RENDERED: MAY 19, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0828-MR
ANTHONY BRADLEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MITZI WESTOVER APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 18-CI-004436
LOUISVILLE MEGA CAVERN, LLC APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND ECKERLE, JUDGES.
ECKERLE, JUDGE: Anthony Bradley, Individually and as Administrator of the
Estate of Mitzi Westover (collectively, “the Estate”) appeals from a judgment of
the Jefferson Circuit Court that confirmed a jury verdict in favor of Louisville
Mega Cavern, L.L.C. (“LMC”). The Estate argues that the trial court abused its discretion in its evidentiary rulings and in its instructions to the jury. Finding no
abuse of discretion, we affirm.
I. Facts and Procedural History
LMC operates an underground adventure park on the site of a former
limestone mine in Louisville, Kentucky.1 LMC operates several attractions on the
site, including an underground, aerial adventure ropes course called Mega Quest.
On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her
niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any
activity at LMC, they were required to read and execute a “Participant Agreement”
(“the Agreement”). The Agreement describes the course as follows:
The Mega Quest aerial challenge course is self-guided and includes short ziplines, sky bridges and walkways, (some inclined), located high in the cavern and some consisting of planking supported by steel cables and cable handrails. Mega Quest Participants are responsible for making all Equipment Transfers on their own after watching a training video, the careful viewing of which is extremely important and receiving instructions and training from tour guides using special equipment. The age limit for the Mega Quest challenge course is five years old. Participants must be able to reach a height of 50 inches with the palm of the hand with an outstretched arm while standing flatfooted on the floor, and weigh less than 310 pounds.
1 The property comprising the former limestone mine is owned by Louisville Underground, L.L.C. The Estate named that entity as a party defendant in its complaint. However, it was dismissed by agreed order prior to trial and is not a party to this appeal.
-2- In addition, the Agreement addressed medical and safety concerns,
stating:
The activities are designed for Participants of average mobility and strength who are in reasonably good health. Underlying medical problems including for example obesity, high blood pressure, cardiac and coronary artery disease, pulmonary problems, pregnancy, arthritis, tendonitis, other joint and muscular skeletal problems, or other medical, physical, psychological and psychiatric problems, may impair the safety and wellbeing of Participants on the course. All such conditions may increase the inherent risks of the experience and cause Participants to be a danger to themselves or others and Participants therefore must carefully consider those risks before choosing to participate, and they must fully inform the Provider or its staff of any issues, in writing, prior to using the Facilities. Provider reserves the right to exclude anyone from participating because of medical, safety, or other reasons it deems appropriate. Participant . . . : (1) represents that each Participant or Minor Participant is physically able to participate in the activities without being a danger to themselves or to others; (2) acknowledges that participation is purely voluntary, and done so in spite of the risks (3) is not pregnant, nor under the influence of alcohol, illegal drugs, or impairing legal drugs; (4) agrees to abide by all instructions provided by the Provider or the Provider’s staff; (5) will not make any adjustments to zipline or challenge course equipment but, instead, will allow all adjustments to be made only by or with the assistance of Provider or Provider’s staff; (6) will not intentionally flip over or invert while riding on the ziplines.
The Agreement goes on to identify “inherent” risks in the Mega Cavern:
Serious injuries can occur in zipline courses, challenge course tours, and bike park activities including the risk of injury or death. Risks include among others the
-3- following: falls, contact with other participants and fixed or falling objects, and moving about or being transported over the sometimes uneven terrain and grounds on which the activities are initiated and conducted[.] . . . The physical risks range from small scrapes and bruises to bites and stings, broken bones, sprains, neurological damage, and in extraordinary cases, even death. These risks, and others, are inherent to the activities that is, they cannot be eliminated without changing the essential nature, educational and other values of the experience. In all cases, these inherent risks, and other risks which may not be inherent, whether or not described above must be accepted by those who choose to participate.
Following these disclosures, the Agreement states that the participant
understands the nature of the activities and voluntarily assumes the risks involved.
