Eric Jenkins v. The Estate of Marie Garmon, by David Garmon ( 2023 )

RENDERED: AUGUST 18, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0173-MR
ERIC JENKINS; ATLAS
EXCAVATING, LLC A/K/A ATLAS
EXCAVATING/ATLAS TRUCKING;
CLINT RUSSELL; AND AMANDA
RUSSELL APPELLANTS
APPEAL FROM ANDERSON CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 12-CI-00395
THE ESTATE OF MARIE GARMON,
BY DAVID GARMON,
ADMINISTRATOR; DAVID
GARMON, INDIVIDUALLY; DAVID
GARMON AS PARENT AND
GUARDIAN OF JOHN PAUL
GARMON; DAVID GARMON AS
PARENT AND GUARDIAN OF
MARLIE FORBES GARMON; JOHN
PAUL GARMON, INDIVIDUALLY;
KENTUCKY EMPLOYERS SAFETY
ASSOCIATION, INC.; AND MARLIE
FORBES GARMON, INDIVIDUALLY APPELLEES
AND
NO. 2020-CA-0174-MR
THE ESTATE OF MARIE GARMON
BY DAVID GARMON,
ADMINISTRATOR; DAVID
GARMON, INDIVIDUALLY; DAVID
GARMON AS PARENT AND
GUARDIAN OF JOHN PAUL
GARMON; AND DAVID GARMON
AS PARENT AND GUARDIAN OF
MARLIE FORBES GARMON APPELLANTS
APPEAL FROM ANDERSON CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 12-CI-00395
MAGO CONSTRUCTION COMPANY,
LLC; ATLAS EXCAVATING/ATLAS
TRUCKING; ERIC JENKINS;
AMANDA BRADSHAW, NOW
KNOWN AS AMANDA RUSSELL;
CLINT RUSSELL; NATIONAL
INDEMNITY COMPANY OMAHA;
AND KENTUCKY EMPLOYERS
SAFETY ASSOCIATION, INC. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
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JONES, JUDGE: These appeals arise out of a motor vehicle accident that occurred
between the decedent, Marie Garmon, and Eric Jenkins, a dump truck driver who
was hauling asphalt for Atlas Excavating, LLC (“Atlas”), a defunct Kentucky
limited liability company, owned by Clint and Amanda Russell (“the Russells”),
pursuant to an agreement Atlas had with Mago Construction Company (“Mago”)
to haul asphalt between Mago’s asphalt plant and Mago’s jobsite at Bluegrass
Parkway.
The Garmons filed a wrongful death suit against Jenkins, Atlas, the
Russells, and Mago.1 The trial court granted summary judgment to Mago on the
basis that Atlas was an independent contractor and Mago was neither vicariously
liable for the actions of Atlas and Jenkins at the time of the accident, nor could the
Garmons prevail against Mago for its alleged independent negligence. Thereafter,
in late September 2019, the Garmons’ claims against Jenkins, Atlas, and the
Russells were tried before a jury. Ultimately, the jury determined that Jenkins and
Atlas/the Russells were each fifty percent at fault for Marie’s death. The jury
awarded $32,144,971.88 in damages to the Garmons, which included a five-
million-dollar award for Marie’s pain and suffering before her death, five million
1
Because Atlas had been administratively dissolved as a company, the trial court allowed the
Garmons to proceed against Atlas’s owners, Clint and Amanda Russell. The Russells have not
challenged their inclusion on this basis.
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dollars each to Marie’s husband and her two children for loss of consortium, and
ten million dollars in punitive damages.
Atlas and the Russells now appeal the judgment, arguing the trial
court should have granted them a new trial based on a multitude of alleged errors,
in Appeal No. 2020-CA-0173-MR.2 The Garmons appeal the trial court’s order
granting Mago summary judgment in Appeal No. 2020-CA-0174-MR. This Court
consolidated the appeals to be heard by the same panel. Now, having reviewed the
record and being otherwise sufficiently advised, we affirm the judgments before us
in these two appeals.
I. BACKGROUND
Around 4:00 p.m., on the afternoon of September 7, 2012, Jenkins
was driving an empty Atlas dump truck eastbound on Highway 62, a two-lane
road, in Anderson County, Kentucky; his intended destination was Mago’s Tyrone
asphalt plant in Lawrenceburg. Around the same time, Marie, a forty-three-year-
old hospice nurse, was driving her minivan in the opposite direction on Highway
62; she was on her way home after having visited one of her patients.
2
Jenkins did not appeal, and he has not filed any briefs before this Court.
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Shortly before Marie and Jenkins crossed paths, the car immediately
in front of Jenkins put on its turn signal and slowed to make a left-hand turn.3
Jenkins applied his brakes but, seeing that he was not going to be able to stop in
time, swerved to the left to avoid crashing into the car. The dump truck skidded
across the center line towards Marie’s minivan. Marie was not able to get out of
the way in time, and Jenkins’s dump truck crashed into Marie’s minivan. Both
vehicles came to rest on the westbound shoulder of Highway 62, with Marie’s
minivan pinned under Jenkins’s dump truck.
