Morgan v. Scott

trier fact to un- in situations “will assist the Thus, Willett noted Special Justice as to determine a derstand the evidence Newkirk, [and] in dissenting opinion his issue, qualified an fact in witness as 700: SW.2d skill, experience, expert by knowledge, testimony explaining phe- Expert education, be training, or able [should to] [, delayed re- nomenon recantation KRE 702. testify thereto.” and some details] omission porting reasons, should now break For these abuse should be of child sexual victims majority ju- precedent, joining limited purpose admissible allowing the introduction of risdictions rebutting an on child victim’s attack for purposes such evidence rehabilitation testimony credibility.... Any such accompanying admonition and with preceded by limiting instruc- should be It purpose. the use to such is for limiting expert’s effect that testi- tion I the majori- this from reason dissent and mony is not intended should not this ty’s opinion on issue. to determine whether the victim’s used true. allegation abuse sexual case, cross-examination, during

In this credibility was attacked

the child victim’s at trial of new

on the revelation details which had never before been the events Timothy MORGAN, Appellant, police to the or social workers. revealed v. Thereafter, the Ms. called Commonwealth E. and James Candria SCOTT Brown, the Director Clinical Service Scott, Jr., Appellees. Center, the Purchase Area Sexual Assault commonality of a child who addressed and more about the follow- giving details abuse James E. Candria Scott and counseling. She was ing called Scott, Jr., Appellants, again stand rebuttal address further v. concerning created the defense issues Buick, GMC, Pontiac, Moore delayed reporting the child Inc., Appellee. appeared “happy” incident and to be a explained child. Ms. Brown that this is unusual, typi- not at all and is sometimes Buick, GMC, Pontiac, hand, on cal. On other cross-examina- Inc., Cross-Appellant,

tion, just she a child admitted because happy not mean appears does she has been Scott, E. Scott and James Candria sexually Clearly, Appellant’s at- abused. Jr., Cross-Appellees. demeanor, tack on child victim’s initial delayed 2006-SC-000693-DG, reporting omission of details and 2006- Nos. SC-000701-DG, suggest was intended to fabrication ac- 2007-SC- 000282-DG. life cording experiences. one’s usual However, abuse, in cases of sexual estab- Kentucky. Supreme Court of and acceptable lished scientific studies May have shown that these events appear- Rehearing Denied Oct. ances common children who are Thus, sexually knowledge abused. commonality of these events in these injuries for all

plaintiffs’ becomes liable when, on it plaintiffs damages appeal, remaining that the co-defen- determined dant, against appor- whom fault was also tioned, proximate was not cause have been injury and should not found that he liable. conclude does. AND FACTUAL PROCEDURAL II. HISTORY. legal presented

The questions these complex, but the essential un- appeals Chesnut, Boehl, Stopher Pamela Adams derlying appeals facts of the are common Graves, KY, LLP, Lexington, & Counsel simple. Timothy Morgan stopped Appellant Timothy Morgan. for Pontiac, Buick, GMC, Inc., to Moore test Patterson, Deborah H. Rania Marie Ba- pickup drive a Silverado truck. Chevrolet sha, Snell, Wyatt, Tar- Virginia Hamilton talking Morgan After about the truck with Combs, Louisville, KY, rant & William J. awhile, salesperson allegedly copied Baird, IV, Baird, III, Jesse Baird William Morgan’s with driver’s license1 and set off Baird, P.S.C., Pikeville, KY, & Counsel for Soon, however, Morgan on a test drive.2 Buick, Pontiac, GMC, Appellant salesperson realized the truck was low Inc. gas, on which necessitated a return to the dealership. salesperson testified that Johnson, Blackburn, Rhonda J. Gary C. refueling, Morgan after he asked to wait Johnson, PSC, KY, Pikeville, Gary C. salesperson while the talked to his manag- Appellees Counsel for Candria Scott and er; but drove off the lot in the Scott, E. Jr. James family

Silverado his before the sales- contrast, In person returned. tes- OF OPINION THE COURT salesperson tified that a not accompany did INTRODUCTION that, him on the first test drive and believ- issues, other Among appeals so, these ask ing permission he had to do he drove us to examine extent of a car dealer’s girlfriend the Silverado off the lot with his liability injuries arising out of accidents passengers. and child as What is undis- during that occur a test drive. We hold puted company is that Moore Pontiac’s that, presented, at least under the facts policy required employees one of its the dealer should not have been lia- held accompany a customer on a test drive. ble. drive, During Morgan the test lost con- Silverado, question

We also consider the of wheth- trol crossed into another traffic, er a jury appor- tortfeasor whom the lane of a and struck vehicle driven only portion a liability misty tioned Scott. A rain light Candria Although copy Morgan's Morgan’s driver’s li- Much is made in the briefs about purported- cense made Moore Pontiac was only being twenty-one years old at the time and, thus, ly lost never introduced into the allegedly "scraggly” the test drive and to his record, we have been directed to no evidence appearance. Morgan’s appearance age and suggesting Morgan was not a licensed legal are irrelevant to the issues in this case. day driver on the of the test drive. however, falling, Morgan Appeals, and surmised that the Sil- granted the peti- Scotts’ hydroplaned. Scott in- verado Candria tion for extension of original opinion its jured her knees and fractured her left and opinion issued a new in which it added femur. language remanding the case “with di- rections Morgan designated as lia- husband, James, Scott and her

Candria ble for 100% of the damages.” assessed Morgan sued and Moore Pontiac to recov- Scotts, Morgan, the and Moore Pontiac all injuries er for Candida’s and James’s loss petitions filed for discretionary of consortium. The Scotts claimed that review. granted discretionary Morgan negligently had driven and that review in all cases, in three Moore Pontiac had failed its duties to and we resolve all three in this operation ensure safe of its vehicle. opinion. combined trial, eventually The case went to where causing admitted the accident. III. ANALYSIS. The trial court directed a verdict on Cand- A. We the Court Appeals as Affivm ($274,339.28). past ria’s medical bills to the Scotts’ Appeal.

jury apportioned equally fault between Morgan.3 Moore Pontiac and In addition The Scotts contend that the Court bills, past medical awarded of Appeals erred in ruling that Moore Pon $1,160,200.00 in Candria future medical tiac legal had no liability for the accident bills; $500,000.00 past mental or physi- the resulting injuries. and We disagree. $2,000,000.00 pain suffering; cal mental It physical suffering; long future has been the law in this $100,000.00 awarded James for loss of con- Commonwealth owner, that a vehicle’s sortium. The trial court judgment entered such as a dealership, inju is not liable for accordingly.4 ries sustained party during third test drive if the vehicle’s owner or a repre

