Bobby Gerald Hurst v. Dixie Truss, Inc.

• Court: Court of Appeals of Kentucky
• Decided: May 6, 2021
• Docket: 2020 CA 000816
• Status: Unknown

Opinion

RENDERED: MAY 7, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2020-CA-0816-MR

BOBBY GERALD HURST APPELLANT

APPEAL FROM WHITLEY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NO. 14-CI-00690

DIXIE TRUSS, INC. APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.

DIXON, JUDGE: Bobby Gerald Hurst appeals from the order granting Dixie

Truss, Inc. (Dixie) summary judgment, entered by the Whitley Circuit Court on

June 8, 2020. Following a careful review of the record, briefs, and law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Hurst was hired by Paul Matthew (“Matt”) and Sandra Witt to set

trusses on a building. Hurst measured the building and provided measurements to

Matt. Matt then ordered the trusses from W.D. Bryant & Sons, who contacted Dixie to manufacture the trusses. The trusses were delivered directly to the Witts’

construction site a few days prior to their scheduled installation. On December 16,

2013, Hurst and his construction team engaged in unbundling and setting the

trusses. Hurst and his team were setting the trusses when one suddenly and

unexpectedly failed, causing Hurst to fall to the ground and injure his neck and

spine. Hurst claims the failure of the truss was “in part due to the gussets failing to

hold the truss boards together, causing the wood to come apart.” The truss was

subsequently repaired and installed in the Witts’ building.

On December 15, 2014, Hurst brought the instant action against the

Witts and Dixie. Hurst alleged various claims against the Witts which were later

amended and then dismissed by the trial court, finding they owed no duty to Hurst.

Hurst did not appeal that decision; therefore, we will not discuss further his claims

against the Witts. Claims against Dixie contained in Hurst’s complaint include:

(1) breach of express warranty, (2) breach of implied warranty of merchantability,

(3) breach of implied warranty of fitness for a particular purpose, (4) negligence

per se, and (5) other amorphous claims later categorized as strict liability in tort for

a manufacturing defect and res ipsa loquitur.

-2- Throughout the litigation, significant discovery has been propounded,

answered,1 and supplemented. Multiple depositions have been scheduled,

rescheduled, and/or cancelled by Hurst. A few affidavits have also been made part

of the record, including those of Hurst and Matt. Hurst has, additionally but

unsuccessfully, moved the trial court on multiple occasions to compel entry upon

the Witts’ land to inspect the truss he alleges caused his injuries. Hurst has also

changed legal representation during these protracted proceedings. This matter was

dismissed for lack of prosecution and subsequently reinstated. Hurst has

repeatedly moved the court to set the matter for trial and to compel mediation.

Dixie eventually moved the trial court for summary judgment. After the matter

was fully briefed and arguments heard, the trial court granted summary judgment

to Dixie on June 8, 2020. This appeal followed.

STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, stipulations, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” CR2 56.03. An

1 Hurst states in his appellate brief that only Dixie failed to answer discovery requests, and Dixie’s failure to do so resulted in his inability to move the case forward more expeditiously. This contention is refuted by Dixie and the record, as it filed notice of both its discovery responses and supplemental responses. 2 Kentucky Rules of Civil Procedure.

-3- appellate court’s role in reviewing a summary judgment is to determine whether

the trial court erred in finding no genuine issue of material fact exists and the

moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916

S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de

novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.

Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006).

PREMATURE SUMMARY JUDGMENT

Hurst first argues the trial court prematurely granted summary

judgment. “A summary judgment is only proper after a party has been given

ample opportunity to complete discovery, and then fails to offer controverting

evidence.” Pendleton Bros. Vending, Inc. v. Commonwealth Fin. & Admin.

Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (citing Hartford Ins. Grp. v. Citizens

Fidelity Bank & Trust Co., 579 S.W.2d 628 (Ky. App. 1979)).

Hurst claims one set of discovery was still outstanding but fails to

identify which set. Hurst also fails to point to any occasion where he brought this

to the trial court’s attention or filed a motion to compel. Hurst further claims that

witnesses had been identified who needed to be deposed; yet, he fails to provide

our court with the identity of any such witnesses.

Hurst had nearly five and a half years to conduct discovery from the

filing of his complaint until the court granted summary judgment to Dixie; yet, he

-4- now complains because the efforts he made to obtain discovery fail to support his

claims. We will not search the record to construct Hurst’s argument for him, nor

will we go on a fishing expedition to find support for his underdeveloped

arguments. “Even when briefs have been filed, a reviewing court will generally

confine itself to errors pointed out in the briefs and will not search the record for

errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979).

