Primal Vantage Company, Inc. v. Kevin O'bryan

• Court: Kentucky Supreme Court
• Decided: August 23, 2023
• Docket: 2020 SC 0247
• Status: Unknown

Opinion

RENDERED: AUGUST 18, 2022 MODIFIED: AUGUST 24, 2023 TO BE PUBLISHED

Supreme Court of Kentucky 2020-SC-0247-DG 2021-SC-0064-DG 2021-SC-0065-DG

PRIMAL VANTAGE COMPANY, INC. APPELLANT/CROSS-APPELLEE

ON APPEAL FROM COURT OF APPEALS NOS. 2018-CA-0045, 2018-CA-0063 & 2018-CA-0106 V. JEFFERSON CIRCUIT COURT NO. 12-CI-006326

KEVIN O’BRYAN APPELLEE/CROSS-APPELLANT

AND

SANTÉ O’BRYAN APPELLEE/CROSS-APPELLANT

DENNIS MARTIN AND MARGARET MARTIN APPELLEES/CROSS-APPELLEES

OPINION OF THE COURT

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

The Court, after granting a petition for rehearing, again hearing oral

argument, and extensive review of the record, now issues the following modified

Opinion: This is a products-liability case in which Primal Vantage Company, Inc.

appeals from a decision of the Court of Appeals affirming the trial court’s

judgment that awarded substantial damages to Kevin O’Bryan and Santé

O’Bryan. The product at issue is a ladderstand manufactured by Primal

Vantage that must be affixed to a tree to be used for hunting. While Kevin

O’Bryan was using the ladderstand, the polypropylene straps securing the

stand to the tree broke, the stand fell, and Kevin sustained serious injuries.

A jury found Primal Vantage liable for failure to warn and to instruct of

the dangers associated with use of the straps. The jury awarded Kevin1

damages for past and future medical and personal expenses, pain and

suffering, and lost wages. The jury also awarded damages for loss of

consortium to Kevin’s ex-wife, Santé O’Bryan. The O’Bryans’ claims against

Dick’s Sporting Goods, Inc., the retailer of the stand, and Dennis and Margaret

Martin, the owners of the property where the accident occurred, were

dismissed by the trial court.

We granted discretionary review to examine further the role of the trial

court as evidentiary gatekeeper and clarify the law regarding failure-to-warn

claims. This Court originally rendered an Opinion, authored by former Chief

Justice John D. Minton, in this matter on August 18, 2022 that affirmed in

part and reversed in part the Court of Appeals decision and ultimately

remanded the case to the Jefferson Circuit Court for a new trial. We concluded

1 Since both Kevin and Santé O’Bryan are appellees/cross-appellants in this

action, we refer to Kevin by his first name to avoid confusion. 2 that the trial court abandoned its role as evidentiary gatekeeper and abused its

discretion by allowing the jury to hear a wealth of other-incidents evidence

before ultimately ruling that evidence inadmissible near the end of trial.

Kevin O’Bryan filed a petition for rehearing, arguing that this Court overlooked

material facts and controlling law, and misconceived the issues presented on

appeal. This Court granted rehearing and scheduled oral argument limited to

the following issues:

(1) did the trial court err in granting directed verdict on the design defect claims against Primal Vantage? and (2) Was the evidence of other incidents admissible? If this evidence was not admissible, was its admission harmless?

After further review, we reaffirm our ultimate holding affirming the Court of

Appeals opinion in part, reversing in part, and remanding to the trial court for

a new trial. We also republish the August 18, 2022 Opinion with modifications

only to Sections A and D.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Dennis Martin purchased a ladderstand at Dick’s Sporting

Goods and attached it to a tree on his property. The stand was manufactured

by Primal Vantage and consisted of a two-person platform and an attached

ladder. The ladderstand was not designed to be freestanding. Five

polypropylene straps were required to secure the stand to a tree. The stand

was sold with instructions and warnings.

In 2012, Kevin O’Bryan, his son, and a friend were given permission to

hunt on the Martins’ property. Kevin, his son, and the friend climbed the

3 ladder to the platform. Shortly after the three reached the platform, the straps

broke, and the stand fell to the ground. Kevin suffered serious injuries.

Kevin and his then-wife Santé O’Bryan sued the Martins, the owners of

the property and the stand; Dick’s Sporting Goods, the retailer of the stand;

and Primal Vantage, the manufacturer of the stand. The claims against the

Martins were dismissed before trial based on Kentucky Revised Statute (KRS)

150.645, which grants immunity to landowners who give permission to another

person to hunt on their property. All claims against Dick’s Sporting Goods

were dismissed by directed verdict following the close of evidence at trial.

The only remaining claims for the jury to consider were the failure-to-

warn claims asserted against Primal Vantage. The jury found Primal Vantage

liable for failure to provide reasonable warning and instruction regarding the

risk attendant to the use of polypropylene straps to secure the ladderstand to a

tree. The jury awarded damages to Kevin for past medical expenses, past

personal-care expenses, future medical and personal-care expenses, pain and

suffering and loss of enjoyment of life and lost wages. The jury also awarded

Santé O’Bryan damages for loss of consortium. But the jury assigned fifty

percent of the fault to Primal Vantage and fifty percent of the fault to Kevin. As

such, the trial court reduced Kevin’s and Santé’s damage-award amounts by

fifty percent and issued judgment accordingly.

Primal Vantage and the O’Bryans both filed cross-appeals. The Court of

Appeals affirmed the judgment. Primal Vantage and the O’Bryans then filed

cross-motions for discretionary review in this Court, which we granted.

4 ANALYSIS

Primal Vantage asserts several errors: (1) the trial court improperly

admitted evidence of other incidents of accidents and injuries involving

ladderstands; (2) the trial court gave jury instructions that deviate from

Kentucky law and violate the bare-bones doctrine; (3) statutory immunity

under KRS 150.645(1) does not proscribe apportionment of fault to the

landowners where the accident occurred; (4) an ex-spouse cannot recover for

loss of spousal consortium damages and, if they can, damages must be limited

to the time of marriage; and (5) Plaintiffs’ counsel made repeated prejudicial

references to China and Chinese locations to inflame the jury.

On cross-appeal, Kevin O’Bryan contends that the trial court made

several errors: (1) the trial court erroneously granted Primal Vantage’s motion

for directed verdict on the design-defect claims; (2) the trial court erroneously

excluded evidence of other incidents involving ladderstand accidents; (3) Primal

Vantage failed to comply with discovery orders regarding other-incidents

evidence; and (4) if a new trial is granted based on the apportionment

instruction, the trial court’s decision to grant summary judgment to the

landowners based on statutory immunity in KRS 150.645(1) should be

reversed.

Finally, on cross-appeal, Santé O’Bryan argues that the trial court erred

by reducing her loss-of-consortium award by applying Kevin’s fifty percent

apportionment of fault.