Moore Pontiac and each filed an owner, sentative of the salesper such as a appeal. The of Appeals Court affirmed as son, is not present the vehicle during Morgan, but reversed as to Moore Pon- hand, the test drive. On the tiac, other a vehi finding that “Moore adop- Pontiac’s cle’s owner may potentially be tion liable for policy of the internal [requiring injuries sustained employee party Moore Pontiac to be third if the present for test expose does not it to owner or representative drives] his or her pres panel Scott....” A divided of the Court of ent during the test drive.5 Our holdings Chevrolet, There, course, 3. The Scotts also sued Moore a salesmen. of it could with dealership sister to Moore Pontiac that propriety actually be said that the car was Silverado, the record title owner of the for custody within the control or of the salesman. failing ordinary inspecting to exercise care in great weight authority recognizes of Silverado; repairing but liability of the dealer in such a situation. On no found for Moore Chevrolet. hand, the other authorities unani mous, discover, holding far so as we can supplemental judgment, In a the trial court responsible, that a dealer is not in the absence also ordered Moore Pontiac and contrary, injuries aof statute to the for re $3,887.24 pay of Scotts' costs. by persons ceived third where an automobile See, Woods, prospective purchaser, is loaned to a who is a e.g., Wayne’s Ky. Adm’x v. 275 driver, 477, (1938) ("In competent Clearly, for trial. the cus 121 S.W.2d 957 Wilhelmi v. Berns, 618, 625, acting only Ky. tomer was for the dealer in a 274 119 S.W.2d we held injuries purpose a dealer liable to a third restricted sense. It was not the of person for being received where the car was driven the transaction to affect the dealer’s a relation customer, accompanied by ship persons. one of the dealer's with third Such benefit as 630 negli- vicariously Morgan’s liable for held to be accord appear

on those issues end, cases.6 types pres- in these the Scotts gence. rule Toward general they contend theories under which ent two not contest this set The Scotts do be hable for their Moore Pontiac should They actually concede law. tled rule of First, they contend that injuries. re Kentucky precedent the established (or inaction) cause it to actions Pontiac’s liability for an accident garding a dealer’s statement quoted be liable under our oft a test drive.7 But occurring during Eagles, Aerie Fraternal Order Grayson perti is not precedent Scotts contend 3738, Claywell Inc. v. “every per- No. they argue that Moore Ponti nent because every person other duty owes a son indepen from its own liability arises ac’s ordinary care in his activities to exercise being rather than negligence acts of dent hold, day present of motor istic to in the uses might arose from accrue to the dealer himself, heavy and not when traffic is the rule vehicles and not of the customer reactions exception, occupant of a motor that the dealings the customer and third from between factually any right omitted); control or (citations vehicle has Johnson- persons.”) driving operator.” over the control Shifflett, Corp. v. 462 S.W.2d Ford Kitchens LeMaire, 239, Gaspard v. 245 La. 158 So.2d 430, (Ky.1970). (1963). Although distinguish- also able, held that the another state court has ("The (2008) § Motor Vehicles 858 6. 61 C.J.S. negligence passenger imputation to a be- generally a motor vehicle is not owner of negligent the driver’s conduct based cause of wrongful negligent operation or liable for the theory passenger upon a that the had control prospective purchaser, of the vehicle a "legal fiction....” Wat- over the vehicle is a agent or the owner’s is unless the owner District, Regional Transportation son v. rule, general present in the car.... As 1988). (Colo. P.2d the owner of a motor vehicle or his or where vehicle, present agent her in the is Also, holding argument an could be made that negligent wrong- liable for the owner is not injuries liable result- an automobile dealer for operation prospective the vehicle ful only ing drive where the dealer from test prospective purchaser purchaser. A is usual- during employee present the test drive had an vehicle, ly regarded a bailee of the and not a disincentive for dealers to could serve as agent one as an or servant of the owner or employee accompany prospective have an engaged joint enterprise in a with the owner. purchasers drives. Such a diminution on test However, liability may imposed where the dealer-accompanied in the number of test agent negli- personally owner or his or her is socially appear to have the drives would gent, entrusting as in the vehicle to an incom- safety, goal furthering public desirable permitting operation petent driver or of a implicit theory a dealer since in the Thus, a vehicle deal- defective vehicle. motor represen- when it has a should be liable damages resulting er from an is liable present assumption an that test driv- tative involving if the accident one of its vehicles carefully operate will vehicles more when ers negligently dealer entrusts the vehicle to representative present of the dealer However, incompetent driver. the relation- (based upon now-disputed that the belief permissive ship the dealer and the driver or representative would have at least dealer's alone, standing prospective purchaser, is not over the test driver’s some theoretical control (foot- liability.") sufficient to create vicarious vehicle). operation of the omitted); So, case, (2008). Highway § 625 biles and holdings pinning liability earlier examine our Traffic vehicle owner for on a car dealer or other occurring during Although precedent appears injuries a test drive if a 7. our to be based upon theory passenger may representative have of the dealer or other vehicle that a vehicle, during operation physically present in the car over the of a owner is some control that, explore recognize although distinguishable But we need not fur- we the test drive. hand, interesting opinion be- that issue in this from the case at least one state ther challenged our appellate opined cause the Scotts have not court has that is unreal- "[i]t

631 Certainly spite phrase use of injury.”8 its the catch ‘universal prevent foreseeable espoused in principle care,’ duty Grayson of case itself dem- statement, disagree but we with the that duty that the onstrates referred is not liability application that its leads Scotts Indeed, without limits.”10 we remain com- for Moore Pontiac. the longstanding mitted to tort principle liability upon negligence that based

First, is factually Claywell is dissimilar premised upon prerequi- the traditional Claywell case at hand because involved sites, liability. later shop proximate dram And we noted such cause and foresee- holding Claywell much of in might that our ability.11 Simply put, concept of a been superseded by statute.9 Sec- duty universal of care is not so broad as to ond, importantly, and more our language lead to a conclusion a vehicle’s owner Claywell speak creating in of new did automatically has legal duty breached a of Rather, our causes of action. statement simply by permitting care an apparently an expression general principle of the competent driver to take the owner’s vehi- that each member of the public owes Or, words, cle for a test drive. in other a duty public remainder of the a to exercise generally vehicle owner satisfies his or her in her everyday reasonable care his or duty of care in simply test-drive situations affairs. by determining before test drive that the prospective purchaser and test driver noted,

As the has Appeals Court is duly licensed and is otherwise obvi- Claywell parties “by is often invoked advo ously impaired.12 Since Moore Pontiac cating liability or a theory cause met relatively its low burden to previously action where none existed and ascertain an legal authority lacking. otherwise De- was not incompetent driv- area, holdings safely many injuries in of which this are cle is liable for caused incompetence. general, upon In based bailment doctrine. driver's unless there facts and circumstances which 328, (Ky.1987). 8. 736 S.W.2d 332 might reasonably inquiry, put dealer on obliged competency he or she is not to test the 14, Logsdon, DeStock Inc. v. 993 9. No. S.W.2d entrusting and skill the customer before 952, (Ky.1999). which, 955-58 instrumentality her him or with an though may highly dangerous even it become Wilson, 875, (Ky. 10. James v. 95 S.W.3d 891 operation, improper use and is not inher App.2002). ently dangerous.... In absence knowl edge contrary, may rely dealer on See, e.g., v. compe Reece Dixie Warehouse and evidence driver's license as of the Co., driver....”) (footnotes omitted); Cartage (Ky. tency S.W.3d 445 n. 6 ("It Wheeler, App.2006) Rogers (Ky. well-established to es S.W.2d 1993) ("When negligence plaintiff Rogers tablish Daugherty let take the (1) (2) prove: duty; must a breach of off the see if vehicle lot to she wanted to (3) it, duty; proximate purchase duty was the which cause of he had if determine she (4) injury; damages. which in resulted had a valid driver’s license. K.R.S. 186.620 provides person ofAll these elements are essential to a valid that no shall authorize or claim.”). knowingly permit a motor or vehicle owned by any person controlled him to driven See, e.g., legal right 8 Am.Jur.2d Automobiles and who has no to drive. 7 Am. Cf ("A Highway § Highway 625 motor vehicle deal Jur.2d Automobiles Traffic Traffic places part § er who provides one his or her vehicles in the that a dealer who prospective purchaser, places hands of a or one act one of his vehicles the hands of latter, knows, ing prospective purchaser whom he she who he or in the or knows of reasonable care should care should know is exercise exercise reasonable know, incompetent safely operate incompetent operate to be the the to vehi to vehicle 632 harm,” or if harm is suffered

