Opinion
NO. 2012-CA-001680-MR
05-23-2014
COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS APPELLANT v. REBECCA CLAYBURN; AND COMMONWEALTH OF KENTUCKY, PUBLIC PROTECTION CABINET, BOARD OF CLAIMS APPELLEES
BRIEFS FOR APPELLANT: Marlin A. Jones Frankfort, Kentucky BRIEF FOR APPELLEE, REBECCA CLAYBURN: Donald H. Smith Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 11-CI-005052
OPINION
REVERSING AND REMANDING
WITH DIRECTIONS
BEFORE: CAPERTON, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Commonwealth of Kentucky, Transportation Cabinet, Department of Highways (Transportation Cabinet) brings this appeal from a September 11, 2012, order of the Jefferson Circuit Court reversing and remanding a Final Order of the Commonwealth of Kentucky, Public Protection Cabinet, Board of Claims (Board of Claims), which dismissed Rebecca Clayburn's claim of negligence. We reverse and remand to the circuit court with directions that the matter be remanded to the Board of Claims to dismiss the action for lack of jurisdiction.
The facts underlying the appeal were succinctly set forth by the circuit court as follows:
On or about the evening of April 3, 2007, Clayburn was traveling southbound on Interstate 65, and attempted to merge onto Interstate 264 West. Visibility was not optimal as it was dark and raining, and Clayburn was not familiar with the area. Another vehicle crossed into Clayburn's lane, forcing her off the road and into the gore area between I-65 South and I-264 West. In the gore area, hidden by grass, were several steel attachment plates and vertical support beams used for highway sign construction. There was no warning or notice that the gore contained a hazard. It was later determined the debris was the result of a prior accident that had knocked down the sign. Clayburn struck these beams. One came up through the floor, while another damaged the vehicle's axel and tires. In addition to the total loss of the vehicle, Clayburn sustained injuries to her neck, hands, back, hip, jaw and had several broken teeth.
As a result of the accident, Clayburn filed a claim against the Transportation Cabinet in the Board of Claims. Therein, Clayburn asserted that the Transportation Cabinet possessed a ministerial duty to either remove the support beams or to warn of the beams in the gore area adjacent to the roadway. Clayburn maintained that the Transportation Cabinet knew that support beams were lying in the gore area but took no action. Clayburn maintained that the Transportation Cabinet breached its ministerial duty and that such breach was a substantial factor in causing her injuries.
A "gore" is generally defined as a "small triangular piece of land." The American Heritage Dictionary 568 (2nd ed. 1985). In this case, the gore area specifically consisted of the triangular piece of land located between Interstate Highway 65 South and the exit ramp to Interstate Highway 264 West.
By Final Order entered June 17, 2011, the Board of Claims concluded that the Transportation Cabinet "is not automatically liable every time a motorist drives his vehicle off the traveled portion of the highway and strikes a roadside hazard." The Board of Claims ultimately found that the Transportation Cabinet's actions were "not a causative factor regarding [Clayburn's] accident, injuries and damages."
The Commonwealth of Kentucky, Pubic Protection Cabinet, Board of Claims, adopted the June 17, 2011, Findings of Fact, Conclusions of Law, and Recommended Order of the hearing officer.
Being unsatisfied with the Board of Claims' dismissal, Clayburn sought review with the circuit court. By order entered September 11, 2012, the circuit court concluded that the Board of Claims committed reversible error by dismissing Clayburn's negligence claim against the Transportation Cabinet. In so concluding, the circuit court reasoned:
The [Transportation] Cabinet has a "duty to exercise ordinary care to keep, not only that part of its streets that has been set apart and is customarily used by the traveling public in a reasonably safe condition, but that it must also exercise the same degree of care with respect to such parts of its streets as lie immediately adjacent to or in the margin of the traveled part." City of Lancaster v. Broaddus, 216 S.W. 373 (Ky. 1919). The state is not liable for failure to keep highway shoulders in reasonably safe condition, except for defects that areThe Transportation Cabinet now seeks our review of the circuit court's order. Kentucky Revised Statutes (KRS) 44.150.
obscured from the view of ordinary travelers and are so inherently dangerous as to constitute traps. Dillingham v. Dept. of Highways, 253 S.W.2d 256 (Ky. 1952). "An 'inherently dangerous' situation or a 'trap' is nothing more or less than a condition not 'reasonably safe.'" Falender v. City of Louisville, 448 S.W.2d 367, 370 (Ky. 1969). The determination of whether or not a hazard is "inherently dangerous," a "trap," or "not reasonably safe" is very fact-intensive. Dillingham, supra; Falender, supra; Commonwealth Transp. Cabinet v. Babbitt, 172 S.W.3d 786 (Ky. 2005). The mere presence of an obstacle in the shoulder of the roadway, even though Cabinet is shown to have actual notice of its presence, is insufficient to find a duty on the part of the Cabinet to remove or warn of the obstacle. Schrader v. Commonwealth et al., 218 S.W.2d 406 (Ky. 1949). "An obstruction in plain view of passing motorist simply does not constitute 'a condition not reasonably safe.'" Commonwealth Transp. Cabinet Dept. of Highways v. Shadrick, 956 S.W.2d 898, 901 (Ky. 1997). Shadrick does not guarantee that the roadway will be free of all obstructions, only the Cabinet should not be held responsible for the negligence of others. Id. Based on Shadrick, the Cabinet may be liable for hazards created by the Cabinet and/or not in plain view of motorists. The Board relies on Babbitt, supra, for its holding that the Cabinet is not automatically liable every time a motorist leaves the road and strikes a hazard. However, Babbitt stands simply to reject a strict liability standard. Instead, the fact[-]finder must determine if the failure to provide warnings at a particular location constitutes negligence, and if so, whether the warnings "would have prevented or reduced the damages sustained by the claimant and apportion liability in accordance with KRS 411.182." Babbitt, at 795 (emphasis added).
