RENDERED: OCTOBER 29, 2015 

TO BE PUBLISHED 

oSuprrittr (Conti of lArtrturitu 

2014-SC-000589-CL 

IN RE: 

NANCY J. MCCARTY; NANCY J. MCCARTY, 

AS PERSONAL REPRESENTATIVE OF THE 

ESTATE OF DAVID W. MCCARTY, 

DECEASED; AND LIBERTY MUTUAL 

AGENCY MARKETS 

THE UNITED STATES 

V. COURT OF APPEALS FOR THE SIXTH CIRCUIT 

NO. 13-6484/6499 

COVOL FUELS NO. 2, LLC (A UTAH 

CORPORATION) 

OPINION OF THE COURT BY JUSTICE VENTERS 

CERTIFYING THE LAW 

The United States Court of Appeals for the Sixth Circuit certified to this 

Court pursuant to CR 76.37(1) a question of Kentucky law. The certified 

question is: 

Whether a subcontractor injured while installing a garage door 

on an unfinished building at a mine site may maintain a 

wrongful death action against a mine operator under a 

negligence per se theory for alleged violations of Kentucky 

mining [statutes and] regulations, codified in KRS §§ 351-352 

and KAR §§ 805-825.[ 1 1 

1While the certified question refers to "KAR §§ 805-825," which could be 

interpreted as referring to KAR Sections 805 through 825, the intervening regulatory 

titles (e.g., Department of Insurance (KAR § 806) and Department of Charitable 

Gaming (KAR § 820)) bear no relationship at all to the issues we address. We construe 

the certified question as referring only to KAR Sections 805 (ENERGY AND 

ENVIRONMENT CABINET) and 825 (ENERGY AND ENVIRONMENT CABINET -

KENTUCKY MINE SAFETY REVIEW COMMISSION). 
Based upon our review of the applicable Kentucky law and the facts relevant to 

this inquiry, and for the reasons set forth below, we conclude that KRS 

Chapters 3502 , 351 and 352 and Kentucky Administrative Regulations (KAR) 

Sections 805 and 825 do not support a wrongful death action predicated upon 

a theory of negligence per se in the factual context presented here. 3 

I. FACTUAL BACKGROUND 

Covol Fuels (Covol) operates a coal mine in Muhlenberg County, 

Kentucky. Covol contracted with H 8s B Builders for the construction of a postframe structure at Covol's mine site. H 86 B subcontracted with Evansville 

.Garage Doors for the installation of an 1,800-pound overhead, commercialgrade garage door for the building. David McCarty and Jeremy Means, 

employees of Evansville Garage Doors, were dispatched to the Covol mine site 

to install the heavy door. McCarty was highly skilled in this specialized aspect 

of the construction industry, having installed approximately 1,000 garage 

doors. 

McCarty was killed during the installation of the door at the Covol site. 

At the time of the accident, he was standing on an unsecured stepladder 

checking the tension spring mechanism on the door, which was suspended 

directly over his head in the open position. Suddenly, the door descended and 

2Although the certified question does not refer to KRS Chapter 350, the Estate 

argues for its application and so we include it in our consideration of the issue. 

3We note at this point that our analysis is limited to claims based upon alleged 

violations of the identified statutes and regulations. We do not address the viability of 

any claims or potential claims based upon common law theories of premises liability 

because such claims are outside the scope of the certified question. 

2 
struck one of the rails of McCarty's stepladder. Under the weight of the door, 

the stepladder collapsed. McCarty was wearing a safety harness but it was not 

secured to anything so he fell, striking his head and suffering a fatal injury. 

The Federal Mine Safety and Health Administration (MSHA) investigated 

the circumstances of McCarty's death because it occurred on property 

containing a coal mine. The MSHA inspector concluded that McCarty's fall 

resulted from the placement of the ladder directly below the door opening, 

coupled with the installers' failure to follow the manufacturer's installation 

instructions requiring that the door be blocked from motion so that it would 

not move during the installation process. 

McCarty's widow, Nancy J. McCarty, Individually and as the Personal 

Representative of McCarty's Estate (collectively, the Estate) brought a wrongful 

death action against Covol alleging, among other things, that Covol was 

negligent per se for violating various coal mine safety statutes and regulations. 

After a period of discovery, Covol moved for summary judgment on all claims. 

