Emilie Fojan v. Scott Mallory ( 2023 )

RENDERED: JANUARY 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0981-MR
EMILIE FOJAN APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE JEREMY M. MATTOX, JUDGE
ACTION NO. 17-CI-00617
SCOTT MALLORY AND
MALLORY FARMS OF KENTUCKY, LLC APPELLEES
AND NO. 2019-CA-0982-MR
SCOTT MALLORY AND
MALLORY FARMS OF KENTUCKY, LLC CROSS-APPELLANTS
APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE JEREMY M. MATTOX, JUDGE
ACTION NO. 17-CI-00617
EMILIE FOJAN CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, JONES, AND KAREM, JUDGES.
JONES, JUDGE: The Appellant/Cross-Appellee, Emilie Fojan, and the
Appellee/Cross-Appellant, Scott Mallory, own adjacent thoroughbred horse farms
in Scott County, Kentucky. Fojan sued Mallory and his farm, Mallory Farms of
Kentucky, LLC (collectively referred to herein as “Mallory”), after one of
Mallory’s stallions broke through the fence dividing their farms and allegedly
injured Fojan’s horses. Following a jury trial, the trial court entered judgment in
favor of Mallory and dismissed Fojan’s complaint “in its entirety, with prejudice.”
For the reasons set forth below, we affirm the trial court’s ultimate judgment in
favor of Mallory.
I. BACKGROUND
Fojan’s and Mallory’s thoroughbred horse farms are adjacent to one
another. At the time of the incident giving rise to the underlying suit, one of the
paddocks on Mallory’s farm housed a large, grey teaser stallion.1 On the morning
of September 2, 2017, Fojan awoke to perform her usual farm chores. As she was
walking to her barn, she saw Mallory’s teaser stallion in one of her paddocks with
1
As described in Fojan’s brief, “[a] teaser stallion is a male horse that is used to determine
whether a mare is in heat and, thus, ready to be bred.” Appellant’s Brief at 3.
-2-
her mare, Pilaf. According to Fojan, Pilaf was in season and the teaser was trying
to mate with her. Pilaf’s four-month-old foal, Pilaf ’17, a colt, should have been in
the paddock with his dam, but he was not there.
Fojan tried to remove the stallion from the paddock herself, but the
task was too difficult for her to accomplish alone because the stallion, who was
quite intent on remaining with Pilaf, was not wearing a halter. At that point, Fojan
fetched her farm hand for help and telephoned Mallory to come and get his
stallion. Around this same time, Fojan found Pilaf ’17 outside the paddock looking
shaken and beaten up with scrapes and bruises about his body.
After seeing to the foal’s safety, Fojan’s attention returned to
removing the stallion from her farm. For around ninety minutes, Fojan, Mallory,
and the farmhand tried to cajole and corral the stallion back to Mallory’s farm,
during which time the stallion charged an all-terrain vehicle Fojan was driving.
The vehicle was damaged, but luckily, Fojan did not suffer any physical injury.
Eventually, the three were able to return the stallion to Mallory’s farm.
A few months after the incident, Fojan filed suit against Mallory in
Scott Circuit Court. In addition to Pilaf ’17, Fojan alleged that Mallory’s stallion
injured three of her other horses during his rampage: a two-year-old gelding in
training, Optimal; and two yearlings, Matilda ’16 (a filly) and Pilaf ’16 (a colt).
-3-
As amended, Fojan’s complaint alleged claims for strict liability pursuant to
Kentucky’s fence-breaking statutes, KRS2 256.080 and KRS 256.090, and
common law negligence. She requested compensatory damages for the diminution
in the horses’ values, lost breeder’s awards, care and upkeep for horses she alleges
she was not able to sell due to the alleged injuries, and emotional distress.
On March 20, 2019, in response to both parties’ motions for summary
judgment, the trial court entered a partial summary judgment order. The trial court
ultimately determined that there were disputed issues of material fact regarding
liability under the fence-breaking statutes and negligence. However, it determined
that Fojan’s damages were limited to any diminution in value to Pilaf ’17 and
Matilda ’16 and her emotional distress.
