RENDERED: NOVEMBER 9, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1308-MR

MIRANDA MARIE ELLISON APPELLANT 

v. 

APPEAL FROM HOPKINS CIRCUIT COURT

HONORABLE CHRISTOPHER B. OGLESBY, JUDGE

ACTION NO. 19-CI-0087

GARY WAYNE MILLER APPELLEE 

AND

NO. 2021-CA-1364-MR

GARY WAYNE MILLER CROSS-APPELLANT

v. 

CROSS-APPEAL FROM HOPKINS CIRCUIT COURT

HONORABLE CHRISTOPHER B. OGLESBY, JUDGE

ACTION NO. 19-CI-0087

MIRANDA ELLISON CROSS-APPELLEE
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OPINION

AFFIRMING APPEAL NO. 2021-CA-1308-MR 

AND CROSS-APPEAL 2021-CA-1364-MR

**   **  **

BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Miranda Marie Ellison brings Appeal No. 2021-CA-1308-MR 

from an October 14, 2021, Trial Order and Judgment of the Hopkins Circuit Court, 

and Gary Wayne Miller brings Cross-Appeal No. 2021-CA-1364-MR from the 

same October 14, 2021, Trial Order and Judgment of the Hopkins Circuit Court

dismissing Ellision’s personal injury action against Miller. We affirm Appeal No. 

2021-CA-1308-MR and Cross-Appeal No. 2021-CA-1364-MR.

On November 3, 2017, Gary Wayne Miller, a resident of Kentucky, 

was operating a motorcycle in Texas. Ellison, a resident of Tennessee, was a 

passenger on the motorcycle. Miller lost control of the motorcycle, and Ellison 

suffered severe injuries, including a brain injury. Neither Miller nor Ellison was 

wearing a helmet at the time of the accident. The motorcycle was licensed and 

registered in Kentucky, and Miller possessed a Kentucky motorcycle instruction 

permit. 

On February 27, 2019, Ellison filed a complaint in the Hopkins 

Circuit Court against Miller. Therein, Ellison stated that Miller was a resident of 

Hopkins County and resided in Madisonville, Kentucky. Ellison asserted that “due 
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to [Miller’s] negligence, carelessness, gross negligence, and recklessness he lost 

control causing a wreck that injured . . . Ellison.” Complaint at 1. In particular, 

Ellison raised the claims of negligence, negligence per se, and gross negligence. 

As to negligence per se, Ellison alleged that Miller violated sundry Texas 

Transportation Code Provisions. Miller filed an Answer and generally denied that 

he was negligent, careless, grossly negligent, or reckless as to his operation of the 

motorcycle.

A dispute arose between parties concerning whether Texas or 

Kentucky law was controlling, whether Miller could properly operate a motorcycle 

in Texas, and whether Miller could operate the motorcycle with a passenger in 

Texas. By order entered February 17, 2021, the circuit court concluded:

1. The Defendant, Gary Miller, possessed a valid license 

to operate a motorcycle in Texas on November 3, 2017[,]

pursuant to Tx. Transp. Code § 521.030. 

2. The Defendant, Gary Miller, was authorized by Tx. 

Transp. Code § 521.030 and Tx. Transp. Code § 

545.416(b)-(c) to operate a motorcycle in Texas with a 

passenger on November 3, 2017. 

3. At the time of the accident on November 3, 2017, 

Defendant, Gary Miller, was in violation of Tx. Transp. 

Code § 661.003(b) by failing to require Plaintiff, a 

passenger on his motorcycle, to wear protective head 

gear. 

4. Plaintiff Miranda Ellison was in violation of Tx. 

Transp. Code § 661.003(a)-(c) by failing to wear 
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protective head gear while a passenger on Defendant, 

Gary Miller’s motorcycle on November 3, 2017.

February 17, 2021, Order at 1. And, after a pretrial conference, the circuit court 

rendered an order on September 17, 2021. Therein, the court noted that Ellison 

withdrew Edward Crum as an expert witness and that the parties agreed to not 

mention “the motorcycle license status” of Miller.

A jury trial ensued, and the jury found in favor of Miller. By Trial 

Order and Judgment entered October 14, 2021, the circuit court dismissed all 

claims against Miller. These appeals follow.

APPEAL NO. 2021-CA-1308-MR

Ellison contends that the circuit court erroneously failed to instruct the 

jury upon certain statutory duties under both Texas and Kentucky law. In 

particular, Ellison argues that the circuit court’s jury instructions failed to instruct 

upon statutory duties under Texas law that Miller had to ensure Ellison was 

wearing a helmet, that Miller was not properly licensed to operate a motorcycle, 

and that Miller was not permitted to carry a passenger on his motorcycle. 