The federal district court granted summary judgment. In its evaluation of the 

negligence per se claim, which is our only concern, the district court reasoned 

that at the time of the accident, McCarty was not within the class of persons 

protected by Kentucky's mine safety laws and that his accidental death did not 

occur under circumstances that our mine safety laws were intended to prevent. 

The Estate appealed to the Sixth Circuit challenging, among other issues, 

the district court's rejection of its negligence per se theory. We subsequently 

granted the Sixth Circuit's request to certify the law in regards to whether the 

3 
statutes and regulations relied upon by the Estate were intended: 1) to protect 

employees of independent contractors, such as garage door installers who, like 

McCarty, were injured while working in the proximity of a mine site; and 2) to 

prevent the type of accident that caused McCarty's death. 

II. ANALYSIS 

In 1942, the Kentucky General Assembly enacted KRS 446.070 to codify 

the common law principles of negligence per se. St. Luke Hosp., Inc. v. Straub, 

354 S.W.3d 529, 534 (Ky. 2011). KRS 446.070 provides: "A person injured by 

the violation of any statute may recover from the offender such damages as he 

sustained by reason of the violation, although a penalty or forfeiture is imposed 

for such violation." 

We said in Straub that "in accord with traditional legal principles related 

to the common law concept of negligence per se, [KRS 446.070] applies 

when . . . the plaintiff comes within the class of persons intended to be 

protected by the statute [alleged to have been violated]." Id. Our case law also 

recognizes two other conditions which must be satisfied for the application of 

KRS 446.070. First, "[t]he statute must have been specifically intended to 

prevent the type of occurrence that took place." Hargis v. Baize, 168 S.W.3d 

36, 46 (Ky. 2005). Second, "the violation [of the statute] must have been a 

substantial factor in causing the result." Id. 

At this point, it must be noted that KRS 446.070 expressly references 

only causes of action for "person[s] injured by the violation of any statute." No 

reference is made in the statute to injuries that result from the violation of an 

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administrative regulation. Straub addresses that issue. When the violation of 

an administrative regulation is at issue, "KRS 446.070 creates a cause of 

action in [these] narrow circumstances . . . (1) the regulation must be 

consistent with the enabling legislation and (2) it must apply to the safety of 

the citizenry." Straub, 354 S.W.3d at 535 (citing Centre College v. Trzop, 127 

S.W.3d 562, 567 (Ky. 2003)). 

Furthermore, when a provision of the enabling statute for the 

promulgation of administrative regulations expressly mandates compliance 

with those regulations, the violation of the regulation is the equivalent of a 

violation of a statute, thereby bringing the regulation within the scope of KRS 

446.070. Hargis, 168 S.W.3d at 41. With these fundamental principles in 

mind, we proceed to an examination of the statutes and regulations asserted by 

McCarty's estate and his widow to determine whether a negligence per se claim 

can be based upon those provisions. 

A. KRS Chapters 351 and 352 

We first consider the statutory provisions identified as applicable to the 

Estate's negligence per se claims. The certified question generally refers to KRS 

Chapters 351 and 352; the Estate specifically cites KRS 352.280, KRS 

352.330, and KRS 352.340. 

KRS Chapter 351 is titled "DEPARTMENT OF NATURAL RESOURCES" 

and sets forth a multitude of statutory provisions applicable to the 

organization, duties, and operations of that agency, which is the principal 

agency overseeing mining operations in the Commonwealth. KRS 351.020 (the 

5 
Department of Natural Resources "shall administer all laws of the 

Commonwealth relating to mines."). KRS 351.010(q) defines a "mine" as: 

any open pit or any underground workings from which coal is 

produced for sale, exchange, or commercial use, and all shafts, 

slopes, drifts, or inclines leading thereto, and includes all buildings 

and equipment, above or below the surface of the ground, used in 

connection with the workings. Workings that are adjacent to each 

other and under the same management, but which are 

administered as distinct units, shall be considered a separate 

mine[.] 

(emphasis added). 

Central to the Estate's argument is the assertion that McCarty's fatal 

injury occurred at a "mine" because the garage door installation was being 

performed at a building situated on a coal mine site. However, as emphasized 

above in the statutory text, the only "buildings" that fall within the definition of 

a "mine" are those being "used in connection with the workings [of the mine]." 

