RENDERED: AUGUST 18, 2022

TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0247-DG

2021-SC-0064-DG

2021-SC-0065-DG

PRIMAL VANTAGE COMPANY, INC. APPELLANT/CROSS-APPELLEE

ON APPEAL FROM COURT OF APPEALS

NOS. 2018-CA-0045-MR, 2018-CA-0063-MR & 2018-CA-0106-MR

JEFFERSON CIRCUIT COURT NO. 12-CI-006326

V. 

KEVIN O’BRYAN APPELLEE/CROSS-APPELLANT

AND 

SANTÉ O’BRYAN APPELLEE/CROSS-APPELLANT

AND

DENNIS MARTIN AND

MARGARET MARTIN APPELLEES/CROSS-APPELLEES

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

This is a products-liability case in which Primal Vantage Company, Inc. 

appeals from a decision of the Court of Appeals affirming the trial court’s 

judgment that awarded substantial damages to Kevin O’Bryan and Santé 

O’Bryan. The product at issue is a ladderstand manufactured by Primal 

Vantage that must be affixed to a tree to be used for hunting. While Kevin 
2

O’Bryan was using the ladderstand, the polypropylene straps securing the 

stand to the tree broke, the stand fell, and Kevin sustained serious injuries. 

A jury found Primal Vantage liable for failure to warn and to instruct of 

the dangers associated with use of the straps. The jury awarded Kevin1

damages for past and future medical and personal expenses, pain and 

suffering, and lost wages. The jury also awarded damages for loss of 

consortium to Kevin’s ex-wife, Santé O’Bryan. The O’Bryans’ claims against 

Dick Sporting Goods, Inc., the retailer of the stand, and Dennis and Margaret 

Martin, the owners of the property where the accident occurred, were 

dismissed by the trial court. 

We granted discretionary review to examine further the role of the trial 

court as evidentiary gatekeeper and clarify the law regarding failure-to-warn

claims. Upon review, we conclude that the trial court abandoned its role as 

evidentiary gatekeeper and abused its discretion by allowing the jury to hear a 

wealth of other-incidents evidence before ultimately ruling that evidence 

inadmissible near the end of trial. As a result, we affirm the Court of Appeals’ 

opinion in part, reverse in part, and remand the matter to the trial court for 

further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Dennis Martin purchased a ladderstand at Dick’s Sporting 

Goods and attached it to a tree on his property. The stand was manufactured 

1 Since both Kevin and Santé O’Bryan are appellees/cross-appellants in this 

action, we refer to Kevin by his first name to avoid confusion. 
3

by Primal Vantage and consisted of a two-person platform and an attached 

ladder. The ladderstand was not designed to be freestanding. Five 

polypropylene straps were required to secure the stand to a tree. The stand 

was sold with instructions and warnings.

In 2012, Kevin O’Bryan, his son, and a friend were given permission to 

hunt on the Martins’ property. Kevin, his son, and the friend climbed the 

ladder to the platform. Shortly after the three reached the platform, the straps 

broke, and the stand fell to the ground. Kevin suffered serious injuries. 

Kevin and his then-wife Santé O’Bryan sued the Martins, the owners of 

the property and the stand; Dick’s Sporting Goods, the retailer of the stand; 

and Primal Vantage, the manufacturer of the stand. The claims against the 

Martins were dismissed before trial based on Kentucky Revised Statute (KRS)

150.645, which grants immunity to landowners who give permission to another 

person to hunt on their property. All claims against Dick’s Sporting Goods 

were dismissed by directed verdict following the close of evidence at trial. 

The only remaining claims for the jury to consider were the failure-towarn claims asserted against Primal Vantage. The jury found Primal Vantage 

liable for failure to provide reasonable warning and instruction regarding the 

risk attendant to the use of polypropylene straps to secure the ladderstand to a 

tree. The jury awarded damages to Kevin for past medical expenses, past 

personal-care expenses, future medical and personal-care expenses, pain and

suffering and loss of enjoyment of life, and lost wages. The jury also awarded 

Santé O’Bryan damages for loss of consortium. But the jury assigned fifty 
4

percent of the fault to Primal Vantage and fifty percent of the fault to Kevin 

O’Bryan. As such, the trial court reduced Kevin’s and Santé’s damage-award 

amounts by fifty percent and issued judgment accordingly. 

Primal Vantage and the O’Bryans both filed cross-appeals. The Court of 

Appeals affirmed the judgment. Primal Vantage and the O’Bryans then filed 

cross-motions for discretionary review in this Court, which we granted.

II. ANALYSIS

Primal Vantage asserts several errors: (1) the trial court improperly 

admitted evidence of other incidents of accidents and injuries involving 

ladderstands; (2) the trial court gave jury instructions that deviate from 

Kentucky law and violate the bare-bones doctrine; (3) statutory immunity 

under KRS 150.645(1) does not proscribe apportionment of fault to the 

landowners where the accident occurred; (4) an ex-spouse cannot recover for 

loss of spousal consortium damages and, if they can, damages must be limited 

to the time of marriage; and (5) Plaintiffs’ counsel made repeated prejudicial 

references to China and Chinese locations to inflame the jury.

On cross-appeal, Kevin O’Bryan contends that the trial court made 

several errors: (1) the trial court erroneously granted Primal Vantage’s motion 

for directed verdict on the design-defect claims; (2) the trial court erroneously 

excluded evidence of other incidents involving ladderstand accidents; (3) Primal 

Vantage failed to comply with discovery orders regarding other-incidents 

evidence; and (4) if a new trial is granted based on the apportionment 

instruction, the trial court’s decision to grant summary judgment to the 
5

landowners based on statutory immunity in KRS 150.645(1) should be 

reversed.

Finally, on cross-appeal, Santé O’Bryan argues that the trial court erred 

by reducing her loss-of-consortium award by applying Kevin’s fifty percent 

apportionment of fault.

A. The trial court abused its discretion by failing to screen otherincidents evidence, allowing several other instances to be 

introduced, then declaring the evidence inadmissible, and failing to

admonish the jury expressly not to consider the inadmissible otherincidents evidence. 

The trial court abandoned its evidentiary gatekeeper role and allowed

introduction of a wealth of evidence of other injuries or accidents occurring 

during the use of ladderstands without determining the admissibility of the 

other-incidents evidence until near the end of trial. This error was magnified 

by several assurances offered by the trial court that introduction of dissimilar 

other-acts evidence would likely result in a mistrial and by the trial court’s 

failure to admonish the jury clearly that the jury must not consider this 

inadmissible other-incidents evidence during deliberations. 

