Estate of Emily Snow v. Commonwealth of Kentucky, Transportation Cabinet, Department of Highways ( 2022 )

RENDERED: OCTOBER 7, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1409-MR
ESTATE OF EMILY SNOW APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
v. HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 21-CI-00191
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS AND
KENTUCKY BOARD OF CLAIMS
F/K/A KENTUCKY CLAIMS
COMMISSION APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, MCNEILL, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: The Estate of Emily Snow appeals from a judgment of the
Boyle Circuit Court affirming a decision of the Kentucky Board of Claims in favor
of Commonwealth of Kentucky Transportation Cabinet, Department of Highways.
After our review, we affirm.
In the late night hours of June 29, 2014, 16-year-old Emily Snow was
killed in a one-car accident on KY 1856 in rural Boyle County. She was riding
without a seatbelt in the back seat when the car neared the end of a curve, crossed
the oncoming traffic lane, left the wet road, and struck a tree. Jacob Smith, the 18-
year-old driver, admitted to a deputy sheriff at the scene that he had been drinking
beer and that he was travelling too fast to negotiate the turn. The speed limit was
not posted, but the regulatory limit is 55 miles per hour. Signage consisted of a
single reflective chevron, mid-curve.
On June 29, 2015, the co-administrators of Snow’s estate (the Estate)
filed a wrongful death action with the Board of Claims against the Transportation
Cabinet. They alleged that Snow’s death was caused by the failure of the
Transportation Cabinet to post adequate signage to warn drivers of the “curvature
and grade of the road.” The Transportation Cabinet denied negligence and asserted
its immunity as a defense.
On February 13, 2019, an administrative hearing was conducted in
Boyle County. The parties presented testimony from various experts and lay
witnesses. For the Estate, Jerry Pigman, an engineer and crash reconstructionist,
testified (by deposition) that based upon his analysis, the curve would be
challenging to navigate at a speed in excess of 25 to 30 miles per hour. Because
the speed limit along the road was 55 miles per hour, Pigman felt that a right turn
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sign posted ahead of the curve was the minimum signage that he would have
recommended. He indicated that two additional chevron signs erected along the
curve would have guided drivers safely through it. Pigman acknowledged that
multiple passengers in a car generally proved distracting to teen drivers; that the
driver’s ability to drive safely was impacted by his consumption of alcohol; and
that the failure to engage seatbelts resulted in more severe injuries to passengers.
On cross-examination, Pigman admitted that relevant provisions of the
Manual of Uniform Traffic Control Devices (MUTCD), with which he was very
familiar, did not require the signage he recommended; instead, that manual
directed that an engineer (or one at his direction) could use his own judgment and
discretion with respect to traffic control devices placed on lightly travelled roads
like KY 1856. He specifically agreed that civil engineers (and those at their
direction) were expected to use their judgment and discretion when making
decisions regarding signage on a road scarcely travelled, adding, “I think that
engineering judgment is essentially discretionary decision making. . . .” Moreover,
he acknowledged that an engineer was authorized by the provisions of the
MUTCD to consider the crash history of a roadway before arriving at a decision
with respect to signage. He acknowledged that he had not considered this factor
before arriving at his opinion.
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Henry Cease, Jr., an accident reconstructionist, testified that the curve
should have been marked with a curve warning sign indicating a recommended
speed of 25 miles per hour along with multiple chevron signs in the curve. On
cross-examination, he acknowledged that he had no experience implementing or
interpreting the MUTCD and no expertise in the Transportation Cabinet’s policies,
practices, or procedures. His investigation indicated that the road banked properly
into the curve making it inherently easier to navigate.
The Transportation Cabinet admitted that it was responsible for the
maintenance of KY 1856 -- including signage. However, it denied any negligence
and argued that Snow’s death was caused by the negligence of others -- including
the driver. Moreover, it contended that it was immune from liability for any
negligence in the performance of its discretionary functions, specifically including
decisions regarding road signage on lightly travelled roadways.
