Louisville Gas & Electric Co. v. Roberson

the trial court’s I affirm charges. This regret she would it. evidence respects. in all judgment compul- was sufficient to establish forcible and to withstand a directed verdict. sion SCOTT, J., LAMBERT, C.J.; join.

Thus, regard in judgment affirm the we on the Robinson’s conviction and sentence first-degree rape.

charge above, we

For the reasons set forth Lincoln Circuit judgment

affirm the regard to Robinson’s convictions for three counts of second-

and sentence degree rape first-degree and one count of AND LOUISVILLE GAS ELECTRIC judg- rape. part We reverse that COMPANY, Appellant, regard ment in to his convictions and sen- third-degree tence for three counts (Individu Mark ROBERSON Jonathon con- rape, proceedings and we remand for ally Administrator of the Estate and as opinion. sistent with this Roberson), Appellee. M. No. 2005-SC-000188-DG. ROACH, JJ., GRAVES, MINTON, and concur. Kentucky. Supreme Court WINTERSHEIMER, J., dissents Nov. 2006. LAMBERT, separate opinion in which 22, 2007. Rehearing Denied Feb. C.J.; SCOTT, J., join.

WINTERSHEIMER, Justice,

dissenting. respectfully

I dissent from Part II of the

majority opinion majority in which the re-

verses and remands Robinson’s conviction

and sentence for three counts of third-

degree rape. simply agree I cannot marriage this not offend

upholding does

Kentucky’s public policy due to the fraud on Tennessee officials and the

perpetuated by the marriage

lack of true consent to the

child, responsible for S.M.H. The adults purposefully altered her

protecting S.M.H. another certificate and took her to

birth where she was marriage,

state for the be abandoned if she did

afraid she would through marriage. So I go

not with court was correct

would hold that the trial regarding marriage as valid mar- refusing give an instruction on rape

riage third-degree as defense Smith,

Raymond Stopher, G. H. Edward Louisville, Boehl, Graves, Stopher & Coun- Appellant. sel for McKinley, Louisville, for Philip Counsel Appellee.

Opinion Chief Justice LAMBERT. appears

For what to have been reasons, safety lamp was installed street Highway intersection of at the Preston County. Lane Jefferson This was Miles a contract accomplished means of whereby Compa- Louisville Gas & Electric (LG E) lamp and ny & installed the street County Fiscal leased it to the Jefferson contract for installa- provided Court. The speci- of several such tion street and the a month- county paid fied locations acknowledged E. ly fee to LG & & E LG responsible maintaining it for that was lamp agreement under its with county. 23, 2001, ten- p.m. February

At on 8:30 Shytone attempted to year-old Roberson Highway lanes cross the five of Preston on the north of the intersection. While by an on- highway, Roberson was struck injuries re- coming vehicle died of time of It is that at the ceived. contended inter- accident the at the appears working. There section was to be some evidence that peri- inoperable significant had been es- Appellees, time. the Roberson od of father, Mark Rober- tate and his Jonathan son, of LG & negligence part claim on the lamp in failing E for to maintain the street negli- working condition and that such gence causing independent substantial factor in location. & E had no LG location, death of Roberson. respect with installation lamp, and maintenance of the street granted The trial court summary judg- duty, any, if arose from its contract E, ment to finding duty recog- LG & “no county government with to install and nized under common regard law with to such, lamp. maintain the street As the repair non-danger- and maintenance of the E of duty upon LG & was derivative the instrumentality ous of a street On lamp.” contractual it relationship had with the appeal, the Court of Appeals reversed county. upon a panel judges vote of 2-1 with the in majority writing separately. the Chief general, government Judge Combs opinion rendered the lead charged with a of care with relying upon provisions the of Restatement safety. to respect highway This re (2d) Torts, 324A, Section the so-called of quires government to keep highways “undertaker’s doctrine.” This doctrine im- reasonably travel, in a safe condition for poses upon who one undertakes to render provide proper safeguards, to and to protection services for the persons of third give adequate warning of dangerous liability for to failure exercise reasonable in highway. conditions the This includes care, providing requirements certain are warning signs the to erect to Judge met. Guidugli concurred in the re- guard erect and maintain barriers or sult that believing LG & E a to owed dangerous rails at on places highway the maintain the street lamps questioning motorists, exercising ordinary to enable

