2018 WL 6613948
Unpublished Disposition

NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN THE REPORTER.
Court of Appeals of North Carolina.
PAULA GLASGOW, Employee, Plaintiff,
v.
PEOPLEASE CORPORATION, Employer, and NATIONAL INTERSTATE INSURANCE COMPANY, Carrier, Defendants.
No. COA18-348
|
Filed: 18 December 2018
North Carolina Industrial Commission, I.C. No. 15-031891
Appeal by defendants from opinion and award entered 23 October 2017 by the North Carolina Industrial Commission. Heard in the Court of Appeals 2 October 2018.
Attorneys and Law Firms
Levy Law Offices, by Joshua N. Levy, for plaintiff-appellee.
Wilson Ratledge, PLLC, by Scott J. Lasso, for defendants-appellants.
Opinion

DIETZ, Judge.

*1 Plaintiff Paula Glasgow injured her neck and spine while working as a truck driver for Defendant Peoplease Corporation. Peoplease and its insurer appeal the Industrial Commission’s opinion and award denying their request to terminate Glasgow’s temporary total disability compensation.

As explained below, this case is resolved largely based on the narrow standard of review applicable to fact findings by the Commission. Although there is competing evidence on many of the disputed issues in this case, the challenged findings of the Commission are supported by at least some competent evidence and are therefore binding on appeal. In light of those findings, the Commission’s conclusions of law are correct and we therefore affirm the Commission’s opinion and award.

Facts and Procedural History
Paula Glasgow was born in 1965. Her educational background consists of an adult high school diploma and one year of general study at Fayetteville Technical Community College. From 1990 until June 2015, Glasgow worked exclusively as a commercial truck driver. Her career required her to maintain a Class A commercial truck driver’s license, which requires the license holder to periodically pass a medical examination. Notably, certain conditions could disqualify her from maintaining her license, including the use of applicable narcotic medication.

In 2008, Glasgow got a job as a truck driver for Star Leasing, which later became Peoplease Corporation. In addition to driving and operating commercial motor vehicles, Glasgow’s official job duties at Peoplease included “reaching and grasping with arms and hands” and lifting and moving objects weighing up to fifty pounds.

On 29 June 2015, Glasgow, then forty-nine years old, injured her neck and shoulder on the job while rolling landing gear. The doctor who treated her that day took her out of work and prescribed Vicodin, which contains hydrocodone, a narcotic. Shortly after the accident, Glasgow reached out to Peoplease and spoke with someone in payroll and with Eric Mentzer, the Vice President of Operations. She explained her injury and asked whether there was any light duty available for her, but the company told her none was available. The Industrial Commission later determined Glasgow had a compensable injury and awarded her temporary total disability compensation.

In the months following the accident, Glasgow saw Dr. Dennis Campbell for her injuries. On 5 October 2015, after finding severe damage to Glasgow’s spinal cord, Dr. Campbell performed an anterior cervical discectomy and fusion on Glasgow. For several weeks afterward, Dr. Campbell took her out of work for recovery. Before and after her surgery, Dr. Campbell consistently prescribed Vicodin to her.

Glasgow had her last appointment with Dr. Campbell on 31 December 2015. That day, she complained of tingling and numbness in her right hand, difficulty moving her neck, and swelling issues. At his deposition, Dr. Campbell testified that Glasgow’s symptoms “absolutely” would affect her for the rest of her life in terms of strength and ability to lift heavy objects.

*2 In an encounter summary from that final appointment, Dr. Campbell wrote “[i]n terms of surgical healing, she is at the point where she can now return to full activities.” He explained to Glasgow that he would only write her one more Vicodin prescription but that she could continue taking the medication “as needed” to manage ongoing pain from her injury. Glasgow continued taking Vicodin after 31 December 2015 and throughout this litigation.

Dr. Campbell testified that he does not perform disability assessments and that he did not review Glasgow’s job description or the federal regulations governing commercial truck driving before releasing her to return to work. Instead, he noted on the encounter summary that he would “refer her either to the DMV or Department of Transportation and herself and her workers’ comp to determine her safety in terms of her going back to work as a truck driver.”

