REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-000762
JEFFERSON CIRCUIT COURT NO. 09-CI-006073.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND.
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.
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.
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
thereafter filed an interlocutory appeal on the issue of
immunity. A panel of the Court of Appeals noted that
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
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.
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.
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."
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.
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