5 A. The trial court abused its discretion by failing to screen other- incidents evidence, allowing several other instances to be introduced, then declaring the evidence inadmissible, and failing to admonish the jury expressly not to consider the inadmissible other-incidents evidence.

The trial court abandoned its evidentiary gatekeeper role and allowed

introduction of a wealth of evidence of other injuries or accidents occurring

during the use of ladderstands without determining the admissibility of the

other-incidents evidence until near the end of trial. This error was magnified

by several assurances offered by the trial court that introduction of dissimilar

other-acts evidence would likely result in a mistrial and by the trial court’s

failure to admonish the jury clearly that the jury must not consider this

inadmissible other-incidents evidence during deliberations.

Generally, “evidence of the occurrence or nonoccurrence of other

accidents or injuries under substantially similar circumstances is admissible

when relevant to . . . the existence or causative role of a dangerous condition,

or a party's notice of such a condition.”2 “A requirement of substantial

similarity between the earlier accidents and the one at issue is a matter of

relevance to be decided in the discretion of the trial judge and will not be

reversed unless there has been an abuse of discretion.”3 Abuse of discretion

will be found where the trial court’s decision “was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.”4

2 Montgomery Elevator Co. v. McCullough ex rel. McCullough, 676 S.W.2d 776,

783 (Ky. 1984) (quoting Harris v. Thompson, 497 S.W.2d 422, 429 (Ky. 1973)). 3 Id. (internal quotation omitted).

4 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).

6 In this case, counsel for Primal Vantage objected to introduction of other-

incidents evidence through motions in limine. In response, the trial court

applied a good-faith standard, generally denied all Primal Vantage’s motions in

limine, allowed discussion in the presence of the jury of 78 other instances of

accidents or injuries involving ladderstands, and withheld ruling on

admissibility of the other instances evidence until near the end of trial.

The trial court serves an important evidentiary-screening function to

ensure that, to the extent possible, only relevant evidence is admitted.5

Moreover, even in the context of relevant evidence, the trial court has a duty to

balance the potential for undue prejudice against the probative worth of

proffered evidence.6

Here, the trial court abdicated its gatekeeping role by allowing the jury to

hear presentation of a wide range of other-incidents evidence without making

any determination until near the end of the trial on whether the other

instances were substantially similar to the accident underlying this suit.

5 See, e.g., Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)

(acknowledging “the trial court’s unique role as gatekeeper of evidence”); Dunnaway v. Commonwealth, No. 2019-SC-0730-MR, 2021 WL 234773, at *2–3 (Ky. Jan. 21, 2021) (“[W]e are unconvinced the trial court abdicated its role as gatekeeper in this evidentiary matter[.]”); Leatherman v. Commonwealth, 357 S.W.3d 518, 529 (Ky. App. 2011); Kentucky Rule of Evidence (KRE) 402 (“Evidence which is not relevant is not admissible.”); KRE 103(c) (“Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”). 6 See KRE 403 (“Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”). 7 Failure to screen the challenged other-incidents evidence was error because the

jury heard about 78 other accidents and injuries involving ladderstands that

the trial court ultimately ruled inadmissible.

The trial court amplified its error by cautioning that the admission of

dissimilar other-incidents evidence would likely result in a mistrial but then

failing to grant the mistrial when it ultimately ruled the evidence inadmissible.

The trial court cautioned that evidence of unrelated incidents was “incredibly

prejudicial evidence” and signaled at least four times that admission of

dissimilar other-incidents evidence would likely result in a mistrial. Even so,

after ruling that all other-incidents evidence presented at trial was dissimilar

and therefore inadmissible, the trial court refused to grant a mistrial.

Taken together, the trial court’s failure to screen the other-incidents

evidence until near the end of trial, paired with the trial court’s cautionary

statements regarding a likely mistrial, and the ultimate ruling that all the

other-incidents evidence that the jury heard was inadmissible, constitutes

abuse of discretion. In other words, the introduction of this evidence was

unfair, unreasonable, and unsupported by sound legal principles.

Kevin claims that the Court of Appeals properly concluded that the trial

court did not abuse its discretion by allowing the jury to hear the inadmissible

other-instances evidence. First, Kevin claims that the trial court was not

required to make a preliminary or threshold determination on the admissibility

of the other-incidents evidence. Of course, the trial court was not required to

hold several mini-trials or make preliminary rulings on each of Primal

8 Vantage’s motions in limine. And we acknowledge that a trial court has broad

discretion in admitting evidence.7

However, the trial court’s discretion is not unfettered and is limited by

both the rules of evidence and the trial court’s general obligation as evidentiary

gatekeeper. For instance, when ruling on a motion in limine, the trial court

“may rule on such a motion in advance of trial or may defer a decision on

admissibility until the evidence is offered at trial.”8 Here, the trial court did

neither. Instead, the trial court generally denied Primal Vantage’s motions in

limine without addressing the merits of the evidentiary challenges, allowed all

of the other-instances evidence to be submitted to the jury, and only engaged

in a substantive analysis regarding the admissibility of the evidence near the

end of the trial. Thus, the trial court failed to comply with KRE 103(d) and

abdicated its screening function to ensure that the jury not hear irrelevant or

inadmissible evidence.

To be clear, we do not hold that a trial court must make a threshold

determination about every evidentiary objection or motion in limine. No exact

chronological procedure mandates when trial courts must make evidentiary

determinations, and trial courts enjoy broad discretion in making evidentiary

determinations. But, on this record, the trial court abandoned its function as

gatekeeper by allowing the jury to hear this wide array of evidence before ruling

at the end of trial that this evidence was inadmissible. This procedure is

7 Daugherty v. Commonwealth, 467 S.W.3d 222, 231 (Ky. 2015).

8 KRE 103(d).

9 improper in these types of products liability cases, and, on this record, pre-trial

determinations of admissibility were undoubtedly necessary. On remand, the

trial court must determine admissibility of the other-incidents evidence prior to

trial. Making pre-trial determinations not only fulfills a trial court’s duty to

screen evidence and ensure only relevant evidence is admitted,9 but also

satisfies our standard that evidence of other incidents must occur “under

substantially similar circumstances” and be “relevant to . . . the existence or

causative role of a dangerous condition, or a party’s notice of such a

condition.”10

Second, Kevin argues that the other-incident proof offered at trial

satisfied the substantial-similarity standard. The trial court ultimately

disagreed, of course, concluding that all the other-incident evidence introduced

at trial was unrelated to the accident underlying this suit.11 Of the other-

incidents evidence introduced at trial, some of the incidents involved

ladderstands made by other manufacturers, some of the incidents involved

9 See n. 5, supra.

10 Montgomery Elevator Co., 676 S.W.2d at 783 (quotation omitted).

11 The trial court discussed the dissimilarity between the other incidents and

Kevin’s incident when ruling on the parties’ motions for directed verdict toward the end of trial. While granting directed verdicts for Dick’s Sporting Goods, the trial court described the other incidents as “disparate and unrelated” and “not even close” to being substantially similar, noting the prejudice to Primal Vantage resulting from discussion of the other incidents. Although not explicitly stated, the trial court certainly implied that this evidence was inadmissible. Additionally, through statements made during the rest of the trial, briefs to this Court and assertions during oral argument, it appears both the trial court and the parties understood the inadmissibility ruling as applying to both Dick’s Sporting Goods and Primal Vantage. In any event, the crux of this issue is that the trial court never explicitly instructed the jury as to what evidence was inadmissible. 10 accidents that occurred during installation of a ladderstand, and some

incidents involved accidents attributable to a broken ladder, not broken straps.