er, that the such “the the Scotts’ claim reject we reliance of the other or the of this case are because of circumstances unfortunate person upon undertaking.”15 the extraordinary to hold Moore Pontiac third so cannot these criteria. ordinary breach of The Scotts meet purported a liable for care Scotts.13 that agree with the of Appeals We Court reasonably not relied the Scotts could have closely re and The Scotts’ second upon policy regarding Moore Pontiac’s recovery is that Moore theory lated having salesperson accompany a a test duty ordinary care to assumed a Pontiac showed that driver because evidence argu of the Scotts’ gist the Scotts. policy’s the Scotts were unaware duty assumed a of care ment is that Moore all, logically After existence. one cannot Scotts, rest toward the rely upon And if the an unknown. even failing adopting and then to public, by Scotts had somehow divined existence requiring in-house rule a follow its own policy of Moore Pontiac’s in-house before employee accompany Pontiac to Moore accident, they pointed no evi- have to disagree. his test drive. Morgan on We tending prove dence to that Candria Scott adopted Restate- previously We differently drove in reasonable reliance (Second) § regarding ment of Torts 324A policy. internal upon Moore Pontiac’s necessary liability for for the elements voluntarily duty.14 also with the of a assumed We Court breach 324A, ... Pontiac’s to Appeals § who undertakes that Moore failure Under “[o]ne policy to to another which he observe its own in-house did render services necessary pro- increase the risk harm to Candria Scott. recognize as should First, reject any per or person things, argument a third his we that tection of adoption or of an subject liability person entity’s to to the third for son business subsequent from internal physical resulting guideline policy harm his failure to protect guideline to his un- failure that au reasonable care to follow internal exercise exer- leads under dertaking, person’s tomatically if’ “failure to Second, § cise to see Moore reasonable care increases the risk of 324A.16 fail how Co., injuries Equipment caused driver's in liable for Clark Ostendorf competence.”). (Ky.2003). S.W.3d 538-39 contrary, nothing 13.To the we find extraordi- 15. Id. at 538. Scotts, nary upon by about the facts relied reject the Scotts' under also claim raining slightly it was such as the fact that on liability, § other for which is accident; 324A's basis Morgan day that fact premised upon voluntary undertaking "to (well early twenties above the le- was in his perform duty owed the other to the third age possess gally permissible a drivers’ person....” great license); pains Id. The take Scotts Morgan's pur- the fact that vehicle van"; point they seeking that to hold portedly purported an out was "old nor the vicariously Morgan's liable for Moore Pontiac fact that the vehicle test drove was (the meaning they against negligence, arguing ruled the Scotts on are not "fast” improperly Morgan’s duty truck their claim Pontiac assumed maintained); Scotts' operate during nor the assertion that care the truck with due danger- unduly happened the accident on test drive. roadway, of ous which should have See, Corp., e.g., Murphy forewarned, v. Second Street agree with been because we (holding (Ky.App.2001) n. S.W.3d it held Moore Pontiac that "cannot be liable to follow its internal failing prevent ... defendant’s failure driver from test filling policy by report incident after driving out [Candria on the same road Scott] nightclub plaintiff “did not enough travel.” was assaulted at deemed safe during by closing failure to abide its own inter- argument Pontiac’s and that Moore the risk of harm policy nal increased judgment Pontiac was entitled to a as a noted, Appeals As the of Candria. Court matter of have already law. We affirmed policy, without internal Moore Pontiac the Court of Appeals’ conclusion that responsible could have “lent its ears to Moore Pontiac should not have been held making drivers without itself liable for the for liable damages. Scotts’ So Moore damages negligence. caused their The Pontiac’s that argument it was entitled to subsequent existence and non-observance judgment of a of is matter law moot. Like- nothing in-house rule did to increase wise, although shall address the propri- risk. exactly this The situation is what it ety of the Scotts’ counsel’s closing argu- would have been had Moore Pontiac not during ment our of Morgan’s discussion policy.” instituted the And testi- appeal, that issue is moot as to Moore that going speed fied he was under the Pontiac. and, furthermore, limit before accident C. We the Court Appeals’ Affirm of safely that he drove more during the test Regarding Decision Morgan’s Percentage family drive because his was him than Liability he of salesperson would have driven had the Therefore, accompanied alone him. it is Morgan contends that the Court of clear that Moore Pontiac’s failure ob- Appeals erred granting petition for an policy proxi- serve its in-house extension its then opinion, and extend injuries, mate cause of the which Scotts’ ing opinion assign its per one hundred

fatal to against the Scotts’ claims liability damages cent and against Morgan, Pontiac.17 We therefore affirm the Court despite jury’s finding that Morgan was of Appeals’ conclusion that Moore Pontiac only fifty percent responsible for should been granted a directed ver- injuries resulting Scotts’ damages. dismissing it, dict against Scotts claims We disagree and accordingly affirm the judgment and that against Moore Pon- Court of Appeals determination. tiac must be vacated.

B. Because Have In support argument his Affirmed he Appeals’ Regarding Court Decision percent should bear fifty the liabili- Appeal, Scotts’ Appeal Moore Pontiac’s ty injuries, Morgan for the Scotts’ relies Moot. primarily upon the decision Court this in Prudential Insurance Company v. separate appeal, Moore Pontiac filed a Life Moody,18 premised a decision essentially arguing on KRS the trial court 454.040, the statute that allows allowing juries committed reversible error Scotts’ to make improper joint damages against counsel or remarks assess several about Moore Pontiac’s financial condition multiple Morgan’s defendants.19 We find 1985) duty assumption (Ky. create a new or constitute an 18. 696 S.W.2d 503 duty of a have.”); did [defendant] otherwise State, Angnabooguk trespass 19. KRS 454.040 states: In actions of 26 P.3d (Alaska 2001) jury may ("[party’s] joint damages assess several internal rules against guidelines duty defendants. When the finds do not create a care for damages, judgment [party].”). several shall be in plaintiff against favor of the each defendant 17.Reece, (stating damages, regard 188 S.W.3d 445 n. 6 for the several without negligence, plaintiff damages to establish petition, amount of claimed in the prove duty joint judgment must defendant’s breach and shall include a proximate injury). was the cause of the costs. Corning decision in Owens Our to be mis- Prudential upon reliance Life Parrish, to is more the Fiberglas Corp v. factual it contains a critical placed because point: difference. to may properly not be allocated [F]ault Life, a determined In Prudential settling party a or party, a dismissed negligent and Carney, was party,

