The Supreme Court published Commonwealth Transportation Cabinet v. Sexton , which dealt with the duties imposed on the Department of Highways to inspect for dead or decaying trees on its property.   You may recall my earlier post noting the grant of discretionary review after the Court of Appeals established a new duty on urban landowners to inspect for dead and decaying trees.

Essentially, the Court of Appeals held that urban landowners (whatever that means) could be held liable for failing to inspect and find dead or decaying trees that caused damage to adjoining property owners.  The law as it exists now requires some knowledge of the state of the tree before liability will attach under ordinary negligence principles.  So, the Court of Appeals opinion greatly expanded the duty to all property owners in urban areas, and not just the Commonwealth.

The Supreme Court reversed this case without really discussing that duty.  According to the SC, the actions of the Department of Transportation in locating dead trees and removing them was discretionary.  Since it was discretionary the Commonwealth did not waive sovereign immunity.  Since sovereign immunity applied, no liability existed against the Department of Transportation for failing to locate and remove the dead trees.  The SC did not reach the issue of an expanded duty believing it was unnecessary.  The case was reversed, so that portion of the Court of Appeals decision is vacated.

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The Supreme Court recently published Commonwealth of Kentucky v. Guffey, a case resulting from the death of Jeremiah Guffey, who was killed when his ATV struck a cable stretched across an old abandoned section of Hwy. 167 in Wayne Co. The issue before the Court was whether the Department of Highways owed a duty to the operator of an all-terrain vehicle (ATV) who is riding his ATV upon a public highway, even though persons are prohibited by statute from operating ATV’s upon public roadways.

The Court agreed “that Jeremiah was a member of the traveling public, even though he was in violation of KRS 189 .515(1). Furthermore, the damages resulting from Jeremiah riding his ATV upon that portion of a public roadway which had been obstructed by a cable stretched across it were certainly foreseeable. And, under the doctrine of comparative negligence, while Jeremiah’s damages may be limited by his actions, his violation of the law does not bar recovery.”

Interesting note regarding the disputed issue over whether the road was a “public highway”. The Court noted that one cannot be in violation of a statute making it an offense to ride an ATV on a public highway, without the road being a public highway in the first place. Also, a person is still a member of the “traveling public” entitled to protection despite minor violations of the law. While comparative fault may apply to Jeremiah’s actions, it does not bar his claim totally.

In addition to the issues discussed by the Court of Appeals in Jenkins v. Best, et al., in my prior post, the court also discussed the misuse of the “universal duty of care” language mentioned in many Kentucky cases. You will recall that the trial court granted summary judgment, finding that no physician/patient existed between Dr. Best and Jenkins, and therefore, no duty to exercise ordinary care. Jenkins argued that regardless of the existence of any particular duty, Dr. Best owed “a universal duty of care.”

In support, Jenkins cited to Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328 (Ky. 1987). Grayson is cited often, “by parties advocating a theory of liability or a cause of action where none previously existed and legal authority is otherwise lacking.” “In other words, parties turn to Grayson’s sweeping statement of “universal duty” where the facts of their case do not support a duty based on recognized legal relationships.” With respect to the concept, the court stated; “We are convinced that our courts never intended their recent references to “universal duty” as establishing a principle whereby a plaintiff could satisfy the first element of a cause of action for negligence – duty – by mere citation to Grayson.” However, “That is not to say that we dispute the existence of the concept.”

The court continued; “What then are we to make of the irony of a “universal duty” that is anything but universal? It does seem counterintuitive that we define this duty more by its limitations than by its comprehensive applications. The fact is that we can only understand this irony by examining the “universal duty” in the context of its origins.” The court noted that, “the evolution of a separate tort theory of negligence, recognizing liability based on the universal duty of reasonable care owed by all to all, separate from contractual duty, took place in the common law during the latter part of the 19th century.” Before then, causes of action for personal injury were grounded in the law of trespass, requiring aggression that was “direct and personal.”

The Court concluded:

Intentionally or not, when the Supreme Court said that “[t]he requirement of ‘duty to all’ is a beginning point for any duty analysis[,] it was referencing a historical genesis, and not merely an analytical starting point. The purpose in referring to a “universal duty,” both in the early opinions and in recent ones, was never to define the duty element of actionable negligence. The phrase simply distinguished modern negligence theory from the much narrower archaic legal bases upon which personal injuries formerly were remedied –contract and trespass. By contrast with the scope of duty recognized in those former causes of action, the duty imposed by negligence theory was virtually “universal.”

It is easy to understand why Grayson has seduced appellants into relying on the concept of a “universal duty.” But despite its value as a “catch phrase,” the “universal duty of care,” has no meaning in Kentucky jurisprudence beyond the most general expression of negligence theory, and certainly none absent a relational context as evidenced by the circumstances of each case. But no matter how it has been labeled, our courts have never found liability in tort unless we have first found circumstances giving rise to a relationship of some kind in which one particular party owed a duty to another particular party.

Neither the concept of “universal duty” or the cases that reference it constituted a basis for overturning the summary judgment.

The opinion was written by Judge Glenn Acree and reads like a law review article. It is perhaps one of the best I have read, dealing with such an ethereal concept as “duty”. My only criticism is that the courts should have addressed its abuse sooner. All too often this “universal duty” is used as a catch all phrase to get around the first element of the tort and avoid summary judgment.

As noted, negligence requires a “legal relationship” which imparts on the parties a duty to use reasonable care. There are those instances where Kentucky law clearly establishes a legal duty, i.e., automobile accidents, premises liability, etc. However, there are those cases when the facts will determine whether a duty exists. In those cases facts must arise, which make it forseeable to the party that his actions may cause harm. Only then does a duty, and therefore, an actionable claim of negligence arise. Notice, the first element is “duty.” You do not start the analysis by claiming you were damaged by a party’s actions, therefore they were negligent. No recognizable legal duty, no negligence, regardless of harm. Its the difference between legal responsibility for someone else’s harm and moral responsibility. Not every action, resulting in harm to someone else is a legal claim for negligence.