Shortly after Dr. Campbell’s release, Glasgow left her Fayetteville home and moved to Texas to live with her daughter. Glasgow called Eric Mentzer again and told him she was still taking hydrocodone and was still unable to drive a truck. Mentzer simply said “okay” and hung up.

On 6 January 2016, Peoplease terminated Glasgow on the basis that she “was released 12/31/15 to work with no restrictions.” On 20 January 2016, Defendants filed a Form 24 seeking to terminate Glasgow’s disability compensation. In a 26 February 2016 administrative decision, the Industrial Commission granted the Form 24. Glasgow filed a Form 33 to appeal the decision. As part of her appeal, Glasgow provided the Commission with a list of nineteen employers—all trucking companies—to which she applied for jobs, all of which were truck driver positions requiring a Class A truck driver’s license. She disclosed her injuries and medications on each application, including the Vicodin “because I still have them, and I do take them.” Her job search did not yield any interviews or job offers.

Glasgow also filed a motion to compel vocational rehabilitation, seeking community college training to help her secure employment in a field other than truck driving. The Commission denied her motion.

On 28 February 2017, after a hearing on Glasgow’s appeal, a deputy commissioner issued an opinion and award ordering Defendants to resume Glasgow’s total temporary disability compensation and to pay Glasgow any payments that had accrued since it filed its Form 24. Defendants appealed the opinion and award to the Full Commission. On 23 October 2017, the Full Commission entered an opinion and award denying Defendants’ Form 24 application. Defendants timely appealed.

Analysis

I. Abandonment of Issues under Rule 28
Before reaching the merits of this appeal, we first address Glasgow’s argument that Defendants abandoned several issues by filing a brief that violates the Rules of Appellate Procedure. Rule 28 of the Rules of Appellate Procedure limits our scope of review “to issues so presented in the several briefs” and states that “[i]ssues not presented and discussed in a party’s brief are deemed abandoned.” N.C. R. App. P. 28(a), 28(b)(6).

Here, Defendants’ appellate brief lists six issues presented for appeal. But instead of addressing each issue under a separate heading in the body of the brief, as is the typical practice, Defendants’ arguments are jumbled together in a single section under the heading “Argument.” Glasgow asserts that Defendants “have not presented any identifiable argument in their brief” regarding three of the issues listed in their Statement of the Issues Presented and, as a result, this Court should treat those three issues as abandoned.

*3 Our review of the Defendants’ brief indicates that Defendants have not abandoned these issues. To be sure, Defendants’ brief does not conform to the standard practice before this Court, with separate issues asserted in distinct sections divided by headings or subheadings. Still, Defendants’ brief contains at least some argument on each of their proposed issues and we thus find those issues sufficiently preserved to avoid abandonment under Rule 28.

But we observe that this was a close case, and Defendants’ brief suffered from several other, serious rules violations (which Glasgow notes in her brief) including the failure to include a table of contents and table of authorities and, most importantly, failure to include a statement of the grounds for appellate review. Fortunately for Defendants, our Supreme Court has held that we should reach the merits of issues presented on appeal whenever possible, to ensure “fundamental fairness to litigants” and to “promote public confidence in the administration of justice in our appellate courts.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008). Thus, we will decline to reach the merits of an appeal only when the rules violations “impair[ ] the court’s task of review” or “frustrate the adversarial process” by prejudicing the opposing party. Id. at 200, 657 S.E.2d at 366–67. Here, as Glasgow’s well-reasoned appellee brief demonstrates, she was not prejudiced by these rules violations. Nor have they meaningfully impaired this Court’s review on the merits. We therefore address the merits fully, but remind litigants before this Court that compliance with the Rules of Appellate Procedure is mandatory.

II. Denial of Request to Terminate Compensation
Defendants challenge multiple findings of fact in the Industrial Commission’s opinion and award denying their Form 24 request to terminate compensation. Our analysis of these issues is constrained by the narrow standard of review applicable to fact finding by the Commission. On appeal, this Court reviews fact finding by the Commission to determine “whether any competent evidence supports the Commission’s findings of fact and whether the findings of fact support the Commission’s conclusions of law.” Bowen v. ABF Freight Sys., Inc., 179 N.C. App. 323, 327, 633 S.E.2d 854, 857 (2006).

