Memorial Sports Complex, LLC v. McCormick
499 S.W.3d 700
Ky. Ct. App.2016Background
- Memorial Sports Complex designed and built baseball fields (2002) and specified fence construction by subcontractor Geddes; Memorial chose not to install a warning track, colored piping, or extra bottom reinforcement.
- In 2005, minor David Mowery collided with the fence while fielding a ball and suffered a fracture; he sued Memorial for negligence in 2008 after reaching majority.
- Memorial filed third-party claims against coach Daryl McCormick, father Dale Mowery, and fence contractor Geddes seeking indemnity, contribution, and apportionment.
- After discovery, the trial court granted motions (judgment on pleadings/summary judgment) dismissing the third-party claims with prejudice but preserved Memorial’s right to an apportionment instruction at trial.
- Memorial appealed; the appellate court consolidated appeals and reviewed the dismissals under the summary-judgment standard.
Issues
| Issue | Plaintiff's Argument (Memorial) | Defendant's Argument (3rd-party Ds) | Held |
|---|---|---|---|
| Availability of indemnity | Third-party failures (coach/father/contractor) primarily caused injury; Memorial seeks indemnity | Memorial created/maintained the hazardous design and thus cannot be indemnified | Indemnity denied — Memorial was primary and efficient cause; third parties at most failed to act against Memorial’s created hazard |
| Availability of contribution | Memorial seeks contribution from third parties for damages | Contribution is displaced by statutory apportionment (KRS 411.182) | Contribution unavailable; apportionment statutorily governs fault allocation |
| Effect of dismissing third-party defendants on apportionment | Dismissal deprives Memorial of apportionment remedy | Once impleaded, dismissed third parties may be allocated fault under KRS 411.182 | Dismissed third parties can still be included in apportionment; Memorial can receive an apportionment instruction reducing its liability |
| Duty owed to Memorial by third parties (basis for third-party liability) | Third parties owed duties to Memorial such that indemnity/contribution are appropriate | Third parties owed no duty to Memorial; their liability to plaintiff (if any) does not create a duty to Memorial | Third-party claims dismissed — no duty to Memorial; dismissal does not prevent apportionment to them at trial |
Key Cases Cited
- Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky. 1987) (indemnity appropriate where defendant did not participate in primary wrongful act)
- Degener v. Hall Contracting Corp., 27 S.W.3d 775 (Ky. 2000) (contribution and indemnity remain viable after adoption of comparative fault)
- Kroger Co. v. Bowman, 411 S.W.2d 339 (Ky. 1967) (product/provider primarily liable over other parties who failed to inspect or warn)
- York v. Petzl Am., Inc., 353 S.W.3d 349 (Ky. Ct. App. 2010) (manufacturer not entitled to indemnification where no agency and manufacturer could be sole cause)
- Kevin Tucker & Associates, Inc. v. Scott & Ritter, Inc., 842 S.W.2d 873 (Ky. Ct. App. 1992) (third-party defendants may be dismissed yet remain subject to apportionment if impleaded)
- Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219 (6th Cir. 1997) (dismissed impleaded third parties may be included in jury apportionment under Kentucky law)