NIKOLA JAJIC v. JENNIFER SAINATO; MARRIOTT INTERNATIONAL, INC.; RLJ LODGING TRUST; AND WHITE LODGING SERVICES CORP. AND JENNIFER SAINATO v. NIKOLA JAJIC; MARRIOTT INTERNATIONAL, INC.; RLJ LODGING TRUST; AND WHITE LODGING SERVICES CORP.
NO. 2023-CA-0956-MR | NO. 2023-CA-1021-MR
Commonwealth of Kentucky Court of Appeals
MARCH 14, 2025
TO BE PUBLISHED
TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 18-CI-007456
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 18-CI-007456
AFFIRMING IN APPEAL NO. 2023-CA-0956-MR
AND AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN
CROSS-APPEAL NO. 2023-CA-1021-MR
** ** ** ** **
BEFORE: CETRULO, ECKERLE, AND MCNEILL, JUDGES.
CETRULO, JUDGE: Nikola Jajic (“Jajic“) appeals the Jefferson Circuit Court‘s April 19, 2023 judgment of a jury verdict and the July 27, 2023 order on the parties’ post-judgment motions. Jennifer Sainato (“Sainato“) cross-appeals also challenging the trial court‘s July 7, 2021 order granting summary judgment in favor of Marriott International, Inc., RLJ Lodging Trust, and White Lodging Services Corp. (collectively, “Marriott“). In appeal No. 2023-CA-0956-MR, we affirm. In cross-appeal No. 2023-CA-1021-MR, we affirm, in part; reverse, in part; and remand for a new trial.
BACKGROUND
In January 2018, Sainato traveled to Louisville, Kentucky for work. On the night in question, Sainato drank two glasses of wine at dinner and another glass or two later at the hotel bar. At the bar, Sainato met another guest, Jajic, and the two shared a table and conversation. Eventually, Sainato and Jajic went to the hotel patio to smoke, then returned to the bar. Hotel video shows the two leaving the bar area and walking of their own accord into Sainato‘s room together shortly
Sainato stated that when they went to the hotel patio to smoke, Jajic gave her a cigarette that looked “lumpy” and had a metallic taste. Sainato claimed she recalled feeling strange after smoking the cigarette and did not finish it. Sainato testified that she had declined Jajic‘s invitation to his room and her last complete recollection was leaving the bar area. She stated that later that night, she was in and out of consciousness and could not control her limbs. She recalled being choked, tied to a chair, her head banging against something, and she believed she was sexually assaulted by Jajic and another unknown man.
Jajic described the events of that night quite differently. He disputes Sainato‘s description of the cigarette and stated there was nothing out of the ordinary about the cigarette. Jajic maintains the entirety of the parties’ interaction, including sexual intercourse, was consensual and that Sainato invited him to her room. Jajic testified that after consensual sex, he took a shower in her room and then returned to his room for the remainder of the night. Jajic asserted that no one else was in Sainato‘s room with them.
At approximately 2:30 a.m., Sainato called her niece. Her niece later testified that Sainato was “hysterical” and told her that she had been sexually assaulted by multiple men. The niece contacted Sainato‘s son, who called the front
Thirty minutes later, Sainato‘s son called the hotel again and requested police presence. Marriott called Louisville Metro Police Department (“LMPD“) and eventually emergency medical services personnel transported Sainato to University of Louisville Hospital. At the hospital, a specialized nurse examined Sainato and reported signs of sexual assault, acute confusion, vaginal bleeding, and three documented vaginal lacerations. Her blood alcohol content (“BAC“) was 0.13g/100 ml at 5:45 a.m. Additional tests did not detect the presence of other drugs or substances.
Marriott‘s Director of Human Resources, Kimberly White (“Director White“), investigated, took photographs of Sainato‘s room, reviewed security video footage, and generated a report. She shared the report with members of Marriott‘s management and gave portions of the video footage and photographs to LMPD. Except for those portions of video given to police, the remainder of the hotel‘s security footage deleted automatically when the system overwrote outdated video. The existing videos showed Sainato carrying a wine glass and Jajic pulling her luggage as they went up the escalator and into her room.