This provision also states that LMC “has no duty to protect against the risks of
illness, injury and death associated with these activities inherent and otherwise, and
whether or not described above, including those which may result from negligent
acts or omissions of other participants or staff.”
The Agreement also included a “Release and Indemnity” provision,
stating that each participant will release, hold harmless, and indemnify LMC for
any injuries caused by the activity, including claims of negligence and gross
negligence. This section further states that the participant agrees as follows:
not to sue [Provider] for any liability for causes of action, claims and demands of any kind and nature whatsoever, including personal injury and death, products and premises liability and otherwise, that may arise out of or relate in any way to my . . . enrollment or participation in Provider’s programs. The claims hereby indemnified
-4- against include, among others, claims of participants and members of my . . . family, arising out of losses caused by, or suffered by me . . . . The agreements of release and indemnity include claims of negligence of a Released Party including without limitation claims of gross negligence, but not claims of willful injury.
The Agreement concluded with bolded language stating:
WARNING Under Kentucky law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if injury or death results exclusively from the inherent risks of the agritourism activity and in the absence of negligence. You are assuming the risk of participating in this agritourism activity. KRS[2] 247.800-247.8010.
As required, Westover, Bradley, and Folk electronically signed the
Agreement. They then checked in at the front desk and were provided with
equipment for the course. LMC provided a safety briefing and training on the
course and use of the equipment. Shortly thereafter, the party began the Mega
Quest course. Westover started an element that consisted of two horizontal ladders
suspended from overhead wire ropes. Westover fell on the first ladder and was
assisted by an LMC employee.
She fell again on the second ladder and was unable to get back on the
ladder. The LMC employee called for a rescue via a lower-line kit. Westover was
suspended on the harness for between five to eight minutes. Westover was
2 Kentucky Revised Statutes.
-5- responsive for most of this time. But as she was being lowered, Westover lost
consciousness and became unresponsive. LMC called 911, which did not arrive
on the scene for another nine minutes. Westover was transported to the hospital,
where she died on August 22, 2017.
On July 31, 2018, Bradley, individually and as administrator of
Westover’s Estate, brought this action against LMC asserting claims of personal
injury and wrongful death. Bradley separately asserted a claim for loss of spousal
consortium. LMC moved for summary judgment based on the “Release and
Indemnity” provisions in the Agreement. LMC also argued that it was entitled to
agritourism immunity under KRS 247.809. The Trial Court denied the motion for
summary judgment, concluding that the pre-injury release was not enforceable.
The Court also determined that LMC was not entitled to immunity under KRS
247.809.
Prior to trial, the Estate moved to exclude any reference to the
Agreement, arguing that it was not relevant based on the Court’s finding it was
unenforceable. LMC responded that the Agreement was relevant to show she had
been informed of the risks of the activity, and that she had agreed she was able to
participate without being a danger to herself or others. The Trial Court agreed with
LMC and allowed introduction of the Agreement.
-6- At trial, the Estate presented evidence that Westover’s death was
caused by suspension trauma resulting from her extended time hanging
unsupported on the harness. The Estate argued that this suspension trauma was
caused by LMC’s failure to exercise ordinary care in the operation of the Mega
Quest course and LMC’s failure to properly train its staff to respond to
emergencies. In response, LMC argued that Westover’s death was caused by her
pre-existing health conditions and her own failure to exercise ordinary care.
Following the close of proof, the jury found that the Estate failed to prove that
LMC failed to exercise ordinary care in the operation of the Mega Quest course
and that such failure was a substantial factor in causing Westover’s death.
The Estate filed a motion for a new trial pursuant to CR3 59.01. The
Trial Court denied the motion and entered a judgment dismissing based upon the
jury’s verdict. The Estate now appeals. Additional facts will be set forth below as
necessary.
II. Standard of Review
A trial court is vested with broad discretion in granting or denying a
new trial, and its decision will not be reversed unless it was “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
3 Kentucky Rules of Civil Procedure.
-7- English, 993 S.W.2d 941, 945 (Ky. 1999). Since the Trial Court had the direct
opportunity to consider the evidence and the conduct of the parties, any doubts
must be resolved in favor of the Trial Court. CertainTeed Corp. v. Dexter, 330
S.W.3d 64, 73 (Ky. 2010).
