author: Justice ABRAMSON.

text:
    Cordelia BASTON, Appellant, v. COUNTY OF KENTON, Kentucky, ex rel. KENTON COUNTY AIRPORT BOARD, et al., Appellees.
    No. 2008-SC-000319-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Robert Wilson Carran, Alice Gailey Keys, Taliaferro, Shirooni, Carran & Keys, PLLC, Philip Taliaferro, III, Taliaferro & Mehling, Covington, KY, Counsel for Appellant.
    Joseph L. Baker, Steven Charles Martin, Debra S. Pleatman, Ziegler & Schneider, PSC, Covington, KY, Counsel for Ap-pellees.
   Opinion of the Court by

Justice ABRAMSON.

In October 2005, the Kenton County Fiscal Court, on behalf of its Airport Board, condemned real property owned by Cordelia Bastón in Boone County. The condemnation was a small piece in the Airport Board’s plan to construct a new north/south runway for the Cincinnati/Northern Kentucky International Airport. Following a jury trial and in accord with the jury’s verdict, the Boone Circuit Court awarded Bastón compensation damages of $670,000.00. On appeal, a divided panel of the Court of Appeals reversed that award as excessive and remanded for a new trial. In the view of the Court of Appeals’ majority, Baston’s counsel violated KRS 416.660 and tainted the jury by attempting to show that knowledge of the runway project had stifled development in the area, thereby requiring the fair market value of Baston’s property to be determined by considering sales in areas not subject to the project’s debilitating effects. We granted Baston’s petition for discretionary review to consider the Court of Appeals’ application of KRS 416.660, and we now reverse.

RELEVANT FACTS

The property in question is an approximately eight-acre tract south of Kentucky Highway 20 along what was Hill Road in the Hebron area of Boone County. Mrs. Bastón testified that she and her husband purchased the property, which had been improved with a house, in 1962. They lived there throughout their marriage, using the property not only as their family residence but also to raise a small number of cattle and hogs, some corn, and a large garden. Mr. Bastón died in 1991. Mrs. Bastón testified that through the years the effects of the airport, which lies to the south, gradually became more pronounced. By the mid-1990s, noise, in particular, frequently rendered patio conversations impossible. In 1995, as part of a noise mitigation project, the Airport Board offered to buy the property, but Mrs. Bastón declined. In 1997, the Airport Board notified her of its intent to acquire the property as part of its new runway project. That project was approved in 2001, and Mrs. Ba-stón surrendered the property in 2003, although for trial purposes the date of taking was fixed as of the commencement of trial on October 24, 2005.

As of the taking, the property continued to be zoned as residential, but the central issue at the trial was the continuing appropriateness of residential use given the effects of the airport and the conversion of much of the area’s residential property to industrial ■ or commercial. The Airport Board presented testimony to the effect that notwithstanding the Bastón property’s being subject to substantial airport noise and being virtually surrounded by property long since converted from residential to industrial use, and notwithstanding the Boone County Planning Commission’s recommendation that the area surrounding the airport be dedicated to industrial uses, the property was not suitable for industrial development. The Airport Board contended that the property’s zoning would not be amended to allow for such development because Hill Road, the county road serving the property, was too narrow for industrial traffic and at its junction with Hossman Road (which provides access to Highway 20) would require tractor-trailers to negotiate an extremely sharp turn. Airport Board experts testified that tractor-trailers could not negotiate the hairpin turn within the existing right-of-way, and another expert testified that the Boone County zoning board was not likely to grant a zoning change unless the road could be widened and extensively improved. Deeming the costs of such improvements prohibitive, the Airport Board’s appraiser concluded that the highest and best use of the Bastón property would be as a residential subdivision. He therefore sought comparison with other properties that had been purchased by residential developers and concluded that the fair market value of the Bastón property was about $45,000.00 per acre, or roughly $350.000.00 total. On cross-examination, he conceded that industrial property in the area commanded a higher price— in his estimate in the $60,000.00 to $90,000.00 per acre range — but he reiterated that in his opinion the Bastón property was not suitable for such use.

