Laura Helmbrecht, in Her Individual Capacity and as Administratrix of the Estate of Cesar E. Marquez Chavez v. The City of Walton

• Court: Court of Appeals of Kentucky
• Decided: February 6, 2026
• Docket: 2025-CA-0528
• Status: Unpublished

Opinion

RENDERED: FEBRUARY 6, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0528-MR

LAURA HELMBRECHT, IN HER INDIVIDUAL CAPACITY AND AS ADMINISTRATRIX OF THE ESTATE OF CESAR E. MARQUEZ CHAVEZ APPELLANT

APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 23-CI-00480

THE CITY OF WALTON; BAILEY JAYNES BAKERY AND CAFE, LLC; DAN MARTIN; GABE BROWN; HOWARD STEVENS; MATT BROWN; ROBERT MCDONALD; SHERRY SNOWDEN; TAMMY WILHOITE; AND TERRI COURTNEY APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, COMBS, AND L. JONES, JUDGES.

COMBS, JUDGE: Laura Helmbrecht, in her individual capacity and as

administratrix of the estate of Cesar E. Marquez Chavez, her late husband, appeals the Boone Circuit Court’s order dismissing her wrongful death action. After our

review, we affirm.

On September 11, 2021, Helmbrecht and Chavez attended the City of

Walton’s annual “Old Fashion Day” festival. Chavez entered the donut-eating

contest hosted by the festival. His participation in the contest was conditioned on

execution of a written waiver of liability.

During the donut-eating contest, 48-year-old Chavez allegedly

experienced an esophageal food bolus. An esophageal food bolus is distinct from

choking and does not normally involve a blockage to one’s airway. See Food

Bolus Impaction, Gregory G. Ginsberg, Gastroenterology & Hepatology, The

Independent Peer-Reviewed Journal, Feb. 2007;

https://pmc.ncbi.nlm.nih.gov/articles (last visited Jan. 15, 2026). It is often linked

to an underlying pathology and occurs more often when eating meat, failing to

chew food sufficiently, and/or eating too quickly. Id. Ordinarily, a food bolus

resolves spontaneously. Id. However, food bolus impactions that persist for more

than twelve hours carry a risk of serious complications. Id.

According to Helmbrecht, Chavez began choking at the contest, lost

consciousness, suffered cardiac arrest, and was unresponsive when paramedics

arrived. He was transported to a local hospital where he later died.

-2- In April 2023, Helmbrecht (both in her individual capacity and as

administratrix of Chavez’s estate) filed a wrongful death action in Boone Circuit

Court against the City of Walton and Bailey Jaynes Bakery and Café, LLC. She

alleged that the defendants failed to provide “an adequate level of reasonable

medical assistance that could properly respond to medical emergencies at the

Festival” and that Chavez failed to receive adequate and timely medical assistance.

Helmbrecht’s claims included: negligence; negligent hiring, training, retention, and

supervision; wanton and willful negligence (as well as gross negligence); wrongful

death; loss of consortium; negligent infliction of emotional distress; concert of

action; and outrage. Written discovery requests were attached to the complaint.

The City of Walton filed a motion to dismiss, contending that the

written waiver acted as a complete bar to the claims. In the alternative, the City of

Walton argued that it was entitled to summary judgment on other grounds. An

affidavit of the city clerk was attached. Bailey Jaynes Bakery joined in the motion.

The circuit court treated the motion as one for summary judgment,

concluding that the defendants were entitled to judgment as a matter of law

because the claims against them were barred by the terms of the waiver. Later,

when the circuit court considered Helmbrecht’s motion to alter, amend, or vacate,

it concluded that Helmbrecht’s claim of negligence based upon willful or wanton

conduct had not been waived but that it nevertheless failed as a matter of law.

-3- Helmbrecht filed her notice of appeal to this Court on September 1,

2023. She appealed the judgment with respect to three claims: negligence, gross

negligence, and willful or wanton conduct. We reviewed the circuit court’s

summary judgment de novo and held that Chavez’s waiver was enforceable and

sufficient to bar Helmbrecht’s claims of negligence and gross negligence.

