NANCY JENKINS v. JAMES W. TACKETT
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RENDERED:
SEPTEMBER 1, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001764-MR
NANCY JENKINS
APPELLANT
APPEAL FROM CARLISLE CIRCUIT COURT
HONORABLE WILLIAM SHADOAN, JUDGE
ACTION NO. 98-CI-00021
v.
JAMES W. TACKETT
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Nancy Jenkins (Jenkins) appeals from a trial
order and judgment entered June 21, 1999, in favor of James W.
Tackett (Tackett) in accordance with a verdict returned following
a jury trial.
We reverse and remand for a new trial.
In the evening of December 17, 1996, Jenkins was struck
by a vehicle driven by Tackett while attempting to cross U.S. 51
on foot.
The testimony at trial established that Jenkins, who
was wearing dark clothing, stepped into the path of Tackett’s
car.
Tackett testified that he did not see Jenkins until a split
second before the accident due to glare from the headlights of a
car coming from the opposite direction.
Jenkins testified that
she remembers attempting to cross the road and waking up in the
hospital several hours later.
Prior to trial, the parties entered into an agreed
order of settlement which provided in part:
[O]nly the issue of liability as between the
Plaintiff and the Defendant shall be tried.
Upon a fact finder’s determination subject to
standard appeal rights of either party that .
. . Tackett was not at fault for the
pedestrian/motor vehicle accident which is
subject matter of this Civil Action, the
Plaintiff’s Complaint shall be dismissed and
the Plaintiff shall take nothing from the
Defendant. In the alternative, upon a
determination of any percentage of fault at
all against . . . Tackett (one (1%) Percent
through One Hundred (100%) Percent) the
Defendant through his liability insurance
company . . . shall pay to the Plaintiff the
sum of $25,000, the limit of its liability,
which shall be a full satisfaction of
judgment.
At the close of proof, the trial court directed a
verdict against Jenkins as to the issue of her liability.
Instruction No. 3 of the jury instructions provided:
It was Nancy Jenkins’ duty in crossing the
street between intersections to exercise
ordinary care for her own safety, and to
yield the right-of-way to all vehicles on the
street, including James Wilbur Tackett’s
automobile.
You are instructed that as a matter of law,
Nancy Jenkins failed to comply with these
duties and that such factor was a substantial
factor in causing the accident.
Instruction No. 4 read as follows:
It was the duty of the defendant, James W.
Tackett, in driving his vehicle to exercise
ordinary care for the safety of other persons
using the street, and this general duty
included the following specific duties:
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(a) To keep a lookout ahead for persons in
front of him or so near his intended line of
travel as to be in danger of collision;
(b) To have his automobile under reasonable
control;
(c) To drive at a speed no greater than was
reasonable and prudent, having regard for
traffic and for the condition and use of the
street, and not exceeding 25 miles per hour;
(d) To sound his horn as a warning to the
plaintiff, Nancy Jenkins if you are satisfied
from the evidence that such precaution was
required by the exercise of ordinary care;
AND
(e) To exercise ordinary care generally to
avoid collision with other persons using the
street, including the plaintiff, Nancy
Jenkins.
If you are satisfied from the evidence that
the defendant, James W. Tackett, failed to
comply with one or more of these duties and
that such failure was a substantial factor in
causing the accident, you will find for the
plaintiff, Nancy Jenkins; otherwise you will
find for the defendant, James W. Tackett.
The jury returned a unanimous verdict in favor of
Tackett under Instruction No. 4.
The trial court entered a trial
order and judgment in favor of Tackett in accordance with the
jury’s verdict on June 21, 1999.
Following denial of her motion
for judgment notwithstanding the verdict or a new trial, Jenkins
filed this appeal.
Jenkins maintains that the trial court erred in
refusing to give the jury an instruction directing it to
apportion fault between Jenkins and Tackett.
Jenkins contends
that despite the fact that a directed verdict was granted against
Jenkins as to the question of whether she was at fault, the jury
should have been given an opportunity to apportion fault between
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Jenkins and Tackett.
In her brief on appeal, Jenkins argues that
“the absence of an apportionment instruction together with a
instruction that [she] was at fault was misleading to the jury in
that it was not given any choice but to return an all or nothing
verdict as [Tackett’s] responsibility for the injuries in this
case.
We agree.
Pursuant to KRS 411.182:
In all tort actions . . . involving fault of
more than one party to the action . . . the
court, unless otherwise agreed by all
parties, shall instruct the jury to answer
interrogatories . . . indicating:
(b) The percentage of the total fault of all
the parties to each claim that is allocated
to each claimant, defendant, third party
defendant, and person who has been released
from liability[.]
KRS 411.182(1)(b).
In Stratton v. Parker, Ky., 793 S.W.2d 817
(1990), the Kentucky Supreme Court stated:
The law has developed to the point that in
tort actions involving the fault of more than
one party . . . an apportionment instruction,
if requested, must be given whereby the jury
will determine the amount of the plaintiff’s
damage and the degree of fault to be
allocated to each claimant [and] defendant[.]
Stratton, 793 S.W.2d at 820 (emphasis added).
See also Reffitt
v. Hajjar, Ky. App., 892 S.W.2d 599 (1994)(ruling that giving of
apportionment instruction is mandatory upon request of either
party); Dix & Associates Pipeline Contractors, Inc., Ky., 799
S.W.2d 24 (1990)(holding that apportionment instruction is
required to be given if either party requests it).
A review of
the transcript pertaining to the jury instructions shows that
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counsel for Tackett requested an apportionment instruction; thus
it was erroneous for the trial court to refuse to give it.
We are mindful of the fact that the settlement
agreement between the parties required Tackett’s insurer to pay
$25,000 regardless of his percentage of fault in the event that
the jury found in Jenkins’s favor.
However, we agree with
Jenkins that the jury may have been confused by the instructions
given by the trial court.
Furthermore, the language of the
settlement agreement itself clearly contemplated the
apportionment of liability for the accident.
While the jury may
be instructed on remand that Jenkins’s negligence was “a
substantial factor in causing the accident,” the jury should also
be instructed to apportion fault percentages between Jenkins and
Tackett should it find that any breach of duty on behalf of
Tackett contributed to the accident.
We agree with Jenkins that
the absence of the apportionment instruction in this case may
have led the jury “to believe that if they found that [Tackett]
had breached his duties, he would be fully liable for all of
[Jenkins’s] damages” despite having been instructed that Jenkins
was, in fact, partly at fault in causing the accident.
Because we have decided that a new trial is warranted
due to the trial’s court’s failure to give an apportionment
instruction, we need not address Jenkins’s argument concerning
the failure of the trial court to dismiss a juror for cause.
Having considered the parties’ arguments on appeal, the
trial order and judgment entered by the trial court on June 21,
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1999, is reversed and this matter is remanded for a new trial in
accordance with the dictates of this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald R. Green
Paducah, KY
Steven C. Jackson
Paducah, KY
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