We further note additional formal discovery is largely irrelevant to

whether Hurst has stated claims upon which relief may be granted, even though he

claims his failure to conduct such precludes a grant of summary judgment. Our

conclusion is supported and discussed in the treatment of Hurst’s following

arguments.

RES IPSA LOQUITUR

Hurst next argues the trial court erred in declining to apply res ipsa

loquitur. “As Prosser explains, res ipsa loquitur is a ‘Latin phrase, which means

nothing more than the thing speaks for itself,’ and is simply ‘[o]ne type of

circumstantial evidence.’ Prosser and Keeton on Torts, Sec. 39 (5th ed. 1984).”

Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). Whether to apply this

doctrine “is within the trial court’s sound discretion.” Sadr v. Hager Beauty Sch.,

Inc., 723 S.W.2d 886, 887 (Ky. App. 1987). Even so,

[r]eliance upon the doctrine of res ipsa loquitur is predicated upon a showing that (1) the defendant had full

-5- control of the instrumentality which caused the injury; (2) the accident could not have happened if those having control had not been negligent; and (3) the plaintiff’s injury resulted from the accident. [Bowers v. Schenley Distillers, Inc., 469 S.W.2d 565, 568 (Ky. 1971)]. The doctrine does not apply if it is shown that the injury may have been due to some voluntary action on the plaintiff’s part. See Schmidt v. Fontaine Ferry [Enters., 319 S.W.2d 468 (Ky. 1959)].

Id. (emphasis added).

Here, the trusses were delivered to the Witts’ property a few days

prior to installation. It was at that point that the trusses left Dixie’s control. The

trusses remained in the Witts’ control until Hurst and his team undertook to

unbundle and set them. Therefore, we cannot say the subject truss was under the

exclusive control of Dixie at the time of Hurst’s injury. Since Hurst could not

prove the first element essential to a res ipsa loquitur claim—and proof of all three

elements is required—the trial court properly declined to apply the doctrine of res

ipsa loquitur. See Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 790 (Ky. App. 2012),

(“As to the first element, we note that Ryan was operating the pump at the time of

her injury. Therefore, we cannot say that the pump was under the exclusive

control of Fast Lane. Thus, the trial court did not err in concluding that Ryan was

unable to prove the first element.”).

-6- EXPRESS AND IMPLIED WARRANTIES

Hurst next contends the trial court failed to properly analyze or

address his express and implied warranty arguments. KRS3 355.2-318 provides:

A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.

Hurst claims he was a guest4 under this statute since Matt extended the hospitality

of “occasionally” offering coffee to him while he was at the job site and, therefore,

the warranties should be extended to him. However, this simple act of kindness

does not transform the true nature of the relationship, which was one of

3 Kentucky Revised Statutes. 4 Black’s Law Dictionary defines “guest” as:

guest (13c) 1. Someone who is entertained or to whom hospitality is extended. 2. Someone who pays for services at an establishment, esp. a hotel or restaurant. 3. In an automobile statute, one who accepts a ride in a motor vehicle without paying for it or conferring any other substantial benefit on the owner or operator, but accepts the ride for his or her own pleasure or business. - business guest. (1942) Torts. See BUSINESS VISITOR (1). - social guest. (1901) Torts. A guest who is invited to enter or remain on another person’s property primarily for private entertainment as opposed to entertainment open to the general public. See LICENSEE (2).

Guest, BLACK’S LAW DICTIONARY (11th ed. 2019).

-7- employment, into one (as guest of a buyer) that would afford him the protection

intended by this statute.

Another panel of our Court has squarely addressed whether the

legislature intended KRS 355.2-318 to extend to employees of a buyer. That panel

observed:

It continues to be obvious to this Court that the Legislature did not intend to include employees of the buyer within the parameters of the statute. As our Supreme Court noted in Williams v. Fulmer, [695 S.W.2d 411, 414 (Ky. 1985)], the Legislature was aware, when enacting our version of the Uniform Commercial Code [(UCC)], that other alternatives to the statute existed which extended the concept of privity to allow a broader range of injured persons to assert warranty theories of recovery. As Williams v. Fulmer, supra, makes clear, “commercial sales law is statutory,” and our Legislature chose to limit actions for breach of warranty as provided in KRS 355.2-318. It is not the function of the courts to extend the concept of privity to include those whom the Legislature has not seen fit to protect.

McLain v. Dana Corp., 16 S.W.3d 320, 326-27 (Ky. App. 1999) (footnote

omitted). Accordingly, as a matter of law, KRS 355.2-318 does not apply to Hurst,

who was not merely the Witts’ guest but rather more properly characterized as an

employee engaged in setting trusses in their building. Furthermore, Hurst himself

admits lack of privity in his discovery responses when he repeatedly answered that

his claims were pled in the alternative and if the trusses were in fact purchased by

the Witts—a fact that is now undisputed—then his claims are unsupported.

