference with Contract (General Form), Form 143.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Intrusion—Hidden Camera, Form 128.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Slander Per Se Against Private Defendant, Form 129.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint Seeking Damages for Fraudulent Misrepresentation, Form 122.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Conversion of Property Wrongfully Taken from Owner, Form 127.02.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Negligence, § 130.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Nuisance, § 139.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Trespass, § 304.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Cemeteries, § 37.01.

Kentucky Instructions to Juries (Civil), 5th Ed., Damages, § 39.15.

Kentucky Instructions to Juries (Civil), 5th Ed., Defamation and Privacy, §§ 40.01-40.10.

Kentucky Instructions to Juries (Civil), 5th Ed., Trespass, § 32.02.

Kentucky Instructions to Juries (Civil), 5th Ed., Wrongful Discharge from Employment or Interference With Business Expectancy, Damages, Punitive Damages, § 51.02.

Kentucky Instructions to Juries (Civil), 5th Ed., Outrageous Conduct, § 52.01.

1.Constitutionality.

Successive awards of punitive damages for the same course of conduct do not violate due process. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 1998 Ky. LEXIS 97 ( Ky. 1998 ).

Kentucky Supreme Court had not struck down the provision of KRS 411.184 that allowed punitive damages awards for fraud, and the Federal District Court could not predict that the Kentucky Supreme Court would strike down KRS 411.186(2)(c). Thus, the court granted plaintiff’s motion to compel discovery; plaintiff was entitled to discover defendant’s financial condition, not so plaintiff could present evidence of that condition to the trier of fact, but so that plaintiff could determine whether there was any evidence that defendant’s alleged misconduct resulted in a profit that it would not otherwise have gained. Derby Fabricating v. Packing Material Co., 2005 U.S. Dist. LEXIS 28765 (W.D. Ky. Nov. 18, 2005).

Where defendant intentionally killed the decedent, where he was convicted of murder but his conviction was reversed, where defendant pled guilty to manslaughter to avoid a retrial, where plaintiff, the decedent’s father, filed a wrongful death suit against defendant, where the trial court entered summary judgment in favor of plaintiff on the issue of liability and conducted a jury trial on the issue of damages, where the jury awarded $3.3 million in compensatory damages and $60 million in punitive damages, and where defendant challenged the propriety of the punitive damages award, the court held that the purpose of the punitive damage award was not to compensate the estate but to vindicate the state’s legitimate interests in punishment and deterrence of conduct of the type in which defendant engaged. Under that analysis, the $60 million punitive award was grossly excessive; as such, it was violative of the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, and the punitive damages award was reduced to $30 million. Ragland v. Estate of Digiuro, 352 S.W.3d 908, 2010 Ky. App. LEXIS 201 (Ky. Ct. App. 2010).

2.Punitive Damages.

KRS 411.184 through 411.186 do not make punitive damages available under KRS 344.450 . Ky. Dep't of Corr. v. McCullough, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ), modified, 2004 Ky. LEXIS 23 (Ky. Jan. 22, 2004), modified, 2004 Ky. LEXIS 24 (Ky. Jan. 22, 2004).

Although the District Court did not cite KRS 411.186 when calculating the amount of punitive damages awarded to the private plaintiffs in a nuisance action, the court explicitly considered two (2) of the statutory factors when it discussed the duration of defendants’ misconduct and their consistent refusal to stop fugitive dust from crossing their property lines. These references, taken in conjunction with the court’s other references to defendants’ conduct and the statute’s discretionary language, indicated that the court had applied the proper legal standard. Ellis v. Gallatin Steel Co., 390 F.3d 461, 2004 U.S. App. LEXIS 22252 (6th Cir. Ky. 2004 ).

Evidence that a motorist drove 34 miles per hour over the speed limit for a curve, at night, with two passengers, one of whom had warned him of the upcoming curve, was sufficient to create a jury question as to whether the motorist had acted with gross negligence. Therefore, his motion for a directed verdict, seeking dismissal of a punitive damages claim, was properly denied. Gersh v. Bowman, 239 S.W.3d 567, 2007 Ky. App. LEXIS 372 (Ky. Ct. App. 2007).

In litigation over an auto accident, since plaintiff did not sustain any separate and distinct damages as a result of defendant’s alleged concealment regarding discovery issues, the trial court erred by allowing testimony regarding it. However, the error was harmless, as there was sufficient admissible evidence that defendant’s conduct while driving amounted to gross negligence to justify a jury instruction on punitive damages. Gersh v. Bowman, 239 S.W.3d 567, 2007 Ky. App. LEXIS 372 (Ky. Ct. App. 2007).

Claim for statutory punitive damages pursuant to KRS 411.184(1)(b) and KRS 411.186 remained for trial because plaintiff trust beneficiaries presented enough evidence of possible fraud, through intentional concealment of material facts, to survive summary judgment. Anderson v. Old Nat'l Bancorp, 675 F. Supp. 2d 701, 2009 U.S. Dist. LEXIS 116124 (W.D. Ky. 2009 ).

In a civil assault and battery case, punitive damages were properly awarded in a case where the evidence showed that an injured party was viciously attacked and severely beaten with an object; this conduct constituted an egregious display of total disregard for the safety of others. Buda v. Schuler, 352 S.W.3d 350, 2011 Ky. App. LEXIS 167 (Ky. Ct. App. 2011).

Creditor established by clear and convincing evidence that the attorney committed fraud by telling the creditor that the loan the creditor made to the attorney’s client would be reimbursed once the client received an expected personal injury settlement and the reimbursement was not then forthcoming once the settlement was reached. Since the client showed that fraud had occurred, the trial court should have granted the creditor’s request to instruct the jury on the creditor’s punitive damage claim, pursuant to KRS 411.184 , and on remand a new trial had to be held on the issue of punitive damages to see if the criteria for awarding them under KRS 411.186 had been met. Pezzarossi v. Nutt, 392 S.W.3d 417, 2012 Ky. App. LEXIS 303 (Ky. Ct. App. 2012).

When an estate sued a realtor to recover misappropriated funds, an award of punitive damages was not improper because (1) the evidence showed the realtor's concealment and deception, and (2) the jury was properly instructed. Watts v. Henry, 2015 Ky. App. LEXIS 154 (Ky. Ct. App. Nov. 13, 2015), review denied, ordered not published, 2016 Ky. LEXIS 206 (Ky. Apr. 27, 2016).

Circuit court did not abuse its discretion when it invoked Ky. R. Civ. P. 54.02 to make an October 22, 2014 order a final and appealable judgment; a prayer for punitive damages was not so tethered to the interrelated fiduciary breach and compensatory damages claim that it prevented its independent adjudication as an interlocutory judgment. Chesley v. Abbott, 524 S.W.3d 471, 2017 Ky. App. LEXIS 47 (Ky. Ct. App. 2017).

Trial court did not abuse its discretion when it admitted a hotel’s financial records about revenues in the months before the decedent drowned in the hotel pool as well as the hotel manager’s bonus received in the prior year based on the hotel’s increased revenues because the evidence of the hotel’s revenue and expenses for the months immediately preceding the decedent’s drowning was not to inform the jury of the hotel’s financial condition but to show a need for increased staffing. Louisville SW Hotel v. Lindsey, 2019 Ky. App. LEXIS 91 (Ky. Ct. App. May 17, 2019).

