Opinion
NO. 2011-CA-001746-MR
12-07-2012
STACY WEBB APPELLANT v. CLAY MOHON APPELLEE
BRIEFS FOR APPELLANT: Lester Bennett Guier Hopkinsville, Kentucky BRIEF FOR APPELLEE: Griffin Terry Summer Nancy B. Loucks Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 09-CI-01547
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER, AND MAZE, JUDGES. KELLER, JUDGE: Stacy Webb (Webb) appeals from a jury verdict in favor of Clay Mohon (Mohon). On appeal, Webb argues that the trial court erred in denying her motions for directed verdict and for judgment notwithstanding the verdict because that verdict was not supported by the evidence. Mohon argues that sufficient evidence supported the jury's verdict and the trial court's denials of Webb's motions were not erroneous. Having reviewed the record and the arguments of the parties, we affirm.
FACTS
Mohon leased approximately fifty-five acres of farm land and a tobacco barn (the barn) from Webb for $5,000 per year. There were two mobile homes and a stable/tobacco cleaning barn (the stable) on the property near the barn, which were not covered by Mohon's lease. One of the mobile homes (the residence) was occupied by another of Webb's tenants, Edgar Samples (Samples). The other mobile home (the storage trailer) was not occupied but was used for storage.
During the period that he leased the property, Mohon, who had made similar conversions in the past, sought and received permission from Webb to convert the barn from a burley tobacco barn to a dark fire barn. In a dark fire barn tobacco is smoke cured by setting and maintaining fires (dark fires) in trenches along the floor of the barn. To convert the barn from a burley tobacco to a dark fire barn, Mohon replaced the barn doors and attached metal to the outside and plastic to the inside of the barn to seal it.
In mid-September 2008, Mohon started dark fires in the barn to begin curing the tobacco he had harvested. Mohon lit and tended the fires as he had in the past, and he received assistance from the farm manager, "Artie" Parrett (Parrett), who checked on the barn frequently.
Between 6:30 and 7:00 a.m. on October 10, 2008, Mohon checked on the dark fires and did not see any problems. At that time, a friend of Parrett's, Chris Robertson (Robertson), was in the barn wetting down the tobacco and tending the dark fires. Mohon gave Robertson $200.00 to continue tending and monitoring the fires.
Later that morning, Webb's granddaughter told Webb that the barn was on fire. Webb called Parrett, then she called 911. By the time firefighters arrived, the barn was a lost cause and they focused their efforts on saving the residence, the storage trailer, and the stable. However, their efforts were not successful and all of the structures along with the majority of their contents were destroyed.
Webb filed suit against Mohon alleging that the fire and consequent loss of property were caused by Mohon's negligence. After conducting discovery, the parties tried this case to a jury on August 25, 2011.
During the trial, Webb testified about the events leading up to the fire. Additionally, she testified that she believed she had suffered $1,000,000 in damages for the loss of the structures and their contents, the loss of potential income from the lease of the Samples home, and the loss of potential income from the lease of the land. Webb did not testify or present any evidence that Mohon's conversion of the barn or his method of dark fire curing of the tobacco was inappropriate. In addition to her testimony, Webb presented testimony from Parrett and Samples regarding the damage to the structures and personal property loss.
Mohon testified that he had been involved in the farming and curing of tobacco for most of his life. Furthermore, he testified that he converted the barn and started and tended the dark fires as he always had in the past. Finally, Mohon testified that he had supplied a replacement trailer for Samples to live in and had paid Webb $35,000. In addition to his testimony, Mohon presented testimony from an appraiser that the structures were worth between $90,000 and $99,000.
Following the presentation of proof, Webb timely moved for a directed verdict arguing that Mohon was indisputably negligent. Furthermore, Webb argued that there was no issue that she suffered damages, the only question was how much. The court denied Webb's motion.
We note that Webb called all of the witnesses during her case-in-chief, and Mohon had no additional witnesses or rebuttal testimony to offer. Therefore, both parties essentially rested simultaneously.
The court and the parties then discussed jury instructions. Mohon noted that the instructions, as drafted by the court, did not include any mention of Mohon's duty of care. The court then altered the instructions to read, in pertinent part, as follows:
Neither party specifically objected to the fact that instructions three and four included both negligence and damages, and the court read and provided these instructions to the jury.
INSTRUCTION NO. 2
"Ordinary Care" means such care as the jury would expect an ordinarily prudent person to exercise under similar circumstances.
INSTRUCTION NO. 3
If you determine from the evidence presented that Clay Mohon failed to exercise ordinary care when he started a fire that caused damage to Stacy Webb's farm, you will award her the difference between the fair market value of the entire property (i.e. farm) immediately before the fire and immediately after the fire.
We, the jury, find that the difference in fair market value of the entire property (i.e. farm) before the fire and after the fire is:
$ __
INSTRUCTION NO. 4
If you determine from the evidence presented that Clay Mohon failed to exercise ordinary care when he started a fire that caused damage to Stacy Webb's farm, you will award her the difference between the fair market value of the personal property immediately before the fire and immediately after the fire.
We, the jury, find that the difference in fair market value of the personal property before the fire and after the fire is:
$ __
We note that the instructions also contained a definition "fair market value."
After deliberating for approximately twenty minutes, the jury returned verdict forms with zeroes in the blank lines in both instructions. The court read the verdicts, dismissed the jurors, and then noted that it was impossible to discern if the jurors believed Mohon was not negligent or that Webb's property had no value. Nonetheless, the court entered a judgment consistent with the verdict and Webb filed a motion for a new trial and for judgment notwithstanding the verdict. The court denied Webb's motion and Webb appealed.