As limited by the partial summary judgment orders, Fojan’s surviving
claims were tried before a Scott County jury in March 2019. The jury’s verdict,
which was rendered through answers to a series of interrogatories, was as follows:
(1) the fences on Fojan’s property were lawful; (2) the fences on Mallory’s
property were lawful; (3) Mallory’s stallion broke the lawful fences on Fojan’s
property; (4) Mallory’s stallion did not cause injury or damage to Fojan’s horses
while on her farm; (5) Mallory did not fail to exercise ordinary care nor was any
failure on Mallory’s part to exercise ordinary care a substantial factor in causing
2
Kentucky Revised Statutes.
-4-
any injuries to one or more of Fojan’s horses; and (6) Fojan failed to exercise
ordinary care, and her failure to do so was a substantial factor in causing injury to
one or more of the horses on her farm. Most confusingly, despite having
determined that Mallory did not breach his duty to exercise ordinary care, the jury
assigned fifty percent of the “total fault” for Fojan’s damages to Mallory. The jury
then determined that neither Pilaf ’17 nor Matilda ’16 suffered any loss of value as
a result of the incident on September 2, 2017, but it awarded Fojan $75,000 for her
emotional distress.
After the jury returned its verdict, the trial court and counsel
immediately conferred at the bench in an attempt to interpret the jury’s findings:
MALLORY’S COUNSEL: It seems like you’ve got –
they said no on negligence. Then they said yes on strict
liability, but they only order[ed] pain and suffering,
which means – there’s not – there’s no strict liability for
– we’ll talk about that down the road, but that’s what
they did. They said – just as we described, they said they
both had lawful fences and they said that – that looks like
strict liability attaches, but they’d said no on the
negligence. They apportioned it. I don’t know how they
– that’s the part I’m not understanding.
FOJAN’S COUNSEL: What is it, there’s additional –
oh, they said that he did not fail to exercise the ordinary
care –
MALLORY’S COUNSEL: Right, but they –
FOJAN’S COUNSEL: – but they still apportioned it. So,
it’s –
-5-
MALLORY’S COUNSEL: That’s the –
FOJAN’S COUNSEL: – an inconsistent verdict.
MALLORY’S COUNSEL: That’s the part –
THE COURT: That’s what I was –
MALLORY’S COUNSEL Well, you – they should
never have gotten to that page.
FOJAN’S COUNSEL: Yeah –
THE COURT: But the problem is the way the
instructions were written, they perceived [] – it did not
contemplate them in not finding him – once they found
that he didn’t –
MALLORY’S COUNSEL: It should have stopped.
THE COURT: It should have stopped.
MALLORY’S COUNSEL: Well, and I think it
effectively did stop if they – if you go past instruction –
if it’s inconsistent with the previous one, the subsequent
instruction doesn’t matter, because they should have
never got to that point.
FOJAN’S COUNSEL: But I think as a total it’s an
inconsistent verdict and, I mean, that’s their verdict.
MALLORY’S COUNSEL: Yeah, I mean, I don’t think
there’s anything we can do about that now.
FOJAN’S COUNSEL: No.
MALLORY’S COUNSEL: You don’t – I agree with you
at that point. We just deal with it down the road.
-6-
THE COURT: Okay. Is there anything, any motions
regarding the jury or anything like that or [am I] free to
discharge them and thank them for their service?
FOJAN’S COUNSEL: I – I think you – I think you can
discharge. And of course, either one or both of us will
have various motions –
MALLORY’S COUNSEL: Yeah, sure.
FOJAN’S COUNSEL: – dealing with this. But that’s an
odd – I mean, a very odd verdict.
THE COURT: Okay. Do you all want a copy of it to
take with you?
FOJAN’S COUNSEL: Yeah.
MALLORY’s COUNSEL: Yeah, please.
(Record (R.) at 1856-58.) After the jury’s verdict, the trial court entered a
judgment in favor of Mallory, denying Fojan the emotional distress damages
awarded by the jury. In doing so, the trial court concluded:
although the jury concluded that [Fojan] suffered
emotional distress, the jury previously concluded that
[Mallory] was not guilty of negligence or a violation the
duty to exercise ordinary care, thus there was no basis to
impose damages against the Defendants for these
damages as K.R.S. 256.080 does not apply to emotional
distress damages. As the jury did not find for [Fojan] on
general negligence claims against [Mallory], [Fojan’s]
claim for emotional distress is not recoverable.
(R. at 1175.) Fojan subsequently moved the trial court for judgment
notwithstanding the verdict or, alternatively, to set aside the judgment and grant a
-7-
new trial. The trial court denied the motion. This appeal and cross-appeal
followed.