Generally, “evidence of the occurrence or nonoccurrence of other 

accidents or injuries under substantially similar circumstances is admissible 

when relevant to . . . the existence or causative role of a dangerous condition, 

or a party's notice of such a condition.”

2 “A requirement of substantial 

similarity between the earlier accidents and the one at issue is a matter of 

2 Montgomery Elevator Co. v. McCullough ex rel. McCullough, 676 S.W.2d 776, 

783 (Ky. 1984) (quoting Harris v. Thompson, 497 S.W.2d 422, 429 (Ky. 1973)).
6

relevance to be decided in the discretion of the trial judge and will not be 

reversed unless there has been an abuse of discretion.”

3 Abuse of discretion 

will be found where the trial court’s decision “was arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.”4

In this case, counsel for Primal Vantage objected to introduction of otherincidents evidence through motions in limine. In response, the trial court

applied a good-faith standard, generally denied all Primal Vantage’s motions in 

limine, allowed discussion in the presence of the jury of 78 other instances of 

accidents or injuries involving ladderstands, and withheld ruling on 

admissibility of the other instances evidence until near the end of trial.

The trial court serves an important evidentiary-screening function to 

ensure that, to the extent possible, only relevant evidence is admitted.

5 

Moreover, even in the context of relevant evidence, the trial court has a duty to 

balance the potential for undue prejudice against the probative worth of 

proffered evidence.6 

3 Id. (internal quotation marks omitted).

4 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). 

5 See, e.g., Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) 

(acknowledging “the trial court’s unique role as gatekeeper of evidence”); Dunnaway v. 

Commonwealth, No. 2019-SC-0730-MR, 2021 WL 234773, at *2–3 (Ky. Jan. 21, 2021) 

(“[W]e are unconvinced the trial court abdicated its role as gatekeeper in this 

evidentiary matter[.]”); Leatherman v. Commonwealth, 357 S.W.3d 518, 529 (Ky. App. 

2011); Kentucky Rule of Evidence (KRE) 402 (“Evidence which is not relevant is not 

admissible.”); KRE 103(c) (“Hearing of jury. In jury cases, proceedings shall be 

conducted, to the extent practicable, so as to prevent inadmissible evidence from being 

suggested to the jury by any means, such as making statements or offers of proof or 

asking questions in the hearing of the jury.”).

6 See KRE 403 (“Although relevant, evidence may be excluded if its probative 

value is substantially outweighed by the danger of undue prejudice, confusion of the 
7

Here, the trial court abdicated its gatekeeping role by allowing the jury to 

hear presentation of a wide range of other-incidents evidence without making 

any determination until near the end of the trial on whether the other 

instances were substantially similar to the accident underlying this suit. 

Failure properly to screen the challenged other-incidents evidence was error

because the jury heard about 78 other accidents and injuries involving 

ladderstands that the trial court ultimately ruled inadmissible.

The trial court amplified its error by cautioning that the admission of 

dissimilar other-incidents evidence would likely result in a mistrial but then 

failing to grant the mistrial when it ultimately ruled the evidence inadmissible. 

The trial court cautioned that evidence of unrelated incidents was “incredibly 

prejudicial evidence” and signaled at least four times that admission of 

dissimilar other-incidents evidence would likely result in a mistrial. Even so, 

after ruling that all other-incidents evidence presented at trial was dissimilar 

and therefore inadmissible, the trial court refused to grant a mistrial. 

Taken together, the trial court’s failure to screen the other-incidents 

evidence until near the end of trial, paired with the trial court’s cautionary 

statements regarding a likely mistrial, and the ultimate ruling that all the 

other-incidents evidence that the jury heard was inadmissible, constitutes 

abuse of discretion. In other words, the introduction of this evidence was 

unfair, unreasonable, and unsupported by sound legal principles. 

issues, or misleading the jury, or by considerations of undue delay, or needless 

presentation of cumulative evidence.”).
8

Kevin claims that the Court of Appeals properly concluded that the trial 

court did not abuse its discretion by allowing the jury to hear the inadmissible 

other-instances evidence. First, Kevin claims that the trial court was not 

required to make a preliminary or threshold determination on the admissibility 

of the other-incidents evidence. Of course, the trial court was not required to 

hold several mini-trials or make preliminary rulings on each of Primal 

Vantage’s motions in limine. And we acknowledge that a trial court has broad 

discretion in admitting evidence.7 

However, the trial court’s discretion is not unfettered and is limited by 

both the rules of evidence and the trial court’s general obligation as evidentiary 

gatekeeper. For instance, when ruling on a motion in limine, the trial court 

“may rule on such a motion in advance of trial or may defer a decision on 

admissibility until the evidence is offered at trial.”8 Here, the trial court did 

neither. Instead, the trial court generally denied Primal Vantage’s motions in 

limine without addressing the merits of the evidentiary challenges, allowed all 

of the other-instances evidence to be submitted to the jury, and only engaged 

in a substantive analysis regarding the admissibility of the evidence near the 

end of the trial. Thus, the trial court failed to comply with KRE 103(d) and 

abdicated its screening function to ensure that the jury not hear irrelevant or 

inadmissible evidence. 

7 Daugherty v. Commonwealth, 467 S.W.3d 222, 231 (Ky. 2015).

8 KRE 103(d).
9

 To be clear, we do not hold that a trial court must make a threshold 

determination about every evidentiary objection or motion in limine. No exact 

chronological procedure mandates when trial courts must make evidentiary 

determinations, and trial courts enjoy broad discretion in making evidentiary 

determinations. But, on this record, the trial court abandoned its function as 

gatekeeper by allowing the jury to hear this wide array of evidence before ruling 

at the end of trial that this evidence was inadmissible.

Second, Kevin argues that the other-incident proof offered at trial 

satisfied the substantial-similarity standard. The trial court ultimately 

disagreed, of course, concluding that all the other-incident evidence introduced 

at trial was unrelated to the accident underlying this suit. Of the otherincidents evidence introduced at trial, some of the incidents involved 

ladderstands made by other manufacturers, some of the incidents involved 

accidents that occurred during installation of a ladderstand, and some 

incidents involved accidents attributable to a broken ladder, not broken straps. 

