RENDERED: OCTOBER 17, 2025; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1521-MR
JENA LHOTSKY AND JENA LHOTSKY, AS GUARDIAN, CONSERVATOR, AND NEXT FRIEND FOR ALEX LHOTSKY, A DISABLED ADULT APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANN BAILEY SMITH, JUDGE ACTION NO. 21-CI-002784
GUY SUTCLIFFE APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, L. JONES, AND LAMBERT, JUDGES.
CETRULO, JUDGE: This is an appeal from an Opinion and Order granting
summary judgment in favor of Guy Sutcliffe (“Sutcliffe”) following a tragic single
car accident involving Alex Lhotsky (“Lhotsky”). For reasons set forth herein, we
affirm the Jefferson Circuit Court. FACTS
On August 28, 2020, Lhotsky was a passenger in a vehicle driven by
his friend, Willard Patterson (“Patterson”). The two had been to dinner and both
had consumed alcoholic beverages. They were driving home on U.S. Highway 42
(“Highway 42”) in Prospect, Kentucky during a heavy rain. According to crash
data retrieval, Patterson was driving 34 miles per hour over the speed limit when
he lost control of his vehicle. It left the roadway, ultimately colliding with a stone
mailbox located adjacent to Highway 42. Patterson did not survive the accident.
His postmortem blood toxicology revealed a 0.067% blood alcohol concentration
in his system. Lhotsky survived, but sustained serious and permanent brain
injuries, among other injuries to his body.
In May 2021, his wife and now guardian, Jena Lhotsky, filed suit
against Patterson’s estate and against Sutcliffe, the current owner of the residence
associated with the mailbox.1 As to Sutcliffe, Lhotsky claimed negligence for
maintaining a stone mailbox that was “unyielding upon impact” and alleging that it
was non-crashworthy. Discovery proceeded but did not establish who had built the
mailbox or when it was installed. Discovery revealed that the mailbox had two
compartments for mail. Sutcliffe testified it was present when he purchased the
1 Lhotsky later amended the complaint to also name the builder of the home located at 10606 Highway 42 (where the accident occurred) and the first owner of that home. Those parties were dismissed by an earlier summary judgment, and no appeal was taken from that ruling.
-2- property in 1997 and that he used the mailbox along with his next-door neighbor,
Robert Schwartz. Mr. Schwartz was never sued or deposed. Discovery also
confirmed that the mailbox was not actually located on Sutcliffe’s land but just
beyond his property’s boundary, although the Patterson vehicle ultimately ended
up on Sutcliffe’s property.
In 2024, Sutcliffe moved for summary judgment, arguing that: 1) he
owed no duty to Lhotsky under negligence per se nor common law theories; and 2)
the mailbox was not the proximate cause of the accident. The circuit court
considered the parties’ briefs, conducted oral arguments, and granted Sutcliffe’s
motion, resulting in this appeal.
Further facts will be provided as we address the arguments on appeal.
STANDARD OF REVIEW
Appellate review of a summary judgment addresses only questions of
law, thus our review is de novo. Culp v. SI Select Basketball, 663 S.W.3d 451, 453
(Ky. App. 2023) (citing Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016)).
The standard of review upon appeal of an order granting summary judgment is
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky
Rule of Civil Procedure (“CR”) 56.03). The circuit court “must examine the
-3- evidence, not to decide any issue of fact, but to discover if a real issue exists.”
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).
ANALYSIS
Lhotsky argues that Sutcliffe owed a duty, under both statutory and
common law. We begin the discussion with the statutory or negligence per se
claims, which are premised upon Kentucky Revised Statutes (“KRS”) 177.106 and
179.240.
a) Negligence Per Se
A negligence per se claim “is merely a negligence claim with a
statutory standard of care substituted for the common law standard of care.” Lewis
v. B&R Corp., 56 S.W.3d 432, 438 (Ky. App. 2001) (citation omitted); see also
Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. App. 2008) (citation omitted).
However, the party claiming negligence per se must be a member of the class of
persons intended to be protected by the statute, and the injury must be an event
that the statute was designed to prevent. Alderman v. Bradley, 957 S.W.2d 264,
267 (Ky. App. 1997). Only when both requirements are affirmatively
demonstrated is negligence per se established with the applicable regulation or
statute defining the relevant standard of care. Id.