II. ANALYSIS3
A. Partial Summary Judgment
Summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR4 56.03. The
movant bears the initial burden of demonstrating that there is no genuine issue of
material fact in dispute.
The party opposing the motion then has the burden to present, “at
least some affirmative evidence showing that there is a genuine issue of material
fact for trial.” Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 482 (Ky.
1991); Watson v. Landmark Urology, P.S.C., 642 S.W.3d 660, 666 (Ky. 2022). “A
party responding to a properly supported summary judgment motion cannot merely
rest on the allegations in its pleadings.” Versailles Farm Home and Garden, LLC
v. Haynes, 647 S.W.3d 205, 209 (Ky. 2022) (citing Continental Cas. Co. v.
3
We have elected to address the issues in a slightly different order than presented by the parties
in their briefs.
4
Kentucky Rules of Civil Procedure.
-8-
Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955)). “[S]peculation
and supposition are insufficient to justify a submission of a case to the jury, and
that the question should be taken from the jury when the evidence is so
unsatisfactory as to require a resort to surmise and speculation.” O’Bryan v. Cave,
202 S.W.3d 585, 588 (Ky. 2006) (quoting Chesapeake & Ohio Ry. Co. v. Yates,
239 S.W.2d 953, 955 (Ky. 1951)).
Fojan asserts the trial court erroneously granted summary judgment to
Mallory with respect to her claims for the injuries she alleged to Optimal and Pilaf
’16. At the time of the September 2017 incident, Optimal was two years old and in
race training on Fojan’s farm. While Fojan claims Optimal was injured by
Mallory’s stallion during the incident, the horse did not treat with a veterinarian
that fall for any injuries associated with the incident. In November 2017, Optimal
began training at the Thoroughbred Training Center in Lexington, Kentucky, and
later that month was transferred to Evangeline Training Center in Carencro,
Louisiana, where he remained until March 2018 when he returned to Kentucky to
continue his training at Keeneland Racetrack. While in Louisiana, Optimal began
developing fluid on his knee; however, no expert has testified that the fluid
retention is related to any injury the horse might have received as part of the
September 2017 incident.
-9-
Pilaf ’16 was a yearling at the time of the incident. While Pilaf ’16
did not receive any medical treatment for injuries allegedly received as a result of
the incident, he was examined by Dr. Robert Cook, D.V.M., in mid-October 2017
in preparation for the yearling sale later that month. Dr. Cook reported no
abnormalities, and Pilaf ’16 was entered in the sale as planned. He was sold to
Rockingham Ranch for $40,000, with Fojan retaining a 20% interest. Shortly after
the sale, Pilaf ’16 was sent to South Carolina. As noted by the trial court, since
Pilaf ’16 left Kentucky, there has been no evidence of defects in his current
condition.
As related to causation with respect to Optimal and Pilaf ’16 the trial
court concluded that it would be impossible for Fojan to prevail at trial without
resorting to speculation. The court explained:
There is far too great a passage of time and too many
potential intervening events to proceed based solely on
circumstantial evidence. In absence of expert medical
proof and the inapplicability of circumstantial evidence
summary judgment is granted regarding claims related to
these horses.
(R. at 906.) We agree with the trial court’s conclusion in this regard and adopt it as
our own.
Next, we consider whether the trial court correctly rejected Fojan’s
claim for diminished breeder’s awards as related to the four horses at issue. We
agree with the trial court that the evidence was entirely too speculative to present
-10-
to the jury. Pedigree alone cannot predict a horse’s success at the racetrack. These
were very young, unraced horses. As the trial court concluded, “Fojan’s claimed
damages for breeder’s awards are entirely speculative upon something that was yet
to happen, never happened, and has in no way been proven likely to happen.” (R.
at 910.) Based on the facts of this case, we hold that the trial court appropriately
granted Mallory partial summary judgment with respect to Fojan’s claim for lost
breeder’s awards.5
Fojan next argues that the trial court also incorrectly determined that
she could not seek damages related to aftercare of horses she was unable to sell due
to the alleged injuries by the stallion, notably Pilaf ’17, who she claimed was
rendered lame and unable to race. As explained in more detail below, because the
jury found that the stallion did not injure any of Fojan’s horses, this question is
moot, and we decline to address it in any further detail.6
5
Whether such damages might be available under a different set of facts, for example, if the
horses already had established and successful racing careers, is not an issue before this Court,
and not one that needs to be decided at this time.
