author: Justice SCHRODER.

text:
    Emmett E. COOMER, Appellant, v. CSX TRANSPORTATION, INC., Appellee.
    No. 2008-SC-000784-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Alva A. Hollon, Jr., John Oaks Hollon, Sams & Hollon, P.A., Jacksonville, FL, Thomas Ira Eckert, Hazard, KY, Counsel for Appellant.
    Edward H. Stopher, Darryl S. Lavery, Boehl, Stopher & Graves, LLP, Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

Appellant Emmett Coomer appeals from a summary judgment in favor of Appellee CSX Transportation, Inc. (CSX) based on the doctrine of res judicata. We conclude that a genuine issue of material fact exists as to when Coomer’s second cause of action accrued. Therefore, summary judgment was inappropriate on the issue of claim preclusion. We also conclude that Coomer’s claim is not barred by issue preclusion. Therefore, we reverse the opinion of the Court of Appeals and remand to Perry Circuit Court.

I. BACKGROUND

Coomer has worked for CSX for over 20 years in a number of general labor positions, including most recently as a track-man. On October 8, 2001, Coomer filed suit against CSX under the Federal Employers’ Liability Act (FELA) in Jefferson Circuit Court. In his Jefferson Circuit suit, Coomer alleged that he suffered from carpal tunnel syndrome and ulnar neuro-pathy as a result of repetitive and cumulative occupational trauma to his hands, wrists, and arms. As required for a successful claim under FELA, Coomer alleged that his injuries were the result of CSX’s negligence, including failure to provide a reasonably safe workplace, failure to warn of the risks posed by job duties, and failure to properly supervise and enforce safety procedures.

Coomer also suffered from pain in his neck, back, shoulders, and knees. According to Coomer, while his Jefferson Circuit case was pending, he learned for the first time that this pain was connected to his employment with CSX. On October 4, 2002, Dr. Craig Beard, one of Coomer’s physicians, wrote a letter stating that Coomer’s neck, back, and knee pain was “50% related to his job.”

Attorneys for Coomer and CSX discussed the possibility of Coomer amending his Jefferson Circuit complaint to include negligence claims related to his neck, back, shoulder, and knee pain. In a letter to Coomer’s counsel dated June 2, 2003, counsel for CSX stated:

As I indicated, an independent medical exam has already been conducted on your client and any additional [injuries] would necessitate another independent medical exam. Furthermore, the addition of injuries at this point would jeopardize the trial date of July 29, 2003. Accordingly, I maintain my objection to any amendment to the Complaint. Should you and your client wish to pursue a cause of action for any injuries in addition to those set forth in your initial Complaint, you will need to file a separate action.

Coomer never filed a motion to amend his Jefferson Circuit complaint.

On June 24, 2003, Coomer filed the instant case — a second FELA action in Perry Circuit Court. The Perry Circuit complaint alleged Coomer suffered from neck, back, shoulder, and knee pain as a result of repetitive and cumulative occupational trauma. The Perry Circuit complaint also alleged that these injuries were a result of negligence by CSX, including failure to provide a reasonably safe workplace, failure to monitor and warn, and failure to take measures to reduce possible trauma.

The Jefferson Circuit Court granted summary judgment in favor of the defendant on July 21, 2003, finding that Coomer had failed to produce any evidence of negligence on the part of CSX. On March 31, 2006, CSX filed a motion for summary judgment in Perry Circuit Court, arguing that the Perry Circuit case was barred by the doctrine of res judicata as a result of the disposition of the Jefferson Circuit case.

The Perry Circuit Court granted CSX’s mdtion for summary judgment on May 2, 2006. The court found that Coomer’s claims were barred by the doctrine of res judicata, and CSX had demonstrated all essential elements of both issue preclusion and claim preclusion. Specifically, the court concluded that the injuries at issue arose out of the same transactional nucleus of facts as in the Jefferson Circuit case, i.e. excessive and harmful repetitive stress and cumulative trauma over the course of Coomer’s career at CSX. The court went on to state that "Plaintiff is therefore barred as matter of law, based upon the doctrine of res judicata, from splitting his cause of action (and in particular, splitting his damages) between the Jefferson Circuit Court and the Perry Circuit Court.”

On motion to vacate summary judgment, the Perry Circuit Court accepted an affidavit from Tyler Kress, Ph.D, a board certified ergonomist. Dr. Kress stated that “the mechanism of injury for back injury for Mr. Coomer is primarily lifting/load-related as opposed to the primary mechanism of injury to his upper extremity, which is use of handtools and vibration.”

The Perry Circuit Court ultimately denied Coomer’s motion to vacate summary judgment. The Court of Appeals then affirmed the judgment of the Perry Circuit Court. This Court has now granted discretionary review to determine whether Coomer’s Perry Circuit claims are barred by the doctrine of res judicata.

II. ANALYSIS

Coomer argues that the Perry Circuit Court erred in granting summary judgment on the issue of res judicata, and that the Court of Appeals erred in affirming that ruling. “The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” “An appellate court need not defer to the trial court’s decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved.”

The doctrine of res judicata “stands for the principle that once the rights of the parties have been finally determined, litigation should end.” It is “an affirmative defense which operates to bar repetitious suits involving the same cause of action.” The doctrine is comprised of two subparts: claim preclusion and issue preclusion.

A. Claim Preclusion and the Rule Against Splitting Causes of Action

For further litigation to be barred by claim preclusion, three elements must be present: (1) identity of the parties, (2) identity of the causes of action, and (3) resolution on the merits. As in most cases involving claim preclusion, the only element in dispute in this case is the second — identity of the causes of action.

Closely related is the rule against splitting causes of action. The rule, “found in Restatement (Second) of Judgments, §§24 and 26, is an equitable rule, limiting all causes of action arising out of a single ‘transaction’ to a single procedure.” It rests upon the concept that “parties are required to bring forward their whole case” and may not try it piecemeal. Therefore, it “applies not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

“The key inquiry in deciding whether the lawsuits concern the same controversy is whether they both arise from the same transactional nucleus of facts.” Both of Coomer’s complaints include broadly pled allegations that CSX failed to provide him with a reasonably safe workplace over the course of his career. Both complaints allege cumulative, repetitive stress injuries that occurred over the course of his career. Because of the nature of Coomer’s injuries, there are no single, distinct transactions that he alleges to be torts. Rather, CSX’s allegedly negligent conduct occurred over the course of many years, and was repetitive and cumulative in nature. Because of the broad nature of Coomer’s allegations of negligence, his entire career must be considered a single “transaction.” The injuries alleged in each of Coomer’s complaints therefore arose from the same transactional nucleus of facts.

However, the rule against splitting causes of action is an equitable rule, and it is subject to a number of exceptions. For example, the rule does not necessarily bar a subsequent suit on “matters which were ‘not germane to, implied in or essentially connected with the actual issues in the case....’ ” Nor does the rule apply to a cause of action before it accrues.

As this Court recognized in Lip-steuer v. CSX Transportation, Inc., the “discovery rule” applies to FELA cases. Therefore, under FELA, “a cause of action accrues when a plaintiff knows or, in the exercise of reasonable diligence, should know of both the injury and its cause.”

The Court of Appeals concluded that, even viewing the facts most favorably to Coomer, his cause of action for neck, back, shoulder, and knee injuries (the subject of the Perry Circuit case) accrued on October 4, 2002, when Dr. Beard wrote a letter linking Coomer’s pain to his work at CSX. This date places the accrual one year after Coomer filed his Jefferson Circuit suit and approximately nine months before that case was dismissed. Therefore, the Court of Appeals reasoned, Coomer should have amended his Jefferson Circuit complaint to include these additional injuries, and his failure to do so means that a second suit is barred by res judicata. Coomer argues that applying res judicata to his neck, back, shoulder, and knee injuries improperly shortened his three-year statute of limitations under FELA, thus infringing on his substantive federal rights. We agree with Coomer’s basic argument, but on slightly different grounds.

In Capital Holding Corp. v. Bailey, a couple who had been exposed to asbestos in a building sued the building owner both for negligence and for outrageous conduct causing severe emotional distress. This Court held that, because the couple had not suffered any physical injury from the exposure, their negligence cause of action had not yet accrued. In addressing the couple’s argument that the rule against splitting causes of action required that both the negligence and outrageous conduct claims be brought at the same time, this Court explained:

The rule against splitting causes of action! L found in Restatement (Second) of Judgments, §§24 and 26, is an equitable rule, limiting all causes of action arising out of a single “transaction” to a single procedure. But it has a number of exceptions, and the present situation provides such an exception because the plaintiffs cannot sue on the negligence claim before the cause of action accrues. This is the same equitable consideration that underlies the decision in the Louisville Trust Co. v. Johns-Manville Products, [580 S.W.2d 497 (Ky.1979)] case, extending the discovery rule to a claim otherwise cut off by a statute of limitations, and it is a corollary to our refusal to recognize a statute of repose cutting off a cause of action before it exists (see Tabler v. Wallace, [704 S.W.2d 179 (Ky.1985) ] ).

Therefore, the rule against splitting causes of action does not apply to claims that have not yet accrued. We see no difficulty applying principles of equity to extend this exception to causes of action that accrue while litigation is pending.

