RENDERED: OCTOBER 16, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1335-MR

KENNEY CROSS AND

KELLI HOFFMAN APPELLANTS

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 16-CI-03358

L-M ASPHALT PARTNERS, LTD.

d/b/a ATS CONSTRUCTION; AND

L-M HOLDINGS, INC. APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.

ACREE, JUDGE: Kenney Cross and Kelli Hoffman (Appellants) appeal the 

Fayette Circuit Court’s August 27, 2019 order granting summary judgment in 

favor of L-M Asphalt Partners, Ltd. d/b/a ATS Construction and L-M Holdings, 

Inc. (ATS). We affirm. 
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BACKGROUND

The Commonwealth of Kentucky Transportation Cabinet Division of 

Construction Procurement (KYTC) contracted with ATS to perform a road 

construction project. The contract required that “[a]ll work performed and 

materials furnished shall be in accordance with the Department of Highways 

Standard Specifications for Road and Bridge Construction . . . .” ATS was to 

perform the construction contract in phases. Construction was in Phase 6B when 

the events giving rise to this action occurred.

On August 1, 2015, Gonzalo Portillo was driving a Chevrolet 

Trailblazer on Versailles Road. He made a left turn onto New Circle Road and

collided with Appellants’ motorcycle as it approached from the opposite direction. 

Appellants were seriously injured.

At the time of the accident, there were three barrels at the nose of the 

median at this intersection. During this phase of construction, the contract and 

construction documents required barrels to be used to redirect the flow of traffic

and to taper, or narrow, the lanes. This moved traffic away from the median at the 

intersection and allowed construction safely to take place there. Barrels were 

required under the contract documents, in part, because of their high visibility. 

Appellants sued ATS for negligence claiming the barrels created a 

line-of-sight problem for motorists and identified this as the cause of the subject 
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collision. After discovery was had, ATS moved for summary judgment. Citing 

appropriate authority and establishing by the record that ATS’s actions were in 

strict compliance with the contract and construction specifications, ATS claimed it 

was entitled to sovereign immunity. The circuit court agreed and granted summary 

judgment. This appeal followed. 

STANDARD OF REVIEW

“The proper standard of review on appeal when a trial judge has 

granted a motion for summary judgment is whether the record, when examined in 

its entirety, shows there is ‘no genuine issue as to any material fact and the moving 

party is entitled to a judgment as a matter of law.’” Hammons v. Hammons, 327 

S.W.3d 444, 448 (Ky. 2010) (quoting Kentucky Rules of Civil Procedure (CR) 

56.03). Because summary judgment does not require findings of fact but only a

determination there is insufficient evidence to create a genuine issue as to a 

material fact necessary to a claim, we review summary judgments de novo. Id.

(citing Malone v. Ky. Farm Bur. Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).

ANALYSIS

“[T]he general rule is that a contractor cannot be held liable if it 

complied with the plans and specifications laid out by the government entity in the 

construction contract . . . .” Gilbert v. Murray Paving Co., Inc., 147 S.W.3d 736, 

741 (Ky. App. 2003). Though this is the general rule, “immunity does not absolve 
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the contractor from negligence in performing his contract.” Combs v. Codell 

Const. Co., 244 Ky. 772, 52 S.W.2d 719, 720 (1932). That is to say, “[w]here a 

contractor makes installations [such as the placement of barrels in the instant case] 

in conformity with the specifications of his contract . . . and he is not negligent in 

the manner of doing the work, as a general rule he is not liable for damages 

resulting from such installation.” Consolidated Contractors v. Wilcoxen, 252 

S.W.2d 429, 431 (Ky. 1952). 

ATS’s motion for summary judgment placed upon Appellants an 

obligation to direct the circuit court to evidence in the record that ATS’s placement 

of the barrels was negligent because it was not in conformity with the 

government’s requirements. That motion was supported by proof that KYTC 

agents directed where and how barrels were to be placed, and further proof that 

ATS placed barrels where and how those KYTC agents directed. Appellants failed 

to present evidence to contradict that proof.