-8- Thus, Hurst’s warranty claims fail for lack of privity as required under

Kentucky’s UCC, and the trial court did not err in granting summary judgment to

Dixie on these claims. See Compex Intern. Co., Ltd. v. Taylor, 209 S.W.3d 462,

465 (Ky. 2006), as modified on denial of reh’g (Jan. 25, 2007) (“[A] seller’s

warranty protections are only afforded to one with whom there is privity of

contract, or, to use the terms of the statute, a ‘seller’s’ warranty protections are

only afforded to ‘his buyer.’ Although the statute provides an exception to the

privity requirement, that exception is limited to its clear terms and includes only

those individuals who enjoy the specified relationship with the buyer.”).5

STRICT LIABILITY IN TORT FOR A MANUFACTURING DEFECT

Hurst also argues the trial court failed to analyze and address his

arguments regarding strict liability in tort for a manufacturing defect. He directs

our court to Section 402(a) of the Restatement (Second) of the Law of Torts,6

which states:

Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his

5 We further note the sales contract was between Matt and W.D. Bryant & Sons, not between Matt and Dixie. We need not address that point further because Hurst has failed to establish he was the buyer or otherwise covered by the exceptions in KRS 355.2-318. 6 This section was adopted by the high Court of Kentucky in Dealers Transportation Company v. Battery Distribution Company, 402 S.W.2d 441, 446-47 (Ky. 1965), as modified on denial of reh’g (May 13, 1966).

-9- property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

(Emphasis added.)

“The ‘sole question in a products liability case,’ regardless of whether

the case involves failure to adequately warn, defective design, or other products

liability theories, is whether the product is defective. Montgomery Elevator Co. v.

McCullough, [676 S.W.2d 776, 782 (Ky. 1984)].” Leslie v. Cincinnati Sub-Zero

Prods., Inc., 961 S.W.2d 799, 803-04 (Ky. App. 1998) (emphasis added).

“Accordingly, a plaintiff has the burden of showing an identifiable, unreasonably

dangerous defect. [See Gray v. Gen. Motors Corp., 133 F. Supp. 2d 530, 533 (E.D.

Ky. 2001), aff’d, 312 F.3d 240 (6th Cir. 2002)].” Dalton v. Animas Corp., 913 F.

Supp. 2d 370, 373 (W.D. Ky. 2012). Furthermore, “Kentucky law is clear that

-10- evidence that merely surmises or speculates as to a defect is not sufficient.

Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745, 747 (Ky. 1973).” Id.

Here, after years of discovery and litigation, the only evidence Hurst

has provided that the truss was defective is his own testimony. In addition to his

pleadings, Hurst has produced an essentially single-page affidavit proffering

himself as an expert witness. The substance of that affidavit asserts Hurst has been

in the construction business for eighteen years and “[t]he identifiable unreasonably

dangerous condition of the truss was in part the metal connecting mechanism on

the truss failed, which created the dangerous situation that lead [sic] to my injury.”

However, this “expert” testimony fails to indicate how, why, or in what manner the

metal connecting mechanism of the truss failed. Consequently, Hurst failed to

meet his burden of proof, and Dixie’s motion for summary judgment was properly

granted. See Gray, 133 F. Supp. 2d 530; Ringley, 503 S.W.2d 745.

NEGLIGENCE

Finally, Hurst contends the trial court erred by failing to analyze and

address his negligence claims. “[T]o prevail on a negligence claim, the pleading

party must prove three elements: 1) duty; 2) breach of that duty; and 3) consequent

injury.” Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 542 (Ky.

App. 2013). The term “consequent injury” encompasses two distinct elements—

actual injury and legal causation between the breach and the injury. Pathways, Inc.

-11- v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003). The absence of proof on any one

of the required elements is fatal to a negligence claim. M & T Chems., Inc. v.

Westrick, 525 S.W.2d 740, 741 (Ky. 1974). In Kentucky, “in order to hold a

manufacturer liable under either strict liability or negligence, a jury must first find

that the product in question was defective.” Tipton v. Michelin Tire Co., 101 F.3d

1145, 1150 (6th Cir. 1996) (emphasis added). As discussed in the preceding

section, Hurst failed to meet his burden in this regard. Thus, summary judgment

was properly awarded to Dixie.

CONCLUSION

Therefore, and for the foregoing reasons, the order of the Whitley

Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Jarrod Bentley J. Warren Keller Prestonsburg, Kentucky Ashley P. Hoover London, Kentucky

-12-