Bastón presented equally qualified experts who opined that Hill Road was not an insurmountable obstacle to industrial development. Her engineering expert testified that the curve between Hill Road and Hossman Road could be “softened” so as to accommodate tractor-trailers; and her zoning expert testified that Hill Road’s thirty-foot right-of-way, although not as wide as the zoning board recommended for industrial purposes, did not violate any regulations and, given the other factors strongly supporting industrial use, would not prevent a zone change. Both experts cited several examples of other properties in Boone County which had been rezoned and developed industrially notwithstanding service roads as narrow as Hill Road and with similarly severe turns. Baston’s appraiser, therefore, concluded that warehouse development would be the highest and best use of Baston’s property, and, by comparison with similar properties in the area, opined that the fair market value of Baston’s property was $100,000.00 per acre, or about $788,000.00 total.

The jury, as noted, returned a verdict valuing the property at $670,000.00, or about $85,000.00 per acre. Clearly, therefore, it accepted Baston’s evidence that her property could be developed and used industrially despite the limitations of Hill Road. The Court of Appeals’ majority ruled that such a finding was contrary “to the clear weight of the evidence,” and that it indicated that the jury had been tainted by Baston’s counsel’s improper references to the effect of the Airport Board’s condemnations on the area surrounding the airport and, in particular, to the fact that the announcement of the runway project had “killed development” on the properties slated to be condemned. The Court of Appeals agreed with the Airport Board that such references violated KRS 416.660 and had the effect of rousing the jury’s passion and prejudice against “the airport as a large wealthy entity running roughshod over a poor widowed woman.” Convinced that the Court of Appeals both overstepped its role by presuming to reweigh the evidence in the jury’s stead and misconstrued KRS 416.660, we reverse.

ANALYSIS

Sections 13 and 242 of the Kentucky Constitution and the Fifth Amendment of the United States Constitution permit the taking of private property for public use, but not “without just compensation.” Just compensation means a compensation fair to the public in need of the property and paying for it as well as fair to the individual obliged to surrender it. United States v. 320.0 Acres of Land, 605 F.2d 762, 780 (5th Cir.1979) (citing Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270 (1897)); Commonwealth, Department of Highways v. Sherrod, 367 S.W.2d 844 (Ky.1963). Generally, this balance is struck by determining the fair market value of the property at the time of the taking. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943); Bianchi v. City of Harlan, 274 S.W.3d 368 (Ky.2008) (citing Sherrod and KRS 416.660). Because the market value is affected by potential uses of the property as well as the use to which it is currently being put, market value means the amount in cash that a willing buyer would pay to a willing seller, taking into consideration “all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered ... to the full extent that the prospect of demand for such use affects the market value while the property is privately held.” Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934) (citations omitted). Generally, any fact a willing buyer or seller would deem material to the negotiation is relevant, but if the landowner wishes to present to the jury a prospective use other than the use to which the property is being put at the time of the taking, he or she must show both that the land is physically adaptable to such use, and that there is a need or demand for such use at the time of the taking or that there will be in the reasonably near future. Commonwealth, Department of Highways v. Gearhart, 383 S.W.2d 922 (Ky.1964). Even relevant evidence may be excluded, of course, if its prejudicial effect substantially outweighs its probative value. KRE 403.