3.Award Held Not Excessive.

When the concept of reasonableness and other factors identified were considered in the light of evidence presented, evidence from which the jury believed the bank engaged in an elaborate fraud to gain additional security for existing loans with no intentions of performing its representations of fact and with knowledge of the likely destruction of borrower’s business, punitive judgment was not so “grossly excessive” as to violate the substantive component of the Due Process Clause. Hanson v. American Nat'l Bank & Trust Co., 865 S.W.2d 302, 1993 Ky. LEXIS 156 ( Ky. 1993 ).

The trial judge was not clearly erroneous in determining that a punitive judgment verdict of $435,000 against a manufacturer of asbestos products was not excessive. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 1998 Ky. LEXIS 97 ( Ky. 1998 ).

Where the previous parent company of the bank which was found liable for fraud agreed to indemnify the bank’s purchaser for any judgment, punitive damages were properly awarded against the parent company even though the bank no longer existed. Sallee v. Fort Knox Nat'l Bank, N.A. (In re Sallee), 286 F.3d 878, FED App. 0128P, U.S. App. LEXIS 6841 (6th Cir. Ky.), cert. denied, 537 U.S. 949, 123 S. Ct. 415, 154 L. Ed. 2d 294, 2002 U.S. LEXIS 7622 (U.S. 2002).

Trial court’s punitive damages award to the clients was sustainable where knowing the clients’ aversion to tax risks personally and professionally, an accounting firm made false representations and omitted material facts imperative to the clients’ fully-informed decisionmaking as to a tax shelter the accounting firm was promoting, the firm never disclosed the general or specific problems with the tax shelter despite multiple IRS notices, legal opinions, and professional articles, and when the clients discovered on their own the potential problems, the firm continued to misrepresent the product. Yung v. Thornton, 563 S.W.3d 22, 2018 Ky. LEXIS 585 ( Ky. 2018 ).

Jury properly awarded $100,000 in punitive damages to the co-executors of a deceased nursing home resident because a jury instruction clearly set forth the standard of proof, the record showed a series of misconduct by the home, it promised a level of care that it was neither able nor licensed to provide, and its egregious conduct, combined with the minimal amount of compensatory damages, supported the award. Trilogy Healthcare of Fayette I, LLC v. Techau, 605 S.W.3d 60, 2019 Ky. App. LEXIS 98 (Ky. Ct. App. 2019).

4.Instructions.

Instructions to the jury must define the purpose of punitive damages as punishment to the wrongdoer and as a deterrent to wrongdoers and others from such activities in the future and that the post trial procedures be in place and utilized by the trial court to scrutinize the award of such damages. The instructions in this case were adequate. Hanson v. American Nat'l Bank & Trust Co., 865 S.W.2d 302, 1993 Ky. LEXIS 156 ( Ky. 1993 ).

Where the trial court instructed the jury in accordance with the provisions of KRS 411.184 and this section, and where the judge set forth in detail the definitions and standards the jury was to use in its deliberation in deciding whether punitive damages should be awarded and, if so, in what amount, such instructions are the only guidance that may be given the jury. Reasonable men and women will differ in determining the amount of exemplary damages, but so long as the jury’s decision is free of passion or prejudice and is appropriately reviewed by the trial judge, there is no basis for substituting the court’s opinion in the place of the jury’s. Hanson v. American Nat'l Bank & Trust Co., 865 S.W.2d 302, 1993 Ky. LEXIS 156 ( Ky. 1993 ).

Jury award of punitive damages to plaintiff, who was brutally beaten by defendant after being found in defendant’s former betrothed’s apartment, could not stand because the trial court failed to incorporate in the jury instructions any of the factors enumerated in the statute and provided no standard whatsoever to assist or guide the jury in its determination. Snyder v. McCarley, 2003 Ky. App. Unpub. LEXIS 804 (Ky. Ct. App. Aug. 29, 2003).

In a products liability action, a vehicle manufacturer’s motion for a new trial was properly denied where it agreed to the language of the jury instruction, and therefore the court’s failure to include the punitive damages guideposts set out in KRS 411.186(2) did not necessitate a new trial. Clark v. Chrysler Corp., 436 F.3d 594, 2006 FED App. 0045P, 2006 U.S. App. LEXIS 2435 (6th Cir. Ky. 2006 ).

5.Wrongful Termination Action.

Lower court did not err by allowing recovery of punitive damages in action by employees for wrongful termination as a result of union activity where evidence demonstrated a violation of KRS 336.130 , employees were threatened about attending a union meeting and employees were dismissed after attending such meeting and instructions and jury assessments were in line with KRS 411.184 and this section. Simpson County Steeplechase Ass'n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995).

6.Breach of Contract.

Although subsection (4) of KRS 411.184 and case law are clear that punitive damages are not recoverable for mere breach of contract, if the breach included separately tortuous conduct, punitive damages may be awarded. Faulkner Drilling Co. v. Gross, 943 S.W.2d 634, 1997 Ky. App. LEXIS 36 (Ky. Ct. App. 1997).

In action for breach of contract to drill a water well, where developer asserted fraud and misrepresentation in the inducement of the contract as a defense to driller’s breach of contract action, and developer’s counterclaim contained a separate action for fraud and misrepresentation for which he sought punitive damages, appellate court remanded court’s ruling denying punitive damages to determine whether such damages were allowable under the facts as applied to KRS 411.184 and this section. Faulkner Drilling Co. v. Gross, 943 S.W.2d 634, 1997 Ky. App. LEXIS 36 (Ky. Ct. App. 1997).

7.Malpractice Actions.

Attorney’s actions in failing to diligently pursue plaintiff’s workers’ compensation claim, and in subsequently lying to conceal his neglect, constituted malpractice and entitled plaintiff to punitive damages under this section. Bierman v. Klapheke, 967 S.W.2d 16, 1998 Ky. LEXIS 55 ( Ky. 1998 ).

Pursuant to KRS 411.184(3), the question of whether the hospital ratified the conduct of its employees in discharging decedent from its facility while decedent was suffering from a serious medical issue and had not been stabilized involved an issue of fact for the jury to decide and, thus, the jury could award punitive damages. However, the punitive damage award was excessive in part because the trial court did not instruct the jury as to any of the factors to consider in calculating the amount of punitive damages to be awarded as the trial court should have done pursuant to KRS 411.186(2). Thomas v. St. Joseph Healthcare, Inc., 2008 Ky. App. LEXIS 371 (Ky. Ct. App. Dec. 5, 2008).

Where a small airplane crashed into a client’s home and the attorney failed to inform the client of the dismissal of the client’s negligence suit against the pilot on statute-of-limitations grounds, the client was properly awarded punitive damages against the attorney in a legal malpractice action, but the client was limited under CR 8.01(2) to punitive damages in the amount of $1 million based on the client’s last itemization of such damages in the client’s trial memorandum. Keeney v. Osborne, 2010 Ky. App. LEXIS 57 (Ky. Ct. App. Mar. 5, 2010), rev'd, 399 S.W.3d 1, 2012 Ky. LEXIS 203 ( Ky. 2012 ).

