*1 901 specific KRS 342.732 makes reference guidelines places. AMA several guidelines make it clear that some
impairment if or the exists either FVC prescribed percentage of is below a
FEV1 Although predicted lan- value. 342.732(2)may per-
guage of KRS clear,
fectly interpretation the ALJ usage
and the Board fit within the common language in the
of all of the found statute. intent, legislative may one
To ascertain Epsilon Trading
look outside sources. Cabinet, Ky.App., v.
Co. Revenue (1989). interpreta-
S.W.2d The Board’s supported by edition
tion is the 1984 guidelines, guidelines
AMA were those
in effect when the statute was enacted. legislature do not intended
We believe deprive his a coal worker of benefits if lung deficiency is based on
work-caused expiratory capacity
either his volume. conjunctive
We conclude that “or” (2) recovery largest if
subsection allows FVC than
volume either or FEV1 less percent. Compensa- decision of Workers’
tion Board is affirmed.
All concur. HUDDLESTON, By B.
Steven minor Through parent his and next (Huddleston) friend, Pearl LYNCH (Huddleston) Lynch, Pearl Individual- Appellants,
ly, HUGHES, Ro-
Most Reverend William A. Bishop of the Diocese of
man Catholic
Covington, Kentucky, Appellee.
No. 91-CA-000976-MR. Appeals Kentucky.
Court of
Dec. 1992.
cordingly jury reverse and for a remand question. trial on this Covington Latin School is a Roman Cath- college preparatory olic school located at Eleventh Street and Madison Avenue in Covington, Kentucky, next to the Cathedral Basilica. In front of the school and imme- diately parking north of the is a cathedral lot/playground. property is used as during the school’s outdoor recreation area year, the lot parking school and as for church services and other functions. All property the aforementioned is owned Covington the of Diocese titled Bishop Hughes. name of question At the time the incident in oc- curred, free-standing there were two bas- goals ketball located in the northwest cor- playground. ner The basketball goals consisted of backboards with metal rims and nets on a erected tubular metal by heavy supporting frame anchored ap- paratus. goals were not cemented to pavement. Evidently prevent Sanders, Dosker, Robert E. M. John goals pulled tipping being from forward Sanders, Associates, Covington, Dosker & down, Bishop’s agents employees appellants. for placed large pieces of concrete the base Mando, Jeffrey Stepner, C. L. Donald goal counter-weights. each to serve Adams, Brooking, Stepner, Woltermann & goals Chains were also used to secure the Dusing, Covington, appellee. abutting wrought-iron On to an fence. day injured, Steven Huddleston howev- GUDGEL, Before HAYES er, no chain was use. HUDDLESTON, JJ. Neighborhood children could enter the Covington from HUDDLESTON, alley School Judge. Basilica, to the rear the school and (a Steven Huddleston minor at the time separate gates from located Eleventh filed) this action was and his mother Pearl Madison Testimony Street and Avenue. (Huddleston)1 Lynch from sum- appeal Covington revealed that School stu- mary judgment dismissing personal their neighborhood dents and children would of- injury against action Most Reverend counter-weights ten remove from the Hughes, William A. Bishop Roman Catholic base the basketball so that the Covington, Kentucky. the Diocese of assembly could be tilted forward agree Kentucky’s Because we “Recre- lowered, facilitating “slam-dunking.” rim (KRS 411.190) ap- Use ational Statute” has defendant, 16,1988, plication to the we affirm that June On Steven Huddleston and aspect judgment We below. howev- two friends went to the School jury play custom, er believe re- does exist basketball. As was the garding they counter-weights whether the defendant’s actions removed cement goal’s they were “willful or malicious” as described from the could “dunk” base so Statute, Use effectively. under Recreational and more Huddleston was stand- immunity. exempt ing goal from ac- therefore We under the as his friends shot bas- appellants presiding appellate judge. 1. The are not related to The trial material fact.... Evidently warning, goal any issue kets. without evidence, examine the supporting judge and its structure fell Huddle- must fact, struck Huddle- but to discover ston from behind. issue of decide *3 knocked him to the not clearly ston the back and the It if real issue exists. a apparatus ground, pinning rule, him the between summary judgment purpose of pavement. and the Huddleston’s back was declared, cut liti- to often as we have broken in the incident. they if right of from their trial gants off * * * Only it try. when to have issues 1989, April In filed an Huddleston action nonmoving impossible appears for against Bishop Hughes on theories trial produce to evidence at war- party liability premises and attractive nuisance. his ranting judgment in favor should a 1991, February for Bishop In moved summary judgment be for the motion summary judgment Kentucky’s based on granted. (KRS 411.190). “Recreational Use Statute” reviewing hearing After the record and 480, (Citations Steelvest, 807 S.W.2d argument, granted the trial oral court omitted). Bishop’s motion. 411.190, Kentucky’s “Recreational no The trial court found that there was Statute,” provides: Use genuine any as to fact and issue material (2) is to purpose of this section that, accordingly, Hud- KRS 411.190barred make of land to land encourage owners dleston’s claim. Huddleston filed motion public to the and water areas available alter, summary judg- to amend vacate or limiting purposes by for recreational
ment, contending:
persons entering
liability
their
toward
(1)Genuine
exist
issues material fact
purposes.