I. Sufficient Evidence Supported the Jury’s Implicit Best-Use Finding

The Airport Board’s main argument, at trial and on appeal, is that Bastón failed to prove that her property was physically adaptable for industrial uses. Using computer-generated diagrams, the Airport Board’s architectural and engineering experts purported to show that tractor-trailers could not, within the existing right-of-way, negotiate the hairpin turn between Hill Road and Hossman Road. Because, according to the Airport Board, enlarging the road and fixing the curve would be exorbitantly expensive, the Bastón property could not be deemed adaptable to industrial use. Baston’s engineering expert disagreed. He testified that he was familiar with the sort of software the Airport Board’s engineer had employed and that it tended to depict what would be the most desirable conditions in an ideal world, but that it did not exhaust what could be done in the real world. He testified that he had inspected Hill Road and its curve and that based on his forty years of experience helping to develop industrial sites and his personal knowledge of several Boone County industrial sites served by similarly narrow roads with sharp turns (which he named and described), he believed the Hill Road curve could be ameliorated to permit tractor-trailer use. This testimony was consistent with that of Mrs. Bastón, who testified that school buses and all manner of trucks, including tractor-trailers, had navigated the Hill Road curve. Characterizing the engineer’s testimony as “bald” and “wholly unsupported,” the Court of Appeals’ majority agreed with the Airport Board that Bastón had failed to show that the property was capable of industrial use. We disagree.

Mrs. Baston’s engineer was duly qualified by training and long experience to form an opinion about the amenability of Hill Road and its sharp turn to tractor-trailer traffic. His testimony was supported by the several real-world, Boone County examples he cited where similarly narrow roads with sharp turns had not foreclosed industrial development. His testimony was also supported by that of Mrs. Bastón, who indicated, contrary to the computer model representations of the Airport Board’s experts, that she was aware from living in the area for over forty years that it was possible for trucks to negotiate the Hill Road turn. Under KRE 702, the admissibility of expert testimony is a matter entrusted to the discretion of the trial court. The Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d 575 (Ky.2000). The trial court did not abuse that discretion by admitting the testimony of Baston’s well-qualified engineer.

Once it is properly admitted, “[e]valuation of the weight which should be given to expert testimony is the exclusive province of the jury.” Ellison v. R & B Contracting, Inc., 32 S.W.3d 66, 76 (Ky.2000). A reviewing court may overturn a jury’s verdict “only when it is so flagrantly against the weight of the evidence as to indicate passion or prejudice.” Denzik v. Denzik, 197 S.W.3d 108, 110 (Ky.2006) (citing Bierman v. Klapheke, 967 S.W.2d 16 (Ky.1998)). The jury here was not obliged to accept the Airport Board’s expert evidence uncritically, nor was it obliged to discount Baston’s evidence merely because her engineer did not engage in a battle of computer-generated diagrams. On cross-examination, he was asked if he understood the turning radius requirements of tractor-trailers. He testified that he did and still maintained that the Hill Road turn could accommodate tractor-trailer traffic. The Airport Board was free to cross-examine further the basis of the engineer’s opinion, but it chose not to do so. The jury could reasonably rely on the engineer’s testimony to conclude that Hill Road did not pose the insurmountable obstacle to industrial use that the Airport Board claimed. The Court of Appeals usurped the jury’s role by ruling otherwise.

II. The Trial Was Not Tainted By Improper Argument

The Court of Appeals also concluded that the jury was likely to have weighed the evidence as it did because it had been tainted by Baston’s counsel’s references to and questions concerning the effect of the runway project on development in the condemned area and more generally by references to the airport’s assets and resources. The Court of Appeals believed the references to the effect of the project violated KRS 416.660 and, furthermore, the references to the airport’s assets impermissibly invited the jury to view the case as pitting a large, callous public entity against a lone, elderly woman. We consider the alleged statutory violation first.

A. KRS 416.660 Requires That the Market Effect of the Government Project be Corrected in Arriving at Fair Market Value

As noted above, the general rule is that the condemnor must pay the fair market value of the property at the time of the taking. An impending condemnation, however, can distort the market by inflating or depressing land values. United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970). (“[T]he ‘market value’ of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary.”). As the United States Supreme Court has observed, “it would be manifestly unjust to permit a public authority to depreciate property values by a threat of the construction of a government project and then to take advantage of this depression in the price which it must pay for the property when eventually condemned.” United States v. Va. Elec. Power Co., 365 U.S. 624, 636, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961) (citation and internal quotation marks omitted). The depreciatory effects of a projected condemnation are often referred to as “condemnation blight.” See, e.g., Howell Plaza, Inc. v. State Highway Comm., 92 Wis.2d 74, 284 N.W.2d 887, 890-91 (1979); (citing, 4 Nichols, Eminent Domain § 12.3151(b)(5) (3d ed.)). (“The term ‘condemnation blight’ has been coined to denote ‘the debilitating effect upon value of a threatened, imminent or potential condemnation.’ ”). It would be similarly unjust to require the government to pay a price inflated by the prospect of condemnation, Reynolds, supra, and so the rule has evolved that market value should be determined as if the condemnation did not exist. United States v. 8,968.06 Acres of Land, 326 F.Supp. 546 (S.D.Tex.1971) (citing United States v. Miller, supra).