In this case, the Estate first argues that it was entitled to a new trial
because the Trial Court erroneously admitted certain evidence. We review the
Trial Court’s evidentiary rulings for abuse of discretion. Goodyear Tire and
Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Id. at 581. More specifically, a court
abuses the discretion afforded it when “(1) its decision rests on an error of law . . .
or a clearly erroneous factual finding, or (2) its decision . . . cannot be located
within the range of permissible decisions.” Miller v. Eldridge, 146 S.W.3d 909,
915 n.11 (Ky. 2004) (cleaned up).
III. Admission of the Agreement into Evidence
The Estate first raises several issues relating to the Trial Court’s
admission of the Agreement into evidence. Based on the Trial Court’s finding that
the Release and agritourism-immunity provisions in the Agreement were
unenforceable, the Estate filed a motion in limine to exclude the Agreement or any
-8- reference to it at trial. The Estate argued that the Release provisions were
irrelevant and likely to confuse the jury with matters not at issue.
In response, LMC noted that the Agreement set out the risks of the
activity, including to persons with health issues. By signing the Agreement,
Westover stated that she was aware of the risks, she was physically capable of
performing the Mega Quest course, and that she was not under the influence of any
illegal or legal intoxicating drugs. LMC argued that the disclosures in the
Agreement were relevant to show that Westover failed to exercise ordinary care in
undertaking the Mega Quest course. LMC further argued that the Agreement was
relevant to show that Westover failed to inform LMC of her medical conditions or
her medications.
The Trial Court concluded that, even though the Release and
agritourism-immunity provisions of the Agreement were unenforceable, the
Agreement itself was still relevant to the disputed issues of negligence. The Trial
Court redacted the bolded agritourism warning at the end of the Agreement, except
for the line, “You are assuming the risk of participating in this . . . activity.”
Subsequently, the Estate requested a limiting instruction advising the
jury that the Release was unenforceable, but “you may consider the ‘Participant
Agreement’ for the purpose of determining whether Mitzi Westover was aware of
-9- the risks associated with the ‘Mega Quest’ ropes course.” The Trial Court declined
to provide this instruction to the jury.
The Estate extensively argues that the Release provisions in the
Agreement were not enforceable. However, the Trial Court agreed, finding that
the release was not enforceable as a waiver or release of LMC’s liability for
negligence. LMC does not appeal this ruling. Rather, the question on appeal is
whether the Agreement was otherwise relevant to the factual matters in dispute; the
question is whether the evidence was relevant, or if the prejudicial effect of the
evidence substantially outweighed its probative value.
Under KRE4 401, relevant evidence is defined as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible”
unless otherwise excluded by the law or rules of evidence. “Evidence which is not
relevant is not admissible.” KRE 402. Relevance is established by any showing of
probativeness, however slight. Springer v. Commonwealth, 998 S.W.2d 439, 449
(Ky. 1999). However, under KRE 403, even relevant evidence may be excluded
“if its probative value is substantially outweighed by the danger of undue
4 Kentucky Rules of Evidence.
-10- prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence.”
The Estate cites two out-of-state cases holding that it is prejudicial
error to admit an unenforceable liability-limiting agreement. Matador Production
Co. v. Weatherford Artificial Lift Systems, Inc., 450 S.W.3d 580, 594 (Tex. App.
2014); and Blue Valley Co-op v. National Farmers Organization, 600 N.W.2d 786,
793-96 (Neb. 1999), overruled on other grounds by Weyh v. Gottsch, 303 Neb.
280, 929 N.W.2d 40 (2019). However, in both cases there were no claims that the
agreements were relevant for any reason except as a waiver of liability. Matador,
450 S.W.3d at 595; Blue Valley, 600 N.W.2d at 794. In this case, the Trial Court
expressly found that the Agreement was relevant to the disputed issues of
negligence. Those issues included whether LMC notified Westover of the inherent
risks of the activity, as well as any risks that the activity may have posed to
individuals with limited mobility or medical conditions.
