Perry v. Williamson

824 S.W.2d 869, 1992 Ky. LEXIS 26, 1992 WL 24953
CourtKentucky Supreme Court
DecidedFebruary 13, 1992
Docket90-SC-773-DG
StatusPublished
Cited by47 cases

This text of 824 S.W.2d 869 (Perry v. Williamson) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Williamson, 824 S.W.2d 869, 1992 Ky. LEXIS 26, 1992 WL 24953 (Ky. 1992).

Opinions

LEIBSON, Justice.

The sole issue in this case is whether the trial court properly instructed the jury on the duties owed by the respondents, William and Doris Williamson, as persons in possession of residential real estate, to the movant, Martha Perry, who had come to the premises as one of several Jehovah’s Witnesses to follow up on an inquiry from a daughter in the household regarding their literature. Movant was standing on the front porch at the door of the respondents’ house when she was struck by a falling limb from a dead tree in the front yard. At this point there is no dispute as to her status in using the premises being that of a licensee.

The case was submitted to the jury under instructions which the respondents claim, and successfully argued at the Court of Appeals level, were inappropriate to describe the duties of the landowners in the circumstances. These instructions were taken almost verbatim from the sample instruction in Palmore’s Kentucky Instructions to Juries, 2d Ed.1989, Sec. 24.09, Instruction No. 2. The only differences between Palmore’s instruction and the instruction given at the trial of this case were factual references necessary to accommodate the facts of this case.

The respondents insist that while the instruction on liability given at the trial might have been suitable had the movant enjoyed the status of an invitee, it lacked necessary elements which must be proved to merit recovery by a licensee. The instruction set out in Palmore’s Sec. 24.09 is explicitly stated in the “Comment” as an appropriate example where there is “a jury question as to the status of the injured party” as an invitee or a licensee. The instruction in its entirety leaves no doubt that Instruction No. 1 in the sample instruction sets out the defendant’s duties if the jury finds the plaintiff is an invitee, and Instruction No. 2 then applies if the jury is “not satisfied from the evidence” that plaintiff was an invitee as defined by circumstances set out in Instruction No. 1. Respondents’ counsel insists that Instruction No. 2 as well as Instruction No. 1 describes liability only where the plaintiff is an invitee, but plainly that is not the intent of the author.

Respondents’ counsel has badly misunderstood Palmore’s Sec. 24.09 and the “Comment” which explains the underlying legal principles illustrated through the instructions. Nevertheless, the basic question is not whether the trial court has followed the sample instruction set out in Palmore, which it has, but whether the instructions given properly apply the law of the State of Kentucky. The Court of Appeals has held that the instructions given were erroneous, and reversed and remanded for a new trial. With all due deference to the scholarly quality of Palmore’s [871]*871Instructions, we recognize the issue is whether the trial court’s instructions are correct, not whether the trial court has followed Palmore. For reasons that we will discuss, we have concluded that both the trial court and Palmore have correctly applied the law in this case. Accordingly, we reverse the Court of Appeals and reinstate the judgment entered in the trial court.

Before addressing the instructions, for a clearer understanding of where we are in this case we need to refer first to other issues which are no longer part of this case.

There is no cross-motion for discretionary review in this case. Thus there were certain questions presented to the Court of Appeals which are no longer at issue. These are:

1) Were the respondents entitled to a directed verdict? The Court of Appeals held there was sufficient evidence to establish both movant’s status as a licensee rather than as a trespasser and liability to a licensee in the circumstances.

2) Did the trial court err in failing to include a comparative negligence instruction? The Court of Appeals held, citing Gravatt v. B.F. Saul Real Estate Investment Trust, Ky., 601 S.W.2d 287 (1980), that “in a case like this,” where liability is premised on “[t]he duty owed by the possessor ... to warn of hazards which are not obvious,” comparative negligence is not an issue, because “if the hazard is obvious, than the possessor cannot be liable in the first place.”

3) Did the trial court err in admitting evidence and instructing upon medical expenses for a post-accident condition for which the proof was insufficient to connect it to the occurrence? The Court of Appeals held that since it was “reversing this matter on other grounds [error in the instructions], we need not reach this issue.”

As stated above, the first two of these issues were rejected by the Court of Appeals, and the third was mentioned but not “addressed.” Our rules are specific that if the motion for discretionary review made by the losing party in the Court of Appeals is granted, it is then incumbent upon the prevailing party in the Court of Appeals to file a cross-motion for discretionary review if respondent wishes to preserve the right to argue issues which respondent lost in the Court of Appeals, or issues the Court of Appeals decided not to address. If the party prevailing in the Court of Appeals wishes further consideration of such issues along with the issues for which discretionary review has been granted, the prevailing party must file a cross motion for discretionary review. CR 76.21; Green River Dist. Health Dept. v. Wigginton, Ky., 764 S.W.2d 475 (1989); Comm. Transportation Cabinet Dept. of Highways v. Taub, Ky., 766 S.W.2d 49 (1988).

Now we turn to the issue before us: were the instructions erroneous? The reasons stated in the Court of Appeals’ Opinion for so holding are three:

1) “[L]iability was premised upon knowledge of the deteriorated condition of the tree alone, although an additional requirement is that the appellant should have realized that the condition of the tree involved an unreasonable risk of harm to the appel-lee.”

2) “Further, the instructions did not require a finding that the appellants had reason to believe that the appellee would not discover the condition of the tree or appreciate the risk of harm.”

3) “[T]he trial court’s instruction in subsection [c] speaks not only of actual knowledge of the condition of the tree, but also knowledge brought to the attention of the appellants ‘by information from which in the exercise of ordinary care they should have known it.’ ”

Because the instruction was an attempt to paraphrase Palmore, we start our discussion with a comparison between the two. Palmore’s instruction in Sec. 24.09, in its entirety, is an instruction drawn up to cover the situation where there is an issue “whether [the] injured party was an invitee or licensee.” No. 1 then states both what the jury must believe to find the plaintiff was an invitee and what the jury must [872]*872believe to find liability in the event the plaintiff is found to be an invitee. No. 2 then starts with a prefatory phrase that the jury will apply it if the jury is “not satisfied from the evidence that P’s [plaintiff’s] purpose in going into the room” was such that plaintiff was an invitee under No. 1. No. 2 then proceeds with what the jury must find to find liability against the defendant if the plaintiff is not

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Cite This Page — Counsel Stack

Bluebook (online)
824 S.W.2d 869, 1992 Ky. LEXIS 26, 1992 WL 24953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-williamson-ky-1992.