Deputy Sheriff Phillip Dean testified that he responded to the crash
and investigated the incident. He indicated that KY 1856 was not known for traffic
accidents and confirmed that it was a rural roadway that was only lightly travelled.
Jeffrey Sparks, an engineering technologist with the Transportation
Cabinet, testified that KY 1856 was inspected for safety by the Boyle County
Maintenance Garage at least once per month. He indicated that foliage had been
trimmed from the sides of the roadway approximately one month before the fatal
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collision. He did not know when, why, or by whom the reflective chevron sign
had been posted at the curve.
Kenneth Robert Agent, a civil engineer, instructor, and researcher
employed by the University of Kentucky College of Engineering, testified that he
taught engineers and other transportation professionals various subjects related to
placement of traffic control devices and highway safety. Agent described KY
1856 as a “relatively narrow, very curvy road, very, very low average daily traffic.
. . .” He observed that the road was relatively flat at the site of the collision and
that given the “long tangent leading to the curve,” a driver could easily see it from
at least 200 feet with low beam headlights illuminated. He indicated that the sight
line was enhanced by the existence of a double centerline pavement marking that
would give a driver “delineation that [he is] going into a right-hand curve.”
Agent explained that the exercise of engineering judgment would not
indicate that the curve at the site of the collision required signage for several
reasons. First, the change in roadway alignment did not “violate [the driver’s]
expectancy” because “the road is just one curve after another.” Next, he noted that
a lack of any serious accident history or complaints about the safety of the road
would weigh in favor of a decision not to erect signage. Additionally, he observed
that the rural road was only very lightly travelled. In Agent’s opinion, “there was
[sic] plenty of visual ques [sic] to drive through the curve fine at that location
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without any signs.” Reviewing specific provisions of the MUTCD, Agent testified
that under these circumstances, decisions with respect to traffic control devices
placed at this location were absolutely a matter of discretion. He indicated that he
had been unable to determine when or how the single reflective chevron had come
to be placed in the curve.
Based upon the evidence presented, the hearing officer found that the
curve where the car left the roadway could be safely negotiated at a speed of
approximately 20 to 25 miles per hour. He further found as follows:
[Smith] would have already travelled about five miles on
this road that evening and gone around several similar
curves. [KY 1856] is lightly travelled . . . . There was
one other reported accident listed at this mile marker in a
nine-year span from 2009 through 2017. It is not clear
whether that accident was in this curve. There was no
evidence that the Department of Highways had notice of
any prior accidents at this location.
[KY 1856] is marked at this location with a yellow center
line and with one chevron for northbound traffic,
indicating a right-hand curve. This sign is placed on the
left side of the road, in the curve, and can be seen
depending on the season and how recently the foliage has
been trimmed, at a distance varying from approximately
150 to 300 feet. In June of 2014, the foliage was fully
out, but it had been trimmed about a month prior.
The hearing officer observed that the Department of Highways must
exercise ordinary care to keep the highways in a reasonably safe condition for
travel, noting, however, that it is not a guarantor of the public’s safety. Citing this
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Court’s opinions, he also noted that decisions concerning the placement of signs
and guardrails on our highways generally involve the exercise of discretion and
enjoy immunity from liability. However, he concluded that where decisions
violate a “known rule” or standard, state agencies are not entitled to immunity.
The hearing officer observed that “known rules” are well established
in the field of highway safety. Citing provisions of the MUTCD, the hearing
officer determined that turn signs, advisory speed signs, and chevrons on the
approach to this curve on a lightly travelled road “‘may’ be used, ‘based on
engineering judgment.’” With respect to lightly travelled roadways, he concluded
that the MUTCD expressly leaves signage decisions to engineer discretion. He
rejected the argument that once the Transportation Cabinet made a decision to
place a reflective chevron at this location, it triggered a ministerial duty to erect the
full complement of signage. “[T]he only established rules say that the decision is
discretionary.”
The hearing officer concluded that decisions made by the Highway
Department with regard to signage at this curve on KY 1856 were part of its
discretionary function and, consequently, that it was immune from liability for any
negligence associated with these decisions. The order that he entered on March 30,
2020, recommended that the claim be dismissed.