LMC further argued that the Agreement was relevant to determine the
adequacy of its warnings. The Trial Court also concluded that the Agreement was
a party admission by Westover under KRE 801A(b). By signing the Agreement,
the Trial Court found that Westover manifested her assent to and adoption of the
disclosures in the Agreement, as well as her own representations that she was
physically capable of performing the activity. Obviously, the Estate raised other
-11- disputed issues of negligence, including whether LMC staff was adequately trained
and had access to proper equipment in the event of an emergency.
While the Agreement may not have been admissible to prove that
Westover waived or released LMC from liability for its own negligence, it was
otherwise relevant to show whether Westover was informed of the risks of the
Mega Quest course, as well as whether she properly informed LMC of any
physical or medical conditions and medications that may have affected her safety
on the course. Because these issues were relevant to the disputed issues of
negligence, we conclude that the Trial Court did not abuse its discretion by
allowing LMC to introduce the Agreement into evidence.
The more significant question is whether the Agreement’s probative
value was substantially outweighed by its prejudicial effect. The Estate contends
that the Release and Indemnity language was likely to confuse the jury about the
ultimate issue of liability. Specifically, the Estate argues that the language may
have misled the jury into believing that Westover had waived her right to claim
negligence by LMC.
The Trial Court must make three basic inquiries when making a
determination under KRE 403: (1) assessment of the probative worth of the
evidence whose exclusion is sought; (2) consideration of the probable impact of
specified, undesirable consequences likely to flow from its admission (i.e., “undue
-12- prejudice, confusion of the issues, or misleading the jury, . . . undue delay, or
needless presentation of cumulative evidence”); and (3) a determination of whether
the harmful effects from admission exceeds the probative worth of evidence.
Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (citing Partin v.
Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996), overruled on other grounds by
Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). The task of weighing
the probative value and undue prejudice of proffered evidence is inherently factual
and, therefore, within the discretion of the Trial Court. Ross v. Commonwealth,
455 S.W.3d 899, 910 (Ky. 2015).
Here, the Estate asserts the jury was likely to be confused or misled by
the Release and Indemnity language in the Agreement. But the Estate does not
point to any testimony, evidence, or argument that emphasized the language or
suggested that it was controlling as to LMC’s liability. Furthermore, the Trial
Court redacted the bolded language excluding liability for injury or death arising
from an agritourism activity, except for the assumption-of-risk language, but the
Trial Court did not redact the Release and Indemnity provision at the Estate’s
request. Under the circumstances, the Estate has not shown the prejudicial effect
of the Agreement substantially outweighed its probative value.
Along similar lines, the Estate requested an instruction advising the
jury that the Agreement’s Release and Indemnity language was unenforceable.
-13- The proposed instruction stated that “you may not determine that [LMC] is
immune from lawsuit. However, you may consider the ‘Participant Agreement’
for the purpose of determining whether Mitzi Westover was aware of the risks
associated with participation in the ‘Mega Quest’ ropes course.” The Estate takes
the position that it was entitled to this limiting instruction under KRE 105(a),
which provides as follows:
When evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly. In the absence of such a request, the admission of the evidence by the trial judge without limitation shall not be a ground for complaint on appeal, except under the palpable error rule.
As discussed above, the Agreement was relevant and admissible as it
related to the disputed issues of negligence and as a party admission. But the
Agreement was not admissible for LMC to avoid liability under its waiver and
release provisions. Indeed, the construction and enforceability of a written
instrument are matters of law for the Trial Court to decide, not the jury. See
Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky. 1992),
and Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998). The Estate points out
that KRE 105 required the Trial Court to give the instruction “upon request.”
Consequently, the Estate argues that the Trial Court’s failure to give the instruction
constitutes reversible error.
