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2016-SC-000099-DG

AUSLANDER PROPERTIES, LLC

V. ON REVIEW FROM COURT OF APPEALS

CASE NO. 2014-CA-000022

NELSON CIRCUIT COURT NO. lO-CI-00688

JOSEPH HERMAN NALLEY; MARY NALLEY;

STEPHANIE NALLEY; JEWISH HOSPITAL;

ST. MARY'S HEALTHCARE INC., D/B/A

FRAZIER REHAB INSTITUTE; AND

UNIVERSITY MEDICAL CENTER, INC.,

D/B/A UNIVERSITY OF LOUISVILLE

HOSPITAL APPELLANT

APPELLEES

MEMORANDUM OPINION OF THE COURT

REVERSING AND REMANDING

Appellant, 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).i 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

1 Stephanie Nalley; Maty Nalley; University Medical Center, Inc. D/B/A

University of Louisville Hospital; Jewish Hospital; and St. Mary ’ s Healthcare, Inc.

D/B/A Frazier Rehab Institute are also appellees.

1to 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 Nalley ’ s claim.

I. FACTUAL AND PROCEDURAL BACKGROUND.

At the 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 perfoi-m more demanding tasks.

When 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 perfonned

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.After 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.

Nalley 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 summaiy judgment on the negligence per se claim. The

case was ultimately submitted to the jury on both theories of liability.

With respect to the common law negligence claim, the jury answered

special interrogatory instmctions 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

2 Nalley asserted violations of KOSHA regulation 803 KAR 2:015 Section 3 and

OSHA regulation 29 C.F.R. 1910.23.that Nalley might rely upon the load-bearing capability of the decorative rafters

and fall as a result thereof.

The 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.

The 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.Sd 36 (Ky. 2005), and Pennington v.

MeadWestvaco Corp., 238 S.W.Sd 667 (Ky. App. 2007).

While the appeal was pending, this Court decided McCarty v. Covol Fuels

No. 2, LLC, 476 S.W.Sd 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.

Nalley 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, Nalleyreasserts his preservation argument. Since it is potentially dispositive, we

address it first.

II. THE LLC PROPERLY APPEALED THE DENIAL OF SUMMARY

JUDGMENT SEEKING REVERSAL OF THE TRIAL COURT

JUDGMENT.

Nalley 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

summaiy 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 summaiy judgment is not appealable. With respect to the

latter, Nalley argues that because the LLC failed to follow up its directed verdict

motion with a post-trial motion for judgment notwithstanding the verdict

(JNOV), the only appellate relief available is a new trial.

We are persuaded by neither of those arguments. The LLC ’ s notice of

appeal following entry of judgment in the trial court plainly shows that it

appealed from the final judgment and the trial court ’ s orders denying the LLC ’ s

motions for summary judgment and directed verdict.

In support of its claim that the LLC is improperly attempting to appeal

the denial of a summaiy judgment motion, Nalley cites a familiar line of cases

following Gumm v. Combs, 302 S.W.2d 616 (Ky. 1957). “ An order denying a

motion for summary judgment is not appealable. Nor is such a denial

reviewable on an appeal from a final order or judgment where the question

considered is whether or not there exists a genuine issue of a material fact. ”Id. at 616-617 (internal citations omitted). Gumm and its progeny further

explain the exception to that general rule:

[TJhere is an exception to the general rule found in [Gumm] and

subsequently approved in Loy v. WhitneyPJ and Beatty v. 2?oof[^].

The exception applies where: (1) the facts are not in dispute, (2) the

only basis of the ruling is a matter of law, (3) there is a denial of

the motion, and (4) there is an entry of a final judgment with an

appeal therefrom. Then, and only then, is the motion for summary

judgment properly reviewable on appeal under Gumm.

Transportation Cabinet, Bureau of Highways v. Leneave, 751 S.W.2d 36, 37 (Ky.

App. 1988); see also Abbott v. Chesley, 413 S.W.3d 589, 602 (Ky. 2013).

The four elements comprising the exception are clearly met here. First,

the facts material to Nalley ’ s negligence per se claim are not in genuine dispute

and, although they were submitted to the jury, the findings were never in

doubt. Nalley was working more than 10 feet off the ground and he was not

provided safety equipment to prevent his fall. Second, Nalley ’ s status as an

employee or an independent contractor was clearly a matter of law. The LLC ’ s

only basis for summary judgment was that the KOSHA regulations pertaining

to employees working from heights did not apply because the LLC was not an

“ employer ” and Nalley was an independent contractor. Third, the trial court

denied the LLC ’ s motion. And fourth, the LLC appealed from a final judgment.

