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MARCH 10, 2006; 2:00 TO BE PUBLISHED

P.M.

Commonwealth Of Kentucky Court of Appeals
NO. NO. 2004-CA-000652-MR AND 2004-CA-000682-MR

PATRICIA REECE; AND WILLARD DAVID REECE

APPELLANTS/CROSS-APPELLEES

v.

APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE ACTION NO. 99-CI-005759

DIXIE WAREHOUSE AND CARTAGE COMPANY, N/K/A DIXIE WAREHOUSE AND CARTAGE COMPANY, LLC

APPELLEE/CROSS-APPELLANT

OPINION AFFIRMING ** ** ** ** ** BEFORE: BARBER AND JOHNSON, JUDGES; MILLER, SENIOR JUDGE.1 Patricia Reece and Willard David Reece have

JOHNSON, JUDGE:

appealed from the judgment entered by the Jefferson Circuit Court on December 29, 2003, confirming the jury award in favor of the Reeces.
1

Dixie Warehouse and Cartage Company, LLC has

Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

filed a cross-appeal arguing that the trial court erroneously credited Patricia's workers' compensation benefits award only to her lost wages, rather than the entire judgment. trial court's judgment as to all issues. Dixie Warehouse is in the business of leasing merchandise storage space. Pursuant to a storage agreement, We affirm the

Fawn Engineering Company contracted with Dixie Warehouse to store vending machines on its premises. Fawn employed RGIS

Inventory to inventory its vending machines stored at Dixie Warehouse on a monthly basis and to record the serial numbers which appeared on the documents located at the top of each vending machine.2 Patricia had worked approximately ten years

for RGIS, when she was sent to Dixie Warehouse on October 23, 1998, to inventory Fawn's vending machines. On this visit,

Patricia was injured after falling three and one-half feet off a loading dock ("the drop-off"), and landing on the rails of a railroad track which ran the distance of the warehouse. Patricia sustained several injuries including multiple pelvic fractures, injury to her back, bladder, ankle, and arm. As a

result of her injuries, Patricia claimed to suffer severe depression and anxiety, and testified that she had been disabled

2

The numbers were located on either the front, back, or side of the vending machines.

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ever since the injury, except for one brief unsuccessful attempt to return to work in 1999. The majority of the facts of this case are heavily disputed, especially as to the open and obvious nature of the drop-off and Patricia's knowledge of the drop-off prior to her injury. Patricia testified that before the date of the accident

she had only been to Dixie Warehouse on one prior occasion for approximately 30 minutes, while she was doing inventory for Fawn. Patricia testified that on the date of the accident Dixie

Warehouse's Building One supervisor, Matt Hileman, accompanied her to the location of the vending machines at the front of the warehouse, moved the machines, and read the numbers to her for her to write down. Conversely, William Piccolo, Patricia's supervisor, testified that Patricia had been the sole person assigned to the Fawn account for close to one year, and that she had visited Dixie Warehouse eight or nine times before the date of the accident. Hileman testified that Patricia had been to Dixie

Warehouse at least two times prior to October 23, 1998. Hileman's testimony was corroborated by Sue Ellen Warner, Patricia's co-worker. She testified that she had gone with

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Patricia to Dixie Warehouse on two occasions prior to October 23, 1998.3 On October 23, 1998, when Patricia arrived at Dixie Warehouse she spoke with Hileman; and he instructed another Dixie Warehouse employee, Arthur Rheaume, to accompany Patricia to the vending machines. Patricia testified that Rheaume was

instructed to read the numbers on the machines to her so she could write them down. Patricia and Rheaume proceeded down a Along the hallway,

long hallway, toward the vending machines.

there were pallets of merchandise stacked six to eight feet high on each side. Patricia testified that on the date of the

accident, unlike on the first occasion, the vending machines were located at the back of the warehouse. However, Hileman

testified that the vending machines had always been stored at the back of the warehouse. Patricia testified that Rheaume indicated to her that he did not know what he was looking for on the vending machines, and at that point, Patricia attempted to show him by looking up at a vending machine for the card with the serial number on it. Rheaume denied that he asked Patricia for assistance.
3

Patricia

Though Warner's testimony was contradictory between the time of her deposition and trial, it was proper for the jury to determine her credibility and the weight to be given to her testimony. See Birdsong v. Wal-Mart Stores, Inc., 74 S.W.3d 754, 758 (Ky.App. 2001) (stating, "[a]s in all cases involving questions of fact, the weight to be given to conflicting evidence and the credibility to be afforded each witness remains within the province of the jury" [citations omitted]).