Bifurcation of medical malpractice action did not violate KRS 411.186 , which mandates that the jury consider all issues concurrently to include punitive damages, because the trial court bifurcated plaintiff’s claims as between defendants but did not bifurcate the punitive damages claims from either liability or compensatory damages as to each individual defendant. Therefore, plaintiff was free to pursue punitive damages and introduce evidence to support said damages in the first phase and second phase of the trial. Estate of Judith Burton v. Trover Clinic Found., Inc., 2011 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. June 10, 2011), rev'd, 423 S.W.3d 165, 2014 Ky. LEXIS 2 ( Ky. 2014 ).

Cited in:

UPS v. Rickert, 996 S.W.2d 464, 1999 Ky. LEXIS 58 ( Ky. 1999 ); Hurst v. Curtsinger, 2004 Ky. App. LEXIS 17 (Ky. Ct. App. 2004), rehearing denied, 2004 Ky. App. LEXIS 241 (Ky. Ct. App. 2004), review denied and ordered not published, 2005 Ky. LEXIS 180 ( Ky. 2005 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Rankin, Punitive Damages Under KRS 411.184 and 411.186 : A View from the Defense Bar, 56 Ky. Bench & B. 29.

Northern Kentucky Law Review.

Comment, A Survey of Kentucky Tort Reform, 17 N. Ky. L. Rev. 473 (1990).

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

General Law Issue: Article: The Doctrine of Other Wrongs: A Framework for Punishing Civil Recidivism, 36 N. Ky. L. Rev. 67 (2009).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Nuisance, § 139.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Cemeteries, § 37.01.

Kentucky Instructions to Juries (Civil), 5th Ed., Damages, § 39.15.

Kentucky Instructions to Juries (Civil), 5th Ed., Defamation and Privacy, §§ 40.01-40.10.

Kentucky Instructions to Juries (Civil), 5th Ed., Trespass, § 32.02.

Kentucky Instructions to Juries (Civil), 5th Ed., Wrongful Discharge from Employment or Interference With Business Expectancy, Damages, Punitive Damages, § 51.02.

Kentucky Instructions to Juries (Civil), 5th Ed., Outrageous Conduct, § 52.01.

1.Constitutionality.

Subsection (3) of this section does not violate § 54 of the Kentucky Constitution. Birkenshaw v. Union Light, Heat & Power Co., 987 F.2d 383, 1993 U.S. App. LEXIS 4293 (6th Cir. Ky. 1993 ), vacated, 1993 U.S. App. LEXIS 11695 (6th Cir. May 19, 1993).

This section, which specifies that collateral source payments shall be an admissible fact in any civil trial, is unconstitutional as it violates Ky. Const., §§ 27, 28 and 116 mandating and elaborating on separation of powers doctrine, intrudes on the responsibility exclusively assigned to the judicial branch or government, and serves, in this case, to confuse the jury regarding the factual issue rather than assist them in deciding the damages incurred by the plaintiff. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

This section was not so written as to express a substantive law change denying damages for medical expenses and wage loss in a civil action to those plaintiffs who have access to collateral source benefits, as to do so would violate Ky. Const., § 54. Those plaintiffs receiving collateral source payments cannot have their tort remedy denied as punishment for their prudence in obtaining insurance coverage to assist them in the event of a catastrophe, and their misfortune compounded by making them appear to seek damages for which they have no need. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

Rule 61.02 did not authorize an appellate court to retroactively apply a decision overruling this section when the parties did not challenge the constitutionality of the section in the trial court and the Attorney General was not notified of a constitutional challenge, as required by KRS 418.075 . Burns v. Level, 957 S.W.2d 218, 1997 Ky. LEXIS 109 ( Ky. 1997 ).

2.Application.

In subsection (2) of this section, the threshold question is not just whether there has been payment for something from a collateral source, but whether the payment is for an element of damages included in the tort action. When it is, the payor must be notified, must assert its claim in the tort action, and must be paid from the proceeds of the tort action. Ohio Casualty Ins. Co. v. Ruschell, 834 S.W.2d 166, 1992 Ky. LEXIS 91 ( Ky. 1992 ).

Subsection (3) of this section does not alter the measure of damages for wrongful death in Kentucky. Birkenshaw v. Union Light, Heat & Power Co., 987 F.2d 383, 1993 U.S. App. LEXIS 4293 (6th Cir. Ky. 1993 ), vacated, 1993 U.S. App. LEXIS 11695 (6th Cir. May 19, 1993).

This section prevents an insurer from remaining hidden from the fact-finder’s view when the insurer intends to benefit from a suit instituted against a tort-feasor. An insurer’s duty simply involves a motion to intervene with a notice of payment made and does not impose an onerous obligation to litigate the merits of that claim. McCormack Baron & Assocs. v. Trudeaux, 885 S.W.2d 708, 1994 Ky. App. LEXIS 130 (Ky. Ct. App. 1994).

This section does not apply to a reparations obligor’s reimbursement for basic reparations benefits or added reparations benefits. Saxe v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 188, 1997 Ky. App. LEXIS 110 (Ky. Ct. App. 1997).

3.Purpose.

The legislature by enacting subsection (3) of this section, which mandates disclosure of collateral source payments and known subrogation rights, has decided that disclosure of insurance will not be deemed prejudicial per se; therefore, as a matter of law, public policy no longer requires the sanctioning of the loan agreement procedure in cases not involving life insurance payments. Lampton v. Boley, 870 S.W.2d 428, 1993 Ky. App. LEXIS 96 (Ky. Ct. App. 1993).

The enactment of this section was aimed at eroding the collateral source rule and rendered evidence of collateral benefits and the existence of subrogated benefits admissible in tort and contract actions commenced after July 15, 1988, and the necessary implication permits fact-finders to consider the plaintiff’s receipt of collateral benefits and to decide to reduce the damages awarded accordingly. McCormack Baron & Assocs. v. Trudeaux, 885 S.W.2d 708, 1994 Ky. App. LEXIS 130 (Ky. Ct. App. 1994).

4.No-fault Coverage.

This section does not extend to no-fault coverage because no-fault benefits are not “collateral source payments.” Ohio Casualty Ins. Co. v. Ruschell, 834 S.W.2d 166, 1992 Ky. LEXIS 91 ( Ky. 1992 ).

5.Collateral Source Rule.

6.— Worker’s Compensation Payments Not Collateral Source Payment.

Where widow received benefits under Ohio worker’s compensation statute due to death of her husband, in course of his employment for an Ohio Corporation, this section does not consider such payments to be payments from a collateral source, paid to, or for, the benefit of the estate of the husband, and as such, evidence of the worker’s compensation payments was not admissible at trial in a wrongful death action. Birkenshaw v. Union Light, Heat & Power Co., 889 S.W.2d 804, 1994 Ky. LEXIS 143 ( Ky. 1994 ).

Both KRS 342.700(1) and KRS 411.188(2) provide only that the failure of the subrogee to assert its rights results in the loss of those rights, and neither provides that those rights are thereby transferred to the subrogor in order to permit double recovery; an employee of an independent contractor seeking damages for injuries sustained in a fall at the plant of an owner was not permitted to recover from the owner those elements of damages that he had already recovered from the independent contractor by way of workers’ compensation benefits. Krahwinkel v. Commonwealth Aluminum Corp., 183 S.W.3d 154, 2005 Ky. LEXIS 394 ( Ky. 2005 ).