Simply put, our review indicates that Kevin failed to meet his burden of proving

that the other incidents were substantially similar. Thus the trial court did not

err in ultimately ruling that the evidence was inadmissible. On remand, Kevin

will have another opportunity to establish substantial similarity and the trial

court can make a determination as to whether the evidence is admissible

because it is undoubtedly best positioned to do so. We reiterate that we do not

hold that a trial court must make threshold determinations about every

evidentiary objection or motion in limine. However, this record makes it clear

that preliminary determinations are necessary to avoid the introduction of

irrelevant and inadmissible evidence that poses a great risk of misleading and

prejudicing the jury.

Third, Kevin contends that the trial court’s directed verdict on the

design-defect claims cured any prejudice caused by introduction of the other-

incidents evidence. Kevin claims that since the other-incidents evidence

related exclusively to the design-defect claims, the other-incidents proof did not

relate to the remaining failure-to-warn claims. But Kevin’s argument fails to

recognize that notice and knowledge of an unsafe condition may be relevant to

a failure-to-warn theory.12 Under a failure-to-warn theory, “liability for a

manufacturer follows only if it knew or should have known of the inherent

dangerousness of the product and failed to accompany it with the quantum of

12 See discussion infra Part II.B.

11 warning which would be calculated to adequately guard against the inherent

danger.”13 As such, the other-incidents evidence was relevant to the remaining

failure-to-warn claims, and the trial court’s directed verdict on the design-

defect claims did not cure the prejudice resulting from introduction of the

volume of other-incidents proof.

Fourth, Kevin argues that the trial court’s admonitions and counsels’

actions cured any prejudice caused by introduction of the other-incidents

evidence. The trial court gave the jury several admonitions. For instance, the

trial court explained that some evidence may be considered for some claims,

but not others:

Sometimes, in fact, a lot of times, there is a reason to allow something in for your consideration, but it is really limited. Like it is limited to a very narrow part of your decision. And the danger is that you all might not be able to understand the purpose for each bit of this evidence, because it doesn’t come with a big flashing sign that says, “only consider this for this” and “only consider this for that.” So, that’s a lot of what we’re talking about. . . .

And I should have put boxes up that say[ ], this one goes to the claim that there’s a defect in the construction. This one goes to the claim there's a defect in the materials. This one goes to the claim there’s a defect in the notice. . . . I mean, there’s a bunch of different stuff and I’m going to give you a better instruction eventually about that but what I’m telling you is that not everything you hear can be considered by you for every decision that you make. All right? With that in mind, I’m going to let them ask this question about this one area that does not get applied universally.

13 CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 79 (Ky. 2010); see also Stiens v.

Bausch & Lomb Inc., 626 S.W.3d 191, 200–01 (Ky. App. 2020); Prather v. Abbott Labs., 960 F. Supp. 2d 700, 708 (W.D. Ky. 2013) (applying Kentucky substantive law and explaining that “[g]enerally, a manufacturer has a duty to warn of dangers that it either knew or should have known”). 12 Later that day, the trial court provided guidance to the jury regarding the

number of other incidents that had been introduced and the limitations of the

other incidents evidence:

These folks know everything about this case. I know something about it. And you all only know what you hear inside the courtroom, and that's good. But you might make assumptions about what you've heard that are absolutely incorrect, and we're concerned about that. For example, nobody is suggesting that what happened in this case has happened 78 times before. It hasn't. That's not what they're suggesting. But my fear is that somebody is thinking, wow, this is the 79th time that one of these treestands has collapsed like this under the same circumstances. That is not the proof, and you should not assume that this is the 79th time that an event like this one has happened. It's not, and nobody is suggesting that it is, to the extent that anybody is thinking that right now, stop thinking that, because that is not true, and nobody wants you to think that is true.

Finally, during jury instructions, the trial court informed jurors that they

were not to consider evidence the court had excluded:

There are—there is testimony in this case which you have been asked to disregard, and it’s not like I’m going to say, seriously forget it or I’m going to cauterize that part of your brain where that information is stored.

What I’m saying is, that in making your decision, any of the testimony that I’ve asked you to disregard is not something that you may consider in reaching that decision. You have to keep it separate from that pile of evidence that you are making your decision from.

So there’s two piles, things that you consider and things that you can’t, and you can’t confuse those two piles. And as we go through this, counsel will kind of walk you through some of that, but it’s important that you kind of monitor each other to make sure that your decision is based on the facts that you've heard inside this courtroom and the facts that you're allowed to consider in making that decision.

13 It is well-settled that “[a] jury is presumed to follow an admonition to

disregard evidence and the admonition thus cures any error.”14 The issue here

is that the trial court never expressly instructed jurors that the other-incidents

evidence was inadmissible. The trial court provided generic admonitions to the

jury regarding proper and improper use of the other-incidents evidence. And

the trial court instructed the jury to disregard evidence that the court

instructed them to disregard. The important point here is that the trial court

never explicitly told the jurors to disregard the other-incidents evidence.

The trial court’s first two admonitions included above were given before

the trial court discussed the admissibility of the other-incidents evidence. And,

even after determining that none of the other-incidents evidence was

substantially similar to the accident at issue in this case, the trial court did not

explicitly instruct jurors to disregard the other-incidents evidence. As such,

the trial court’s admonitions did not cure the prejudice related to the other-

incidents evidence because the trial court did not properly admonish the jury

on other-incidents evidence after finding it inadmissible.

Even so, Kevin argues that his counsel took steps to cure any prejudice,

including informing the jury during closing arguments that the inadmissible

other-incidents evidence was not to be considered during deliberations.

Despite Kevin’s counsel’s allegedly meliorative efforts in her closing argument,

we remain unconvinced that those efforts cured the prejudice caused by

introduction of the other-incidents evidence. Again, the trial court functions as

14 Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).