whether it a duty owed to Rober- injury care and prudence, avoid son based on his having high- crossed the themselves and others.2 way away from the Judge crosswalk.1 generally While our decisions focus on the Thus, Schroder dissented without opinion. safety of motorists and passengers, the case was their reversed and remanded to rules, trial granted necessity, apply ability the court. This such of discre- and, tionary review injury reasons herein- of motorists to avoid “others” forth, after set Ap- affirms the Court of including pedestrians. Recently, peals. Court held Commonwealth v. Babbitt3 that the Commonwealth could be held lia record,

From appears the it that LG & provide warnings ble for failure to or to E did not decide where were location, guardrails particular erect at a located; to be that the location of street and that inquiry the was fact-intensive lamps, including the one the intersection regard design guidelines, with due Lane, Highway of Preston and Miles funds, available and cost effectiveness. by county decided government. While determination held a that “[i]f We is made contract County between the Jefferson failure provide warnings or to erect Fiscal Court and LG & E is it sparse, guardrail a negligence, constitutes specifies certain street locations. Thus, discretionary factfinder must then determine from the decision was made governmental entity presence warnings that a street evidence whether the guardrail should be installed at the relevant or a prevented would have or Babbit, 2. Commonwealth, (holding Dep’t Highways 1. But see Commonwealth v. v. Auto mobile Club Ins. 467 S.W.2d apportioned that be should in accor (Ky.1971). 411.182). dance with KRS (Ky.2005).

3.172 S.W.3d 786 improve- the manner or method damages sustained reduced accor- apportion city claimant ment was left the discretion In some cir- dance KRS 411.182.”4 with city held that the was thus authorities. We cumstances, roadway will danger bridge across under no construct high- be more less obvious. Where Street, and at Second the river chasm, deep the need to way crosses a could not be the basis for failure to do so follow. In guardrails logically erect bridge, failure to erect a liability. For its circumstances, however, danger said: we roadway is not obvious and particular negli- city only guilty A of actionable be, language inquiry will in a gence places when defects or unsafe Babbitt, regard due “fact-intensive” with proxi- that it are the street constructs a of factors. In still other circum- for host of. injury complained mate cause of the stances, analysis may not be safety the reasonably If it constructs is the street already necessary government because has safe, it to made liable for the is not be that discretionary made a determination methods of con- adopt failure to safety should be undertaken. measures struction, to do or for the failure some- cases, not look behind those courts need in might might that it or not do its thing making, may accept but executive decision If, however, city the had discretion. pro- discretionary the determination that part bridge across this river as erected Howev- tective measures are warranted. Street, irrevocable, the law would er, and a of then such discretion is not Second not nec- subsequent city decision maker would of imposed upon have by a discretion- essarily previous be bound to maintain this exercising ordinary care ary determination. for reasonably in safe condition bridge travel, liability assumed no public but it ninety years ago than this

More for its failure to erect one.6 Hopk City decided Adm’r v. Gee’s of insville,5 a the issues case that addressed city liability for Adm’r also claimed Gee’s City Hopkinsville presented here. The as sufficiently light to its failure that crossed had macadamized street dangerous condition. give to notice of the ordinarily was Little River. lights that There was no contention heavy in times of passage, safe for but functioning. not As provided were dangerous. rainfall the river was swift and sufficiency lighting, the Court stated: away Hopkinsville from having After been sufficient city provided has [W]hen after day, James Gee returned for the that it has lights to make the streets day’s knowledge of the nightfall. Without reasonably safe for constructed despite presence heavy rains and case, travel, this, any is its state lamps, upon traveling Second Street respect lights. full measure of River, away and swept into Little Gee that, correct, it follows If this view is Affirming the trial court’s dis perished. for lights furnished were sufficient missal, city that the had a this Court held con- that was the character streets ordinary keep care to duty to exercise structed, make out plaintiff failed to condition; that reasonably in a safe streets inadequate a case on account of except arise as to streets did not improve; lights[.]7 city had undertaken Id. at 31. 6. Id. 4. 795. (1913). Id. at 32. 7. Ky. S.W. 30