-14- In denying the request, the Trial Court took the position that KRE 105
required the Estate to move for an admonition to the jury at the time the Agreement
was introduced, and it was not a proper matter for jury instructions. The Kentucky
Supreme Court addressed this issue in St. Clair v. Commonwealth, 140 S.W.3d 510
(Ky. 2004). In that case, a defendant waited until the close of evidence to request a
limiting instruction as to the appropriate purpose of certain evidence pursuant to
KRE 105. The Court held that
[a]lthough the substantive distinction between admonitions and instructions is not always clear or closely hewn to, we interpret the first word of KRE 105(a), i.e., “when,” to mean that the request for a “limited purpose” admonition must be made at the time that the evidence in question is admitted and no later than after the direct examination at which the evidence is introduced.
Id. at 559 (emphasis in original) (internal quotation marks and citations omitted).
More recently, our Supreme Court reiterated this point, holding that, “[a]lthough it
is within the trial court’s discretion to determine when the admonition should be
given, it must be requested ‘no later than after the direct examination’ where the
evidence is introduced.” Posey v. Commonwealth, 595 S.W.3d 81, 87 (Ky. 2019)
(quoting St. Clair, 140 S.W.3d at 559). Because the Estate failed to request an
admonition at the time the Agreement was introduced, we may only review the
Trial Court’s denial of an instruction for palpable error.
-15- In the civil context, CR 61.02 defines “palpable error” as an error that
affects the substantial rights of a party. An appellate court may review an error
and grant appropriate relief, even though the issue is insufficiently raised or
preserved for review, “upon a determination that manifest injustice has resulted
from the error.” “Manifest injustice” means that “if, upon consideration of the
whole case, a substantial possibility does not exist that the result would have been
different, the error will be deemed nonprejudicial.” Martin v. Commonwealth, 207
S.W.3d 1, 3 (Ky. 2006) (interpreting language in RCr5 10.26, which has been
construed “identically” to CR 61.02. See Nami Resources Company, L.L.C. v.
Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018)) (citing Graves v.
Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)).
We agree with the Estate that the introduction of the Release and
Indemnity portions of the Agreement posed a risk of confusing the jury. Without a
limiting instruction, the jury had no guidance from the Court to determine how that
language was to be read. The jury may have also been led to believe that it was to
consider the legal issue regarding the enforceability of the Agreement. Under
these circumstances, we believe that the Trial Court would have been justified in
5 Kentucky Rules of Criminal Procedure.
-16- giving the Estate’s proposed instruction even though the issue was not raised by a
contemporaneous objection.
Having said this, the mere possibility of prejudice is not enough to
show manifest injustice. The Estate must show a likelihood – “a reasonable
possibility” – that, but for the failure to give the instruction, a different result
would have occurred. Parker v. Commonwealth, 482 S.W.3d 394, 407-08 (Ky.
2016). “Implicit in the concept of palpable error correction is that the error is so
obvious that the trial court was remiss in failing to act upon it sua sponte.” Nami
Res., 554 S.W.3d at 338 (Ky. 2018) (quoting Lamb v. Commonwealth, 510 S.W.3d
316, 325 (Ky. 2017)).
Prior to trial, the Estate sought to exclude introduction of the
Agreement as irrelevant. The parties extensively litigated this matter, resulting in
the Trial Court’s ruling that the Release portions of the Agreement were
unenforceable, but that the Agreement was admissible for other purposes. Prior to
introduction of the Agreement, the parties also discussed whether portions of the
Agreement should be redacted. Based on these discussions, the Trial Court
redacted a significant portion of the emphasized language. The Trial Court may
well have concluded that the Estate’s decision not to request an admonition was a
strategic choice to avoid emphasizing the remaining language in the Agreement.
-17- At trial, LMC emphasized the language in the Agreement describing
the risks of the activity and addressing the health and safety concerns. But as
noted above, LMC neither argued that the Agreement was controlling as to
liability, nor did it suggest that Westover waived her right to recover for any
negligence on its part. Therefore, we must conclude that the Estate failed to
establish that the Trial Court’s declination to give the limiting instruction
amounted to palpable error.