Marie was conscious, alert, and talking while first responders worked
to extract her from the wreckage. Due to the nature of her work as a nurse, Marie
was aware of the severity of her injuries and the very real possibility that she was
going to die from them. She expressed concern about leaving her children
motherless. Once she was freed, Marie was loaded onto a helicopter and
transported to the University of Kentucky’s hospital in Lexington. First responders
testified that Marie remained conscious throughout the extraction and helicopter
ride and that she reported being in excruciating physical pain. Marie died from her
injuries five days after the accident.
3
Jenkins’s version of events has changed over time; he first denied that the car in front of him
used its turn signal. By the time of this trial, however, Jenkins admitted to seeing the car’s turn
signal shortly before the wreck.
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Jenkins was also attended to by first responders at the scene of the
accident. None of the first responders who attended to Jenkins suspected him of
being impaired or intoxicated. However, blood tests taken at the hospital at
approximately 7:30 p.m. the evening of the accident revealed the presence of drugs
in Jenkins’s system, specifically, “diazepam 294 ng/mL, 11-Nor-caboxy THC,
Delta 9 THC 2 ng/ML, [and] nordiazepam 450 ng/mL.” Jenkins subsequently
admitted smoking marijuana less than twenty-four hours prior to the accident and
taking the prescription drugs Valium and Lortab on the day of the accident.
Ultimately, the Garmons filed a wrongful death suit against Atlas, the
Russells, Jenkins, and Mago. Prior to trial, the lower court granted Mago summary
judgment, leaving only the Garmons’ claims against Atlas, the Russells, and
Jenkins. Following extensive motion practice, a flurry of motions in limine, and
two mistrials, a jury trial began on September 30, 2019, and was completed on
October 3, 2019. The Anderson County jury returned a verdict in favor of the
Garmons, apportioning fifty percent of the fault to Jenkins and fifty percent to
Atlas/the Russells. The jury awarded the Garmons a total of $32,144,971.88 in
compensatory and punitive damages, broken down as follows: (1) medical
expenses, $315,278.63; (2) Marie’s loss of future income, $1,802,110; (3) Marie’s
pain and suffering, $5,000,000; (4) David’s loss of spousal consortium claim,
$5,000,000; (6) John’s loss of parental consortium claim, $5,000,000; (7) Marlie’s
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loss of parental consortium claim, $5,000,000; (7) property damage, $13,881; (8)
funeral expenses, $13,702.25; and (9) punitive damages, $10,000,000.
Following an unsuccessful motion for a new trial, Atlas and the
Russells appealed the judgment against them, and the Garmons appealed the trial
court’s summary judgment orders in favor of Mago.
II. APPEAL NO. 2020-CA-0173-MR
Atlas and the Russells (referred to collectively as “the Atlas
Appellants” in this section of the Opinion) raise a plethora of issues they contend
warrant vacating the judgment against them and remanding for a new trial. Their
many assignments of error are best categorized as: (1) admission of evidence
related to Jenkins’s use of controlled substances and impairment, which they claim
were unduly prejudicial and overly speculative; (2) improper and inflammatory
statements made by the Garmons’ trial counsel during closing arguments, which
they maintain incited the jury’s prejudice and caused the jury to award excessive
damages; (3) errors in the jury instructions; and (4) the improper admission of
evidence related to the Atlas Appellants’ failure to abide by state and federal
regulations and to properly maintain the dump truck at issue. We address the
claimed errors below.
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A. Admission of Impairment-Related Evidence
“[A]buse of discretion is the proper standard of review of a trial
court’s evidentiary rulings.” Goodyear Tire and Rubber Co. v. Thompson, 11S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
“Rulings upon admissibility of evidence are within the discretion of the trial
judge,” and we will not reverse absent a “clear abuse of discretion.” Simpson v.
Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994).
Jenkins admitted that he was using controlled substances, including
both prescription and illegal drugs, when he was hired by Atlas. Jenkins further
admitted smoking marijuana less than twenty hours before the accident and taking
both Lortab and Valium on the morning of the accident. After the accident, he was
criminally charged and pleaded guilty to manslaughter in the second degree4 and
operating a commercial vehicle under the influence of alcohol or other controlled
substances.5 At trial, the Garmons were permitted to introduce evidence and
testimony of Jenkins’s drug use prior to the accident, including the hospital
4
Kentucky Revised Statutes (“KRS”) 507.040.
5
KRS 281A.210.
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toxicology reports, Jenkins’s guilty plea, and expert testimony concerning the
effect his drug usage may have had on the accident.
The Atlas Appellants argue that the trial court erred when it allowed
the Garmons to introduce such evidence at trial for the purpose of insinuating that
Jenkins was “intoxicated and otherwise impaired” prior to the accident. The Atlas
Appellants point out that none of the many first responders who interacted with
Jenkins at the scene of the accident believed him to be intoxicated or impaired.
According to the Atlas Appellants, even the Garmons’ own pre-trial expert, Dr.