Not only must the statute “have been specifically intended to prevent
the type of occurrence that took place, [but also] the violation must have been a
-4- substantial factor in causing the result.” Hargis v. Baize, 168 S.W.3d 36, 46 (Ky.
2005) (citing Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999)).
KRS 177.106
An “encroachment” is defined in KRS 177.106(1) as “any
improvement of land . . . or any change from the original contour of land, that: (a)
[i]s constructed, created, or implemented under, on, or over the right-of-way of a
state-maintained road; and (b) [m]ay hinder or prevent use or maintenance of a
road or right-of-way.” Subsection (2) of KRS 177.106 provides that “[a] person
shall not cause . . . or allow an encroachment to remain under, on, or over any part
of the right-of-way of a state-maintained road unless that person has first obtained
an encroachment permit from the Department of Highways.”
The evidence was undisputed that the mailbox here was “on the edge
of a paved pull-off with the near side of the mailbox located about 11 feet from the
edge line” of Highway 42.2 There was also evidence demonstrating ample room
on the pull-off to allow a mail truck to access the mailbox and have clearance from
the roadway. The circuit court agreed that the mailbox was situated on what might
be considered the right-of-way of Highway 42, although it was well off the
2 This measurement was provided by Lhotsky’s expert accident reconstructionist, Kenneth Agent.
-5- traveled portion of the road.3 However, the circuit court did not find that the
mailbox hindered or prevented use or maintenance of the road or right-of-way.
Stated another way, the court found it was not an encroachment as defined by KRS
177.106(1). The statute clearly requires that for an “improvement” or “change” to
the land to constitute an encroachment, it must also “hinder or prevent use” of the
road or right-of-way. As our Supreme Court recently emphasized, “[w]e have
repeatedly stated that we ‘must not be guided by a single sentence of a statute but
must look to the provisions of the whole statute and its object and policy.’” Erie
Ins. Exch. v. Johnson, 713 S.W.3d 149, 155-56 (Ky. 2025) (quoting Samons v.
Kentucky Farm Bureau Mut. Ins. Co., 399 S.W.3d 425, 429 (Ky. 2013)).
Lhotsky argues that by presenting expert testimony that any fixed
object adjacent to a highway is “considered an encroachment,” this expert opinion
then presented an issue of fact for a jury. However, Lhotsky’s expert also stated
that the mailbox was located about 11 feet from the edge line of Highway 42.
Based on the evidence presented and the clear wording of KRS 177.106(1), the
circuit court found that the mailbox did not meet the definition of an encroachment
as it did not hinder or prevent the use or maintenance of Highway 42.
3 In presenting his arguments below, Lhotsky pointed to KRS 178.025(3) which defines right-of- way as “extend[ing] to and includ[ing] the shoulders and ditch lines adjacent to [the] road[.]” It appears the circuit court accepted that definition.
-6- In so ruling, the circuit court also relied in part upon this Court’s
decision in Estate of Wheeler v. Veal Realtors & Auctioneers, Inc., 997 S.W.2d
497 (Ky. App. 1999). The Estate of Wheeler case is instructive in several aspects
as it bears many similarities to the case herein.
In Estate of Wheeler, William Wheeler (“Wheeler”), a fire chief, was
operating the fire department water truck and lost control of the vehicle, going off
the roadway and striking a tree on property owned by Willmot Preston Veal
(“Veal”). Id. at 498. Prior to Wheeler’s accident, Veal had applied for an
encroachment permit, under KRS 177.106, to install a driveway to his property.
Upon review of his application, the Kentucky Department of Highways
(“Department”) ordered Veal to remove the tree. Estate of Wheeler, 997 S.W.2d at
498. After Wheeler died from his injuries, his estate sued Veal under a negligence
per se theory based on his violation of KRS 177.106, id., the same statute
referenced in this action. Veal moved for summary judgment arguing that his
“failure to remove the tree was not the proximate cause of Wheeler’s injuries or
death.” 997 S.W.2d at 498. The trial court granted summary judgment despite
Veal’s violation of statutory duties. Id. In affirming the trial court, this Court
noted that it was undisputed that Veal violated the statute, but “in an action for
damages, the violation of the statute must be the proximate cause of the injury to
permit recovery.” Id. (quoting Peak v. Barlow Homes, Inc., 765 S.W.2d 577, 578
-7- (Ky. App. 1988), review denied (Mar. 29, 1989)). This Court clearly and plainly
explained its primary reason for upholding the grant of summary judgment: “the
failure to remove the tree did not cause Wheeler’s accident, as it would have
occurred absent Veal’s statutory violation.” Id. at 499 (citation omitted).