Defendants’ underlying contention is that the Commission erred in finding that Glasgow was disabled after her treating physician released her on 31 December 2015 to “return to full activities.” In workers’ compensation cases, the party claiming a disability ordinarily has the burden of proving her disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1980). The Worker’s Compensation Act defines “disability” as the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9). As we explain below, we agree with the Commission that Glasgow met her burden, and we hold that the Commission’s findings to that effect were supported by competent evidence.

First, Defendants challenge the Commission’s finding that Glasgow’s December 2015 release was a qualified release “for surgical healing only,” which “did not account for any physical limitations [Glasgow] continued to suffer” as a result of her injury. Defendants argue that this finding is erroneous because Dr. Campbell stated that he released Glasgow to “full activities.”

*4 The challenged finding is supported by competent evidence. To be sure, Dr. Campbell testified that “in terms of [Glasgow] healing from her fusion, there was no surgical contraindication for her returning to work.” But Dr. Campbell explained that he had not performed a disability assessment of Glasgow to determine if she was capable of performing the work required for her job. Even when he stated he would have “allow[ed] her to go back to driving a truck, based on her surgical healing,” he emphasized that he was not making a judgment about her fitness to return to work and that he would leave it to “the DMV or the Department of Transportation to determine her safety of going back to work as a truck driver.”

Dr. Campbell also testified that “in terms of surgical healing, I allowed her to return to any activity that she felt she was capable of doing, but I left that in her hands,” adding that “if she didn’t feel like she was capable of lifting 10 or 20 pounds, then she shouldn’t have lifted 10 or 20 pounds.” When asked what his response would be if Glasgow did not feel she could lift that amount of weight, Dr. Campbell replied “I would take her out of work.”

In short, although the record indicates that Glasgow’s release to “full activities” did not contain any specific work restrictions, there was competent evidence in the record to support the Commission’s finding that Dr. Campbell’s decision to release Glasgow focused solely on the progress of her surgical healing and did not mean that Glasgow no longer suffered any physical limitations because of her injury. Accordingly, we are bound by the Commission’s finding.

Defendants next challenge the Commission’s finding that Glasgow “has been unable to drive a commercial truck since her last visit with Dr. Campbell … due to limitations in neck range of motion; numbness, tingling, and weakness in the upper extremities; and side effects from continued medication used to address her chronic pain.” Again, there was competent evidence to support this finding. Glasgow testified that she continued to suffer symptoms from her injury, preventing her from safely driving a truck. These symptoms included numbness and tingling in her hand and a limited ability to move her neck. Dr. Campbell testified that Glasgow suffered abduction weakness in her right shoulder, flexion weakness in her right elbow, and grip weakness in her right hand. Dr. Campbell believed Glasgow may have these symptoms for the rest of her life and that they would “absolutely” affect her ability to lift heavy objects. Glasgow also testified that she continued to take Vicodin from time to time to manage her pain using the remaining supply of an “as needed” prescription from Dr. Campbell. This testimony is competent evidence to support the challenged finding and that finding is therefore binding on this Court.

Finally, Defendants challenge the Commission’s finding that Glasgow’s “job search, while unsuccessful, has been reasonable.” Again, there is at least some competent evidence supporting this finding. The Commission found that Glasgow “sought employment in the only area she has ever worked and in which she is skilled”; that Glasgow “requested vocation rehabilitation to assist in obtaining other types of employment, however, her request has been denied by defendants”; and that Glasgow unsuccessfully applied for nineteen truck driving positions intending, if hired, to submit to a physical examination to determine if she was qualified to drive despite her limitations. All of these findings are supported by at least some competent evidence from Glasgow’s testimony. Thus, we are bound by these findings on appeal.