George Nichols, admitted that the toxicology reports, standing alone, were
insufficient to establish whether Jenkins was legally impaired at the time of the
accident.6
The Atlas Appellants rely heavily on Burton v. Commonwealth, 300
S.W.3d 126 (Ky. 2009), to support their contention that “impairment” evidence
6
The Garmons initially identified Dr. Greg Davis as their expert to opine on whether Jenkins
was impaired at the time of this accident. Dr. Davis had assisted prosecutors in the criminal case
against Jenkins, and he was allegedly prepared to testify that Jenkins was impaired by his use of
THC and Valium when the accident occurred. Prior to trial, the Garmons filed a supplemental
pre-trial disclosure which withdrew Dr. Davis as a testifying expert and indicated that the
Garmons planned to call Dr. George Nichols, who had relied, in part, on Dr. Davis’s report, to
testify on their behalf. During pre-trial discovery, Dr. Nichols testified, contrary to Dr. Davis’s
report, that assessing impairment could not be determined based only on the toxicology reports
because substances affect each person differently and without having direct observation of
obvious signs of impairment it was not possible to definitively say whether Jenkins was impaired
at the time of the accident. However, at trial, the Garmons also called Kentucky State Trooper
Hunter Martin, a law enforcement accident reconstructionist employed by the State Police.
Trooper Martin testified that in his opinion, Jenkins was impaired at the time of the accident.
The Atlas Appellants have raised a separate assignment of error related to the admission of
Trooper Martin’s testimony.
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should not have been presented to the jury. Burton was convicted of second-
degree manslaughter, second-degree assault, and operating a motor vehicle with a
suspended license. Burton’s convictions stemmed from an automobile collision
that occurred on a rural two-lane road. The driver of the car Burton hit was killed
in the collision. Although Burton acted somewhat strangely at the scene and gave
inconsistent accounts of how the accident occurred, one of the investigating
officers wrote in his report that Burton did not appear to be under the influence.
After the Kentucky State Police later determined that Burton caused the accident
by crossing the center line, he was charged with various criminal offenses. During
his criminal trial, Burton sought to exclude hospital urinalysis reports revealing the
presence of THC and cocaine in his system on the basis that the reports did not
establish that he was impaired at the time of the accident. Burton pointed out that
the tests, standing alone, were incapable of showing in what quantities or when the
substances had been ingested. In concluding that the evidence should have not
been permitted, the Kentucky Supreme Court focused heavily on the fact that the
drugs at issue could have been ingested up to several days before the accident. The
Court held that “[a]bsent a proper context within the other evidence, the
introduction of urinalysis results only encouraged speculation.” Id. at 138.
There are numerous differences between this case and Burton, which
render it largely inapposite. First, the tests in Burton were urine tests, which the
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Court took pains to point out were considerably less specific than blood tests, the
type of tests at issue here. Second, the “proper temporal context” in this case was
supplied by Jenkins himself who testified without objection that he smoked
marijuana close in time to the wreck and took prescription Valium and Lortab on
the day of the wreck. The blood tests merely confirmed what Jenkins himself had
already admitted. Finally, Burton was a criminal case in which the
Commonwealth had to prove beyond a reasonable doubt that the defendant
violated specific criminal statutes. This was a negligence case requiring the jury to
determine by a preponderance of the evidence whether the Atlas Appellants and/or
Jenkins breached their duties of care and whether any such breaches were the
proximate cause of Marie’s death.
“[I]n the modern world of litigation, most aspects of human conduct
and interaction are governed by statutes and regulations that prescribe specific
duties.” Henson v. Klein, 319 S.W.3d 413, 421 (Ky. 2010). Notably, Jenkins had
a duty to obey all traffic laws, including traffic laws prohibiting commercial
operators from driving while taking any controlled substances. KRS 281A.210
(“[A] person shall not drive a commercial motor vehicle within this state while
having any measurable or detectable amount of alcohol or other controlled
substances in his system.”). In turn, Atlas and the Russells had a duty to properly
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screen and vet their employees to make sure they did not pose an unreasonable risk
to other drivers due to their ongoing use of controlled substances.
It is in the context of breach and causation that evidence of Jenkins’
drug use on the day of the accident is relevant. Contrary to the Atlas Appellants’
arguments, the Garmons did not have to establish a certain level of criminal
impairment or actual intoxication, rather, they had to establish that the Atlas
Appellants’ breaches of care were the proximate cause of the accident. Jenkins’s
admission that he took the drugs at issue just hours before the accident, provided
the necessary temporal proximity to allow introduction of the hospital reports and
other evidence of drug use alleged by the Garmons. In turn, those reports in
combination with Jenkins’s testimony and other evidence allowed the various
experts to offer an opinion as to whether Jenkins’s use of controlled substances
while driving his commercial dump truck was a substantial factor in causing
Marie’s death.
Again, we reiterate that this was a civil action based on the alleged
negligence of the Atlas Appellants and Jenkins; it was not a criminal case where
the Commonwealth had to prove beyond a reasonable doubt that Jenkins was
legally intoxicated. Rather, in this civil negligence action one of the issues was
whether Jenkins was operating a commercial vehicle with measurable amounts of
controlled substances in his system and whether his doing so was a substantial
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factor in causing Marie’s death.7 The toxicology reports and related evidence were
relevant to the issue, and not unduly prejudicial.