Turning to the purpose of the statute, this Court held that “KRS
177.106 was not intended to prevent accidents such as Wheeler’s.” Id. Testimony
from an employee with the Department revealed that the order to remove the tree
was intended to “increase the sight distance for vehicles entering or exiting
[Veal’s] driveway and not to increase the safety of vehicles traveling on [the public
road].” Id. (emphasis added).
Regarding this last point, Lhotsky argues that the circuit court erred
by relying on Estate of Wheeler to hold that KRS 177.106 was not intended to
promote safety. We disagree. First, the circuit court did not make such a finding.
On the contrary, the circuit court stated the very proposition that Lhotsky argues
was dicta in Estate of Wheeler: that for a negligence per se claim, the harm
incurred must be of the type of harm the statute sought to prevent. It is not mere
dicta that courts must look at the harm the statute was intended to prevent in
assessing all negligence per se cases. See Alderman, 957 S.W.2d at 267 (stating
the injury must be an event that the statute was designed to prevent). Indeed, even
the violation of a statute does not necessarily create liability. The statute must
-8- have been specifically intended to prevent the type of occurrence that took place,
and the violation must have been a substantial factor in causing the result. Isaacs,
5 S.W.3d at 502; Hargis, 168 S.W.3d at 46.4 Estate of Wheeler is one of only two
published negligence per se cases arising under KRS 177.106, and it supports the
judgment rendered in this matter.
We are aware of only one other published case involving the
interpretation of KRS 177.106 in the context of a negligence per se claim. In Peak
v. Barlow Homes, Inc., a passenger in one vehicle was killed when it collided with
another vehicle turning left into a service entrance created by an adjoining
landowner. 765 S.W.2d at 578. There, the landowner created the entrance without
obtaining a permit in violation of KRS 177.106. This Court held that the violation
did not support a finding of negligence per se, as it was a condition too remote to
be a proximate cause of the passenger’s death. Peak, 765 S.W.2d at 579. Since it
only furnished the occasion of the injury, the landowner was entitled to summary
judgment. Id.
The holdings of Estate of Wheeler and Peak make clear that KRS
177.106 was not intended to expose every landowner or occupier of land to
4 Similarly, we accept Lhotsky’s argument that the statute has some general safety purposes, but do not accept that the Department’s manual or its interpretation created a duty upon Sutcliffe. The publications upon which Lhotsky relies do not carry the force of law and do not create a duty upon the general public. See Centre College v. Trzop, 127 S.W.3d 562 (Ky. 2003). Again, the harm must be the type of harm that the statute was intended to prevent.
-9- liability when drivers lose control of their vehicles, travel off the roadway, and
collide with something on the property. Even where there was a violation of the
statute, as found in Estate of Wheeler and Peak, it was insufficient to sustain a
claim of negligence per se under KRS 177.106.
KRS 179.240
Lhotsky next argues negligence per se based upon a violation of KRS
179.240, which provides that an “owner or occupant of land situated along a public
road shall remove from the right-of-way, all obstructions . . . placed there either by
himself or by his consent.” The circuit court found KRS 179.240 inapplicable to
this case as there was no evidence that Sutcliffe either “placed” the mailbox in the
right-of-way or “consented” to its placement in the right-of-way. Moreover, aside
from this lack of evidence concerning Sutcliffe, neither party was able to determine
who owned the land where the mailbox was located, who placed the mailbox there,
or even when the mailbox had been placed there.
As to this finding by the circuit court, Lhotsky primarily argues that
there is an issue of fact as to whether Sutcliffe consented to the presence of the
mailbox by allowing it to remain. However, there was no evidence that the
mailbox obstructed use or maintenance of the roadway. While Sutcliffe
acknowledged his use of the mailbox and his awareness of accidents on Highway
42, there was no evidence that this mailbox had ever been struck in the decades
-10- prior to this accident. Accordingly, the circuit court resolved that dispute with its
finding that the mailbox, located 11 feet off the roadway, did not constitute an
“obstruction” under KRS 179.240.