7.— Applicability in Federal Court.

Subsection (3) of this section is merely a statutory rule of evidence which allows evidence of collateral source benefits to be admitted at trial, not because it is relevant to the measure of damages, but rather to temper jury verdicts; therefore, Kentucky’s collateral source rule was inapplicable in U.S. District Court. Birkenshaw v. Union Light, Heat & Power Co., 987 F.2d 383, 1993 U.S. App. LEXIS 4293 (6th Cir. Ky. 1993 ), vacated, 1993 U.S. App. LEXIS 11695 (6th Cir. May 19, 1993).

The trial court did not err by directing that the jury be apprised that appellant’s medicals had been paid by a collateral source without identifying the collateral source. Mason v. Keltner, 854 S.W.2d 780, 1992 Ky. App. LEXIS 199 (Ky. Ct. App. 1992).

8.— Reduction of Damages Award Not Required.

In suit against third party for damages to apartment as a result of a fire, where insured did not notify insurer of the suit and its duty to intervene, but insurer had actual knowledge of the suit and did not intervene, while trial judge was not compelled to reduce the damages award to insured after learning of its receipt of collateral benefits from insurer, since nothing in the record indicated that any entity held subrogation rights. McCormack Baron & Assocs. v. Trudeaux, 885 S.W.2d 708, 1994 Ky. App. LEXIS 130 (Ky. Ct. App. 1994).

9.Notification.

Where defendants in bringing suit against third party who was responsible for defendants’ injuries did not comply with subsection (2) of this section in notifying insurance company it believed held subrogation rights to any award received as a result of such action of the need to assert subrogation rights by intervention, they cannot claim that company’s failure to intervene in the suit caused company to forfeit any subrogation claim it might have against them. Health Cost Controls v. Wardlow, 825 F. Supp. 152, 1993 U.S. Dist. LEXIS 9090 (W.D. Ky. 1993 ), aff'd, 47 F.3d 1169, 1995 U.S. App. LEXIS 12668 (6th Cir. Ky. 1995 ).

Compensation insurance carrier which made collateral source payments must intervene when notified of the commencement of the underlying tort action in order to preserve its claim for reimbursement from plaintiff’s recovery, but carrier need not separately, independently, and actively pursue its claim in the tort litigation to maintain its subrogation rights. Zurich Am. Ins. Co. v. Haile, 882 S.W.2d 681, 1994 Ky. LEXIS 89 ( Ky. 1994 ).

Since under this section one who holds subrogation rights can preserve those rights only by acting affirmatively to announce his intention to be compensated by intervening in the action, where insurer was not notified by insured of suit against third party for damage caused to apartment by fire, but who had knowledge of such suit and did not intervene, insurer’s motion to intervene filed after entry of judgment was clearly filed out of time and trial court did not abuse its discretion in denying the motion. McCormack Baron & Assocs. v. Trudeaux, 885 S.W.2d 708, 1994 Ky. App. LEXIS 130 (Ky. Ct. App. 1994).

A plain reading of KRS 411.188 suggests that the statute is not directed specifically to regulation of insurance. Thus, it will not be “saved” from preemption under 29 USCS § 1144(b)(2)(A). Humana Health Plans, Inc. v. Powell, 603 F. Supp. 2d 956, 2009 U.S. Dist. LEXIS 14586 (W.D. Ky. 2009 ).

10.Expert Witness.

This section does not elevate a claims adjuster to a medical expert; therefore, defendant was not entitled to question compensation insurance carrier’s claims representative as to whether plaintiff should have been entitled to further temporary total disability benefits. Zurich Am. Ins. Co. v. Haile, 882 S.W.2d 681, 1994 Ky. LEXIS 89 ( Ky. 1994 ).

11.Enforcement of Subrogation Rights.

Under this section an insurance carrier cannot pay its insured and rely upon its subrogation agreement as its method of enforcing its contractual subrogation rights but must intervene in the action after receiving from its insured notice of suit and advice that failure to intervene in the action would result in a loss of subrogation rights. McCormack Baron & Assocs. v. Trudeaux, 885 S.W.2d 708, 1994 Ky. App. LEXIS 130 (Ky. Ct. App. 1994).

12.Preservation of Error.

Under this section a motion in limine to exclude evidence of collateral source payments, resolved by order of record is sufficient to preserve error for appellate review. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

Once a motion in limine to exclude evidence of collateral source payments under this section has been overruled, a party may go forward with adverse evidence to avoid the appearance of concealment and still preserve error for appellate review: that to construe a motion in limine as waived by the plaintiff’s would defeat the purpose of the rule and destroy the value of having it. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Durant, Medical Benefits Subrogation and Personal Injury Tort Recovery Conflicting Claims: Prescriptions For Relief, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 19.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Eades, Some Thoughts About “Tort Reform.”, Vol. 70, No. 6, November 2006, Ky. Bench & Bar 9.

Northern Kentucky Law Review.

Comment, A Survey of Kentucky Tort Reform, 17 N. Ky. L. Rev. 473 (1990).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

2012 Kentucky Survey Issue: Article: Determining Who Gets the Windfall: Recent Developments of the Collateral Source Rule in Kentucky, 39 N. Ky. L. Rev. 63 (2012).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Assault With a Firearm, Form 120.01.

1.In General.

This section provides that an owner of land, who makes it available to the public for recreational purposes without payment of fees is under no general duty, and a person entering upon the premises takes the land as he or she finds it to be. Page v. Louisville, 722 S.W.2d 60, 1986 Ky. App. LEXIS 1501 (Ky. Ct. App. 1986).

A party is not protected under this section when the party neither prevents nor affirmatively invites a person to enter the land in question. Coursey v. Westvaco Corp., 790 S.W.2d 229, 1990 Ky. LEXIS 132 ( Ky. 1990 ).

Regulations pertaining to swimming and bathing facilities, 902 KAR 10:120, did not create liability on the part of a city for injuries sustained when the plaintiff jumped into a creek in a city park and injured his heel and foot, since the creek had not been modified for the purpose of public swimming or bathing. City of Louisville v. Silcox, 977 S.W.2d 254, 1998 Ky. App. LEXIS 74 (Ky. Ct. App. 1998).

2.Constitutionality.

In encouraging dedication of land for recreational use by land owners, this section creates a class of users which, by such dedication, loses its label as trespassers, but does not acquire the label of invitees; this is a reasonable classification and there is no violation of Ky. Const., §§ 14, 54, or any other pertinent section of the Kentucky Constitution. Sublett v. United States, 688 S.W.2d 328, 1985 Ky. LEXIS 215 ( Ky. 1985 ).

Kentucky’s Recreational Use Statute was constitutional because it did not violate the jural rights doctrine. Poore v. 21st Century Parks, Inc., 2020 Ky. App. LEXIS 88 (Ky. Ct. App. July 31, 2020).

3.Purpose.

The traditional purpose behind this section is to encourage landowners, through legislative immunity from acts of ordinary negligence, to open their lands to the public, thereby relieving states of having to acquire land for recreational use by their citizens. Midwestern, Inc. v. Northern Kentucky Community Center, 736 S.W.2d 348, 1987 Ky. App. LEXIS 506 (Ky. Ct. App. 1987).