In December 2018, Sainato initiated the underlying action against Jajic and Marriott. Against Jajic, Sainato brought claims of civil battery and intentional infliction of emotional distress (“IIED“). Additionally, Sainato brought a claim of IIED against the hotel and accused Marriott of negligence for (a) facilitating Jajic‘s conduct, creating an unsafe environment, and failing to follow proper policy, and (b) serving alcoholic beverages to her and “others” in violation of Kentucky‘s dram shop act.1
In July 2021, the trial court granted Marriott‘s motion for summary judgment dismissing Sainato‘s claims against the hotel for negligence, dram shop liability, and IIED. Sainato filed a motion to alter, amend, or vacate the summary judgment which the trial court granted, in part. In August 2021, the trial court reversed only its dram shop liability ruling. The matter proceeded to trial on battery and IIED claims against Jajic, and dram shop liability against Marriott.
After three days of deliberations, the jury found in Sainato‘s favor on the civil battery claim. Jury Instruction No. 1, the civil battery claim, read:
Plaintiff Ms. Sainato has brought a claim of Civil Battery against the Defendant, Mr. Jajic. You will find for the Plaintiff if you are satisfied from the evidence:
a. That Mr. Jajic subjected Ms. Sainato to sexual contact without her consent;
OR
b. That Mr. Jajic subjected Ms. Sainato to sexual contact when she was incapable of consent because she was either mentally incapacitated or physically helpless, of which Mr. Jajic was, or should have been aware;
Otherwise, you will find for the Defendant, Mr. Jajic.
The jury answered “yes” to “Do you believe from the evidence that Mr. Jajic subjected Ms. Sainato to sexual contact without her consent?”
Instruction No. 3 requested the jury to apportion fault between Sainato and Jajic for failure to exercise ordinary care. The jury apportioned 45% of fault to Sainato and 55% to Jajic.
Instruction No. 4 addressed damages. The jury awarded $1,121,000 in compensatory damages to Sainato for medical expenses, pain and suffering, lost wages, and loss of future earnings. The jury also awarded her $50,000 in punitive damages.
Instruction No. 5 addressed the dram shop claim. The jury found in Marriott‘s favor, answering “no” as to whether a reasonable person (under the same circumstances as Marriott‘s employees) should have known that either Sainato or Jajic was intoxicated when served.
The trial court entered final judgment consistent with the jury‘s findings but reduced Sainato‘s compensatory award to $666,550 consistent with the jury‘s apportionment. Both Sainato and Jajic filed post-judgment motions which the court denied. This appeal and cross-appeal followed.
On appeal, Jajic argues: (1) there was insufficient evidence to prove Sainato was incapable of consent or to prove her battery claim; (2) there was insufficient evidence to support the award of punitive damages; (3) if the punitive damages are upheld, they must be apportioned; and (4) he was entitled to a new trial due to improper statements made by Sainato‘s counsel and/or the excessiveness of the damages.
On cross-appeal, Sainato argues: (1) the trial court erred when it granted summary judgment to the Marriott on her negligence claim; (2) the jury should have been instructed on spoliation of evidence as to Marriott; and (3) the court erred as a matter of law by instructing the jury on apportionment of fault for the civil battery.
A. Jajic‘s Direct Appeal (No. 2023-CA-0956-MR)
First, Jajic argues the evidence does not support the verdict on Sainato‘s battery claim because Sainato did not prove an absence of consent.
We are “highly deferential” when reviewing jury verdicts for sufficiency of evidence. Getty v. Getty, 581 S.W.3d 548, 553 (Ky. 2019) (citation omitted). We must affirm a jury verdict unless it was so “flagrantly against the evidence so as to indicate that it was reached as a result of passion or prejudice.” Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998) (citation omitted).