5. 154

Ill safety negligent- principles ing promise, Gee’s Adm’r articulates certain and then it, If un- applicable government to this case. That is a ly performs causing injury. dertakes, purpose public safety, simple case of misfeasance and neither roadways, it must improve streets apply. nor nonfeasance rules privity ordinary care to put keep exercise that, Beyond a number of cases have And, reasonably them in a safe condition. defendant has imposed when the if discretionary determination is made as sig- traffic promised inspect repair (i.e., to a lighting) improving means dangers that nals or elevators create public highway safety, there they working. are not properly when ordinary exercise care to maintain the always The cases are not clear’whether safety improvement. liability depends upon negligence active principles applied When these are suffice, or whether nonfeasance would bar, to the case at certain conclusions imposed very and the fact emerge. Highway major As Preston is a actually courts do notice thoroughfare County, Jefferson and the they distinction is itself evidence county improved safety, has it for public entirely willing impose liability are county must exercise care to negligent nonperformance safety of a keep reasonably it in a safe condition. promise.8 Upon the determination that illumination Kentucky These views mirror settled component was a of safety, reasonable Court, Writing law. for this Commission- duty there was a ordinary exercise care Stanely er Osso said: W. to maintain illumination. quite elementary It is that a E, The of any, LG & if is proper degree may exercise the of care virtue of its contract county. with the The here, origin, have its as in a con- so-called “undertaker’s doctrine” as set tract. ... He contracted to relieve the (Second) Torts, forth in the Restatement of plaintiff keeping of the of the com- 324A(b), § provides that: shavings bustible incombustible. He undertakes, One who gratuitously or thereby if plaintiff became liable consideration, for to render services relying upon that it promise while was another recognize which he should injured by the violation of defendant’s necessary for protection the of a third vigilance his contractual in that person subject or things, his to liabili- respect.9 ty person to the third for harm physical discussed, resulting previously county ap- from As his failure to exercise protect reasonable care to his undertak- pears to have determined that illumination (b) ing, if ... he has undertaken to Highway vicinity of Preston of Miles perform duty owed necessary safety Lane was a or desirable person[.] improvement highway. imple- of the To Dobbs, Torts, determination, safety county The Law ment its explains: contracted with LG & E to install and

Consistent with the Restatement such, rules, lamps. maintain street As LG & E subject the defendant is of course if duty by ordinary he assumes a mak- had a to exercise care to see Dobbs, Co., 8. Dan B. 247 Law Torts H.R. Moch Co. v. Rensselaer Water 321(2001) (internal omitted). 160, 166, 896, ("The § citations N.Y. 159 N.E. 898 hand may always once set to a task be with- Lawrence, impunity though liability Cooperage 9. drawn with Louisville Co. v. 313 103, (1950). all.”). Ky. applied 230 S.W.2d also 105 See fail if it had never been 112 lamps prevent injury.” the street it installed were activities to foreseeable working