such
thereon for
regarding
fail-
whether
Defendant’s
(3)
recognized
Except
specifically
as
against
danger-
ure
or
to
warn
(6),
provided in
an
by or
subsection
own-
malicious,
ous condition was willful or
keep
duty of
to
er of land owes no
care
actively
whether
also
Defendant was
use
entry
for
or
premises
safe
(2)
negligent;
K.R.S. 411.190 does not
or to
purposes,
recreational
others for
protect
apply to the facts of this case to
warning
condi-
give any
of a
landowner
attractive
tion,
structure,
use,
activity on such
or
and; (3)
apply,
nuisance doctrine should
persons entering for such
premises to
That
K.R.S. 411.190
unconstitutional.
purposes.
The court denied Huddleston’s motion.
(4)
recognized
specifically
as
Except
appeal
followed.
(6),
provided
own-
by or
subsection
Steelvest,
In
Inc. v. Scansteel Service
directly
either
or indirect-
er of land who
Center, Inc.,
(1991),
Ky.,
807 S.W.2d
charge any
ly
permits without
invites or
Supreme
Kentucky’s
Court embraced the
property for recre-
person
use such
Hospital
test articulated in Paintsville
Co.
thereby:
purposes does not
ational
Rose,
(1985),
Ky.,
Q. Richter, dean, your Jim did he years the school five some before the inci anything claim to know about Although dent in topics, anything occurred. these or else that direct- ly indirectly early related to this school made references on in the liti case? status, gation “trespasser” to Huddleston’s think, I
A. believe Jim was one of quickly it position abandoned as the telling the—I believe Jim was this me about litigation an open-playground policy, progressed. Pleading sort of the al that during period sometime legal that he ternative is of prac course a standard or, tice, was at maybe it was another extraordinary absent circum- school—
QQ5 respect to conduct or pleading knowingly such alternative is acts with stances not he is binding as ... when aware judicial admission.2 circumstance is of that nature or that that his conduct interrog- We note in its answer that 501.020(2). exists.” circumstance atory regarding trespass, the school stated “knowing- defines Dictionary Black’s Law per- “express that Huddleston did not have in a fashion: ly” similar playground. The mission” to use the trial knowledge; consciously; intelli- With applica- summary judgment court’s on the gently; willfully; intentionally. An indi- bility of the Recreational Use Statute is acts “knowingly” when he vidual acts predicated clearly theory on the that Hud- of his con- with the nature awareness public dleston other members of * * * “knowingly” Act is duct. done implied play- permission had to use willed, product is “purposely” if it theory unassailably sup- ground, a plan it be design, intent or conscious that the ported the evidence. The fact done, is done awareness with gates would close consequences. probable nothing does to establish that the school given implied omitted). (Citations has not consent for use Id. *5 indeed, if property; anything its it tends
of in highest court observed Kentucky’s opposite. indicate the to George, Ky. N.R. Co. v. 279 Louisville & (1939), 24, that: Kentucky’s pro- 129 986 Recreational statute S.W.2d Use 411.190(6): at vides KRS negli- or wanton constitute [T]o willful Nothing gence necessary in this limits in not to show ill will section it is way any liability person injured, which otherwise exists: but an en- toward the life, person, tire care (a) absence For willful or malicious failure to of which in- property or others exhibits guard against dangerous or warn a con- consequences to makes a case dition, use, structure, activity. or difference legal or constructive willfulness. meaning phrase or of the “willful mali- omitted) (Citation 129 Id. S.W.2d 989 against cious failure to or warn condition, use, structure, (Emphasis supplied). or ac- 411.190(6) tivity” as used in KRS is an 411.184, addressing punitive dam- impression issue first in the Common- meaning: ages, defines “malice” as wealth. [Ejither specifically is in- conduct which Black’s Dictionary Law defines “will- tangi- by tended the defendant to cause ful” act as: plaintiff intangible injury or to the or ble
Proceeding from a conscious motion of conduct that is carried out defen- will; voluntary; knowingly; deliber- flagrant to dant both with indifference Intending actually ate. the result which rights plaintiff of the and with intentional; designed; comes to pass; subjective such awareness that conduct purposeful; not accidental or involun- bodily in death or will result human tary. harm. Premeditated; malicious; done with damages generally, Addressing punitive intent, pur- or evil or with a bad motive Supreme Court Horton v. Union or pose, with to the natu- indifference Co., Ky., 690 Light, Heat & Power S.W.2d unlawful; consequences; ral without le- 382, (1985), (2d) cites the Restatement gal justification. 908(2) (1979) makes the fol- Torts and § (6th Dictionary, 1599 ed.