6
Nevertheless, we note that we do not disagree with the trial court’s analysis that the proper
measure of damages for the horses, items of personal property, is the diminution in their value.
“It is the law in this Commonwealth that the proper measure of damages for injury to personal
property is the difference in the fair market value of the property before and after the [incident].”
McCarty v. Hall, 697 S.W.2d 955, 956 (Ky. App. 1985) (citations omitted).
-11-
B. Emotional Distress
Before addressing the remaining issues Fojan raises concerning the
instructions and the jury’s verdict, we must first consider the single issue raised by
Mallory’s cross-appeal regarding Fojan’s claim for emotional distress. According
to Mallory, Fojan’s claim for emotional distress damages should never have
reached the jury in the first instance because Fojan failed to put forth any expert
proof to support the claim.
The proof necessary to support an emotional distress claim has been
an evolving and sometimes confusing area of our jurisprudence. In Osborne v.
Keeney, 399 S.W.3d 1, 17 (Ky. 2012), the Supreme Court abandoned the
traditional impact rule for emotional distress damages, holding that, going forward,
cases seeking recovery for negligent infliction of emotional distress should be
analyzed according to “general negligence principles.” Id. However, the Court
limited recovery to cases where the emotional injury is “severe” or “serious.” The
Court further held that “a plaintiff claiming to have suffered severe or serious
emotional distress damages must present expert medical or scientific proof to
support the claimed injury or impairment.” Id. at 18.
Following Osborne, most courts required expert proof any time a
plaintiff sought to recover damages for emotional distress. Keaton v. G.C.
Williams Funeral Home, Inc., 436 S.W.3d 538, 544-45 (Ky. App. 2013). In
-12-
Indiana Insurance Company v. Demetre, 527 S.W.3d 12 (Ky. 2017), the Kentucky
Supreme Court confronted the question of Osborne’s reach when emotional
distress damages are being sought pursuant to a statute and not simply as part of a
common-law negligence claim.
Ultimately, the Court determined that the Osborne rule applied only to
common law intentional or negligent infliction of emotional distress claims. Stated
differently, the Court held that Osborne’s requirement of expert testimony does not
apply to emotional distress damages claimed as part of statutory or contractually
based causes of action. Id. at 36.
Accordingly, we hold that Osborne’s requirement of
expert medical or scientific proof is limited to claims of
intentional or negligent infliction of emotional distress.
Our conclusion is due in part to the recognition that
claims for emotional damages grounded in breach of
contract or violation of statute, such as those alleged by
Demetre in the case at bar, are less likely to be fraudulent
than those advanced under a free-standing claim of
intentional or negligent infliction of emotional distress.
To evaluate whether emotional damages are appropriate
in those cases that do not allege the free-standing torts of
intentional or negligent infliction of emotional distress,
we have historically relied on our trial courts and the jury
system to evaluate the evidence and determine the merits
of the alleged claims. See Curry [v. Fireman’s Fund, Ins.
Co., 784 S.W.2d 176, 178 (Ky. 1989)] (“Throughout the
history of Anglo-American law, the most important
decisions societies have made have been entrusted to
duly empaneled and properly instructed juries. Decisions
as to human life, liberty and public and private property
have been routinely made by jurors and extraordinary
confidence has been placed in this decision-making
-13-
process.”); Goodson [v. American Standard Ins. Co., 89
P.3d 409, 417 (Colo. 2004)] (“[T]he jury system itself
serves as a safeguard; we routinely entrust the jury with
the important task of weighing the credibility of evidence
and determining whether, in light of the evidence,
plaintiffs have satisfied their burden of proof.”). We see
no compelling reason to depart from this view.
Id. at 39.
The claim at issue in Demetre was based on an alleged violation of the
Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices
Act. As noted by the Court “damages for anxiety and mental anguish” are
recoverable in an action for statutory bad faith. Id. Therefore, because Demetre’s
statutory cause of action permitted recovery for emotional distress damages, he did
not have to resort to proving entitlement to those damages through a free-standing
negligence claim and did not have present expert testimony as required by
Osborne. Id.
Here, while Fojan alleged a statutory cause of action predicated on
Kentucky’s fence-breaking statutes, the statutes relied on by Fojan only allow
recovery for certain kinds of property damage. See KRS 256.080 (“If any
livestock enter into any land over or through a lawful fence, the owner or manager
of the livestock shall for the first trespass be liable to the owner or occupant of that
land for damages to his or her trees, grass, grain, crops, livestock or land as he or
she may have sustained by the entry of the livestock, and for every subsequent
-14-
trespass by the livestock of the same owner, double damages.”) (emphasis added).