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In an order entered on July 28, 2020, the Board of Claims disagreed
and rejected the hearing officer’s recommendation. It found that “ministerial acts
that led to the engineering decision to place signs were either not performed or
performed negligently.” This finding was based on the testimony of the Estate’s
engineers indicating that the signage at the curve was insufficient to provide proper
warning of danger inherent in the curve. It ordered that the claim be remanded to
the hearing officer for a recommendation on damages.
Upon remand, the hearing officer entered an amended recommended
order as directed in which he recited that the Transportation Cabinet “was
negligent in the performance of certain ministerial acts, leading to its decision to
place only one warning sign in this curve, and that such negligence was a
significant factor in causing this accident.” He concluded that the driver, Jacob
Smith, was negligent by driving at a speed unsafe for the road conditions and that
Snow was negligent by failing to exercise ordinary care for her own safety (i.e., not
wearing a seatbelt). In an order entered on February 3, 2021, the hearing officer
recommended that liability be apportioned 30 percent to the Transportation
Cabinet; 60 percent to Smith; and 10 percent to Snow. He recommended judgment
against the Transportation Cabinet in the amount of $104,286.00.
In an order entered on May 3, 2021, the Board of Claims reversed its
original decision and now rejected the hearing officer’s amended recommendation
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that it had previously directed on remand. Its final order included the following
reasoning:
Although the Claimant agreed the decision to
install signage was a discretionary function, it argued that
the judgment required to evaluate whether signage is
necessary and sufficient in any particular location is a
ministerial function and subject to liability. The
Claimant’s position is that once the [Transportation
Cabinet] decided to install signage they had to use every
means necessary to ensure the signage was sufficient.
The Claimant offered testimony that the signage was
insufficient for the curve and argued that the actual steps
necessary to properly measure the curve, ball banks, etc.,
were not performed, and so there was a negligent
performance of the ministerial duty. However, there was
no testimony to prove whether proper measurements
were performed to support such a finding nor was there
any proof as to what ministerial steps are necessary to
form the basis of the engineering judgment regarding the
sufficiency of the signage.
The hearing officer noted in his original
recommendation that there was no testimony from either
party as to how long the chevron signage had been in this
curve, who made the decision to place it there, why there
was no other signage, or any other consideration that
went into signage at the subject location.
[The Transportation Cabinet] offered testimony
that since the Manual on Traffic Control Devices
(MUTCD) was adopted in 2009, and based on that
manual, it placed a priority on improving signage on
roads with more than 1000 vehicles per day. However,
the same MUTCD renders signage on roadways with less
than 1000 cars per day, discretionary, and based on
engineering judgment. The subject roadway was one
with less than 1000 cars per day. On these less travelled
roads, signage depends on whether there is an accident
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history at any particular location before [the
Transportation Cabinet] places additional signage. There
is a lack of competent proof that the subject roadway was
known to have any accident history that would place [the
Transportation Cabinet] on notice that additional signage
might be necessary.
The decision to place signage at the subject
location in this case, based on the proof, was made on
engineering judgment, which is a discretionary function,
and is not subject to the waiver of sovereign immunity.
There is also insufficient proof of any negligently
performed alleged ministerial duty in this case.
The Board of Claims ordered that the claim be dismissed.
On May 27, 2021, co-administrators of Snow’s Estate filed a petition
for judicial review in the Boyle Circuit Court. They argued that the final order of
the Board of Claims was not based on substantial evidence; that its conclusions of
law were erroneous; and that it acted beyond its authority.
In an order entered November 17, 2021, the Boyle Circuit Court
affirmed the decision of the Board of Claims to dismiss. It held that substantial
evidence supported the Board’s findings of fact and that it did not err in its
application of the law. This appeal followed.
On appeal, the Estate argues that the Boyle Circuit Court erred by
failing to conclude that it had shown that the Transportation Cabinet was negligent
in the performance of a ministerial act. We disagree.