that one the the unless court or nonparty fixing his injuries, plaintiffs for the liable fault; party was at first find fifty percent. Carney, at of the fault share otherwise, no to has fault allo- party however, for his responsibility escaped 411.182; Floyd v. Carlisle cate. KRS liability resulting be- and the negligence Inc., Co., 758 S.W.2d Construction limitations had ex- of cause the statute “If there is an active as- (Ky.1988) remained, and in both in fact He pired. against joint tortfea- of a claim sertion law, injury, but the run- “at fault” is to and the evidence sors sufficient put each, limitations his of ning liability statute to an the issue submit jury’s ver- beyond required reach of instruction is negligence apportionment of fault the tortfeasors is remaining fifty percent whether or not each of The dict.20 of the at the time party-defendant the other tortfeasor. The rested added). The mere (emphasis trial.” Id. negligent his connection between causal has or has party fact that a been sued damages not increase and the did conduct to permit the factfinder settled does plaintiff had waited too simply because fault to that part allocate total against Carney. claim long assert a to party.22 sharp Carney in Pruden- In contrast is Coming clear from rings What Owens escapes liability Pontiac Life, tial Moore only among may apportioned be that fault nothing liability incur it because did against those whom evidence liabili- and, law, a matter of its actions were as ty was sufficient to allow submission inju- cause of the Scotts’ proximate not a The jury. inability of fault to the issue of Prudential applicability ries. The Life sufficient Morgan present or the Scotts to it was ren- is further diminished because part of evidence of fault on the before the enactment of years dered three any proper eliminated allocation Pontiac 411.182(1), requires apportion- which KRS should fault to Moore Pontiac. all actions ... ment of fault tort “[i]n on apportionment not have been instructed (1) party one involving fault more than only party was the liable. because ” action..., Here, there is not evidence, When, party one under the party” “more than one fault. injury, an shown to caused fault Only Morgan only party at fault. resulting liability legally or and its cannot only Morgan duty caused breached rationally elsewhere. This apportioned be Carney Life, Prudential injury. In expressed by also concept was decision liability at fault but avoided because Best, Appeals of the Court of Jenkins Here, expired.21 statute of limitations appellant right claimed the in which the avoids for the sim- appeal Moore Pontiac tort a defendant action it nothing legally did of his co-defendant order ple reason that dismissal possibility apportion- of an preserve proximately injuries. caused insurance, (Ky.2001). 696 S.W.2d at 22. 58 S.W.3d 20. Prudential Life Id. of Appeals cross-appeal. ment instruction.23 The Court that new issues exist, that, properly cannot in a right petition while this does “it raised noted rehearing, but we do not see right this matter as give party appor- does not issue, having raised a new nor do we see persons liability tion whose has fault adding how a cross-appeal already to an not exist.”24 judicially been determined complex procedural appellate process liability judicial- has been Moore Pontiac’s necessary would be to address this mat- not to There ly determined exist. should ter.26 The Appeals’ Court of initial conclu- apportionment. been no not, sion that Moore Pontiac’s actions were Morgan emphasizes that our deci law, aas matter of a proximate cause of Hays,25 sion Hilen echoed damages Scotts’ left Morgan as the 411.182, enactment KRS firmly of estab only party whose injury fault caused the concept fundamentally lished the that it is therefore, ipso facto, he was hun- one any party unfair to burden with more lia percent dred at fault. Correcting of the than share the fault bility his would trial judgment court’s to reflect what the justify. agree, but we can nothing We find law and the evidence clearly estab- fundamentally unfair assigning about one simply lished was the natural aftermath of percent injury hundred of the fault for an of Appeals’ original opinion. Court only party duty to the that breached a The of Appeals’ Court decision to extend injury. caused the Opinion provide guidance to the trial Morgan argues Ap- the Court of court in correcting judgment was well peals procedural committed a error purview within its under Civil Rule 76.32. granting request the Scotts’ for extension D. We Find No Error in Other Issues opinion regarding of its issues that were by Morgan. Raised properly preserved not for appellate re- Morgan raises seven somewhat interre- opinion view. The initial Court lated issues in separate appeal. his We Appeals simply the trial reversed court’s below, review them but find no error to judgment regarding of Moore warrant reversal. Morgan. Pontiac and affirmed as to La- ter, of Appeals granted Court 1. The Trial Court’s Failure to Pre- Scotts’ motion for an extension of that Segments Videotaped Deposition Screen original then opinion and issued a revised Testimony Played Jury During for opinion which a provision added remand- Closing Argument was a Harmless Error. ing the entry matter to the trial court for Morgan contends that the trial court judgment against of a Morgan for all of by permitting portions erred of a physi- damages jury. determined videotaped deposition testimony cian’s proper preserving displayed means of the is- be to the during closing sue, contends, argument would have been without conducting first hear- protective ing.27 Although urge Scotts have filed a trial courts to See, Commonwealth, (Ky.App.2007) 23. e.g., Department 250 S.W.3d 26. Thomas, Highways v. 427 S.W.2d 1967) (Ky. (refusing to consider issue raised added.) (Emphasis 24. Id. petition rehearing). time in for first (Ky.1984) (supplanting 673 S.W.2d 713 Although videotaped record the trial contributory negligence doctrine sup- clearly upon show the video does screen fault). planted comparative segments, which the viewed the we esti- playing by ensuring control their pulously such hearings exposing before conduct segments presented to hold that jury, we decline matters is, alone, hearing standing overly overly em- lengthy, are not do the lack of case, error. and are not party’s reversible one phasize testimo- of the witness’ misrepresentation rul previous with a agree Jersey with a New ny.31 We also there is Appeals ing of the Court a trial pronouncement court’s wise counsel prohibition against blanket no court videotaped of a portions playing selected jury during closing argum for a deposition instruction, cautionary give should opinion should not be But our ent.28 the time the video preferably that a trial court holding as misconstrued judge summation.... The played during invariably permit segments such must attorneys jury inform the should during closing displayed jury to the the video to assist permitted to show Instead, we hold argument.29 they signifi- displaying in what consider have of the Commonwealth the trial courts func- testimony, jury’s but it cant refuse, the re permit, or to discretion obligation tion and to determine segments closing in videotape of playing all of on its recollection of facts based argument.30 evidence, including both direct and witnesses, and of all cross-examination a trial court exercises its If place any extra em- jurors should permit usage segments of discretion to testimony portions played on of phasis during closing argument, videotapes judges that the trial must scru- back.32 emphasize substantially closing length segments plaintiff’s would be of the mate that the total they jury’s in the mind at the time approximately three fresher played to the deliberate.”) (citations omitted). minutes. Muhammad, 361, System Payne, Mercy N.J.Super. v. 28. Owensboro Health 30. v. 359 State 675, 1999), 70, (2003) ("Trial citing (Ky.App. judges 24 S.W.3d 678-79 820 A.2d 82 Farms, Inc., setting 298 permissible v. Cumberland Condella broad discretion in 872, (1996). N.J.Super. They may permit 689 A.2d boundaries of summations. proposed playbacks, some or all of the video Obviously, closing argument evi- since is not may reject entirely. they their use or Commonwealth, dence, 263 S.W.3d Dixon guided bal- determination is each case (Ky.2008), and counsel should against ancing proponent the benefit to the during closing introduce new evidence seek to opposing party. possible prejudice to the argument, may present then counsel Rejection may con- also be based on undue jury during closing argument only portions of time, inability delay sumption to avoid be- already testimony that have been recorded summations, potential or tween to confuse into evidence. entered jury, any appropriate mislead the other Special ex- consideration. caution should be Condella, ("Although in 29. 