Jajic argues the jury verdict is improper because “the evidence was insufficient to support [] Sainato‘s claim that she was incapable of consent, due to either being ‘mentally incapacitated’ or ‘physically helpless.‘” Jajic points out that toxicology reports contradicted her testimony regarding the possibility that she was drugged via the cigarette, and her testimony as to the amount of wine she drank does not support her claim that she was unable to consent. Jajic claims Sainato‘s low alcohol levels “would not be sufficient to incapacitate a person to the extent that they would be incapable of giving consent.” However, this conclusory statement alone is not sufficient for relief. See Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018) (finding conclusory statements paired with only general recitation of legal theory to be insufficient for relief). Jajic had an opportunity to support this
At trial, Sainato presented evidence that she had consumed alcohol;2 she felt impaired and distressed; her memory was inconsistent and fractional; she was described as hysterical and confused; and, medical staff found signs of possible sexual assault. Hence, the jury‘s verdict was not unreasonable; the jury could have believed Sainato‘s testimony and evidence showing her altered and/or impaired state of mind. The verdict is not “flagrantly against the evidence so as to indicate that it was reached as a result of passion or prejudice.” Bierman, 967 S.W.2d at 18-19 (citation omitted). We must keep in mind that “[d]eciding whose version to believe and weighing witness credibility is entirely within the jury‘s discretion.” Taylor v. Commonwealth, 671 S.W.3d 36, 44 (Ky. 2023) (citation
Second - after his sufficiency of the evidence argument – Jajic argues the judgment does not support the award of punitive damages. He claims the verdict is inconsistent because the jury first found in his favor on Sainato‘s claim of IIED but then awarded Sainato punitive damages. The jury‘s finding in his favor on one claim does not insulate him from liability for an independent claim under a separate instruction. See McDonald‘s Corp. v. Ogborn, 309 S.W.3d 274, 285-86 (Ky. App. 2009). Jajic‘s argument ignores the jury‘s independent finding for Sainato on the civil battery claim. Under Instruction No. 1, the jury “believe[d] from the evidence that Mr. Jajic subjected Ms. Sainato to sexual contact without her consent.” Regardless of the jury‘s verdict on the IIED claim, punitive damages were available based on the battery claim. See
Additionally, Jajic argues Sainato was required to prove gross negligence to recover punitive damages. This is an incomplete statement of the circumstances in which punitive damages may be awarded. By statute, a plaintiff
Jajic argues punitive damages should not have been awarded because the jury found his conduct did not “clearly exceed[] the bounds of common decency as would be observed in any civilized community.” This argument fails on two grounds. First, Jajic overstates what is discernable from the jury‘s verdict on Instruction No. 2.3 He claims the jury found in his favor on each of the three
Moreover, Jajic‘s argument again ignores the jury‘s verdict under Instruction No. 1. The jury was convinced that Jajic subjected Sainato to sexual contact without her consent. In our analysis, “[p]erhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant‘s conduct.” R.O. v. A.C. ex rel. M.C., 384 S.W.3d 185, 189 (Ky. App. 2012) (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S. Ct. 1589, 1599, 134 L. Ed. 2d 809 (1996)). To evaluate the degree of reprehensibility, a jury should consider whether:
the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
Id. at 190 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S. Ct. 1513, 1521, 155 L. Ed. 2d 585 (2003)).
Here, it was reasonable for a jury to conclude that these factors do not weigh in Jajic‘s favor. The record shows Sainato suffered physical, mental, and emotional harm in addition to economic harm as a result of Jajic‘s battery. There is an apparent indifference or reckless disregard for the plaintiff‘s health or safety when a defendant engages in sexual contact without consent. Furthermore, the harm Sainato suffered was not the result of an accident but was caused by Jajic‘s intentional acts. Therefore, Jajic‘s conduct, as found by the jury under Instruction No. 1, was sufficiently reprehensible to support their decision to award punitive damages. There was no abuse of the jury‘s discretion in awarding punitive damages to punish Jajic and deter such conduct by him in the future.
Third, Jajic argues the punitive damage award should be apportioned in accordance with the jury‘s apportionment of fault under Instruction No. 3. As a matter of law, punitive damages cannot be apportioned. See Louisville SW Hotel, LLC v. Lindsey, 636 S.W.3d 508, 521 (Ky. 2021). On this basis, Jajic‘s argument fails.
- Irregularity in the proceedings of the court, jury or prevailing party, or an order of the court, or abuse of discretion, by which the party was prevented from having a fair trial.
- Misconduct of the jury, of the prevailing party, or of his attorney.
- Accident or surprise which ordinary prudence could not have guarded against.
- Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court.
- Error in the assessment of the amount of recovery whether too large or too small.
- That the verdict is not sustained by sufficient evidence, or is contrary to law.
- Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
- Errors of law occurring at the trial and objected to by the party under the provisions of these rules.
Jajic argues a new trial is warranted because Sainato‘s counsel made improper statements during opening and closing statements, but our review of the trial record shows Jajic did not object to any of the alleged improper statements. While Marriott objected to one of the statements, Jajic did not join the objection, and neither defendant requested a mistrial. “It is axiomatic that a party may not raise an issue for the first time on appeal.” Sunrise Children‘s Services, Inc. v. Kentucky Unemployment Ins. Comm‘n, 515 S.W.3d 186, 192 (Ky. App. 2016) (citations omitted). “It was incumbent” upon Jajic to object, request an admonition, and/or move for a mistrial based on counsel‘s statements. See Lewis v. Charolais Corp., 19 S.W.3d 671, 676 (Ky. App. 1999) (citation omitted). Without any such action, this issue is unpreserved and evades our review.