The Board determined Clayburn was not negligent in causing her accident. It also determined the [Transportation] Cabinet was not the proximate cause of Clayburn's accident, injuries and damages. The unknown other driver is afforded all liability for the accident. The [Transportation] Cabinet knew or should have known that drivers, even the most prudent and
careful, willingly or are forced to leave the roadway on occasion. This is evidence by the [Transportation] Cabinet's policies of marking lanes, use of warning lights, signs, barricades, guardrails, and breakaway construction materials. While Clayburn would not have been in the gore area but for the other driver's negligence, the Board does not address the extent of Clayburn's injuries or damages caused by the hazard created and obscured by the [Transportation] Cabinet.
Given the evidence presented through interrogatories, sworn testimony, photographs and tendered documents, the Board lacked substantial evidence before it to render its Final Order.
To begin, judicial review of a Board of Claim's final order is circumspect and is specifically outlined in KRS 44.140(5):
On appeal no new evidence may be introduced, except as to fraud or misconduct of some person engaged in the hearing before the board. The court sitting without a jury shall hear the cause upon the record before it, and dispose of the appeal in a summary manner, being limited to determining: Whether or not the board acted without or in excess of its powers; the award was procured by fraud; the award is not in conformity to the provisions of KRS 44.070 to 44.160; and whether the findings of fact support the award. The court shall enter its findings on the order book as a judgment of the court, and such judgment shall have the same effect and be enforceable as any other judgment of the court in civil causes.Generally, the courts defer to the findings of fact of the Board of Claims. If the claimant with the burden of proof prevails before the Board of Claims, the findings of fact of the Board of Claims are sufficient if supported by substantial evidence of a probative value. On the other hand, if the claimant is unsuccessful before the Board of Claims, the Board's findings of fact will only be disturbed if evidence compels a finding in her favor. As Clayburn carried the burden of proof and was unsuccessful before the Board of Claims, she must demonstrate that the record compels a finding in her favor to disturb the findings of the Board. Our review proceeds accordingly.
The Transportation Cabinet initially points out that the Board of Claims merely possesses jurisdiction over the negligent performance of a ministerial act per KRS 44.073(2). The Transportation Cabinet contends that the Board of Claims lacked jurisdiction because its alleged negligent act was intrinsically discretionary. In support thereof, the Transportation Cabinet specifically points out that no statutes or regulations mandate the inspection or maintenance of gore areas along a roadway. The Transportation Cabinet acknowledges its ministerial duty to maintain the roadway but adamantly argues that no such ministerial duty has previously been extended to gore areas alongside the roadway. KRS 176.050(1)(a). In light of no precedent, statute, or regulation imposing a duty as to gore areas, the Transportation Cabinet asserts that no ministerial duty exists to remove the beams in the gore area; rather, the maintenance and inspection of such areas are purely discretionary. Thus, the Transportation Cabinet contends that the Board of Claims lacked jurisdiction over Clayburn's claim.
Kentucky Revised Statutes (KRS) 44.023, in conjunction with KRS 44.072, provides a limited waiver of the Commonwealth's sovereign immunity. The Supreme Court of Kentucky declared KRS 44.023 partially unconstitutional as to other Sections.
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We are persuaded by the Transportation Cabinet's argument and hold that maintenance or inspection of the gore area constitutes a discretionary act. Pivotal to our decision is the absence of precedent, statute, or regulation imposing a duty upon the Transportation Cabinet to maintain or inspect the gore area alongside a highway. And, we are aware of no other authority requiring regular or recurrent inspection or maintenance of the gore area. Rather, the inspection and maintenance of the gore area is left to the discretion of employees at the Transportation Cabinet. This by definition constitutes a discretionary act. Commonwealth, Transp. Cab., Dept. of Highways v. Sexton, 256 S.W.3d 29 (Ky. 2008). As a discretionary act, the Board of Claims lacked jurisdiction over Clayburn's negligence claim against the Transportation Cabinet per KRS 44.073(2). See Sexton, 256 S.W.3d 29.
For the foregoing reasons, the order of the Jefferson Circuit Court is reversed and remanded with directions that the Board of Claims dismiss Clayburn's negligence claim.
ALL CONCUR. BRIEFS FOR APPELLANT: Marlin A. Jones
Frankfort, Kentucky
BRIEF FOR APPELLEE, REBECCA
CLAYBURN:
Donald H. Smith
Louisville, Kentucky