Miranda Marie Ellison v. Gary Wayne Miller

• Court: Court of Appeals of Kentucky
• Decided: November 8, 2023
• Docket: 2021 CA 001308
• Status: Unknown

Opinion

RENDERED: NOVEMBER 9, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2021-CA-1308-MR

MIRANDA MARIE ELLISON APPELLANT

APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE CHRISTOPHER B. OGLESBY, JUDGE ACTION NO. 19-CI-0087

GARY WAYNE MILLER APPELLEE

AND

NO. 2021-CA-1364-MR

GARY WAYNE MILLER CROSS-APPELLANT

CROSS-APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE CHRISTOPHER B. OGLESBY, JUDGE ACTION NO. 19-CI-0087

MIRANDA ELLISON CROSS-APPELLEE OPINION AFFIRMING APPEAL NO. 2021-CA-1308-MR AND CROSS-APPEAL 2021-CA-1364-MR

** ** ** ** **

BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Miranda Marie Ellison brings Appeal No. 2021-CA-1308-MR

from an October 14, 2021, Trial Order and Judgment of the Hopkins Circuit Court,

and Gary Wayne Miller brings Cross-Appeal No. 2021-CA-1364-MR from the

same October 14, 2021, Trial Order and Judgment of the Hopkins Circuit Court

dismissing Ellision’s personal injury action against Miller. We affirm Appeal No.

2021-CA-1308-MR and Cross-Appeal No. 2021-CA-1364-MR.

On November 3, 2017, Gary Wayne Miller, a resident of Kentucky,

was operating a motorcycle in Texas. Ellison, a resident of Tennessee, was a

passenger on the motorcycle. Miller lost control of the motorcycle, and Ellison

suffered severe injuries, including a brain injury. Neither Miller nor Ellison was

wearing a helmet at the time of the accident. The motorcycle was licensed and

registered in Kentucky, and Miller possessed a Kentucky motorcycle instruction

permit.

On February 27, 2019, Ellison filed a complaint in the Hopkins

Circuit Court against Miller. Therein, Ellison stated that Miller was a resident of

Hopkins County and resided in Madisonville, Kentucky. Ellison asserted that “due

-2- to [Miller’s] negligence, carelessness, gross negligence, and recklessness he lost

control causing a wreck that injured . . . Ellison.” Complaint at 1. In particular,

Ellison raised the claims of negligence, negligence per se, and gross negligence.

As to negligence per se, Ellison alleged that Miller violated sundry Texas

Transportation Code Provisions. Miller filed an Answer and generally denied that

he was negligent, careless, grossly negligent, or reckless as to his operation of the

motorcycle.

A dispute arose between parties concerning whether Texas or

Kentucky law was controlling, whether Miller could properly operate a motorcycle

in Texas, and whether Miller could operate the motorcycle with a passenger in

Texas. By order entered February 17, 2021, the circuit court concluded:

1. The Defendant, Gary Miller, possessed a valid license to operate a motorcycle in Texas on November 3, 2017[,] pursuant to Tx. Transp. Code § 521.030.

2. The Defendant, Gary Miller, was authorized by Tx. Transp. Code § 521.030 and Tx. Transp. Code § 545.416(b)-(c) to operate a motorcycle in Texas with a passenger on November 3, 2017.

3. At the time of the accident on November 3, 2017, Defendant, Gary Miller, was in violation of Tx. Transp. Code § 661.003(b) by failing to require Plaintiff, a passenger on his motorcycle, to wear protective head gear.

4. Plaintiff Miranda Ellison was in violation of Tx. Transp. Code § 661.003(a)-(c) by failing to wear

-3- protective head gear while a passenger on Defendant, Gary Miller’s motorcycle on November 3, 2017.

February 17, 2021, Order at 1. And, after a pretrial conference, the circuit court

rendered an order on September 17, 2021. Therein, the court noted that Ellison

withdrew Edward Crum as an expert witness and that the parties agreed to not

mention “the motorcycle license status” of Miller.

A jury trial ensued, and the jury found in favor of Miller. By Trial

Order and Judgment entered October 14, 2021, the circuit court dismissed all

claims against Miller. These appeals follow.

APPEAL NO. 2021-CA-1308-MR

Ellison contends that the circuit court erroneously failed to instruct the

jury upon certain statutory duties under both Texas and Kentucky law. In

particular, Ellison argues that the circuit court’s jury instructions failed to instruct

upon statutory duties under Texas law that Miller had to ensure Ellison was

wearing a helmet, that Miller was not properly licensed to operate a motorcycle,

and that Miller was not permitted to carry a passenger on his motorcycle.