maintained in a condition. Grayson Eagles Fraternal Order Claywell, (Ky.1987). 332 S.W.2d safety pri- Provided was foreseeable, injury In it order be mary purpose lamp, necessary is not that the defendant should & E to exercise care with LG anticipate precise have been able to respect to maintenance of the street sustained, injury particu- or to foresee the has been established. LG & E Whether consequences, only injury lar that the negligent negligence, and whether its any, causing probable consequence if was a substantial factor a natural the death of Roberson will be for negligence. v. Louisville & Eaton the trier of fact to determine on remand. (Ky.1953). N.R. S.W.2d Accordingly, Ap- affirm the we Court case, E present LG & contracted peals and remand to the Jefferson Circuit maintain lamps with JCFC to the street proceedings. for further consistent every night. from dusk to dawn faulty near the accident scene SCOTT, JJ., GRAVES and concur. containing an area a residential illuminated WINTERSHEIMER, J., concurs apartment complex, highway, five lane McANULTY, J., in which separate opinion Furthermore, public high and a school. joins. policies proce- & E had no formal LG ROACH, J., by separate monitoring lamps, dissents dures J., MINTON, joins. opinion in which exclusively on instead relied citizen com- plaints. Because the street function WINTERSHEIMER, Justice, apart- an to illuminate an area between concurring. school, it complex high ment and a is rea- I the concur the result achieved sonably pedestrian that a could foreseeable my majority opinion but wish to state rea- be struck a car if the area was dark- separately. sons as a result of LG & E’s failure to ened on is whether LG appeal The sole issue keep lamps working properly. the street E duty party & owed a of care to a third Shytone’s Because was a foreseeable death and maintain street pedestrian repair to main- consequence of LG & E’s failure that it to the Jefferson lamps leased Coun- E duty tain the street LG & had a lamps, ty Fiscal Court. injury. that prevent of care to of Although precise whether issue duty prevent The foresee- universal duty pedestrians E for LG & has a ordinary injury duty able is a of care. lamps repair and maintenance of street significance placed the Circuit Court While impression, inquiry a matter of first duty of utmost care on the common law general from the rules itself is distinct in the required company an electric negligence. question of of whether lines, power of this Court has maintenance of duty question LG & E has a of care is a in- explained danger that because of the law, duty, of resolving inquiry an volved, ordinary highest degree care is the making policy the Court is determina- in the mainte- power of care context of line tion. Mullins v. Ins. Commonwealth Life Co-op. nance. Green River Rural Electric (Ky.1992). This 839 S.W.2d 245 Blandford, Ky. 206 Corp. v. previous Court’s cases have established (1947). higher degree This S.W.2d 475 care, duty providing that “ev- universal care is not to the exclusion of the universal ery duty every owes a person care, an exten- ordinary ordinary in his but rather person to exercise care ordinary sion of care in dealing streetlights with ex- on an un lighted otherwise traordinarily dangerous Rather, instrumentalities. they allege street. De- [the words, Id. In other impos- the common law negligently fendant] maintained es a universal care to streetlights on lighted an otherwise prevent injury, foreseeable which also Clay street.” v. Cooperative Electric a duty highest manifests as to use the Johnson, (Fla.2003). 873 So.2d degree of care in the maintenance of dan- comparison The focus of the is between the gerous lines, power but not to the exclu- (contract negligent undertaking for street sion of using ordinary prevent care to oth- maintenance) (no lamp and no undertaking types injuries. er of foreseeable maintenance). lamp contract for street In

Furthermore, because LG & E Clay, volun an struck adolescent was and killed tarily assumed and compensated was for walking stop while to a bus on or near of maintaining and repairing the public street that darkened because of lamps, street explained this Court has case, a faulty lamp. street In that Clay LG & E would also assume a to Electric had been contracted to maintain (1) protect parties when the failure to lamps faulty had exercise reasonable care in performing the inoperable been least two months. undertaking harm; increases the risk of The court found that jury this raised a (2) undertaken is already owed to question Clay as to whether fail- Electric’s another; (3) the third person by repair ure to street increased the third person relies on undertaking. adolescent, risk of harm to the therefore Grand Aerie Fraternal Eagles Order disposition Summary Judgment on Carneyhan, 169 (Ky.2005). S.W.3d 840 be inappropriate. implicit adoption § 324A of the Furthermore, rejected the court Clay Torts, Second Restatement of this Court Electric’s assertion that the adolescent’s explained that Roberson would have to caregiver not prove they Clay did relied on demonstrate that LG & E undertook the undertaking Electric’s of maintaining the maintenance lamps. specifically court noted protection persons, of third and that LG & that the any record lacked evidence that negligent E’s performance of that task in caregiver the adolescent’s knew the street creased the risk of harm to or faulty, jury question and raised a caused him to suffer harm because either as to caregiver whether the declined other parents JCFC or his relied on E LG & to precautions in Clay reliance on Electric’s maintain lamps. Ostendorf lamps. maintenance of the street Co., Clark Equipment (Ky. 122 S.W.3d 530 2003). Although present some facts in the case differ from Clay, the facts in E juris-