“According to all federal Circuit Courts of Appeal that have addressed this issue ... claim preclusion is measured by claims that had accrued by the time of the original pleading in the earlier action.” Thus, the bar on bringing any claim which “might have been brought forward at the time” is limited to “claims in existence at the time the original complaint is filed or claims actually asserted by supplemental pleadings or otherwise in the earlier action.”

These decisions are based on the permissive, non-mandatory language of Federal Rule of Civil Procedure 15 (the federal equivalent of CR 15). “[CR] 15 relates to amended and supplemental pleadings, and in substance is identical to FRCP 15.” Ordinarily, when new events transpire, a plaintiff would supplement the original complaint under CR 15.04. But if the plaintiff failed to do so, those claims would not be barred by res judicata, because the events transpired after the filing of the original complaint.

This case is somewhat unusual, in that Coomer’s neck, back, shoulder, and knee injuries occurred prior to the date he filed his Jefferson Circuit complaint, but allegedly did not accrue until after that date. The proper method for Coomer to include those injuries in his complaint would have been to amend the Jefferson Circuit complaint pursuant to CR 15.01 (rather than by supplementing his complaint pursuant to CR 15.04). However, the same equitable considerations apply, and Coomer was not required to include injuries that accrued after the date he filed the Jefferson Circuit suit. Therefore, if Coomer’s cause of action for his neck, back, shoulder, and knee injuries accrued after the date he filed the Jefferson Circuit complaint, then he would not be barred by res judicata from bringing his later Perry Circuit suit for those injuries.

The time when a plaintiff is put on notice about the cause of his injury is a question of fact to be answered by a jury. Therefore, on remand, if this case reaches trial, the jury would be required to make a finding as to when Coomer knew, or in the exercise of reasonable diligence should have known, of both his injury and its cause. If a jury finds that this occurred before Coomer filed his Jefferson Circuit case, then he would be barred by res judicata from asserting those claims in Perry Circuit Court. But if this occurred after the Jefferson Circuit filing, then res judicata would not apply.

B. Issue Preclusion

The second portion of the doctrine of res judicata is issue preclusion (sometimes referred to as collateral estop-pel). Issue preclusion requires four elements. First, (1) “the issue in the second case must be the same as the issue in the first case.” In addition, the issue must have been (2) actually litigated, (3) actually decided, and (4) necessary to the court’s judgment. Unlike claim preclusion and the rule against splitting causes of action, which apply broadly to any claim which “might have been brought forward at the time[,]” issue preclusion requires that “[t]he issues in the former and latter actions ... be identical.”

In this case, we believe that the fact that Coomer has asserted different mechanisms of injury in each case is sufficient to avoid the bar of issue preclusion. If this were not true, then a single ruling on CSX’s negligence would apply to any and all claims of negligence against CSX in the future. In the Jefferson Circuit case, Coomer asserted negligence related to excessive tool vibration, which allegedly resulted in carpal tunnel syndrome and ulnar neuropathy. In the instant Perry Circuit case, Coomer has asserted negligence related to lifting and loading, allegedly resulting in neck, back, shoulder, and knee injury. These are different issues of negligence, and issue preclusion therefore does not apply.

C. Equitable Estoppel

Finally, Coomer argues that CSX should be estopped from asserting the doctrine of res judicata, based on the letter from CSX’s counsel to Coomer’s counsel, stating, “Should you and your client wish to pursue a cause of action for any injuries in addition to those set forth in your initial Complaint, you will need to file a separate action.”

The essential elements of equitable es-toppel are[:] (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based, thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

If Coomer’s cause of action accrued after he filed the Jefferson Circuit suit, then, as previously discussed, res judicata would not apply, and Coomer’s equitable estoppel argument is moot. If Coomer’s cause of action accrued prior to the filing of the Jefferson Circuit suit, then a second suit would have been barred by res judicata long before CSX’s counsel wrote the letter in question. Thus, there would be no detrimental rebanee.

III. CONCLUSION

Because a genuine issue of material fact exists, summary judgment cannot be granted on the basis of res judicata under federal precedents pertaining to FELA actions. Therefore, the opinion of the Court of Appeals and the judgment of the Perry Circuit Court are reversed. The case is hereby remanded to the Perry Circuit Court for proceedings consistent with this opinion.

All sitting. All concur.

      . 45 U.S.C. § 51, etseq.

      . The Perry Circuit Court stayed proceedings while the Jefferson Circuit case was on appeal. On July 30, 2004, the Court of Appeals affirmed the judgment of the Jefferson Circuit Court.

      . Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.1996). See also Pearson ex rel. Trent v. National Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky.2002); Hallahan v. The Courier-Journal, 138 S.W.3d 699, 704 (Ky.App.2004).

      . Hallaban, 138 S.W.3d at 705.

      . Slone v. R & S Mining, Inc., 74 S.W.3d 259, 261 (Ky.2002).

      . Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464 (Ky.1998).

      . Id. at 464-65.

      . Id. at 465.

      . The rule against splitting causes of action has been described as "a subsidiary of the doctrine of res judicata.” Watts ex rel. Watts v. K, S & H, 957 S.W,2d 233, 236 (Ky.1997). Essentially, it is one aspect to be considered when determining whether there is identity of the causes of action. In determining whether there is identity of the causes of action, Kentucky courts apply the "transactional” approach from the Restatement (Second) of Judgments, § 24. See Smith v. Bob Smith Chevrolet, Inc., 275 F.Supp.2d 808, 813 (W.D.Ky.2003) (applying Kentucky law). See also Yeoman, 983 S.W.2d at 465 ("The key inquiry in deciding whether the lawsuits concern the same controversy is whether they both arise from the same transactional nucleus of facts.”). "Thus, the rule against splitting claims is nothing more than that aspect of res judicata which requires the court to determine the scope of the prior claim; i.e., to decide if the second action involves issues which should have been litigated in the first action, but were not.” Harris v. Ashley, 165 F.3d 27, 1998 WL 681219, at *3 (6th Cir. Sept. 14, 1998) (applying Kentucky law).

      . Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 193 (Ky.1994).

      . Arnold v. K-Mart Corp., 747 S.W.2d 130, 132 (Ky.App.1988) (quoting Hays v. Sturgill, 302 Ky. 31, 193 S.W.2d 648, 650 (1946)).

      . Id.

      . Yeoman, 983 S.W.2d at 465.

      . Capital Holding, 873 S.W.2d at 193. See also Restatement (Second) of Judgments § 26 (1982) (listing exceptions to the general rule).

      . Watts, 957 S.W.2d at 237 (quoting Hays, 193 S.W.2d at 648).

      . Capital Holding, 873 S.W.2d at 193.

      . 37 S.W.3d 732, 737 (Ky.2000) (citing Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)).

      . Lipsteuer, 37 S.W.3d at 737.

      . 45 U.S.C. § 56.

      . 873 S.W.2d at 190.

      . Id. at 193.

      . Id.

      . Camus v. State Farm Mut. Auto. Ins. Co., 151 P.3d 678, 683 (Colo.Ct.App.2006) (Webb, J., concurring) (collecting cases). See, e.g., Rowe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 530 (6th Cir.2006) ("[R]es judicata does not apply to claims that were not ripe at the time of tire first suit.”); Mitchell v. City of Moore, 218 F.3d 1190, 1202-03 (10th Cir. 2000); Baker Group, L.C. v. Burlington N. & Santa Fe Ry. Co., 228 F.3d 883, 886 (8th Cir.2000) ("It is well settled that claim preclusion does not apply to claims that did not arise until after the first suit was filed.”) (emphasis in original) (applying Kansas law); Florida Power & Light Co. v. United States, 198 F.3d 1358, 1360 (Fed.Cir.1999); Fleming v. Universal-Rundle Corp., 142 F.3d 1354, 1358 (11th Cir.1998); Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir.1997); Sec. & Exch. Comm’n. v. First Jersey Sec., Inc., 101 F.3d 1450, 1464 (2d Cir. 1996); Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.1992) (applying Alabama law); Los Angeles Branch NAACP v. Los Ange-les Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir. 1984) (en banc) (applying California law).

      . Egbert v. Curtis, 695 S.W.2d 123, 124 (Ky.App.1985).

      . Manning, 953 F.2d at 1360 (emphasis in original) (footnote omitted).

      . See Manning, 953 F.2d at 1360 (“Under the Federal Rules, the filing of supplemental pleadings is optional for the plaintiff; the existence of the doctrine of res judicata does not make the filing of supplements mandatory. The doctrine of res judicata governs what is to be done about claims that should have been brought in an earlier case, but the doctrine does not dictate which claims should have been brought earlier. Other laws, such as Federal Rule of Civil Procedure 15, govern that issue.”) (emphasis in original).

      . 6 The late Kurt A. Philipps, Jr., David V. Kramer, & David W. Burleigh, Kentucky Practice, Rules of Civil Procedure Annotated, Rule 15.01 (6th ed.2005).

      . See id., Rule 15.04 ("Amended pleadings relate to matters that occurred prior to the filing of the original pleading and replace them entirely. A supplemental pleading relates to events that have occurred since the pleading to be altered.”).

      . See Lipsteuer, 37 S.W.3d at 737.

      . See id.

      . Yeoman, 983 S.W.2d at 465 (citing Restatement (Second) of Judgments § 27 (1982)).

      . Id.

      . Egbert, 695 S.W.2d at 124.

      . Yeoman, 983 S.W.2d at 465.