Appellants did present evidence that a barricade was originally in 

place that presented a line-of-sight problem for motorists and that the barrels 

ordered to replace them presented essentially the same problem. Appellants also 

presented expert testimony critical of various other aspects of the government’s 

construction design or management of its contract. Experts said it would have 

been better to use cones or other traffic control devices such as tubular markers,
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rather than barrels. But the record shows the use of barrels was required at this 

location and the use of cones or tubular markers was prohibited. 

Appellants pointed to communications from the representative of a 

nearby neighborhood association to the KYTC Section Engineers noting there was 

a problem at the intersection, and that the information was relayed to ATS. 

Critical in the circuit court’s analysis of ATS’s motion, however, is that the record 

showed KYTC conducted daily inspections of the worksite and never directed the 

removal or repositioning of the barrels.1

This evidence challenged KYTC’s planning and oversight of the 

construction as negligent, but it does not refute the proof that ATS performed its 

duty in conformity with the government’s contract.

In City of Louisville v. Padgett, Kentucky’s highest court discussed 

the scope of a contractor’s liability when performing a highway construction

pursuant to plans and specifications mandated by the Commonwealth:

Ordinarily one contracting with the sovereign 

Commonwealth of Kentucky who performs his contract in 

conformity with the plans and specifications of the 

contract will not be held liable for injury to the public in 

the absence of a negligent . . . or a wilful [sic] tortious act

. . . .

 

1 Appellants point to testimony by the KYTC engineer that ATS did not need permission from 

KYTC to reposition or remove barrels. However, as ATS notes, this testimony refers to a 

reconfigured barrel placement after the intersection was relocated to allow for advancing 

construction. 
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457 S.W.2d 485, 488 (Ky. 1970). Then, quoting an opinion by the Tennessee 

Supreme Court with approval, the Court explained the rationale of the rule upon 

which the circuit court in the instant case based its summary judgment, saying:

It seems to us that as a practical matter, in the construction 

of public improvement, that the contractor shoudl [sic] be 

relieved from checking every order given it by the public 

authority. The State for whom the contractor works does 

the engineering, stakes out the project, tells the contractor 

what to grade and what to do and so long as the contractor 

complies with these instructions by its superior then the 

contractor is fulfilling its obligation. If the contractor was 

required, at its peril, to check and double check all plans 

given it and required to keep an engineering force for the 

purpose of interpreting these plans, and was not permitted 

to follow the orders of the engineering force of its superior, 

then the costs of public improvement would be so 

increased as to make them almost prohibitive. The 

purpose of having the State engineering department for 

these public improvements is to lay out these projects and 

to tell the contractor where to do its work. The 

contractor’s work is not the engineering job of laying out 

the project but is merely in doing what it is instructed to 

do. So long as it does this work as it is instructed to do by 

its superior in a workman like manner, not negligently, 

then the contractor is not liable.

Id. at 489-90 (quoting Wood v. Foster & Creighton Co., 191 Tenn. 478, 235 

S.W.2d 1 (1950)).

The circuit court heard testimony from multiple individuals that ATS 

placed the barrels in accordance with KYTC instructions and the plans. The duty 

ATS owed was to perform the construction in conformity with the terms of its 

contract and to complete the construction work pursuant to the plans provided by
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KYTC. The evidence demonstrates ATS satisfied that duty. Appellants failed to

present evidence to create a genuine issue to the contrary.

Based on the foregoing reasons, the order of the Fayette Circuit Court 

granting summary judgment in favor of ATS is affirmed. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Hans G. Poppe, Jr.

Louisville, Kentucky

D. Todd Varellas

Lexington, Kentucky

BRIEF FOR APPELLEES:

William H. Partin, Jr.

Lexington, Kentucky