14 the neutral gatekeeper to ensure, to the greatest extent possible, that jurors

only hear admissible evidence during trial. The trial court informs jurors of the

proper consideration of evidence using admonitions and jury instructions. Of

course, “Kentucky has long employed the use of ‘bare bones’ jury instructions,

avoiding an abundance of detail and providing only a framework of the

applicable legal principles.”15 And “the ‘bare bones’ of the jury instruction can

be ‘fleshed out by counsel in their closing arguments if they so desire.’”16 But

here, the jury heard evidence of 78 instances of other accidents or injuries

involving ladderstands. Then, after ruling all the other-incidents evidence

inadmissible toward the end of trial, the court never expressly told the jury to

disregard the other-incidents evidence during its deliberations. As a result,

counsel’s closing argument to the jury cannot cure the prejudice from the

introduction of this heft of inadmissible evidence.

Kevin further contends that Primal Vantage’s own counsel cured any

potential error and waived any objection to the other-incidents evidence by

introducing additional other-incidents evidence on cross examination and

during closing argument. In other words, Kevin argues that Primal Vantage

wants “to have its cake and eat it too” by arguing that the other-incidents

evidence was inadmissible while also introducing self-serving other-incidents

evidence. But Primal Vantage’s position at trial is more accurately

15 Sutton v. Commonwealth, 627 S.W.3d 836, 851 (Ky. 2021) (citing Olfice, Inc. v.

Wilkey, 173 S.W.3d 226, 229 (Ky. 2005)). 16 Id. (quoting Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974)).

15 characterized as being stuck between a proverbial “rock and a hard place.” The

Court of Appeals correctly acknowledged that point, suggesting that holding

that Primal Vantage waived its objection to admissibility of the other-incidents

evidence would penalize effective advocacy. The trial court’s failure to serve as

evidentiary gatekeeper by delaying ruling until near the end of trial placed

Primal Vantage’s counsel in an unenviable strategic position as zealous

advocates. Primal Vantage’s counsel faced a Hobson’s choice. First, Primal

Vantage, believing that the other-incidents evidence was inadmissible, could

make no mention of such evidence, allowing Plaintiffs’ counsel to introduce the

evidence without any rebuttal or differentiation from Primal Vantage. Second,

Primal Vantage, fearing that the trial court may find some of the other-

incidents evidence admissible toward the end of trial, could ask questions on

cross-examination about other incidents to rebut the evidence offered by Kevin

and differentiate the other incidents introduced at trial. Primal Vantage cannot

be penalized for choosing the latter course of action considering the trial

court’s initial abandonment of its screening role.

Finally, Kevin asserts that even if introduction of the other-incidents

evidence constituted error, any error was harmless, and a reversal for a new

trial is not warranted. Error in the admission or exclusion of evidence is not

grounds for reversal “unless refusal to take such action appears to the court

inconsistent with substantial justice.”17 “The court at every stage of the

proceeding must disregard any error or defect in the proceeding which does not

17 Kentucky Rule of Civil Procedure (“CR”) 61.01.

16 affect the substantial rights of the parties.”18 “When considering a claim of

harmless error under CR 61.01, the court determines whether the result

probably would have been the same absent the error or whether the error was

so prejudicial as to merit a new trial.”19

We cannot conclude that the introduction of the other-incidents evidence

was harmless error. The jury heard evidence of 78 other incidents of accidents

and injuries involving ladderstands. The references to other incidents began

with Kevin’s counsel providing a twenty-one-minute detailed description of

seventeen other incidents during opening statements to the jury. The jury

heard references to other incidents for eight days through eight witnesses. As

such, the other-incidents evidence permeated the entire two-week trial. And

the trial court’s decision to withhold ruling on the objections to the other-

incidents evidence, allow the jury to hear a wealth of other-instances evidence,

rule all the other-incidents evidence inadmissible near the close of trial, and

fail clearly to admonish or instruct the jury not to consider the other-incidents

evidence during deliberations is inconsistent with substantial justice.

Additionally, the other-incidents evidence affected Primal Vantage’s

substantial rights. As previously discussed, knowledge of an unsafe condition

is relevant to a failure-to-warn claim. So it is possible that the jury would have

reached a different result but for introduction of the other-incidents evidence,

18 Id.

19 CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 69 (Ky. 2010).

17 which the trial court held inadmissible. As a result, introduction of the other-

incidents evidence was not harmless error, and a new trial is required.

In conclusion, the trial court erred by abandoning its role as evidentiary

gatekeeper and allowing the jury to hear substantial evidence regarding other

accidents and injuries involving ladderstands that were eventually ruled

inadmissible at the end of trial. Despite generalized, and poorly timed,

attempts to separate these incidents in terms of applicability and explain their

purpose to the jury, the trial court never explicitly told the jury to disregard the

other-incidents evidence. As such, this error affected Primal Vantage’s

substantial rights and was not harmless. Therefore, the holding by the Court

of Appeals regarding the other-incidents evidence is reversed, the trial court’s

judgment as to Primal Vantage must be vacated, and this action remanded for

a new trial.

B. The trial court’s jury instructions regarding failure to warn were not erroneous.

Our analysis does not end after concluding that a new trial is warranted

based on the other-incidents evidence. This Court has consistently reviewed

issues that are otherwise rendered moot if they are likely to recur on retrial.20

20 See, e.g., Roberts v. Commonwealth, 599 S.W.3d 841, 854 (Ky. 2020); Blane v.

Commonwealth, 364 S.W.3d 140, 154 (Ky. 2012); Sanderson v. Commonwealth, 291 S.W.3d 610, 614 (Ky. 2009); Bell v. Commonwealth, 245 S.W.3d 738, 743 (Ky. 2008) (“Because the judgment has been reversed for the foregoing reasons, we will address only those additional assignments of error that are likely to recur upon retrial.”); Terry v. Commonwealth, 153 S.W.3d 794, 797 (Ky. 2005) (“We will also address other issues that are likely to recur upon retrial.”); Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky. 1999) (“Because the other issues raised by the appellants are likely to recur upon retrial, those issues will also be addressed in this opinion.”). 18 Primal Vantage argues that the trial court’s jury instructions misstated

Kentucky law on the failure-to-warn claims. Although this issue may be

rendered moot in this appeal by our finding that a new trial is warranted based

on the other-incidents evidence, we will address Primal Vantage’s arguments

regarding jury instructions on failure to warn because the issue is likely to

recur on retrial.

Under Kentucky law, the concepts of negligence and strict liability

underlying a failure-to-warn claim are “distinct but overlapping theories.”21

“[A]lthough the concepts of strict liability and negligence may overlap in some

areas, an inadequate warning may give rise to separate and distinct cause of

action under either theory of liability.”22

Negligence claims focus on the conduct of the actor.23 Under a

negligence theory, “the manufacturer must ‘warn the consumer of non-obvious

dangers inherent in the probable use of the product,’ even dangers from

foreseeable misuse.”24 The manufacturer is not charged with hindsight

regarding the potential risks involved in the design of the product under a

negligence theory.25

21 See Byrd v. Proctor & Gamble Mfg. Co., 626 F. Supp. 602, 605 n.4 (E.D. Ky.

1986); see also C & S Fuel, Inc. v. Clark Equip. Co., 552 F. Supp. 340, 343–44, 347 (E.D. Ky. 1982). 22 Tipton v. Michelin Tire Co., 101 F.3d 1145, 1149 (6th Cir. 1996) (applying

Kentucky substantive law). 23 Tipton, 101 F.3d at 1149.