The Atlas Appellants also complain that the trial court erred by
allowing the Garmons to introduce Jenkins’s guilty plea and indictment. The
charges to which Jenkins pleaded guilty flowed out of the accident at issue. “On
the theory that it is an admission against interest, a plea of guilty to a criminal
charge is competent evidence in a civil case involving the same occurrence, but it
is not conclusive and may be explained.” Johnson v. Tucker, 383 S.W.2d 325, 326
(Ky. 1964). The Atlas Appellants had the opportunity to examine Jenkins
concerning his plea, and the trial court admonished the jury multiple times that the
guilty plea was not binding on them. While the Atlas Appellants may not like that
Jenkins’s guilty plea placed them in a worse position at trial, the fact is that the
Atlas Appellants were not unduly prejudiced by the admission of the plea. And
even without the plea, the Atlas Appellants would have still been faced with
Jenkins’s factual admissions that he took controlled substances on the morning of
the accident.
7
“[T]he legislature enacted Chapter 281A in order to apply more stringent controls to the
operators of commercial vehicles in light of the heightened likelihood of danger inherent in the
improper operation of their vehicles.” Beatus v. Commonwealth, 965 S.W.2d 167, 169 (Ky.
App. 1998). “[D]rivers of huge commercial vehicles bear a heavier burden as to sobriety – an
objective commensurate with the potentially greater havoc they would wreak on the public if
driving under the influence.” Id.-13-
Lastly, the Atlas Appellants assert that the trial court erred when it
allowed Kentucky State Trooper Hunter Martin, an accident reconstructionist, to
testify concerning the contribution of toxicology to the motor vehicle accident. In
sum, Trooper Martin testified that in his opinion based on his review of all the
relevant evidence, Jenkins’s drug usage contributed to this accident. Most notably,
in reaching his opinion, Trooper Martin relied on an opinion by Dr. Gregory Davis.
The Atlas Appellants claim the theories espoused by Dr. Davis were debunked by
the Garmons’ testifying expert, Dr. Nichols, who stated that in his opinion
impairment can only be based on personal or electronic observation.
Trooper Martin’s specific testimony was not objected to at trial.
Rather, prior to trial, Mago filed a motion in limine to exclude Dr. Davis’s
opinions; however, the Atlas Appellants themselves did not object to Trooper
Martin’s testimony at trial. In fact, the Atlas Appellants questioned Trooper
Martin on his opinions and chose to affirmatively admit Dr. Davis’s report as an
exhibit. Instead of objecting to this line of questioning, the Atlas Appellants chose
to pursue it. Having done so, they have no cause to complain.
Additionally, as an accident reconstructionist, Trooper Martin was
qualified to give an opinion regarding the cause of the accident. While Trooper
Martin relied, in part, on Dr. Davis’s report, he also considered Jenkins’s
admissions regarding his drug use hours before the accident, the toxicology
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reports, and the facts surrounding the accident to formulate his conclusion that
Jenkins’s use of controlled substances contributed to the accident. Trooper Martin
was qualified to give such an expert opinion, and the Atlas Appellants were
entitled, as they did, to attack the basis of it. Commonwealth v. Alexander, 5
S.W.3d 104, 106 (Ky. 1999) (“The opinion rendered by Sergeant Simms concerned
a subject specifically within the knowledge of a trained accident reconstruction
expert and was likely to assist the jury in understanding the circumstances in which
Officer Alexander’s cruiser collided with Nesbitt’s vehicle.”).
There is no rule that a party’s experts must agree with one another or
that a party cannot call a witness whose opinions differ from those of one of its
experts. Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184 (Ky. App. 1987).
Although Dr. Nichols may not have been willing to state conclusively, based solely
on the toxicology reports, that the controlled substances in Jenkins’s system did or
did not impair his driving, we believe that Trooper Martin was well equipped to
draw on his expertise and to give his opinion on what factors contributed to the
accident. We cannot say that admission of Trooper’s Martin opinions was either
improper or unduly prejudicial to the Atlas Appellants.
B. Closing Arguments
The Atlas Appellants next argue that the trial court erred when it
refused to grant a new trial after the Garmons’ counsel trial “intentionally and
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repeatedly attacked the Atlas Appellants’ trial strategy and improperly argued that
the jury should consider the Atlas Appellants’ alleged wealth, and otherwise
engaged in personal attacks on defense counsel” during his closing arguments.
However, the Atlas Appellants cite to only two instances where their trial counsel
lodged objections to the closing arguments. The rest of the statements were not
specifically objected to during the trial.
This was an emotionally charged trial that involved the untimely death
of a wife and mother. The Garmons’ counsel certainly gave a spirited closing
argument. And some of those comments, when viewed in isolation, may have
been over-the-top. However, we must consider the closing argument “as a whole
while remembering that counsel is granted wide latitude during closing argument.”
Robinson v. Commonwealth, 647 S.W.3d 136, 143 (Ky. 2022) (internal quotation
marks and citations omitted). Our job on appeal is to determine whether the
closing argument inflamed the jury to such a degree that the Atlas Appellants were
prejudiced. While we do not necessarily condone every comment made by the
Garmons’ counsel during his closing argument, we are satisfied that the comments
when assessed in their proper context provide the Atlas Appellants no grounds for
relief from the judgment. Nami Resources Company, L.L.C. v. Asher Land and
Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018).