However, with respect to Helmbrecht’s claims based on willful or

wanton conduct, we cited Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal

Corp., 238 S.W.3d 644, 654 (Ky. 2007), for the proposition that waivers are

enforceable as to liability for “negligence and even gross negligence short of

willfulness and wantonness.” (Emphasis added). See also Donegan v. Beech Bend

Raceway Park, Inc., 894 F.2d 205 (6th Cir. 1990). We observed that the circuit

court’s initial ruling that Chavez waived any claims that he or his estate may have

for alleged willful or wanton conduct was clearly erroneous.

Subsequently, when it considered Helmbrecht’s motion to alter,

amend, or vacate the judgment, the circuit court reasoned that even if the waiver

did not encompass willful or wanton conduct, the claim would still fail as a matter

of law because the defendants -- through the waiver’s provisions -- specifically

warned Chavez of the precise peril he faced, including the potential inaction of

festival hosts and their agents. The court concluded that a wanton or reckless

disregard for his safety could not, therefore, be demonstrated. Upon our review,

-4- we concluded that this alternative basis for the summary judgment was also

erroneous.

In our analysis, we observed that willful or wanton conduct is

exceedingly difficult to establish as it “signifies the entire absence of care for the

life, person or property of others with an element of conscious disregard of the

rights or safety of others, which deserves extra punishment in tort.” Helmbrecht v.

Bailey Jaynes Bakery and Cafe, LLC, 699 S.W.3d 197, 203 (Ky. App. 2024)

(citing Cumberland Valley, 238 S.W.3d at 655 n.33). Nevertheless, we rejected

the circuit court’s conclusion that the mere existence of a waiver warning

contestants of the risks of participation in the donut-eating contest manifested a

“degree of care.” Consequently, we concluded that this single tort claim remained

viable.

In an Opinion rendered September 27, 2024, we reversed the circuit

court’s judgment only with respect to Helmbrecht’s claim of negligence based

upon willful or wanton conduct and remanded for further proceedings. We

specifically noted that the trial court’s summary judgment concerned only the

nature of the waiver and not whether there was an absence of evidence supporting

the elements of a claim based upon willful or wanton conduct.

Once our Opinion was final, Helmbrecht filed a motion for leave to

file an amended complaint. By its order entered November 21, 2024, the circuit

-5- court granted the motion. In the amended complaint, Helmbrecht reasserted her

negligence claim based upon willful or wanton conduct and now included the

city’s former mayor, various city council members, and the assistant city clerk as

additional defendants in both their individual and representative capacities. The

city, its former mayor, city council members, and the assistant city clerk filed a

motion to dismiss the action for failure to state a claim upon which relief could be

granted. They argued that the complaint “fails to allege any conduct on the part of

Defendants which could rise to the level necessary to show an indifference to

consequences, intentional or otherwise, or an entire absence of care” for others.

Bailey Jaynes Bakery joined in the motion. For the sake of convenience, we

hereafter refer to these parties collectively as “festival organizers.”

In an order granting the motion to dismiss entered March 24, 2025,

the circuit court observed that Helmbrecht’s amended complaint alleged that

festival organizers “prepared an inadequate level of reasonable medical assistance

that could properly respond to medical emergencies at the Festival” and that

Chavez “received inadequate and untimely medical assistance by the Defendants.”

The court concluded that the amended complaint failed to state a claim upon which

relief could be granted.

-6- On appeal, Helmbrecht challenges the trial court’s conclusion and

contends that her allegations are sufficient to defeat the motion to dismiss. We

disagree.

The Kentucky Rules of Civil Procedure (CR) provide a mechanism to

test the sufficiency of a complaint. CR 12.02 provides that a defense of failure to

state a claim upon which relief can be granted may be raised by motion. The trial

court is authorized to grant the motion and to dismiss the complaint where it

appears that the plaintiff would not be entitled to relief under any set of facts which

could be proven in support of her claim. Pari-Mutuel Clerks’ Union of Kentucky,

Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky.