24 Id. (quoting Byrd, 629 F. Supp. at 605).

25 Id. (citing Byrd, 629 F. Supp. at 605 n.5).

19 A strict-liability theory focuses on the condition of the product.26 In a

strict-liability case, “[a] product may be unreasonably dangerous in design,

unless accompanied by a warning that it should not be put to a certain use.”27

Put differently, a manufacturer

is presumed to know the qualities and characteristics, and the actual condition, of his product at the time he sells it, and the question is whether the product creates ‘such a risk’ of an accident of the general nature of the one in question ‘that an ordinarily prudent company engaged in the manufacture’ of such a product ‘would not have put it on the market.’28

If warnings are required as part of a safe design, the manufacturer is charged

with hindsight regarding the potential risks involved in the design of the

product.29

The distinction between the negligence and strict liability theories

is that negligence depends on what a prudent manufacturer, engaged in a business similar to that of the defendant, by the exercise of ordinary care actually should have discovered and foreseen, whereas strict liability depends on what he would have anticipated had he been (but regardless of whether he actually was or should have been) aware of the condition of and potentialities inhering in the product when he put it on the market.30

26 Tipton, 101 F.3d at 1149.

27 C & S Fuel, Inc., 552 F. Supp. at 347; see Ulrich v. Kasco Abrasives Co., 532

S.W.2d 197, 200 (Ky. 1976); Leonard v. Uniroyal, Inc., 765 F.2d 560, 568 (6th Cir. 1985) (citing C & S Fuel, Inc., supra, with approval). 28 Montgomery Elevator, 676 S.W.2d at 780 (emphasis in original) (quoting

Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 433 (Ky. 1980)). 29 Tipton, 101 F.3d at 1149 (citing Byrd, 629 F. Supp. at 605 n.5).

30 Ulrich, 532 S.W.2d at 200.

20 “Where [negligence] is actual, [strict liability] is postulated.”31 Put differently,

“negligence turns on actual knowledge of a defective condition [that is]

unreasonably dangerous, or a condition which, under the exercise of ordinary

care, should have been discovered or foreseen.”32 Alternatively, “strict liability

may be imposed where the eventual defect or resulting harm was merely

speculative or hypothetical at best.”33 While strict liability does not rely upon

negligence, there is a close connection between the two theories based on the

term “unreasonably dangerous.”34 Both negligence and strict liability employ

the concept of reasonable foreseeability.35

Here, the trial court provided four instructions on Kevin’s failure-to-warn

claims. Instruction No. 1 concerned failure to warn based on a defective

product. Instruction No. 2 dealt with failure to instruct based on a defective

product. Instruction No. 3 explained failure to warn based on negligence and

is identical to Instruction No. 1 except for the third paragraph, which required

the jury to find that Primal Vantage, in the exercise of ordinary care, should

have been aware that the ladderstand was unreasonably dangerous. Finally,

Instruction No. 4 provided that Primal Vantage could be liable based on failure

to instruct under a negligence theory.

31 Id.

32 Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 55 (Ky. App. 1999).

33 Id.

34 Ulrich, 532 S.W.2d at 200.

35 Id.

21 Since negligence and strict liability are distinct, yet closely related, legal

concepts, it was not error for the trial court to provide separate instructions for

recovery under each theory. Here, Instruction No. 1 instructed the jury to find

liability under the strict-liability theory of recovery if the jury found that the

ladderstand was unreasonably dangerous if unaccompanied by a reasonable

warning. Alternatively, Instruction No. 3 instructed the jury to find liability

under the negligence theory of recovery if Primal Vantage, in the exercise of

ordinary care, should have been aware that the ladderstand was unreasonably

dangerous and failed to provide an adequate warning.36 So, we agree with the

Court of Appeals’ conclusion that the jury instructions adequately covered both

the negligence and strict-liability theories of recovery.

Primal Vantage argues that the trial court should not have given strict-

liability instructions because the trial court granted a directed verdict in favor

of the Defendants on Kevin’s design-defect claim.

The use of the term defective has caused considerable confusion in the

context of products liability. Both the negligence and strict-liability theories of

recovery require the plaintiff to prove that the product was defective and was

the legal cause of the injury.37 Admittedly, some authorities suggest that the

36 Instruction Nos. 2 and 4 are substantively identical to Instruction Nos. 1 and

3 except for telling the jury to find liability for failure to provide adequate instructions as opposed to adequate warnings. As a result, Instruction Nos. 2 and 4 also adequately captured the distinction between the negligence and strict liability theories of recovery. 37 See Tipton, 101 F.3d at 1150 (holding that under Kentucky law, theories of

negligence and strict liability require a jury to make an initial finding that the product was defective); see also Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970) (holding that whether the action involves negligent design, negligent failure to adequately warn, or 22 distinction between the strict-liability and negligence theories is “of no practical

significance.”38 But, under certain circumstances, distinct causes of action

may arise under either a negligence theory or a strict liability theory.39 As

previously explained, negligence claims focus on the conduct of the actor, and

strict-liability claims focus on the condition of the product.40 While there is

overlap between the two theories, the negligence and strict-liability theories

underlying a failure-to-warn claim are distinct theories.

Primal Vantage’s contention that the trial court’s directed verdict on the

design and manufacturing claims precludes a strict-liability instruction is

misplaced. The “defect” underlying a strict-liability claim need not be a result

of a manufacturing error.41 Instead, “a product is ‘defective’ when it is properly

made according to an unreasonably dangerous design, or when it is not

accompanied by adequate instructions and warning of the dangers attending

its use.”42 “The prevailing interpretation of ‘defective’ is that the product does

not meet the reasonable expectations of the ordinary consumer as to its

safety.”43 In other words, for the purposes of strict liability underlying a

the sale of a defective product that is unreasonably dangerous because of an inherent defect or inadequate warning, in every instance, the product must be a legal cause of the harm). 38 See Sexton ex rel. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336 (4th Cir.

1991) (applying Kentucky law). 39 Montgomery Elevator Co., 676 S.W.2d at 780.

40 Tipton, 101 F.3d at 1149.

41 Ulrich, 532 S.W.2d at 200 (citations omitted).

42 Id.

43 Id.

23 failure-to-warn claim, a product may still be “defective” even if the product does

not have a design defect. As a result, the trial court’s instructions on strict

liability for failure to warn or instruct were proper.