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Because the Estate was unsuccessful before the Board, the Board’s
findings of fact must be accepted unless the evidence was so strong and
persuasive as to compel a finding in favor of the Estate. Commonwealth, Dep’t of
Highways v. Hoskins, 495 S.W.2d 177 (Ky. 1973). However, “[w]hen the outcome
of a case turns on an issue of law, . . . appellate review is de novo.” Western
Kentucky Coca-Cola Bottling Co., Inc. v. Revenue Cabinet, 80 S.W.3d 787, 790
(Ky. App. 2001).
The Commonwealth and its agencies and subdivisions are immune
from liability unless the Commonwealth has waived its immunity. Yanero v.
Davis, 65 S.W.3d 510 (Ky. 2001). Section 231 of the Kentucky Constitution
provides that “[t]he General Assembly may, by law, direct in what manner and in
what courts suits may be brought against the Commonwealth.” The Board of
Claims Act, KRS1 44.070 et. seq., provides for a limited waiver of sovereign
immunity for claims based on the negligent performance of ministerial acts by
officers, agents, or employees of the Commonwealth while acting within the scope
of their employment. Gaither v. Justice & Public Safety Cabinet, 447 S.W.3d 628(Ky. 2014). “In any appeal from a decision of the [Board of Claims], the critical
inquiry is whether the allegedly negligent act is discretionary or ministerial.”
Commonwealth v. Russell, 578 S.W.3d 747, 750 (Ky. App. 2019).
1
Kentucky Revised Statutes.
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The Supreme Court of Kentucky has held that if an act involves
“policy-making decisions and significant judgment,” it is discretionary; if it
involves “merely routine duties,” which “will typically be established by statutes
or regulations that very clearly and specifically set forth those actions that the
agency must take,” it is ministerial. Commonwealth, Transportation Cabinet,
Dep’t of Highways v. Sexton, 256 S.W.3d 29, 32-33 (Ky. 2008) (citations omitted).
A ministerial act “requires only obedience to the orders of others” and a duty that
is “absolute, certain, and imperative” whereas a discretionary act requires “the
exercise of discretion and judgment, or personal deliberation, decision, and
judgment.” Gaither, 447 S.W.3d at 633 (citation omitted).
It is undisputed that the Manual on Uniform Traffic Control Devices
is “the national standard for all traffic control devices installed on any street,
highway, or bicycle trail open to public travel[.]” 23 Code of Federal Regulations
(C.F.R.) § 655.603 (2010). The purpose of the MUTCD is to make uniform all
traffic control devices across the various jurisdictions within the United States.
KRS 189.337(2) requires the Department of Highways to “promulgate and adopt a
manual of standards” for control of traffic devices. To implement this provision,
the Transportation Cabinet issued 603 Kentucky Administrative Regulation (KAR)
5:050. Section 1 of the regulation directs that “[t]he standards and specifications
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set forth in the [MUTCD] shall apply to all traffic control devices . . . in
Kentucky.”
MUTCD Section 2C.06 provides a chart of road signs used to warn of
a change in roadway alignment. It creates specific standards for the use and
placement of signs signaling an upcoming curve in the roadway. However, these
standards are only applicable to roadways with more than 1,000 vehicles in
average daily travel. The provision authorizes the use and placement of standard
warning signs on little used roads. However, it sets no requirements nor does it
make any recommendations for warning signs erected on them -- except to advise
decision-makers that their use should be kept to a minimum. MUTCD Section
2C.02. Instead, the use and the placement of standard warning signs on lightly
travelled roads are expressly and explicitly left to “engineering judgment.”
“Engineering judgment” is defined by the MUTCD as:
the evaluation of available pertinent information, and the
application of appropriate principles, provisions, and
practices as contained in this Manual and other sources,
for the purpose of deciding upon the applicability,
design, operation, or installation of a traffic control
device.
The MUTCD directs that engineering judgment shall be exercised by an engineer
(or by an individual working under his supervision) through the application of
procedures and criteria established by the engineer. Documentation of engineering
judgment is expressly not required.