LG & cites to from cases company the electric that voluntarily con- that dictions found no to third tracted to maintain street parties faulty for a argue street party benefit of pedestrians remains that the appropriate comparison is be- the same. LG & E did owe a tween the risk of harm between the main- in maintaining exercise care tenance of the street lamps negligently lamps. street that Because is the issue performed and the risk of harm without upon which the motion Summary Judg- As lamps. Supreme Florida’s explained, comparison granted, ment was this case should is flawed be- be cause plaintiffs allege “the did not that remanded. & E Whether LG breached its negligently [the Shytone’s Defendant] installed the and whether death awas 114 Co., 225, 719 N.E.2d alleged Mass.App.Ct. LG & E’s 48

proximate cause of (1999). and are 520, breach are not before this Court These states follow jury matters for a to decide. opinion in H.R. Justice Cardozo’s Moch v. Rensselaer Water 247 N.Y. Co. & E owed a of care to Because LG (1928), 159 N.E. 896 and view repair to maintain and pedestrians benefit, depri- streetlights as a mere should lamps, Appeals the Court of in be affirmed. vation of which does not result liabili- ty. Because H.R. Moch is the seminal McANULTY, J., joins. continuing duty provide case on the public, to the I it sheds benefit believe ROACH, Justice, dissenting. light some on the issue here. simple: is whether The issue this case Moch, company In H.R. a water company, an which has contracted electric city its contract with the breached and maintain street- city with a to install city’s hydrants. fire furnish water injuries lights, can be held liable for to a fire, building caught major plaintiffs The pedestrian crossing caused while adjacent in the pressure, road where the bulbs of insufficient' water because streetlights have blown. Because the ma- extinguished. the fire could not be Kentucky “in jority opinion places sued, alleging that the water plaintiff minority overwhelming among states duty. a common law company breached issue,” Clay Elec. have considered this court, Cardozo, writing for the Justice Johnson, So.2d Coop., Inc. v. reasoned: (Fla.2003) (Cantero, J., dissenting), I every In a it is true that broad sense respectfully dissent. improvident not city contract improve upon It hard to Jus- would be wasteful, pub- is for the benefit of the Clay and I tice Cantero’s dissent will this, however, must lic. More than be length. begins him at He with a quote right of action to a give shown to that, metaphysical certainty ignored formally public member is, the failure of Louis- majority, benefit, as it is sometimes party. (“LG Company ville Gas and Electric <& said, merely must one that is not be E”) streetlight question to maintain the secondary. It must incidental and be greater risk” place pedestrians “did not in such a primary and immediate provided than if E never had street- LG & degree sense and to such danger- lights Quite simply, at all. Id. no assumption of a bespeak the & E ous condition was created LG directly to the indi- reparation make nighttime natural state of because the if the vidual members of the darkness. lost. benefit is joins Supreme now Florida’s This Court (citation omitted). N.E. at 159 897 minority an extreme adopting conduct of a distinguished court between explained: position. Justice Cantero duty to the utility impose that would a majority places Florida would large at and conduct that minority among states overwhelming not: this issue. As one that have considered a gone conduct has such “[cjases in other recognized, If forward court has commonly stage that inaction jurisdictions uniformly almost hold result, merely in with- negatively not persons utilities are not liable to benefit, positively holding a by nonfunctioning injuries caused working injury, an there actively in Vaughan v. E. Edison streetlights.”