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testified that at this point, prior to writing down any serial numbers, she fell from the drop-off. However, Rheaume testified

that Patricia had already inventoried two machines before she fell and that she was reading the numbers and writing them down when she fell. Patricia testified that the vending machines This was

were positioned right at the edge of the drop-off.

supported by the testimony of Elizabeth Cummins, an employee of RGIS, who inventoried for Fawn in February 1999, after Patricia's injury. Patricia testified that she did not know about the drop-off on the date of her accident and that she had not seen the drop-off on her previous visit to Dixie Warehouse. Hileman

testified that he had assisted Patricia on prior occasions in order to keep her away from the dock. He testified that he did

not remember mentioning the drop-off to Patricia on these occasions. However, Rheaume testified that he warned Patricia

several times on the date of the accident to be careful and not to step too close to the drop-off. Further, Warner testified

that Patricia had actually warned her about the drop-off on the occasions they visited Dixie Warehouse together prior to the accident. The adequacy of the lighting in the area of Dixie Warehouse where Patricia was injured is important to a

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determination of liability in this case.4

While there was

extensive testimony in the case that the area was dimly lit, there was also considerable evidence that the drop-off was still visible.5 Hileman testified that the drop-off was visible from This testimony was

50 feet and stated that "it's a big hole."

corroborated by Joe Bennett, Dixie Warehouse's safety and training manager, who also described the drop-off as "huge," a "large entity," and "big." Dixie Warehouse offered testimony

from Bill Rueff, an expert in the field of industrial lighting. He testified that the lighting met the standard for an inactive area of the warehouse, but testified that he could not express an opinion about the amount of light at the drop-off spot, considering factors such as inventory and persons present that would have diminished the measurements. Piccolo testified that the area around the drop-off "was dimly lit . . . and there was a faint yellow line painted on the end of the dock . . . three or four inches [wide]." However, he testified that he could see his feet, the edge of

4

Downing v. Drybrough, 249 S.W.2d 711, 712 (Ky. 1952).

5

Joe Bennett, Dixie Warehouse's safety and training manager, testified that the accident happened in a warehouse space consisting of 33,600 square foot, including the rail well area. Within that space were five mercury vapor lights at 400 watts each, and 53-dual bulb light units at 95 watts for each bulb, installed on the ceiling which was 19 to 20 feet above the warehouse floor. The lights were all functioning at the time of the accident. There were also two skylights, four feet in diameter, located in the ceiling. He testified that the mercury vapor lights and the sky lights directly illuminated the area where Patricia fell.

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the rail deck, and the railroad tracks below.

Cummins testified

to the poor lighting conditions on the dates of her visits to Dixie Warehouse during 1999; and stated that on one occasion, a Dixie employee used a flashlight to help her read the numbers. She further testified that the rail dock area was not visible until a person was right on top of it. However, she testified

that a person could look down and see her feet, and when walking toward the machines on the dock, a person would be able to see because of the sunlight coming in from either side. She further

testified that the worst visibility was between the machines and was limited from three to four feet. corroborated by Warner. Both Cummins and Warner testified that they did not see a yellow stripe along the edge of the drop-off. However, This testimony was

there was a video taken of the scene, which was submitted to the jury, not on the issue of lighting, but to demonstrate the physical surroundings of the area where Patricia fell. The

videotape showed the aisle way only a few feet wide leading up to the drop-off and it revealed a faint yellow stripe along the edge of the drop-off. Dixie also offered testimony of Brian White, an employee of Jefferson County EMS, who gave Patricia medical attention at the scene. He testified that he had sufficient

lighting to treat Patricia at the site of the drop-off.