In sum, applying the applicable standard of review, there is competent evidence supporting all of the Commission’s findings and those findings, in turn, support the Commission’s conclusions of law. Accordingly, we reject Defendants’ arguments and affirm the Commission’s opinion and award.

Conclusion
*5 We affirm the Industrial Commission’s opinion and award.

AFFIRMED.

Report per Rule 30(e).

Judges BRYANT and INMAN concur.
All Citations
Slip Copy, 2018 WL 6613948 (Table)

2018 WL 6594544

United States District Court, W.D. Kentucky.
ERIN TINGLE Plaintiff
v.
ERNEST R. CORNELISON, ET AL. Defendants
Civil Action No. 3:15-cv-00319-RGJ
|
Filed 12/14/2018

MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, District Judge United States District Court
*1 Plaintiff Erin Tingle brings this action against Defendants Ernest Cornelison and U.S. Xpress, Inc. (“U.S. Xpress”) seeking relief for injuries sustained during a 2014 traffic accident. Tingle alleges that Cornelison, acting as U.S. Xpress’s agent or employee, failed to keep reasonable control of his vehicle during a sudden downpour and that his negligence was the direct and proximate cause of her injuries. [DE 1-2, Compl.]. Discovery has concluded, and Defendants now move for summary judgment under Federal Rule of Civil Procedure 56. [DE 33, MSJ]. Tingle filed a timely Response [DE 34], and Cornelison filed a timely Reply [DE 35]. This matter is ripe for adjudication. Having considered the parties’ filings and the applicable law, the Court DENIES Defendants’ Motion for Summary Judgment.

BACKGROUND
On the morning of August 8, 2014, Tingle and Cornelison drove separately on KY 841 in Jefferson County. [DE 33-1, Memo. Supp. MSJ at 136]. Cornelison was driving a U.S. Xpress tractor trailer from Louisville to Hawesville, a regular route for U.S. Xpress. Id. He traveled southbound in the right lane. [DE 34 at 264]. Tingle, also driving southbound in the right lane, was behind Cornelison. Id. It was still dark outside, but the road was dry. [DE 33-1 at 136].

A sudden downpour began. Id. Cornelison took his foot off the gas and slowed to a speed of 55–60 miles per hour. Id. Tingle, accelerating, moved to the left lane. Id. After passing the trailer, Tingle moved back to the right lane about 40 feet in front of the trailer. Id. Her rear tires “slipped from left to right into the turf on the right-hand shoulder,” then moved back across the right lane toward the center median. [DE 34 at 264–65]. Seconds later, Cornelison’s truck hit Tingle’s driver-side door as her vehicle crossed Cornelison’s path perpendicular to his truck. [DE 33-1 at 136]. Tingle’s vehicle continued toward the center median and struck the barrier, eventually resting in the left southbound lane. [DE 34 at 264–65].

On March 12, 2015, Tingle filed suit against Cornelison and U.S. Xpress Enterprises, Inc. in Jefferson County Circuit Court. [DE 1–2, JC Rcd.]. U.S. Xpress Enterprises, Inc. was not a proper party to the action and was voluntarily dismissed on April 8, 2015. Id. at 15. The parties agreed to add the proper defendant, U.S. Xpress, Inc., on the same date. Id. On April 28, 2015, Defendants removed the action to this Court. [DE 1, Not. Remov.]. With discovery complete, Defendants now move for summary judgment under Rule 56. [DE 33].

APPLICABLE LAW AND LEGAL STANDARD
This action is in federal court based on diversity jurisdiction under 28 U.S.C. § 1332. Because Kentucky is the forum state, its substantive law will apply. Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 526 (6th Cir. 2006) (citations omitted); Simons v. Strong, 978 F. Supp. 2d 779, 783 (E.D. Ky. 2013). Federal procedural law will govern as applicable, including in establishing the appropriate summary judgment standard. Weaver v. Caldwell Tanks, Inc., 190 F. App’x 404, 408 (6th Cir. 2006).