A fair synthesis of the Gumm rule provides that when the material facts

were not genuinely disputed and summary judgment was denied purely as a

matter of law, an order denying summary judgment is properly reviewable on

3 339 S.W.2d 164 (Ky. 1960).

4 415 S.W.2d 384 (Ky. 1967).an appeal from an adverse final judgment, the same as any other interlocutory

ruling by the trial court on a question of law. 302 S.W.2d at 617. Thus, we

conclude that the denial of the summary judgment motion was a proper basis

for the LLC ’ s appeal.

Nalley also contends that the LLC cannot seek appellate relief from the

trial court ’ s failure to grant its motion for a directed verdict because the LLC

failed to state grounds for the motion with sufficient specificity to present the

issue to the trial court. Upon review of the record, we are satisfied that the

LLC ’ s motion for directed verdict was plainly understood to be based, among

other things, upon the same rationale as its motion for summary judgment.

The trial court was fully apprised of the issue being raised.

Next, citing Ead.es v. Stephens^ and Flynn v. Songer,^ Nalley asserts that

by failing to move for judgment notwithstanding the verdict (JNOV) under CR

50.02, the LLC waived its right to any appellate relief other than a retrial. We

do not disagree with the principle for which those cases are cited but they are

not applicable here. The limiting principle described in Fades and Songer does

not constrain the appellate court to ordering a retrial when other procedural

avenues properly before it authorize more complete relief, such as dismissal of

the underlying claim.

Like its earlier motion for summary judgment, the LLC ’ s motion for a

directed verdict, with respect to the negligence per se claim, was not based

upon disputed evidentiary issues to be resolved by the jury. It, too, was purely

5 302 S.W.2d 117, 120 (Ky. 1957).

6 399 S.W.2d 491, 493 (Ky. 1966).based upon an argument of law pertaining to the applicability of KOSHA

regulations with which the LLC admittedly did not comply. If the LLC was

entitled to the dismissal of Nalley ’ s negligence per se claim due to the

inapplicability of the KOSHA regulations, it is not subsequently deprived of that

remedy because it failed to move for JNOV. The LLC ’ s summary judgment

motion arguing for dismissal based upon a matter of law rather than the non

existence of disputed material facts properly preserved the right on appeal to

demand dismissal of the negligence per se claim. A motion for judgment

notwithstanding the verdict was not necessary for the preservation of a remedy

otherwise available through another issue on appeal. See Gumm, 302 S.W.2d

616.

Nalley raises other procedural points as grounds for dismissing the LLC ’ s

appeal, including the LLC ’ s failure to secure an express ruling of the trial court

denying its directed verdict motion and presenting arguments for reversal on

appeal not pressed at an earlier stage in the litigation. We need not address

the intricacies of these procedural arguments. It is clear that the LLC

preserved its right to appeal the trial court ’ s application of KOSHA regulations

and its judgment of liability based thereon.

III. AUSLANDER PROPERTIES, LLC IS ENTITLED TO DISMISSAL

OF THE NEGLIGENCE PER SE CLAIM.

KOSHA was enacted for the purpose of “ preventing any detriment to the

safety and health of all employees, both public and private, covered by this

chapter, arising out of exposure to harmful conditions and practices at places

of work. ” KRS 338.011. KRS 338.03 l(l)(a) imposes a duty on “ each employer ”

to furnish “ his employees with employment and a place of employment which

8are free from recognized hazards that are causing or are likely to cause death

or serious physical harm to his employees. ” Subsection (b) of that statute

requires employers to “ comply with occupational safety and health standards

promulgated under this chapter. ” The same duties are imposed verbatim

under OSHA, 29 U.S.C. Section 654(a). As defined by KRS 338.015(1),

“ employer ” means “ any entity for whom a person is employed. ”

The LLC asserts that the Court of Appeals ’ opinion must be reversed

because, having no employees, Auslander Properties, LLC could not be an

“ employer ” as defined by KRS 338.015(1). The LLC further asserts that even if

it is an “ employer ” generally subject to KOSHA, it is subject only to the specific

regulations applicable to its function as a landlord and property owner, which

does not include the regulations cited by Nalley for the protection of

independent contractors working on rooftops or other high places. All grounds

for reversal cited by the LLC involve matters of law which we review de novo.