Unlike the statutes at issue in Demetre, the fence-breaking statutes do not allow for
recovery of emotional distress damages. Fojan’s recovery for emotional distress
hinges on her ability to demonstrate free-standing negligence; emotional distress
damages predicated on a negligence claim fall squarely within Osborne’s rule
requiring expert medical or scientific proof to support the claimed injury or
impairment. Because Fojan had no such proof, the trial court erred in allowing
Fojan’s claim for negligent infliction of emotional distress to reach the jury.
Because emotional distress was the only category of damages the jury
awarded as part of Fojan’s negligence claim, the internal inconsistencies with
respect to interrogatories two and four are moot. Therefore, although we disagree
that the trial court should have allowed the Fojan’s claim for emotional distress
damages to reach the jury in the first instance, we agree with its ultimate decision
not to award Mallory any damages for emotional distress.
C. Strict Liability
The next issue we must resolve is Fojan’s argument that the trial court
erroneously instructed the jury regarding the number of horses at issue in the strict
liability interrogatories. She asserts Interrogatory No. 1(D), which asked the jury
whether “[t]he teaser stallion caused injury and damage to Emilie Fojan’s horses,”
likely caused the jury to believe it could not find for her unless it found both horses
-15-
were damaged, rather than only one horse. In its order denying Fojan’s post-
judgment motions, the trial court asserted that Fojan did not call the court’s
attention to the asserted significance of the “both horses” language, and so the
objection was not preserved. Further, the trial court reasoned that even if the
objection was preserved, the jury unequivocally found in Instructions 5 and 6 that
neither horse sustained damages warranting recovery.
We agree with the trial court’s reasoning on both points. Our civil
rules are clear:
No party may assign as error the giving or the failure to
give an instruction unless he has fairly and adequately
presented his position by an offered instruction or by
motion, or unless he makes objection before the court
instructs the jury, stating specifically the matter to which
he objects and the ground or grounds of his objection.
CR 51(3). Although Fojan submits that her tendered instruction, using the
language “one or more of her horses” preserved the claim of error, we disagree.
“[A] tendered instruction will not fairly and adequately present the party’s position
as to an allegation of instructional error when . . . the minor differences between
the language of the tendered instruction and the instruction given by the trial court
would not call the trial court’s attention to the alleged error[.]” Sand Hill Energy,
Inc. v. Smith, 142 S.W.3d 153, 163-64 (Ky. 2004) (footnotes omitted); see also
Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 709-11 (Ky. 2020). In
Sand Hill Energy, the Kentucky Supreme Court quoted with approval the former
-16-
Court of Appeals in its pithy summary of the rule: “The instruction tendered by
him does not point up the claimed error; thus he is not in a position to complain
now.” Sand Hill Energy, 142 S.W.3d at 164 n.20 (quoting Miller v. Quaife, 391
S.W.2d 682, 684 (Ky. 1965)).
We agree with the trial court that Fojan’s proffered instruction,
without further comment or objection prior to the court’s version being
disseminated to the jury, was insufficient to preserve this specific objection.
Furthermore, the trial court correctly ruled the jury later determined damages to
each horse individually, showing that Fojan’s concern regarding the court’s use of
plural “horses” in Interrogatory 1(D) was unfounded. We discern no error.
Lastly, Fojan argues a new trial should be instructed on KRS 256.090,
arguing that the statute applies strict liability to owners of livestock when they
have been put on notice that there have been previous escapes. Because Mallory’s
horses had escaped his property on one previous occasion, Fojan argues the jury
should have been instructed on KRS 256.090 in addition to KRS 256.080.
The jury in this case determined that Fojan’s property and Mallory’s
property were both enclosed by lawful fences. By its own language, KRS 256.090
does not apply in cases where livestock trespass on enclosed land. Additionally,
since the jury determined the stallion did not cause any injury to Fojan’s horses
while on her property this issue is moot.
-17-
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT/ BRIEFS FOR APPELLEES/
CROSS-APPELLEE: CROSS-APPELLANTS:
Richard M. Rawdon, Jr. Darrin W. Banks
Georgetown, Kentucky Paintsville, Kentucky
-18-