IV. Instructions on LMC’s duties
The Estate also argues that the Trial Court erred by failing to give
complete jury instructions on the issue of LMC’s duties. The Trial Court’s
instruction advised the jury that LMC had the following duty:
to exercise ordinary care for the safety of its patrons. “Ordinary Care,” as applied to [LMC], means such care as you would expect an ordinarily prudent company engage[d] in the same type of business to exercise under similar circumstances.
The Estate’s proposed instruction included the “ordinary care”
language, but also stated LMC’s general duty included the following specific
duties:
to make the condition of the “Mega Quest” ropes course reasonably safe; and
(1) to discover unreasonable risks of harm associated with the “Mega Quest” ropes course; and either
-18- (a) take active steps to make the risks safe; or
(b) give adequate warning of those risks.
The Estate’s proposed instruction further defined “unreasonable risk”
as:
one that is recognized by a reasonable company in similar circumstances as one that should be avoided or minimized, or one that is in fact recognized by [LMC]. Even if you find that [LMC] adequately warned of the risks associated with participation in the “Mega Quest” ropes course, you may find that [LMC] failed to exercise ordinary care by failing to adopt further precautions against those risks, if it was foreseeable that, despite the warning, some risk of harm remained.
The Estate argues that it was entitled to instructions on the specific
duties supporting its cause of action against LMC. A party plaintiff is entitled to
have its theory of the case submitted to the jury if there is any evidence to sustain
it. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250 (Ky. 1995), overruled on other
grounds by Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky. 2009).
However, Kentucky law generally requires the use of “bare bones” instructions.
Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) (citing Lumpkins v. City of
Louisville, 157 S.W.3d 601, 605 (Ky. 2005)). “Bare bones” instructions are proper
if they correctly advise the jury about “what [it] must believe from the evidence in
order to return a verdict in favor of the party who bears the burden of proof” on
-19- that issue. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.
1992). The question on appeal is whether the allegedly erroneous instruction
misstated the law. Id. at 823.
In Smith v. Smith, 563 S.W.3d 14, 18 (Ky. 2018), our Supreme Court
held that a single, “ordinary care” jury instruction does not properly instruct the
jury when liability is based upon land classifications or the possessor’s duty based
upon those classifications. Id. But in that case, there was a factual issue as to
whether the plaintiff was a licensee, a public invitee, or a business invitee. Id. at
17-18. Thus, the separate instruction was necessary for the jury to determine the
applicable standard of ordinary care.
In this case, the Estate argued that LMC’s duties of ordinary care
included duties to make the premises reasonably safe, to discover unreasonable
risks of harm associated with the ropes course, and to take active steps to make
those risks safe or to give adequate warning of those risks. Shelton v. Kentucky
Easter Seals Soc., Inc., 413 S.W.3d 901, 913-14 (Ky. 2013). But as noted in
Shelton, the issue of duty is a purely legal one, while the standard of care is a
factual question. Id. at 914. Here, there was no question that Westover was a
business invitee.
Although the Estate asserts that LMC breached its duties to discover
unreasonable risks of harm associated with the ropes course, its claims at trial were
-20- that LMC failed to use ordinary care in the operation of the ropes course and failed
to give Westover adequate warning of the potential risks arising from negligence
by either LMC or Westover. Any additional duties could be further explained
during closing argument. Olfice, Inc., 173 S.W.3d at 230. Since these duties are
adequately covered by the duty of ordinary care, the Trial Court did not abuse its
discretion by denying the Estate’s proffered instruction.
V. Admission of Evidence of Hydrocodone in Westover’s urine
The Estate additionally argues that the Trial Court abused its
discretion by admitting evidence of hydrocodone in Westover’s urine. Prior to
trial, the Estate filed a motion in limine to exclude a toxicology report showing that
Westover had oxycodone and oxymorphone in her blood and hydrocodone in her
urine when she was admitted to the hospital. Based on the toxicology report,
LMC’s expert witness, Dr. William Smock, was prepared to testify that Westover
had levels of oxycodone and hydrocodone in her system, but he was not able to
definitively state that these levels caused any impairment or intoxication. Dr.
