Kevin Gibson v. Brown-Forman Corporation

Opinion

RENDERED: JULY 2, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1277-MR

KEVIN GIBSON APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE TRACY E. DAVIS, JUDGE ACTION NO. 23-CI-007296

BROWN-FORMAN CORPORATION APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; L. JONES AND TAYLOR, JUDGES.

THOMPSON, CHIEF JUDGE: Kevin Gibson (Appellant) appeals from an order

of the Jefferson Circuit Court granting summary judgment in favor of Brown-

Forman Corporation (Appellee). Appellant argues that the circuit court erred

applying “up the ladder” tort immunity in favor of Appellee, and that summary

judgment in favor of Appellant was warranted. After careful review, we find no

error and affirm the order on appeal. FACTS AND PROCEDURAL HISTORY

On January 10, 2023, Appellant was employed by Koetter Building

Services, LLC (Koetter) as a construction foreman and carpenter. Appellee

entered into a contract with Koetter under which Koetter agreed to construct a

specialized piece of equipment similar to a crane called an alternative lift barrel

apparatus or “ricker” to move barrels in Appellee’s warehouse.

For many years, Appellee used manual labor to move barrels of

bourbon in its “rickhouse” or warehouse as part of the bourbon aging and

production process. The record indicates that Appellee had an ongoing problem of

losing barrels in remote locations of the rickhouse that were too difficult or

dangerous for its workers to retrieve using its normal process of hoists and chains.

Appellee engaged Koetter to develop and construct a safer and more efficient

mechanism of moving barrels. In response, Koetter developed a ricker, consisting

of a piece of machinery designed to replace the old system of using two manual

laborers who would crawl into the barrel stack to use the hoist and chain technique.

As part of the ricker installation process, Appellant worked in

warehouses K and L at Appellee’s facility on Dixie Highway in Louisville,

Kentucky. The warehouses are one structure which share an elevator. While

engaged in the installation process, Appellant and another employee loaded

aluminum plates into Appellee’s freight elevator. The elevator had interior cage-

-2- style doors which traveled with the elevator and exterior wooden doors which were

affixed to each floor.

While in the stationary elevator, Appellant attempted to manually

close the exterior doors. These doors are described in the record as moving up and

down like a clamshell. There allegedly was no pull handle on the interior of the

doors, so Appellant reached through the door opening and pulled a handle on the

exterior door. As the exterior doors began to close, their mechanism caused their

movement to accelerate. At about the same time, Appellant’s body moved slightly

forward. Appellant’s hand was caught between the two doors as they closed,

causing serious injury.

At the time of the injury, Koetter was covered by a workers’

compensation policy issued by American Casualty Company of Reading,

Pennsylvania. Appellant filed a claim under this policy, which was paid by

American Casualty.

On November 28, 2023, Appellant filed this action against Appellee

in Jefferson Circuit Court. He alleged that Appellee improperly failed to provide

safe working conditions, adequate safety warnings, and proper training. He also

asserted that Appellee’s conduct was negligent or grossly negligent which

proximately resulted in his injuries.

-3- On June 30, 2025, Appellee filed a motion for summary judgment

pursuant to Kentucky Rules of Civil Procedure (CR) 56. Citing General Electric

Co. v. Cain, 236 S.W.3d 579 (Ky. 2007), it argued that it was entitled to “up the

ladder” tort immunity for injuries sustained by Appellant because Appellant had

availed himself of the exclusive remedy provision of the Workers’ Compensation

Act found in Kentucky Revised Statutes (KRS) 342.690(1). This immunity, it

argued, arose because the work being performed by Appellant—an employee of a

third-party contractor—was part of the regular or recurrent work of Appellee in

manufacturing, distilling, aging, and bottling bourbon.

Appellant filed a responsive brief and Appellee a reply. On

September 9, 2025, the circuit court heard oral arguments on the motion. On

September 12, 2025, the court entered an opinion and order granting Appellee’s

motion for summary judgment. The court determined that the service provided by

Koetter to Appellee, i.e., the development and installation of a new mechanism for

moving barrels, was a regular or recurrent rather than a novel or non-regular part of

Appellee’s business. Because the service was found to be a regular and recurrent

part of Appellee’s business, the court determined that Appellee was Appellant’s

statutory employer pursuant to KRS 342.610(2)(b) for purposes of KRS

-4- 342.690(1) immunity, and was therefore entitled to summary judgment. This

appeal followed.1

STANDARD OF REVIEW

Summary judgment “shall be rendered forthwith 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.” CR 56.03. “The record must be viewed in a light most favorable to the party

opposing the motion for summary judgment and all doubts are to be resolved in his

favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.

1991). Summary judgment should be granted only if it appears impossible that the

nonmoving party will be able to produce evidence at trial warranting a judgment in

his favor. Id. “Even though a trial court may believe the party opposing the

motion may not succeed at trial, it should not render a summary judgment if there

is any issue of material fact.” Id. Finally, “[t]he standard of review on appeal of a

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

1 Appellant’s first appeal, styled No. 2025-CA-1236-MR, was dismissed as interlocutory by order of this Court on October 10, 2025.

