Kevin O'Bryan v. Primal Vantage Company, Inc. ( 2022 )

RENDERED: AUGUST 18, 2022
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-MR, 2018-CA-0063-MR & 2018-CA-0106-MR
JEFFERSON CIRCUIT COURT NO. 12-CI-006326
V.
KEVIN O’BRYAN APPELLEE/CROSS-APPELLANT
AND
SANTÉ O’BRYAN APPELLEE/CROSS-APPELLANT
AND
DENNIS MARTIN AND
MARGARET MARTIN APPELLEES/CROSS-APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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 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. Upon review, we conclude 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. As a result, we affirm the Court of Appeals’
opinion in part, reverse in part, and remand the matter to the trial court for
further proceedings.
I. 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
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
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
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
3
percent of the fault to Primal Vantage and fifty percent of the fault to Kevin
O’Bryan. 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.
II. 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
4
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.
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
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)).
5
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
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
3 Id. (internal quotation marks omitted).
4 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
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
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.
Failure properly 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.
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”).
7
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
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.
7 Daugherty v. Commonwealth, 467 S.W.3d 222, 231 (Ky. 2015).
8 KRE 103(d).
8
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.
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. Of the other-
incidents evidence introduced at trial, some of the incidents involved
ladderstands made by other manufacturers, some of the incidents involved
accidents that occurred during installation of a ladderstand, and some
incidents involved accidents attributable to a broken ladder, not broken straps.
But we need not determine whether any of the 78 instances of other-accidents
or injuries introduced at trial satisfied the substantial-similarity test. Again,
the primary issue here is that the trial court failed in its gatekeeping function
to ensure that inadmissible evidence was not introduced. On remand, the trial
court is best positioned to make evidentiary determinations in the first
instance, and we take no position on whether any of the other-incidents proof
presented at trial is admissible on retrial.
9
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.9 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
warning which would be calculated to adequately guard against the inherent
danger.”10 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:
9 See discussion infra Part II.B.
10 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”).
10
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.
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:
11
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.
It is well-settled that “[a] jury is presumed to follow an admonition to
disregard evidence and the admonition thus cures any error.”11 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
11 Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
12
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
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.”12 And “the ‘bare bones’ of the jury instruction can
be ‘fleshed out by counsel in their closing arguments if they so desire.’”13 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
12 Sutton v. Commonwealth, 627 S.W.3d 836, 851 (Ky. 2021) (citing Olfice, Inc. v.
Wilkey, 173 S.W.3d 226, 229 (Ky. 2005)).
13 Id. (quoting Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974)).
13
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
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 till 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
14
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
possible new trial is not warranted. However, 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.”14 “The court
at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.”15 “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.”16
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. 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 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
14 Kentucky Rule of Civil Procedure (“CR”) 61.01.
15 Id.16 CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 69 (Ky. 2010).
15
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,
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. This error affected Primal Vantage’s
substantial rights and was not harmless. As a result, 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.17
17 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
16
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.”18
“[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.”19
Negligence claims focus on the conduct of the actor.20 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.”21 The manufacturer is not charged with hindsight
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 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).
19Tipton v. Michelin Tire Co., 101 F.3d 1145, 1149 (6th Cir. 1996) (applying
Kentucky substantive law).
20 Tipton, 101 F.3d at 1149.
21 Id. (quoting Byrd, 629 F. Supp. at 605).
17
regarding the potential risks involved in the design of the product under a
negligence theory.22
A strict-liability theory focuses on the condition of the product.23 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.”24
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.’25
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.26
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.27
22 Id. (citing Byrd, 629 F. Supp. at 605 n.5).
23 Tipton, 101 F.3d at 1149.
24C & 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).
25 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)).
26 Tipton, 101 F.3d at 1149 (citing Byrd, 629 F. Supp. at 605 n.5).
27 Ulrich, 532 S.W.2d at 200.
18
“Where [negligence] is actual, [strict liability] is postulated.”28 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.”29 Alternatively, “strict liability
may be imposed where the eventual defect or resulting harm was merely
speculative or hypothetical at best.”30 While strict liability does not rely upon
negligence, there is a close connection between the two theories based on the
term “unreasonably dangerous.”31 Both negligence and strict liability employ
the concept of reasonable foreseeability.32
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.
28 Id.
29 Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 55 (Ky. App. 1999).
30 Id.31 Ulrich, 532 S.W.2d at 200.
32 Id.
19
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.33 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.34 Admittedly, some authorities suggest that the
33Instruction 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.
34 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
20
distinction between the strict-liability and negligence theories is “of no practical
significance.”35 But, under certain circumstances, distinct causes of action
may arise under either a negligence theory or a strict liability theory.36 As
previously explained, negligence claims focus on the conduct of the actor, and
strict-liability claims focus on the condition of the product.37 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.38 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.”39 “The prevailing interpretation of ‘defective’ is that the product does
not meet the reasonable expectations of the ordinary consumer as to its
safety.”40 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).