Smock stated that Westover had a prescription for oxycodone, and that
oxymorphone is a metabolite of oxycodone. But he could not locate her
prescription for hydrocodone. LMC’s other medical expert, Dr. Greg Davis,
provided similar testimony.
-21- The Estate argues that the evidence and testimony should be excluded
because neither physician could state with any reasonable certainty that Westover
was impaired or intoxicated when she undertook the Mega Quest course. The
Estate also contends that LMC sought to use the testimony as improper character
evidence, branding Westover as an illicit drug user. But, as previously noted,
LMC responded that the evidence was relevant because Westover represented that
she was not under the influence of any impairing drugs. The Trial Court agreed
with LMC and denied the Estate’s motion.
Generally, an expert’s opinion must be couched in terms of
probability or reasonable certainty, and opinions which are expressed using
language such as “possibility” may be properly excluded as speculative. Combs v.
Stortz, 276 S.W.3d 282, 296 (Ky. App. 2009) (citing Schulz v. Celotex Corp., 942
F.2d 204, 208-09 (3d Cir. 1991)). But unlike in Calhoun v. CSX Transp., Inc., No.
2007-CA-001651-MR, 2009 WL 152970, at *13 (Ky. App. Jan. 23, 2009), aff’d in
part, rev’d in part, 331 S.W.3d 236 (Ky. 2011), Drs. Smock and Davis were not
testifying that Westover’s use of opiates caused her to be impaired or contributed
to her injury. They merely testified as to the presence of those substances in her
blood and urine at the time of her death.
While KRE 404(b) protects against the introduction of extrinsic act
evidence when the evidence is offered solely to prove character, it allows such
-22- evidence to be introduced for a proper purpose. Burton v. Commonwealth, 300
S.W.3d 126, 136 (Ky. 2009). This evidence was relevant to show that Westover
failed to disclose her use of these substances when she executed the Agreement.
Furthermore, the testimony of Drs. Smock and Davis was subject to vigorous
cross-examination, during which both admitted that there was no evidence that
Westover was impaired.
The Estate maintains that LMC sought to portray Westover as an
illicit user of hydrocodone. However, Dr. Davis conceded that Westover may have
had a prescription for hydrocodone even though the prescription could not be
located at the time of trial. The Estate also presented evidence that trace amounts
of hydrocodone may have been found in Westover’s prescription for oxycodone.
In addition, the Estate does not point to any evidence, testimony, or argument at
trial suggesting that Westover should be denied relief because of her use of these
drugs. Because the evidence was relevant and not unduly prejudicial, we cannot
find that the Trial Court abused its discretion by allowing evidence and testimony
concerning the presence of hydrocodone in Westover’s urine.
VI. Limitation on Cross-Examination
The Estate also argues that the Trial Court abused its discretion by
limiting its ability to cross-examine LMC witnesses regarding standards and
literature published by the Occupational Health and Safety Administration
-23- (“OSHA”). At trial, LMC’s owner, Jim Lowry, testified that LMC was not
required to train its staff in first aid or CPR. LMC’s former safety manager,
Kimberly Coleman, also testified that it was her understanding that LMC was not
required to train its employees to the standards set out by OSHA and the
Association for Challenge Course Technology (“ACCT”). When the Estate sought
to cross-examine these witnesses about these standards, LMC responded that the
OSHA standards were only applicable to employees and not participants in the
activity. The Trial Court agreed and precluded the Estate from cross-examining
the witness on this matter.
The Estate contends that the OSHA standards and literature were
relevant to determine the standard of care expected of an operator of a ropes course
and zip line such as LMC. But while industry standards or manuals can inform the
standard of care that will satisfy a duty, neither establishes the duty itself. Spencer
v. Arnold, No. 2018-CA-000479-MR, 2020 WL 4500588, at *7 (Ky. App. Jul. 24,
2020) (citing Carman v. Dunaway Timber Co., Inc., 949 S.W.2d 569, 571 (Ky.