As premised in the certified question itself, the structure upon which McCarty 

was working was an "unfinished building." Apparently, at the time of the 

accident, the building was under construction and was not being "used in 

connection with the workings" of Covol's mining operations. Similarly, the 

stepladder, harness, tools, and other equipment associated with the garage 

door installation would not qualify as "equipment" within this statutory 

definition because they were not being "used in connection with the workings" 

of a "mine." 

The Estate's invocation of KRS Chapter 351 is tenuous because the 

Department of Natural Resources is tasked only with administrating coal 

mining laws. The installation of a garage door on an unfinished building, even 

6 
though situated in proximity to a coal mine, lies outside the scope of KRS 

Chapter 351 and the Department's bailiwick. 

The criteria identified in Straub and Hargis for determining the 

applicability of KRS 446.070 requires an assessment of the legislative intent 

behind the statute: was the injured person among the class of individuals 

intended to be protected by the statute, and was the occurrence of the kind 

that the statute was designed to prevent? KRS 351.101, titled "Declaration of 

legislative finding of fact," and KRS 351.241, titled "Statement of General 

Assembly," provide critical insight into the legislative considerations 

underpinning KRS Chapter 351. KRS 351.101 provides: 

The General Assembly hereby finds and declares the following: 

(1) The highest priority and concern of the Commonwealth must be 

the health and safety of the coal industry's most valuable 

resource, the miner. 

(2) The continued prosperity of the coal industry is of primary 

importance to the state. 

(3) A high priority must be given to increasing the productivity and 

competitiveness of the mines in this state. 

(4) An inordinate number of miners are killed or injured during the 

first few months of their experience in a mine and upon acquiring 

new work assignments in a mine. 

(5) These injuries result in the loss of life and serious injury to 

miners and are an impediment to the future growth of the state's 

coal industry. 

(6) Mining is a technical occupation with various specialties 

requiring individualized training and education. 

(7) Injuries can be reduced through proper miner training, 

education, and certification. 

(8) Mine safety can be improved by the imposition and 

enforcement of sanctions against licensed premises and certified 

and noncertified personnel whose willful and repeated violations of 

mine safety laws place miners in imminent danger of serious 

injury or death. 

(9) Abuse of illicit substances and alcohol in the mining industry 

represents a serious threat to the health and safety of all miners. 

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Substance and alcohol abuse adversely affect the health and 

safety of miners. Mine safety can be significantly improved by 

establishing as a condition of certification that miners remain drug 

and alcohol free. 

(emphasis added). 

Similarly, KRS 351.241 provides: 

The General Assembly hereby finds and declares the following: 

(1) Thousands of Kentuckians enter underground mines each day 

to produce coal that is so vital to the economy of our nation and 

the well-being of its people. 

(2) The underground coal mine is a hazardous environment that 

constantly requires the highest degree of safety consciousness on 

the part of every individual. 

(3) Despite training and a variety of safety efforts, each year coal 

mines continue to take a heavy human toll: large numbers of 

miners are injured; many are left permanently disabled; and a 

lesser number pay the ultimate price--death. 

(4) Many activities are performed by a variety of persons; therefore, 

each coal miner is expected to learn and perform a large number 

of tasks 

(5) Miners frequently become engaged in unfamiliar tasks when 

substituting for others or assisting a fellow worker. 

(6) The American zeal for work and productivity very frequently 

causes the miner to give second priority to normal safety measures 

and precautions. 

(7) Studies have demonstrated that experienced persons observing 

and providing on-the-job counseling to individual miners 

regarding their work habits can bring about a significant reduction 

in underground mine accidents and fatalities. 

(emphasis added). 

These statutory provisions are dominated by references to miners and 

the dangers miners confront while performing their jobs. In light of this 

emphasis, these provisions signal that the class of persons the legislature 

intended to protect by the statutory framework of KRS Chapter 351 is the 

traditional coal miner and others associated with the process of extracting coal 

8 
who also are routinely exposed to the unique dangers and risks inherent to 

coal mining. For the same reason, the dangers that these statutes purport to 

address are the occupational hazards traditionally associated with mining coal 

and working in a coal mining environment. 