Next, the record does not support Jajic‘s claim that the jury‘s verdict was impermissibly the result of passion and prejudice rather than consideration of the evidence. Jajic identifies the following as reasons the jury was prejudiced against him: (1) the Kentucky Trial Court Review contemporaneously posted about the trial and jury deliberations on Facebook; (2) Sainato participated in a podcast regarding the LMPD‘s handling of the related criminal investigation; and (3) Sainato displayed signs of grief and anguish in the jury‘s presence and was
Jajic presents no evidence that any member of the jury had knowledge of the Kentucky Trial Court Review‘s Facebook posts regarding the case. Even where jurors have been improperly exposed to media coverage during trial, to be entitled to a new trial, a party must “demonstrate[] actual prejudice.” See Davis v. Commonwealth, 147 S.W.3d 709, 729 (Ky. 2004) (citation omitted). While it is concerning that the social media post reflected knowledge of the jury‘s deliberations to the point of their being “stuck at 8-4” after two days and that a juror had COVID-19, there is no evidence that the jurors themselves acted improperly. There is no proof showing any juror had knowledge of the Facebook posts during the trial or deliberations, and there is no evidence showing actual prejudice.
Further, the podcast was produced by the Kentucky Center for Investigative Reporting in 2019 and 2020, several years before trial. Dig: Prosecution Declined, LOUISVILLE PUBLIC MEDIA, https://www.lpm.org/podcast/dig (last visited Nov. 26, 2024). Jajic had the opportunity to question jurors about their familiarity with it during voir dire but chose not to do so. See Moss v. Commonwealth, 949 S.W.2d 579, 581 (Ky. 1997) (failure “to ask the proper question[s] on voir dire” precludes relief). Furthermore,
With regard to Sainato‘s alleged displays of grief and anguish, Jajic had the opportunity to raise his concerns and request admonishment of the jury during trial. See Coulthard v. Commonwealth, 230 S.W.3d 572, 577 (Ky. 2007) (citations omitted). He did not do so. We understand that this was an “energetic and emotional trial” but there were no allegations of juror misconduct or impropriety brought to the court‘s attention during the trial. Jajic has again failed to prove he was prejudiced by Sainato‘s behavior or her proximity to the jury. Because none of Jajic‘s three arguments regarding the jury‘s passions and prejudices have individual merit, there is also no cumulative merit.
Finally, Jajic argues the “first blush” rule entitles him to a new trial. We disagree. Under the first blush rule, a damage award may be deemed excessive “if it causes the mind at first blush to conclude that it was returned under the influence of passion or prejudice on the part of the jury. Even if liberal, an award that does not shock the conscience or is not clearly excessive may not be set aside.” R.O., 384 S.W.3d at 191 (internal quotation marks omitted) (quoting Ragland v. DiGiuro, 352 S.W.3d 908, 920 (Ky. App. 2010)). In support of his argument, Jajic again claims the jury‘s answers to the various instructions are inconsistent with each other, but that is not a first blush argument (challenging the
In light of the foregoing, Jajic did not establish any error that would mandate a new trial. However, this does not conclude our review.
B. Sainato‘s Cross-Appeal (No. 2023-CA-1021-MR)
Turning to Sainato‘s cross-appeal, she argues: (1) the trial court erred when it granted summary judgment to Marriott on her negligence claim; (2) the jury should have been instructed on spoliation of evidence as to Marriott; and (3) the trial court improperly instructed the jury on comparative fault because there was insufficient evidence in the record to prove Sainato was at fault for the civil battery.
First, in July 2021, the trial court granted Marriott‘s motion for summary judgment dismissing Sainato‘s claims against the hotel for negligence, dram shop liability, and IIED. Sainato filed a motion to alter, amend, or vacate the summary judgment which the trial court granted, in part. In August 2021, the trial
The standard of review upon appeal of an order granting summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing [
Kentucky Rule of Civil Procedure] 56.03 ). Upon a motion for summary judgment, all facts and inferences in the record are viewed in a light most favorable to the non-moving party and “all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). The trial court “must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists.” Id. Thus, a summary judgment looks only to questions of law, and we review de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016).