      . Fluke Corp. v. LeMaster, 306 S.W.3d 55, 62 (Ky.2010) (citing Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Gov’t, 265 S.W.3d 190, 194-95 (Ky.2008)) (alterations in original).


source: Caselaw Access Project

author: Justice SCHRODER. ABRAMSON, J.,

license: Public Domain

text:
    Christopher Shiloh GAMBLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000669-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Linda Roberts Horsman, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General’s Office, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

In this case, we are called upon to interpret KRS 515.020(l)(c), which aggravates second-degree robbery to first-degree robbery when the defendant “[u]ses or threatens the immediate use of a dangerous instrument. ...” We conclude that the trial court did not err in denying a directed verdict motion on the charge of first-degree robbery under KRS 515.020(l)(c), where the defendant threatened the use of a gun in the course of a bank robbery.

On February 7, 2007, a man later identified as Appellant Christopher Gamble walked into the Alexandria Drive branch of Chase Bank in Lexington with his head and face covered. Natalie Lindgren, an assistant manager, was working behind the teller window, and her manager Lynn Dowdy was standing nearby. Lindgren felt threatened by the man, and immediately pressed her silent alarm. Gamble walked to Lindgren’s window, passing her a bag and a note that read, “This is a robbery. I have a gun. Quietly empty your drawer fast.” Gamble also told Lind-gren, “I have a gun.” Lindgren testified that she believed Gamble had a gun, though she never saw one. Lindgren placed money, including “bait money,” and a dye pack in the bag. As Gamble left, he told Lindgren, ‘You just saved your life.” Gamble’s hands remained in plain view the entire time, and, according to Lindgren, he never placed his hands in his pockets.

Police quickly apprehended Gamble and obtained his aunt’s consent to search her apartment, where Gamble had been living. They recovered Gamble’s dye-stained clothes; $3,516 in cash; and the torn-up robbery note. The bait money was found in a trash can near the bank. No gun was ever recovered.

In Gamble’s taped statement to police, he admitted to robbing the bank and passing the note to Lindgren. However, Gamble denied making any threatening statements, and he stated that he did not actually have a gun. Testifying in his own defense at trial, Gamble again denied being armed and denied making any statements other than what he wrote in the note.

Defense counsel moved for a directed verdict on the first-degree robbery charge, arguing there was no evidence Gamble was actually armed. The trial court denied the motion. The jury was instructed on fírst- and second-degree robbery, and returned a verdict finding Gamble guilty of first-degree robbery. The trial court imposed a sentence of 12 years’ imprisonment, consistent with the jury’s recommendation. The Court of Appeals affirmed Gamble’s conviction, and this Court granted discretionary review.

The sole issue before this Court is whether the trial court erred in denying Gamble’s motion for a directed verdict on the charge of first-degree robbery. The standards for the granting and review of a directed verdict motion are well-established.

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

KRS 515.020 (the first-degree robbery statute), incorporates all the elements of second-degree robbery, but also requires one of three aggravating circumstances, which are listed in KRS 515.020(l)(a), (b), and (c):

(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.
(2) Robbery in the first degree is a Class B felony.

Gamble was indicted under KRS 515.020(l)(c) for threatening the immediate use of a dangerous instrument. This Court has rarely had occasion to discuss subsection (c). Therefore, much of our first-degree robbery caselaw, which primarily interprets subsection (b), has little applicability to this case. Unlike subsection (b), which requires that the defendant be armed with a deadly weapon at the time of the robbery, subsection (c) requires that a dangerous instrument be “actually used or threatened to be immediately used upon some person.”

The commentary to KRS 515.020 suggests that the definitions of “deadly weapon” and “dangerous instrument” were intended to be mutually exclusive. However, shortly after the adoption of the current Penal Code, this Court held, “Though not every ‘dangerous instrument’ is a ‘deadly weapon,’ a ‘deadly weapon’ ordinarily is a ‘dangerous instrument’ as well.” This interpretation is supported by the plain wording of KRS 500.080(8), which defines a “dangerous instrument” as

any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury....

Turning to the instant case, drawing all fair and reasonable inferences in favor of the Commonwealth, Gamble entered Chase Bank, and handed Lindgren a note that said, “This is a robbery. I have a gun. Quietly empty your drawer fast.” Gamble also verbally stated, “I have a gun” and told Lindgren after the robbery, “You just saved your life.” Gamble specifically referenced a gun, threatened to use it, and implied that he would have used it had Lindgren not cooperated. Therefore, Gamble’s statements amounted to threatening the immediate use of a gun.

Gamble later denied being armed, and denied saying “I have a gun.” The evidence of Gamble’s statements created a jury question as to whether Gamble was armed with a gun at the time of the robbery. Drawing all fair and reasonable inferences in favor of the Commonwealth, a reasonable juror could conclude that Gamble was armed. It is therefore reasonable to conclude that the gun was a dangerous instrument, i.e., readily capable of causing death or serious physical injury under the circumstances in which it was threatened to be used.

In support of his argument, Gamble cites Williams v. Commonwealth, In Williams, the defendant robbed a convenience store, pointed to some sort of unidentified bulge in his pocket, and cautioned to the 'clerk, “Do you want your life?” The clerk testified that he believed “maybe he ... had a weapon or something.” No gun was ever recovered. This Court held that “[wjithout an instrument’s ever being seen, an intimidating threat albeit coupled with a menacing gesture cannot suffice to meet the standard necessary for a first-degree robbery conviction.”

Williams, however, is distinguishable from this case. First, it is not clear under which subsection of the first-degree robbery statute Williams was indicted. More importantly, unlike Gamble, the defendant in Williams never specifically stated that he had a weapon or dangerous instrument of any sort. He simply pointed to a bulge in his pocket and asked, “Do you want your life?” By contrast, Gamble specifically stated that he had a gun, both in writing and verbally. This amounts to threatening the immediate use of a dangerous instrument. The defendant in Williams, by contrast, made only vague threats.

Under the evidence as a whole, it was not clearly unreasonable for a jury to find that Gamble threatened the immediate use of a dangerous instrument. Therefore, it was not clearly unreasonable for the jury to find Gamble guilty of first-degree robbery under KRS 515.020(l)(c). The trial court did not err in denying Gamble’s motion for a directed verdict. For the foregoing reasons, the decision of the Court of Appeals is affirmed.

All sitting. All concur. ABRAMSON, J., concurs by separate opinion.

ABRAMSON, J.,

concurring:

I concur with the majority opinion but write separately to observe that Swain v. Commonwealth, 887 S.W.2d 346 (Ky.1994), cited in footnote 4, actually involved five separate robberies. The evidence at trial established that in one robbery Swain referred to a gun, which no one saw, and then demanded money. Id. at 348. In upholding the denial of a directed verdict on that first-degree robbery charge, the Swain court relied solely on Merritt v. Commonwealth, 386 S.W.2d 727 (Ky.1965), a case, which was recently overruled in Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.2010). Today, we clarify that the same result follows from the plain language of KRS 515.020(l)(c).

      . Lindgren and Dowdy offered slightly different testimony as to what Gamble said. Both testified, however, that Gamble said, "I have a gun.”

      . Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).

      . KRS 515.030 (the second-degree robbery statute) reads:
      (1) A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft. (2) Robbery in the second degree is a Class C felony.

      . See, e.g., Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.2010); Shegog v. Commonwealth, 142 S.W.3d 101 (Ky.2004); Dillingham v. Commonwealth, 995 S.W.2d 377 (Ky.1999); Swain v. Commonwealth, 887 S.W.2d 346 (Ky.1994); Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky.1976) (all interpreting KRS 515.020(l)(b)).

      . See KRS 500.080(4) (defining "deadly weapon”).

      . KRS 515.020 cmt.

      . "In combination, the two provisions distinguish between two types of weapons, one having no apparent usefulness except as a weapon [‘deadly weapon’], and the other having a legitimate purpose but still capable of dangerous use ['dangerous instrument'].” Id. (brackets in original).

        .Whorton v. Commonwealth, 570 S.W.2d 627, 631 (Ky.1978), rev'd on other grounds, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), overruled on other grounds by Polk v. Commonwealth, 679 S.W.2d 231 (Ky.1984). See also Wilburn, 312 S.W.3d at 329. ("[M]any items used in a robbery that do not meet the definition of ‘deadly weapon’ under KRS 500.080(4), as we interpret it herein, would easily qualify as a ‘dangerous instrument' under KRS 500.080(3).").

      . KRS 500.080(3).

      . 721 S.W.2d 710 (Ky.1986).

      . Mat 711

      . Id.

      . Id. at 712.

      . The opinion refers to "first-degree (armed) robbery”, id. at 711, and notes that "[t]he indictment specified that Mr. Williams committed the robbery while armed.” Id. at 713. This suggests that Williams was indicted under KRS 515.020(l)(b). However, Williams also objected to a definition of "dangerous instrument” in the jury instructions, which suggests that he may have been indicted under KRS 515.020(l)(c) as well. Id. at 711.


text:
    LOUISVILLE METRO HEALTH DEPARTMENT, Appellant, v. HIGHVIEW MANOR ASSOCIATION, LLC, et al., Appellees.
    No. 2008-SC-000599-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Eamon Patrick Mulvihill, David A. Sexton, Assistant Jefferson County Attorneys, Louisville, KY, for Appellant.
    John Rollin Wilson, Michael Rollin Wilson, Ruck, Wilson, Helline & Brockman, PLLC, Louisville, KY, for Appellees.
   Opinion of the Court by

Justice

SCHRODER.