Kentucky has codified this rule in KRS 416.660, which provides in pertinent part that “[a]ny change in the fair market value prior to the date of condemnation which the condemnor or condemnee establishes was substantially due to the general knowledge of the imminence of condemnation or the construction of the project shall be disregarded in determining fair market value.” To reiterate, the statute does not state that the impact of the proposed condemnation or project shall be excluded from evidence but rather that fair market value should be determined by disregarding any such impact. Thus, if knowledge of the construction of a highway project has caused property in the vicinity to triple in value, the condemnor must be allowed to develop that evidence so as to substantiate a lower fair market value than what would be derived from examining recent, inflated sales in the area. Conversely, if knowledge of a project has depressed property values or limited options for development that otherwise would have existed, the landowner must be allowed to establish how and to what extent property values have been adversely affected.

Precisely how this correction for the influence of the project is to be made is a matter that must be determined on a case-by-case basis depending, among other things, on the particular project involved and whether its effect is depreciatory or inflationary. Although generally the property is to be valued at the time of taking, to eliminate the distorting effect of the project courts have sometimes admitted evidence of value at the time the project was first announced. In re the City of New York, 25 Misc.3d 288, 887 N.Y.S.2d 776 (Sup.Ct.2009). In other circumstances, courts have excluded evidence of allegedly comparable sales where the sales likely reflect project-influenced prices. State v. Kapahi 48 Haw. 101, 395 P.2d 932 (1964); United States v. 10.082 Acres of Land, 2007 WL 962846 (D.Ariz.2007). There may be other ways to “remove” the market’s knowledge of the project, and trial courts are free to employ them as appropriate.

KRS 416.660 does not, therefore, as the Airport Board maintains and as the Court of Appeals held, bar all evidence of the project’s effect. Where condemnation blight or project influence is alleged, the better practice is to address the evidentiary ramifications prior to trial in a KRE 104 hearing. In this case, the Airport Board raised the issue prior to trial, but took the position that the statute rendered the project’s influence irrelevant and evidence about it therefore inadmissible. As just discussed, however, where shown to exist, the project’s influence on the market value of affected property is highly relevant and evidence correcting for that influence must be allowed. The record contains no written ruling on the Airport Board’s motion and it appears that the trial court opted to deal with the matter as the evidence was offered at trial.

Because the issue was not actually addressed prior to trial, evidence of project influence came up somewhat haphazardly during trial, but not so as to constitute reversible error. Bastón introduced evidence that in 1997 the Airport Board notified her and other landowners in the path of the new runway that it intended to condemn their land. Not long thereafter the runway project became public knowledge. Bastón also introduced some evidence and sought to introduce other evidence that following these notices no development took place on the properties earmarked for condemnation, because the condemnation “had killed development in the area.” The relevance of this evidence was two-fold: it provided a reason other than the property’s alleged unsuitability for the fact that Baston’s property had not been industrially developed, and it helped explain why her appraiser had not been able to refer to comparable sales in the immediate vicinity of her property but had had to look for comparable sales at other points along the airport’s perimeter. It may well be that a proper pre-trial motion could have rendered these points uncontested and some of the evidence therefore unnecessary, but without that preliminary determination the trial court did not abuse its discretion by denying the Airport Board’s repeated motions for a mistrial on the ground that references to the project’s influence violated KRS 416.660. The Court of Appeals erred by ruling otherwise.