689 A.2d at 875 playback testimony to avoid of an ercised videotape the case at bar the review of the nature.”). inflammatory lengthy, procedure could result was not this long delays closing arguments between Condella, A.2d at 875. impair orderly which could and efficient jury process. administration of the The court Muhammad, 820 A.2d at 82. Since Mor- deny have discretion to or limit the should gan argue a cau- does not about the lack of portions videotape application to of the show tionary jury in this case instruction to the testimony necessary if time to review the during regarding snippets played the video testimony unduly delay plaintiff’s would clos- defendant, thereby closing argument, we shall not consider ing, prejudice Moreover, permits argument if a trial sole court on this issue is the trial to a segments played to be video court committed reversible error failing during argument, we closing view snippets allowing before Jersey holding court’s that a another New display Scotts’ counsel to them jury. to the jury’s presence, trial court “out In the allegation absence of even an proposed por therefore view the should prejudice substantive from videotape testimony open tions of the snippets played contents jury, on that it court the record make sure we conclude trial that the procedur- court’s accurately reflects the evidence.”33 This al failure to the snippets screen for itself hearing should ensure that prophylactic them permitting before to be played for trial proper court exercises control was a harmless error. snippets proposed over counsel’s use of 2. The Trial Court Did Not Err during argument, testimony closing video Permitting the Play Scotts’ Counsel to Ed- thereby ensuring closing argu best ited Portions Depositions During Video ment does not into a contest to devolve Trial. employed which side the determine best During chief, the Scotts’ case in the videographers or editors.34 Scotts’ played counsel for the jury selected there was in Although discussion portions of videotaped depositions. several case the this between trial court coun Morgan argues that the trial court erred issue, parties agree on this all to sel seem by permitting play the Scotts’ to counsel that the trial did not personally court view portions selected of videotaped those snippets planned the the Scotts’ counsel to disagree. depositions. We during closing argument per use before mitting display snip counsel to those video 32.01 specifically permits a CR to the The trial pets jury. court’s failure party play part to or “any deposi all of to view the before snippets permitting ....” tion So there was nothing inherently counsel to them to the an display jury was the improper about Scotts’ counsel’s deci error. Since we are to “disre constrained play only portions sion to of selected these any gard error or defect in the proceeding depositions. Morgan If desired re rights which does not affect the substantial deposition(s) of played mainder to be parties[,]”35 we of must now determine jury, required he could have either whether that error was harmless. present the Scotts to of the remainder does not contend that the video deposition(s) to the or he could have snippets to played jury during done so But Morgan himself.36 did not arguments closing any option. Scotts’ contained avail himself of either In these (such situations, being problems types substantive as too we with the lengthy or misrepresenting Appeals’ holding the doctor’s earlier Court Instead, complete testimony). Morgan’s required court trial is not to mandate on (CR) Kentucky whether the trial court’s failure caution 35. Rules Civil Procedure jury was erroneous. 61.01. Condelta, ("If 32.01(d) only part deposi- (emphasis A.2d at 36. See CR add- ed). party, tion is offered in evidence party require may adverse him introduce Muhammad, ("A any may part ought A.2d trial at 81 other which in fairness to be introduced, highlight part any reduced to a battle of considered with the films.”). may any party parts.”). introduce other although note that portions that additional motion its own object no time to dis- contends he had videotaped deposition be an edited Scotts, still, editing by the he done jury.37 to the played time for research and despite plenty of Moreover, Morgan does contest reflection, us the edit has not shown how refused their offer he Scotts’ assertion improperly con otherwise ing distorted entirety of at during to introduce trial In depositions question.38 densed depositions ques- the video least one of sum, although encourage parties we objection of the of an- tion. And because possible as much notice provide defendant, trial court admon- other of their opposing court and counsel trial deposition(s) that the ished the deposi portions to use video intention been edited. trial, during do not find that the tions we only authority cited by permitting court erred Scotts’ trial 30.02, generally gov which Morgan is CR certain play portions selected counsel nothing gen but depositions; erns in this case. depositions 32.01’s clear and eral rule contravenes CR 3. The’Scotts’ Counsel’s Reference usage of edited specific allowance During Financial Status Clos- Morgan’s Finally, trial. videotaped depositions at Argument Does Not Necessitate a ing reject Morgan’s argument that he was Trial. New object properly at trial because unable to argument, his give adequate During closing him notice Scotts’ did not Scotts attorney that Moore Pontiac had videotapes their to use the edited stated intent Morgan damage the done to during require There is no notice not sued trial. either Mor- undisputed And it is vehicle because it believed ment in 32.01. its CR gan nothing wrong done or provided par counsel all that the Scotts’ it “get trial de did not think would dime ties and the court with index Pontiac Morgan. Although scribing testimony by to be out of’ not stated present the video contemporaneous objection no referencing Morgan, the location of ed trial and to stenographic that in the tran was made that comment. Counsel later testimony instruction script. agree apportionment with the stated that the So we Court it “Morgan disposal important had at his was because was the “ultimate Appeals that identify or specifically to and lo instruction that determines whether means any- testimony Candy really gets Scott] cate the video portions [Candria being Again, although to not mentioned presented thing.” order determine contemporaneous objection no portions Morgan, whether of the testimo additional understanding Shortly made to this statement. ny would assist was thereafter, argued the Scotts’ counsel that theory his case.” 32.01(d), Ephraim party initial Davenport McDowell who makes the of Memorial Inc., Hospital, (Ky.App. fering portion deposition S.W.2d of a of a should not 1988) (“CR permits reading 32.01 of a sponte ruling put hindered a sua to so (d) portion deposition, subpart of a and evidence.”). much as one more word into opposing party opportuni rule allows any ty parts to be require to other introduced We note that even in his brief before the right require for the sake of fairness. The stated, Appeals, Morgan merely Court of portions such to be be additional introduced may testimony in have been these "[t]here counsel, longs opposing and it is their objectionable depositions and should that was responsibility right. to avail themselves have been removed....” upon call the court to CR Absent a observe lia- further to or percent imply directly found state that if the Mor- ble, gan virtually penniless. case get Scotts would “the same was And Mor- gan’s quite him against [Morgan], judgment counsel’s unusual decision to client, they argue him Pon- to the against [Morgan] closing jury that his [Moore Pontiac, they filed suit not Moore would had had should be found pri- tiac] A [Morgan] marily responsible him for the truck.” against injuries Scotts’ objection made to was contemporaneous not linked the relative financial statement,39 and, motion for along with a status of Moore Pontiac and Morgan mistrial; thus, any but the open trial court denied did not door for the Scotts’ repeatedly relief. counsel to refer Morgan’s penury.42 So we conclude that the Scotts’ Many ago, decades our predeces counsel’s statements here were improper eloquently is sor court noted that “[t]here commentary Morgan’s upon purported fi- applicable is not poor no law nancial status. rich, any applicable to the nor likewise not like law to the rich that is applicable question then becomes meaning applicable poor,” wise improper whether those statements were part attorney on “an endeavor of an prejudicial or were harmless errors under jury by litigant to inflame the minds of the Indeed, predecessor CR 61.01. our court referring to the financial either of status of explicitly even noted that reference to a improper.”40 parties party’s financial status counsel is “not court’s predecessor the wisdom of our always prejudicial....”43 Our analysis of subject on this remind statement complicated by this issue is the fact that a con counsel reference to the financial timely objection was made to one of general a party dition of to a civil action is the statements at issue.