But we need not determine whether any of the 78 instances of other-accidents 

or injuries introduced at trial satisfied the substantial-similarity test. Again, 

the primary issue here is that the trial court failed in its gatekeeping function 

to ensure that inadmissible evidence was not introduced. On remand, the trial 

court is best positioned to make evidentiary determinations in the first 

instance, and we take no position on whether any of the other-incidents proof 

presented at trial is admissible on retrial.
10

Third, Kevin contends that the trial court’s directed verdict on the 

design-defect claims cured any prejudice caused by introduction of the otherincidents evidence. Kevin claims that since the other-incidents evidence 

related exclusively to the design-defect claims, the other-incidents proof did not 

relate to the remaining failure-to-warn claims. But Kevin’s argument fails to 

recognize that notice and knowledge of an unsafe condition may be relevant to 

a failure-to-warn theory.9 Under a failure-to-warn theory, “liability for a 

manufacturer follows only if it knew or should have known of the inherent 

dangerousness of the product and failed to accompany it with the quantum of 

warning which would be calculated to adequately guard against the inherent 

danger.”10 As such, the other-incidents evidence was relevant to the remaining 

failure-to-warn claims, and the trial court’s directed verdict on the designdefect claims did not cure the prejudice resulting from introduction of the

volume of other-incidents proof. 

Fourth, Kevin argues that the trial court’s admonitions and counsels’ 

actions cured any prejudice caused by introduction of the other-incidents 

evidence. The trial court gave the jury several admonitions. For instance, the 

trial court explained that some evidence may be considered for some claims, 

but not others:

9 See discussion infra Part II.B.

10 CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 79 (Ky. 2010); see also Stiens v. 

Bausch & Lomb Inc., 626 S.W.3d 191, 200–01 (Ky. App. 2020); Prather v. Abbott Labs., 

960 F. Supp. 2d 700, 708 (W.D. Ky. 2013) (applying Kentucky substantive law and 

explaining that “[g]enerally, a manufacturer has a duty to warn of dangers that it 

either knew or should have known”).
11

Sometimes, in fact, a lot of times, there is a reason to allow 

something in for your consideration, but it is really limited. Like it 

is limited to a very narrow part of your decision. And the danger is 

that you all might not be able to understand the purpose for each 

bit of this evidence, because it doesn’t come with a big flashing 

sign that says, “only consider this for this” and “only consider this 

for that.” So, that’s a lot of what we’re talking about.

. . .

And I should have put boxes up that say[ ], this one goes to the []

claim that there’s a defect in the construction. This one goes to the 

claim there's a defect in the materials. This one goes to the claim 

there’s a defect in the notice. . . . I mean, there’s a bunch of 

different stuff and I’m going to give you a better instruction 

eventually about that but what I’m telling you is that not 

everything you hear can be considered by you for every decision 

that you make. All right? With that in mind, I’m going to let them 

ask this question about this one area that does not get applied 

universally.

Later that day, the trial court provided guidance to the jury regarding the 

number of other incidents that had been introduced and the limitations of the 

other incidents evidence:

These folks know everything about this case. I know something 

about it. And you all only know what you hear inside the 

courtroom, and that's good. But you might make assumptions 

about what you've heard that are absolutely incorrect, and we're 

concerned about that. For example, nobody is suggesting that 

what happened in this case has happened 78 times before. It 

hasn't. That's not what they're suggesting. But my fear is that 

somebody is thinking, wow, this is the 79th time that one of these 

treestands has collapsed like this under the same circumstances.

That is not the proof, and you should not assume that this is the 

79th time that an event like this one has happened. It's not, and 

nobody is suggesting that it is, to the extent that anybody is 

thinking that right now, stop thinking that, because that is not 

true, and nobody wants you to think that is true.

Finally, during jury instructions, the trial court informed jurors that they 

were not to consider evidence the court had excluded:
12

There are—there is testimony in this case which you have been 

asked to disregard, and it’s not like I’m going to say, seriously 

forget it or I’m going to cauterize that part of your brain where that 

information is stored.

What I’m saying is, that in making your decision, any of the 

testimony that I’ve asked you to disregard is not something that 

you may consider in reaching that decision. You have to keep it 

separate from that pile of evidence that you are making your 

decision from.

So there’s two piles, things that you consider and things that you 

can’t, and you can’t confuse those two piles. And as we go through 

this, counsel will kind of walk you through some of that, but it’s 

important that you kind of monitor each other to make sure that 

your decision is based on the facts that you've heard inside this 

courtroom and the facts that you're allowed to consider in making 

that decision.

 It is well-settled that “[a] jury is presumed to follow an admonition to 

disregard evidence and the admonition thus cures any error.”11 The issue here

is that the trial court never expressly instructed jurors that the other-incidents

evidence was inadmissible. The trial court provided generic admonitions to the 

jury regarding proper and improper use of the other-incidents evidence. And 

the trial court instructed the jury to disregard evidence that the court 

instructed them to disregard. The important point here is that the trial court 

never explicitly told the jurors to disregard the other-incidents evidence.

The trial court’s first two admonitions included above were given before 

the trial court discussed the admissibility of the other-incidents evidence. And, 

even after determining that none of the other-incidents evidence was 

substantially similar to the accident at issue in this case, the trial court did not

11 Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). 
13

explicitly instruct jurors to disregard the other-incidents evidence. As such, 

the trial court’s admonitions did not cure the prejudice related to the otherincidents evidence because the trial court did not properly admonish the jury 

on other-incidents evidence after finding it inadmissible. 

Even so, Kevin argues that his counsel took steps to cure any prejudice, 

including informing the jury during closing arguments that the inadmissible 

other-incidents evidence was not to be considered during deliberations. 

Despite Kevin’s counsel’s allegedly meliorative efforts in her closing argument, 

we remain unconvinced that those efforts cured the prejudice caused by 

introduction of the other-incidents evidence. Again, the trial court functions as

the neutral gatekeeper to ensure, to the greatest extent possible, that jurors 

only hear admissible evidence during trial. The trial court informs jurors of the 

proper consideration of evidence using admonitions and jury instructions. Of 

course, “Kentucky has long employed the use of ‘bare bones’ jury instructions, 

avoiding an abundance of detail and providing only a framework of the 

applicable legal principles.”

12 And “the ‘bare bones’ of the jury instruction can 

be ‘fleshed out by counsel in their closing arguments if they so desire.’”

13 But 

here, the jury heard evidence of 78 instances of other accidents or injuries 

involving ladderstands. Then, after ruling all the other-incidents evidence 

inadmissible toward the end of trial, the court never expressly told the jury to 

12 Sutton v. Commonwealth, 627 S.W.3d 836, 851 (Ky. 2021) (citing Olfice, Inc. v. 

Wilkey, 173 S.W.3d 226, 229 (Ky. 2005)).

13 Id. (quoting Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974)).
14

disregard the other-incidents evidence during its deliberations. As a result, 

counsel’s closing argument to the jury cannot cure the prejudice from the 

introduction of this heft of inadmissible evidence. 