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While erecting roadway safety and traffic control measures is
manifestly part of the Transportation Cabinet’s regular duties, the decision on
whether to do so (and how) on a lightly travelled road is discretionary. See
Hammers v. Plunk, 374 S.W.3d 324, 330 n.3 (Ky. App. 2011) (holding that
“determinations involving such things as whether a guardrail or sign should be
placed in a certain area of roadway are discretionary”); Bolin v. Davis, 283
S.W.3d 752 (Ky. App. 2008) (holding that a county road engineer’s decision not to
install a guardrail was discretionary); Estate of Clark ex rel. Mitchell v. Daviess
County, 105 S.W.3d 841 (Ky. App. 2003) (holding that a decision not to install a
guardrail was discretionary).
There is no statute or regulation requiring the Department of
Transportation to install signage of any kind on little used roads like KY 1856.
Therefore, we cannot construe its evaluation of a road’s safety or its exercise of
engineering judgment as anything other than discretionary. Furthermore,
testimony indicated that the Transportation Cabinet is required to prioritize the use
of its resources. There was testimony that this rural road is regularly inspected;
that it has not been the scene of numerous collisions; that it was banked correctly;
and that the marking of the double centerline pavement adequately warned drivers
of the upcoming curve. These factors indicate that KY 1856 was not unreasonably
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dangerous absent additional signage and that the Transportation Cabinet used its
discretion in deciding where and how to erect its road safety signs.
Our analysis indicates that any decision to erect (or not) a curve
warning sign on this little-used roadway involved policy making and the exercise
of significant judgment. These types of decisions are not subject to the statutory
waiver of immunity. Consequently, there is no liability even where the decisions
could be viewed as negligent because they were discretionary rather than
ministerial.
Nevertheless, the Estate argues that the Transportation Cabinet is
liable for its failure to “exercise engineering judgment, take measurements, and
determine the appropriate speed in the placement of all signage.” It relies on our
holding in Commonwealth v. Estate of Franklin, No. 2014-CA-000201-MR, 2015
WL 2337844 (Ky. App. May 15, 2015), a recent, unpublished decision, in support
of its contention. We are not persuaded by reference to our decision in Estate of
Franklin because the critical facts underlying the issues considered are distinctly
distinguishable.
In Estate of Franklin, the Board of Claims found from the evidence
that an advisory speed sign (indicating a safe speed of 25 m.p.h.) posted in a curve
was gravely misleading given the unusually dangerous slope of the roadway and
the fact that the curve had been the scene of numerous crashes. We affirmed its
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conclusion that the Transportation Cabinet’s decision to merely mark an
improperly banked curve with a speed advisory sign rather than to reconstruct the
badly banked road was a discretionary act. However, we also affirmed its
conclusion that the Transportation Cabinet’s implementation of the specific
requirements of the MUTCD related to signage was a ministerial act -- specifically
including the exercise of engineering judgment and engineering studies where
circumstances demand. We agreed that the Transportation Cabinet was negligent
by failing to evaluate the existing advisory speed and curve signage on a roadway
that it should have known was unreasonably dangerous and that had been the scene
of numerous accidents -- at least one of which included a fatality.
In the case now before us, the Board of Claims found that no evidence
had been presented to indicate that the Transportation Cabinet failed to exercise its
discretion to place (or to retain) the single chevron in the curve on KY 1856 where
the car involved left the roadway. No evidence was presented to indicate that the
road was unreasonably dangerous (because of an error in its construction, for
example) or that it was made so by the placement of the single chevron. There was
no evidence to indicate that the placement of the chevron violated the requirements
of the MUTCD. Consequently, the Board of Claims did not err by concluding that
the Transportation Cabinet was immune from the Estate’s negligence claim.
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We affirm the order of the Boyle Circuit Court that affirmed the
holding of the Board of Claims dismissing this claim.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
COMMONWEALTH OF
J. Hadden Dean KENTUCKY, TRANSPORTATION
Danville, Kentucky CABINET:
Marlin A. Jones
Frankfort, Kentucky
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