-5- judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.

1996).

ARGUMENTS AND ANALYSIS

Appellant argues that the Jefferson Circuit Court erred in granting

Appellee’s motion for summary judgment. The focus of his argument is his

contention that the Jefferson Circuit Court improperly applied the doctrine of up

the ladder immunity to bar his action against Appellee. Appellant asserts that up

the ladder immunity is a narrow exception, in derogation of the common law,

which must be strictly construed. He argues that he performed work for Koetter

which was not a regular and recurrent part of Appellee’s business. As such, he

maintains that he could not properly be characterized as Appellee’s employee for

purposes of immunity under Kentucky’s workers’ compensation scheme.

As part of this argument, Appellant maintains that the circuit court

erroneously extended the meaning of regular and recurrent work to include any

work that may benefit the operations of a business. This, he argues, conflates the

goal of barrel moving with the actual work of building new equipment. Appellant

requests an opinion reversing the Jefferson Circuit Court’s order of summary

judgment and remanding the matter for a jury trial.

KRS 342.690(1) states that if an employer provides workers’

compensation coverage as set out in KRS Chapter 342, “the liability of such

-6- employer under this chapter shall be exclusive and in place of all other liability of

such employer to the employee[.]” It goes on to provide that, “[f]or purposes of

this section, the term ‘employer’ shall include a ‘contractor’ covered by subsection

(2) of KRS 342.610, whether or not the subcontractor has in fact, secured the

payment of compensation.”2 In determining whether a contractor is characterized

as an employer for purposes of benefitting from the exclusive liability language of

KRS 342.690, one looks to whether the contractor has subcontracted out regular or

recurrent work of their business. Miller v. Kentucky Power Company, 683 S.W.3d

669, 673-74 (Ky. App. 2023); Cain, 236 S.W.3d at 586-87. In common law

vernacular, when a contractor has subcontracted out regular or recurrent work of its

business, it is said to be “up the ladder” from the employer of an injured worker,

and therefore entitled to the exclusive remedy provision of KRS 342.690(1). Cain,

236 S.W.3d at 585.

In Cain, the Kentucky Supreme Court stated the analysis in this way:

If premises owners are “contractors” as defined in KRS 342.610(2)(b), they are deemed to be the statutory, or “up-the-ladder,” employers of individuals who are injured while working on their premises and are liable for workers’ compensation benefits unless the individuals’ immediate employers of the workers have provided workers’ compensation coverage. If deemed to be

2 “A person who contracts with another . . . [t]o have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person shall for the purposes of this section be deemed a contractor, and such other person a subcontractor.” KRS 342.610(2)(b).

-7- “contractors,” the owners, like any other employers, are immune from tort liability [exclusive remedy immunity] with respect to work-related injuries whether or not the immediate employer actually provided workers’ compensation coverage. See Thomas M. Cooper, The “Comp” Factor in Tort Cases, 51 Ky. Bench & Bar, No. 1, Winter 1987, at 14, 37. Thus, whether an owner is entitled to “exclusive remedy” immunity depends upon whether the worker was injured while performing work that was “of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession” of the owner. If so, the owner is immune; if not, the owner is subject to tort liability.

Id. at 585.

Based on Cain and the relevant statutory law, the Jefferson Circuit

Court characterized the salient question before it as whether the record

demonstrated that Appellee contracted out regular or recurrent work of its

business, thus entitling it to the exclusive remedy provision of KRS 342.690(1).

That is to say, the court considered whether Koetter’s design and construction of a

ricker or crane was properly characterized as part of Appellee’s regular or recurrent

work. If this question were answered in the affirmative, then Appellee would be

“up the ladder” from Koetter and entitled to the exclusive remedy provision of

KRS 342.690(1). If Koetter’s project was found not to be part of Appellee’s

regular or recurrent work, then Appellee would not be characterized as a contractor

and not entitled to the exclusive remedy provision.

-8- In examining this question, the circuit court noted that on one hand,

Appellant maintained that the ricker was a unique, one-of-a-kind, brand new and

never used before piece of equipment, and was never developed past the prototype

phase. This, according to Appellant, rendered the ricker well outside Appellee’s

regular or recurrent work because Appellee had never engaged in the design or

development of such a mechanism.

On the other hand, Appellee argued that the essential determining

factor is the work’s fundamental purpose and character, rather than the specific

project itself. It noted that it has, for many decades, engaged in lifting, moving,

and stacking barrels, as well as retrieving fallen barrels. This, it maintained, was

an essential requirement of its business operations tracing back to the time the

warehouses were constructed. The ricker, it argued, was therefore fundamental to

the purpose and character of its operations, and was clearly part of its regular and

recurrent work.

The Jefferson Circuit Court found that each argument, taken to its

extreme, resulted in a logical fallacy. It reasoned that a myopic focus on the work

being performed, in this instance the replacement of aluminum plates, would

almost never be part of any business’s regular or recurrent work. Conversely,

almost all businesses who hire independent contractors to perform work on their

property would argue that the purpose of the work being performed was necessary

-9- to their regular or recurrent work. Thus, Appellant’s argument taken to the

extreme would never result in a premises owner being characterized as a contractor

for purposes of KRS Chapter 342, while Appellee’s argument would result in all

premises owners achieving that status.