ly improper. We note that does not contest pat

The statements at that a for Moore issue witness Pontiac had al- and, ently Morgan’s poverty by ready Morgan’s refer to to referred insurance sta- inference, tus, Moore Pontiac’s financial without from deep objection Morgan. Dur- that pockets. ing We with the Scotts the bench conference the regarding jury is permitted objection counsel to inform the of to Scotts’ the counsel’s reference wealth, of legal apportionment Morgan’s the effect of liabilit to lack of the purported y,41 go but the statements in trial court question specifically correctly based Although angle videotaped way litigants’ rights safeguard 39. of the rec- to to a fair unclear, possible ord it is for is that counsel verdict is allow counsel to inform the to principal speaker Pontiac was the at legal apportionment of the effect of of the bench conference. significance argue of such determina- result.”). tion in of the overall the context Jones, 395, Ky. v. S.W.2d 40. Walden 289 158 609, (1942). also, City e.g., 612 See Jones Morgan's passing 42. We construe counsel’s Green, Bowling (Ky. 354 S.W.2d 751 closing argument Morgan’s reference in to ("an 1962) part an attor endeavor on the enough "broad shoulders” to be a statement ney jurors by influence the minds of the to Morgan prepared accept jury's that was to referring to the verdict financial effect of the verdict, attempt inject ultimate not a veiled to party improper, although is the ref on either Morgan's proceed- status financial into the may necessarily prejudicial.”). erence ings. Inc., Young Transportation, 41. v. J.B. Hunt Walden, ("The (Ky.1989) best S.W.2d at 612. S.W.2d harmless that the comments were relief, part, conclude at least on its denial testimony insurance-related errors. fact that this jury. presented already had been By Err Did Not The Trial Court in- improper earlier conclude that Regard- an Refusing to Give Instruction trial of insurance should into the sinuation Mitigate ing Alleged Failure to Candria’s harmful effects have lessened the Damages. Her to improper reference counsel’s Scotts’ trial court contends that Morgan status. Morgan’s financial by failing to committed reversible error however, is the lack of important, Most Scott’s jury regarding instruct Candria to stem- prejudice demonstrable damages mitigate failure to her purported All ming from comments issue. all physician’s to follow of her failing essentially relies Morgan’s counsel disagree. treatment advice. We is fact that prejudice to upon establish large but not unani- jury’s verdict law, party a Kentucky Under First, speculation be sheer mous. it would mitigate to his or her dama required into re- find that were coerced jurors to evidence ges.44 party So if a introduces Morgan because turning against a verdict has party properly that another failed purported deep pockets. of his lack her mitigate damages, his or Next, contrary Morgan’s argument failure-to-mitigate-dam given should be logic presume it notwithstanding, defies A ages trial court’s failure instruction.45 ver- jury inexplicably increased its properly presumptive to instruct (or against per- increased the dict ly So the becomes prejudicial.46 question ultimately centage assigned of fault it evi specific there was sufficient whether Scotts Morgan) because counsel support mitigation dence introduced Morgan’s improperly ostensible referred instruction. Like the Court of damages Prejudice in area lack of wealth. this Appeals, not. we find there was if, apparent be far as would be

would more typical, more counsel contended law, Kentucky a tortfeasor Under Morgan was blessed with abundance claimant as him and is “takes the he finds financial resources. against entitled to neither credit nor setoff damages be amount of the claimant’s balance, im-

On conclude that cause conditions preexisting physical adversely preju- did not proper comments rights. susceptible which make the claimant more Morgan’s dice substantial So we See, evidence, duty law e.g., Single Family whether that is a common 44. Davis v. Fischer Homes, 767, Ltd., duty statutory duty.”); Farrington (Ky.App. Mo 231 S.W.3d 780 or a tors, York, ("It 2007) Fidelity Inc. v. & Co. New is well-settled this Common- Cas. 319, ("Each (Ky.1957) mitigate party party that dam- 303 321 wealth a must his S.W.2d upon ages.”); Equitable Society to is entitled to an Assurance an action instruction Life Merlock, 189, Ky. theory his the case if evidence to United v. 253 69 there is States 12, it.”). (1934) ("It general S.W.2d is rule of sustain 15 plaintiff application that where sustains Heisel, 32, 46. McKinney v. 947 S.W.2d 35 disease, injury damage by an or reason of it is ("In (Ky.1997) jurisdiction this it is a rule of damage.”). duty to his his minimize longstanding frequent er repetition and that Co., presumed to Manufacturing 45. Clark v. 910 roneous instructions Hauck 247, claiming appellee (Ky.1995) (holding prejudicial; it to be that an S.W.2d that is 251 showing Kentucky party a “basic law” that "a harmless error bears burden tenet of affirmatively prejudice every duty that no resulted from entitled instruction in to a error.”). supported by entered into the facts mitigate than injury, greater injury, damages.48 to or to would As the Court of Ap- with health.”47 have been the case better noted, peals aptly “[w]hile there was some and a smoker at the Candria obese testimony that weight excess and smoking time of the accident. contends may contribute to the failure of bone frac- weight failure to lose Candria’s and to heal, tures to properly nothing the ex- him stop smoking entitled to an instruction pert testimony directly any connects com- regarding alleged failure to miti- Candria’s plications in healing process to these her gate damages. ” factors.... only would have been en Because there was no evidence that mitigate titled to a failure to instruction Candria’s failure lose weight stop and relating weight failure to lose Candria’s smoking her heal, caused femur to fail to stop smoking and after the accident if he Morgan is not mitigation entitled to a had specific showing offered evidence damages her instruction smoking obesity continued had related to Candria’s worsening caused a of her condition attrib obesity smoking.49 utable to her failure to follow reasonable

medical advice. But Morgan did not ad Morgan further contends that he requisite specific testimony. duce In was entitled to an relating instruction fact, Dr. specifically Akers testified that mitigate failure to damages because of weight Candria’s did not cause her femur failure alleged properly Candria’s to use a Also, only to fail to Dr. Hegg heal. testi prescribed bone stimulator aby physician fied generally nega that the use of tobacco help heal her fractured femur. Dr. tively healing affects of fractures and that Hegg partner, Tau, testified that his Dr. stop Candria had been advised to using prescribed had an electrical stimulator but tobacco; but he did know whether a log showed that Candria used stopped using Candria had tobacco and the bone pre stimulator half the (and, thus, specifically was not asked did Hegg scribed time. But Dr. not testify did testify) specifically whether Candria’s alleged that Candria’s failure to use the tobacco use specifically retarded heal impeded healing bone stimulator of her ing of her femur. general fractured Such fractured So femur.50 testimony is insufficient mandate a regarding plaintiffs instruction failure to Appeals Court there “lack of Coleman, Wemyss damages they mitigated 729 S.W.2d would be (Ky.1987). ordinary, person reasonable under similar cir- cumstances. One need not take best of all possible injuries, employ one’s Proven Products care of Sales and Service v. Cf. Crutcher, (Ky.1971) adapted injuries.”) means best to cure S.W.2d such (footnotes omitted). (holding compensation in workers’ case that general claimant’s failure follow admoni- weight tion to lose was not sufficient to cause Hegg "agree 50.Dr. was asked if he would benefits). reduction in something that this stimulator was that she needed the prescribed?” to use all time ... as Hegg’s Dr. generally Damages response simply you § 49. See 22 was that ”[i]f Am.Jur.2d 367 (2008) (“The it, going try to and do doctrine of avoidable conse- it doesn’t tend to quences you vague, may work unless use it.” That invoked as the basis for a some- hypercritical nonresponsive specific what a answer is not examination of the conduct of injured party. duty mitigate the statement or conclusion that to is not Candria's failure absolute; recovery fully is diminished to to use the her femur the stimulator caused mitigate plaintiff timely. extent that the fails to the fail to heal 642 accident, may a that the has left femur support mitigation a testimony to