Finally, Kevin argues that the four separate jury instructions are

duplicative and violate the bare-bones doctrine. “We prefer ‘bare bones’

instructions to make the oft-confusing task of determining liability easier for

the layperson to perform.”44 “But while simple instructions are preferred,

correct and complete instructions are required.”45 In Montgomery Elevator, this

Court explained that “[c]onsiderations such as . . . warnings and instructions, .

. . while they have a bearing on the question as to whether the product was

manufactured in a defective condition [that is] unreasonably dangerous, are all

factors bearing on the principal question rather than separate legal

questions.”46 So the trial court could have combined the warning and

instruction considerations into the same instruction. But we do not find that

the trial court committed reversible error by setting out separate instructions

for warnings and instructions where the jury instructions were complete and

accurate instructions on Kentucky law.

Accordingly, we affirm the Court of Appeals’ decision that the trial court

did not err in providing jury instructions regarding Kevin’s failure-to-warn and

failure-to-instruct claims.

44 Osborne v. Keeney, 399 S.W.3d 1, 13 (Ky. 2012).

45 Id.

46 676 S.W.2d at 780–81 (internal quotations omitted) (emphasis added).

24 C. The Martins were properly excluded from apportionment of fault under KRS 150.645.

Primal Vantage argues that the lower courts erred in concluding that

fault could not be apportioned to the Martins under KRS 150.645. KRS.

150.645 provides that “[a]n owner . . . of premises who gives permission to

another person to hunt . . . upon the premises shall owe no duty to keep the

premises safe for entry or use . . . .”47 KRS 150.645 “offer[s] protections for

landowners who invite individuals onto their property for recreational use of

land.”48

First, Primal Vantage argues that Kentucky’s comparative-fault statute,

KRS 411.182, allows apportionment of fault even if a party may not have tort

liability. But “[t]o find fault against a defendant, and thus allow

apportionment, there must also be proof that the defendant breached a duty.”49

Ultimately, “[w]hether fault can be apportioned against someone with absolute

immunity from liability is determined by construing the statute.”50 Here, the

Martins are not within any of the categories specified in the comparative-fault

statute; they are not parties, third-party defendants, or persons released under

47 KRS 150.645(1).

48 Est. of David v. Pounds, 553 S.W.3d 262, 265–66 (Ky. App. 2018).

49 CertainTeed Corp., 330 S.W.3d at 79; see also Carter v. Bullitt Host, LLC, 471

S.W.3d 288, 298 (Ky. 2015) (“For fault to be placed on either party, a party must have breached his duty[.]” (Emphasis in original)); Ashcraft v. Peoples Liberty Bank & Trust Co., 724 S.W.2d 228, 229 (Ky. App. 1986) (“If no duty is owed by the defendant to the plaintiff, there can be no breach thereof, and therefore no actionable negligence.”). 50 Jefferson Cnty. Commonwealth Atty's Off. v. Kaplan, 65 S.W.3d 916, 922 (Ky.

2001), as modified on denial of reh'g (Feb. 21, 2002). 25 subsection (4). As a result, fault cannot be apportioned to the Martins

“because they do not fall within the scope of those to whom fault can be

apportioned against under KRS 411.182.”51

Second, Primal Vantage contends that KRS 150.645 conflicts with

Kentucky’s comparative-fault statute and that the comparative-fault statute,

which was enacted before KRS 150.645, should control. But that argument

fails for the same reasons discussed above. It is true that “[t]he core principle

of comparative negligence is that ‘[o]ne is liable for an amount equal to his

degree of fault, no more and no less.’”52 But that core principle is inapplicable

here because the General Assembly has absolved landowners like the Martins

of any duty of care under KRS 150.645(1), and the Martins do not fit within

any of the categories of persons to whom fault can be apportioned under KRS

411.182.

Finally, Primal Vantage contends that the jury should have been able to

apportion fault to the Martins based on “clear evidence of the Martins’ failure to

maintain and inspect the ladderstand.” This argument is unavailing. KRS

150.645(1) provides that landowners—like the Martins—who give permission

for others to hunt on their land owe no duty of care to keep the premises safe.

The only exception contained in the statute is for willful and malicious failure

51 Id.; see also Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 479–81

(Ky. 2001) (holding that fault could be apportioned to a settling nonparty under KRS 411.182(4)). 52 Regenstreif v. Phelps, 142 S.W.3d 1, 6 (Ky. 2004) (quoting Stratton v. Parker,

793 S.W.2d 817, 820 (Ky. 1990)). 26 to guard against a dangerous condition. As a result, the Martins’ alleged

failure to maintain and inspect the ladderstand, without some allegation that

they acted willfully or maliciously, is of no moment.

In sum, the lower courts correctly concluded that fault could not be

apportioned to the Martins under KRS 150.645(1). As a result, the portion of

the Court of Appeals’ decision precluding apportionment of fault to the Martins

is affirmed.53

D. Directed Verdict in Favor of Primal Vantage on Design-Defect Claims Was Appropriate.

Kevin claims that the trial court erroneously granted a directed verdict in

favor of Defendants on the design-defect claims. When a motion for directed

verdict is made, “a trial court ‘must draw all fair and reasonable inferences

from the evidence in favor of the party opposing the motion.’”54 “As a reviewing

court, we ‘must ascribe to the evidence all reasonable inferences and

deductions which support the claim of the prevailing party.’”55 A directed

verdict is appropriate “where there is no evidence of probative value to support

53 We do not address Kevin O’Bryan’s alternative arguments regarding

apportionment of fault to the Martins because those arguments are contingent upon reversal based upon the apportionment instruction. Similarly, the Martins make several arguments in their brief regarding the constitutionality of KRS 150.645, whether there is evidence that the Martins acted willfully or maliciously, and concerning whether the Martins are liable as suppliers of chattel. We do not address these arguments because they were not raised in Primal Vantage’s principal brief. See Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (“Ordinarily, this Court confines itself rather closely to deciding only those issues which the parties present.”); see also Greenlaw v. United States, 554 U.S. 237, 243 (2008) (discussing the principle of party presentation of issues). 54 Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 285 (Ky. 2014) (quoting Bierman v.

Klapheke, 967 S.W.2d 16, 18 (Ky. 1998)). 55 Id. (quoting Bierman, 967 S.W.2d at 18).