Kevin further contends that Primal Vantage’s own counsel cured any 

potential error and waived any objection to the other-incidents evidence by 

introducing additional other-incidents evidence on cross examination and 

during closing argument. In other words, Kevin argues that Primal Vantage 

wants “to have its cake and eat it too” by arguing that the other-incidents 

evidence was inadmissible while also introducing self-serving other-incidents 

evidence. But Primal Vantage’s position at trial is more accurately 

characterized as being stuck between a proverbial “rock and a hard place.” The 

Court of Appeals correctly acknowledged that point, suggesting that holding 

that Primal Vantage waived its objection to admissibility of the other-incidents 

evidence would penalize effective advocacy. The trial court’s failure to serve as 

evidentiary gatekeeper by delaying ruling till near the end of trial placed Primal 

Vantage’s counsel in an unenviable strategic position as zealous advocates. 

Primal Vantage’s counsel faced a Hobson’s choice. First, Primal Vantage, 

believing that the other-incidents evidence was inadmissible, could make no 

mention of such evidence, allowing Plaintiffs’ counsel to introduce the evidence 

without any rebuttal or differentiation from Primal Vantage. Second, Primal 

Vantage, fearing that the trial court may find some of the other-incidents 

evidence admissible toward the end of trial, could ask questions on crossexamination about other incidents to rebut the evidence offered by Kevin and 
15

differentiate the other incidents introduced at trial. Primal Vantage cannot be 

penalized for choosing the latter course of action considering the trial court’s 

initial abandonment of its screening role.

Finally, Kevin asserts that even if introduction of the other-incidents 

evidence constituted error, any error was harmless, and a reversal for a 

possible new trial is not warranted. However, error in the admission or 

exclusion of evidence is not grounds for reversal “unless refusal to take such 

action appears to the court inconsistent with substantial justice.”

14 “The court 

at every stage of the proceeding must disregard any error or defect in the 

proceeding which does not affect the substantial rights of the parties.”

15 “When 

considering a claim of harmless error under CR 61.01, the court determines 

whether the result probably would have been the same absent the error or 

whether the error was so prejudicial as to merit a new trial.”

16

We cannot conclude that the introduction of the other-incidents evidence 

was harmless error. The jury heard evidence of 78 other incidents of accidents 

and injuries involving ladderstands. As such, the other-incidents evidence 

permeated the entire two-week trial. And the trial court’s decision to withhold 

ruling on the objections to the other-incidents evidence, allow the jury hear a 

wealth of other-instances evidence, rule all the other-incidents evidence 

inadmissible near the close of trial, and fail clearly to admonish or instruct the 

14 Kentucky Rule of Civil Procedure (“CR”) 61.01.

15 Id.

16 CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 69 (Ky. 2010).
16

jury not to consider the other-incidents evidence during deliberations is 

inconsistent with substantial justice. 

Additionally, the other-incidents evidence affected Primal Vantage’s 

substantial rights. As previously discussed, knowledge of an unsafe condition 

is relevant to a failure-to-warn claim. So it is possible that the jury would have 

reached a different result but for introduction of the other-incidents evidence, 

which the trial court held inadmissible. As a result, introduction of the otherincidents evidence was not harmless error, and a new trial is required. 

In conclusion, the trial court erred by abandoning its role as evidentiary 

gatekeeper and allowing the jury to hear substantial evidence regarding other 

accidents and injuries involving ladderstands that were eventually ruled 

inadmissible at the end of trial. This error affected Primal Vantage’s 

substantial rights and was not harmless. As a result, the holding by the Court 

of Appeals regarding the other-incidents evidence is reversed, the trial court’s 

judgment as to Primal Vantage must be vacated, and this action remanded for 

a new trial. 

B. The trial court’s jury instructions regarding failure to warn were not 

erroneous.

Our analysis does not end after concluding that a new trial is warranted 

based on the other-incidents evidence. This Court has consistently reviewed 

issues that are otherwise rendered moot if they are likely to recur on retrial.17 

17 See, e.g., Roberts v. Commonwealth, 599 S.W.3d 841, 854 (Ky. 2020); Blane v. 

Commonwealth, 364 S.W.3d 140, 154 (Ky. 2012); Sanderson v. Commonwealth, 291 

S.W.3d 610, 614 (Ky. 2009); Bell v. Commonwealth, 245 S.W.3d 738, 743 (Ky. 2008) 

(“Because the judgment has been reversed for the foregoing reasons, we will address 
17

Primal Vantage argues that the trial court’s jury instructions misstated 

Kentucky law on the failure-to-warn claims. Although this issue may be

rendered moot in this appeal by our finding that a new trial is warranted based 

on the other-incidents evidence, we will address Primal Vantage’s arguments 

regarding jury instructions on failure to warn because the issue is likely to 

recur on retrial. 

Under Kentucky law, the concepts of negligence and strict liability 

underlying a failure-to-warn claim are “distinct but overlapping theories.”18

“[A]lthough the concepts of strict liability and negligence may overlap in some 

areas, an inadequate warning may give rise to separate and distinct cause of 

action under either theory of liability.”19 

Negligence claims focus on the conduct of the actor.20 Under a 

negligence theory, “the manufacturer must ‘warn the consumer of non-obvious 

dangers inherent in the probable use of the product,’ even dangers from 

foreseeable misuse.”

21 The manufacturer is not charged with hindsight 

only those additional assignments of error that are likely to recur upon retrial.”); Terry 

v. Commonwealth, 153 S.W.3d 794, 797 (Ky. 2005) (“We will also address other issues 

that are likely to recur upon retrial.”); Springer v. Commonwealth, 998 S.W.2d 439, 

445 (Ky. 1999) (“Because the other issues raised by the appellants are likely to recur 

upon retrial, those issues will also be addressed in this opinion.”).

18 See Byrd v. Proctor & Gamble Mfg. Co., 626 F. Supp. 602, 605 n.4 (E.D. Ky. 

1986); see also C & S Fuel, Inc. v. Clark Equip. Co., 552 F. Supp. 340, 343–44, 347 

(E.D. Ky. 1982). 

19 Tipton v. Michelin Tire Co., 101 F.3d 1145, 1149 (6th Cir. 1996) (applying 

Kentucky substantive law).

20 Tipton, 101 F.3d at 1149.

21 Id. (quoting Byrd, 629 F. Supp. at 605).
18

regarding the potential risks involved in the design of the product under a 

negligence theory.22 

A strict-liability theory focuses on the condition of the product.23 In a 

strict-liability case, “[a] product may be unreasonably dangerous in design, 

unless accompanied by a warning that it should not be put to a certain use.”

24 

Put differently, a manufacturer 

is presumed to know the qualities and characteristics, and the 

actual condition, of his product at the time he sells it, and the 

question is whether the product creates ‘such a risk’ of an accident 

of the general nature of the one in question ‘that an ordinarily 

prudent company engaged in the manufacture’ of such a product 

‘would not have put it on the market.’