1977). Where the court considers a motion to dismiss for failure to state a claim

under the provisions of CR 12.02, the pleadings must be liberally construed in a

light most favorable to the plaintiff and the allegations made in the complaint are

to be taken as true. Mims v. Western–Southern Agency, Inc., 226 S.W.3d 833, 835

(Ky. App. 2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)).

A motion to dismiss for failure to state a claim upon which relief may

be granted presents a question of law. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010)

(citing Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009)). Therefore, we

owe no deference to a trial court’s determination upon review. Id. Instead, we

-7- review the matter de novo. Netherwood v. Fifth Third Bank, Inc., 514 S.W.3d 558,

562–63 (Ky. App. 2017).

“[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). In order 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. 1967) (“The absence of any one of the three elements is

fatal to the claim.”)). In construing the pleadings in a light most favorable to

Helmbrecht and accepting her allegations as true, we are persuaded that

Helmbrecht has failed to state a claim based upon the willful or wanton conduct of

festival organizers.

Whether a duty exists presents a question of law. Pathways, Inc. v.

Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citation omitted). When analyzing the

existence of a duty, the foreseeability of danger and an injury stemming from it

underlie our jurisprudence. Lhotsky as Next Friend for Lhotsky v. Sutcliffe, 723

S.W.3d 842, 851–53 (Ky. App. 2025). Foreseeability is assessed by considering

the facts as they reasonably appeared to the defendant. Id. When determining

whether an injury was foreseeable, we must consider whether a reasonable person

-8- in the defendant’s position would recognize an undue risk to another. Id. As a

matter of law, the failure of festival organizers to provide medical assistance

sufficient to respond to Chavez’s medical emergency at the donut-eating contest

does not constitute willful or wanton conduct.

In Commonwealth of Kentucky, Transportation Cabinet, Department

of Highways v. Shadrick, 956 S.W.2d 898 (Ky. 1997), the Supreme Court of

Kentucky reviewed the dismissal of wrongful death claims arising from an

automobile accident. It undertook a traditional analysis that is helpful to consider.

Specifically, it analyzed the duty of the Department of Highways to maintain our

roads in “a reasonably safe condition for those members of the traveling public

exercising due care for their own safety.” 956 S.W.2d at 900 (citations omitted).

In Shadrick, the driver lost control of her automobile, veered off the

roadway, and collided with a dump truck that had been left for months in the right-

of-way near a junkyard. Id. at 899. The woman and her unborn child were killed

as a result of the collision, and her estate sued the Department based on its alleged

failure to keep the road safe by removing or requiring removal of the dump truck

by the junkyard operator. Id.

The court concluded that there was “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

-9- those who are not exercising due care [for themselves].” Id. at 900 (citation

omitted). Instead, the Department’s duty to use ordinary care to keep roads safe

required removal of those hazards “obscured from the view of ordinary travelers

and [] so inherently dangerous as to constitute traps.” Id. at 901 (citing Dillingham

v. Dep’t of Highways, 253 S.W.2d 256 (Ky. 1952); Falender v. City of Louisville,

448 S.W.2d 367 (Ky. 1969)). The court concluded that the Department’s failure to

remove the dump truck away from the traveled portion of the road or to require its

removal by the junkyard operator did not breach any duty it owed the public. Id. at

901. The court observed that the abandoned dump truck was in plain view of

drivers using the highway; that it did not impede the flow of traffic; and that it did

not present a hazard so inherently dangerous as to constitute a “trap.” Id. Despite

the potential hazard, the court concluded that the roadway remained reasonably

safe for motorists and that it would be unreasonable and impractical to hold the

Department responsible for the negligence of others. Id. (quoting Falender, 448

S.W.2d at 370).