The Recreational Use Statute was adopted to encourage owners of land and water areas to make their property available for recreational use, by limiting their liability for injuries, which might be suffered by those coming upon the property. Collins v. Rocky Knob Assocs., 911 S.W.2d 608, 1995 Ky. App. LEXIS 110 (Ky. Ct. App. 1995).

4.Limitation of Liability.

The United States was the owner of land under the control of the Army Corps of Engineers, and as the land was available to the public to use without fees for recreation, its liability was limited by this section. Sublett v. United States, 688 S.W.2d 328, 1985 Ky. LEXIS 215 ( Ky. 1985 ).

There was no liability on the part of the parks and recreation board, a joint city-county agency, where there was no contention of willful or malicious behavior. Page v. Louisville, 722 S.W.2d 60, 1986 Ky. App. LEXIS 1501 (Ky. Ct. App. 1986).

Although the injured plaintiff may have been subject to an admission charge at other times and had paid such charges before the date of his accident, it was undisputed that, on the day in question, he was not charged nor did he pay a fee for admission into the center’s pool; therefore, as the element of payment of an admission fee was missing, and there were no allegations of conduct rising to the level of willful negligence, the city and center were entitled to the immunity granted by this section and the plaintiff’s claim against them failed. Midwestern, Inc. v. Northern Kentucky Community Center, 736 S.W.2d 348, 1987 Ky. App. LEXIS 506 (Ky. Ct. App. 1987).

Even if owner of marina was negligent, where such negligence did not rise to the level of willful or malicious indifference to the rights of the drowned swimmers, the owner of marina was entitled to judgment as a matter of law under the Recreational Use Statute. Collins v. Rocky Knob Assocs., 911 S.W.2d 608, 1995 Ky. App. LEXIS 110 (Ky. Ct. App. 1995).

In a negligence action in which an invitee alleged that he was injured when he fell from a swing on a school playground after school hours, the school principals and two employees were protected from liability under KRS 411.190 because the invitee did not contend that the injury resulted out of a willful or malicious failure to guard or warn, and because he did not challenge the free public recreational use of the land. Both principals had a duty to supervise school personnel, including the two employees who were charged with maintenance of the schools’ grounds, and, to the extent that those obligations gave rise to a duty that would subject the principals and the employees to liability for failure to maintain the property or warn of dangerous conditions, their liability was limited by § 411.190 (3)-(4). Roach v. Hedges, 419 S.W.3d 46, 2013 Ky. App. LEXIS 36 (Ky. Ct. App. 2013).

Trial court did not err by granting the mall summary judgment in the mall walker's premises liability action where the mall could raise a defense under this section, as the mall knew about and condoned mall walking on its property before the stores opened, the mall walker was walking during a non-business hour at the time of her fall and was not window shopping, mall walking was a recreational purpose as it was a form exercise similar to swimming and hiking and nothing in the statute indicated that the legislature intended to limit recreational purposes to outdoor activities, and the mall's interior constituted land under this section. Bryant v. Jefferson Mall Co., L.P., 486 S.W.3d 310, 2015 Ky. App. LEXIS 192 (Ky. Ct. App. 2015).

City and a softball league were immune from liability under Ky. Rev. Stat. Ann. § 411.190 where both the city and the league fell under the Ky. Rev. Stat. Ann. § 411.190 (1)(b) definition of owner, and because the list codified in Ky. Rev. Stat. Ann. § 411.190(1)(c) was not limited to the enumerated activities, but was broad enough to include activities conducted by organized team sports, the league’s activities fell under the statutory definition of recreational purpose. Draper v. Trace Creek Girls' Softball, Inc., 571 S.W.3d 103, 2018 Ky. App. LEXIS 302 (Ky. Ct. App. 2018).

Government employees were not liable when a child fell from bleachers in a park located on property owned by a county urban government and open to the public without charge for recreational use because the employees owed no duty of care to keep the premises safe for the child’s use or to give any warning of any dangerous condition of a building or structure on the land, including the bleachers. Johnson v. Bond, 2019 Ky. App. LEXIS 38 (Ky. Ct. App., sub. op., 2019 Ky. App. Unpub. LEXIS 632 (Ky. Ct. App. Mar. 22, 2019).

Although the surviving spouse alleged that a landowner, which owned and operated a park, failed to train its employees to handle medical emergencies and to develop and implement a safety plan for a state-controlled waterway, the landowner and its employees were entitled to summary judgment because the decedent used the owner’s park for free to access the waterway for kayaking and died outside of the park on private property. Furthermore, the conduct of the owner and its employees was not willful or malicious. Poore v. 21st Century Parks, Inc., 2020 Ky. App. LEXIS 88 (Ky. Ct. App. July 31, 2020).

5.Owner.

Despite the fact that the contract between the city and the community center purported to be a lease, it was clear from the language of the contract itself and the monetary arrangement between the city and the center that the document was essentially an employment contract pursuant to which the center was paid to manage and oversee the day-to-day operation of the facility; therefor, with regard to the question of ownership of the property, the city and center fell squarely within the provision of subdivision (1)(b) of this section, defining an owner as “a possessor of a fee interest” or one “in control of the premises.” Midwestern, Inc. v. Northern Kentucky Community Center, 736 S.W.2d 348, 1987 Ky. App. LEXIS 506 (Ky. Ct. App. 1987).

By adopting a broad definition of “owner” and including the provision “in control of the premises” in KRS 411.190(1)(b), the legislature intended to eliminate negligence liability, under the circumstances set forth in the statute, by removing the duty of care from individuals who have sufficient control to render them liable absent the statute’s application. Roach v. Hedges, 419 S.W.3d 46, 2013 Ky. App. LEXIS 36 (Ky. Ct. App. 2013).

6.Payment of Charge.

The payment of a “charge” for permission to enter upon land for recreational use, including swimming (and, logically, diving), is the one element necessary to defeat the blanket immunity granted by this section. Midwestern, Inc. v. Northern Kentucky Community Center, 736 S.W.2d 348, 1987 Ky. App. LEXIS 506 (Ky. Ct. App. 1987).

A $2.00 fee charged to park at a city park did not constitute a fee to enter upon the land and use the park for recreational purposes where pedestrians and bicyclists could use the same entrance for no fee, there were other entrances into the park where no fee was charged, and there were other parking areas in the park which could be used for no charge. City of Louisville v. Silcox, 977 S.W.2d 254, 1998 Ky. App. LEXIS 74 (Ky. Ct. App. 1998).

Fee plaintiff paid to the league was not a charge under Ky. Rev. Stat. Ann. § 411.190(1)(d) as it was not paid for permission to enter the land, but was paid to the league to cover the cost of providing umpires, equipment, and softball-related expenses the league incurred in organizing the games, and the league had not paid the city a fee for the use of the softball fields. Draper v. Trace Creek Girls' Softball, Inc., 571 S.W.3d 103, 2018 Ky. App. LEXIS 302 (Ky. Ct. App. 2018).

7.Attractive Nuisance Doctrine.

This section precludes application of the attractive nuisance doctrine. Coursey v. Westvaco Corp., 790 S.W.2d 229, 1990 Ky. LEXIS 132 ( Ky. 1990 ).

8.Sufficiency of Public Use.

