Wales et al v. Farmers Stockyards, Inc.

Filing 147

MEMORANDUM OPINION & ORDER: Defendants' motions for summary judgment, 109 , 120 are GRANTED IN PART and DENIED IN PART. Summary judgment forDefendants is granted with respect to Plaintiffs' claims of negligence per se. Genuine issues of material fact exist with respect to Plaintiffs' claims of common law negligence. Signed by Judge Joseph M. Hood on 3/10/16.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ANTHONY WALES, SR. and
TONYA WALES, Individually
and as parents & guardians
of an unmarried infant,
Next Friend A.W., Jr.,
Plaintiffs,
v.

FARMERS STOCKYARDS, INC.,
Defendants.
***

)
)
)
)
)
)
)
)
)
)
)
)
)
)
***

Action No.
5:14-cv-394-JMH

MEMORANDUM OPINION AND ORDER

***

This matter is before the Court upon the motions for summary

judgment of Farmers Stockyards, [DE 109], and Abner Construction
Company, [DE 120].
ripe for ruling.

The motions have been briefed fully and are
For the following reasons, the motions will be

granted in part and denied in part.
I.

Facts
Anthony and Tonya Wales, along with their children, including

six-year-old A.W., Jr., (“A.J.”) visited the Farmers Stockyards in
Flemingsburg, Kentucky on October 12, 2013, to shop for livestock.
Approximately ten feet above a livestock pen, there is an elevated
walkway where the public can view the livestock available for
purchase.

This area is commonly referred to as a catwalk.

A.J.

and his father were on the catwalk when A.J. stopped to tie his

shoe, at his father’s direction.

Anthony Wales reported that in

an instant, he heard A.J. holler “Daddy,” and A.J. disappeared
through the catwalk’s railing and into the livestock pen below.
When Mr. Wales got to his son, A.J. was unconscious, but regained
consciousness after a couple of minutes, reporting that he could
not move his legs.

He was transported to the Fleming County

Hospital where he was diagnosed with bleeding on the brain and a
skull fracture.

From there he was transferred to the University

of Kentucky Medical Center, where he spent three days.
injury

A.J.

has

experienced

seizures,

as

well

as

Since the
a

host

of

cognitive and emotional problems.
II.

Standard of Review
Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

In ruling on a motion for summary judgment, the court

resolves all reasonable inferences in favor of the nonmoving party.
Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

(1986);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).

The pivotal inquiry is “whether the evidence presents

a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter
of law.”

Anderson, 477 U.S. at 251–52.

When the “record taken as

a whole could not lead a rational trier of fact to find for the
2

non-moving party, there is no genuine issue for trial” and summary
judgment is appropriate.

Matsushita Elec. Indus. Co., 475 U.S. at

587 (quotations marks and citation omitted).
III. Discussion
A.

Negligence Per Se

A negligence per se claim is a negligence claim with a
statutory standard of care substituted for the common law standard.
Lewis v. B&R Corp., 56 S.W.3d 432, 438 (Ky. Ct. App. 2001).
Plaintiffs’ negligence per se claim is based on alleged violations
of the Kentucky Building Code.1
In order for a violation to become negligence per se,
the plaintiff must be a member of the class of persons
to be protected by the regulation, and the injury
suffered must be an event which the regulation was
designed to prevent. Only when both requirements are
affirmatively
demonstrated
is
negligence
per
se
established with the applicable regulation or statute
defining the relevant standard of care.
Alderman v. Bradley, 957 S.W.2d 264, 267 (Ky. Ct. App. 1997).

The

Uniform

the

State

Building

construction of buildings.

Code

establishes

KRS § 198B.050.

standards

for

In Edwards v. Hambel,

No. 2003-CA-940-MR, 2005 WL 3116096, *2 (Ky. Ct. App. Nov. 23,
2005), the Kentucky Court of Appeals recognized that the Kentucky
Building

Code

“protects

both

the

public

generally

and

the

individual and also promotes the public policy of implementing
uniform construction standards statewide.”

The court finds, and

1

The parties agree that the 1994 version of the Kentucky Building Code applies.
Farmers Stockyards has filed the 1994 Code in the record at DE 109 and 110.

3

the defendants do not contest, that the plaintiffs, as invitees of
Farmers Stockyards, may raise a claim for negligence per se.
With respect to the specifics of Plaintiffs’ negligence per
se claim, the parties agree that the Farmers Stockyards building
is classified as “S-1” under the Code—a sub-class of storage.
Chapter 10 of the 1994 Code addresses the design requirements for
elevated

walkways.