Culp v. SI Select Basketball, 663 S.W.3d 451, 453 (Ky. App. 2023).
To succeed on a claim of negligence, Sainato needed to establish: (1) Marriott owed her a duty, (2) Marriott breached that duty, and (3) she suffered a harm that was caused by Marriott‘s breach. See Walmart, Inc. v. Reeves, 671 S.W.3d 24, 26 (Ky. 2023) (citation omitted). For premises liability cases involving third-party criminal acts, the owner of the premises owes a duty to protect patrons from only those third-party acts that are foreseeable, i.e., those third-party criminal acts that could have reasonably been anticipated by the property owner. Id. at 28-29 (citing Napper v. Kenwood Drive-In Theatre Co., 310 S.W.2d 270, 271 (Ky. 1958)). Sainato argues the trial court improperly dismissed her negligence claim
against the Marriott because the hotel had a duty to protect her from foreseeable harm, i.e., Jajic‘s alleged battery, and the hotel breached that duty. She asserts that there exists an issue of material fact, thereby evading summary judgment, because the question of foreseeability remains unanswered. However, we do not agree because, under these circumstances, foreseeability falls within the duty analysis, not the breach analysis. Culp, 663 S.W.3d at 454 (citing Reeves, 671 S.W.3d at 27-28). Duty is a question of law for the court to determine (while breach and injury are questions of fact for a jury). Id. at 453 (citing Pathways, Inc. v. Hammon, 113 S.W.3d 85, 89 (Ky. 2003)).Specifically relating to the negligence claim against Marriott (not the dram shop liability), there are no issues of material fact. The parties agree to the facts as they relate to Marriott and its staff and their duty to protect Sainato from Jajic. As the trial court pointed out in its July 2021 order,
[n]othing in the evidence suggests that the Marriott staff were aware that [Sainato] was in danger or that Jajic intended to harm [Sainato] prior to the assault. . . . The Marriott staff received no complaints about Jajic‘s behavior prior to the assault and Jajic has no known criminal history.
Sainato does not dispute those facts. She does not claim that she informed hotel staff she was frightened of Jajic or Jajic was acting aggressively while at the hotel bar. She admits she interacted with him in the bar on her own volition. Video cameras show her walking with him to her room, and she does not
Assuming arguendo that a criminal act occurred,4 whether Marriott had a duty to protect Sainato from Jajic‘s alleged actions hinges upon a question of law for the courts to decide. See Reeves, 671 S.W.3d at 27-28. We must determine the foreseeability of Jajic‘s conduct and whether Marriott could have anticipated Jajic‘s actions. See id. at 27-28. To succeed, Sainato needed to demonstrate that Marriott should have anticipated his battery. Id. She did not meet this burden.
Sainato does not state any specific act the Marriott staff did in error or should have done or did in contradiction to its policies and procedures. Sainato provided no evidence of other similar criminal incidents occurring on Marriott‘s property. There was no evidence Jajic had been an aggressive guest or that Marriott should have known he was likely to become one. She claimed emergency medical personnel responded to calls from Marriott several times per month but largely failed to prove the reasons for those calls.5 She cited to Marriott‘s workplace violence policy, but having such a policy does not prove the existence
Second, Sainato argues the trial court erred in denying her request for a jury instruction on spoliation of evidence, the evidence being the Marriott video security footage. Trial courts have discretion in deciding what admonitions and instructions to the jury are appropriate, and we review a court‘s denial of a spoliation instruction for abuse of that discretion. Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 730-31 (Ky. 2020) (citation omitted).
Before giving a missing-evidence instruction, a trial court should consider whether:
(1) the evidence is material or relevant to an issue in the case; (2) the opponent had absolute care, custody, and control over the evidence; (3) the opponent was on notice that the evidence was relevant at the time he failed to produce or destroyed it; and (4) the opponent, utterly without explanation, in fact failed to produce the disputed evidence when so requested or ordered.
Id. at 731 (emphasis added) (internal quotation marks and citations omitted). In order to be entitled to a spoliation instruction, a party must prove “significant
Director White testified that she began an investigation immediately after Sainato reported the incident. During her investigation, Director White reviewed security system video footage. She identified all footage showing Sainato and Jajic on the night in question. She then copied the relevant video clips and still photographs to a DVD and gave it to LMPD. At trial when asked about the different camera angles in the hotel common areas, Director White testified “there was not another angle that showed Ms. Sainato and Mr. Jajic at all. This was the only footage that we had that had them in the camera footage.”