A landowner must show he knew and condoned the public making recreational use of his property, and by the landowner’s words, actions or lack of action it must be able to be reasonably inferred that the landowner intended to permit such use. Coursey v. Westvaco Corp., 790 S.W.2d 229, 1990 Ky. LEXIS 132 ( Ky. 1990 ).

A party is not required to dedicate the property in question for a public recreational purpose in order to be protected by this section. Coursey v. Westvaco Corp., 790 S.W.2d 229, 1990 Ky. LEXIS 132 ( Ky. 1990 ).

Where plaintiff sought a prescriptive easement over a roadway on property owners’ land which had been used for decades by hunters and fishermen to access a creek, pursuant to KRS 446.080(3), an amendment to KRS 411.190 that banned the creation of a prescriptive easement for recreational activities could not be applied retroactively, since the amendment did not state that it could be given retroactive effect, and doing so would affect the parties’ substantive rights with respect to prior events. Allen v. Thomas, 209 S.W.3d 475, 2006 Ky. App. LEXIS 206 (Ky. Ct. App. 2006).

9.Willful or Malicious.

The terms “willful or malicious” as used in subsection (6) of this section do not necessarily and solely entail an intention to do wrong and inflict an injury; therefore, liability will not be limited by this section if an owner of land acts with indifference to the natural consequences of its actions or evidences an entire want of care or great indifference to the safety of others. Huddleston v. Hughes, 843 S.W.2d 901, 1992 Ky. App. LEXIS 236 (Ky. Ct. App. 1992).

This section specifically provides that a person using the land of another for recreational purposes is not relieved from his obligation to exercise care as otherwise required by law, and the failure of owner of marina to guard or warn against a dangerous condition could not be said to be “willful or malicious.” Collins v. Rocky Knob Assocs., 911 S.W.2d 608, 1995 Ky. App. LEXIS 110 (Ky. Ct. App. 1995).

The defendant city did not act willfully or maliciously and, therefore, the plaintiff could not recover for injuries sustained when he jumped into a creek in a city park and sustained an injury to his heel and foot; the city did not create the creek or introduce any object into the creek which could have caused the injury. City of Louisville v. Silcox, 977 S.W.2d 254, 1998 Ky. App. LEXIS 74 (Ky. Ct. App. 1998).

10.—Failure to Guard or Warn.

Where the evidence was uncontradicted that a basketball goal had fallen on a number of occasions, yet each time it was set upright with no additional security in place to prevent a recurrence, where it was conceded that children playing basketball on the school parking lot often attempted to “slam-dunk” basketballs by removing the counter-weights balancing the free-standing goals, or by otherwise tilting the goals forward, and where there was no evidence that a warning was posted regarding the hazards connected with the goals on the day the minor was injured, or that a warning had ever been posted, a question of material fact was presented regarding whether the school willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity under subdivision (6)(a) of this section. Huddleston v. Hughes, 843 S.W.2d 901, 1992 Ky. App. LEXIS 236 (Ky. Ct. App. 1992).

Government employees were not liable when a child fell from bleachers in a park located on property owned by a county urban government and open to the public without charge for recreational use because the employees owed no duty of care to keep the premises safe for the child’s use or to give any warning of any dangerous condition of a building or structure on the land, including the bleachers. The employees did not act willfully and maliciously as the danger to the child playing on the bleachers was obvious and not a trap set by the employees. Johnson v. Bond, 2019 Ky. App. LEXIS 38 (Ky. Ct. App., sub. op., 2019 Ky. App. Unpub. LEXIS 632 (Ky. Ct. App. Mar. 22, 2019).

11.Waiver of Liability.

Because deceased, who died while exploring defendants’ cave, was not on equal footing with the defendants, was unaware of the dangers inside the cave and relied entirely on his tour guide and because no public interests are served by encouraging commercial caving by validating such releases and the cave tour did not qualify as a recreational activity, waiver signed by deceased did not release defendants from liability and defendants’ motion for summary judgment was denied. Coughlin v. T.M.H. Int'l Attractions, 895 F. Supp. 159, 1995 U.S. Dist. LEXIS 12499 (W.D. Ky. 1995 ).

Owner of marina did not waive the protection of this section when owner agreed to lease terms which required him to maintain liability insurance on the premises, as owner fell within the protective ambit of the Recreational Use Statute. Collins v. Rocky Knob Assocs., 911 S.W.2d 608, 1995 Ky. App. LEXIS 110 (Ky. Ct. App. 1995).

12.Adverse Possession.

Petitioners were not entitled to adverse possession because KRS 411.190 applied retroactively, and even if their timber sale, as a non-recreational use, lay outside the scope of the statute, it would nonetheless apply to petitioners’ solely-recreational-use claim prior to 1999 and thus left them with a claim that fell far short of the requirement that the adverse possession continue for fifteen years. Moore v. Stills, 307 S.W.3d 71, 2010 Ky. LEXIS 50 ( Ky. 2010 ).

Evidence demonstrated that a disputed parcel of property had been enclosed by a fence since at least the 1940s. This fenced enclosure amounted to actual possession for purposes of a claim of adverse possession, not the sporadic recreational use of the property. Vick v. Elliot, 422 S.W.3d 277, 2013 Ky. App. LEXIS 78 (Ky. Ct. App. 2013).

Cited:

Shortridge v. Rice, 929 S.W.2d 194, 1996 Ky. App. LEXIS 47 (Ky. Ct. App. 1996).

Research References and Practice Aids

Kentucky Law Journal.

Waldrop, Torts, 74 Ky. L.J. 469 (1985-86).

Northern Kentucky Law Review.

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Elder, 2001: An End of Millennium Odyssey Through Tort Liability of Occupiers and Owners of Land, 28 N. Ky. L. Rev. 352 (2001).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Premises Liability, § 131.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer Asserting Visibility of Condition and Other Defenses, Form 131.11.

1.Application.

While this section provides for the enforcement of agreements to pay attorney fees contained in an instrument that creates a debt, it applies only to those who are parties to the writing, it does not obligate persons like alternative payees of certificates of deposit who are not a party to the debt instrument. Farmers Bank & Trust Co. v. Brazell, 902 S.W.2d 830, 1995 Ky. App. LEXIS 27 (Ky. Ct. App. 1995).

2.Construction.

This section opens all loans to the allowance of attorney fees, limiting them only to reasonableness as determined by the trial court. The fact the loans are executed before the effective date of this section is not a bar to its enforcement as of the date of judgment. Duff v. Bank of Louisville & Trust Co., 705 S.W.2d 920, 1986 Ky. LEXIS 243 ( Ky. 1986 ).

3.Conversion Action.

Attorney’s fees incurred by a secured creditor in a conversion action for collateral against the transferee of the original creditor are not recoverable. Ranier v. Gilford, 688 S.W.2d 753, 1985 Ky. App. LEXIS 503 (Ky. Ct. App. 1985).

4.Parties to Agreement.

Where there was no written agreement among the bank, the insurer, and the guarantor to pay attorney’s fees, and the guarantor had agreed to pay attorney’s fees in the event of default, but the insurer was not a party to that agreement, the bank was not entitled to attorney’s fees from the insurer in the action upon the insurance contract. Investors Heritage Life Ins. Co. v. Farmers Bank, 749 S.W.2d 688, 1987 Ky. App. LEXIS 615 (Ky. Ct. App. 1987).