It

provides,

with

respect

to

“Opening

Limitations”:
In occupancies in Use Groups A, B, E, H-4, I-1, I-2, M
and R, and in public garages and open parking structures,
open guards shall have balusters or be of solid material
such that a sphere with a diameter of 4 inches (102 mm)
cannot pass through any opening. Guards shall not have
an ornamental pattern that would provide a ladder
effect. . .
In occupancies in Use Groups I-3, H-1, H-2, H-3 and S,
other than public garages and open parking structures,
balusters, horizontal intermediate rails or other
construction shall not permit a sphere with a diameter
of 21 inches (533 mm) to pass through any opening.
Ky. Building Code § 1021.3 (1994) (emphasis in original).

The

parties agree that the guardrails on the walkway contained three
horizontal intermediate rails.

The opening from the walkway to

the first horizontal rail was 17 inches (+/-), with approximately
ten inches between the other two horizontal rails above.2
Relying on the plain language of Section 1021.3, Defendants
contend that the walkway complied with the Code, since the largest

2

These measurements are based on the findings of Farmers Stockyards’ expert
Herb Goff. See DE 113-1, ID# 1623. Plaintiffs’ expert, Wayne Meyer, found
the largest opening to be slightly smaller, at 16 inches. See 46-1, ID#470.

4

opening was 17 inches and, therefore, a sphere with a diameter of
21 inches could not have passed through.

Plaintiffs argue that

because the walkway was open to the public, the Code imposes
stricter safety requirements than those stated in the above-quoted
language.

Relying on the opinion of their expert, Wayne Meyer,

Plaintiffs contend that the walkway was subject to the stricter
“opening limitations” imposed upon Use Groups A, B, E, H-4, I-1,
I-2, M and R—i.e., a sphere with a diameter of four inches was not
permitted to pass through any of its openings.
To be sure, Plaintiffs’ desired interpretation of the Code is
not found in the plain text.

Plaintiffs urge the court to look to

the drafters’ intent to reach this result.

The court begins at

Section 101.4, as Plaintiffs suggest. It reads, in pertinent part:
The code’s intent shall be to secure public safety,
health and welfare affected by building construction
quality, through structural strength, adequate means of
egress, light and ventilation, electrical systems,
plumbing, energy, boiler safety, accessibility for
persons with physical disabilities, life safety from
hazards of fire and explosion and other disasters and,
in general, to secure safety to life and property from
all hazards incident to the removal, design, erection,
repair or occupancy of buildings.
(emphasis in original).

Essentially, Plaintiffs contend that

because the drafters’ intent was to secure public safety, and
because the walkway was open to the public, the elevated walkway
at Farmers Stockyards was required to have guards with openings no
greater than four inches apart.

This logical leap simply has no

5

support in the text.3

At the outset of the Code, the drafters

stated their intent to secure public safety.
Code, as written, has that intent in mind.

It follows that the

The court may not amend

or add to the plain language of a statute and will not do so in
the case of the Kentucky Building Code.

See Telespectrum, Inc. v.

Public Serv. Comm’n of Ky., 227 F.3d 414, 421 (6th Cir. 2000).
The

court

now

turns

to

Plaintiffs’

claim

regarding

Defendants’ alleged failure to submit the walkway plans to the
state for approval prior to construction.

Section 107.1 of the

Building

the

Code

requires

that,

prior

to

construction

or

alteration of a structure, the owner or his agent shall submit an
application to the state.

The application is required to contain

a description of the work to be done, along with other specified
documents.

If the application is approved, the applicant receives

a permit to build, pursuant to Section 108.

Plaintiffs contend

that Defendants did not go through with this process with respect
to the elevated walkway and their failure to do so constitutes
negligence per se.

Defendants do not concede that they did not go

through the permit process—they simply have no proof that they
did.

3

While Plaintiffs contend that this presents a classic “battle of the experts”
to be resolved by the jury, clearly this is a question of law to be resolved by
the court. See Chavez v. Carranza, 559 F.3d 486, 498 (6th Cir. 2009) (“An expert
opinion on a question of law is inadmissible.”); see also Static Control
Components, Inc. v. Lexmark Int’l, Inc., 5:02—cv-571, 5:04-cv-84, 2007 WL
7083655, *7 (E.D. Ky. May 12, 2007) (“It is within the sole province of the
trial court to instruct the jury on the law and its applicability.”).

6

“It is beyond dispute that causation is a necessary element
of proof in any negligence case.”
805

S.W.2d

122,

124

(Ky.