The activity hosted by festival organizers in this case -- eating donuts

(even in competition with other participants) -- is not normally regarded as

hazardous. It became so for Chavez only when he appeared to ingest the donuts

either unchewed or insufficiently chewed. Any risk to Chavez inherent in his

decision to participate in the donut-eating contest was not created or enhanced by

-10- festival organizers. In fact, they could have reasonably expected participants both

to recognize the risk of consuming donuts without chewing sufficiently and to

exercise ordinary care for their own safety. Under these circumstances, the alleged

failure to make sufficient emergency medical services available on scene even if

true, could not be characterized as willful or wanton conduct rendering festival

organizers liable for Chavez’s death. See Collins v. Rocky Knob Associates, Inc.,

911 S.W.2d 608, 610 (Ky. App. 1995) (some negligent conduct may not, as a

matter of law, be deemed “willful” or “malicious” under common law); see also

Poore v. 21st Century Parks, Inc., 619 S.W.3d 409, 424 (Ky. App. 2020) (applying

a provision of Kentucky’s Recreational Use Statute, Kentucky Revised Statute

(KRS) 411.190, and holding that an allegation that defendant’s failure to train

employees to handle medical emergencies and to develop and implement a safety

plan was a type of passive negligence that could not rise to the level of willful or

malicious conduct); Lawson v. City of Beattyville, No. 2011-CA-000243-MR, 2011

WL 5600628, at *3 (Ky. App. Nov. 18, 2011) (holding that an allegation that the

city delegated park safety inspections to inadequately trained personnel was a type

of passive negligence that could not amount to willful or malicious conduct). We

conclude that the circuit court did not err by granting the motion of festival

organizers to dismiss the amended complaint for failure to state a claim.

-11- In an effort to avoid the ramifications of this conclusion with respect

to her claims against the City of Walton and Bailey Jaynes Bakery, Helmbrecht

argues that the circuit court’s order dismissing the amended complaint did not

affect the viability of her initial complaint. She contends that -- “as a matter of

procedure” -- the City of Walton and Bailey Jaynes Bakery were “barred from

raising, (sic) any issues in their second Motion to Dismiss that they were able, but

failed, to raise in their first motion.” Helmbrecht argues that the City of Walton

and Bailey Jaynes Bakery “made no mention whatsoever in their first Motion to

Dismiss of any failure by Helmbrecht to allege wanton or willful conduct” and that

this argument must be deemed waived pursuant to the provisions of CR 12.07.

CR 12.07 provides that a party who makes a motion under Rule 12

may join with it other motions. However, where a party makes a motion under

Rule 12 “but omits therefrom any defense or objection then available to him which

Rule 12 permits to be raised by motion, he shall not thereafter make a motion

based on the defense or objection so omitted, except a motion as provided in

paragraph (2) of Rule 12.08 [including a motion for judgment on the pleadings] on

any of the grounds there stated.” This rule pertains expressly to omitted defenses

and objections. Yet, Helmbrecht contends that the trial court could not entertain a

subsequent motion that advanced a different (or omitted) argument in support of a

defense which the rules allow to be presented by way of motion -- and not only by

-12- way of pleading. We conclude that the trial court did not err by entertaining the

subsequent motion on remand -- regardless of whether it included a different

argument in support of the defense of failure to state a claim for which relief could

be granted.

Because we have decided that Helmbrecht has no cause of action

against the festival organizers for negligence based upon willful and wanton

conduct, the remaining issues raised on appeal (including those related to

Helmbrecht’s derivative claims; punitive damages awards; statute of limitations

defenses; and qualified official immunity) have been rendered moot.

We affirm the order of the Boone Circuit Court dismissing this action.

ALL CONCUR.

-13- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE BAILEY JAYNES BAKERY AND Anthony J. Gonzalez CAFÉ, LLC: Lexington, Kentucky Charles A. Walker Louisville, Kentucky

Taylor L. Kellebrew Louisville, Kentucky

BRIEF FOR APPELLEE CITY OF WALTON:

John M. Dunn Ft. Mitchell, Kentucky

Lauren M. Spuzzillo Ft. Mitchell, Kentucky

-14-