35 See Sexton ex rel. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336 (4th Cir.
1991) (applying Kentucky law).
36 Montgomery Elevator Co., 676 S.W.2d at 780.
37 Tipton, 101 F.3d at 1149.
38 Ulrich, 532 S.W.2d at 200 (citations omitted).
39 Id.
40 Id.
21
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.”41 “But while simple instructions are preferred,
correct and complete instructions are required.”42 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.”43 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.
41 Osborne v. Keeney, 399 S.W.3d 1, 13 (Ky. 2012).
42 Id.43 676 S.W.2d at 780–81 (internal quotations omitted) (emphasis added).
22
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 . . . .”44 KRS 150.645 “offer[s] protections for
landowners who invite individuals onto their property for recreational use of
land.”45
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.”46
Ultimately, “[w]hether fault can be apportioned against someone with absolute
immunity from liability is determined by construing the statute.”47 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
44 KRS 150.645(1).
45 Est. of David v. Pounds, 553 S.W.3d 262, 265–66 (Ky. App. 2018).
46 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.”).
47 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).
23
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.”48
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.’”49 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
48 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)).
49 Regenstreif v. Phelps, 142 S.W.3d 1, 6 (Ky. 2004) (quoting Stratton v. Parker,
793 S.W.2d 817, 820 (Ky. 1990)).
24
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.50
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.’”51 “As a reviewing
court, we ‘must ascribe to the evidence all reasonable inferences and
deductions which support the claim of the prevailing party.’”52 A directed
50 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).
51Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 285 (Ky. 2014) (quoting Bierman v.
Klapheke, 967 S.W.2d 16, 18 (Ky. 1998)).
52 Id. (quoting Bierman, 967 S.W.2d at 18).
25
verdict is appropriate “where there is no evidence of probative value to support
an opposite result” because “the jury may not be permitted to reach a verdict
upon speculation or conjecture.”53
The ruling of the trial court regarding whether to grant a directed verdict
will only be disturbed when clearly erroneous.54 A trial court’s findings are
clearly erroneous when not supported by substantial evidence.55 “Substantial
evidence is evidence that a reasonable mind would accept as adequate to
support a conclusion and evidence that, when taken alone or in the light of all
the evidence, has sufficient probative value to induce conviction in the minds of
reasonable men.”56
To prevail on a design-defect claim, a plaintiff must present proof of “an
alternative safer design, practicable under the circumstances.”57 “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
53 Id. (internal quotations and alteration omitted).
54 Id.
55 Commonwealth v. Deloney, 20 S.W.3d 471, 474 (Ky. 2000).
56 Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotations and
alterations omitted).
57 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.”).
26
products.”58 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
determine whether ... the manufacturer exercised reasonable care
in making the design choices it made.”59
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.
Here, the trial court’s directed verdict in favor of Defendants on the
design-defect claims is supported by substantial evidence and not clearly
erroneous. 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,
58 Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003).
59 Id. (quoting Gregory v. Cincinnati Inc., 538 N.W.2d 325, 329–30 (Mich. 1995)).
27
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.
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.”60 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.61
60 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)).
61 Nichols, 602 S.W.2d at 433.
28
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.62 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
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 it was clearly erroneous for the trial court to
conclude that chains are not a safer, practical alternative to the use of 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
62 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.
29
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. As a result, it was not clearly erroneous for the trial court to
conclude that the Lockjawz device was not a feasible alternative design.63
In conclusion, the trial court’s directed verdict in favor of Defendants on
the design-defect claims was not clearly erroneous. So 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
63 A later-manufactured product may provide proof of a safer alternative design
where the new product was or could have been available to the industry at the time of
production. But Kevin argues that the Lockjawz device at issue here was “not based
on any new or innovative technology or design.” The problem is that Kevin failed to
provide sufficient proof that the Lockjawz device was a safer alternative to
polypropylene straps or that it was a practical alternative in the industry at the time
this ladderstand was produced.
30
to be presented at trial.64 While a spouse’s claim for loss of consortium is an
independent cause of action,65 it is not a separate injury, but is derivative of
the injured spouse’s personal-injury claim.66 So, on retrial, Santé O’Bryan will
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.67
64 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.”).
65 Floyd v. Gray, 657 S.W.2d 936, 938 (Ky. 1983).
66Daley 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”).
67 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.
31
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.68
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. Again, we take no
68 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
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).
32
position in this decision on whether other-incidents evidence is discoverable
and admissible on retrial.
III. 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
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.69
69 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.
33
Accordingly, the trial court’s judgment is reversed, and this action is remanded
to the trial court for a new trial.
All sitting. All concur.
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
34