25

If warnings are required as part of a safe design, the manufacturer is charged 

with hindsight regarding the potential risks involved in the design of the 

product.26

The distinction between the negligence and strict liability theories 

is that negligence depends on what a prudent manufacturer, 

engaged in a business similar to that of the defendant, by the 

exercise of ordinary care actually should have discovered and 

foreseen, whereas strict liability depends on what he would have 

anticipated had he been (but regardless of whether he actually was 

or should have been) aware of the condition of and potentialities 

inhering in the product when he put it on the market.27

22 Id. (citing Byrd, 629 F. Supp. at 605 n.5). 

23 Tipton, 101 F.3d at 1149.

24 C & S Fuel, Inc., 552 F. Supp. at 347; see Ulrich v. Kasco Abrasives Co., 532 

S.W.2d 197, 200 (Ky. 1976); Leonard v. Uniroyal, Inc., 765 F.2d 560, 568 (6th 

Cir.1985) (citing C & S Fuel, Inc., supra, with approval).

25 Montgomery Elevator, 676 S.W.2d at 780 (emphasis in original) (quoting 

Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 433 (Ky. 1980)). 

26 Tipton, 101 F.3d at 1149 (citing Byrd, 629 F. Supp. at 605 n.5).

27 Ulrich, 532 S.W.2d at 200.
19

“Where [negligence] is actual, [strict liability] is postulated.”28 Put differently, 

“negligence turns on actual knowledge of a defective condition [that is]

unreasonably dangerous, or a condition which, under the exercise of ordinary 

care, should have been discovered or foreseen.”

29 Alternatively, “strict liability 

may be imposed where the eventual defect or resulting harm was merely 

speculative or hypothetical at best.”

30 While strict liability does not rely upon 

negligence, there is a close connection between the two theories based on the 

term “unreasonably dangerous.”31 Both negligence and strict liability employ 

the concept of reasonable foreseeability.32

Here, the trial court provided four instructions on Kevin’s failure-to-warn 

claims. Instruction No. 1 concerned failure to warn based on a defective 

product. Instruction No. 2 dealt with failure to instruct based on a defective 

product. Instruction No. 3 explained failure to warn based on negligence and 

is identical to Instruction No. 1 except for the third paragraph, which required 

the jury to find that Primal Vantage, in the exercise of ordinary care, should 

have been aware that the ladderstand was unreasonably dangerous. Finally, 

Instruction No. 4 provided that Primal Vantage could be liable based on failure 

to instruct under a negligence theory.

28 Id.

29 Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 55 (Ky. App. 1999).

30 Id.

31 Ulrich, 532 S.W.2d at 200.

32 Id.
20

Since negligence and strict liability are distinct, yet closely related, legal 

concepts, it was not error for the trial court to provide separate instructions for 

recovery under each theory. Here, Instruction No. 1 instructed the jury to find 

liability under the strict-liability theory of recovery if the jury found that the 

ladderstand was unreasonably dangerous if unaccompanied by a reasonable 

warning. Alternatively, Instruction No. 3 instructed the jury to find liability 

under the negligence theory of recovery if Primal Vantage, in the exercise of 

ordinary care, should have been aware that the ladderstand was unreasonably 

dangerous and failed to provide an adequate warning.33 So, we agree with the 

Court of Appeals’ conclusion that the jury instructions adequately covered both 

the negligence and strict-liability theories of recovery. 

Primal Vantage argues that the trial court should not have given strictliability instructions because the trial court granted a directed verdict in favor 

of the Defendants on Kevin’s design-defect claim. 

The use of the term defective has caused considerable confusion in the 

context of products liability. Both the negligence and strict-liability theories of 

recovery require the plaintiff to prove that the product was defective and was 

the legal cause of the injury.34 Admittedly, some authorities suggest that the 

33 Instruction Nos. 2 and 4 are substantively identical to Instruction Nos. 1 and 

3 except for telling the jury to find liability for failure to provide adequate instructions 

as opposed to adequate warnings. As a result, Instruction Nos. 2 and 4 also 

adequately captured the distinction between the negligence and strict liability theories 

of recovery. 

34 See Tipton, 101 F.3d at 1150 (holding that under Kentucky law, theories of 

negligence and strict liability require a jury to make an initial finding that the product 

was defective); see also Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970) (holding that 

whether the action involves negligent design, negligent failure to adequately warn, or 
21

distinction between the strict-liability and negligence theories is “of no practical 

significance.”35 But, under certain circumstances, distinct causes of action 

may arise under either a negligence theory or a strict liability theory.36 As 

previously explained, negligence claims focus on the conduct of the actor, and 

strict-liability claims focus on the condition of the product.37 While there is 

overlap between the two theories, the negligence and strict-liability theories 

underlying a failure-to-warn claim are distinct theories. 

Primal Vantage’s contention that the trial court’s directed verdict on the 

design and manufacturing claims precludes a strict-liability instruction is 

misplaced. The “defect” underlying a strict-liability claim need not be a result 

of a manufacturing error.38 Instead, “a product is ‘defective’ when it is properly 

made according to an unreasonably dangerous design, or when it is not 

accompanied by adequate instructions and warning of the dangers attending 

its use.”

39 “The prevailing interpretation of ‘defective’ is that the product does 

not meet the reasonable expectations of the ordinary consumer as to its 

safety.”

40 In other words, for the purposes of strict liability underlying a 

the sale of a defective product that is unreasonably dangerous because of an inherent 

defect or inadequate warning, in every instance, the product must be a legal cause of 

the harm).

35 See Sexton ex rel. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336 (4th Cir. 

1991) (applying Kentucky law). 

36 Montgomery Elevator Co., 676 S.W.2d at 780.

37 Tipton, 101 F.3d at 1149.

38 Ulrich, 532 S.W.2d at 200 (citations omitted).

39 Id. 

40 Id.
22

failure-to-warn claim, a product may still be “defective” even if the product does 

not have a design defect. As a result, the trial court’s instructions on strict 

liability for failure to warn or instruct were proper.

Finally, Kevin argues that the four separate jury instructions are 

duplicative and violate the bare-bones doctrine. “We prefer ‘bare bones’

instructions to make the oft-confusing task of determining liability easier for 

the layperson to perform.”

41 “But while simple instructions are preferred, 

correct and complete instructions are required.”

42 In Montgomery Elevator, this 

Court explained that “[c]onsiderations such as . . . warnings and instructions, . 

. . while they have a bearing on the question as to whether the product was 

manufactured in a defective condition [that is] unreasonably dangerous, are all 

factors bearing on the principal question rather than separate legal 

questions.”