115 on by a relation out arises a hit a car at an intersection which exists which duty go query .... The E. streetlight); an inoperative stood forward always is putative wrong- whether the Gas, Freight Lines v. Consol. Coast point doer has advanced to such a as Co., 385, Md. Light Elec. & Power 187 a or instru- have launched force (1946) duty, no de (finding 50 A.2d 246 harm, stopped ment of or has where utility a spite contract between inaction is most a refusal to become city, where two vehicles collided at good. an instrument for streetlights an intersection where the (citations omitted) (em- 159 N.E. at 898 functioning); Thompson not v. were added). phasis The court noted that the York, 682, City New 78 N.Y.2d 578 potential indefinite number of beneficia- (1991) 507, 819, N.Y.S.2d 585 N.E.2d 820 unduly ries “would be and indeed indefi- duty (finding pedestrian no where a was nitely by enlargement extended ... by struck an automobile near a nonfunc- duty.” the zone of Id. at 899. streetlight tioning because Many jurisdictions also have re unusually dangerous was not the ab impose duty a maintain fused exist streetlight); sence of the v. Yacha Gin streetlights. ing See Turbe v. Gov’t of nin, 802, App.3d 75 Ohio 600 N.E.2d 836 Islands, (3d Virgin 427 938 F.2d (1991)(finding duty pedestri no where a Cir.1991) duty no (finding where the injured an of a de- was result plaintiff was assaulted near a nonfunc energized signal, though traffic even tioning streetlight); Sinclair v. Duna utility company may have breached (D.N.J.1995) gan, F.Supp. 905 208 (ap municipality supply contract with the plying Jersey finding New law and no signal); Fishbaugh v. power to the Utah duty pedestrian by where a was struck (Utah 403 Light, Power & 969 P.2d intersection); crossing car while an 1998) (finding pedestri no where a Co., v. S. White Cal. Edison 25 Cal. by an was struck an automobile near a (1994) 442, App.4th Cal.Rptr.2d 30 431 non-functioning streetlight because (finding plaintiff no where the was unusually dangerous in street was not driving moped hit a car at was streetlight); Dattner the absence streetlights an intersection where the Lamm, 552, v. 5 Pa. D. & C.2d 1956 WL functioning, were not noting that (Pa.Com.Pl.1956) (finding 6509 no failure to maintain a streetlight does not by an pedestrian where a was struck greater create a risk than the risk creat streetlight); non-functioning ed the total absence of a automobile near Quinn 291, Ga.App. Gammino, v. Ga. Power 51 streetlight); White v. Tilcon (1935) 246, (finding duty, no S.E. Inc., KC88-0618, No. 1992 WL 813636 despite utility a contract between the 1992) (R.I.Super.Ct. July (finding no city, where collided two vehicles owed to the driver of an auto streetlights in an area where the were was not an intended mobile because she functioning); Nor El Din Shafouk beneficiary of the contract between the Bourgeois, Hamza 493 So.2d utility company municipality). and the (La.Ct.App.1986) (finding no where Id. at 1196-98. an pedestrian was hit a car near An more succinct statement of the even inoperative streetlight, though even jurisdic- applied by majority rule utility had contracted with the munici as follows: lighting tions to failed cases is pality to install and maintain street duty municipality of a to maintain The at 522 lights); Vaughan, 719 N.E.2d lights limited to those (finding duty pedestrian existing no where a is situations which illumination roadway is neces- maintain lighting under sary to dangerous avoid and potentially majority, circumstances. The through its However, hazardous conditions. it is application reliance on and of Section insufficient, improper, also held that or 324A(b), has discarded this ap- time-tested lighting defective liability, will create proach. though even the municipality has as- Finally, I would note majority that the streets, duty light sumed the its when opinion significantly expands the streets reasonably are otherwise owed beyond entities like LG & E safe. anything currently in precedent. our And C.J.S., Municipal § Corporations 748 it does so considering without the broad (2006) (footnotes omitted). Although this public policy implications of the decision. formulation of the rule specifically ad- Clearly, ability respective parties to dresses the liability city, direct of the it bear a loss is a factor to consider in the applies just city’s as well to the contractual allocation of risk. Page See W. Keeton et agents, such as LG & E. al., Prosser and Keeton on the Law of Perhaps the aspect most curious (5th ed.1984). Torts “imposition majority however, opinion, is its reliance liability tort on those who must render 324A(b) on Section of the Restatement continuous service of this kind to all who (Second) of Torts. That formulation of apply for it under all kinds of circum- doctrine,” the “undertaker’s one of three stances could be ruinous and [also] Restatement, presented alternatives in the expense of litigation settling claims imposes liability injuries to a third over the issue of whether or not there was party where a defendant “has undertaken negligence greater could be a burden to perform owed the other to payer socially justi- the rate than can be person...” the third Clay imposed which fied.” pointed Id. 671. As out Justice liability on the basis of Section 324A under Cantero: similar factual circumstances took a differ- compelling utility The cost of to ensure approach, ent relying instead on subsec- that all streetlights it maintains are (a) (c) tions of the Restatement continually in working outweighs order justify imposition Indeed, duty.1 of a any potential reduction of risk. Under Combs, Judge who wrote the Court of such, majority’s analysis, utilities Appeals case, opinion in this concluded Clay guarantee Electric must illumina- LG & E owed a to Roberson tion all the streets in the entire area pursuant to the undertaker’s doctrine un- they majority presumably serve. alternatives, der either of these specif- but believes that utilities will shoulder this ically declined to discuss the imposition of alone, burden it (b). ratepayers is Presumably, under subsection through higher who will bear the brunt the reluctance of courts to liability extend (b) rate because, under structures. This is an unfortunate subsection as dis- above, result, unnecessary given cussed most courts have declined to auto- recognize any general duty provide capable mobile insurance is (a), 1. Under imposed subsection justify either these fered alternatives to negligence perform- position, where an individual's specifically there is little need to note, however, ing undertaking his increases the risk of harm address the I issue. (c), party. to a third compelling Subsection on the other that Justice Cantero offers a cri- hand, recognizes duty tique when it can be shown under both of these theories injured party upon that the relied in his dissent Clay. Clay, 873 So.2d at See undertaking. majority Since the not of- 1198-1200. has providing required protection —in- KENTUCKY, OF COMMONWEALTH deed, it has done until so now. Appellant, (Cantero, J., Clay, 873 at 1204 dis- So.2d senting). YOUNG, Appellee. Gerald it,