Additionally, Ellison asserts that the circuit court’s jury instructions also failed to 

instruct upon the statutory duty in Kentucky that Miller could not carry a passenger 

as he only possessed a motorcycle instruction permit. To resolve these contentions

of error, we must initially determine whether Kentucky or Texas law controls and 

then address Ellison’s specific claims as related to the jury instructions.
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As to tort actions filed in this Commonwealth, it is well-settled that 

“any significant contact with Kentucky is sufficient to allow an application of 

Kentucky law.” Reichwein v. Jackson Purchase Energy Corp., 397 S.W.3d 413, 

416 (Ky. App. 2012) (quoting Petronis v. Churchill Downs, Inc., No. 2005-CA1925-MR, 2007 WL 1520018, at *2 (Ky. App. 2007)). In Arnett v. Thompson, 433 

S.W.2d 109, 113 (Ky. 1968), the Supreme Court elaborated upon the significant 

contact test in relation to a motor vehicle accident:

Upon further study and reflection the court has 

decided that the conflicts question should not be 

determined on the basis of a weighing of interests, but 

simply on the basis of whether Kentucky has enough 

contacts to justify applying Kentucky law. Under that 

view if the accident occurs in Kentucky (as in the instant 

case) there is enough contact from that fact alone to 

justify applying Kentucky law. Likewise, if the parties 

are residents of Kentucky and the only relationship of the 

case to another state is that the accident happened there 

(as in Wessling [v. Paris, 417 S.W.2d 259 (Ky. 1967)]), 

there is enough contact with Kentucky to justify applying 

our law. The fact that we will apply Kentucky law where 

Kentucky people have an accident in Ohio or Indiana 

does not require that we apply Ohio or Indiana law where 

people of one of those states have an accident here, 

because the basis of the application is not a weighing of 

contacts but simply the existence of enough contacts with 

Kentucky to warrant applying our law.

In this case, Miller was a resident of Kentucky, and Kentucky issued 

Miller a motorcycle instruction permit. Miller’s motorcycle was also registered 

and licensed in Kentucky. Ellison was a Tennessee resident, and the accident 
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occurred in Texas. Under these undisputed facts, we are of the opinion that 

Kentucky had significant contacts to compel application of Kentucky law. See 

Arnett, 433 S.W.2d at 113. Having so concluded, we shall now examine Ellison’s 

contention as to improper jury instructions.

It is well-established that jury “[i]nstructions must be based upon the 

evidence and they must properly and intelligibly state the law.” United Parcel 

Serv., Inc. v. Barber, 557 S.W.3d 303, 310 (Ky. App. 2018) (quoting Hamilton v. 

CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006)). Per Kentucky Rules of 

Civil Procedure (CR) 51(3), a party may not appeal an erroneous jury instruction 

unless the party “fairly and adequately” stated his position by tendered

instructions, by motion, or by objection. So, to preserve a challenge to a jury 

instruction, a party must inform the trial court of the alleged error so that the court 

has the “opportunity to correct any errors before instructing the jury.” Sand Hill 

Energy, Inc. v. Smith, 142 S.W.3d 153, 162 (Ky. 2004). 

In this case, Ellison submitted two proposed jury instructions and 

objected to the court’s jury instructions. However, Ellison’s proposed jury 

instructions and objection centered upon the application of Texas statutory law. 

Ellison argued in her trial briefs that Miller was not a licensed motorcycle operator 

under Texas law, that Miller was not authorized to carry a passenger under Texas 

law, and that Miller should have required Ellison to wear a helmet under Texas 
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law. Ellison’s proposed jury instructions and objections to the court’s jury 

instructions were based upon her belief that Texas law controlled. As we have 

concluded that Kentucky law controls, it was not error for the circuit court to 

refuse to instruct the jury on Texas law as proposed by Ellison. 

And, as to Ellison’s argument that the court erred by failing to 

instruct the jury on negligence per se based upon Miller’s violation of Kentucky 

Revised Statutes (KRS) 189.285(4), it appears that Ellison failed to argue same in 

her objections to the court’s jury instructions. Ellison’s arguments as to 

application of KRS 189.285(4) are clearly unpreserved for appellate review. CR 

51(3). 

We are cognizant that KRS 189.285(4) prohibits a motorcycle 

operator with only an instruction permit from carrying a passenger in Kentucky. 

Miller only possessed a motorcycle instruction permit and was barred by KRS 

189.285(4) from carrying Ellison as a passenger. However, “the mere violation of 

a statute does not necessarily create liability [as] . . . [t]he violation must be a 

substantial factor in causing the injury[.]” Lewis v. B & R Corp., 56 S.W.3d 432, 

438 (Ky. App. 2001). See also Ronald W. Eades, Kentucky Law of Damages § 1:5

(2023). While causation is usually a factual issue, the “court may decide the issue 

of causation as a matter of law” where there is only one reasonable conclusion that 

can be reached. Id.
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In our case, there was no evidence introduced at trial that Miller’s 

carrying of a passenger was a substantial factor in causing the motorcycle accident. 