The issue in this appeal is the scope of a district court’s review of a decision of a local code enforcement board, i.e. whether that review is de novo or of the record for an abuse of discretion in the form of an administrative appeal. To answer this question, we must resolve a perceived conflict between Section 113 of the current Kentucky Constitution and KRS 24A.010(3), and KRS 65.8831(1).

In 2005, the Louisville/Jefferson County Metro Government (Louisville) enacted an ordinance banning smoking in buildings open to the public, with a few exceptions. One exception was for facilities operated by private organizations. Enforcement was delegated to the Appellant to issue citations. Violations of the smoking ban are classified as civil offenses or violations, to be enforced through the Louisville/Jefferson County Code Enforcement Board (Code Enforcement Board), an administrative board (instead of the district court). KRS 65.8831(1) allows for appeals from code enforcement boards to the district court, with review limited to the record from the code enforcement boards.

Appellees are property owners who leased their premises to charitable organizations to conduct bingo games under charitable gaming licenses issued by the Commonwealth. The Appellant inspected the Appellees’ premises, discovered evidence of smoking and other evidence of noncompliance with the ordinance, and issued citations with $50.00 fines. Appellees appealed to the Code Enforcement Board, not denying the smoking, but contending that the Appellees were leasing the premises to private charitable organizations, which were excepted from the Smoke Free Ordinance. The Code Enforcement Board affirmed the citations and $50.00 fines. Appellees appealed to the District Court.

Before reaching the issue of the private charitable exemption, the Jefferson District Court had to determine the scope of its review. Section 113 of the Kentucky Constitution and KRS 24A.010(3) deny district courts appellate jurisdiction. However, KRS 65.8831(1) allows an appeal from a code enforcement board to the district court, but limits the district court to “a review of the record created before the code enforcement board.” The Jefferson District Court attempted to resolve the conflicting authority by conducting a de novo review of the evidence in the record, and then making its own findings of fact and conclusions of law, concluding that the private charitable organization exception applied to the Appellees.

On appeal, the Jefferson Circuit Court found that district courts are limited to reviewing the record for an abuse of discretion by a code enforcement board, and that the Code Enforcement Board’s decision in the case before it was supported by substantial evidence. The Court of Appeals accepted discretionary review and reversed in part, holding that because a district court has no appellate jurisdiction, it must conduct de novo proceedings and make findings — but only from reviewing evidence introduced before the code enforcement board (the same conclusion as the district court). We granted discretionary review.

KRS 65.8801 to 65.8839 authorize, as an alternative to district court enforcement of local ordinances, the creation of “administrative boards with the authority to issue remedial orders and impose civil fines in order to provide an equitable, expeditious, effective, and inexpensive method of ensuring compliance with the ordinances in force in local governments.” The proceedings before the code enforcement board do not follow the rules of evidence, “but fundamental due process shall be observed and shall govern the proceedings.” KRS 65.8831(1) allows an “appeal” from the code enforcement board to the district court. These “appeals” are taken to the district court “by the filing of a complaint and a copy of the board’s order in the same manner as any civil action under the Rules of Civil Procedure. The appeal shall be limited to a review of the record created before the code enforcement board.” This last sentence, and referring to the action as an appeal, is the crux of our problem.

Section 113(6) of the Kentucky Constitution provides: “The district court shall be a court of limited jurisdiction and shall exercise original jurisdiction as may be provided by the General Assembly.” KRS 24A.010 provides in part:

(1) The District Court is a court of limited jurisdiction; it has original jurisdiction in all matters specified in KRS 24A.110 to 24A.130.
(2) The District Court may be authorized by law to adjudicate the actions or decisions of local administrative agencies, special districts, or boards. Such adjudications shall not constitute an appeal but an original action.
(3) The District Court has no appellate jurisdiction.

Section 115 of the Kentucky Constitution guarantees an appeal as a matter of right “in cases, civil and criminal.” Vessels ex rel. Vessels v. Brown-Forman Distillers Corp. tells us that this provision does not permit administrative agencies to foreclose judicial review, nor does it permit the substitution of an administrative agency for a court of law.

An original action that allows a de novo review of an administrative action would allow a trial court to conduct a hearing to supplement the record if necessary, hear arguments, make initial findings of fact and conclusions of law, and enter a judgment (much like the circuit court’s review of a master commissioner’s report). An original action that is limited to a review of the record contemplates a review for an abuse of discretion, which is in fact an administrative appeal. Merely calling a proceeding an “original action” does not make it so.

Judicial review of an agency decision is limited to the determination of whether the decision was arbitrary, i.e., whether the action was taken in excess of granted powers, whether affected parties were afforded procedural due process, and whether decisions were supported by substantial evidence. Issues of law involving an administrative agency decision will be reviewed on a de novo basis.

However, a de novo action could be filed in district court because it is a court of original jurisdiction. Because a district court has no appellate jurisdiction, a review of the record for an abuse of discretion must proceed in circuit court, the first court with appellate jurisdiction. Obviously, that part of KRS 65.8831(1), which limits an appeal in district court to a review of the record created before the code enforcement board, is unconstitutional on its face for assigning appellate jurisdiction to a district court; this statute also conflicts "with KRS 24A.010(3), which denies district courts appellate jurisdiction. The specific language, “The appeal shall be limited to a review of the record created before the code enforcement board.” is therefore stricken from the statute because it is unconstitutional.

KRS 446.090 provides for the severability of statutes, that is, when one part is held unconstitutional, the remaining parts shall remain in force unless the remaining parts are essential and inseparable. If the review in district court is not limited to a review of the record, the statute would be constitutional with the implication of a de novo trial, for the reasons stated above. Likewise, if we interpret the statute as providing for initial appellate review by the circuit court, the statute would be constitutional. In deciding between remedial alternatives, a court is to accommodate, as fully as possible, the policies and judgments expressed in the statutory scheme as a whole.

The policy expressed in KRS 65.8801 in creating code enforcement boards was “to provide an equitable, expeditious, effective, and inexpensive method of ensuring compliance with” local government ordinances (an alternative to district court enforcement). Therefore, the alternative of construing the statute with initial appellate review in the circuit court, with its greater expense and formality than district court, would be contrary to the General Assembly’s expressed intent.

Also, leaving the review with the district court would not jeopardize the ordinance. A finding that KRS 65.8831(1) is unconstitutional to the extent it limits the district court’s review to the record below would have no effect on the wording of the ordinance. KRS 65.8831(1) and LMCO § 32.286 both require an “appeal” to be filed in district court. The statute as written requires the appeal be limited to a review of the record below. However, the ordinance actually conforms to the constitutional limitation on the district court’s jurisdiction. The ordinance merely requires the appeal be filed in the district court by the filing of a complaint with a copy of the code enforcement board’s final order, in the same manner as any civil action.

With our holding that the statute is unconstitutional in part, and the severability of the statute, the ordinance itself is not in conflict with the constitution, nor with the remaining portion of the statute. Under the ordinance as written, a district court can simply conduct a de novo trial per the statute, which would allow the court to supplement the record and hear arguments before ruling. Therefore, we hold that review of Code Enforcement Board decisions are subject to de novo trials in district court.

For the foregoing reasons, we affirm that part of the Court of Appeals Opinion that holds that the district courts have no appellate jurisdiction and must conduct a de novo trial as to the final order of the Code Enforcement Board. We reverse the Court of Appeals decision to the extent that it limits the district court’s review to making findings only from reviewing evidence introduced before the Code Enforcement Board. We remand to the Jefferson District Court for proceedings consistent with this opinion.

All sitting. All concur.

      . Ordinance No. 123 Series 2005, Chapter 90 of the Louisville/Jefferson County Metro Government Code of Ordinances (hereinafter the LMCO).

      . LMCO § 90.06.

      . LMCO § 90.07.

      . By authority of KRS 65.8801 et seq.

      . Pursuant to KRS Chapter 238.

      . Pursuant to LMCO § 32.286(A), and KRS 65.8831(1).

      . KRS 65.8801.

      . KRS 65.8828(3), and similar is LMCO § 32.284(D).

      . KRS 65.8831(1) (emphasis added), and similar is LMCO § 32.277.

      . Emphasis added.

      . Emphasis added.

      . 793 S.W.2d 795, 798 (Ky.1990).

      . KRS 65.8831(1) did provide for de novo review until amended in 1998. See 1998 Ky. Acts ch. 364, § 5.

      . See Smith v. O’Dea, 939 S.W.2d 353, 355-56 (Ky.App.1997).

      . Trimble Fiscal Court v. Snyder, 866 S.W.2d 124, 127 (Ky.App.1993).

      . Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Gov’t, 265 S.W.3d 190, 195 (Ky.2008) (internal citations omitted).

      . See Griffiths v. City of Ashland, 920 S.W.2d 78, 79 (Ky.App.1995); KRS 23A.010(4) (authorizing the circuit court to review administrative decisions). Statutory interpretation is purely a question of law subject to de novo review. Spencer County Preservation, Inc. v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky.App.2007) (citing Revenue Cabinet v. Hubbard, 37 S.W.3d 717 (Ky.2000)). Administrative agency decisions on issues of law are reviewed de novo, Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky.App.2000), unless "Chevron deference” is required. See Louisville/Jefferson County Metro Gov't v. TDC Group, LLC, 283 S.W.3d 657, 661 (Ky.2009). Likewise, ordinance interpretation is a matter of law with a de novo review by the courts. Commonwealth v. Jameson, 215 S.W.3d 9, 15 (Ky.2006) (citing Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transp. Cabinet, 983 S.W.2d 488, 490 (Ky.1998)).