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C. Excessiveness of Damages
The Atlas Appellants next posit a related argument. They claim that
counsel’s improper arguments resulted in the jury awarding “excessive, grossly
disproportionate” compensatory and punitive damages. Apparently recognizing
that these arguments were not preserved below, they contend the damages in this
case are so excessive and “palpably against the evidence, so as to shock the
conscience and raise an [] inference that the jury was influenced by the passion
prejudice.”
“At the crux of [the Garmons’ loss of consortium] claim[s] is
compensation for loss of the most compelling of human relationships” that of wife
and mother. Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104, 111 (Ky. 2009).
“Loss of consortium . . . does not lend itself to simple quantification. The entire
inquiry rests on a speculative premise: the value of the decedent’s affection.”
Louisville SW Hotel, LLC v. Lindsey, 636 S.W.3d 508, 519 (Ky. 2021). The jury
is uniquely qualified to make such determinations, and “[i]f the verdict bears any
reasonable relationship to the evidence of loss suffered, it is the duty of the trial
court and this Court not to disturb the jury’s assessment of damages.” Hazelwood
v. Beauchamp, 766 S.W.2d 439, 440 (Ky. App. 1989).
The Garmons testified extensively concerning the effect Marie’s death
had on them. Considering this testimony, we cannot say that the loss of
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consortium damages awarded by the jury were so grossly excessive as to shock our
conscience or to raise an inference that the jury’s awards were the product of
prejudice as opposed to being based on the evidence and instructions provided to
them by the trial court.
The same analysis applies with respect to the pain and suffering
damages the jury awarded. The Kentucky Supreme Court has explained:
It is fundamental that a plaintiff is entitled to recover for
all of her pain and suffering caused by a defendant; that
is, that both physical and mental suffering merit
recovery. See Warfield Natural Gas Co. v. Wright, 246
Ky. 208, 54 S.W.2d 666 (1932); McVey v. Berman, 836
S.W.2d 445, 449 (Ky. App. 1992). “On such an issue as
this, where the extent of pain being suffered is not
capable of objective valuation, there really is no
satisfactory standard by which to measure an award of
damages.” McClain v. Star Cab Co., 346 S.W.2d 539,
540 (Ky. 1961). Further, it is inherent within our jury
system that juries may vary in their assessment of a
proper award.
Savage v. Three Rivers Medical Center, 390 S.W.3d 104, 121 (Ky. 2012).
The evidence at trial showed that Marie was conscious while
emergency personnel worked to extricate her from the wreckage and during her
transport to the hospital. She conversed with medical personnel and, due to her
own medical background, she was fully aware of the gravity of her injuries. She
reported being in excruciating pain and expressed an understanding of the
likelihood of her impending death once she was freed from the wreckage. “No
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question, the award was monumental but so was the injury. Clearly, the
relationship between the award and the injury in this case is not bizarre.” NKC
Hosps., Inc. v. Anthony, 849 S.W.2d 564, 569-70 (Ky. App. 1993).
We likewise fail to discern how the punitive damages award was
excessive. “Due process requires appellate courts to perform a de novo review of
the constitutionality of punitive damage awards.” Yung v. Grant Thornton, LLP,
563 S.W.3d 22, 65 (Ky. 2018). “The touchstone for determining whether a
punitive damage award is constitutional is whether the award is reasonable based
upon the facts of the case.” Id.Although high, the award in this case was proportionate to the
compensatory damages awarded by the jury and was made in the context of a wife
and mother killed by a commercial truck driver. The evidence was clear that
Jenkins had consumed controlled substances close in time to driving his truck, and
that the Atlas Appellants had not drug tested Jenkins as they should have done.
“All in all, it appears that the amount of the punitive damages award was rationally
imposed by the jury to serve the deterrent effect for which punitive damages were
designed[.]” Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 906 (Ky. 2008).
Finally, we give no credence to the Atlas Appellants’ argument that
the trial court’s judgment was inconsistent because it stated in one portion that that
the Garmons were “awarded $22,144,971.88” and in another that the amount of the
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judgment was “$32,144,971.88.” In the first instance, the trial court was clearly
referring to the fact that the jury awarded the Garmons “$22,144,971.88” in
compensatory damages as evidenced by the next sentence of the judgment which
begins, “further the jury awarded $10,000,000.00 in punitive damages.”
E. Jury Instructions
As we explained in Hamilton v. CSX Transp., Inc., 208 S.W.3d 272,
275 (Ky. App. 2006):
Alleged errors regarding jury instructions are considered
questions of law that we examine under a de novo
standard of review. Reece v. Dixie Warehouse and
Cartage Co., 188 S.W.3d 440, 449 (Ky. App. 2006).
“Instructions must be based upon the evidence and they
must properly and intelligibly state the law.” Howard v.
Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981). “The
purpose of an instruction is to furnish guidance to the
jury in their deliberations and to aid them in arriving at a
correct verdict. If the statements of law contained in the
instructions are substantially correct, they will not be
condemned as prejudicial unless they are calculated to
mislead the jury.” Ballback’s Adm’r v. Boland-Maloney
Lumber Co., 306 Ky. 647, 652-53, 208 S.W.2d 940, 943
(1948).