27 an opposite result” because “the jury may not be permitted to reach a verdict

upon speculation or conjecture.”56 This Court reviews a trial court’s ruling on

a motion for directed verdict for clear error.57

To prevail on a design-defect claim, a plaintiff must present proof of “an

alternative safer design, practicable under the circumstances.”58 Therefore, a

directed verdict is only proper in a design-defect claim where there is no

evidence of probative value to support that there was “an alternative safer

design, practicable under the circumstances.”59 “In a design defect case,

courts use some form of risk-utility analysis to assess the decisions made by

manufacturers with respect to the design of their products.”60 Since a

manufacturer chooses the design of a product, the emphasis is on the

manufacturer's conduct, not the allegedly defective product:

A conscious decision to design a product in a certain manner necessitates that the focus be on conduct rather than the product. Hence, the trier of fact must employ a risk-utility balancing test that considers alternative safer designs and the accompanying risk pared against the risk and utility of the design chosen “to

56 Id. (internal quotations and alteration omitted).

57 Id.

58 Trent v. Ford Motor Corp., 2 F. Supp. 3d 1022, 1026 (W.D. Ky. 2014) (applying

Kentucky law); McCoy v. Gen. Motors Corp., 47 F. Supp. 2d 838, 839 (E.D. Ky. 1998); Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 126 (Ky. 1991) (“Except where the defect is obvious (as when a Coke bottle explodes), the plaintiff must usually show that some alternative way of manufacture or design was both safer and feasible.” (quoting Richard O. Lempert & Stephen A. Saltzburg, A Modern Approach to Evidence, 187–89 (1st ed. 1977))); Edwards v. Hop Sin, Inc., 140 S.W.3d 13, 16 (Ky. App. 2003) (“The record indicates that there are no reasonably available alternatives to bacteria-laced oysters.”). 59 Id.

60 Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003).

28 determine whether ... the manufacturer exercised reasonable care in making the design choices it made.”61

Admittedly, Kentucky case law is scant on the precise elements a plaintiff

must prove to recover on a design-defect claim. Many of the authorities

applying Kentucky law cite persuasive federal authority for the elements of a

design-defect claim under Kentucky law. And several cases discussing

alternative designs concern “crashworthiness” or “enhanced injury” cases,

where the plaintiff claims that a defect in a motor vehicle caused injuries over

and above those which would have been expected in the collision absent the

defect. Regardless, to recover for a design defect under Kentucky law, a

plaintiff must establish existence of an alternative, safer design that is practical

under the relevant circumstances and, as such, it was Kevin’s burden to

“present some evidence that would incline a reasonable person to believe”62 an

alternative, safer design practical under the relevant circumstances existed.

With these considerations in mind, we review whether the trial court

clearly erred in granting Defendants a directed verdict with respect to Kevin’s

arguments that stronger metal, chains, and a Lockjawz system constituted

safer alternatives to the use of polypropylene straps.

Here, the trial court’s directed verdict in favor of Defendants on the

design-defect claims was proper because there was insufficient evidence to

allow a reasonable juror to conclude that there was a safer, practical

61 Id. (quoting Gregory v. Cincinnati Inc., 538 N.W.2d 325, 329–30 (Mich. 1995)).

62 Toler, 458 S.W.3d at 285 (quotation omitted).

29 alternative to the use of Q195 steel. Kevin claims that the Q195 steel used in

the Primal Vantage ladderstand was too weak and bent after the polypropylene

straps affixing the stand to the tree broke. Dr. Alan Johnson, Kevin’s expert in

materials science, testified that a stronger metal would be less likely to bend.

Even so, it is undisputed that the ladderstand at issue here was not designed

to be freestanding. Instead, the ladderstand was designed to be affixed to a

tree using polypropylene straps. And here, the polypropylene straps failed,

causing injuries to Kevin. In fact, Dr. Johnson testified that the Q195 steel

used in the ladderstand at issue would not have bent if the polypropylene

straps had not broken.

As a result, it is not apparent that the use of stronger metal in the

ladderstand at issue would be a safer alternative to the Q195 steel where the

ladderstand was not designed to be freestanding and the method for affixing

the stand to a tree or other object failed. As the trial court repeatedly explained

to counsel, the evidence at trial demonstrated that Kevin’s design defect claims

focused on the use, fitness, and viability of polypropylene straps. Kevin’s

incident was not caused by the bending of the Q195 steel. Rather, the bending

of the Q195 steel was an effect of the polypropylene straps breaking. In sum,

the trial court did not err in granting a directed verdict to Defendants on

Kevin’s design defect claim as to metal because there was insufficient evidence

to allow a reasonable person to conclude that an alternative safer material

practical under the circumstances was available.

30 Kevin also contends that Primal Vantage could have used chains to affix

the ladderstand to a tree instead of the polypropylene straps. The evidence at

trial established that the use of chains to support ladderstands was widely

discontinued in the industry approximately twenty years before the accident

that occurred here. Of course, we have rejected the notion that “purported

compliance with industry standards absolves [a defendant] of liability.”63 But,

as we recognized in Nichols, a manufacturer’s compliance with industry

standards in the design of a product is a relevant factor in determining whether

a product is defective.64

Trial testimony indicated that chains may have been discontinued

because chains could not be tightened down, allowing the ladderstand to rotate

on the tree. Other trial testimony relayed instances in which a chain was used

to secure a stand to a tree and the ladder broke because the tree grew, and the

chain did not stretch in response to the tree growth. Regardless, Kevin’s expert

testified that he was unaware of chains currently being used by any

manufacturer to secure ladderstands to a tree.65 More importantly, the expert

failed to provide proof that the use of chains was a safer and practical

alternative to the use of polypropylene straps to affix a ladderstand to a tree.

For instance, Kevin’s expert testified that the industry “should have looked at

63 Commins v. Genie Indus., Inc., No. 3:16-CV-00608-GNS-RSE, 2020 WL

1189937 at *23 (W.D. Ky. Mar. 12, 2020) (citing C.D. Herme, Inc. v. R. C. Tway Co., 294 S.W.2d 534 (Ky. 1956)). 64 Nichols, 602 S.W.2d at 433.

65 The expert testified that he was aware of one manufacturer that used chains

to secure a hang-on stand to a tree, not a ladderstand. 31 the hazard and designed a better way to tighten that chain down,” instead of

using polypropylene straps. But proof that chains had been used in the

industry is not proof that chains were a safer or practical alternative to straps,

especially where other evidence suggested that the use of chains presented its

own safety concerns. As a result, while there was evidence that chains could

conceivably be used as an alternative method of affixing a ladderstand to a

tree, we cannot conclude that the trial court’s ruling was clearly erroneous

because, based on the evidence, a reasonable person could not believe that

chains were a safer, practical alternative to the use of polypropylene straps.

Finally, Kevin asserted that a Lockjawz device, which is a large clamp

that grasps the tree to hold a ladderstand in place, was a feasible alternative

design. It is undisputed, however, that the Lockjawz device was not developed

until after the ladderstand at issue in this case was produced. Moreover,

Kevin’s expert testified that he had only seen pictures of the Lockjawz device on

the internet and could not testify as to whether the device was safer than the

use of straps. Therefore, Kevin was not entitled to a directed verdict in his

design defect claim as to the Lockjawz device because the Lockjawz device was

nonexistent when the ladderstand used here was produced, and, as a result,

there was no evidence as to whether it was a safer or more practical alternative

to polypropylene straps. As such, the trial court did not err in granting the

Defendants a directed verdict on Kevin’s claim that the Lockjawz device was a

safer, practicable alternative to polypropylene straps.