The Estate does not direct our attention to any specific provision from 

KRS Chapter 351 in support of its negligence per se claim. We are unable to 

identify any provisions within that chapter that impose upon coal mine 

operators a special duty of care owed to independent contractors and 

craftsmen who enter upon the premises to perform work unrelated to coal 

mining. Of course, the traditional common law duty of a landholder to make 

the property reasonably safe and to warn of unknown or latent dangers 

remains applicable, see Lewis v. B & R Corporation, 56 S.W.3d 432, 437-38 

(Ky. App. 2001), but that duty is outside the scope of the question we address. 

Accordingly, we are constrained to conclude that the statutory text does not 

support the theory that KRS Chapter 351 imposes statutory duties upon Covol, 

the violation of which would support a negligence per se claim under KRS 

446.070. 

The certified question and the Estate's pleadings also refer to KRS 

Chapter 352, which is styled: "MINING REGULATIONS." Chapter 352 sets 

forth a host of provisions relating to mining operations, including certain safety 

provisions aimed at reducing the dangers inherent to the coal mining 

environment. Among the statutory subtitles contained in KRS Chapter 352 are 

the following representative examples: 

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• 352.020 Mine ventilation plans — Methods of ventilation — Amount of air 

required — Plan requirements. 

• 352.090 Abandoned parts of mine to be posted — Sealing. 

• 352.110 Mines to have two openings — Exception — Condemnation of land for 

opening. 

• 352.140 Operation of cages and cars. 

• 352.161 Examination of conveyor belts. 

• 352.220 Electricity in mines and surface installations. 

• 352.241 Explosives and blasting devices in mines. 

• 352.300 Stations for fire bosses — Persons not to pass or remove danger 

signals. 

• 352.550 Coercion of trade of miners prohibited. 

A fair reading of KRS Chapter 352 in its entirety, as illustrated by the 

above examples, fails to confirm the Estate's theory that the Chapter intended 

to create duties owed by a coal mine operator to specialized workers whose 

labor and injury are associated with coal mining only by the fortuitous 

circumstance that they happen to take place on land occupied by a mining 

operation. The Estate cites three provisions of KRS Chapter 352 in support of 

its claim, which may be fairly abridged as follows: 

1. KRS 352.280 - Examination of mine by properly certified person — Duties —

Frequency of examinations. 

(1) In all mines the licensee, mine manager, or superintendent 

shall employ one (1) or more properly certified persons. 

(2) A properly certified person shall examine carefully, within 

three (3) hours before each shift enters the mine: 

(a) Every working place; 

(b) All places adjacent to live workings; 

(c) Every roadway where persons are required to work or 

travel; 

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(d) All abandoned panels on the intake; 

(e) Every set of seals on the intake; and 

(f) All roof falls near active workings on the intake and on the 

working sections. 

(3) Before proceeding with the examination he shall see that the 

air current is traveling its proper course. 

(4) A properly certified person shall use approved gas detection 

devices in the performance of the required examination and shall 

examine the entrances to all worked-out and abandoned portions 

adjacent to the intake roadways and working places under his 

charge where explosive gas is likely to accumulate. 

(6) If an explosive mixture of gas is discovered, the properly 

certified person shall place a danger signal across the entrance to 

every place where explosive gas is discovered or where immediate 

danger is found to exist from any other cause. The signal shall be 

sufficient warning to ensure that persons do not enter the area. 

(7) When the mine is idle and workmen are required to go into 

the mine, the section, portion, or part of the mine entered must be 

inspected by a properly certified person within three (3) hours 

before the workmen enter. 

(8) Each week, a properly certified person designated by the mine 

foreman shall examine each set of seals on the return, all 

designated intake and return entries, and all escapeways. 

(emphasis added). 

2. KRS 352.330 - General duties of mine foreman -- Duty of licensee. 

The mine foreman shall exercise general supervision over the 

ventilating apparatus and the airways, traveling ways, working 

places, pumps and drainage, and shall see that as the miners 

advance their excavations proper breakthroughs are made as 

required by law to properly ventilate the mine. He shall see that 

employees are provided with sufficient props, cap pieces, and 

timbers of suitable size, which shall be delivered to the working 

place and shall see that the props are cut as square as practicable 

at both ends and as near as practicable to the proper length 

required or designated for the places where they are to be used. 

The mine foreman shall see that the water is drained as nearly as 

practicable out of the working places, and that the working places 

are kept as free from water as practicable during working hours. 

