REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-000022 NELSON
CIRCUIT COURT NO. 10-CI-00688
COUNSEL FOR APPELLANT: John Douglas Hubbard Fulton, Hubbard
85 Hubbard James Wendell Taylor Taylor Law Group, PLLC . John
Choate Roach Ransdell & Roach, PLLC, Ryan Richard Loghry
Loghry Law, PLLC.
FOR APPELLEES JOSEPH HERMAN NALLEY; MARY NALLEY; AND
STEPHANIE NALLEY: Kevin Crosby Burke, Michelle Buckley Sparks
Keith Allen Sparks \ McCoy & Sparks, PLLC.
FOR APPELLEES JEWISH HOSPITAL AND ST. MARY'S HEALTHCARE
INC., D/B/A FRAZIER REHAB INSTITUTE: Brian Scott Katz Law
Office of Brian S. Katz.
FOR APPELLEE UNIVERSITY MEDICAL CENTER, INC., D/B/A
UNIVERSITY OF LOUISVILLE HOSPITAL: John Byron Moore . Jamie
Kristin Neal Burke, Neal, PLLC.
Auslander Properties, LLC (the LLC), appeals from a Court of
Appeals' decision affirming a judgment of the Nelson
Circuit Court in favor of Appellee, Joseph Herman Nalley
(Nalley). Nalley was awarded compensatory damages
for serious personal injuries he sustained while working on a
roof at property owned by the LLC. Consistent with the
rulings of the trial court, the Court of Appeals determined
that the LLC was an "employer" and was, therefore,
subject to certain employee safety regulations promulgated
pursuant to KRS Chapter 338, the Kentucky Occupational Safety
and Health Act (KOSHA), and the federal Occupational Safety
and Health Act (OSHA); and that the LLC had violated duties
owed to Nalley under KOSHA. Upon discretionary review, for
reasons stated below, we reverse the Court of Appeals and
remand the case to the Nelson Circuit Court for dismissal of
FACTUAL AND PROCEDURAL BACKGROUND
time of Nalley's injury, the LLC owned three residential
properties and a two-tenant commercial building in Bardstown,
Kentucky, and one residential property in Louisville. Steve
Auslander (Auslander), a retired dentist, and his wife were
the sole members of the LLC and they had no employees.
Auslander managed the business, performing the ordinary tasks
of a landlord such as keeping the books, collecting rent,
paying bills, communicating with tenants, and negotiating
leases. He performed some basic maintenance and repair work
on the LLC's properties, and he arranged for others to
perform more demanding tasks.
one of the LLC's Bardstown tenants complained that tree
limbs overhanging the building were causing a problem,
Auslander contacted Nalley. Nalley was an experienced
handyman who had occasionally performed maintenance and
repair work for the LLC. His experience included trimming
trees for other property owners, and he had done so while
working from a rooftop. He had also built porches and
additions on homes, including building a garage and porch on
his own home. Additionally, he had painted houses working
from ladders. So, Auslander hired Nalley to remove the
offending branches from three trees.
viewing the job to be done, Nalley determined that the roof
of the building provided the best approach to the branches he
needed to cut. He brought his own ladder and his own tools.
Nalley climbed to the roof with his saw. He tied a rope to
the limb he intended to cut and dropped the end of the rope
to the ground. As Nalley sawed the limb, Auslander assisted
by pulling the rope to guide the limb's fall. No problem
was encountered with the first tree. However, while working
on the second tree, Nalley stepped from the roofs solid
shingled surface onto a section of decorative wooden rafters
that was not designed to support his weight. Consequently, he
fell eleven feet onto a concrete surface and sustained
severely disabling injuries, including fractures to his spine
and traumatic brain injury.
filed suit alleging the LLC was negligent in breaching the
common law duties owed by a landowner to invitees on the
property. He also alleged that the LLC was negligent per se
because it failed to comply with KOSHA regulations requiring
employers to provide safety equipment for employees working
at heights above 10 feet. The trial court overruled the
parties' competing motions for summary judgment on the
negligence per se claim. The case was ultimately submitted to
the jury on both theories of liability.
respect to the common law negligence claim, the jury answered
special interrogatory instructions determining that: 1) the
cosmetic nature of the exposed decorative rafters was either
obvious to, or was known by, Nalley; and 2) in the exercise
of ordinary care, the LLC should not have anticipated that
Nalley might rely upon the load-bearing capability of the
decorative rafters and fall as a result thereof.
Consequently, a judgment for the LLC was entered on that
theory. Nalley does not challenge that verdict.
jury also determined by special interrogatory instructions
the largely uncontested material facts pertaining to
Nalley's KOSHA claim. Specifically, the jury found that
Nalley was working at a height of more than 10 feet when he
fell; that the LLC had not provided safety equipment that
would have prevented his fall; and that the lack of such
equipment was a substantial factor in causing Nalley's
injuries. Consistent with those findings, the trial court
entered judgment for Nalley under his theory of negligence
per se based upon a KOSHA violation.
Court of Appeals affirmed the trial court's conclusion
that the LLC was an "employer" as defined by KOSHA,
and was, therefore, subject to KOSHA regulations, and that
Nalley was within the scope of persons protected by the KOSHA
regulations applicable to the LLC. The Court of Appeals
relied primarily upon Hargis v. Baize, 168 S.W.3d 36
(Ky. 2005), and Pennington v. MeadWestvaco Corp.,
238 S.W.3d 667 (Ky. App. 2007).
the appeal was pending, this Court decided McCarty v.
Covol Fuels No. 2, LLC, 476 S.W.3d 224 (Ky. 2015). In a
footnote, the Court of Appeals factually distinguished
McCarty from the instant case and noted that
McCarty did not implicate KOSHA.
argued in the Court of Appeals that the LLC had not
effectively preserved its argument against the applicability
of the KOSHA regulations. Because that court decided and
rejected the LLC's argument on the merits, it declined to
address the preservation issue. On discretionary review,
Nalley reasserts his preservation argument. Since it is
potentially dispositive, we address it first.
THE LLC PROPERLY APPEALED THE DENIAL OF SUMMARY JUDGMENT
SEEKING REVERSAL OF THE TRIAL COURT JUDGMENT
raises a number of procedural grounds upon which he contends
this Court should dismiss the LLC's appeal. He notes that
the LLC fails to specify whether its appeal was taken from
the trial court's order denying summary judgment or the
trial court's failure to grant its motion for a directed
verdict. With respect to the former, Nalley argues that the
order denying the LLC's motion for summary judgment is
not appealable. With respect to the latter, Nalley argues
that because the LLC failed to follow up its directed ...