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On September 30, 1999, the Reeces filed a complaint against Dixie Warehouse in the Jefferson Circuit Court alleging that Patricia was injured as a result of the negligence of Dixie Warehouse and its employees in failing to warn her of a dangerous, latent condition which was a substantial factor of her fall and injury.6 The Reeces argued that Patricia should be

awarded compensatory damages, and that Willard, Patricia's husband, should be awarded damages based on his claim of loss of consortium. On August 7, 2002, Dixie Warehouse filed a motion

for summary judgment, arguing that it did not breach any duty owed to Patricia and that her injuries were entirely caused by her own negligence. On August 12, 2002, the Reeces filed a

motion for partial summary judgment, arguing that it was an undisputed fact that the drop-off was not open and obvious, and thus the only factual issue for the jury to decide was whether Patricia had knowledge or should have had knowledge of the dropoff prior to the accident. On February 6, 2003, the trial court entered an opinion and order denying both the Reeces's motion and Dixie Warehouse's motion for partial summary judgment on the issue of

It is well-established that to establish liability for negligence the plaintiff must prove: (1) a duty; (2) a breach of that duty; (3) which was the proximate cause of an injury; and (4) which resulted in damages. All of these elements are essential to a valid claim. See Illinois Central Railroad v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967); and Helton v. Montgomery, 595 S.W.2d 257, 258 (Ky.App. 1980).

6

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whether the hazard was open and obvious.7

The trial court stated

that "the proof on this issue is controverted, so much that the Court cannot make a factual determination . . ." and "[w]hile the applicable law is clear, the facts are hotly contested." The case proceeded to a jury trial beginning on December 2, 2003, and ending on December 10, 2003. At the close

of the evidence, the Reeces moved for a directed verdict on the question of whether the hazard was open and obvious, which was denied. The trial court instructed the jury, in relevant part

as follows: INSTRUCTION NO. 1 "Ordinary care" as applied to [Patricia], means such care as the jury would expect an ordinarily prudent person to exercise under similar circumstances. "Ordinary care" as applied to [Dixie Warehouse], means such care as the jury would expect ordinarily prudent persons engaged in the same type of business to exercise under similar circumstances. INSTRUCTION NO. 2 It was the duty of [Dixie Warehouse], through its employees to exercise ordinary care to maintain the warehouse premises in a reasonably safe condition, including the duty to warn others of dangerous conditions that are not open and obvious. You will
In its order, the trial court identifies both the Reeces's and Dixie Warehouse's motions as being motions for a partial summary judgment. However, Dixie Warehouse's motion was actually for summary judgment in toto. This is the only order the trial court entered regarding Dixie Warehouse's summary judgment motion.
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find for [Patricia] and against [Dixie Warehouse] if you are satisfied from the evidence that [Dixie Warehouse] failed to comply with the duties under this Instruction, and that such failure was a substantial factor in causing [Patricia's] fall and injury. Otherwise, you will find for [Dixie Warehouse]. QUESTION: Are you satisfied from the evidence that [Dixie Warehouse] failed to comply with its duties under Instruction No. 2, and that such failure was a substantial factor in causing [Patricia's] fall and injury? YES__________ NO ____________

If you have answered "NO" to the Question under Instruction No. 2, then you have found for [Dixie Warehouse] and you shall return to the courtroom. If you have answered "YES," proceed to Instruction No. 3. INSTRUCTION NO. 3 It was the duty of [Patricia], on October 23, 1998, to exercise ordinary care for her own safety. If you have answered "YES" to the Question under Instruction No. 2, finding [Dixie Warehouse] failed to comply with its duties, but are also satisfied from the evidence that [Patricia] failed to comply with her duty under this Instruction, and that such failure was a substantial factor in causing her fall and injuries, then you shall indicate in the blank spaces below what percentage of total fault was attributable to each party. In determining the percentage of fault, you shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between its or her conduct and the damages claimed.

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PLAINTIFF ______% DEFENDANT ______% TOTAL 100%

The jury returned a verdict finding that both Dixie Warehouse and Patricia had breached their duties to exercise ordinary care, resulting in Patricia's injury, and the jury apportioned 73% of the fault to Patricia and 27% to Dixie Warehouse.8 The trial court entered a judgment confirming this

verdict on December 29, 2003. On January 8, 2004, the Reeces filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict for the full amount of the verdict without apportionment. On February 19, 2004, Dixie filed a response and

a "counterclaim for judgment notwithstanding the verdict," claiming that the trial court erred in giving credit for Patricia's receipt of $64,348.41, in workers' compensation benefits only to the lost wages portion of the verdict, instead of the entire verdict. Oral arguments were held on February 23,

8

The total damages assigned to Patricia were in the sum of $91,457.63, broken down as follows: $40,916.00

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