*2 Summary judgment is required when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of specifying the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Once the moving party satisfies this burden, the nonmoving party must produce specific facts demonstrating a material issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “Factual differences are not considered material unless the differences are such that a reasonable jury could find for the party contesting the summary judgment motion.” Bell v. City of E. Cleveland, 125 F.3d 855 (6th Cir. 1997) (citing Liberty Lobby, 477 U.S. at 252).

A district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008). The Court must view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000). But the nonmoving party must do more than show some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). Instead, the nonmoving party must present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence …; of a genuine dispute[.]” Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 136 (6th Cir. 2014). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Liberty Lobby, 477 U.S. at 252.

DISCUSSION
To prevail on a negligence claim under Kentucky law, the plaintiff must prove that the defendant 1) owed the plaintiff a duty of care, 2) the defendant breached the standard of care by which his duty is measured, and 3) that the breach was the legal cause of the consequent injury. Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012); Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88–89 (Ky. 2003). Duty is a question of law for the court to decide, breach and injury are questions of fact for the jury to decide, and causation is a mixed question of law and fact. Pathways, 113 S.W.3d at 89 (citing Deutsch v. Shein, 597 S.W.2d 141, 145 (Ky. 1980)).

Tingle asserts that Cornelison was negligent by failing to maintain control of his vehicle during the downpour. Specifically, Tingle asserts that Cornelison was negligent in: (1) exceeding the Commercial Driver’s Licensing Manual’s (“CDL Manual” or “Manual”) speed guidelines for wet roadways; (2) negligently lifting his foot off the gas, rather than applying his brake, to decelerate; and (3) not taking additional steps to avoid the accident once Tingle’s vehicle began to spin. Id. at 142–44.

A. Duty and Breach of the Standard of Care
While the parties do not dispute that Cornelison owed a duty to Tingle while driving his truck [DE 33-1 at 137; DE 34 at 267], they disagree about the appropriate standard of care by which to measure Cornelison’s actions. Cornelison argues that he only needed to act with “reasonable care.” [DE 33 at 143; DE 35, Reply MSJ at 281]. Tingle argues that Cornelison’s behavior must be measured against industry standards for professional drivers under similar circumstances. [DE 34 at 267, 270 (citing Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. Ct. App. 2009)) ].

*3 Generally, “every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury.” Grayson Fraternal Order of Eagles v. Claywell, S.W.2d 328, 332 (Ky. 1987). “Duty may be established in several ways, but ultimately, ‘the most important factor in determining whether a duty exists is foreseeability.’ ” Boland-Maloney Lumber Co., 302 S.W.3d at 686 (Ky. Ct. App. 2009) (quoting David J. Leibson, 13 Kentucky Practice: Tort Law § 10.3, p. 113 (1995)). It has long been the rule in Kentucky, however, that in negligence cases “involving professionals or professions requiring special skill and expertise, the standard is typically measured by the standard of conduct customary in the profession under the circumstances,” which usually requires expert testimony. Slone v. Lincoln Cty., Kentucky, 242 F. Supp. 3d 579, 596 (E.D. Ky. 2017); Boland-Maloney Lumber Co., 302 S.W.3d at 686 (citing Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93 (Ky. 2008)). But expert testimony is not required in cases where issues are within the common knowledge of lay persons or when the alleged negligence of a professional is so apparent that even a lay person could recognize it. Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 681 (Ky. 2005).

Tingle attempts to establish a duty through his expert’s testimony regarding the CDL Manual, which sets out the standard of care for commercial truck drivers [DE 33-4, Agent Depo. At 67], and through the Federal Motor Carrier Safety Regulations (“FMCSRs”), which pertain to the knowledge and skills that states must test for in administering Commercial Driver’s License exams. 49 C.F.R. § 383.1(a). These regulations have been adopted by the Kentucky Transportation Cabinet into its own regulations. 601 KAR 1:005 § 2. Because they are widely utilized and outline the degree of care and skill expected of a competent commercial driver, the Court finds that the CDL Manual and FMCSRs are appropriate sources by which to measure Cornelison’s duty of care. Hyman & Armstrong, P.S.C., 279 S.W.3d at 113; Boland-Maloney Lumber Co., 302 S.W.3d at 686; Daugherty v. Runner, 581 S.W.2d at 16; Shetler v. ALDI, Inc., No. 3:10-CV-00778-JHM, 2012 WL 3264937, at *3 (W.D. Ky. Aug. 9, 2012).