Homeowners association was not entitled to attorney fees in dispute over whether owners’ property was subject to restrictive covenants because, although the covenants provided for attorney fees for cost of collection of assessments, KRS 411.195 only applied to the original parties to the contract. Triple Crown Subdivision Homeowners Ass'n v. Oberst, 279 S.W.3d 138, 2008 Ky. LEXIS 287 ( Ky. 2008 ).

5.Collection and Foreclosure Actions.

Attorney’s fee may be recovered in collection and foreclosure actions, even when the agreement allowing for such fee was executed prior to its enforceability. Kane v. Citizens Fidelity Bank & Trust Co., 668 S.W.2d 564, 1984 Ky. App. LEXIS 462 (Ky. Ct. App. 1984) (decided under prior law).

6.Sureties.

Where the only provision for an attorney’s fee was contained in the security agreement executed by debtor and related only to a situation where the bank took legal action against the collateral, and where sureties were not liable under the security agreement as individuals and neither the note nor the guaranty agreement signed by sureties made any mention of an attorney’s fee, the trial court did not err as a matter of law or abuse its discretion in denying the bank an award of an attorney’s fee in this case in its action against sureties. Kane v. Citizens Fidelity Bank & Trust Co., 668 S.W.2d 564, 1984 Ky. App. LEXIS 462 (Ky. Ct. App. 1984) (decided under prior law).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Action on Open Book Account for Goods Sold and Delivered, Agreement to Pay Attorney Fees, Form 212.06.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint for Default on Promissory Note and Attorney Fees, Form 210.06.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint to Enforce Mortgage Lien Due to Default on Payment, Form 301.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint to Enforce Mortgage Lien Under Due-on-Sale Clause, Form 301.02.

1.Expert Testimony.

It was error to summarily dismiss a patient’s statutory emotional damage claim for lack of expert testimony because the expert testimony requirement only applied to the patient’s intentional infliction of emotional distress and negligent infliction of emotional distress claims. Crook v. Maguire, 2018 Ky. App. LEXIS 133 (Ky. Ct. App. May 11, 2018), aff'd, 605 S.W.3d 343, 2020 Ky. LEXIS 272 ( Ky. 2020 ).

1.Application.

Because transactions involving blood and blood components are considered services, as opposed to sales, they are outside the purview of this Commonwealth's Products Liability Act. McKee v. Miles Laboratories, Inc., 675 F. Supp. 1060, 1987 U.S. Dist. LEXIS 12025 (E.D. Ky. 1987 ), aff'd, 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ).

The Product Liability Act (PLA) codifies the idea that a manufacturer is not liable when the injuries result from the mutilation or alteration of the chattel since such intervening conduct severs any causal connection between the product and the injury precludes any imposition of liability on a manufacturer in cases where the product has not been used in its original, unaltered and unmodified condition. Monsanto Co. v. Reed, 950 S.W.2d 811, 1997 Ky. LEXIS 50 ( Ky. 1997 ).

If a claim is brought against a seller or manufacturer of a product which is alleged to have caused injury then the Product Liability Act (PLA) applies, regardless of whether the action is founded on strict liability in tort, negligence, or breach of warranty. Thus while each of these theories of recovery in products liability cases requires proof of different elements and has different implications the central purpose is the same: recovery of damages for injury for property damage caused by a product. Monsanto Co. v. Reed, 950 S.W.2d 811, 1997 Ky. LEXIS 50 ( Ky. 1997 ).

The Product’s Liability Act (PLA) does not attempt to abolish a right of recovery, be it jural or otherwise, but merely codifies long established Kentucky law that a manufacturer, under whatever legal theory, is not liable for injuries following the alteration, destruction, or mutilation of its product, or by its misuse which was not reasonably foreseeable. Monsanto Co. v. Reed, 950 S.W.2d 811, 1997 Ky. LEXIS 50 ( Ky. 1997 ).

The Product Liability Act was inapplicable to an insurer’s subrogation claim against a fire alarm company seeking damages arising from a house fire because the contract between the insureds and the fire alarm company was not for the sale of goods, but was for services; while the fire alarm company agreed to supply the alarm system, title to the control set remained with the fire alarm company. United Servs. Auto. Ass'n v. ADT Sec. Servs., 241 S.W.3d 335, 2006 Ky. App. LEXIS 284 (Ky. Ct. App. 2006).

Product liability action within the meaning of KRS 411.300 (1), which was brought against manufacturers of generic versions of metoclopramide, was unsuccessful, in part because plaintiffs failed to convince the federal court that Kentucky state courts would adopt their vicarious-liability argument under the Kentucky Products Liability Act, KRS 411.300 to 411.340 . Smith v. Wyeth, Inc., 657 F.3d 420, 2011 FED App. 0271P, 2011 U.S. App. LEXIS 19393 (6th Cir. Ky. 2011 ), cert. denied, 566 U.S. 974, 132 S. Ct. 2103, 182 L. Ed. 2d 868, 2012 U.S. LEXIS 3319 (U.S. 2012).

2.Breach of Warranty.

This section applies to the same products liability actions covered by KRS 411.182(1); consequently, comparative fault applies to products liability actions based on breach of warranty. Morales v. American Honda Motor Co., 151 F.3d 500, 1998 FED App. 0230P, 1998 U.S. App. LEXIS 17447 (6th Cir. Ky. 1998 ).

3.Legislative Intent.

The undoubted intent of the Legislature in passing the Products Liability Act was to restrict liability; thus KRS 411.320(3) being clear and unambiguous, and its application according to its terms not yielding an absurd result, must be applied according to its plain meaning, and defendant’s motion for an instruction that contributory negligence is a complete bar in products liability action if supported by the evidence, must be granted. Anderson v. Black & Decker, Inc., 597 F. Supp. 1298, 1984 U.S. Dist. LEXIS 21679 (E.D. Ky. 1984 ).

4.Strict Liability.

A blood product transaction as the rendition of a service bars plaintiff’s strict liability claims. McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ).

Cited in:

In re Beverly Hills Fire Litigation, 695 F.2d 207, 1982 U.S. App. LEXIS 17268 (6th Cir. 1982), cert. denied, Bryant Electric Co. v. Kiser, 461 U.S. 929, 103 S. Ct. 2090, 77 L. Ed. 2d 300, 1983 U.S. LEXIS 4603 (1983), cert. denied, Bryant Electric Co. v. Kiser, 461 U.S. 929, 103 S. Ct. 2090, 77 L. Ed. 2d 300, 1983 U.S. LEXIS 4603 (1983); Burke Enterprises, Inc. v. Mitchell, 700 S.W.2d 789, 1985 Ky. LEXIS 290 , 57 A.L.R.4th 1167 ( Ky. 1985 ); Reda Pump Co., Div. of TRW, Inc. v. Finck, 713 S.W.2d 818, 1986 Ky. LEXIS 283 ( Ky. 1986 ); Kanawha Steel & Equipment Co. v. Dorsey Trailers, Inc., 662 F. Supp. 131, 1987 U.S. Dist. LEXIS 4660 (E.D. Ky. 1987 ); Niehoff v. Surgidev Corp., 950 S.W.2d 816, 1997 Ky. LEXIS 70 ( Ky. 1997 ).

1.Application.