43 So the trial court could have combined the warning and 

instruction considerations into the same instruction. But we do not find that 

the trial court committed reversible error by setting out separate instructions 

for warnings and instructions where the jury instructions were complete and 

accurate instructions on Kentucky law. 

Accordingly, we affirm the Court of Appeals’ decision that the trial court 

did not err in providing jury instructions regarding Kevin’s failure-to-warn and 

failure-to-instruct claims. 

41 Osborne v. Keeney, 399 S.W.3d 1, 13 (Ky. 2012).

42 Id.

43 676 S.W.2d at 780–81 (internal quotations omitted) (emphasis added).
23

C. The Martins were properly excluded from apportionment of fault

under KRS 150.645.

Primal Vantage argues that the lower courts erred in concluding that 

fault could not be apportioned to the Martins under KRS 150.645. KRS. 

150.645 provides that “[a]n owner . . . of premises who gives permission to 

another person to hunt . . . upon the premises shall owe no duty to keep the 

premises safe for entry or use . . . .”44 KRS 150.645 “offer[s] protections for 

landowners who invite individuals onto their property for recreational use of 

land.”

45 

First, Primal Vantage argues that Kentucky’s comparative-fault statute, 

KRS 411.182, allows apportionment of fault even if a party may not have tort 

liability. But “[t]o find fault against a defendant, and thus allow 

apportionment, there must also be proof that the defendant breached a duty.”

46 

Ultimately, “[w]hether fault can be apportioned against someone with absolute 

immunity from liability is determined by construing the statute.”47 Here, the 

Martins are not within any of the categories specified in the comparative-fault 

statute; they are not parties, third-party defendants, or persons released under 

44 KRS 150.645(1).

45 Est. of David v. Pounds, 553 S.W.3d 262, 265–66 (Ky. App. 2018).

46 CertainTeed Corp., 330 S.W.3d at 79; see also Carter v. Bullitt Host, LLC, 471 

S.W.3d 288, 298 (Ky. 2015) (“For fault to be placed on either party, a party must 

have breached his duty[.]” (emphasis in original)); Ashcraft v. Peoples Liberty Bank & 

Trust Co., 724 S.W.2d 228, 229 (Ky. App. 1986) (“If no duty is owed by the defendant 

to the plaintiff, there can be no breach thereof, and therefore no actionable 

negligence.”).

47 Jefferson Cnty. Commonwealth Atty's Off. v. Kaplan, 65 S.W.3d 916, 922 (Ky. 

2001), as modified on denial of reh'g (Feb. 21, 2002).
24

subsection (4). As a result, fault cannot be apportioned to the Martins 

“because they do not fall within the scope of those to whom fault can be 

apportioned against under KRS 411.182.”48 

Second, Primal Vantage contends that KRS 150.645 conflicts with 

Kentucky’s comparative-fault statute and that the comparative-fault statute, 

which was enacted before KRS 150.645, should control. But that argument 

fails for the same reasons discussed above. It is true that “[t]he core principle 

of comparative negligence is that ‘[o]ne is liable for an amount equal to his 

degree of fault, no more and no less.’”

49 But that core principle is inapplicable 

here because the General Assembly has absolved landowners like the Martins 

of any duty of care under KRS 150.645(1), and the Martins do not fit within 

any of the categories of persons to whom fault can be apportioned under KRS 

411.182.

Finally, Primal Vantage contends that the jury should have been able to 

apportion fault to the Martins based on “clear evidence of the Martins’ failure to 

maintain and inspect the ladderstand.” This argument is unavailing. KRS 

150.645(1) provides that landowners—like the Martins—who give permission 

for others to hunt on their land owe no duty of care to keep the premises safe. 

The only exception contained in the statute is for willful and malicious failure 

48 Id.; see also Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 479–81 

(Ky. 2001) (holding that fault could be apportioned to a settling nonparty under KRS 

411.182(4)).

49 Regenstreif v. Phelps, 142 S.W.3d 1, 6 (Ky. 2004) (quoting Stratton v. Parker,

793 S.W.2d 817, 820 (Ky. 1990)).
25

to guard against a dangerous condition. As a result, the Martins’ alleged 

failure to maintain and inspect the ladderstand, without some allegation that 

they acted willfully or maliciously, is of no moment.

In sum, the lower courts correctly concluded that fault could not be 

apportioned to the Martins under KRS 150.645(1). As a result, the portion of 

the Court of Appeals’ decision precluding apportionment of fault to the Martins 

is affirmed.

50

D. Directed Verdict in Favor of Primal Vantage on Design-Defect Claims 

Was Appropriate.

Kevin claims that the trial court erroneously granted a directed verdict in 

favor of Defendants on the design-defect claims. When a motion for directed 

verdict is made, “a trial court ‘must draw all fair and reasonable inferences 

from the evidence in favor of the party opposing the motion.’”

51 “As a reviewing 

court, we ‘must ascribe to the evidence all reasonable inferences and 

deductions which support the claim of the prevailing party.’”

52 A directed 

50 We do not address Kevin O’Bryan’s alternative arguments regarding 

apportionment of fault to the Martins because those arguments are contingent upon 

reversal based upon the apportionment instruction. Similarly, the Martins make 

several arguments in their brief regarding the constitutionality of KRS 150.645, 

whether there is evidence that the Martins acted willfully or maliciously, and 

concerning whether the Martins are liable as suppliers of chattel. We do not address 

these arguments because they were not raised in Primal Vantage’s principal brief. See 

Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (“Ordinarily, this Court confines itself 

rather closely to deciding only those issues which the parties present.”); see also 

Greenlaw v. United States, 554 U.S. 237, 243 (2008) (discussing the principle of party 

presentation of issues). 

51 Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 285 (Ky. 2014) (quoting Bierman v. 

Klapheke, 967 S.W.2d 16, 18 (Ky. 1998)).

52 Id. (quoting Bierman, 967 S.W.2d at 18).
26

verdict is appropriate “where there is no evidence of probative value to support 

an opposite result” because “the jury may not be permitted to reach a verdict 

upon speculation or conjecture.”53

The ruling of the trial court regarding whether to grant a directed verdict 

will only be disturbed when clearly erroneous.

54 A trial court’s findings are 

clearly erroneous when not supported by substantial evidence.55 “Substantial 

evidence is evidence that a reasonable mind would accept as adequate to 

support a conclusion and evidence that, when taken alone or in the light of all 

the evidence, has sufficient probative value to induce conviction in the minds of 

reasonable men.”56

To prevail on a design-defect claim, a plaintiff must present proof of “an 

alternative safer design, practicable under the circumstances.”57 “In a design 

defect case, courts use some form of risk-utility analysis to assess the 

decisions made by manufacturers with respect to the design of their 

53 Id. (internal quotations and alteration omitted).

54 Id.

55 Commonwealth v. Deloney, 20 S.W.3d 471, 474 (Ky. 2000).

56 Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotations and 

alterations omitted).

