Summary
In Hayes, a district court judge ruled on a similar issue as Reinert. There, Hayes was crushed to death in a lawn tractor accident, and the Kentucky Department of Highways was alleged to have been partially at fault by not maintaining the grass where the accident occurred.
Summary of this case from Commonwealth, Tranps. Cabinet v. WatsonOpinion
CIVIL ACTION NO. 3:05CV-781-H.
February 5, 2007
MEMORANDUM OPINION AND ORDER
Plaintiff's decedent, George Hayes, was crushed to death in a lawn tractor accident on June 16, 2005. Plaintiff filed suit against defendant MTD Products, Inc. ("MTD Products" or "Defendant"), manufacturer of the lawn tractor on which George Hayes was riding, for negligent design. During the course of Joretta Hayes' deposition, Joretta Hayes implied that the Kentucky Department of Highways (the "Highway Department") could have prevented the accident by mowing or otherwise clearing the area George Hayes was attempting to mow when he had his accident. MTD Products has now filed this motion to file a third party complaint against the Highway Department so that the jury may properly apportion fault among the entities which may have caused or contributed to decedent's death.
Kentucky statutory law requires that jury apportionment among joint tortfeasors shall be conducted in all tort cases unless all parties agree otherwise. K.R.S. § 411.182(1). However, as interpreted by Kentucky courts, this statute only allows persons who are or who have been parties to the litigation to be named in the jury instruction. Jones v. Stern, 168 S.W.3d 419, 423 (Ky.App. 2005) (citing Baker v. Webb, 883 S.W.2d 898, 900 (Ky.App. 1994)). The jury is not allowed to apportion damages among persons or entities that have never been parties. Id. Therefore, a necessary predicate for MTD Products requesting an apportionment instruction at trial is that the Highway Department to become a party in this litigation, if only temporarily.
The Highway Department is a department of the Commonwealth of Kentucky and thus can be held liable only under the provisions of the Kentucky Board of Claims Act, meaning that the Highway Department could not be held liable in this Court. See K.R.S. § 44.070 et seq. Plaintiff asserts that the Highway Department cannot be joined based on Kentucky case law. However, this case presents a nearly identical factual scenario to the underlying case in Grimes v. Mazda North American Operations, 355 F.3d 566 (6th Cir. 2004). In Grimes, plaintiff filed suit against Mazda for negligent design in an action stemming from plaintiff's automobile accident. Id. at 568. Plaintiff also filed an action against the Highway Department in a Board of Claims action "for failure to warn about an existing road hazard and thereby causing or contributing to the accident." Id. at 571. Upon learning of the Board of Claims action, Mazda in turn impleaded the Highway Department, because "[u]nder Kentucky law, only by bringing a third-party claim against the Department could defendants seek contribution from it for any damages awarded to plaintiff." Id. Judge Russell of the Western District of Kentucky acknowledged in his order the rule discussed supra: that for an apportionment instruction to be issued, "a claim must be made against the alleged wrongdoer, even if there is no legal right to recover from that wrongdoer." Id. at 572 (paraphrasing Judge Russell). "`[T]he practice is to bring the alleged wrongdoer into the case by a third party complaint only to then have it dismissed. This sets up a possible apportionment instruction.'" Id. (quoting D. Ct. Order, dated Mar. 8, 2000).
The Court recognizes that the Kentucky Supreme Court has reached opposite conclusions in similar cases. See Jefferson County Commonwealth Attorney's Office v. Kaplan, 65 S.W.3d 916 (Ky. 2001); Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128 (Ky. 2004). However, both Kaplan and Smolcic are distinguishable. In Kaplan, defendant in a legal malpractice action sought to implead three state prosecutors and an expert witness. Kaplan, 65 S.W.3d at 918. The Kentucky Supreme Court found that all three individuals were absolutely immune from suit under the circumstances and thus that the trial court's dismissal of the defendant's third-party complaint was appropriate. Id. at 920-21. Significantly, none of these individuals could be held individually liable under the Kentucky Board of Claims Act either. See K.R.S. § 44.070 et seq.
In Smolcic, several pedestrians involved in an automobile accident sued the driver of the vehicle, the Lexington-Fayette Urban County Government ("LFUCG"), and others. Smolcic, 142 S.W.3d at 130. The trial court dismissed the LFUCG for liability purposes, but allowed it "to remain in the suit for purposes of apportionment under KRS § 411.182." Id. The Kentucky Supreme Court specifically found that the Board of Claims did not have jurisdiction over the plaintiffs' claims because LFUCG was a county government. Id. at 133. However, the Kentucky Supreme Court also found that allowing LFUCG to remain in the suit for apportionment purposes was unlawful because it constituted a "partial abrogation of the absolute immunity defense" possessed by the LFUCG. Id. at 136. The court discussed the policy reasons for not allowing LFUCG to proceed as a defendant for apportionment purposes: "`Absolute immunity refers to the right to be free, not only from the consequences of the litigation's results, but from the burden of defending oneself altogether.'" Id. at 135 (quoting Fralin Waldron, Inc. v. Henrico County, Va., 474 F.Supp. 1315 (E.D. Va. 1979)).
Defendant's claim in this case is different. The Highway Department is not absolutely immune from suit because the Kentucky Legislature has partially abrogated the state's immunity via the Board of Claims Act. The policy reasons discussed by the Smolcic court for immunity do not apply, because the Highway Department is at least potentially liable for its actions (or inaction, as the case may be) in this case. Although whether an apportionment instruction is ultimately issued will depend upon questions of law and fact presented later in this case, granting Defendant's motion at this time is a necessary procedural step under Kentucky law to even allow consideration of an apportionment instruction later in the case.
Several final comments are appropriate. First, the Court does not believe that Plaintiff may obtain a verdict against the Highway Department because it is immune to suit in these circumstances. Consequently, in the next few days the Court will enter an order dismissing the claims against the Highway Department without prejudice. Second, this Memorandum Opinion should not lead one to conclude that MTD Products will be entitled to an apportionment instruction against the Highway Department. The evidence of negligence or any responsibility on the part of the Highway Department appears quite slim at this time. The Court will determine at a later time whether an apportionment instruction is appropriate or permissible.
For all these reasons and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion for leave to file a third-party complaint is SUSTAINED.