The Atlas Appellants first assert that the trial court erred in giving
Jury Instruction No. 1, which instructed the jury that Jenkins had a duty of ordinary
care, which included among others, “not operating his vehicle while under the
influence of intoxicants.” (Emphasis added.) According to the Atlas Appellants,
given the testimony that Jenkins violated KRS 281A.210 by virtue of having any
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substances in his system at all, this instruction treated violation of the statute as a
strict liability offense, even though the Garmons did not seek to hold the Atlas
Appellants liable for negligence per se.
One of Jenkins’s duties was to obey all traffic laws, which necessarily
included not operating his commercial dump truck with controlled substances in
his system. Admittedly, the jury instruction at issue used the term “intoxicants”
instead of “controlled substances.” However, we fail to see how use of the term
“intoxicants” was materially misleading in the context of the duty instruction. We
also disagree that the duty instruction was tantamount to imposition of strict
liability based on a statutory violation where the jury was specifically asked in Jury
Instruction 2 to determine whether Jenkins’s failure to comply with his duties “was
a substantial factor in causing the death of Marie Garmon.” Reading Instruction
No.1 and Instruction No. 2 together, the jury could have found that Jenkins’s
violated his duty not to operate his truck with controlled substances in his system,
but that said violation was not the proximate cause of Marie’s death. Carmical v.
Bullock, 251 S.W.3d 324, 328 (Ky. App. 2007) (“When examining jury
instructions for error, they must be read as a whole.”).
Appellants’ second assignment of error relates to Instruction No. 2,
which stated:
It was the duty of the Defendants Atlas Excavating, Clint
Russell and Amanda Russell to exercise the same of
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ordinary care expected of a reasonable and prudent
company/person in the administration and operation of
their business. This duty included exercising ordinary
care by:
(a) Ensuring the qualification and fitness of their
employees;
(b) Ensuring that their equipment and vehicles were
properly maintained;
(c) Conducting drug screening as required by law;
(d) Maintaining proper records and documentation;
(e) Complying with all applicable laws and regulations;
(f) Hiring only competent and qualified drivers;
(g) Not to retain a driver that was not qualified to operate
a commercial motor vehicle; and
(h) Properly supervising drivers to ensure that they are
qualified to operate a commercial motor vehicle.
The Atlas Appellants argue that they are not “insurers” of safety and
should not have been held to a higher care standard, and further, the requirement
that they were to comply with all applicable laws and regulations was undefined.
The Atlas Appellants did not tender an instruction regarding Atlas/Russells, and
they did not otherwise preserve this objection. Their failure to do so prevents our
review. See CR8 51.01(3) (“No party may assign as error the giving or the failure
8
Kentucky Rules of Civil Procedure.
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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.”). Furthermore, even if the Atlas Appellants had
properly preserved this objection, we cannot agree that the instruction, which was
predicated on a duty of “ordinary care” was calculated to mislead the jury into
believing that the Atlas Appellants owed a heightened duty of care.
F. Evidence of FMCSA9 Violations
The Atlas Appellants complain that the trial court erred in allowing
Trooper Martin to offer his opinion regarding Atlas’s failure to comply with its
duties under the FMCSA. According to the Atlas Appellants, introduction of this
evidence was improper and violated the law of the case doctrine because the trial
court had previously determined that the evidence did not tend to establish that
Jenkins was not qualified to operate a commercial dump truck at the time of the
accident. Notably, this conclusion was made in the context of granting Mago’s
renewed summary judgment motion.
The law of the case doctrine is “predicated upon the principle of
finality.” Public Service Commission of Kentucky v. Metropolitan Housing
Coalition, 652 S.W.3d 648, 652 (Ky. App. 2022). It bars the relitigation of issues
9
Federal Motor Carrier Safety Act.
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finally decided in prior appeals arising out of the same case. Armstrong v. Estate
of Elmore, 647 S.W.3d 214, 217 (Ky. 2022). The order at issue is an interlocutory
trial court order, not a final appellate order. Moreover, the trial court’s prior ruling
on the FMSCA violations was based, in part, on the fact that Mago would not have
had access to “Atlas driver files or Atlas maintenance records so Mago would not
have been in a position to be aware of any regulatory violations regarding
inadequate documentation.” The fact that the Atlas Appellants’ FMSCA violations
were not relevant to the Garmons’ claims against Mago does not mean the alleged
violations were not relevant to the Garmons’ claims against Appellants. In fact, we
believe such alleged violations by the Atlas Appellants were in fact relevant. See
McGuffey v. Hamilton, No. 2018-CA-001644-MR, 2020 WL 5268044, at *10 (Ky.
App. Sep. 4, 2020).10
III. APPEAL NO. 2020-CA-0174-MR
In addition to suing Jenkins, Atlas, and the Russells, the Garmons
asserted independent negligence, vicarious liability and punitive damages claims
against Mago. However, the trial court granted summary judgment to Mago prior
to trial. On appeal, the Garmons assert that material issues of fact exist making the
trial court’s judgment in favor of Mago erroneous as a matter of law. They request
10
Unpublished opinions are not binding authority but may be considered pursuant to Kentucky
Rules of Appellate Procedure (“RAP”) 41.