Black’s Law lowing observation: 1990) (Emphasis supplied). “[Ejvil “reckless indiffer- motive” and above, are “willfully” rights noted ence of others” consid- As terms to * * * [Njegligence “knowingly” synonymous. are often used inter- ered as changeably. Kentucky’s gross de- when has the same character of Penal Code person damages as “knowingly” outrage justifying punitive as “a fines follows: (1992). Building Components, Ky., 2. See Goldsmith v. Allied 833 S.W.2d regarding does willful and malicious misconduct in tion exists whether the School injury intentionally torts where the is great “evidenced the entire want care inflicted. Just malice need not safety. be to indifference” Huddleston’s expressed may implied from be out- The evidence is uncontradicted that the conduct, rageous may so too wanton or fallen basketball had disregard reckless for the lives safe- occasions, yet number each time it was ty implied of others be from the nature upright set security with no additional of the misconduct. place prevent It con- a recurrence. Kinser, Tyler Ky., R.B. Co. v. 346 ceded that children playing basketball (1961), S.W.2d holds that “malice parking School lot often at- imputed wrongful where the act evi tempted to re- “slam-dunk” basketballs great denced the entire want of care or moving counter-weights balancing consequences indifference and the free-standing tilting otherwise goals, rights of others.” Black’s Law Dictio forward. 956-957, nary similarly, acknowledges that Principal Larcher testified: term “malice” need not used exclu Q. Did tell you school sively custodian] to characterize a deliberate intent [the he goalposts was aware that those do harm: supporting apparatuses and their had person- Malice law is necessarily prior fallen on other occasions will, al hate or ill but it is that state of injured? date that Steve Huddleston was mind which is reckless of law legal rights of the citizen. I A. believe so. believe he men- *6 weight something trying tioned about Black’s defines “willful and malicious instance, it down. In one would chain he injury” as follows: down, chain, it the kids cut the or some- For such to exist there must be an thing like that. wrong through intent to commit a either actual malice or from which malice will note, again, securing We that no chain was be implied. an injury Such does not nec- goal in- day Huddleston was will, essarily or ill involve hatred as a jured. mind, state of but arises from intentional Former headmaster Father Heile ad- also wrong just committed without cause or knowledge the dangerous play mitted * * * excuse. It may merely involve place taking goals: at disregard what one knows to willful Q You all knew and understood and duty, against good an his act which is anticipated try to that kids would slam- wrongful itself, morals and in and and jump up dunk the and ball would at times necessarily which injury causes and is grab hang onto rims on? intentionally. done yeah. A Oh Our own students even (Citation omitted) at (Emphasis Id. 1600 it. did supplied). warning There no evidence that a was Consequently, although agree we posted regarding the hazards connected Bishop Hughes with nothing that goals day with the Huddleston was remotely suggests record Coving- that the injured, or a warning that had ever been “deliberately ton School intended” to harm Huddleston, posted. In an affidavit attached to disagree we Huddle- that the terms alter, ston’s motion to “willful amend vacate necessarily or malicious” and sole summary ly wrong judgment, School entail an “intention do cus- acknowledges injury.” Anthony inflict todian Tuemler accordingly We believe that jury question goal that fell regarding exists oh Huddleston had fallen whether acted “with on other School indifference occasions. He further states that consequences” up natural of its in con on it actions each occasion had been set back tinually re-setting only per with being without additional measures em- functory precautions A jury ques- ployed prevent goal taken. falling from definition preme adopted a definitive again.3 Tuemler notes a number of court that In Kirschner v. employees and officers of the word “willful.” school were aware Ky., Company, goals. & Electric of the hazards connected with the Louisville Gas (1988), was called Indeed, the court Tuemler he 743 S.W.2d states that “believes” per- it 381.232 as injured upon had most to construe KRS Huddleston intentionally-inflicted injuries. recently day fallen “a or so fell tains to before [it] so, expressly adopted Pro- doing the court on Steve Huddleston.” word Prosser’s definition fessor testimony, we Even without Tuemler’s “willful” as follows: statements the