In negligence cases involving allegations that the defendant has inflicted injury by violating a duty, questions regarding breach are generally for the jury to decide. Bartley v. Com., 400 S.W.3d 714, 726 (Ky. 2013) (citing Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005); Pathways, 113 S.W.3d 85 (Ky. 2003); Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245 (Ky. 1992)). If the facts necessary to establish breach are in dispute, the Court cannot grant summary judgment.

Many material facts remain in dispute about whether Cornelison breached his standard of care. First, when Tingle moved back to the right lane about 40 feet in front of Cornelison’s trailer, he removed his foot from the gas and did not brake. [DE 33-3, Corn. Depo. at 187]. Tingle’s expert testified that this was a reasonable way for Cornelison to reduce his speed. [DE 33-4, Agent Depo. at 235]. But he did not testify that this was all that Cornelison should have reasonably done. A reasonable jury could agree with Tingle that Cornelison should have taken additional steps to reduce his speed. Second, Cornelison admits that he was mistaken about the CDL Manual’s guidelines. At the time of the accident, Cornelison was driving 10–15 miles per hour above the Manual’s guidelines. [DE 33-3 at 191–92]. He mistakenly believed that the Manual dictated a 10% decrease in speed on wet roads. Id. But according to Tingle’s expert, the Manual requires a decrease of 33%. Id. A reasonable jury could agree with Tingle that Cornelison, as a professional driver, should have complied with the Manual. Finally, Cornelison did not move his foot to brake until after Tingle lost control of her vehicle. Id. at 196–97. Moments before, Tingle was traveling less than 40 feet in front of Cornelison and signaled that she would re-enter his lane. Id.; [DE 33-1 at 136]. A reasonable jury could agree with Tingle that Cornelison should have braked sooner. In short, whether Cornelison violated a duty owed to Tingle with these and other material acts and omissions is a question of fact for the jury, not summary judgment.

B. Legal Causation
*4 In Deutsch v. Shein, the Supreme Court of Kentucky adopted the substantial factor test for causation set forth in § 431 of the Restatement (Second) of Torts, which states that the “actor’s negligent conduct is a legal cause of harm to another if his conduct is a substantial factor in bringing about the harm.” 597 S.W.2d at 143–44. “Substantial” means that the defendant’s conduct has such an effect in producing the harm as to lead a reasonable person to regard it as a cause. Pathways, 113 S.W.3d at 92; Restatement (Second) of Torts § 431, cmt. a.

“The court has a duty to determine ‘whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.’ ” Id. “[C]ausation should not go to the jury unless the inference of causation is reasonable: it must “indicate the probable, as distinguished from a possible cause.” Bailey v. N. Am. Refractories Co., 95 S.W.3d 868, 873 (Ky. Ct. App. 2001). “[W]here only one reasonable conclusion can be reached, a court may decide the issue of causation as a matter of law.” Lewis v. B & R Corp., 56 S.W.3d 432, 438 (Ky. Ct. App. 2001) (citing Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328 (Ky. 1987); O.K. Tire Store No. 3, Inc. v. Stovall, 392 S.W.2d 43, 44 (Ky. 1965); Adkins v. Greyhound Corp., 357 S.W.2d 860, 862 (1962)).

Despite Defendants’ framing of the issues regarding breach, they do not actually address whether Cornelison breached a duty he owed to Tingle. Instead, they address whether his acts or omissions caused Tingle’s injuries. Defendants’ argument is that Tingle fails to present evidence that the accident would not have occurred even if Cornelison behaved differently. This is distinct from whether Cornelison breached his duty. It is certainly possible that Cornelison breached his duty and struck Tingle. But it is also possible that Cornelison would have still struck Tingle even had he breached no duty. In other words, it is necessary, but not sufficient, for Tingle to show a breach a duty. She must still present evidence that Cornelison’s actions caused her injuries.