direct undergone multi- never heal has properly, instruction.” her surgeries attempt inju- to heal ple Say as a Law Matter We Cannot 5. ries, undergo surgical pro- may and more was Excessive. the Verdict that accident, future. the cedures in the After there contends that was Morgan limited; mobility was and she is Candida's jury’s approxi the support no evidence dependent upon more her husband (half of verdict which mately million $4 Additionally, jury help. awarded to Moore Pon improperly apportioned was than the maximum amount Candria less tiac). concedes that Scotts Morgan services, sought had for future medical she recovery sort of but entitled to some were suffering, physical past mental verdict was excessive argues jury’s physical suffering. future mental and was no of exces “there evidence because Furthermore, awarded Candria or oth intoxication speed, impairment, sive nothing permanent on her claim for im- operation involving Morgan’s factorfs] er power money her earn pairment of that would have caused the the vehicle Finally, the future. awarded a awarded verdict this jury to have sought than he on his claim for James less had been tried alone.” magnitude conjugal of services and relations with loss that returned contends Moreover, Morgan has not Candria. large verdict because of the Scotts’ such expenses shown that Candria’s medical closing remarks at re improper counsel’s or inflated. To the were unreasonable financial status. So parties’ garding contrary, Morgan’s own provides brief that trial court erred Morgan contends dispute no Ms. was Scott “[t]here denying 59.01 motion for new his CR orthopedic injuries received serious disagree. trial. We required surgical intervention.” On balance, therefore, we, like Court of proper ruling “a on Since say Appeals, cannot that the trial court’s depends great trial to a for new motion refusal to aside the set verdict excessive which upon may readily factors extent clearly erroneous. record[,]” appear appellate may a trial court’s to deny not disturb decision Morgan expresses understandable motion for a new trial that deci unless jury’s finding concern that fact “clearly appel erroneous.”51 As an sion been respect damages may have influ court, late our task is “review the record apparent availability enced whether, when viewed from a and decide Pontiac, deeper pockets of Moore and his prevail standpoint ‘most favorable’ to apparent significant own lack of resources. party, support is evidence to ing there Kentucky a long maintained judgment.”52 verdict and standing jury’s finding doctrine Scotts, light independent finding most on of its on In the favorable damages.53 trauma the amount of KRS suffered immediate 411.182 Candria 599, Smith, 1028, Swift, (Ky. 42 538 123 Miller S.W.3d 601 Estate U.S. S.Ct. 51. 2072, (2003). L.Ed.2d 1056 2001). 155 Graviss, (Ky. Davis v. S.W.2d Smith, Energy, See Hill Inc. v. Sand 1984). grounds was overruled on other Davis (Ky.2004); Scuddy Mining S.W.3d Co., Energy, Inc. v. Motor Sand Hill Ford Couch, 553, (Ky.1956). v.Co. 295 S.W.2d 554 483, (2002). Ky., 83 S.W.3d 493-95 Sand vacated Co. Hill was later Ford Motor v.

643 by requiring that doctrine Morgan maintains jury finding make their as to fault and decides whether a juries plaintiffs past medical in bills were reasonable damages separate interrogatory instruc- and injuries stemmed from the underlying the presumed jury tions. It is will cause of action.56 So a trial court should to it follow instructions issued great exercise caution granting before above, trial court.54 As stated in Part But, directed verdict on those issues. un it opinion, of this would be sheer D[3] case, der the facts of this the trial court speculation presume jury’s that the as- did not err by refusing to submit the mat damages improperly sessment of was in- ter of past Candria’s expenses medical by the apparently disparate fluenced jury. Morgan wealth of and Pontiac. The question regarding pro 6. The Trial Did Court Not Err priety of medical bills does not become a a Directed Granting Verdict as to Candria jury’s matter for the resolution if there is Expenses.

Scott’s Past Medical nothing in the tending record to show a dispute about the amount of those bills or proof, At the the trial close their relationship alleged injuries granted court a directed verdict of underlying the action. For example, in $274,339.28 past on Candria Scott’s medi Jones, heavily upon by relied Morgan, the cal expenses claim. contends the evidence plaintiff showed did not trial court granting erred the directed claim to be hurt seek medical atten disagree. verdict. We tion about two weeks after the accid fact, ent.57 In plaintiff called “Generally, judge a trial cannot attorney before phys she had even called a enter a directed verdict unless there is a physician ician.58 And a testified that he complete proof absence of on a material damage found no attributable to the un disputed issue or if no issues of fact exist derlying trauma.59 ques So there was a upon which reasonable minds could diff tion for the plain as to whether the hand, however, er.”55 In the case tiffs medical expenses were reasonable presented has not evidence to underlying and connected to the accident. past show that Candria’s medical expenses unreasonable, improper, Likewise, were or not at McElroy,60 Carlson v. the oth injuries tributable to the upon by she sustained er case relied Morgan her Morgan. collision with So there proposition that a required is not fact, disputed no issue of any question nor believe the plaintiff physician or her on the issue, on this as to which reasonable minds injuries, issue of her is similar to Jones could differ. distinguishable from the ease at hand. Commonwealth, See, Mathis, 55, 54. v. e.g., Johnson 105 S.W.3d v. Jones 329 S.W.2d 430, (Ky.2003) quoting 436 1959). Scobee v. Dona- (Ky. 56-57 hue, 374, 947, (1942) Ky. 164 S.W.2d (“It is to be assumed that ... fol- 57. Id. at 57. lowed the evidence and instructions their Davis, entirety.”); United States 306 F.3d Id. (6th Cir.2002)("Juries presumed are they given.”). to follow the instructions 59. Id. Klapheke, 55. Bierman v. 967 S.W.2d 18- (Ky.1998). (Ky.App.1979). 60. 584 S.W.2d 754 fact that a appropriate. rate But the Carlson, was evidence was there In problems impose medical trial have chosen to pre-existing court could plaintiff had necessarily involved in other accidents.61 been lower interest rate does not and had Thus, required to determine impose higher mean that its decision to plaintiffs medical More- the reasonableness rate was an abuse of discretion.63 over, in of the evidence about the expenses light percent the fact that a twelve inter- and, furthermore, underlying accident today’s may rate in economic climate est expenses whether those medical determine marketplace norm is a be well above underlying from the accident.62 stemmed to be considered properly matter in the present of those factors is None Assembly body General because that has theory Finally, Morgan’s case at hand. power and discretion to lower de might have awarded a lesser that the in legal facto interest rate contained KRS past for her medical amount Candria short, Morgan pointed In has 360.040. they awarded her less expenses because us to conclude that the nothing cause sought she for her future than the amount impose the current trial court’s decision speculation. is sheer expenses medical rate set forth in KRS 360.040was de facto of discretion. abuse which upon Since there was no issue regarding could differ reasonable minds IV. past expenses, medical the trial CONCLUSION.