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this court to reverse the trial court’s summary judgment orders and remand their
claims against Mago for a jury to assess its culpability.
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.” CR 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.
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,
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202 S.W.3d 585, 588 (Ky. 2006) (quoting Chesapeake & Ohio Ry. Co. v. Yates,
239 S.W.2d 953, 955 (Ky. 1951)).
“An appellate court’s role in reviewing a summary judgment is to
determine whether the trial court erred in finding no genuine issue of material fact
exist[ed] and the moving party was entitled to judgment as a matter of law.”
Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018). The standard of
review for an appellate court is de novo because only legal issues are involved.
Isaacs v. Sentinel Ins. Co. LTD., 607 S.W.3d 678, 681 (Ky. 2020).
A. Vicarious Liability
“A principal may be held vicariously liable for the negligent acts of
his or her agent, but generally is not held liable for the conduct of an independent
contractor.” Nazar v. Branham, 291 S.W.3d 599, 606 (Ky. 2009). “Under
Kentucky law, the right to control is considered the most critical element in
determining whether an agency relationship exists.” CSX Transportation, Inc. v.
First National Bank of Grayson, 14 S.W.3d 563, 566-67 (Ky. App. 1999).
Mago’s primary business is the paving and resurfacing of roads. At
the time of the accident Mago had a contract with the Commonwealth of Kentucky
to pave a portion of Bluegrass Parkway. Mago uses dump trucks to transport
asphalt from its plant to its job sites. While Mago has some of its own dump
trucks, it also contracts with third parties to haul asphalt. At the time of the
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accident, Mago had a contract with Atlas to haul asphalt, and Jenkins was working
for Atlas hauling asphalt between Mago’s plant and Bluegrass Parkway at the time
of the accident. Mago had been using Atlas to perform dump truck hauling for it
since about 2003.
In the contract with Mago, Atlas agreed to provide all trucks and
drivers for the job and to be responsible for all obligations and expenses pertaining
to the operation of the trucks, including insurance and “any other liabilities which
may arise from such operation.” The contract referred to Atlas as an independent
contractor, and that it was Atlas’s responsibility to comply with all federal and
state requirements relating to its trucks and drivers. Jenkins was paid by the hour
at a rate set by Atlas, and he reported directly to Atlas.
The trial court’s analysis regarding whether Atlas/Jenkins were
independent contractors or employees of Mago was centered on the nine factors set
forth in RESTATEMENT (SECOND) OF AGENCY § 220. Properly focusing most
heavily on the control element, the trial court determined that Jenkins was working
as Mago’s independent contractor at the time of the accident. To this end, it
concluded that Mago contracted with Atlas to move asphalt from Point A to Point
B and the details regarding the truck, the driver, the amount to pay the driver, the
number of loads to be completed, and the like were up to Atlas and its drivers.
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Although the Garmons argue the trial court’s analysis overlooked
several factual disputes, any discrepancy in the facts was not material. Jenkins
testified that he communicated almost exclusively with Clint Russell regarding his
job performance and duties. For his part, Clint explained that Mago would tell him
where to pick up the asphalt and drop it off. However, Clint made clear that Mago
did not control the drivers or any of the intricacies of its day-to-day operations,
such as inspections or overseeing driving training and safety. He further explained
that “nobody made a driver do anything they didn’t want to.” If a driver did not
want to go to a particular job site, the driver was free to bring the truck back in that
day. Clint further testified that Mago did not set any parameters for how many
loads an individual truck driver needed to haul per day or week. Mago employee
Jarrett Rummage’s testimony did not contradict either Jenkins or Clint. Although
Mago told Atlas where to pick up the loads, it did not dictate which drivers it had
to use, the numbers of loads an individual driver was required to perform per day,
when a driver might take a break, or even when a driver might decide he had done
enough for the day. In fact, most of the time, the drivers were not even required to
communicate directly with Mago personnel when they were picking up and
dropping off their loads.
In sum, while Mago may have had general requirements in place for
its independent contractors, such as the procurement of insurance, the testimony
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agreed that Mago did not dictate or control Atlas’s drivers. Thus, we cannot
conclude that the trial court erred in concluding that Mago was not vicariously
liable for Jenkins’s tortious conduct.
B. Inherently Dangerous/Ultrahazardous Work
An exception to the general rule exempting vicarious liability for
independent contractors exists where the work being performed is inherently
dangerous. Miles Farm Supply v. Ellis, 878 S.W.2d 803 (Ky. App. 1994). Before
the trial court, the Garmons argued that hauling asphalt in a commercial dump
truck is an inherently dangerous task, an argument rejected by the trial court. We
find no error of law arising out of this conclusion. Collins v. Liquid Transporters,
262 S.W.2d 382, 383 (Ky. 1953).
C. Liability as a Motor Carrier
Relying on federal law, the Garmons contend motor carriers are the
statutory employers of their drivers, even if those drivers are independent
contractors. While this may be the case, the operative question in this case is
whether Mago was acting as a motor carrier when contracting with Atlas.
The Garmons focus heavily on the fact that Mago was registered as a
motor carrier. While this may be true, this fact does not mean that Mago was
acting as a motor carrier in this instance.