Penix V. Delong, 473 S.W.3d 609, 612 (Ky. 2015).

Nalley acknowledged at trial that he was an independent contractor

rather than an employee of the LLC, and the relevant facts in the record all

confirm that point. He argues, as the trial court concluded, that the LLC was

an employer for KOSHA purposes because Auslander was an “ employee ”

personally performing the work needed to conduct the LLC ’ s property rental

business.

We do not accept Nalley ’ s characterization of Auslander ’ s status.

Nothing in the record suggests that Auslander was an employee of his own

LLC. The employer-employee relationship is a familiar and well-establishedspecies of agency relationship. It carries with it a wide range of specific legal

obligations applicable in circumstances far beyond the KOSHA regulations now

before us. We decline to stretch the traditional conception of that relationship

so that Auslander may be deemed an employee of the LLC. A member of an

LLC conducting business and performing work as an agent of the LLC does not

automatically become an employee of the LLC.'^

This determination alone does not resolve the issue before the Court. We

allow that circumstances could arise in which an LLC with no employees is,

nevertheless, bound to comply with certain KOSHA regulations inherently

applicable to the core function of the LLC ’ s business. We make no attempt to

define those circumstances, but we remain open to the possibility that they

exist.

Correspondingly, Nalley ’ s status as an independent contractor rather

than an employee of the LLC does not automatically defeat his claim. We

recognized in Hargis v. Baize that an employer subject to KOSHA regulations

for the protection of its own employees is also bound to comply with the same

regulations for the benefit of an independent contractor performing on the

employer ’ s premises the same work as the employer ’ s employees. 168 S.W.Sd

at 43. Consequently, in Hargis, a lumber mill operator was negligent per se for

failing to provide KOSHA protections to an independent contractor performing

the same job of hauling and unloading logs as its own employees. Hargis rests

largely upon the rationale expressed by the Sixth Circuit Court of Appeals in

7 See KRS 275.135(1). We also note that a member of an LLC may elect

whether to be classified as an employee for workers ’ compensation purposes but need

not do so. KRS 342.012(1).

10Teal V. E.I. DuPont de Nemours & Co., T29> F.2d 799 {6th Cir. 1984), holding

that the OSHA (or KOSHA) regulations applicable to an employer ’ s own

employees are equally applicable to employees of independent contractors

working on the premises doing the same kind of work. Hargis added that

protections owed to employees of an independent contractor under Teal are

also owed to the independent contractor himself.

In Teal, an employee of an independent contractor fell from a ladder at a

DuPont plant. The ladder was affixed to the structure for use by DuPont

employees. The Teal court held that the injured worker was within the class of

workers that the OSHA ladder regulations were intended to protect, and that

DuPont was already subject to those regulations for its employees using

ladders at that workplace. Id at 805.

Together, Teal and Hargis make it clear that an employer ’ s KOSHA

responsibility can extend beyond its own employees to include others, such as

independent contractors and their employees. The Teal/Hargis extension,

however, is governed by a limiting rule explained in Ellis v. Chase

Communications, Inc., 63 F.3d 473 (6th Cir. 1995), and further addressed by

this Court in McCarty v. Covol Fuels No. 2, LLC.

In Ellis, an independent contractor ’ s employee fell to his death while

painting a television tower owned by Chase Communications. Unlike the

worker in Teal, who was entitled to the same workplace protections that

DuPont already owed to its employees on that site, there was no evidence in

Ellis that climbing the television tower for any purpose was a function ever

performed by any employees of Chase Communications. 63 F.3d at 478.

11The Court of Appeals addressed a similar issue in Pennington v.

MeadWestvaco Corp.: whether the owner of a manufacturing plant was

responsible for complying with specific KOSHA regulations applicable to the

work of a subcontractor ’ s employee performing renovation work at the plant.

The Pennington court applied the analysis of Ellis v. Chase Communications,

noting that Chase Communications “ was not considered an ‘ employer ’ with

respect to the tower site so as to render it subject to OSHA requirements. The

particular safety violation at issue was not one for which Chase

Communications would normally be responsible in the usual course of its

operations. ” 238 S.W.3d at 671.