As to this statute, we find only one case interpreting it in the context
of a negligence per se claim. In Mullins v. Luttrell, a driver claimed that her view
was obstructed by an abandoned building and line of trees on property adjacent to
the intersection where she was turning, causing her to collide with an oncoming
vehicle. No. 2007-CA-00096-MR, 2008 WL 162890, at *1 (Ky. App. Jan. 18,
2008) (unpublished).5 The driver suffered injuries from the collision and filed suit
against the landowners, alleging their negligence in failing to remove or maintain
the building and trees caused her injuries. Id. (emphasis added). The trial court
granted summary judgment on both common law and negligence per se claims. Id.
On appeal to this Court, we upheld summary judgment on the
negligence per se claim, interpreting KRS 179.240 to only require a landowner to
remove obstructions located “within” the right-of-way. Id. at *2. Given that a
deed evidenced that the building was not included within the right-of-way, the
landowners had no statutory duty to remove the building. Id. at *3.6
5 Cited as persuasive, not binding, pursuant to Kentucky Rule of Appellate Procedure 41. 6 Regarding the line of trees, this Court found the record undeveloped as the driver did not allege that the line of trees extended into the right-of-way and remanded the matter to the lower court. Id. at *3.
-11- In the case sub judice, the circuit court likewise found that the
mailbox was not located within the right-of-way, nor was it an obstruction to the
use of Highway 42.
As to Lhotsky’s negligence per se claims, we conclude that the circuit
court properly applied the rather limited precedent under both of these statutory
provisions and did not err as a matter of law in granting summary judgment for
Sutcliffe.
b) Common Law Claim
Lhotsky further argues on appeal that Sutcliffe owed a common law
duty to him even if the statutes did not support the negligence per se claims.
“[N]egligence claims require proof that the defendant owed the plaintiff a duty,
that the defendant breached that duty, and that the plaintiff suffered a harm that
was proximately caused by the breach.” Walmart, Inc. v. Reeves, 671 S.W.3d 24,
26 (Ky. 2023) (citation omitted). To prevail on a negligence claim, the plaintiff
must satisfy each element. See Mullins v. Commonwealth Life Ins. Co., 839
S.W. 2d 245, 247 (Ky. 1992) (citing Illinois Cent. R.R. v. Vincent, 412 S.W.2d
874, 876 (Ky. App. 1967) (“The absence of any one of the three elements is fatal to
the claim.”)). Accordingly, the questions presented are whether Sutcliffe owed a
duty to Lhotsky, whether he breached that duty, and whether Lhotsky’s injuries
were proximately caused by any breach of duty.
-12- Duty
The question of whether a duty exists is a question of law. Pathways,
Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citation omitted). Starting with
this duty inquiry, we note that Kentucky courts and litigants often reference the
“proposition that Kentucky has adopted a ‘universal duty of care’ under which
‘every person owes a duty to every other person to exercise ordinary care in his
activities to prevent foreseeable injury.’” Howard v. Spradlin, 562 S.W.3d 281,
286 (Ky. App. 2018) (quoting Grayson Fraternal Order of Eagles, Aerie No. 3738,
Inc. v. Claywell, 736 S.W.2d 328, 332 (Ky. 1987), superseded by statute as stated
in DeStock No. 14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky. 1999)). More recently,
however, our Supreme Court observed that “Kentucky does not recognize a
general ‘universal duty of care’ that goes ‘beyond the most general expression of
negligence theory.’” New Albany Main Street Properties, LLC v. Stratton, 677
S.W.3d 345, 351 (Ky. 2023) (quoting Jenkins v. Best, 250 S.W.3d 680, 691 (Ky.
App. 2007)). Ordinary care is defined as “such care as a reasonably prudent
person would exercise under the circumstances.” Wright v. House of Imports, Inc.,
381 S.W.3d 209, 213 (Ky. 2012) (quoting Slusher v. Brown, 323 S.W.2d 870, 872
(Ky. 1959)). Moreover, while the duty may be labeled “universal,” it is not
without bounds. See T&M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526,
531 (Ky. 2006). Foreseeability is one such bound. Id.