Unpublished decision: In a products liability action by an insurer and an operator against a manufacturer under KRS 411.300 et seq., the district court’s selection of a permissive adverse-inference jury instruction after the alleged defective product was destroyed was proper because the instruction was appropriate and adequate under the circumstances; no allegations of bad faith had been leveled against the insurer and operator, the manufacturer was not denied the ability to develop its defenses adequately, and the district court’s finding that the insurer and operator did not knowingly or purposefully cause the destruction was supported by the record and was not clearly erroneous. Arch Ins. Co. v. Broan-Nutone, LLC, 509 Fed. Appx. 453, 2012 FED App. 1307N, 2012 U.S. App. LEXIS 26464 (6th Cir. Ky. 2012 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hayden, An analysis of Selected Portions of the Restatement of Products Liability Law, see pages 10-15 of this article for an overview of existing Kentucky Law regarding products liability and court treatment of its provisions, Vol. 61, No. 4, Fall 1997, Ky. Bench & Bar 7.

Kentucky Law Journal.

Kentucky Law Survey, Jenkins and Green, Torts, 69 Ky. L.J. 663 (1980-81).

Comments, Design for Challenge: The Kentucky Statute of Repose for Improvements to Real Property, 73 Ky. L.J. 1143 (1984-85).

Comments, The Liability of Cigarette Manufacturers for Lung Cancer: An Analysis of the Federal Cigarette Labeling and Advertising Act and Preemption of Strict Liability in Tort Against Cigarette Manufacturers, 76 Ky. L.J. 569 (1987-88).

Northern Kentucky Law Review.

Notes, Torts — Products Liability — Should Contract or Tort Provide the Cause of Action When a Plaintiff Seeks Recovery Only for Damage to the Defective Product Itself — C & S Fuel, Inc. v. Clark Equip. Co.,10 N. Ky. L. Rev. 489 (1983).

Miller, The Kentucky Law of Products LiabilityIn A Nutshell, 12 N. Ky. L. Rev. 201 (1985).

Comments, Reda Pump, a Division of TRW, Inc. v. Finck: An Update on Kentucky Product Liability Law, 14 N. Ky. L. Rev. 395 (1988).

Note, The Seat Belt Defense in Kentucky: Wemyss v. Coleman, 15 N. Ky. L. Rev. 657 (1988).

Phillips, Crashworthiness in the Commonwealth: An Analysis of the Defectiveness of Tractors Without Rops, 23 N. Ky. Rev. 325 (1996).

Humfleet & Miller-Mitchell, A Survey of Kentucky Products Liability Law., 32 N. Ky. L. Rev. 617 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Products Liability, § 137.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Products Liability, §§ 49.01-49.06.

1.In General.

The presumption set forth in this section may be rebutted by evidence that the product was defective, even if the product conformed to prevailing industry standards or the current state of the art. Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 1997 Ky. App. LEXIS 105 (Ky. Ct. App. 1997).

The purpose of subsection (2) is not to insulate an entire industry just because every member of the industry was manufacturing and distributing a product known to be dangerous; rather it is to protect a manufacturer from liability for failure to anticipate safety features which were unknown at the time the product in question was manufactured and distributed. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 1998 Ky. LEXIS 97 ( Ky. 1998 ).

District Court did not err when it did not provide a jury instruction setting forth the presumption embodied in KRS 411.310 ; once the plaintiff had offered proof of a defect, the presumption was no longer applicable. Clark v. Chrysler Corp., 310 F.3d 461, 2002 FED App. 0369P, 2002 U.S. App. LEXIS 22140 (6th Cir. Ky. 2002 ), vacated, 540 U.S. 801, 124 S. Ct. 102, 157 L. Ed. 2d 12, 2003 U.S. LEXIS 5438 (U.S. 2003).

Where the injured person suffered a ladder accident, the res ipsa loquitur doctrine created merely a permissible inference of negligence, and where the injured person offered no expert testimony to rebut the opinion of the manufacturer’s product safety engineer that the ladder met applicable safety standards, and had no defects, a directed verdict for the manufacturer was proper. Eversole v. Louisville Ladder Group, 2003 Ky. App. LEXIS 270 (Ky. Ct. App. Sept. 5, 2003).

Given that the presumption set forth at KRS 411.310(2) is only rebutted when plaintiffs show proof of a defect by a preponderance of the evidence, the presumption would appear to do nothing more than codify what the law has always been, and a plaintiff in a products liability action must still prove by a preponderance of the evidence that the product in question is defective. Estate of Bigham v. DaimlerChrysler Corp., 462 F. Supp. 2d 766, 2006 U.S. Dist. LEXIS 83701 (E.D. Ky. 2006 ).

Where a plaintiff was struck and injured by an automatic revolving door and where she presented expert testimony that the sensors on the door were inadequate, that additional sensors were needed to detect the presence of people and stop the door from moving, and that the door’s lack of adequate and sufficient sensors caused it to strike plaintiff and cause her injuries, plaintiff successfully rebutted the statutory presumption of non-defectiveness. Boon Edam, Inc. v. Saunders, 324 S.W.3d 422, 2010 Ky. App. LEXIS 191 (Ky. Ct. App. 2010).

Seller involved in a small claims action against the buyer, who sued it when the generator that the buyer purchased from the seller soon caught fire, could not show that a presumption of the Kentucky Products Liability Act (Act), contained in KRS 411.310(2), applied. Since a small claims action was involved, that Act did not apply and, indeed, the simplified small claims procedure set forth in statutes such as KRS 24A.200 and KRS 24A.300(2) governed such actions. Northern Tool & Equip., Inc. v. Durbin, 392 S.W.3d 424, 2013 Ky. App. LEXIS 18 (Ky. Ct. App. 2013).

It was entirely consistent with Kentucky law to instruct the jury that the presumption of nondefectiveness in a products liability case could be overcome only by showing by a preponderance of the evidence that the product was defective. Smith v. Joy Techs., Inc., 828 F.3d 391, 2016 FED App. 0150P, 2016 U.S. App. LEXIS 12051 (6th Cir. Ky. 2016 ).

2.Strict Liability.

Unless a plaintiff in a products liability action can present something more than a conclusion that, with regard to the product in question, it was theoretically probable that a different design would have been feasible and would have prevented his injury, the issue of strict liability should not be submitted to the jury. Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

Where a plaintiff was struck and injured by an automatic revolving door and filed a products liability suit against the door’s manufacturer, the trial court did not err under KRE. 702 in finding that plaintiff’s expert was qualified to testify as an expert witness because his testimony helped the jury understand the limitations of the sensors in place on the door at issue, the apparent need for additional sensors, and the cause of plaintiff’s injuries. Further, the expert’s extensive knowledge, education, training, and professional experience qualified him as an expert. Boon Edam, Inc. v. Saunders, 324 S.W.3d 422, 2010 Ky. App. LEXIS 191 (Ky. Ct. App. 2010).

Manufacturer was entitled to summary judgment on the patient’s strict liability claim because at the time of the patient’s surgery, there existed no published literature specifically correlating chondrolysis to the prescription implantable medical device, and therefore the manufacturer did not have a duty to warn the patient of the risk of chrondrolysis from the use of the device. Prather v. Abbott Labs., 960 F. Supp. 2d 700, 2013 U.S. Dist. LEXIS 47511 (W.D. Ky. 2013 ).