Thus, to avoid summary judgment, Tingle must present a material fact regarding causation—i.e., that Cornelison’s alleged negligence, whether or not a breach, was a substantial factor in causing her injuries. EQT Prod. Co. v. Vorys, Sater, Seymour & Pease, LLP, No. 15-CV-146-DLB-EBA, 2018 WL 1996797, at *20 (E.D. Ky. Apr. 27, 2018) (citing Marrs v. Kelly, 95 S.W.3d 856, 860 (Ky. 2003)). Construing all facts in Tingle’s favor, she has presented sufficient material facts to withstand Defendants’ Motion for Summary Judgment. Specifically, Tingle disputes whether Cornelison’s failure to take additional steps to reduce his speed, his unfamiliarity with the Manual’s stipulations for decreasing speed on wet roads, and his delay in engaging his brakes was a substantial cause of her injuries. Each of these facts is material and in dispute. Because the facts of this case do not present a situation in which a jury could reach only one reasonable conclusion about whether Cornelison’s behavior was a substantial factor in causing Tingle’s injuries, it remains a question of fact for a jury to decide. Pathways, 113 S.W.3d at 89.

Defendants, relying on Carlotta v. Werner, 601 F. Supp. 749 (E.D. Ky. 1985), argue that even if Cornelison did breach a duty owed to Tingle, Tingle’s own negligence was so great that Cornelison’s conduct was not the proximate cause of Tingle’s injuries as a matter of Kentucky law. [DE 33-1 at 144]. In that case, the court held that “the overwhelming negligence of one party can prevent the negligence of another party from being the proximate cause of an event, even where such negligence was undoubtedly a cause in fact.” Id. at 754. The plaintiff in Carlotta was injured when he attempted to dive from the side of the defendant’s swimming pool through an inner-tube held by a friend. 604 F. Supp. at 751. In finding that the plaintiff’s negligence was so overwhelming that it subsumed the defendant’s negligence, the court outlined five non-exclusive factors to consider whether a plaintiff’s negligence is the “sole proximate cause” of his injuries: (1) the plaintiff’s negligence was active while the defendant’s was passive; (2) the plaintiff’s act was deliberate and the defendant’s was inadvertent; (3) the plaintiff was a knowledgeable adult; (4) there was no risk until the plaintiff created it; and (5) the defendant’s only negligence was in preventing the plaintiff from injuring herself. Id. at 755–56.

*5 Defendants’ reliance on Carlotta is misplaced. As an initial matter, it is not clear that Tingle was negligent in the moments preceding the crash. Defendants do not assert that Tingle’s actions violated any laws or regulations, or that Tingle clearly intended to lose control of her vehicle during the downpour. Defendants suggest that Tingle’s mere act of losing control is sufficient to find Tingle negligent and decide the issue on summary judgment. [DE 33-1 at 147]. The Court disagrees. In Carlotta, the court repeatedly emphasized that “the basis of this ruling is the plaintiff’s active creation of a risk that would not have otherwise existed but for his deliberate act.” 601 F. Supp. at 755.1 Because a jury could reach more than one reasonable conclusion about whether Tingle behaved negligently in the moments preceding the crash, it remains a question of fact for a jury to decide. Pathways, 113 S.W.3d at 89.

CONCLUSION
For the reasons set forth above, and being otherwise sufficiently advised, THE COURT HEREBY ORDERS that Defendants’ Motion for Summary Judgment [DE 33] is DENIED.

All Citations
Slip Copy, 2018 WL 6594544

Footnotes

1
The court was careful to note the limited scope of its ruling, stating that it was “well aware of the danger of allowing the doctrine of sole proximate cause, if over-employed, to eviscerate the enlightened doctrine of comparative negligence adopted by the Supreme Court of Kentucky. Nevertheless, the use of sole proximate cause remains viable under comparative negligence, although it will be a rare case where the comparative fault is not submitted to the jury for apportionment.” Id. As an example, its ruling would apply to “a person who would knowingly and deliberately violate the speed limit and then sue the police for permitting him to do it.” Id. The facts here do not present such a case.