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Storm v. Martin

Supreme Court of Kentucky

December 14, 2017



          COUNSEL FOR APPELLANT: Michael J. O'Connell Jefferson County Attorney Gregory Scott Gowen Paul Guagliardo Assistant Jefferson County Attorney.

          COUNSEL FOR APPELLEE: Alexander Davis Lawrence Lee Jones II Ashton Smith JONES WARD PLC.



         Richard Storm appeals the Court of Appeals' opinion reversing the unanimous jury verdict in his favor on a personal injury action brought by Louis Martin. For the reasons stated herein, we affirm in part and reverse in part.


         On September 14, 2008, a significant windstorm resulted in downed power lines and trees across the Louisville area. Three days later, Martin was driving his motorcycle on Phillips Lane in Louisville when he collided with a downed tree in the roadway. Martin suffered significant injuries as a result of the accident. At the time, Appellee, Richard Storm, was the Metro Louisville County Engineer and an Assistant Director of Public Works. He reported directly to Ted Pullen, the Director of Public Works.

         On June 17, 2009, Martin filed an action in the Jefferson Circuit Court against Pullen, in his individual and official capacities, as well as Louisville Gas and Electric Company, alleging negligence due to defendants' failure to remove the tree on Phillips Lane or towarn motorists of the hazard. Subsequently, Martin amended his complaint to name Storm, also in his individual and official capacities. Recognizing that both Pullen and Storm were entitled to governmental immunity in their official capacities, Martin filed a second amended complaint in January 2010, naming them both in their individual capacities only.

         Following discovery, Pullen and Storm filed a joint motion for summary judgment on grounds that they were entitled to qualified official immunity in their individual capacities. By order entered January 31, 2012, the trial court held that Pullen was entitled to qualified immunity and dismissed the claims against him. However, it denied the motion with respect to Storm.

         Storm thereafter filed an interlocutory appeal on the issue of immunity. A panel of the Court of Appeals noted that KRS[1] 179.070, which sets forth the powers and duties of a county engineer, specifically states that "(1) [t]he county engineer shall: ... 0) Remove trees or other obstacles from the right-of-way of any publically dedicated road when the tree or other obstacles become a hazard to traffic[.]" Rejecting Storm's argument that he was not aware of the statute and that the operations and maintenance division of the Department of Public Works was the entity responsible for tree removal, the panel cited to the recent decision in Wales v. Pullen, 390 S.W.3d 160 (Ky. App. 2012) (a contemporaneous case against Storm involving a motorist injured by a downed tree in the same windstorm following Hurricane Ike):

During the pendency of this appeal, this Court rendered its decision in Wales v. Pullen, 390 S.W.3d 160 (Ky. App. 2012), where a motorcyclist was injured when a downed tree allegedly caused him to crash on September 20, 2008, in Louisville. The motorcyclist filed an action against Storm in his individual capacity and, as here, Storm asserted qualified official immunity and argued that he was not responsible for removing trees from the roadways. This Court rejected his contention and held despite that the Louisville Metro Government Department of Public Works may have chosen to structure its department differently, "based on the statutes as written, a member of the public ... would expect the county engineer to remove trees, as evidenced by the clear statutory mandate and power to do so." Id. at 166. Storm's ignorance of his statutory duty was inconsequential. Id. at 167. The statutory language and the use of the word "shall" rendered his duty ministerial and, therefore, this Court held he was liable for any negligence in failing to remove the trees or improperly removing the trees. Id.
We are compelled to reach the same conclusion in this case. Storm's compliance with his statutory duties involved "merely execution of a specific act arising from fixed and designated facts." Yanero, 65 S.W.3d at 522. He either complied with KRS 179.070, or he did not. The circuit court properly ruled that Storm owed a duty to Martiri, and that duty was ministerial.

Storm v. Martin, 2012-CA-000378, 2013 WL 4036466 at *2 (Ky. App. Aug. 9, 2013). Accordingly, the Court of Appeals ruled that Storm was not entitled to qualified immunity.

         An eight-day trial was subsequently held in March 2015. Storm testified that as county engineer, he and his staff were a division of the larger Department of Public Works, had never been responsible for the removal of trees, and that such task had always been performed by the operations and maintenance division. Storm conceded that he was unaware of KRS 179.070, and that he had never been told that tree removal was part of his job responsibilities. In fact, Storm commented that his division did not even have the equipment to undertake tree removal. Similarly, Greg Hicks, the Assistant Director in charge of the operations and maintenance division of Public Works, testified that it had always been his division's responsibility to remove trees from the roadway.

         At the close of all evidence, Martin moved for a directed verdict, arguing that Storm admitted that he was unaware of his statutory obligation under KRS 179.070(1)(j), and that he took no part in removing the tree from Phillips Lane before or after Martin's accident. The trial court denied the motion. The jury returned a unanimous verdict in favor of Storm, finding that Martin had not proven by "a preponderance of the evidence that Richard Storm failed to comply with his duty as set forth in the instruction."

         Martin thereafter filed a motion for JNOV/new trial arguing that despite the fact that Storm's testimony conclusively established that he failed to comply with KRS 179.070(1)(j), the jury nonetheless found that he did not breach any duty owed to Martin. Martin pointed out that the jury's question to the trial court during deliberations indicated that it was less concerned with Storm's duty and more concerned with his capacity to withstand the financial impact of a judgment against him. By order entered April 30, 2015, the trial court denied Martin's motion without a hearing and without any written findings. Martin appealed.

         The Court of Appeals reversed, and remanded for a new trial, holding that the jury's findings that Storm did not fail to comply with his duty was against the weight of the evidence, and in so finding that he did not exercise ordinary care, overlooked the specific statutory duty. The Court of Appeals held that Martin was entitled to a new trial, but not entitled to a directed verdict. Storm's appeal follows; this Court granted discretionary review and heard oral arguments.

         II. ...

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