He shall see that every person employed to work in the mine 

is, before beginning to work, instructed in the particular 

danger incident to his work in the mine and furnished a copy 

of the rules of the mine . . . . (emphasis added). 

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3. KRS 352.040 - Examination of mine by mine foreman or assistants —

Removal of dangers — Record. 

(1) The mine foreman or his assistants shall visit and carefully 

examine each working place in the mine at least every four (4) 

hours while the mine employees are at work. He shall examine 

as live workings, on regular inspections, all places in live sections 

that are temporarily abandoned. . . . He shall see that every mine 

liberating explosive gas is kept free of standing gas in all working 

places and roadways, and that all accumulations of explosive or 

noxious gases in the worked-out or abandoned portions of any 

mine are removed as soon as possible after discovery. He shall 

ensure that all preshift examinations are conducted by a certified 

person and that examinations of conveyor belts have been 

conducted. He shall not allow any person who may be endangered 

by the presence of explosive or noxious gases to enter that 

portion of the mine until the gases have been removed. He shall 

direct and see that all dangerous places and the entrances to 

worked-out and abandoned places in all mines are properly 

barricaded across the openings, so that no person will enter, and 

that danger signs are posted upon the barricade to warn persons of 

existing danger . . . . 

(2) The mine foreman or his assistants, fire bosses, or other 

certified persons shall, at least once every week, travel and 

examine all air courses, escapeways, the caches of selfcontained self-rescuer devices required by KRS 352.133, the 

caches' contents, seals on the return, roads, and openings that 

give access to old workings or pillar falls . . . . 

(3) Examinations of conveyor belts shall be conducted by a 

certified foreman or a certified belt examiner . . . . (emphasis 

added). 

The Estate posits that the duties created in these statutory provisions, 

including the requirements for periodic inspections set forth in KRS 352.280 

and KRS 352.040, apply equally to workers engaged in the mining operation 

and to specialized independent contractors such as McCarty, who happen to be 

upon the property. We respectfully reject this interpretation. 

In the context of the statutory language, and construing the cited 

chapters as a unified statutory scheme, it is manifestly clear that the legislative 

12 
intent in enacting these provisions was to target and ensure the safety of the 

actual coal mining operations for the protection of the traditional coal miners 

and the mining technicians and engineers, mechanics, maintenance personnel 

workers, and other ancillary workers exposed to dangers of the mining 

environment. Nothing in the statutory text tasks the mine operator with 

tending to the safety of non-mining craftsmen and technicians and protecting 

them from the hazards of their own non-mining occupations. 

Given the extensive statutory emphasis on the dangers of mining, we 

regard it as highly improbable that the General Assembly intended to burden 

coal mine inspectors and supervisors with the duty to become versed in the 

safety requirements'of such extraneous activities as installing massive garage 

doors and other processes unique to the business of erecting buildings and 

foreign to the process of extracting coal. The mine operator's unfamiliarity with 

the special techniques, requirements, and hazards of the various construction 

trades is certainly a major reason for using specialized outside contractors 

instead of in-house laborers. Expecting the mine operator to provide safety 

inspections for the unfamiliar work of specialized independent contractors 

would divert resources away from the safety of workers actually engaged in 

mining coal, thereby increasing the very risks that the statute is designed to 

reduce. 

From our review of KRS Chapters 351 and 352 in their entirety and in 

context, we conclude that Mr. McCarty was not "within the class of persons 

intended to be protected by the statute" as required for the application of KRS 

13 
446.070 and the principles of negligence per se, as set forth in Straub. We also 

conclude that the occurrence identified as the cause of McCarty's tragic 

death—the failure to secure the garage door in accordance with the 

manufacturer's installation instructions, and its subsequent fall—is not the 

type of occurrence that the foregoing mining statutes were intended to prevent. 

Consequently, the Estate's claims cannot be based upon a negligence per se 

theory predicated upon violations of KRS Chapters 351 and 352. 

B. Administrative Regulations 

The Estates relies upon three regulations in support of its negligence per 

se claim under KRS 466.070: 805 KAR 7:090; 805 KAR 3:020; and 805 KAR 

3:100. "KRS 446.070 creates a cause of action in [these] narrow circumstances 

. . . (1) the regulation must be consistent with the enabling legislation and (2) it 

must apply to the safety of the citizenry." Straub, 354 S.W.3d at 535 (citation 

omitted). 