Additionally, Ellison asserts that the circuit court’s jury instructions also failed to

instruct upon the statutory duty in Kentucky that Miller could not carry a passenger

as he only possessed a motorcycle instruction permit. To resolve these contentions

of error, we must initially determine whether Kentucky or Texas law controls and

then address Ellison’s specific claims as related to the jury instructions.

-4- As to tort actions filed in this Commonwealth, it is well-settled that

“any significant contact with Kentucky is sufficient to allow an application of

Kentucky law.” Reichwein v. Jackson Purchase Energy Corp., 397 S.W.3d 413,

416 (Ky. App. 2012) (quoting Petronis v. Churchill Downs, Inc., No. 2005-CA-

1925-MR, 2007 WL 1520018, at *2 (Ky. App. 2007)). In Arnett v. Thompson, 433

S.W.2d 109, 113 (Ky. 1968), the Supreme Court elaborated upon the significant

contact test in relation to a motor vehicle accident:

Upon further study and reflection the court has decided that the conflicts question should not be determined on the basis of a weighing of interests, but simply on the basis of whether Kentucky has enough contacts to justify applying Kentucky law. Under that view if the accident occurs in Kentucky (as in the instant case) there is enough contact from that fact alone to justify applying Kentucky law. Likewise, if the parties are residents of Kentucky and the only relationship of the case to another state is that the accident happened there (as in Wessling [v. Paris, 417 S.W.2d 259 (Ky. 1967)]), there is enough contact with Kentucky to justify applying our law. The fact that we will apply Kentucky law where Kentucky people have an accident in Ohio or Indiana does not require that we apply Ohio or Indiana law where people of one of those states have an accident here, because the basis of the application is not a weighing of contacts but simply the existence of enough contacts with Kentucky to warrant applying our law.

In this case, Miller was a resident of Kentucky, and Kentucky issued

Miller a motorcycle instruction permit. Miller’s motorcycle was also registered

and licensed in Kentucky. Ellison was a Tennessee resident, and the accident

-5- occurred in Texas. Under these undisputed facts, we are of the opinion that

Kentucky had significant contacts to compel application of Kentucky law. See

Arnett, 433 S.W.2d at 113. Having so concluded, we shall now examine Ellison’s

contention as to improper jury instructions.

It is well-established that jury “[i]nstructions must be based upon the

evidence and they must properly and intelligibly state the law.” United Parcel

Serv., Inc. v. Barber, 557 S.W.3d 303, 310 (Ky. App. 2018) (quoting Hamilton v.

CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006)). Per Kentucky Rules of

Civil Procedure (CR) 51(3), a party may not appeal an erroneous jury instruction

unless the party “fairly and adequately” stated his position by tendered

instructions, by motion, or by objection. So, to preserve a challenge to a jury

instruction, a party must inform the trial court of the alleged error so that the court

has the “opportunity to correct any errors before instructing the jury.” Sand Hill

Energy, Inc. v. Smith, 142 S.W.3d 153, 162 (Ky. 2004).

In this case, Ellison submitted two proposed jury instructions and

objected to the court’s jury instructions. However, Ellison’s proposed jury

instructions and objection centered upon the application of Texas statutory law.

Ellison argued in her trial briefs that Miller was not a licensed motorcycle operator

under Texas law, that Miller was not authorized to carry a passenger under Texas

law, and that Miller should have required Ellison to wear a helmet under Texas

-6- law. Ellison’s proposed jury instructions and objections to the court’s jury

instructions were based upon her belief that Texas law controlled. As we have

concluded that Kentucky law controls, it was not error for the circuit court to

refuse to instruct the jury on Texas law as proposed by Ellison.

And, as to Ellison’s argument that the court erred by failing to

instruct the jury on negligence per se based upon Miller’s violation of Kentucky

Revised Statutes (KRS) 189.285(4), it appears that Ellison failed to argue same in

her objections to the court’s jury instructions. Ellison’s arguments as to

application of KRS 189.285(4) are clearly unpreserved for appellate review. CR

51(3).

We are cognizant that KRS 189.285(4) prohibits a motorcycle

operator with only an instruction permit from carrying a passenger in Kentucky.

Miller only possessed a motorcycle instruction permit and was barred by KRS

189.285(4) from carrying Ellison as a passenger. However, “the mere violation of

a statute does not necessarily create liability [as] . . . [t]he violation must be a

substantial factor in causing the injury[.]” Lewis v. B & R Corp., 56 S.W.3d 432,

438 (Ky. App. 2001). See also Ronald W. Eades, Kentucky Law of Damages § 1:5

(2023). While causation is usually a factual issue, the “court may decide the issue

of causation as a matter of law” where there is only one reasonable conclusion that

can be reached. Id.

-7- In our case, there was no evidence introduced at trial that Miller’s

carrying of a passenger was a substantial factor in causing the motorcycle accident.