Candida's by granting err a directed court did not above, For reason’s set forth the deci- verdict on that issue. Appeals sion of the Court of is affirmed. matter the trial court This is remanded to

7. The Trial Court Did Not Abuse its proceedings opin- with this consistent by Refusing to Lower the Inter- Discretion ion. Judgment. est Rate on the judgments governed Interest on SCHRODER, SCOTT, sitting. All 360.040, provides in by KRS which rele VENTERS, JJ., MINTON, C.J., concur. judgment vant shall bear part “[a] ABRAMSON, J., only. concurs in result (12%) interest percent compounded twelve in part part by concurs and dissents annually judg from its date.... [S]uch J., CUNNINGHAM, separate opinion, may ment bear less than twelve interest NOBLE, J., joins. part concurs in (12%) if the court percent rendering such part by separate opinion. dissents in hearing question, on that

judgment, after is satisfied that rate of interest should ABRAMSON, Justice, Concurring in (12%).” percent be less than twelve Mor part Dissenting part.

gan contends that the trial court erred I agree majority’s While with the conclu- reducing the interest rate below twelve sion that Moore Pontiac had no percent. disagree. law, disagree a matter of I with the con-

Morgan’s argument cept sole is that should now owe 100% of damage interest rate should been lowered the verdict. In this case the assessing of the current market fault because evidence was instructed to “con- both the nature of the conduct of rates demonstrated a lower interest sider Mercy System, Health Id. at 756. 63.See Owensboro (applying S.W.3d at 679 abuse of discretion regarding to trial decision standard court’s Id. judgment). proper interest rate on appropriate to which the party and the extent course is to remand the each case in causing conduct each was a factor the a new damages trial on only, with the complained language of.” This injuries jury directed to determine damages under Instruction No. from 8 does follow statutory the aforementioned standards to requires statute which apportionment recovered parties be from those who are in fact finder to consider “both the nature of Thus, legally fact liable. I would remand party the conduct of each fault and the this case for damages a Timothy trial as to relation between extent causal reason, Morgan. For this I respectfully and the claimed.” damages conduct KRS part in part. concur and dissent in 411.182(2). However, either formulation of (and certainly the the instruction one that CUNNINGHAM, J, joins. language pref- of the statute is tracks NOBLE, erable) Justice, in Concurring part integrated results in an verdict Dissenting encouraged, part. jury where the is indeed di- rected, to each party’s consider how con- I concur with opinion Justice Venter’s as relates to the injuries damages. duct the law apportionment. on On the 411.182(l)(a) Significantly, provides KRS question whether the entire liability for the fact finder shall indicate “the Scotts’ damages rest on should the sole damages amount of each claimant would remaining tortfeasor, Morgan, if Moore contributcnij entitled to recover be if fault rightfully Pontiac was never a party, then disregarded (Emphasis ...” supplied). can have liability, it no and whatever dam- statutory There is no directive for the ages found must be assessed fault in disregard comparative assessing against only party who does. If Mor- (2) and, damages again, quoted subsection gan damages, caused all of the he cannot actually above directs consider portion a just avoid of them because an damages the interrelationship of and each improper apportionment instruction was party’s fault. I also given. majority opin- in theory damages While are determined on the ion other issues in this case. regard being without to who is held re- However, I say cannot that Moore Pon- sponsible, jurors in fact often are affected duty tiac has no any kind this case. defendant(s). by identity of the Some I may agreed While with the of damages, items such as medical ex- jury’s findings, whether Moore Pontiac may be penses, objective circumscribed undertaken duty establishing evidence but types less well-defined policy for their for the benefit and benefit damages, such pain suffering, as are persons of customers and on the highway particularly susceptible to variance based that increased the of harm to risk Scott presence of “deep pock- on or absence it did not policy when follow its own was in case, In any given leaving the plain- ets.” question jury. fact As car sales- partial may tiff with a be verdict unfair to men, Moore a superior posi- Pontiac is in plaintiff, him granting but the whole tion know the risks attendant allow- reapportioned against verdict the le- potential ing to test drive gally parties liable customers its discussed Justice vehicles, great and it has opinion in his interest majority may Venters defendant(s). determining remaining highway unfair In which areas view, fact, my party if a some safe for the In to whom fault has test drive. apportioned subsequently publicly duty by post- been Pontiac this found to claimed law, have no as a matter of its ing policy requiring a salesman to ac- they to others while prevent risk by ures to prominently, driver a test company If Moore Pon- route, receiving that benefit. and test drive approved having an policy, the insurance their had followed its to show tiac test drivers by requiring deny have no basis would company license. driver’s policy. to the While claim related say that the might one thought, At first not a insurance is or absence of presence did not cause a salesman absence of damages, as a matter determining in factor But driving did. poor Morgan’s wreck— considered to determine law it can be aware that a sales- was well Moore Pontiac as- duty Moore Pontiac the nature of driver would a test accompanying man assuming the the reason for and sumed approved to the the driver have steered duty. route, the driver have cautioned could could speed, or even inappropriate about if duty meaningless Assumption of a to the driver to return required the duty is owed. is no one to whom there questionable. was skill lot if the driver’s clearly the beneficia- general public is The testimony, Instead, according to his own each member of duty whether ry of such and up unapproved on an Morgan ended duty or not. For is aware of public fast road, he took a curve too curvy where may public each member of the example, the vehicle. The sales- control of and lost duty not to company’s aware of a not be ar- thus could have been absence man’s may they where release hazardous waste because the safe- increase the risk gued to it, company but the come in contact bring place. were not he would guards duty public is the has the and still Pon- beneficiary. way, In the same Moore dispute the evidence There was a unsafe duty not to allow an tiac had accompanied Mor- any salesman whether without public loose on the test driver The of his two test drives: gan on either efforts to be safe. reasonable he went on the first test claimed salesman drive, claimed he did not. in this troubling most to me What is free to believe either man’s jury The was of fact for questions that there are case is ei- policy Moore Pontiac’s was testimony. if ignored that are jury determine day. or twice that ther violated once verdict, given Pontiac is a directed Moore if we were though might tempting Moore

Additionally, part of reason not what an of fact. That is policy drive the finders Pontiac created its test There is sim- appellate court should do. duty was that its own thus assumed say much evidence in the record ply too company required policy such a insurance of law Moore Pontiac had that as a matter insuring Moore Pontiac. as a condition of any If there is evidence duty no to Scott. Obviously, the insurance came from a su- support jury might believe knowledge as to the inci- which perior position of fact, give then we must def- findings its during test drives and had a dence of risk Here, de- to its decision. what would decrease erence opinion clear about Pontiac, against the facts to be Moore termined the business that risk. Moore properly Pontiac cars, Pontiac. Moore directly from al- selling benefits party in this to test drive submitted potential customers lowing duty it undertook a case because They against have insured their vehicles. itself, customers, and the its benefit of practice. attendant to such a the risks allowed, having made its decision public. not be as a a business should Such evidence, I af- weighing the would after policy, to benefit from public matter of Pontiac and against verdict firm its taking reasonable meas- activity without Morgan, apportionment and its fault be- them.

tween Wayne PARKER, Appellant,

Kenneth Kentucky,

COMMONWEALTH of

Appellee.

No. 2006-SC-000102-MR.

Supreme Kentucky. Court of

May

Rehearing Aug. Denied notes see also 8 Am.Jur.2d Automo- proper perhaps should re- in a

Case Details

Case Name: Morgan v. Scott

Court Name: Kentucky Supreme Court

Date Published: May 21, 2009

Citation: 291 S.W.3d 622

Docket Number: 2006-SC-000693-DG, 2006-SC-000701-DG, 2007-SC-000282-DG

Court Abbreviation: Ky.