In McCarty, an employee of a commercial garage door contractor was

killed while installing a heavy garage door at a building under construction at

the site of a coal mine. The worker ’ s estate brought a wrongful death action

claiming that the mine operator was negligent per se because it permitted the

garage door installation to proceed despite a lack of compliance with

regulations generally applicable to large garage door installations and

regulations pertaining to coal mine safety.

We explained in McCarty that it was unreasonable to expect a coal mine

operator to inspect the safety habits of independent contractors installing a

garage door and be otherwise knowledgeable about “ the special techniques,

requirements, and hazards of the various construction trades ” such as

commercial garage door installations. 476 S.W.3d at 232-233. Indeed, we

noted that an employer ’ s unfamiliarity with the hazards and regulations of

12work activities beyond its core function was “ a major reason for using

specialized outside contractors instead of in-house laborers. ” Id. at 232.

We agree that when an employer sends its own employees into harm ’ s

way to perform any task regardless of the nature of the business, the employer

must apprise itself of, and comply with, any safety regulation applicable to that

task. The law requires such compliance. But when the employer engages the

services of an independent contractor for a task alien to the core function of the

employer ’ s business, the employer is relying upon the special expertise and

ability of the contractor to know and obey the applicable safety standards of

that activity.

In Hargis, the independent contractor was injured at the employer ’ s

workplace, performing work that was an ordinary part of the employer ’ s

sawmill operation and was regularly performed by the employer ’ s own workers.

In contrast, the injured workers in Ellis and McCarty, respectively, were

engaged in work not ordinarily associated with Chase Communications ’

television communications services or Covol Fuels ’ coal mining operation. Like

the workers in Ellis and McCarty, Nalley was an independent contractor

performing a specialized service not typically associated with the routine

functions of the LLC ’ s properly rental business.

The Court of Appeals accepted Nalley ’ s argument that cutting away high

branches from the tops of trees was an ordinary component of the LLC ’ s

business as an owner and manager of rental property. We disagree. Certainly,

some basic aspects of routine landscape maintenance fall within the core

functions of managing and renting real estate, but specialized work like

13climbing rooftops and ladders, or climbing into the tree itself, to cut branches

requires specialized knowledge and skills beyond what is reasonably expected

of an ordinary property rental business.

An employer who uses a specialized independent contractor rather than

his own employees to perform those activities properly relies upon the

contractor ’ s skill and superior knowledge of the risks inherent in the work and

the safety equipment and techniques required by applicable regulations for

minimizing those risks. The LLC was not in the tree trimming business and it

was not an employer of tree trimmers, rooftop workers, or workers using

ladders for whom it must comply with KOSHA ’ s standards designed to prevent

falls from ladders and rooftops. As succinctly stated in Pennington v.

MeadWestvaco Corp.: “ If an independent contractor undertakes duties

unrelated to the normal operations of an employer, the responsibility for

violation of safety standards associated with those separate functions falls

upon the independent contractor. ” 238 S.W.3d at 672 (citing Ellis, 63 F.3d

473).

The Court of Appeals distinguished Pennington based upon what it

perceived as Auslander ’ s control and supervision of the work being done by

Nalley. Its characterization of Auslander ’ s involvement in Nalley ’ s work is not

supported by the record. Auslander assisted Nalley by providing an extra set of

hands to handle the detached branches, but Nalley decided how, when, and

where he would cut the branches and where he would stand while doing so.

Auslander did not control the manner and method of Nalley ’ s work.

14At the time of his injury, Nalley was an independent contractor rather

than an employee of the LLC, and he was performing specialized work

unrelated to the normal operations of the LLC ’ s property rental business. The

responsibility for complying with safety laws applicable to that specialized work

was upon Nalley. Since the LLC had no duty of compliance, Nalley ’ s negligence

per se claim fails as a matter of law.

Finally, the LLC argues that the trial verdict should be reversed because

of the improper admission of testimony by Nalley ’ s expert witness. Based upon

our disposition of the other issues, we need not address the merits of this

argument.

IV. NALLEY WAS NOT ENTITLED TO A DIRECTED VERDICT ON HIS

COMMON LAW NEGLIGENCE CLAIM.