Baylis v. Lourdes Hosp., Inc.,

1991).

Kentucky

has

adopted

the

Restatement (Second) of Torts approach with respect to causation,
the foundation of which is the concept of “substantial factor.”
See Deutsch v. Shein, 597 S.W.2d 141, 143–44 (Ky. 1980).

The

primary principle in that analysis is:
To be a legal cause of another’s harm, it is not enough
that the harm would not have occurred had the actor not
been negligent . . . . . this is necessary, but it is
not of itself sufficient. The negligence must also be
a substantial factor in bringing about the plaintiff’s
harm.
Because the walkway complied with the 1994 Kentucky Building Code,
Defendants’ alleged failure to comply with the permitting process
was not a substantial factor in bringing about Plaintiffs’ harm.
Assuming that the Defendants did not request a permit prior to
constructing the walkway, there is no indication that the state
would not have granted it.

Accordingly, summary judgment will be

granted for Defendants with respect to Plaintiffs’ negligence per
se claim.
B.

Common Law Negligence

Compliance with safety regulations, whether promulgated at
the federal, state, or local level, “does not relieve one of tort
liability . . . .”

Surles ex rel. Johnson v. Greyhound Lines,

Inc., 474 F.3d 288, 300 (6th Cir. 2007).

7

At the time A.J. was

injured, the Wales family were invitees at Farmers Stockyards. “An
invitee

enters

upon

the

premises

at

the

express

or

implied

invitation of the owner or occupant on business of mutual interest
to them both, or in connection with business of the owner or
occupant.”

Scuddy Coal v. Couch, 274 S.W.2d 388, 389 (Ky. 1955).

In Horne v. Precision Cars of Lexington, 170 S.W.3d 364, 367 (Ky.
2005) (quoting Restatement (Second) of Torts (1965)), the Kentucky
Supreme

Court

discussed

the

duty

of

care

landowners

owe

Known

or

invitees.
Section 343.
Dangerous
Discoverable by Possessor

Conditions

to

A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land
if, but only if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it
involves an unreasonable risk of harm to such invitees,
and
(b) should expect that they will not discover or
realize the danger, or will fail to protect themselves
against it, and
(c) fails to exercise reasonable care to protect them
against the danger.
Section 343A.

Known or Obvious Dangers.

(1) A possessor of land is not liable to his invitees
for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.
(2) In determining whether the possessor should
anticipate the harm from a known or obvious danger, the
8

to

fact that the invitee is entitled to make use of public
land, or the facilities of a public utility, is a factor
of importance indicating that the harm should be
anticipated.
“Known means not only knowledge of the existence of the condition
or

activity

involves.”

itself,

but

also

appreciation

of

the

danger

it

Horne, 170 S.W.3d at 367 (quoting Restatement (Second)

of Torts at § 343A cmt. B). And “[g]enerally speaking, a possessor
of

land

owes

a

duty

to

an

invitee

to

discover

unreasonably

dangerous conditions on the land and either eliminate or warn of
them.”

Shelton v. Ky. Easter Seals Soc., Inc., 413 S.W.3d 901,

909 (Ky. 2013).

Farmers Stockyards’ owner, Eldon Ginn, testified

in his deposition that he would not allow his own child to lean
over the rail and look into the livestock pen because it is
dangerous—that a child might fall.

Ginn also testified that

children are not required to be attended by adults while on the
catwalk.
so

that

Additionally, the livestock pens are below the catwalk
customers

can

view

the

animals

and

children,

being

naturally curious, are likely to lean over the railing to observe
them, as well.

Plaintiffs point out that signs are placed on the

gates below the catwalk prohibiting persons from entering the
livestock pen for safety reasons. They have also provided evidence
demonstrating that other stockyards in the region have taken extra
steps to cover the openings in their elevated walkways.
121-2, 3.

Accordingly, there is a genuine issue of genuine fact

9

See DE

as to whether Farmers Stockyards breached the duty of care it owed
to the Plaintiffs, as invitees of its facility.

Summary judgment

is inappropriate as to the common law negligence claim.
Accordingly, IT IS ORDERED:
That Defendants’ motions for summary judgment, [DE 109, 120]
are GRANTED IN PART and DENIED IN PART.
Defendants

is

granted

negligence per se.

with

respect

to

Summary judgment for
Plaintiffs’

of

Genuine issues of material fact exist with

respect to Plaintiffs’ claims of common law negligence.
This the 10th day of March, 2016.

10

claims