1997)). As the Trial Court noted, the OSHA regulations and literature specifically
referred to the duties owed to employees, not participants. Furthermore, Kentucky
had not adopted the ACCT standards at the time of Westover’s injuries. Given the
limited relevance of these materials, the Trial Court did not abuse its discretion by
restricting the Estate’s cross-examination on these matters.
-24- VII. Exclusion of portions of deposition testimony by LMC’s CR 30.02(b) representative
Finally, LMC designated General Manager Jeremiah Heath as its
corporate representative pursuant to CR 30.02(6). Following Heath’s testimony at
trial, the Estate sought to read two portions of Heath’s deposition into the record.
Specifically, the Estate wanted to introduce deposition testimony in which Heath
stated that he had informed LMC employees that they were not allowed to perform
CPR. LMC objected, noting that the Estate had an opportunity to cross-examine
Heath with his deposition testimony. The Trial Court agreed and sustained LMC’s
objection.
The Estate notes that CR 32.01(b) permits the deposition of a
corporate representative to be “used by an adverse party for any purpose.” The
Estate further notes that the rule permits testimony to be read to the jury even
though the designee is available to testify in person. Lambert v. Franklin Real Est.
Co., 37 S.W.3d 770, 779 (Ky. App. 2000)(citing Kurt A. Philipps, Jr., 6 Kentucky
Practice, CR 32.01 (5th ed. 1995)). However, that language is limited to use of
testimony “admissible under the rules of evidence as though the witness were then
present and testifying.” Hashmi v. Kelly, 379 S.W.3d 108, 112 (Ky. 2012)
(quoting CR 32.01).
While the rule clearly permitted the Estate to cross-examine Heath
with his prior deposition testimony, we agree with the Trial Court that his
-25- deposition testimony was not separately admissible after he testified. Use of the
deposition in this manner would have been substantially prejudicial because LMC
would have lacked the opportunity to rebut or explain the testimony without
recalling Heath. See Graves by & Through Graves v. Jones, No. 2019-CA-0880-
MR, 2021 WL 1431851, at *8 (Ky. App. Apr. 16, 2021). Furthermore, the Trial
Court noted that it had sustained several of LMC’s objections during those portions
of Heath’s deposition. Those sustained objections would have further limited the
admissibility of those portions of the deposition. Given these considerations, we
cannot find that the Trial Court abused its discretion by denying the Estate’s
untimely request to read these portions of Heath’s deposition testimony to the jury.
VIII. Conclusion
We conclude that the Trial Court’s evidentiary rulings and jury
instructions did not amount to an abuse of discretion. Although the Agreement
was not relevant to prove that Westover or her Estate waived any claim to liability
based on LMC’s negligence, it was relevant and admissible as to the other disputed
issues of negligence. Furthermore, the prejudicial effect of the Agreement did not
substantially outweigh its probative value on these matters. The Release and
Indemnity language in the Agreement was potentially misleading. However, the
Estate did not make a contemporaneous request for an admonition. Therefore, the
-26- Trial Court’s failure to grant a limiting instruction did not amount to palpable
error.
The Trial Court’s instructions accurately stated the applicable law and
correctly advised the jury about what it needed to believe from the evidence to
return a verdict in favor of the Estate. We also conclude that the medical evidence
concerning the presence of hydrocodone in Westover’s urine was relevant and not
unfairly prejudicial. Finally, the Trial Court did not abuse its discretion by limiting
the Estate’s cross-examination on OSHA standards or by declining to read Heath’s
deposition into the record after he had testified. Consequently, we find no basis to
disturb the jury’s verdict.
Accordingly, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE:
Brenton D. Stanley Maxwell D. Smith Jason Swinney Ashley K. Brown Louisville, Kentucky Betsy R. Catron William J. Barker II Molly B. Stanley Lexington, Kentucky Louisville, Kentucky
Kevin C. Burke Jamie K. Neal Louisville, Kentucky
-27-