There being no statutory text within the enabling statutes (KRS Chapters 

351 and 352) which would support a negligence per se theory of liability for the 

occurrence that injured McCarty, nor any precise mandate within the enabling 

statutes for the promulgation of regulations that would include the 

circumstances of this case, based upon the Straub rule alone, it would appear 

that the administrative regulations cited by the Estate would, likewise, fail to 

support a negligence per se claim. It would make little sense for the legislature 

to enact statutory provisions limited exclusively to the reduction or elimination 

of hazards associated with the mining of coal, and yet at the same time have 

14 
those same statutes serve as enabling legislation for administrative regulations 

focused upon occupational hazards far removed from the mining of coal so as 

to reach the hazards associated with installing large, commercial garage doors. 

Our resolution of the statutory issues in the preceding section should, by the 

same force of reasoning, resolve the Estate's arguments relating to the 

administrative regulations. 

The Estate relies heavily upon the mine visitor provisions of Section (1) of 

805 KAR 7:090, a regulation concerned with "Surface Hazard Training." That 

section provides that "[s]urface hazard training shall be provided by the [mine 

operator] to visitors exposed to mine surface hazards[.]" Manifestly, a "mine 

surface hazard" does not encompass the installation of a garage door on a 

building under construction. To the extent that the garage door posed a 

hazard during its installation, it was not a "mine" hazard. The enabling 

statutes for this regulation are KRS 351.106, KRS 352.350, KRS 351.070, and 

KRS 351.105, and yet an examination of those statutes does not disclose any 

indication that this regulation could have been intended to bear the weight 

advocated by the Estate. 

805 KAR 3:020 concerns the establishment of "general operating safety 

standards controlling the operation of the Commonwealth's surface coal and 

clay mines, which include strip and auger mining operations." Neither the text 

of the regulation nor the text of the enabling statutes, KRS 13A.100, and KRS 

351.070, encompasses the installation of a garage door during the construction 

of a building on the mining premises. 

15 
Similarly, 805 KAR 3:100 concerns "safety standards controlling the use 

and operation of equipment in the Commonwealth's surface type coal and clay 

mines, which include strip and auger mining operations." More specifically, 

the regulation addresses "exposed moving machine parts that may cause injury 

to persons," and power tools and machinery such as grinders, hand-held power 

tools, fork lifts, trucks, front-end loaders, bulldozers, and excavators, etc. This 

regulation is clearly geared toward addressing the safety of tools and 

equipment routinely used in the excavation of coal or clay. It does not 

encompass the instrumentalities of McCarty's accident. 

None of the enabling statutes for the above-mentioned regulations 

contain language that would support the promulgation of regulations creating 

a duty owed by Covol to Mr. McCarty or the work in which he was engaged at 

the time of his accident. Any administrative regulation purporting to reach 

that hazard would fail as exceeding the scope of its enabling statute. St. Luke 

Hosp., Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011). 

In summary, the administrative regulations cited by the Estate apply to 

mining operations, mine workers and the traditional dangers and risks 

ordinarily associated with coal mining. We find nothing in the text of these 

administrative regulations which would indicate that McCarty was within the 

class of persons to be protected, or that his injuries were within the type of 

harms to be prevented by the regulations. We have examined the additional 

range of regulations cited in the certified question (Sections 805 and 825), and 

16 
are unable to locate any provision which would change the result of our 

discussion as set forth herein. 

C. KRS 350.020 

Although KRS Chapter 350 (titled "Surface Coal Mining) is not 

specifically included within the Sixth Circuit's certified question, the Estate 

cites KRS 350.020, which identifies the following hazards and dangers of 

"unregulated surface coal mining operations:" 

soil erosion, damage from rolling stones and overburden, 

landslides, stream pollution, the accumulation of stagnant water 

and the seepage of contaminated water, increase the likelihood of 

floods, destroy the value of land for agricultural purposes, destroy 

aesthetic values, counteract efforts for the conservation of soil, 

water and other natural resources, destroy or impair the property 

rights of citizens, create fire hazards, and in general create hazards 

dangerous to life and property, so as to constitute an imminent and 

inordinate peril to the welfare of the Commonwealth. The General 

Assembly further finds that lands that have been subjected to 

surface coal mining operations and have not been reclaimed and 

rehabilitated in accordance with modern standards constitute the 

aforementioned perils to the welfare of the Commonwealth. 