57 Trent v. Ford Motor Corp., 2 F. Supp. 3d 1022, 1026 (W.D. Ky. 2014) (applying 

Kentucky law); McCoy v. Gen. Motors Corp., 47 F. Supp. 2d 838, 839 (E.D. Ky. 1998); 

Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 126 (Ky. 1991) (“Except where the defect 

is obvious (as when a Coke bottle explodes), the plaintiff must usually show that some 

alternative way of manufacture or design was both safer and feasible.” (quoting 

Richard O. Lempert & Stephen A. Saltzburg, A Modern Approach to Evidence, 187–89

(1st ed. 1977))); Edwards v. Hop Sin, Inc., 140 S.W.3d 13, 16 (Ky. App. 2003) (“The 

record indicates that there are no reasonably available alternatives to bacteria-laced 

oysters.”).
27

products.”

58 Since a manufacturer chooses the design of a product, the 

emphasis is on the manufacturer's conduct, not the allegedly defective product:

A conscious decision to design a product in a certain manner 

necessitates that the focus be on conduct rather than the product. 

Hence, the trier of fact must employ a risk-utility balancing test 

that considers alternative safer designs and the accompanying risk 

pared against the risk and utility of the design chosen “to 

determine whether ... the manufacturer exercised reasonable care 

in making the design choices it made.”

59

Admittedly, Kentucky case law is scant on the precise elements a plaintiff 

must prove to recover on a design-defect claim. Many of the authorities 

applying Kentucky law cite persuasive federal authority for the elements of a 

design-defect claim under Kentucky law. And several cases discussing 

alternative designs concern “crashworthiness” or “enhanced injury” cases, 

where the plaintiff claims that a defect in a motor vehicle caused injuries over 

and above those which would have been expected in the collision absent the 

defect. Regardless, to recover for a design defect under Kentucky law, a 

plaintiff must establish existence of an alternative, safer design that is practical 

under the relevant circumstances.

Here, the trial court’s directed verdict in favor of Defendants on the 

design-defect claims is supported by substantial evidence and not clearly 

erroneous. Kevin claims that the Q195 steel used in the Primal Vantage 

ladderstand was too weak and bent after the polypropylene straps affixing the 

stand to the tree broke. Dr. Alan Johnson, Kevin’s expert in materials science, 

58 Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003).

59 Id. (quoting Gregory v. Cincinnati Inc., 538 N.W.2d 325, 329–30 (Mich. 1995)).
28

testified that a stronger metal would be less likely to bend. Even so, it is 

undisputed that the ladderstand at issue here was not designed to be 

freestanding. Instead, the ladderstand was designed to be affixed to a tree 

using polypropylene straps. And here, the polypropylene straps failed, causing 

injuries to Kevin. In fact, Dr. Johnson testified that the Q195 steel used in the 

ladderstand at issue would not have bent if the polypropylene straps had not 

broken. As a result, it is not apparent that the use of stronger metal in the 

ladderstand at issue would be a safer alternative to the Q195 steel where the 

ladderstand was not designed to be freestanding and the method for affixing 

the stand to a tree or other object failed. 

Kevin also contends that Primal Vantage could have used chains to affix 

the ladderstand to a tree instead of the polypropylene straps. The evidence at 

trial established that the use of chains to support ladderstands was widely 

discontinued in the industry approximately twenty years before the accident 

that occurred here. Of course, we have rejected the notion that “purported 

compliance with industry standards absolves [a defendant] of liability.”60 But, 

as we recognized in Nichols, a manufacturer’s compliance with industry 

standards in the design of a product is a relevant factor in determining whether 

a product is defective.61

60 Commins v. Genie Indus., Inc., No. 3:16-CV-00608-GNS-RSE, 2020 WL 

1189937 at *23 (W.D. Ky. Mar. 12, 2020) (citing C.D. Herme, Inc. v. R. C. Tway Co., 

294 S.W.2d 534 (Ky. 1956)).

61 Nichols, 602 S.W.2d at 433.
29

Trial testimony indicated that chains may have been discontinued 

because chains could not be tightened down, allowing the ladderstand to rotate 

on the tree. Other trial testimony relayed instances in which a chain was used 

to secure a stand to a tree and the ladder broke because the tree grew, and the 

chain did not stretch in response to the tree growth. Regardless, Kevin’s expert 

testified that he was unaware of chains currently being used by any 

manufacturer to secure ladderstands to a tree.62 More importantly, the expert 

failed to provide proof that the use of chains was a safer and practical 

alternative to the use of polypropylene straps to affix a ladderstand to a tree. 

For instance, Kevin’s expert testified that the industry “should have looked at 

the hazard and designed a better way to tighten that chain down,” instead of 

using polypropylene straps. But proof that chains had been used in the 

industry is not proof that chains were a safer or practical alternative to straps, 

especially where other evidence suggested that the use of chains presented its 

own safety concerns. As a result, while there was evidence that chains could 

conceivably be used as an alternative method of affixing a ladderstand to a 

tree, we cannot conclude that it was clearly erroneous for the trial court to 

conclude that chains are not a safer, practical alternative to the use of straps.

Finally, Kevin asserted that a Lockjawz device, which is a large clamp 

that grasps the tree to hold a ladderstand in place, was a feasible alternative 

design. It is undisputed, however, that the Lockjawz device was not developed 

62 The expert testified that he was aware of one manufacturer that used chains 

to secure a hang-on stand to a tree, not a ladderstand. 
30

until after the ladderstand at issue in this case was produced. Moreover, 

Kevin’s expert testified that he had only seen pictures of the Lockjawz device on 

the internet and could not testify as to whether the device was safer than the 

use of straps. As a result, it was not clearly erroneous for the trial court to 

conclude that the Lockjawz device was not a feasible alternative design.63

In conclusion, the trial court’s directed verdict in favor of Defendants on 

the design-defect claims was not clearly erroneous. So the trial court’s directed 

verdict on the design-defect claims is affirmed.

E. Assignments of Error Regarding Loss of Spousal Consortium Are Not 

Properly Considered in this Appeal. 

Santé O’Bryan was awarded $80,000 for her loss-of-consortium claims. 

That award was offset by 50% based on the jury’s finding that Kevin O’Bryan 

was 50% at fault for the accident that occurred. In this appeal, Santé raises 

several issues regarding the propriety of the loss-of-consortium award, 

including whether the trial court erred by offsetting her loss-of-consortium 

claim by Kevin O’Bryan’s 50% apportionment of fault.