-13- Accordingly, we have often held that when analyzing the existence of
a duty, the foreseeability of a danger, and the injury stemming from it figure
prominently in Kentucky jurisprudence. See Lee v. Farmer’s Rural Elec. Co-op
Corp., 245 S.W.3d 209, 212 (Ky. App. 2007), abrogated on other grounds by
Walmart v. Reeves, 671 S.W.3d 24. “[T]he scope and character of a defendant’s
duty is largely defined by the foreseeability of the injury[.]” Id. (quoting Isaacs, 5
S.W.3d at 502). Foreseeability is not a hindsight determination; rather it is
evaluated “by viewing the facts as they reasonably appeared to the party charged
with negligence[.]” Id. (quoting James v. Wilson, 95 S.W.3d 875, 891 (Ky. App.
2002)). Moreover, when deciding the nature and scope of the duty, that context
requires a general, as opposed to a specific, inquiry into the foreseeability of the
harm: “In determining whether an injury was foreseeable, we look to whether a
reasonable person in a defendant’s position would recognize undue risk to another,
not whether a reasonable person recognized the specific risk to the injured party.”
Id. at 213.
While the basic criteria for negligence actions have remained
consistent in Kentucky, the application of the rule of foreseeability has evolved in
the last decade. See, e.g., Shelton v. Kentucky Easter Seals Soc. Inc., 413 S.W.3d
901, 908 (Ky. 2013) (shifting the foreseeability question from the duty analysis to
the breach analysis in open and obvious cases); see also Culp, 663 S.W.3d at 454.
-14- For instance, in Walmart v. Reeves, our Supreme Court made it clear that even
business owners do not owe a “universal duty” to protect its patrons from all third-
party acts. 671 S.W.3d at 29. Instead, the Reeves Court clarified that when
determining a business’s duty to its patrons, a trial court must consider whether the
harm was foreseeable to the business, which then necessitates asking whether the
harm “could have been anticipated by the property owner.” Id. at 29 (citing
Napper v. Kenwood Drive-In Theatre Co., 310 S.W.2d 270, 271 (Ky. 1958)) (“For
example, if [harm] of a sufficiently similar kind occurred sufficiently close in time
to the one at issue, then the [harm] at issue would have been foreseeable.”). “Such
an analysis is the only means by which a landowner can justly be held accountable
for harm caused by people out of their control on their property.” Id. In Reeves,
the plaintiff failed to submit evidence sufficiently establishing a “pattern” of the
type of harm that would have triggered Walmart “to anticipate” such harm
occurring at the specific property at issue. Id. Given that the harm was not
foreseeable, there was no duty of reasonable care owed, and summary judgment
for Walmart was appropriate. Id. at 29-30.
In Commonwealth of Kentucky, Transportation Cabinet, Department
of Highways v. Shadrick, our Supreme Court reviewed a negligence claim
involving a similar tragic automobile accident, ultimately affirming the ruling in
favor of the defendant. 956 S.W.2d 898, 901 (Ky. 1997). The issue in Shadrick
-15- concerned the liability of the Department of Highways and its duty to maintain
Kentucky’s highways in “a reasonably safe condition for those members of the
traveling public exercising due care for their own safety.” Id. at 900 (citations
omitted). Therein, a woman lost control of her car, veered off the roadway, and
collided with a dump truck parked in the right-of-way. Id. at 899. The woman and
her unborn child died in the accident, and her estate sued the Department based on
its alleged failure to remove the dump truck. Id. at 899.7 Considering the
Department’s duty and the circumstances of the accident, our Supreme Court
found “no duty imposed upon the Department with respect to the maintenance of
roads to guard against all reasonably foreseeable and reasonably preventable harm
to travelers, including those who are not exercising due care but whose lack of due
care is not ‘so extreme as to be unforeseeable.’” Id. at 900 (citation omitted).
Particularly, our Court in Shadrick considered the scope and nature of
the Department’s duty to use ordinary care to maintain the roads in a safe
condition, noting that the Department would be liable for its failure to cure
“defects which are obscured from the view of ordinary travelers and are so
inherently dangerous as to constitute traps.” Id. at 901 (citing Dillingham v. Dep’t
7 From the facts presented, it appeared that the dump truck, which was parked eight and a half feet from the roadway and in front of a junkyard, had been in the right-of-way for several months, and that the Department sent a notice nine months before the accident to the junkyard to clear the right-of-way, although it was not firmly established whether that notice pertained to the dump truck. Id.