Sainato did not prove the missing footage was relevant to any issue in this case. Sainato‘s counsel questioned Director White about “missing” footage and different angles, but the director consistently testified that there were no additional angles or footage showing Sainato and/or Jajic. Sainato did not prove how the additional footage taken in the common areas of the hotel – which did not show either her or Jajic – further supported her arguments about events that happened within her private room. She argues the footage could have shown other men coming in or out of her room, but that footage could have cut both ways; it could have shown men coming and going, supporting her argument, but it also could have shown an absence of men, damaging her argument.
The hotel gave the LMPD all footage involving Jajic and Sainato and explained the destruction of the remaining video as part of the normal course of business. Sainato did not show any deceit, malfeasance, or implications Marriott attempted to hide or improperly delete the security video. As such, the trial court did not abuse its discretion by failing to present the jury with a spoliation of evidence instruction.6
Instruction No. 3 improperly permitted the jury to allocate Sainato partial fault. Sainato preserved this argument by challenging the comparative fault instruction prior to trial. Our review of the contents of the jury instruction is a question of law subject to de novo review.7 Disselkamp, 600 S.W.3d at 709 (citation omitted).
Here, the jury found – under Instruction No. 1, the civil battery claim – that Jajic subjected Sainato to sexual contact without her consent. Despite this
If you find for the Plaintiff, Ms. Sainato, under either Instruction No. 1 or 2, you will determine from the evidence and indicate in the blank spaces below what percentage of the total fault was attributable to the failure of each Ms. Sainato and Mr. Jajic to comply with their respective duty of ordinary care, as defined in the definitions.
The jury apportioned 45% fault to Sainato and 55% to Jajic. Implicit in this finding is that the jury believed Sainato breached her duty of ordinary care and was at partial fault for the sexual contact. However, such an implication is legally improper in multiple ways.
First, as a general rule, jury instructions are no place for assumptions. Ten Broeck, 283 S.W.3d at 726 (“[A]n instruction is erroneous if it assumes or has the appearance of assuming an essential fact concerning disputed evidence.“) (citation omitted). By apportioning Sainato 45% fault, we must assume that the jury found Sainato breached her duty of ordinary care, but such an assumption is not permissible in jury instructions.
The basic function of instructions in Kentucky is to tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue in favor of the party who bears the burden of proof on that issue. PALMORE, Kentucky Instructions to Juries, Vol. II § 13.01 (5th ed.) (citing Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky. 1974)). And “[i]t is the duty of the court to furnish a criterion for the measurement of damages.” Kentucky Utilities Co. v. Consolidated Tel. Co., 252 S.W.2d 437, 441 (Ky. 1952).
Id. If the court wanted the jury to determine whether Sainato breached a duty, that question needed to be explicit, but this case presents a bigger problem than the presumptive nature of Instruction No. 3.
Instruction No. 3 asked the jury to determine if Sainato failed “to comply with [her] duty of ordinary care.” In essence, the trial court asked the jury to determine if Sainato was negligent8 in her own sexual battery. We know that an actor committing a civil battery cannot act negligently because the tort itself is based on intentional acts. Ten Broeck, 283 S.W.3d at 732-33. However, we do not have clear precedent addressing whether a non-tortfeasor victim of a civil battery may be negligent. After review, we believe Kentucky law does not intend non-tortfeasor victims of civil batteries to be assessed with negligence, and therefore such a victim should not be included within a comparative fault allocation.
Kentucky – through the doctrine of comparative fault – distributes responsibility in proportion to fault. Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 294 (Ky. 2015) (citing Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984)). However, implicit in our comparative fault doctrine is the fact that only those parties at fault
Only tortfeasors – parties “at fault” – may be included in the apportionment analysis. See
While we did not find Kentucky caselaw specifically on point, we believe our application of comparative fault is consistent with the treatment of the doctrine within the Commonwealth. For instance, in certain circumstances, Kentucky Courts have not extended fault to other victims of other intentional torts. See by example Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003) (apportioning fault in a medical malpractice case between a doctor and a medical center, but not the patient); see also Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Ky. App. 1998) (apportioning fault between a teacher and his employer in a sexual abuse case, but not the abused student).