As previously discussed, this Court consistently considers moot issues 

that are likely to recur upon retrial. But consideration of a moot issue may be 

inappropriate where the recurrence of issues on retrial is dependent upon proof 

63 A later-manufactured product may provide proof of a safer alternative design 

where the new product was or could have been available to the industry at the time of 

production. But Kevin argues that the Lockjawz device at issue here was “not based 

on any new or innovative technology or design.” The problem is that Kevin failed to 

provide sufficient proof that the Lockjawz device was a safer alternative to 

polypropylene straps or that it was a practical alternative in the industry at the time 

this ladderstand was produced. 
31

to be presented at trial.64 While a spouse’s claim for loss of consortium is an 

independent cause of action,65 it is not a separate injury, but is derivative of 

the injured spouse’s personal-injury claim.66 So, on retrial, Santé O’Bryan will 

only recover for loss of spousal consortium if two contingent events occur: (1) 

Kevin O’Bryan succeeds on the merits of his claims against Primal Vantage; 

and (2) the jury finds that Santé O’Bryan is entitled to recover for loss of 

spousal consortium. Both contingent events are completely dependent upon 

the proof to be presented on retrial and the jury’s findings. As a result, 

because it is neither likely nor unlikely that the issue of loss of spousal 

consortium will recur on retrial, we deem discussion of that issue premature 

and decline to consider the issues raised in this appeal regarding loss of 

spousal consortium.67 

64 See Jones ex rel. Jones v. IC Bus, LLC, 626 S.W.3d 661, 682 (Ky. App. 2020) 

(“[E]ven though our decision reinstates claims upon which punitive damages could be 

found, we cannot say whether this issue is likely to recur if the case is retried as it will 

be dependent upon proof then presented. Therefore, because it is neither likely nor 

unlikely that the issue of punitive damages will recur on retrial, we deem discussion of 

it—at least at this point—improper and decline to do so.”).

65 Floyd v. Gray, 657 S.W.2d 936, 938 (Ky. 1983).

66 Daley v. Reed, 87 S.W.3d 247, 248 (Ky. 2002); see also Metzger v. AutoOwners Ins. Co., 607 S.W.3d 695, 698 (Ky. 2020) (characterizing spouse’s claim as “a 

derivative claim for loss of spousal consortium”).

67 For clarity, we take no position on whether Santé O’Bryan should recover for 

loss of spousal consortium on remand. We simply decline to discuss the issues 

concerning loss of spousal consortium raised in this appeal because the recurrence of 

those issues and assignments of error depends upon the occurrence of two contingent 

events that are dependent upon the proof to be presented on retrial. 
32

F. Alleged Prejudicial References to China are not Properly Considered 

in this Appeal. 

Primal Vantage argues that Plaintiffs’ counsel made improper and 

irrelevant references to China and Chinese locations and names at trial. 

Whether the issue of references to China will recur on retrial is dependent 

upon proof to be presented at trial. And the trial court is best positioned as 

evidentiary gatekeeper to consider the relevance and admissibility of any 

evidence on retrial, including potentially prejudicial references to China or 

Chinese locations. So we decline to render an advisory opinion on an issue 

that may or may not occur in the future on retrial.

68

G. We Need Not Rule on Enforcement of Discovery Orders in this 

Appeal.

On cross-appeal, Kevin summarily argues that Primal Vantage failed to 

comply with discovery obligations and trial court orders compelling production 

of evidence. Kevin contends that, in the event of a new trial, full and timely 

production of discoverable other incidents should be required. Though Kevin 

cites to one trial court order, it is unclear the exact discovery issue(s) Kevin 

challenges on appeal. In any event, the trial court is in the best position to 

manage discovery issues and resolve any evidentiary disputes concerning 

other-incidents evidence in the first instance on retrial. Again, we take no 

68 See Jones, 626 S.W.3d at 682 (declining to address a moot issue that is 

neither likely nor unlikely to recur on retrial); see also Nordike v. Nordike, 231 S.W.3d 

733, 739 (Ky. 2007) (“The Court will not render advisory opinions or consider matters 

which may or may not occur in the future.”) (internal citation omitted).
33

position in this decision on whether other-incidents evidence is discoverable 

and admissible on retrial. 

III. CONCLUSION

The trial court abused its discretion and abandoned its role as 

evidentiary gatekeeper by allowing substantial amounts of evidence of other 

incidents to be presented to the jury, threatening that a mistrial would likely be 

declared if this evidence was found inadmissible, ruling near the end of trial 

that the other-instances evidence was indeed inadmissible, and then failing 

properly to admonish the jury to ignore the inadmissible other-incidents 

evidence during its deliberations. Even so, the trial court’s jury instructions on 

failure to warn were not erroneous, the trial court correctly concluded that 

fault could not be apportioned to the Martins under KRS 150.645, and the trial 

court’s directed verdict in favor of Defendants on the design-defect claims was 

not clearly erroneous. As a result, we affirm the Court of Appeals’ holding

regarding the jury instructions on the failure-to-warn claims and the 

apportionment of fault to the Martins, we further affirm the trial court’s 

directed verdict to Defendants on the design-defect claims, but we reverse the 

holding of the Court of Appeals in all other respects as to Primal Vantage.

69 

69 The trial court’s directed verdict in favor of Dick’s Sporting Goods, Inc., is 

undisturbed by this decision. The trial court’s directed verdict as to Dick’s Sporting 

Goods was not directly challenged in this appeal. As a result, we have not considered 

and do not reverse the trial court’s directed verdict on all claims against Dick’s 

Sporting Goods. 
34

Accordingly, the trial court’s judgment is reversed, and this action is remanded 

to the trial court for a new trial.

All sitting. All concur.

COUNSEL FOR APPELLANT/CROSS-APPELLEE, PRIMAL VANTAGE 

COMPANY:

Milton S. Karfis

Clark Hill PLC

Griffin Terry Sumner

Casey Wood Hensley

Frost Brown Todd LLC

COUNSEL FOR APPELLEE/CROSS-APPELLANT, KEVIN O’BRYAN:

Ann B. Oldfather

R. Sean Deskins

Oldfather Law Firm

COUNSEL FOR APPELLEE/CROSS-APPELLANT SANTÉ O’BRYAN:

Paul A. Casi

Jeff W. Adamson

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

COUNSEL FOR APPELLEES/CROSS-APPELLEES, DENNIS I. AND MARGARET 

M. MARTIN:

Diane M. Laughlin

Emily C. Lamb

Bryce Lee Cotton

Blackburn Domene & Burchett, PLLC