The Court of Appeals has posted its minutes for May 9th, here.  There was only one published case dealing with torts and insurance.  Diaz v. Barker & Allstate dealt with several procedural issues at the trial court level in an automobile negligence case, including plaintiff’s failure to promptly appeal a summary judgment order in favor of Barker under CR 54.02 and issues regarding the trial judge’s failure to recuse himself.

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.