We are also keeping with our broader understanding of comparative fault. We traditionally – without a showing of some malfeasance (i.e., an overt act of aggression, instigation, or exacerbation) – do not apportion fault to victims of civil assault or battery for walking in an unsafe area, standing too close to combative individuals, or other such innocuous acts. To apportion fault to Sainato here would be akin to finding she was partially at fault for her own sexual battery
RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIAB. § 1 (2000) explains:
There is an intuitive sense that a plaintiff‘s own failure to use reasonable care should not affect a plaintiff‘s recovery against an intentional tortfeasor. This intuition draws on the image of a mugger who claims that the victim was negligent for being out too late at night or for wearing too much jewelry. In other situations, however, the intuition to reject a plaintiff‘s negligence as a comparative defense might not be as strong, such as when a defendant who otherwise batters a plaintiff honestly but unreasonably believes the conduct was privileged or that it was not harmful or offensive[.]
While not binding, we note that our application of comparative fault – or more accurately, our disinclination to apply comparative fault under these circumstances – is consistent with caselaw beyond our borders. For instance, in Illinois, a plaintiff‘s contributory negligence will not reduce a defendant‘s liability for willful and wanton conduct. Burke v. 12 Rothschild‘s Liquor Mart, Inc., 593 N.E.2d 522, 532 (Ill. 1992). In Indiana, “a plaintiff in an intentional tort case may not be assigned a percentage of liability.” Becker v. Fisher, 852 N.E.2d 46, 49 (Ind. Ct. App. 2006). In Louisiana, a trial court need not apply comparative fault in an intentional tort case where the plaintiff did not cause or contribute to his/her damages. Baugh v. Redmond, 565 So. 2d 953, 959 (La. Ct. App. 1990). In Mississippi, “the defenses of contributory or comparative negligence have no application to cases of intentional tort such as assault and battery.” Graves v. Graves, 531 So. 2d 817, 820 (Miss. 1988). In Alabama, “[i]t is elementary that contributory negligence is no defense to [charges] of an intentional wrong.” Jackson v. Brantley, 378 So. 2d 1109, 1112 (Ala. Civ. App. 1979) (citation omitted). And in Ohio, the principles of comparative fault have no application to a cause of action based on intentional conduct. Labadie v. Semler, 585 N.E.2d 862, 864 (Ohio 1990).
The prejudicial effect of the improper instruction was further exacerbated by the incorrect sequence of the jury instructions. Jury instructions that include apportionment language should first ask the jury to assign an amount to damages, then apportion fault. (See PALMORE & CETRULO, Kentucky Instructions to Juries, Civil § 46 (6th ed. 2017)).
(a) The amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and [then]
(b) The percentage of the total fault[.]
Here, as the apportionment determinations were reached before the damages, the damages award was likely influenced by that improper apportionment instruction. We have no choice but to presume the jury relied on those apportionments when deciding the damages. Therefore, merely dismissing
CONCLUSION
Based on the foregoing, in appeal No. 2023-CA-0956-MR, we affirm the orders of the Jefferson Circuit Court. In cross-appeal No. 2023-CA-1021-MR, we affirm the trial court‘s July 7, 2021 summary judgment and its denial of a jury instruction on spoliation of evidence. The jury‘s verdict finding of no dram shop negligence upon the Marriott was not appealed and stands. However, we must reverse the court‘s April 19, 2023 judgment and remand for a new trial.
ALL CONCUR.
Lee E. Sitlinger
Louisville, Kentucky
BRIEFS FOR APPELLEE/CROSS-APPELLANT JENNIFER SAINATO:
Garry R. Adams
Laura E. Landenwich
Louisville, Kentucky
BRIEFS FOR APPELLEES MARRIOTT INTERNATIONAL, INC.; WHITE LODGING SERVICES CORP.; AND RLJ LODGING TRUST:
Anthony M. Pernice
Quiyarra McCahey
Lexington, Kentucky
Notes
The Plaintiff, Ms. Sainato, has brought a claim for [IIED] against the Defendant, Mr. Jajic. You will find for Ms. Sainato if you are satisfied from the evidence as follows:
a. That by subjecting Ms. Sainato to non-consensual sexual contact, Mr. Jajic . . . either intended to cause her emotional distress, or if he did not actually so intend, nevertheless knew or had reason to know that such distress would result but did not care whether it did or not;
b. That such conduct did in fact cause Ms. Sainato to suffer severe emotional distress;
AND
c. That such conduct by Mr. Jajic clearly exceeded the bounds of common decency as would be observed in any civilized community.
Otherwise, you will find for the Defendant, Mr. Jajic.