Larcher and Heile believe defined type conduct has been present regard- of material fact Torts, Keeton on the Law Prosser & ing willfully whether the- school or mali- 34, 5, pp. 212- (1984),Chapt. Sec. 5th Ed. against a ciously failed to or warn 213 as: condition, use, structure, or ac- 411.190(6)(a).4 tivity, KRS They apply to conduct which ... still, essence, negligent, rather than Supreme has held Since our Court harm, but actually intended to do 411.190to be constitutional Sublett proper state of which is so far from a 328, States, Ky., v. 688 S.W.2d United respects many it is treated in mind that (1985), reject as ar we moot Huddleston’s if it so intended.... were guments attacking the statute’s constitu meaning assigned to “will- The usual 1.030(8)(a); tionality. See SCR Common “wanton,” “reckless,” ful,” accord- Basnight, Ky.App., 770 S.W.2d wealth used, is that ing to taste as to the word (1989). We need not decide wheth intentionally done an act the actor has er the issue of the statute’s constitutionali character in disre- of an unreasonable ty properly preserved appeal. was in this gard known or obvious risk of a judgment part, below is affirmed in great highly make it so as to part, reversed this case is remanded follow, and probable that harm would proceedings opin- consistent with this usually accompanied which thus is ion.. *7 conse- conscious indifference to the quences .... HAYES, J., concurs. Id. at 842-843. GUDGEL, J., by separate concurs Here, although highly it is that doubtful
opinion. appellee’s agents that jury a will conclude GUDGEL, Judge, concurring by separate consciously indifferent to the conse- were opinion: permitting of children to remove quences Although majori- I concur in most of the weights from and the concrete the chain ty opinion, separately for the limit- write offending goal, I of the basketball the back purpose expressing my ed of individual rea- the record am constrained to conclude that concluding genuine that there a sons for genuine a issue of material fact creates issue of material fact as to whether the a this is sufficient to withstand vein which appellee’s agents of amounted to a conduct summary judgment tested motion for when failure to or to “willful” warn Steelvest, by supra, standard. Howev- against a structure at Cov- er, majority, I direct that unlike the would purposes for ington School appellee’s of whether conduct the issue 411.190(6). “willful” should be submitted to view, Prosser’s definition of my majority jury pursuant In has overlooked Kirschner, adopted in rather controlling precedent in our su- that word as a which warning precautions posted or additional taken could have 3. Tuemler mentions constitutes, effect, pavement. resetting trap." been cemented to the “in jury. is a for a practice submits that the school’s 4. Huddleston repeatedly repositioning with no pursuant than to the different definition of promulgated POWELL, word as in the majority Tony Michael a/k/a opinion. Foster, To do otherwise violates rule Appellant, requiring existing supreme us follow -1.030(8)(a). precedents. court SCR Kentucky, COMMONWEALTH of Further, perceive I fail to that there is Appellee.
any issue of as to fact whether the conduct No. 91-CA-001554-MR. appellee’s agents purposes of the Appeals Kentucky. Court statute was malicious rather than willful. place, first words “willful” and Dec. 1992. “malicious” are used in statute in sense, mutually exclusive as demonstrated
by they the fact that separated are
disjunctive “or,” ordinarily word which Further,
used to exclusivity. connote al-
though the words “malicious” “willful” similar, they certainly
are not synony- are they
mous and should not be treated as
having legal meaning. Indeed, an identical generally
the word “malicious” has been involving
defined in law a state of by,
mind which is characterized or which with,
involves acts are which done wicked See,
or evil intentions. e.g., Black’s Law (6th 1990).
Dictionary ed. Such state of clearly egregious
mind is much more
culpable implicated by than that which is Moreover,
mere act. in my opin- “willful”
ion there is no evidence the record suffi- support finding
cient to conduct appellee’s agents was motivated
“malicious” To state mind. conclude
otherwise, done, majority as the has is both
unjustified Thus, and unwarranted. al-
though I concur the result reached *8 majority, I would remand this action trial as to limited issue whether appellee’s agents
the actionable conduct of Further, submitting
was “willful.” this
issue to the jury, would direct the court
to define the “willful” in word accordance adopted by its definition as
with the su-
preme Kirschner, supra. court in