We agree with the trial court that the jury instructions are unclear. However, neither party asked the court to give instructions that made separate queries regarding negligence and damages. Because neither party objected, and Webb has not directly raised any issue with regard to the jury instructions on appeal, we do not address their adequacy herein. However, we note that it would have been better to have the jury first determine if Mohon was negligent, then, depending on that determination, address the award of damages.
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STANDARD OF REVIEW
"On a motion for directed verdict, the trial [court] must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion." Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky. 1992). Before the trial court removes a case from the hands of the jury, it must find that there is a complete absence of proof on a material issue or no disputed issues on which reasonable minds could differ. Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382 (Ky. 1985).
When reviewing the trial court's ruling on a motion for directed verdict, this Court must consider all evidence favoring the prevailing party as true and may not determine the credibility or weight to be given the evidence. Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461 (Ky. 1990). This Court cannot substitute its judgment for that of the trial court unless that court's ruling was clearly erroneous. Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998). The trial court's determination is not clearly erroneous if it is supported by evidence of substance. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). The standard of review regarding a trial court's denial of a motion for judgment notwithstanding the verdict is the same as the standard for a denial for a motion for directed verdict. Prichard v. Bank Josephine, 723 S.W.2d 883, 885 (Ky.App. 1987). With the preceding standards in mind, we address the issues raised by Webb on appeal.
ANALYSIS
As noted above, Webb argues that the trial court erred when it denied her motions for directed verdict and judgment notwithstanding the verdict. According to Webb, because Mohon admitted that he lit the dark fires, which caused the fire that destroyed Webb's property, no reasonable person could have found that Mohon was not negligent. We disagree.
A negligence action requires proof that the defendant owed a duty of care, the defendant breached the standard of care by which his or her duty is measured, and injury as a result of that breach. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). It is not disputed that Mohon owed Webb a duty of care or that Webb suffered injury. However, in addition to proving a duty of care and injury, Webb was required to prove that Mohon breached his duty of care. This she failed to do.
Mohon testified that he had built and/or retro-fitted dark fire barns in the past and that this barn was consistent with the others. Furthermore, Mohon testified that he lit and tended the dark fires in question just as he had in the past. Finally, Mohon testified that he checked on the dark fires the morning of the fire; he knew that Parrett checked on the dark fires throughout the day; and he paid Robertson to check on and tend to the dark fires that day. There was no evidence to the contrary. Faced with this evidence, the jury could have reasonably concluded that Mohon exercised "such care as . . . an ordinarily prudent person . . . [would] under similar circumstances." Because the jury's verdict was supported by evidence of substance, the court's denial of Webb's motions was not in error.
Webb also argues that this is a case of res ipsa loquitor, i.e. that Mohon's negligence is the only explanation for the fire. The requirements for res ipsa loquitor, are:
(1) The defendant must have had full management and control of the instrumentality which caused the injury.Cox v. Wilson, 267 S.W.2d 83, 84 (Ky. 1954).
(2) The circumstances must be such that, according to common knowledge and the experience of mankind, the accident could not have happened if those having control and management had not been negligent.
(3) The plaintiff's injury must have resulted from the accident.
In Cox, a number of passengers were injured when a tire on a bus blew, and the bus ran off the road. The trial court, after finding that the plaintiffs had failed to prove any negligence, directed a verdict in favor of the defendants. The plaintiffs appealed arguing that they had satisfied all of the elements of res ipsa loquitor. The former Court of Appeals noted that the tires had been inspected before the trip, the tire that ruptured had been driven for only half of its life expectancy, the road was paved and relatively smooth, and the driver was driving at a reasonable speed. Under these conditions, the Court concluded that the tire "might well have ruptured without negligence on the part of anyone connected with the suit" and determined that the doctrine of res ipsa loquitor did not apply. Id. at 85.
Furthermore, the Court stated that:
The fact that some mystery accompanies an accident does not justify the application of the doctrine of res ipsa loquitur [sic]. The fact that we cannot pinpoint an act of omission or commission wherein one fails to respect the rights of others does not summon its use. A lack of knowledge as to the cause of the accident does not call for the application of the doctrine. The separate circumstances of each case must be considered and from them it must be first decided whether[,] according to common knowledge and experience of mankind, this accident could not have happened if there had not been negligence.Id. at 84.
As in Cox, the accident herein could have occurred without any negligence on the part of Mohon. The fire could have spread because of something Robertson or some other third party did or did not do, because of a shift in the wind, because a piece of tobacco fell unexpectedly, or any of a number of other reasons. The doctrine of res ipsa loquitor does not apply simply because there is no evidence to explain why the fire spread. As noted in Cox, the doctrine would only apply if the sole explanation for why the fire spread was Mohon's negligence. Because there are other possible explanations, Webb's argument regarding res ipsa loquitor is not persuasive.
Finally, we note Webb's argument that no reasonable jury could have failed to award damages. However, as noted above, there was sufficient evidence to support the jury's finding that Mohon was not negligent. Absent negligence, there can be no award of damages. Therefore, we discern no error in the trial court's denial of Webb's motions regarding the jury's failure to award damages.
CONCLUSION
There was sufficient evidence to support the jury's verdict; therefore, we affirm the trial court's denial of Webb's motions for directed verdict and judgment notwithstanding the verdict.
ALL CONCUR. BRIEFS FOR APPELLANT: Lester Bennett Guier
Hopkinsville, Kentucky
BRIEF FOR APPELLEE: Griffin Terry Summer
Nancy B. Loucks
Louisville, Kentucky