Nalley also argues that the trial court judgment should be affirmed based

upon his alternative common law negligence claim. Specifically, Nalley

contends that he was entitled to a directed verdict on that claim because

“ undisputed testimony reveal[ed] that the condition of the roof presented an

unreasonable risk of harm ” and that “ Auslander knew about the danger and

admitted he did not at least warn of it, and [Nalley] fell as a result. ”

A motion for a directed verdict should be granted only if “ there is a

complete absence of proof on a material issue or if no disputed issue of fact

exists upon which reasonable minds could differ. ” Bierman v. Klapheke, 967

S.W.2d 16, 18-19 (Ky. 1998). In determining whether the trial court erred in

failing to grant a motion for a directed verdict, the reviewing court “ must

consider the evidence in its strongest light in favor of the party against whom

the motion was made and must give him the advantage of every fair and

15reasonable intendment that the evidence can justify. ” Lovins v. Napier, 814

S.W.2d 921, 922 (Ky. 1991). “ The decision of the trial court will stand unless it

is determined that ‘ the verdict rendered is palpably or fragrantly against the

evidence so as to indicate that it was reached as a result of passion or

prejudice. ” Indiana Insurance Company v. Demetre, 527 S.W.Sd 12, 25 (Ky.

2017) (quoting Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461 (Ky.

1990)). In addition, “ the considerations governing a proper decision on a

motion for judgment notwithstanding the verdict are exactly the same as those

... on a motion for a directed verdict. ” Cassinelli v. Begley, 433 S.W.2d 651-52

(Ky. 1968).

With those standards in mind, we reject Nalley ’ s characterization of the

evidence and conclude that the trial court did not err in denying Nalley ’ s

motion for a directed verdict. In the context of a premises liability claim, a

landowner is not liable to an independent contractor for injuries sustained

from defects or dangers that the independent contractor knows or ought to

know of. Owens v. Clary, 75 S.W.2d 536, 537 (Ky. 1934).« Only when “ the

defect or danger is hidden and known to the owner, and neither known to the

contractor, nor such as he ought to know, ” is the landowner liable for the

contractor ’ s injuries absent a warning. Id. at 537.

Contrary to Nalley

’ s claim, the evidence presented at trial does not

conclusively establish that the roof presented any hidden danger or an

unreasonable risk of harm. Instead, the jury heard Auslander testify that.

8 In Brewster v. Colgate-Palmolive Co., this Court reaffirmed the rule stated in

Owens concerning the duty owed by landowners to independent contractors. 279

S.W.3d 142, 143 n.l, 144 (Ky. 2009).

16although the portion of the roof at issue was not designed to be weight-bearing,

he did not think he “ would ever mistake that for a roof. ” In addition, when

asked whether she believed the roof was dangerous or misleading, the LLC ’ s

expert engineer explained that “ It ’ s an arbor. It ’ s this open area at the roof. No,

I don ’ t think that it ’ s misleading at all. It ’ s these two by six boards on their

ends, two foot apart

. . . . ” She further testified that “ anyone with any type of

construction knowledge would hesitate to

— to step on it just because it ’ s these

little one and a half inch boards up in the air out there. ”

This testimony cannot reasonably be construed as “ undisputed

testimony

” that the portion of the roof at issue “ presented an unreasonable risk

of harm, ” or that Auslander knew about any hidden danger that the roof

allegedly posed. Rather, at a minimum, this testimony would allow reasonable

minds to differ as to whether the roof constituted a defect or hidden danger or

whether Nalley ought to have known of the alleged hidden danger. Because this

testimony places issues of material fact in dispute, Nalley ’ s motion for a

directed verdict was properly denied.

Similarly, this testimony provided a sufficient basis for the jury ’ s findings

that “ the cosmetic (i.e. not weight-bearing) nature of the exposed roof rafters ”

was either known or obvious to Nalley; Auslander should not have anticipated

that Nalley might rely on the load-bearing capabilities of the cosmetic rafters

and fall from the roof; the work area upon which Nalley stood was in a

reasonably safe condition; and Steve Auslander did not fail to exercise ordinary

care for the safety of Nalley.

17In sum, the LLC presented sufficient evidence at trial to create disputed

issues of material fact upon which reasonable minds could differ. Likewise, the

jury ’ s special verdict findings were fully supported by that evidence.

Accordingly, the trial court did not err in denying a directed verdict on Nalley ’ s

common law negligence claim.

V. THE TRIAL COURT ’ S INSTRUCTIONS ON NALLEY ’ S COMMON LAW

NEGLIGENCE THEORY WERE CORRECT.

Nalley also argues that even if this Court concludes that a directed

verdict was not appropriate, a new trial is nonetheless warranted because the

trial court ’ s jury instructions on the common law negligence claim were flawed.