In the same vein, the Airport Board asserts that Bastón violated KRS 416.660 when she elicited testimony from the airport’s Deputy Director of Aviation that the Airport Board had prevented, by way of condemnation, the development of an Au Chocolat franchise on property near Ba-ston’s when it learned that the proposed development would interfere with roadways the airport "wished to preserve. Counsel then asked the Airport’s Deputy Director if Au Chocolat had not purchased property at another point along the perimeter for $82,500.00 per acre. There was no objection to this question, and the witness answered that Au Chocolat had relocated, but that he did not know any of the details of the transaction. When counsel later asked whether development of the Au Chocolat franchise on the parcel near Ba-stón would not have made neighboring property more valuable, the Airport Board objected and its objection was sustained.

Notwithstanding its successful objection, the Airport Board insists that reference to a phantom comparable sale violated KRS 416.660 and necessitated a mistrial. Although it is not clear from the testimony that the Au Chocolat condemnation was part of the runway project, even if it was, evidence that the project prevented potentially comparable sales near Baston’s property was relevant, as noted above, to explain why Bastón had to look at property farther away for such sales. Whether or not Baston’s counsel should have referred to the price of a sale that had not been introduced into evidence and shown to be comparable, the Airport Board did not timely object to that reference, and the reference does not amount to a palpable error. The $82,500.00 per acre figure was well within the range the Airport Board’s own expert assigned to the value of industrial property in the area, and in light of the plethora of evidence concerning industrial development surrounding the airport, reference to this particular development cannot be said to have swayed the jury’s best-use determination or otherwise to have resulted in a manifest injustice. CR 61.02.

In sum, KRS 416.660 does not, as the Airport Board argues and as the Court of Appeals held, require that increases or decreases in market value caused by the announcement of a government project be disregarded in the sense of being completely ignored. It requires, rather, that the announcement’s effect on the market be disregarded in the sense of being corrected for, of being removed, in determining the fair market value of the property. The correction may involve excluding evidence of tainted values or, as in this case, permitting evidence tending to show what the use and value of the condemned property would have been absent market awareness of the project. Although it could, perhaps, have been limited by an appropriate pretrial motion,- the evidence admitted and referred to at trial tending to show that the announcement of the runway project prevented industrial development in the area earmarked for condemnation did not violate the statute and does not entitle the Airport Board to relief.

B. Incidental References to the Airport’s Wealth and Assertions of Mrs. Baston’s Right to Justice Did Not Amount to Improper Argument

Finally, the Airport Board insists that Baston’s counsel improperly sought to portray the Airport Board as dealing with Bastón in bad faith and improperly appealed to the jury’s prejudice against large institutions. Relying on cases such as Risen v. Pierce, 807 S.W.2d 945 (Ky.1991), in which we have refused to tolerate counsel’s references in questioning and in closing argument to matters expressly excluded from evidence, the Airport Board focuses much of its argument on counsel’s assert-edly improper references to the market effects of the project. As just discussed, however, those references did not violate KRS 416.660; nor were they outside the record as expressly ruled upon by the court. They do not, therefore, come within the rule addressed in Risen.

Counsel’s remarks were improper aside from the statute, the Airport Board asserts, because they insinuated that the airport announced the project as early as it did, in 1997, so as to depress the value of the property it planned eventually to condemn. This argument is unavailing, however, because Baston’s counsel did not argue that the value of the condemned properties had been depressed. He noted, rather, that their industrial development had been stifled, a result clearly stemming not from any bad faith on the airport’s part but from the plain economic fact that rarely will property slated for condemnation be developed.