      . Commonwealth v. Meyers, 8 S.W.3d 58, 62 (Ky.App.1999) (citing Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979)).

      . See also KRS 82.620(4) and KRS 82.625(5)(e), wherein district courts are also authorized to review appeals of administrative actions, but the statutes specifically designate a trial de novo.


author: Justice NOBLE. SCHRODER, J.,

text:
    KENTUCKY RIVER MEDICAL CENTER; and Jackson Hospital Corporation, Appellants, v. Irene McINTOSH, Appellee.
    No. 2008-SC-000464-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Martin Allen Arnett, William P. Swain, Denis Carl Wiggins, William Baxter Or-berson, Phillips, Parker, Orberson & Ar-nett, PLC, Louisville, KY, Counsel for Appellants.
    Christopher W. Goode, Búbalo, Hiestand & Rotman, PLC, Lexington, KY, Counsel for Appellee.
   Opinion of the Court by

Justice NOBLE.

Kentucky River Medical Center and Jackson Hospital Corporation (collectively “the Hospital”) appeal from a decision of the Court of Appeals, which affirmed a judgment of the Breathitt Circuit Court. The principal issue on appeal is whether the trial court should have granted the Hospital’s motion for a judgment notwithstanding the verdict because the open and obvious doctrine barred the plaintiffs recovery as a matter of law. For the following reasons, the Court of Appeals is affirmed.

I. Background

On May 27, 2004, McIntosh, a trained and licensed paramedic, was transporting a critically ill patient to the Hospital. She and two Emergency Medical Technicians (EMTs) arrived at the ambulance dock, and began guiding the patient to the emergency room entrance.

Immediately outside the emergency room entrance there is a flat surface which is eleven feet wide to allow stretchers to be wheeled directly from the ambulance dock into the emergency room. This flat area rises on both sides to form a curb. This curb is unmarked and unprotected. Essentially, the area looks like a wide curb ramp used for wheelchair access, except that the “ramp” part is flat rather than at an incline.

McIntosh had helped transport about 400 patients to this emergency room entrance before, and she had always navigated past the protruding curb without incident. However, this time she tripped and fell over it, suffering a fractured hip and sprained wrist. McIntosh sued the Hospital, arguing that the curb was an unreasonably dangerous condition which caused her injuries.

While moving towards the entrance, McIntosh’s attention was not focused on the curb; rather, she remained focused on attending to the critically ill patient. She testified that when transporting patients from the ambulance dock to the emergency room doors, it is the duty of a paramedic to remain focused on the patient’s health and to make sure his intravenous lines do not get caught in the wheels of the stretcher, among other things. (In contrast, EMTs have the duty to physically push the patient from the ambulance to the doors.) One of the patient’s family members testified that McIntosh was completely focused on the patient as he was pushed to the entrance.

In addition, evidence was introduced showing that having such a tripping hazard at an emergency room entrance is very rare, if not unique in Breathitt County and the counties adjoining it. In particular, McIntosh testified that she transports patients to several nearby hospitals and that none of them have any uneven surface between the ambulance dock and the doors. An EMT working for McIntosh also testified that among the eight to ten other entrances he had used, the Hospital was the only one that had a ledge or curb near the emergency room entrance. He stated: “They’re all smooth.” This was verified by a number of photographs of the entrances of nearby hospitals.

The Hospital moved the trial court for summary judgment, claiming that the open and obvious doctrine barred McIntosh’s recovery as a matter of law. After considering the parties’ briefs, the trial court summarily denied this motion.

Ultimately, the jury found the Hospital liable. It awarded McIntosh $40,409.70 for medical expenses, $65,000 for impairment of her earning capacity, and $50,000 for pain and suffering, for a total of $155,409.70. The Hospital then moved for a judgment notwithstanding the verdict, renewing its argument about the open and obvious doctrine, which the trial court denied. The Hospital appealed to the Court of Appeals, which affirmed because “the Hospital could reasonably expect that a paramedic treating a critically-ill patient could be distracted, could forget (if she had ever observed it) that the curb was uneven, and could fail to protect herself against it.” This Court granted discretionary review to determine whether the open and obvious doctrine should have completely barred McIntosh’s cause of action.

II. Analysis

A. The Open and Obvious Doctrine

The Hospital first argues that the trial court should have granted its motions for summary judgment and for a judgment notwithstanding the verdict because the curb over which McIntosh tripped was an open and obvious danger. The standards for summary judgment and for a judgment notwithstanding the verdict are identical, Cassinelli v. Begley, 438 S.W.2d 651, 652 (Ky.1968). Both motions must be granted if and only if there is “no genuine issue as to any material fact” in the case. CR 56.03; see also Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480-81 (Ky.1991).

As a general rule, land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them. Perry v. Williamson, 824 S.W.2d 869, 875 (Ky.1992). However, the open and obvious doctrine states that land possessors cannot be held liable to invitees who are injured by open and obvious dangers. Restatement (First) of Torts § 340 (1934). The question then is whether the applicability of the doctrine is a question of law or of fact.

The Hospital argues that the question is one of law — specifically, that the open and obvious doctrine means that land possessors are absolved of their duty, and “[t]he question of duty presents an issue of law.” Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.1992) (citations omitted). If the Hospital is correct that the open and obvious doctrine relates to duty (and is also correct that the danger in this case was actually open and obvious), then there was no genuine issue as to a material fact in the case, and the trial court should have granted the motions.

McIntosh responds that the existence of an open and obvious danger does not go to duty, but goes to the factual issue of fault. Under her view, the open and obvious doctrine could at most show that the invitee was partially at fault for failing to avoid injury. Consequently, how much fault should be placed on the invitee (for falling victim to a danger which is obvious) and how much should be placed on the land possessor (for failing to fix or warn of a danger which is obvious) would be a question for the jury.

Which of these two views is correct is not clear from the history of the doctrine because it arose in the era of contributory negligence. Under contributory negligence, any negligence on the part of the plaintiff completely barred recovery. Thus, it was irrelevant whether an open and obvious danger “excused a land possessor’s duty to an invitee, or simply insulated the possessor from liability” by virtue of the plaintiffs contributory negligence in avoiding his own injury. “In either event, the injured invitee could not recover.” Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321, 1325 (1989). Some courts in that era explained the doctrine in terms of duty and others did so in terms of the plaintiffs contributory negligence, see generally Page Keeton, Personal Injuries Resulting from, Open and Obvious Conditions, 100 U. Pa. L.Rev. 629 (1952), but the precise doctrinal rationale was not carefully considered because it made no difference at that time.

However, almost all states now have comparative fault — including Kentucky, see Hilen v. Hays, 673 S.W.2d 713, 720 (Ky.1984); see also KRS 411.182(1)(a)-(b). Under comparative fault, whether the doctrine concerns duty or fault becomes very important. Harrison, 768 P.2d at 1325.

If duty is not excused by a known or obvious danger, the injured invitee might recover, albeit in a diminished amount, [by virtue of his own comparative fault]. In contrast, if the invitee’s voluntary encounter with a known or obvious danger were deemed to excuse the land owner’s duty, then there would be no negligence to compare — and, therefore, no recovery.

Id. This distinction is the principal issue of this case.

Our sister states do not unanimously agree about the correct answer. However, “[t]he manifest trend of the courts in this country is away from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions.” Ward v. K Mart, 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 231 (1990). Instead, these courts allow the jury to evaluate the comparative fault of the parties, typical in modern negligence cases.

The courts following this trend typically adopt the position of the Restatement (Second) of Torts with respect to open and obvious conditions, which states:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Restatement (Second) of Torts § 343A(1) (1965) (emphasis added). The commentary to this section elaborates on the emphasized clause:

There are ... cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger .
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious ... is not ... conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

Id. cmt. f. Under the Restatement (Second) view, in such cases the land possessor may still owe a duty of reasonable care, which may require him to “take other reasonable steps to protect [the invitee] against the known or obvious condition.” Id. The current, tentative draft of the Restatement (Third) takes a position consistent with the Restatement (Second), except that it “amplifie[s]” duties on land possessors in certain situations. See Restatement (Third) of Torts: Liab. Physical Harm § 51 cmt. k (T.D. No. 6, 2009).

Despite the “manifest trend of the courts in this country,” Ward, 143 Ill.Dec. 288, 554 N.E.2d at 231, and the persuasive power of the Restatement, “[a] few courts” still maintain that the doctrine is really one of duty. See Restatement (Third) of Torts: Liab. Physical Harm § 51, reporters’ notes cmt. k. These courts typically start by reasoning that a land possessor’s duties to protect invitees “is predicated upon [his] superior knowledge concerning the dangers of his property.” Janis v. Nash Finch Co., 780 N.W.2d 497, 502 (S.D.2010). In the usual case, a land possessor’s better knowledge regarding the premises means that he is in the better position to prevent the harm. However, in the case of open and obvious dangers, the invitee should be just as aware of the danger. Thus, these courts maintain that the basis for placing a duty on the land possessor — his superior knowledge — does not exist when the danger is truly open and obvious. Therefore, they rule that no duty should be imposed.

