Almost three decades later, the Supreme Court addressed this issue in Commonwealth, Transportation Cabinet, Department of Highways v. Shadrick, and restated that the Commonwealth has a duty to exercise ordinary care to maintain its highways in a reasonably safe condition for the traveling public. 956 S.W.2d 898 (Ky. 1997).Shadrick, 956 S.W.2d at 900; Automobile Club Insurance, 467 S.W.2d at 328.
Our analysis begins with the necessary elements of an actionable negligence claim. In order to establish negligence, Appellant is required to prove: (1) a duty on the part of the Department of Highways; (2) a breach of that duty; and (3) consequent injury. Commonwealth of Kentucky Transportation Cabinet Department of Highways v. Shadrick , 956 S.W.2d 898, 900 (Ky. 1997). This Court will apply a de novo review to these issues of law.
See KRS 44.070(5). We believe that the circuit court correctly addressed the principal legal issues raised by Appellant on appeal. It is long standing law that in order to establish negligence on the part of the Department of Highways, a claimant must establish: (1) a duty on the part of the Department; (2) a breach of that duty; and (3) consequent injury. Commonwealth, Transp. Cabinet, Dep't of Highways v. Shadrick, 956 S.W.2d 898, 900 (Ky. 1997); Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992); Illinois Central R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967); Warfield Natural Gas Co. v. Allen, 248 Ky. 646, 59 S.W.2d 534, 536 (1933). The absence of any one of the three elements is fatal to the claim.
On the basis of this evidence, the Board of Claims could have resolved whether the Cabinet had a duty to erect a guardrail at M.P. 5.620 prior to April 1, 1999, and whether its failure to do so constituted negligence. Instead, the Board interpreted language in Commonwealth Transportation Cabinet v. Shadrick, 956 S.W.2d 898 (Ky. 1997), as holding that the Cabinet has no duty whatsoever to protect negligent motorists from colliding with roadside hazards that are in plain view. "There was no evidence in the record that would indicate that Sherry Taylor's leaving the roadway was due to anything other than her failure to exercise due care for her own safety." Taylor v. Commonwealth, Transp.
This is true even if a reviewing court might reach a different result. Seen Commonwealth Transp. Cabinet Dep’t of Highways v. Shadrick, 956 S.W.2d 898, 901 (Ky. 1997) (citation omitted). Therefore, we find no error.
We decline to extend the law to the point of guaranteeing that every right-of-way will be completely free of all obstructions, whether permanent or transitory, for motorists who operate their vehicles into that area of the roadway. 956 S.W.2d 898, 901 (Ky. 1997) (citation omitted). This is not to say that in a proper case the Cabinet might not be liable for injuries sustained by its failure to remedy the ponding water or warn motorists of its existence when it occurs.
"The absence of any one of the three elements is fatal to the claim." Commonwealth Transp. Cabinet Dept. of Highways v. Shadrick, 956 S.W.2d 898, 900 (Ky. 1997). When reviewing administrative decisions, such as those by the Board, a reviewing court is limited to a determination of whether the factual findings are supported by substantial evidence and whether the application of the law to the facts is clearly erroneous.
"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.