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A motor carrier is one who provides motor vehicle transportation for
compensation. 49 United States Code (“U.S.C.”) §13102(14). Although a
company may have the authority to act as a shipper, broker, and motor carrier, the
authority to so act does not mean that the company was actually acting in that
capacity. Rather, the court must focus on “the specific transaction at issue.”
Schramm v. Foster, 341 F. Supp. 2d 536, 548 (D. Md. 2004). Thus, we must
determine whether as part of the specific transaction at issue Mago was acting
primarily as a motor carrier for the Commonwealth, the party compensating it.
Mago was engaged by the Commonwealth to repave a section of the road, not
simply to transport goods from point A to point B. To assist in completing its
contract to repave the road, Mago relied on Atlas to transport the asphalt. In this
case, Mago was receiving compensation from the Commonwealth for paving a
road, not hauling asphalt.
Under these particular facts, Mago was not acting as a motor carrier;
it was acting as a road paver who needed to get asphalt to its own job site and hired
an independent contractor to help it do so. As such, “it had no duty – nondelegable
or otherwise –” that would make it liable for any statutory violations by Jenkins
and/or Atlas. See Harris v. FedEx Nat. LTL, Inc., 760 F.3d 780, 785 (8th Cir.
2014).
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D. Direct Negligence
In addition to vicarious liability, the Garmons asserted a direct
negligence claim against Mago predicated on its selection and retention of Atlas to
act as its independent contractor. Even though the Garmons have appealed the trial
court’s decision to grant summary to Mago on their direct negligence claim, they
nonetheless vehemently argue that we cannot vacate the jury’s judgment. This is
problematic. Unlike their vicarious liability claims, the Garmons direct negligence
claims do not depend on the negligence of third parties; the Garmons seek to hold
Mago directly liable for some portion of the accident.
“[L]iability among joint tortfeasors in negligence cases is no longer
joint and several but is several only; and because the liability is several as to each
joint tortfeasor, it is necessary to apportion a specific share of the total liability to
each of them, whether joined in the original complaint or by third-party complaint,
and the several liability of each joint tortfeasor with respect to the judgment is
limited by the extent of his/her fault.” Degener v. Hall Contracting Corp., 27
S.W.3d 775, 779 (Ky. 2000). In this case, a jury has already determined that the
Atlas Appellants and Jenkins were each fifty percent at fault for the accident.
Throwing Mago into the mix would upset this determination; any second verdict
finding Mago at fault would create inherently inconsistent verdicts with respect to
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both damages and percentage of fault. In sum, we cannot grant the Garmons the
relief they seek in relation to their independence negligence claim.
Even if we could do so, however, we do not believe the Garmons have
demonstrated that the trial court erred as a matter of law in granting summary
judgment to Mago. The Garmons’ negligence claim is premised on the fact that
Mago knew or should have known that Atlas was derelict in its duties in hiring and
overseeing Jenkins. However, we agree with Mago that it was not required to, nor
did it, have access to Atlas’s records pertaining to Jenkins. As such, the Garmons
failed to show Mago knew or should have known of any breaches by Atlas with
respect to Jenkins such as its failure to drug test him as alleged by the Garmons
making Mago entitled to summary judgment.
IV. CONCLUSION
For the reasons explained below, we affirm the Anderson Circuit
Court’s judgments in both appeals before us.
ALL CONCUR.
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BRIEFS FOR APPELLANTS ERIC BRIEF FOR APPELLEES THE
JENKINS, ATLAS EXCAVATING, ESTATE OF MARIE GARMON, BY
LLC, ATLAS TRUCKING, CLINT DAVID GARMON,
RUSSELL, AND AMANDA ADMINISTRATOR; DAVID
RUSSELL: GARMON, INDIVIDUALLY;
DAVID GARMON AS PARENT
Todd S. Page AND GUARDIAN OF JOHN PAUL
Lexington, Kentucky GARMON; DAVID GARMON AS
PARENT AND GUARDIAN OF
John G. McNeill MARLIE FORBES GARMON; JOHN
Lexington, Kentucky PAUL GARMON, INDIVIDUALLY;
KENTUCKY EMPLOYERS
BRIEFS FOR APPELLANTS THE SAFETY ASSOCIATION, INC.;
ESTATE OF MARIE GARMON BY AND MARLIE FORBES GARMON,
DAVID GARMON, INDIVIDUALLY:
ADMINISTRATOR; DAVID
GARMON, INDIVIDUALLY; Steven Romines
DAVID GARMON AS PARENT Lawrence I. Young
AND GUARDIAN OF JOHN PAUL Louisville, Kentucky
GARMON; AND DAVID GARMON
AS PARENT AND GUARDIAN OF Kevin C. Burke
MARLIE FORBES GARMON: Jamie K. Neal
Louisville, Kentucky
Steven Romines
Lawrence I. Young BRIEF FOR APPELLEE MAGO
Louisville, Kentucky CONSTRUCTION COMPANY, LLC:
Kevin C. Burke Michael P. Casey
Jamie K. Neal Lexington, Kentucky
Louisville, Kentucky
Griffin Terry Sumner
Casey Wood Hensley
Louisville, Kentucky
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