Both of these positions have some initial appeal. However, this Court concludes that the modern trend, as embodied in the Restatement (Second) of Torts, is the better position.

The modern approach is consistent with Kentucky’s focus on foreseeability in its analysis of whether or not a defendant has a duty. This Court has previously stated that “[t]he most important factor in determining whether a duty exists is foreseeability.” Pathways v. Hammons, 113 S.W.3d 85, 89 (Ky.2003) (citing David J. Leibson, Kentucky Practice, Tort Law § 10.3 (1995)). That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor:

The principles stated in the Restatement (Second) of Torts § 343A relate directly to foreseeability and facilitate consideration of the duty issue. Whether the danger was known and appreciated by the plaintiff, whether the risk was obvious to a person exercising reasonable perception, intelligence, and judgment, and whether there was some other reason for the defendant to foresee the harm, are all relevant considerations that provide more balance and insight to the analysis than merely labeling a particular risk “open and obvious.” In sum, the analysis recognizes that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on the defendant, despite its potentially open and obvious nature.

Coln v. City of Savannah, 966 S.W.2d 34, 42 (Tenn.1998).

The focus on foreseeability is precisely why subsection 343A(1) of the Restatement creates an exception to the rule that a land possessor will not be liable for open and obvious dangers when “the possessor should anticipate the harm” anyway. For many open and obvious dangers, the land possessor would have no reason to anticipate the harm, and so he would not be liable. However, sometimes “the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Restatement (Second) of Torts § 343A(1) cmt. f. In these situations, the injury is still foreseeable, and so liability should still be imposed. Id. This is nothing more than continuing to recognize that “[t]he most important factor in determining whether a duty exists is foreseeability,” Pathways, 113 S.W.3d at 89, and is why the modern approach makes a great deal of sense.

Further, the modern approach is more consistent with Kentucky’s rule of comparative fault. By concluding that a danger was open and obvious, we can conclude that the invitee was negligent for falling victim to it, unless for some reason “to a reasonable man in his position the advantages of [encountering the danger] would outweigh the apparent risk.” Restatement (Third) of Torts: Liab. Physical Harm § 51 cmt. f. But this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place. Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any.

For this reason, to allow known or obvious conditions to always absolve land possessors from any liability “would be to resurrect contributory negligence” in such cases. Harrison, 768 P.2d at 1325. As the reporters’ notes to the current draft of the Restatement (Third) of Torts state:

The rule that a land possessor was not subject to liability for any open and obvious danger is much easier to justify in an era when contributory negligence constituted a complete bar to recovery. An entrant who fails to take self-protective measures may be contributorily negligent and, if so, that would avoid any liability by the possessor. However, such a rule cannot be justified after contributory negligence becomes a comparative defense.... In that respect, other earlier rules applicable to a land possessor’s duties appear premised on and incorporate contributory negligence as a complete defense to liability.

Restatement (Third) of Torts: Liab. Physical Harm § 51, reporters’ notes cmt. k.

The incompatibility between the open and obvious doctrine as an absolute, automatic bar to recovery and comparative fault is great. So great, in fact, that a few states have held that their comparative negligence statutes abolished the open and obvious doctrine outright. E.g., Harrison, 768 P.2d at 1326 (stating that “[t]he open and obvious danger doctrine, born in the era ... of contributory negligence, has been abolished legislatively through the adoption of I.C. § 6-801,” where that statute provides that “[c]ontributory negligence shall not bar recovery in an action ... to recover damages for negligence”). The incompatibility between the traditional open and obvious rule and comparative fault is palpable; any incompatibility should be resolved in favor of comparative fault.

This makes good policy sense. As the Supreme Court of Mississippi aptly stated:

This Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms. It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty. The party in the best position to eliminate a dangerous condition should be burdened with that responsibility. If a dangerous condition is obvious to the plaintiff, then surely it is obvious to the defendant as well. The defendant, accordingly, should alleviate the danger.

Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss.1994).

In addition, this is consistent with our most recent case on-point, Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364 (Ky.2005). In Home, this Court endorsed the Restatement (Second) view throughout the opinion. Id. at 367-70. And, in particular, Horne cites section 343A(1) of the Restatement and its supporting commentary for the proposition that a land possessor may be held liable for open and obvious dangers if “the possessor should anticipate the harm despite [its] ... obviousness.” Although this Court ultimately concluded that the danger “was not ‘known or obvious to’ ” the plaintiff, this Court concluded in the alternative that

the facts of this case would fall within Restatement § 343A, comment f, because [the land possessor] would expect that a customer ... “may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.”

Id. at 370.

The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable. Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious.

However, this view also alters the position of the person injured by an open and obvious danger to the extent that only under extremely rare circumstances could a plaintiff avoid some share of the fault under comparative negligence. While “open and obvious danger” is no longer a complete defense under the Restatement, it is nonetheless a heightened type of danger which places a higher duty on the plaintiff to look out for his own safety. Such a condition, being open and obvious, should usually be noticed by a plaintiff who is paying reasonable attention. Yet the plaintiff is not completely without a defense to this: there could be foreseeable distraction, or the intervention of a third party pushing the plaintiff into the danger, for example. Even in such situations, a jury could still reasonably find some degree of fault by the plaintiff, depending on the facts.

As noted above, a few courts state that a land possessor’s duty to invitees “is predicated upon [his] superior knowledge concerning the dangers of his property,” Janis, 780 N.W.2d at 502, something which is absent when the danger is obvious to all. E.g., Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644, 650 (2001); La Quinta Inns, Inc. v. Leech, 289 Ga.App. 812, 658 S.E.2d 637, 642 (2008). These courts therefore conclude that no duty should be imposed when dangers are obvious. This conclusion is mistaken, however, because it is based on a false premise: A land possessor’s duties are not based only on his superior knowledge.

These duties are also based on the land possessor’s unique position as the only person who can fix the dangers. An invitee can always try to avoid dangers of which he is aware, but only land possessors and owners can legally remove them. So although it is true that when the danger is obvious the land possessor does not have superior knowledge, the land possessor still has the superior ability to issue repairs.

The minority view is no doubt confused because it is often said that “there is no duty to warn for open and obvious dangers.” Restatement (Third) of Torts: Liab. Physical Harm § 51 cmt. k. The purpose of a warning is to equalize the parties’ knowledge about the danger. So when we presume their knowledge is already equal, as we do for obvious conditions, the warning could serve no purpose. Thus, “[t]he conclusion that there is no liability for open and obvious dangers for which the only reasonable precaution is warning is correct.” Id. (Emphasis added.)

However, the absence of the duty to warn does not mean there is no duty at all, simply because “the duty of reasonable care may require precautions other than a warning, including employing durable precautions that eliminate or reduce the risk posed.” Id. Even though it will often make little sense to impose liability on land possessors for failing to warn invitees of conditions which are obvious, it makes a great deal of sense to impose liability on them for failing to eliminate or reduce the risk posed by unreasonable dangers. In short, “[ejven where the condition is open and obvious, a landowner’s duty to maintain property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such a condition.” Phelan v. State, 11 Misc.3d 151, 804 N.Y.S.2d 886, 898 (N.Y. Ct. Claims 2005). The minority view overlooks this point, and for that reason this Court cannot follow it.

Turning to this case, this Court concludes that the Hospital owed a duty to McIntosh. This conclusion is based on our adherence to the Restatement (Second) approach to open and obvious dangers, as in Home, as well as our continued belief that “[t]he most important factor in determining whether a duty exists is foreseeability.” Pathways, 113 S.W.3d at 89 (citation omitted). There can be no doubt in this case that the injury was foreseeable.

The Hospital had good reason to expect that a paramedic, such as McIntosh, would be distracted as she approached the emergency room entrance. There was testimony that paramedics have a duty to focus on the patient while the EMTs guide them into the emergency room, including monitoring the patients’ health and making sure their intravenous lines do not become entangled on the wheels of the stretcher. (There was also testimony that McIntosh ably fulfilled her duty by remaining focused on the critically ill patient as the EMTs pushed him to the doors.) The need to focus on the patient necessarily means taking attention away from other tasks, such as carefully navigating past a protruding curb. Thus, even though the curb may have been open and noticeable to some extent, in this case “the possessor has reason to expect that the invitee’s attention may be distracted” from it. Restatement (Second) § 343A cmt. f. The Hospital had very good reason to believe McIntosh would be tending to the patient, not to each step she was taking.

In addition, “the possessor has reason to expect that the invitee[ ] ... will forget what he has discovered.” Id. Evidence was introduced showing that having such a curb at an emergency room entrance is very unusual, if not unique. McIntosh and an EMT testified that none of the numerous other hospitals they went to had any uneven surfaces between the ambulance dock and the emergency room doors; this was verified by pictures of nearby hospitals. Paramedics will rarely have the luxury of calmly walking towards an emergency room entrance. They are required to think and act quickly in the most time-sensitive and stressful of circumstances. It is likely that in such a situation, a paramedic such as McIntosh may forget that this particular entrance has a unique danger that she must avoid. Indeed, it is foreseeable that McIntosh may absentmindedly assume that this entrance was just as safely constructed as any other, causing her to trip. She should be entitled to assume that this entrance is safe, too. And the extent to which her absentmindedness comes into play should bear only on her comparative fault rather than as an absolute bar to her recovery.