See Rentschler v. Lewis, 33 S.W.3d 518, 520 (Ky. 2000). It appears that Ellison 

had retained Crum as an expert witness to testify as to the handling of a motorcycle 

with a passenger but ultimately agreed to withdraw him as a witness before trial. 

Consequently, we conclude that Ellison was not entitled to a negligence per se 

instruction based upon either Kentucky or Texas statutory law. Therefore, the trial 

court did not commit reversible error by failing to instruct the jury upon negligence 

per se based on Miller’s violation of KRS 189.285(4). 

Ellison next maintains the circuit court erred by excluding from 

evidence one of Miller’s medical records. Ellison points out that the medical 

record was a progress note by Dr. Kayla Colvill and was created while Miller was 

a patient at a Texas hospital on November 4, 2017, the day after the motorcycle 

accident. In the medical record, Ellison indicates that “the narrative states in 

relevant part: ‘Gary Miller is a 41 year old male, who presented s/p MCC [status 

post motorcycle collision] at approximately 80 mph.’” Ellison’s Brief at 22. 

Ellison argues that the circuit court erroneously excluded the medical record based 

upon a hearsay objection. Ellison maintains that the medical record was 

admissible per Kentucky Rules of Evidence (KRE) 803(4), KRE 801A(a)(1), and 

KRE 803(6).
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The circuit court’s decision to admit or exclude evidence is reviewed 

for an abuse of discretion. Clephas v. Garlock, Inc., 168 S.W.3d 389, 393 (Ky. 

App. 2004). If the circuit court abused its discretion, we will only reverse if such 

error prejudiced the substantial rights of a party. KRE 103(a); Portor v. Allen, 611 

S.W.3d 290, 294 (Ky. App. 2020). And, when considering whether the error is 

harmless, “the court determines whether the result probably would have been the 

same absent the error[.]” CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 69 (Ky. 

2010).

In her brief, Ellison admits that the medical record at issue “was 

shown onscreen” on two occasions during trial. Ellison’s Brief at 22. The record 

reveals that Ellison specifically questioned Miller concerning his speed at the time 

of the accident. During questioning, Miller stated that he was traveling the speed 

limit. In response, Ellison questioned Miller concerning the statement to his 

doctor that Miller was traveling eighty miles per hour at the time of the accident. 

At this time, the medical record was on a screen in the courtroom with the relevant 

sentence highlighted for the jury. Ellison continued to question Miller about the 

medical record and why the doctor would have recorded that Miller was traveling 

at eighty miles per hour at the time of the accident. Miller denied making the 

statement to the physician and denied he was traveling eighty miles per hour.
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Later, during trial, Ellison was cross-examining Andrew Erwin, an 

expert witness for Miller. Ellison asked Erwin if he could tell the jury how fast 

Miller was traveling at the time of the accident, and Erwin responded that he could 

not. Ellison then asked Erwin what the chances were that Miller would have 

problems with the motorcycle if he were going eighty miles per hour. Erwin 

responded the chances were higher if he were traveling at a higher speed. Ellison 

then asked Erwin to detail the information the defense team provided for his

review, which Erwin did. Thereafter, Ellison asked if Erwin reviewed Miller’s 

medical record where it was recorded that Miller was traveling eighty miles per 

hour. At this time, Ellison showed the medical record on a screen to the jury. 

Miller objected to the medical record on the basis of hearsay. The circuit court 

sustained the objection and instructed the jury to disregard the medical record in 

this instance. Ellison proceeded to ask Erwin if it mattered what Miller told his 

doctor concerning the speed of the motorcycle. Erwin answered no and explained 

that his testimony concerning the motorcycle accident was based upon scientific 

literature, tire marks, and independent facts.

Considering that the jury was informed about the content of the 

medical record during Ellison’s examination of Miller and that Erwin stated that 

the information was irrelevant to his expert opinion, we conclude that the jury’s 

verdict probably would have been the same absent the alleged error, so the error, if 
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any, was harmless. We simply do not believe the exclusion of the medical record 

had any impact upon the jury’s verdict. Thus, we are of the opinion that the circuit 

court did not commit reversible error by excluding the medical record.

Ellison raises other allegations of error. We believe the remaining 

allegations of error are moot based upon our resolution herein. 

CROSS-APPEAL NO. 2021-CA-1364-MR

Miller filed a protective cross-appeal, and based upon our affirmance 

of Ellison’s direct appeal (Appeal No. 2021-CA-1308-MR), the contentions of 

error raised in the Cross-Appeal are moot. 

For the foregoing reasons, we affirm Appeal No. 2021-CA-1308-MR 

and affirm Cross-Appeal No. 2021-CA-1364-MR.

ALL CONCUR.

BRIEFS FOR APPELLANT/CROSSAPPELLEE:

Ryan Biggerstaff

Michael Liska

Lexington, Kentucky

BRIEF FOR APPELLEE/CROSSAPPELLANT:

James A. Sigler

M. Jared Sigler

Paducah, Kentucky