Make every utility no mistake about No. 2005-SC-000556-DG. company in state that this has contracted streetlights to maintain will have hire Kentucky. Supreme Court of additional workers to avoid sort 22, Nov. 2006. majority opinion. created 22, Rehearing Denied Feb. 2007. Louisville, city only In a the size of can one imagine roving nighttime the number of

patrols that necessary identify will be malfunctioning streetlights

bumed-out and

quickly enough satisfy the onerous

created this Court. Of course as is the any

case with cost by regulated incurred

utility, the cost will be borne the cus-

tomers. recognized

Florida the costs of this ex-

panded duty rather quickly. just years

over Clay, two after the Florida

legislature reigned in the Florida Supreme

Court and effectively overturned the case (Effective

by statute. See FI. St. 768.1382 2005)

June (imposing a limitation on streetlight providers inoper-

ative or malfunctioning streetlights if the

provider repairs streetlights after actual

notice). statute, passage With the of that

Florida out minority moved of the extreme

position, meaning today’s majority

opinion Kentucky very lonely leaves in a

position. only I can hope that the General

Assembly follows example of Florida’s

legislature and leads us out of the desert

sooner rather than later.

MINTON, J., joins dissenting

opinion.

Case Details

Case Name: Louisville Gas & Electric Co. v. Roberson

Court Name: Kentucky Supreme Court

Date Published: Nov 22, 2006

Citation: 212 S.W.3d 107

Docket Number: 2005-SC-000188-DG

Court Abbreviation: Ky.