It is important to stress the context in which McIntosh sustained her injury: she was rushing a critically ill patient into a hospital, in an effort to save his life. Even if we assume that she was neither distracted nor forgetful about the curb, we would still have to conclude that the benefits of her rushing to the door (at the risk of tripping over the curb) outweighed the costs of her failing to do so (at the risk of the patient’s condition worsening, perhaps to the point of death, on the Hospital doorstep). The dire need to rush critically ill patients through the emergency room entrance should be self-evident, and as such, “the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” Restatement (Second) § 343A cmt. f. This is another reason this injury is foreseeable and that a duty existed in this case.

Admittedly, it may seem at first that McIntosh was not a particularly sympathetic plaintiff because, as the Hospital points out, she “had encountered [the danger] on many, many occasions.” She testified that she had safely navigated the entrance hundreds of times before her injury. Our intuition is that McIntosh’s familiarity with the danger makes her a less worthy plaintiff. This is no doubt why the Hospital stresses this point in its brief.

But this intuition reveals it is not the Hospital’s duty, but McIntosh’s comparative fault, that matters to us. If the issue here was one of duty and duty alone, then it would not matter how many times she had encountered the danger (assuming, of course, this Court were to label the curb “obvious”). If she had never been to this emergency room entrance even once before, the Hospital would still owe her no duty, and the same result would follow.

The most logical way of taking this factor into account is to say that if she has familiarity with the danger, then she is at fault for failing to avoid it, and to reduce her recovery accordingly. The greater her familiarity, the greater her own fault. The jury is fully capable of considering how a person’s familiarity with a danger should bear upon his respective share of fault, if at all. In addition, in this case the plaintiff had the defense of foreseeable distraction, as she was attending her patient. That sort of analysis is exactly what comparative fault analysis requires the jury to do; thus, the jury was properly instructed to compare the faults of the parties in this case.

In the present case, the Hospital owed a duty to McIntosh, given that her injury was foreseeable. McIntosh, in turn, had a duty to act reasonably to ensure her own safety, heightened by her familiarity with the location and the arguably open and obvious nature of the danger. Thus, there were genuine issues of material fact that were properly submitted to the jury. CR 56.03; see also Steelvest, 807 S.W.2d at 480-81. For that reason, the trial court correctly denied the Hospital’s motions for a directed verdict and for a judgment notwithstanding the verdict. While reasonable minds could differ whether McIntosh was to some degree at fault under these facts, all the evidence was before the jury and was argued to them. This Court cannot say that their finding that McIntosh bore no comparative fault is clearly erroneous.

B. Evidentiary Issues

The Hospital also raises two evidentiary issues on appeal. This Court concludes that these are not error.

1. Photographs

First, the Hospital argues that photographs of emergency room entrances at other hospitals (as well as its own main entrance) were irrelevant under KRE 401, or were unduly prejudicial under KRE 403.

Under KRE 401: “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” And KRE 403 provides: “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.” The trial court’s decision to admit this evidence is reviewed for an abuse of discretion. See, e.g., Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). A trial court abuses its discretion if its decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.

The trial court did not abuse its discretion in admitting these photographs into evidence. Among other reasons, the photographs were relevant to show alternative designs that could have feasibly been used; to show the Hospital could foresee paramedics would trip over the curb, given that paramedics may falsely assume that the entrance would be as safely designed as any other hospital; to show that even though McIntosh had been to this entrance numerous times, the “possessor has reason to expect [she] will forget what she has discovered,” Restatement (Second) of Torts § 343A, since she may forget that this particular hospital lacks the same safety precautions that all other hospitals in the area have; and to show that she may be reasonably distracted.

Likewise, the photograph of the Hospital’s front entrance goes to show that the Hospital was aware — or at least should have been aware — of alternative designs that would eliminate tripping hazards and that the emergency room entrance presented such an additional hazard. Although the Hospital is correct that the front entrance and emergency room entrance have different sorts of traffic, this is a fact that can be easily pointed out at trial, and this Court does not think it is beyond the capability of the jury to understand this distinction, especially given the testimony about the unique safety requirements of emergency room entrances.

In short, there is no doubt the photographs were relevant. And the Hospital has failed to show that the probative value of these pictures was “substantially outweighed” by the risk of undue prejudice. KRE 401, 403. There was no error.

2. Expert Testimony

Second, the Hospital argues that the trial court erred in allowing the testimony of McIntosh’s expert witness, James Lapping. Lapping testified as an expert regarding the safety of emergency room entrances. He is an engineer and certified safety professional. He served as the safety director for the AFL-CIO for over two decades, and he also worked for the Occupational Safety and Health Administration (OSHA), where he wrote training programs for safety inspectors. Lapping testified that to make the entrance safe, the Hospital should have leveled it, installed guardrails to prevent tripping, or used paint to mark the area. He also testified that the entrance violated OSHA regulations.

The Hospital argues that the jury did not need expert testimony to determine whether the emergency room entrance was safe because the issue was within their common knowledge. This Court has previously stated:

The real question should not be whether the expert has rendered an opinion as to the ultimate issue, but whether the opinion “will assist the trier of fact to understand the evidence or to determine a fact in issue.” KRE 702. Generally, expert opinion testimony is admitted when the issue upon which the evidence is offered is one of science and skill, ... and when the subject matter is outside the common knowledge of jurors.

Stringer v. Commonwealth, 956 S.W.2d 883, 889-90 (Ky.1997).

This Court concludes that the testimony was properly admitted. Members of the public are familiar with the main entrances to hospitals. However, they are less familiar with emergency room entrances, which are used primarily by specialized professionals such as paramedics and EMTs. In addition, members of the public are not familiar with OSHA regulations governing the treatment of physical hazards. It was not an abuse of discretion to allow the jury to hear expert testimony about the proper safety features and regulations of emergency room entrances. These hospital entrances have a special purpose and are used by professionals in distinct and stressful emergency situations. Consequently, the safety requirements for such of the entrances may be “outside the common knowledge of jurors.” Id. Admitting this testimony was not an abuse of discretion.

The Hospital also argues that Lapping’s testimony was improper because it was undermined during cross-examination. Specifically, the Hospital notes that Lapping admitted he was unaware of McIntosh’s familiarity with the entrance or that OSHA had investigated the entrance and found no violations. This is good impeachment and rebuttal evidence, and it was all heard and duly considered by the jury. Importantly, expert testimony does not need to be flawless to be admissible.

Last, the Hospital complains that Lapping was allowed to address the jury for twelve to thirteen minutes uninterrupted, rather than in the typical question-and-answer format. The Court of Appeals declined to review this error because the Hospital failed to make a “contemporaneous objection ... to the manner of his testimony.” On appeal to this Court, the Hospital admits they made no such objection. Accordingly, this Court concludes that if error, this is not reversible error, as it does not rise to the level of “manifest injustice.” CR 61.02.

III. Conclusion

For the foregoing reasons, the Court of Appeals is affirmed.

MINTON, C.J.; ABRAMSON, CUNNINGHAM and VENTERS, JJ„ concur.

SCHRODER, J., dissents by separate opinion in which SCOTT, J., joins.

SCHRODER, J.,

dissenting:

Because I believe the open and obvious doctrine concerns a question of duty, I respectfully dissent. The other hospitals McIntosh served had no curbs to trip over. Appellants had a curb, which contained no building code or OSHA violations, and was open and obvious. It appears the Appellants are being held liable for a breach of a duty: a duty to build its emergency entrance like other hospitals in an undefined area. Until this decision, there was no such duty. Until today, a landowner or possessor of land could not be held liable to invitees who were injured by open and obvious dangers. Now, even though the alleged danger is open and obvious (like snow or ice on a sidewalk), if the possessor can anticipate the harm to an invitee, the possessor has a duty to fix the condition, or to somehow give additional warnings. In this case, to avoid future liability, the hospital will need to build the same type of entrance ramp as some unknown group of hospitals. This is an unwise and unneces-saiy change in the law in the Commonwealth.

SCOTT, J., joins.


text:
    LOUISVILLE GAS AND ELECTRIC COMPANY, et al., Appellants, v. HARDIN & MEADE COUNTY PROPERTY OWNERS FOR CO-LOCATION, et al., Appellees. Kentucky Public Service Commission, Appellant, v. Hardin & Meade County Property Owners for Co-Location, et al., Appellees.
    Nos. 2008-SC-000348-DG, 2008-SC-000354-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Allyson Kay Sturgeon, E.ON U.S. LLC, Louisville, KY, Robert M. Watt III, David T. Royse, Stoll Keenon Ogden PLLC, Lexington, KY, Sheryl G. Snyder, Griffin Terry Sumner, Frost Brown Todd LLC, Louisville, KY, John Gregory Cornett, E.ON U.S. Services, Louisville, KY, Counsel for Appellants/Appellees Louisville Gas and Electric Company and Kentucky Utilities Company.
    Allyson Kay Sturgeon, E.ON U.S. LLC, Louisville, KY, John Gregory Cornett, E.ON U.S. Services, Louisville, KY, Counsel for Appellant/Appellee E.ON U.S. LLC.
    Robert M. Watt III, David T. Royse, Stoll Keenon Ogden PLLC, Lexington, KY, Sheryl G. Snyder, Griffin Terry Sumner, Frost Brown Todd LLC, Louisville, KY, Counsel for Appellee E.ON U.S. LLC.
    Richard W. Bertelson III, Helen C. Hel-ton, Gerald Edward Wuetcher, David Shawn Samford, Kentucky Public Service Commission, Frankfort, KY, Counsel for Appellee/Appellant Public Service Commission of Kentucky.
    Robert Withers Griffith, Stites & Harbi-son, PLLC, Louisville, KY, W. Henry Graddy IV, Randal Alan Strobo, W.H. Graddy & Associates, Midway, KY, Counsel for Appellees CDH Preserve, LLC and Hardin & Meade County Property Owners for Co-Location, et al.
   Opinion of the Court by

Justice SCHRODER.