Nalley claims that the trial court ’ s instructions misstated the law applicable to

premises-liability claims between a landowner and invitee and that he is

entitled to bare bones instructions instead.

Specifically, Nalley takes issue with instruction number 5. That

instruction, in part, provided:

Instruction No. 5

(Negligence)

State whether you are satisfied from the evidence as follows:

A. Because of the nature of the activity and the potential for distraction,

in the exercise of ordinary care Auslander Properties, LLC should have

anticipated that Herman Nalley might fall from the roof during the

course of his work.

B. Because of the nature of the work being performed and the potential

for distraction, the work area upon which Herman Nalley stood was

not in a reasonably safe condition for use by him.

Nalley argues that “ the jury found that the LLC had breached its duty

because it answered in the affirmative [to instruction 5A] that the nature of

[Nalley ’ s] work on the roof created the ‘ potential for distraction ’ and ‘ Auslander

18Properties, LLC should have anticipated that Herman Nalley might fall from the

roof during the course of his work. ” Thus, Nalley contends, the additional

inquiry in 5B

— asking whether the work area in question was in a reasonably

safe condition

— was unnecessary and only served to confuse the jury.

Essentially, Nalley argues that the inquiry should have stopped after 5A,

because the jury ’ s affirmative answer to that instruction would necessarily

mean a breach of duty had occurred.

“ Whether a jury instruction misrepresents the applicable law is purely a

question of law, which [this Court] review[s] de novo. ” Maupin v. Tankersley,

540 S.W.Sd 357, 360 (Ky. 2018) (citing Sargent v. Shaffer, 467 S.W.3d 198, 204

(Ky. 2015)). While Kentucky law encourages the use of bare-bones instructions,

they are not required.^ Rather, “ the question herein is whether the instructions

misstated the law by failing to sufficiently advise the jury Svhat it [had to]

believe from the evidence in order to return a verdict in favor of the party who

[had] the burden of proof. ’ ” Office, Inc. v. Wilkey, 173 S.W.3d 228, 229 (Ky.

2005) (quoting Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.

1992) (alterations in original)). It is within the trial court ’ s discretion to deny a

requested instruction, and its decision will not be reversed absent an abuse of

discretion. ” Id. (citing King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir.

2000)).

® See CSX Transp., Inc. u. Moody, 313 S.W.3d 72, 82 (Ky. 2010) (citing Lumpkins

V. City of

Louisville, 157 S.W.3d 601 (Ky.2005); Young v. J.B. Hunt Transportation, Inc.,

781 S.W.2d 503, 506 (Ky.l989); Drury v. Spalding 812 S.W.2d 713, 718 (Ky. 1991))

(explaining that “ Kentucky state courts take a ‘ bare bones ’ approach to jury

instructions,

. . . leaving it to counsel to assure in closing arguments that the jury

understands what the instructions do and do not mean, ” but, “ regardless of what form

jury instructions take, they must state the applicable law correctly and neither

confuse nor mislead the jurors. ” ).

19We think Nalley ’ s argument misstates the law applicable to premises

liability claims between landowners and invitees and that the trial court ’ s

instructions were sufficient. Nalley relies on a long line of cases in which this

Court discusses the difference between duty and breach as it relates to

foreseeability. The most applicable of these cases, and the one on which Nalley

most heavily relies, is Shelton v. Kentucky Easter Seals Soc,. Inc. 413 S.W.3d

901 (2013).10

In Shelton, this Court held that, contrary to the traditional approach, the

open-and-obvious nature of a hazardous condition does not eliminate a

landowner ’ s general duty of ordinary care. Id. at 911-12. “ Rather, in the event

that the defendant is shielded from liability, it is because the defendant fulfilled

its duty of care and nothing further is required. ” Id. at 911. It follows, we

explained, that “ [t]he obviousness of a condition is a ‘ circumstance ’ to be

factored under the standard of care. ” Id.

Thus, despite the obvious nature of a hazardous condition, a landowner

may still be liable to an invitee in certain circumstances. Notably, liability may

result where the landowner “ ha[d] reason to expect that the invitee ’ s attention

may be distracted, so that he will not discover what is obvious or will forget

what he has discovered

. . . . ” Id. at 907.