-16- of Highways, 253 S.W.2d 256 (Ky. 1952); Falender v. City of Louisville, 448
S.W.2d 367 (Ky. 1969)). Concluding that the dump truck’s presence, eight and a
half feet from the traveled portion of the roadway, did not violate any duty owed
by the Department, the Shadrick Court made the following observations:
The truck was in view of the traveler and not so inherently dangerous as to constitute a trap. The truck did not impede the flow of normal traffic. An obstruction in plain view of passing motorists simply does not constitute “a condition not reasonably safe.” We decline to extend the law to the point of guaranteeing that every right-of-way will be completely free of all obstructions, whether permanent or transitory, for motorists who operate their vehicles into that area of the roadway. Right-of-ways on non-limited access highways were designed for maintenance and drainage, not vehicles in peril. It would be unreasonable and impractical to hold the Department responsible for the negligence of others.
Id. at 901 (quoting Falender, 448 S.W.2d at 370). Our Supreme Court determined
that the Department breached no duty owed to the plaintiffs. Id.
To reiterate, when assessing the duty owed (or lack thereof), “[t]he
most important factor . . . is foreseeability.” Hammon, 113 S.W.3d at 89.
Moreover, “[f]oreseeable risks are determined in part on what the defendant knew
at the time of the alleged negligence.” Id. at 90. Despite Lhotsky’s contention in
the present case that the risks were foreseeable, that contention finds no support in
the evidence presented. Lhotsky argues that Sutcliffe acknowledged his awareness
of other crashes occurring on Highway 42, but without more evidence regarding
-17- the type, frequency, similarity, and proximity of those incidents, we decline to
impute such awareness to extend the scope and nature of any duty owed. Simply
put, there was no evidence of any foreseeable risk based on what Sutcliffe knew at
the time of this crash. The undisputed evidence establishes that Patterson did not
operate his vehicle in an ordinary manner as intended for Highway 42. See
Southern Bell Telephone and Telegraph Co. v. Edwards, 70 S.W. 1, 3 (Ky. 1934).
More specifically, Patterson drove under the influence of alcohol at almost 80 mph
at night in torrential rain on a poorly lit road, losing control of his vehicle and
swerving off the road 11 feet before colliding with the mailbox. As the circuit
court recognized, under Kentucky law, an individual generally has no duty to
control the conduct of a third person to prevent him from causing harm to another.
Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 849 (Ky.
2005). Accordingly, we agree with the circuit court that Lhotsky has not provided
sufficient evidence to create a genuine issue of fact as to the existence of a duty of
care on Sutcliffe’s part.
Causation
The causation element consists of two parts: but-for causation and
proximate cause. Patton v. Bickford, 529 S.W.3d 717, 730 (Ky. 2016). We
recognize that “literally speaking there can never be only one ‘cause’ of any
result,” but “[t]he law seeks out only the collective cause or causes for which it
-18- lays responsibility on some person or persons.” Id. (quoting House v. Kellerman,
519 S.W.2d 380, 382 (Ky. 1974)). “But-for causation requires the existence of a
direct, distinct, and identifiable nexus between the defendant’s breach of duty
(negligence) and the plaintiff’s damages such that the event would not have
occurred ‘but for’ the defendant’s negligent or wrongful conduct in breach of a
duty.” Patton, 529 S.W.3d at 730. The court has the duty to determine legal
cause, i.e., does the evidence as to the facts make an issue upon which the jury may
reasonably differ as to whether the conduct of the defendant was a substantial
factor in causing the harm? RESTATEMENT (SECOND) OF TORTS §431(1)(a).
Even though breach of a duty may be the “actual but-for cause” of the
injury, proximate cause limits a defendant’s liability if the breach is “too attenuated
from the damages in time, place, or foreseeability[.]” Patton, 529 S.W.3d at 731.
As with the duty analysis, proximate cause is generally considered a question of
law to be determined by the Court. Id. In Kentucky, we measure proximate cause
by “whether the injury is a natural and probable consequence of the negligent
act[.]” Ohio Cas. Ins. Co. v. Commonwealth, Dep’t of Highways, 479 S.W.2d 603,
605 (Ky. App. 1972).