Before us are appeals from a decision of the Court of Appeals reversing the Franklin Circuit Court’s dismissal of an administrative appeal of a Public Service Commission order. Because Appellees failed to designate the record or move for enlargement of time to designate the record within the ten-day period in KRS 278.420(2), the circuit court did not have jurisdiction to adjudicate the claim. Hence, the opinion of the Court of Appeals is reversed and the cause remanded for proceedings consistent with this opinion.

On December 22, 2005, Louisville Gas and Electric Company (“LG & E”) and Kentucky Utility Company (“KUC”), collectively “the utilities”, submitted a joint application to the Kentucky Public Service Commission (“the Commission”) for a certificate of public convenience and necessity for construction of a 42.03-mile electric power transmission line running from Jefferson County to Hardin County. As an alternative, the utilities also submitted a joint application for construction of a transmission line along a 44-mile route through Jefferson, Bullitt, Meade, and Hardin Counties. The Commission consolidated the applications for consideration.

A public hearing was held on March 6, 2006, and an evidentiary hearing followed on March 28-30, 2006. The Commission granted the utility companies’ joint application for their preferred 42.03-mile route by order of May 26, 2006.

On June 16, 2006, several aggrieved property owners filed an application with the Commission seeking a rehearing or, in the alternative, a stay pending their appeal to the Franklin Circuit Court. The Commission denied the request for a rehearing or stay by order dated July 6, 2006.

On July 26, 2006, the property owners filed an action in the Franklin Circuit Court seeking judicial review of the Commission’s order granting the utilities’ application and the order denying the property owners’ request for a rehearing. The utilities thereafter filed a joint motion on August 14, 2006 to dismiss the action pursuant to CR 12 because it did not comply with the requirements of KRS 278.420 by failing to designate those portions of the record necessary to resolve the issues raised in the action within ten days after the action was filed. Nineteen days after the action was filed, the property owners filed a motion requesting that they be permitted to belatedly designate the entire administrative record pursuant to KRS 278.420(2), which permits the court to enlarge the ten-day period where cause is shown. In support of the motion, counsel submitted affidavits attesting to a highly demanding schedule and reflecting that there had been some confusion as to whether local counsel would continue on the appeal.

Pursuant to the utilities’ motion, the circuit court dismissed the action. In its order, the court concluded that counsel had failed to show sufficient cause for failure to designate the record within the ten-day period. The court also found that counsel improperly designated the entire record because it failed to provide notice to the court and the opposing parties of the issues on appeal. The property owners appealed, and the Commission cross-appealed.

The property owners argued that substantial compliance should apply to administrative appeals and that their counsel demonstrated good cause for an extension of time to designate the record. The utilities and the Commission argued that the circuit court did not abuse its discretion in ruling that plaintiffs’ counsel had not demonstrated good cause to warrant an enlargement of time for designating the record. In the alternative, they argued that Kentucky law requires strict compliance with statutory prerequisites for seeking review of an administrative decision, and that failure to timely designate the record pursuant to KRS 278.420(2) is a jurisdictional defect under Forest Hills Developers, Inc. v. Public Service Commission, 936 S.W.2d 94 (Ky.App.1996).

In a 2-1 opinion, the Court of Appeals cited Forest Hills Developers, Inc., favorably for the proposition that the failure of a party to designate the record deprived the court of subject matter jurisdiction to adjudicate the action. The court went on to find that the circuit court nevertheless could, in its discretion, enlarge the ten-day period for designation of the record pursuant to KRS 278.420(2). The court then looked to the courts’ interpretation of “excusable neglect” in CR 6.02 to construe what constituted “cause” in KRS 278.420(2). The court concluded that “[ejxcusable neglect occurred and was shown”, and thus the circuit court erred in finding otherwise. This Court thereafter granted both the utilities’ and the Commission’s motions for discretionary review.

KRS 278.420(2) provides:

Unless an agreed statement of the record is filed with the court, the filing party shall designate, within ten (10) days after an action is filed, the portions of the record necessary to determine the issues raised in the action. Within ten (10) days after the service of the designation or within ten (10) days after the court enters an order permitting any other party to intervene in the action, whichever occurs last, any other party to the action may designate additional portions for filing. The court may enlarge the ten (10) day period where cause is shown. Additionally, the court may require or permit subsequent corrections or additions to the record.

The primary argument of both the utilities and the Commission is that under the strict compliance doctrine, which applies in administrative appeals, the ten-day period for designation of the record set out in KRS 278.420(2) is jurisdictional. Therefore, the circuit court lost jurisdiction in the case when the property owners did not file their designation of the record or their motion to enlarge the ten-day period for designation of the record within ten days after the action was filed. The property owners maintain that the circuit court acquired jurisdiction when the action was timely filed. Thus, despite the fact that the motion for enlargement of time was filed outside the ten-day limit, the circuit court had jurisdiction to allow the designation of record to be belatedly filed.

It is well settled that “[wjhen grace to appeal [a decision of an administrative body to the circuit court] is granted by statute, a strict compliance with its terms is required.” Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky.1978). As the Flood Court observed, “Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy.” Id. (citing Kentucky Utils. Co. v. Farmers Rural Elec. Co-op. Corp., 361 S.W.2d 300 (Ky.1962); Roberts v. Watts, 258 S.W.2d 513 (Ky.1953)).

The case of Forest Hills Developers, Inc. v. Public Service Commission is precisely on point relative to the issue of whether the requirements of KRS 278.420 are jurisdictional. 936 S.W.2d at 96. In Forest Hills, just as in the present case, plaintiffs timely filed their action seeking review of the Commission’s order, but subsequently failed to designate the record within the ten-day period required by KRS 278.420(2). Id. at 95. The circuit court denied plaintiffs’ motion for enlargement of time to designate the record, and dismissed the action on grounds that it lacked jurisdiction to adjudicate the matter. Id. The Court of Appeals affirmed, holding that plaintiffs’ failure to abide by the statutory scheme in KRS 278.420(2) deprived the circuit court of jurisdiction to adjudicate the claim. Id. at 96.

The property owners urge this Court to depart from the requirement of strict compliance for statutory mandates beyond the timely filing of the complaint. Essentially, they are asking that we overrule Forest Hills. Although we are not bound by the holding of Forest Hills, we view the decision as a sound application of the well-established principle of strict compliance for administrative appeals. This Court has most recently reaffirmed the principle in Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky.2010) and Sajko v. Jefferson County Board of Education, 314 S.W.3d 290 (Ky.2010).

Under the statutory scheme of KRS Chapter 278, the legislature requires two things to invoke the jurisdiction of the circuit court over appeals of public service commission orders — the timely filing of the action in the Franklin Circuit Court and the timely filing of the designation of the record. KRS 278.410; KRS 278.420. In this case, it was undisputed that the issues to be decided in the appeal required designation of some portion(s) of the administrative record in order to decide the appeal. The designation of the record is especially important in administrative appeals because of the voluminous record frequently produced by the administrative proceedings. The designation of the record serves notice of those relevant portions of the record for the appeal and serves to narrow the record for appellate review, presumably for purposes of judicial economy. It is true that the sentence in KRS 278.420(2) permitting enlargement of time for designation of the record does not contain an express time limit within which the motion must be made. However, given the requirement that the designation of the record be filed within ten days after the action is filed, jurisdiction to enlarge the time beyond the ten-day period will only exist if the motion to enlarge is filed within this ten-day period. In the present ease, the motion for enlargement of time was filed after expiration of the ten-day period.

The property owners point to Arlinghaus Builders, Inc. v. Kentucky Public Service Commission, as a case where the court rejected application of strict compliance for the filing of an appeal from a Public Service Commission order. 142 S.W.3d 693 (Ky.App.2003). In Arlinghaus Builders, Inc., appellant filed its appeal from a Commission order within the required 30-day time period, but service of process was mistakenly made on the wrong individuals. In applying CR 3.01, the court held that jurisdiction of the circuit court had been properly invoked because appellant acted in good faith in filing the action and issuing the summonses. In the present case, the requisite action to invoke jurisdiction per the express language of the statute (the ten-day period to designate the record) was not taken. In Arlinghaus Builders, Inc., appellant filed its action in a timely manner per the express language of the statute, but thereafter failed in properly issuing the summonses, a matter about which the statute was silent.

Given our determination that the Franklin Circuit Court did not have jurisdiction to adjudicate the action, we need not address the issues related to “cause” and application of the civil rules. For the reasons stated above, the decision of the Court of Appeals is reversed and the matter remanded for proceedings consistent with this opinion.

All sitting. All concur.