Nalley points to this language to support his argument that the juiy, by

answering in the affirmative to instruction 5A, necessarily found that

10 Nalley also cites, as a part of this line of cases. Carter v. Bullitt Host, LLC, 471

S.W.3d 288 (Ky. 2015); Dick ’ s Sporting Goods, Inc. v Webb, 413 S.W.3d at 891 (Ky.

2013); and Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (2010). We similarly

find the trial court ’ s instructions to be consistent with those opinions.

20Auslander breached the standard of care and that a second instruction asking

whether the work area was in a reasonably safe condition for use was

unnecessary and confusing to the jury.

Shelton, however, did not dictate that liability will automatically result

simply because it is foreseeable that the invitee may be harmed because a

distraction would cause him to forget about the danger. Rather, the court

specifically noted that “ when a defendant ‘ should anticipate that the dangerous

condition will cause physical harm to the invitee notwithstanding its known or

obvious danger ”

— when, for example, the invitee is likely to not discover or

forget about the dangerous condition because of a distraction

— “ liability may be

imposed on the defendant as a breach of the requisite duty to the invitee

depending on the circumstances. ” Id. at 915 (quoting Kentucky River Med. Ctr.

V. McIntosh, 319 S.W.3d 389 (2010)). That is, liability may still be imposed in

this situation “ if reasonable care is not exercised. ” Id.

Therefore, although the jury answered in the affirmative to instruction

5A, the juiy could still conclude, based on the circumstances, that Auslander

did not breach its duty owed to Nalley. Put another way, the liability inquiry

could not simply end with instruction 5A; the instruction in 5B was needed.

In sum, we conclude that the jury instructions did not misstate

Kentucky law, and the trial court did not abuse its discretion in failing to grant

Nalley ’ s request to substitute his own proposed jury instructions. Therefore,

the trial court did not err in using its own jury instructions.

21IV. CONCLUSION.

For the reasons set forth above, we reverse the opinion of the Court of

Appeals and remand this case to the Nelson Circuit Court for entry of a final

judgment dismissing Nalley ’ s claim.

All sitting. All concur.

COUNSEL FOR APPELLANT:

John Douglas Hubbard

Fulton, Hubbard 85 Hubbard

James Wendell Taylor

Taylor Law Group, PLLC

John Choate Roach

Ransdell, Roach & Royce, PLLC

Ryan Richard Loghiy

Loghry Law, PLLC

COUNSEL FOR APPELLEES JOSEPH HERMAN NALLEY; MARY NALLEY; AND

STEPHANIE NALLEY:

Kevin Crosby Burke

Jamie Kristin Neal

Burke, Neal, PLLC

Michelle Buckley Sparks

Keith Allen Sparks

McCoy & Sparks, PLLC

COUNSEL 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,

COUNSEL FOR APPELLEE UNIVERSITY MEDICAL CENTER, INC., D/B/A

UNIVERSITY OF LOUISVILLE HOSPITAL:

John Byron Moore

10619 Meeting St.

Ste. 6312

Prospect, KY 40059

22

# Staurf of 

# Wi'ntucky

2016-SC-000099-DG

AUSLANDER PROPERTIES, LLC APPELLANT

V. ON REVIEW FROM COURT OF APPEALS

CASE NO. 2014-CA-000022

NELSON CIRCUIT COURT NO. lO-CI-00688

JOSEPH HERMAN NALLEY; MARY NALLEY;

STEPHANIE NALLEY; JEWISH HOSPITAL;

ST. MARY'S HEALTHCARE INC., D/B/A

FRAZIER REHAB INSTITUTE; AND

UNIVERSITY MEDICAL CENTER, INC.,

D/B/A UNIVERSITY OF LOUISVILLE

HOSPITAL APPELLEES

ORDER GRANTING PETITION FOR REHEARING AND WITHDRAWING AND

REISSUING OPINION

The Court, being fully and sufficiently advised, ORDERS that:

1. Appellant ’ s Petition for Rehearing is GRANTED; and,

2. The Opinion of the Court rendered herein on June 14, 2018, is

hereby withdrawn, and the attached Opinion is reissued in lieu

thereof.

3. The Opinion of the Court rendered herein on June 14, 2018,

incorrectly identifies Appellees Jewish Hospital, St. Mary ’ s

Healthcare, Inc. d/b/a Frazier Rehab Institute, and University

Medical Center, d/b/a University of Louisville Hospital as sharingcounsel in common with the Nalleys. The new Opinion corrects

the alignment of counsel.

All sitting. All concur.

ENTERED: September 27, 2018