In Hammons, supra, our Supreme Court held, despite a finding of a
duty owed, that the placement of a mentally ill patient in an unregistered boarding
home where she was assaulted by another boarder, was not the legal cause of that
-19- patient’s injuries. 113 S.W.3d at 93. Negligence is not a proximate cause when it
is “‘remote and only furnishe[s] the occasion of [an] injury’ and, consequently,
reasonable minds could not differ as to whether [defendant’s breach] was a
substantial factor in causing [the] injur[y.]” Id. (quoting Commonwealth, Dep’t of
Highways v. Graham, 410 S.W.2d 619, 620 (Ky. 1966)); see also Estate of
Wheeler, 997 S.W.2d at 499 (finding that defendant’s statutory violation was not
the proximate cause of plaintiff’s injuries). However, perhaps the better analysis is
whether “the act created only a situation which was harmless unless acted upon by
other forces out of the control of the defendant.” RESTATEMENT (SECOND) OF
TORTS §433.
Our causation analysis of the case at hand leads us to agree with the
circuit court’s grant of summary judgment for Sutcliffe. As previously discussed,
Patterson did not operate his vehicle on Highway 42 in an ordinary manner. The
accident and Lhotsky’s injuries could not have occurred “but for” Patterson’s
negligence, including the fact that the vehicle first traveled at least 11 feet from the
roadway at a high rate of speed prior to colliding with the mailbox. Sutcliffe’s
mailbox was harmless until acted upon by forces out of his control. See id. The
circuit court heard arguments, considered briefs and the evidence, and found both
that there was no breach of any duty owed and no establishment of proximate
causation in the accident. Similar to this Court’s conclusion in Estate of Wheeler,
-20- the mailbox, like the tree, “only furnishe[d] the occasion of the injur[ies].” 997
S.W.2d at 499.
Finally, Lhotsky argues that the mailbox may have “aggravated” his
injuries. He supported that argument with an expert reconstructionist opinion,
again arguing that at least apportionment should be presented to the jury. We have
addressed the failures of Lhotsky to present the basic negligence tort paradigm of
duty, breach, and proximate cause sufficient to create a jury question. See Carter
v. Bullitt Host, 471 S.W.3d 288, 298 (Ky. 2015); Mullins, 839 S.W.2d at 247.
Because there was no duty found, no breach thereof, and no proximate cause,
Lhotsky’s claims against Sutcliffe fail as a matter of law, entitling him to no
apportionment.
However, we also note that even Lhotsky’s expert concluded that the
causes of the accident were heavy rain, darkness with no roadway lighting,
excessive speed of Patterson’s vehicle, and his impairment as a driver. The
mailbox, according to Lhotsky’s own expert, was only a “contributing factor” to
the severity of the injuries. This argument is based upon the discussion of
comparative fault and apportionment contained within Wemyss v. Coleman, upon
which Lhotsky relies. 729 S.W.2d 174 (Ky. 1987).8 However, a finding of fault,
8 Wemyss, of course, is the seminal case establishing the seatbelt defense as an affirmative defense that reduces the plaintiff’s damages. Id. at 178.
-21- even in the context of comparative negligence, involves first an examination of the
duty and a determination of whether the duty was breached, which was not found
herein. Further, as the circuit court properly noted, the seatbelt defense stems from
doctrines of comparative fault and mitigation of damages – doctrines that all focus
on the plaintiff’s conduct, not that of the defendant. Quoting directly from the
circuit court’s opinion herein, “the issue in the instant case is entirely different –
whether a defendant’s conduct was the legally proximate cause of the accident so
that it should lead to the plaintiff’s recovery in the first instance.” In short, there
must still be a finding of fault before apportionment can be allowed. CertainTeed
Corp. v. Dexter, 330 S.W.3d 64, 74 (Ky. 2010) (citation omitted).
The subjective belief of the appealing party as to the nature of the
evidence is not sufficient as affirmative proof to successfully defeat summary
judgment. Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007)
(citations omitted). Rather, belief does not amount to evidence at all, and so it will
not create a material issue of fact. Smith v. Norton Hosps., Inc., 488 S.W.3d 23, 28
(Ky. App. 2016) (citations omitted).
CONCLUSION
We agree with the circuit court that Sutcliffe cannot be held liable
under either negligence per se principles nor under the common law. It simply
cannot be said that the mere act of utilizing a stone mailbox that adjoined his
-22- property and that was located on a paved pull-off section 11 feet from the roadway,
can serve as the basis for the negligence claims presented herein. The judgment of
the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Wilson W. Greene Jeri Barclay Poppe Kevin C. Burke William B. Orberson Jamie K. Neal Paul J. Bishop Louisville, Kentucky Ryan D. Nafziger Louisville, Kentucky
-23-