32 In conclusion, the trial court’s directed verdict in favor of Defendants on

the design-defect claims was not clearly erroneous. The trial court’s directed

verdict on the design-defect claims is affirmed.

E. Assignments of Error Regarding Loss of Spousal Consortium Are Not Properly Considered in this Appeal.

Santé O’Bryan was awarded $80,000 for her loss-of-consortium claims.

That award was offset by 50% based on the jury’s finding that Kevin O’Bryan

was 50% at fault for the accident that occurred. In this appeal, Santé raises

several issues regarding the propriety of the loss-of-consortium award,

including whether the trial court erred by offsetting her loss-of-consortium

claim by Kevin O’Bryan’s 50% apportionment of fault.

As previously discussed, this Court consistently considers moot issues

that are likely to recur upon retrial. But consideration of a moot issue may be

inappropriate where the recurrence of issues on retrial is dependent upon proof

to be presented at trial.66 While a spouse’s claim for loss of consortium is an

independent cause of action,67 it is not a separate injury, but is derivative of

the injured spouse’s personal-injury claim.68 So, on retrial, Santé O’Bryan will

66 See Jones ex rel. Jones v. IC Bus, LLC, 626 S.W.3d 661, 682 (Ky. App. 2020)

(“[E]ven though our decision reinstates claims upon which punitive damages could be found, we cannot say whether this issue is likely to recur if the case is retried as it will be dependent upon proof then presented. Therefore, because it is neither likely nor unlikely that the issue of punitive damages will recur on retrial, we deem discussion of it—at least at this point—improper and decline to do so.”). 67 Floyd v. Gray, 657 S.W.2d 936, 938 (Ky. 1983).

68 Daley v. Reed, 87 S.W.3d 247, 248 (Ky. 2002); see also Metzger v. Auto-

Owners Ins. Co., 607 S.W.3d 695, 698 (Ky. 2020) (characterizing spouse’s claim as “a derivative claim for loss of spousal consortium”). 33 only recover for loss of spousal consortium if two contingent events occur: (1)

Kevin O’Bryan succeeds on the merits of his claims against Primal Vantage;

and (2) the jury finds that Santé O’Bryan is entitled to recover for loss of

spousal consortium. Both contingent events are completely dependent upon

the proof to be presented on retrial and the jury’s findings. As a result,

because it is neither likely nor unlikely that the issue of loss of spousal

consortium will recur on retrial, we deem discussion of that issue premature

and decline to consider the issues raised in this appeal regarding loss of

spousal consortium.69

F. Alleged Prejudicial References to China are not Properly Considered in this Appeal.

Primal Vantage argues that Plaintiffs’ counsel made improper and

irrelevant references to China and Chinese locations and names at trial.

Whether the issue of references to China will recur on retrial is dependent

upon proof to be presented at trial. And the trial court is best positioned as

evidentiary gatekeeper to consider the relevance and admissibility of any

evidence on retrial, including potentially prejudicial references to China or

Chinese locations. So we decline to render an advisory opinion on an issue

that may or may not occur in the future on retrial.70

69 For clarity, we take no position on whether Santé O’Bryan should recover for

loss of spousal consortium on remand. We simply decline to discuss the issues concerning loss of spousal consortium raised in this appeal because the recurrence of those issues and assignments of error depends upon the occurrence of two contingent events that are dependent upon the proof to be presented on retrial. 70 See Jones, 626 S.W.3d at 682 (declining to address a moot issue that is

neither likely nor unlikely to recur on retrial); see also Nordike v. Nordike, 231 S.W.3d 34 G. We Need Not Rule on Enforcement of Discovery Orders in this Appeal.

On cross-appeal, Kevin summarily argues that Primal Vantage failed to

comply with discovery obligations and trial court orders compelling production

of evidence. Kevin contends that, in the event of a new trial, full and timely

production of discoverable other incidents should be required. Though Kevin

cites to one trial court order, it is unclear the exact discovery issue(s) Kevin

challenges on appeal. In any event, the trial court is in the best position to

manage discovery issues and resolve any evidentiary disputes concerning

other-incidents evidence in the first instance on retrial. We take no position in

this decision on whether other-incidents evidence is discoverable on retrial.

CONCLUSION

The trial court abused its discretion and abandoned its role as

evidentiary gatekeeper by allowing substantial amounts of evidence of other

incidents to be presented to the jury, threatening that a mistrial would likely be

declared if this evidence was found inadmissible, ruling near the end of trial

that the other-instances evidence was indeed inadmissible, and then failing

properly to admonish the jury to ignore the inadmissible other-incidents

evidence during its deliberations. Even so, the trial court’s jury instructions on

failure to warn were not erroneous, the trial court correctly concluded that

fault could not be apportioned to the Martins under KRS 150.645, and the trial

court’s directed verdict in favor of Defendants on the design-defect claims was

733, 739 (Ky. 2007) (“The Court will not render advisory opinions or consider matters which may or may not occur in the future.”) (internal citation omitted). 35 not clearly erroneous. As a result, we affirm the Court of Appeals’ holding

regarding the jury instructions on the failure-to-warn claims and the

apportionment of fault to the Martins, we further affirm the trial court’s

directed verdict to Defendants on the design-defect claims, but we reverse the

holding of the Court of Appeals in all other respects as to Primal Vantage.71

Accordingly, the trial court’s judgment is reversed, and this action is remanded

to the trial court for a new trial.

VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, JJ., sitting.

All concur. Thompson, J., not sitting.

71 The trial court’s directed verdict in favor of Dick’s Sporting Goods, Inc., is

undisturbed by this decision. The trial court’s directed verdict as to Dick’s Sporting Goods was not directly challenged in this appeal. As a result, we have not considered and do not reverse the trial court’s directed verdict on all claims against Dick’s Sporting Goods. 36 COUNSEL FOR APPELLANT/CROSS-APPELLEE, PRIMAL VANTAGE COMPANY:

Milton S. Karfis Clark Hill PLC

Griffin Terry Sumner Casey Wood Hensley Frost Brown Todd LLC

COUNSEL FOR APPELLEE/CROSS-APPELLANT, KEVIN O’BRYAN:

Ann B. Oldfather R. Sean Deskins Oldfather Law Firm

COUNSEL FOR APPELLEE/CROSS-APPELLANT SANTÉ O’BRYAN:

Paul A. Casi Jeff W. Adamson Paul A. Casi, II, P.S.C.

COUNSEL FOR APPELLEES/CROSS-APPELLEES, DENNIS I. AND MARGARET M. MARTIN:

Diane M. Laughlin Emily C. Lamb Bryce Lee Cotton Blackburn Domene & Burchett, PLLC