See Rentschler v. Lewis, 33 S.W.3d 518, 520 (Ky. 2000). It appears that Ellison

had retained Crum as an expert witness to testify as to the handling of a motorcycle

with a passenger but ultimately agreed to withdraw him as a witness before trial.

Consequently, we conclude that Ellison was not entitled to a negligence per se

instruction based upon either Kentucky or Texas statutory law. Therefore, the trial

court did not commit reversible error by failing to instruct the jury upon negligence

per se based on Miller’s violation of KRS 189.285(4).

Ellison next maintains the circuit court erred by excluding from

evidence one of Miller’s medical records. Ellison points out that the medical

record was a progress note by Dr. Kayla Colvill and was created while Miller was

a patient at a Texas hospital on November 4, 2017, the day after the motorcycle

accident. In the medical record, Ellison indicates that “the narrative states in

relevant part: ‘Gary Miller is a 41 year old male, who presented s/p MCC [status

post motorcycle collision] at approximately 80 mph.’” Ellison’s Brief at 22.

Ellison argues that the circuit court erroneously excluded the medical record based

upon a hearsay objection. Ellison maintains that the medical record was

admissible per Kentucky Rules of Evidence (KRE) 803(4), KRE 801A(a)(1), and

KRE 803(6).

-8- The circuit court’s decision to admit or exclude evidence is reviewed

for an abuse of discretion. Clephas v. Garlock, Inc., 168 S.W.3d 389, 393 (Ky.

App. 2004). If the circuit court abused its discretion, we will only reverse if such

error prejudiced the substantial rights of a party. KRE 103(a); Portor v. Allen, 611

S.W.3d 290, 294 (Ky. App. 2020). And, when considering whether the error is

harmless, “the court determines whether the result probably would have been the

same absent the error[.]” CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 69 (Ky.

2010).

In her brief, Ellison admits that the medical record at issue “was

shown onscreen” on two occasions during trial. Ellison’s Brief at 22. The record

reveals that Ellison specifically questioned Miller concerning his speed at the time

of the accident. During questioning, Miller stated that he was traveling the speed

limit. In response, Ellison questioned Miller concerning the statement to his

doctor that Miller was traveling eighty miles per hour at the time of the accident.

At this time, the medical record was on a screen in the courtroom with the relevant

sentence highlighted for the jury. Ellison continued to question Miller about the

medical record and why the doctor would have recorded that Miller was traveling

at eighty miles per hour at the time of the accident. Miller denied making the

statement to the physician and denied he was traveling eighty miles per hour.

-9- Later, during trial, Ellison was cross-examining Andrew Erwin, an

expert witness for Miller. Ellison asked Erwin if he could tell the jury how fast

Miller was traveling at the time of the accident, and Erwin responded that he could

not. Ellison then asked Erwin what the chances were that Miller would have

problems with the motorcycle if he were going eighty miles per hour. Erwin

responded the chances were higher if he were traveling at a higher speed. Ellison

then asked Erwin to detail the information the defense team provided for his

review, which Erwin did. Thereafter, Ellison asked if Erwin reviewed Miller’s

medical record where it was recorded that Miller was traveling eighty miles per

hour. At this time, Ellison showed the medical record on a screen to the jury.

Miller objected to the medical record on the basis of hearsay. The circuit court

sustained the objection and instructed the jury to disregard the medical record in

this instance. Ellison proceeded to ask Erwin if it mattered what Miller told his

doctor concerning the speed of the motorcycle. Erwin answered no and explained

that his testimony concerning the motorcycle accident was based upon scientific

literature, tire marks, and independent facts.

Considering that the jury was informed about the content of the

medical record during Ellison’s examination of Miller and that Erwin stated that

the information was irrelevant to his expert opinion, we conclude that the jury’s

verdict probably would have been the same absent the alleged error, so the error, if

-10- any, was harmless. We simply do not believe the exclusion of the medical record

had any impact upon the jury’s verdict. Thus, we are of the opinion that the circuit

court did not commit reversible error by excluding the medical record.

Ellison raises other allegations of error. We believe the remaining

allegations of error are moot based upon our resolution herein.

CROSS-APPEAL NO. 2021-CA-1364-MR

Miller filed a protective cross-appeal, and based upon our affirmance

of Ellison’s direct appeal (Appeal No. 2021-CA-1308-MR), the contentions of

error raised in the Cross-Appeal are moot.

For the foregoing reasons, we affirm Appeal No. 2021-CA-1308-MR

and affirm Cross-Appeal No. 2021-CA-1364-MR.

ALL CONCUR.

BRIEFS FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS- APPELLEE: APPELLANT:

Ryan Biggerstaff James A. Sigler Michael Liska M. Jared Sigler Lexington, Kentucky Paducah, Kentucky

-11-