(emphasis added). The statute further provides that the General Assembly's 

purpose for the statute is "to minimize or prevent the injurious effects [of 

unregulated surface coal mining] on the people and resources of the 

Commonwealth." 

The Estate maintains that the statute's reference to mining activities that 

"in general create hazards dangerous to life and property" encompasses the 

installation of garage doors at a coal mining site. We are persuaded otherwise. 

The doctrine of ejusdem generis refutes the Estate's argument. Ejusdem 

generis is a rule of statutory construction that provides "where, in a statute, 

17 
general words follow or precede a designation of particular subjects or classes 

of persons, the meaning of the general words ordinarily will be presumed to be 

restricted by the particular designation, and to include only things or persons 

of the same kind, class, or nature as those specifically enumerated, unless 

there is a clear manifestation of a contrary purpose." Kentucky Retirement 

Systems v. Brown, 336 S.W.3d 8, 16 (Ky. 2011) (quoting Steinfeld v. Jefferson 

County Fiscal Court, 229 S.W.2d 319, 320 (Ky. 1950)). 

All of the particular hazards identified in the statute—water 

contamination, blasting, dust issues, disposal of by-products, damage to 

vegetation, and reclamation concerns—have a direct nexus to the 

environmental consequences of "unregulated surface mining." The final 

provision referring generally to "hazards dangerous to life and property" relates 

to hazards that, likewise, have a direct nexus with the environmental hazards 

of surface mining. The fortuitous installation of a heavy garage door on a coal 

mining site has no nexus with unregulated coal mining, and is therefore, not 

among the hazards addressed by KRS Chapter 350. 

D. Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005) 

The Estate cites Hargis v. Baize as support for its claim that 

administrative regulations promulgated to effect the safety of employees in a 

regulated workplace from industrial hazards also protects independent 

contractors exposed to those hazards. On the strength of Hargis, the Estate 

argues that as an independent contractor, McCarty, like the decedent in 

Hargis, was entitled to the protections afforded by the administrative 

18 
regulations governing the particular regulated industry, and so the Estate is 

thereby entitled to assert a negligence per se claim based upon the violation of 

those regulations. However, the instant case is clearly distinguished by its 

facts. In Hargis, the deceased contractor, was engaged in the type of 

work—hauling and unloading logs at a saw mill—that was a core function of the 

regulated business, whereas the installation of garage doors is entirely 

unrelated to Covol's core business. Unlike the circumstances we address here, 

the regulations relied upon by the plaintiff in Hargis specifically applied to the 

type of work at issue. We are convinced that Hargis does not support a claim 

based upon negligence per se in this case. 

III. CONCLUSION 

Based upon the foregoing analysis, we conclude in response to the 

request of the United States Court of Appeals for the Sixth Circuit, that a 

subcontractor injured while installing a garage door on an unfinished building 

at a mine site may not maintain a wrongful death action against a mine 

operator under a negligence per se theory for alleged violations of the Kentucky 

mining statutes and regulations codified in KRS Chapters 350, 351 and 352 

and KAR Sections 805 and 825. 

The law is so certified. 

All sitting. All concur. 

19 
COUNSEL FOR NANCY J. MCCARTY AND NANCY J. MCCARTY, AS PERSONAL 

REPRESENTATIVE OF THE ESTATE OF DAVID W. MCCARTY, DECEASED: 

Travis Leon Holtrey 

Foreman Watson Holtrey, LLP 

Lane C. Siesky 

Siesky Viche, PC 

COUNSEL FOR LIBERTY MUTUAL AGENCY MARKETS: 

Mark Wayne Howard 

Jones Howard Law PLLC 

COUNSEL FOR COVOL FUELS NO. 2, LLC, A UTAH CORPORATION: 

Robert E. Stopher 

Robert Dmitri Bobrow 

Boehl, Stopher 85 Graves, LLP 

COUNSEL FOR AMICUS CURIAE 

KENTUCKY JUSTICE ASSOCIATION: 

Paul A. Casi, II 

Jeffrey Wayne Adamson 

Paul A. Casi, II, P.S.C. 

Kevin Crosby Burke 

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