To resolve this tension, the Jefferson Circuit Court turned to

Appellant’s own counterstatement of the facts set out in its response to Appellee’s

motion for summary judgment. As noted by the circuit court, Appellant, through

counsel, stated that

Brown-Forman’s own employees continued the regular and recurrent work of moving barrels around as part of the bourbon aging process[.] . . . In 2022, Koetter’s job shifts from retrieving fallen barrels to devising a new system for moving barrels in the warehouse. The process of retrieving and moving barrels had become too dangerous and Koetter was asked to devise a better method for moving barrels.3

The court then found substantial evidence that Appellee contracted

with Koetter to provide services which were part of the regular or recurrent

business of Appellee’s business. This evidence consisted of 1) common

knowledge that storing, moving, and retrieving barrels of bourbon in a rickhouse is

a customary, usual, and normal part of the bourbon making process in which

Brown-Forman is engaged; 2) the affidavit of Appellee’s Health and Safety

3 Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment at pp. 2-3.

-10- Manager, James Payne, which demonstrated that both Appellee’s employees and

third-parties engaged in these regular and recurrent activities; and, 3) the

acknowledgement of Appellant’s counsel in the pleading that moving barrels was

part of Appellee’s regular and recurrent work.

As this matter is before us on appeal from an order granting summary

judgment, the question for our consideration is whether the Jefferson Circuit Court

correctly found that there were no genuine issues as to any material fact and that

Appellee was entitled to judgment as a matter of law. Scifres, 916 S.W.2d at 781.

To answer this question, and to reiterate, we must determine whether the circuit

court properly concluded that the services provided by Koetter to Appellee were “a

regular or recurrent part of [Appellee’s] work of the trade, business, occupation, or

profession[.]” KRS 342.610(2)(b). If so, then Appellee is properly characterized

as an up the ladder contractor for purposes of the exclusive remedy provision of

KRS 342.690(1).

We must answer this question in the affirmative, and cannot improve

upon the well-reasoned analysis of the Jefferson Circuit Court. The record amply

demonstrates that a core element of Appellee’s business included aging bourbon in

barrels, which required Appellee to move, stack, store, and retrieve those barrels.

This necessary element of Appellee’s business model preceded Koetter’s

involvement by many decades. During this time, Appellee used manual labor to

-11- retrieve displaced or fallen barrels, which included sending workers with chains

and pulleys into the stack to undertake what could be grueling and dangerous

work.

While Koetter was engaged to design and construct a new ricker or

crane to make the barrel retrieval and moving process safer and more efficient, we

conclude that the core purpose of the ricker—barrel retrieval and moving—was a

regular and recurrent part of Appellee’s trade, business, occupation, or profession.

KRS 342.610(2)(b). Appellant acknowledges as much in his response to

Appellee’s motion for summary judgment, stating that Appellee’s “own employees

continued the regular and recurrent work of moving barrels around as part of the

bourbon aging process[.] . . . The process of retrieving and moving barrels had

become too dangerous and Koetter was asked to devise a better method for moving

barrels.”

In addition, the Jefferson Circuit Court took judicial notice of the fact

that Appellee stores and moves bourbon barrels as a core element of its operations.

It found that, “[i]t is axiomatic and common knowledge to anyone who has taken a

distillery tour that storing, moving, and retrieving barrels of bourbon in a rickhouse

is a customary, usual, and normal part of the bourbon making process in which

Brown-Forman is engaged.” Judicial notice “is a rule of convenience that allows a

court to use commonly-known assumptions of fact as evidence.” Marchese v.

-12- Aebersold, 530 S.W.3d 441, 447 (Ky. 2017). We believe that the circuit court

properly took judicial notice of facts which are commonly known to the general

public. Judicial notice aside, however, the record abundantly demonstrates that

moving barrels is the regular and recurrent part of the bourbon making process in

which Appellee is engaged.4, 5

CONCLUSION

The Jefferson Circuit Court correctly found that there were no genuine

issues as to any material fact, and that Appellee was entitled to judgment as a

matter of law. Scifres, 916 S.W.2d at 781. Accordingly, we find no error and

affirm the order of the Jefferson Circuit Court granting summary judgment in favor

of Appellee.

ALL CONCUR.

4 Appellant argues that the introduction of James Payne’s affidavit was self-serving and untimely. Our conclusion is not based on Payne’s affidavit. 5 Our decision somewhat parallels that of the Kentucky Supreme Court in Minova USA, Inc. v. Jolly, No. 2024-SC-0169-DG, 2026 WL 491752 (Ky. Feb. 19, 2026), reh’g denied (Jun. 25, 2026). In Minova, the high court determined that a manufacturer was a contractor entitled to up the ladder immunity after a delivery driver for a transportation company was injured by an unsecured 700-pound metal cart.

-13- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Kirk A. Laughlin Rebecca F. Schupbach Hans G. Poppe Brenden E. Ponder Louisville, Kentucky Louisville, Kentucky

-14-