Relying on cases such as Clement Brothers Company, Inc. v. Everett, 414 S.W.2d 576 (Ky.1967) and Rockwell International Corporation v. Wilhite, 143 S.W.3d 604 (Ky.App.2003), in which relief was granted from what were deemed excessive damage and punitive damage awards on the ground that counsel had engaged in flagrantly improper closing argument, the Airport Board also complains that Baston’s counsel improperly appealed to the jury’s passions and prejudice in a number of ways. Counsel is said to have erred by asking in his opening statement whether the Airport Board had acted in good faith when it offered to buy Baston’s property in 1995 as a part of its noise mitigation program and by stating in closing argument that the current offer for Baston’s property — $350,000.00—was not enough, was not “the kind of compensation that she deserves for hanging in there. That’s not her measure of justice on this day.” The Airport Board also insists counsel erred during his questioning of the airport’s Deputy Director, by asking about the Airport Board’s acquisition of millions of dollars worth of property, its ownership of over 7,000 acres of real estate, its pollution violations, and the large number of appraisers under contract to it. Although all of these questions were objected to and all of the objections were sustained, the Airport Board maintains that the unanswered questions themselves, together with the assertedly improper opening and closing remarks were intended to, and did, paint the airport as a rich and heartless entity running roughshod over a defenseless individual. We disagree.

The Airport Board is correct that flagrantly improper argument can justify overturning a verdict that otherwise appears excessive. Smith v. McMillan, 841 S.W.2d 172 (Ky.1992); Clement Brothers, supra; Rockwell, supra. However, the argument here was not improper, much less comparable to the flagrantly improper references to excluded evidence and express characterizations of foreign corporations as wolves preying upon humble Kentuckians that our earlier cases have deemed intolerable.

Here, Bastón was permitted to question the Deputy Director about the airport’s concerns regarding development in the likely path of airport expansion. The Deputy Director explained that the airport generally preferred industrial development around its perimeter because residential development was more expensive to mitigate. Accordingly, he testified, the Airport Board had on a number of occasions intervened, either in the market or by condemnation, to prevent a planned residential development. This testimony could be thought to lend credence to Ba-ston’s proof that her property was better suited for industrial purposes than residential, and also to undermine the Airport Board’s contrary contention as contrived.

To bolster her claim that residential development was not appropriate around the airport, Bastón attempted to show that the airport was a source of other forms of pollution besides noise pollution, but those questions were disallowed for want of expert testimony. Bastón also wished to argue that because the airport itself owned so much of the surrounding land, the price of the remaining land had been bid up, but that evidence, too, was disallowed, in part no doubt to prevent any undue emphasis on the parties’ disparate financial circumstances. These questions and the arguments they were meant to support, although not admitted, are simply not comparable to the arguments deemed intolerable in the cases cited above.

The Airport Board, first of all, is not a foreign corporation against whom hometown bias could be incited. Counsel did not characterize the airport as grasping or wolfish, did not refer to the mansions of airport executives and did not refer to airport counsel as cold-blooded and mercenary. While Baston’s counsel’s remarks were pointed they were not gratuitous or inflammatory. Counsel did not, in short, invite the jury to substitute a purely emotional response to the parties, in lieu of a reasoned consideration of the evidence under the court’s instructions.

Counsel’s questioning of the Airport Board’s “good faith” in his opening statement, although the most questionable of the remarks about which the Airport Board complains, was reasonably calculated to convey not that the airport had engaged in any wrong doing but rather that in pursuing its own interest it had offered Bastón less for her property than a disinterested person might have done. It is not improper for counsel to ask the jury to assess the other side’s case critically. Given the tension, moreover, between on the one hand the Deputy Director’s testimony that the airport generally opposed the residential development of surrounding property, and, on the other hand, the Airport Board’s claim that Baston’s property was best suited for residential development, counsel could legitimately ask the jury to question the sincerity of the Airport Board’s offer.

Finally, it was not improper for counsel to refer in closing to Baston’s “measure of justice.” Bastón was, after all, entitled to “just compensation.” We fail to see how counsel’s assertion of that right in any way maligned the Airport Board or appealed unfairly to the jury’s emotion. In the end, the jury was well aware that it was addressing the fair market value of a local citizen’s long-time residential property, property that one of the nation’s largest international airports, an important corporate citizen and local employer, found necessary for expansion of its operations.

CONCLUSION

In sum, under both the Kentucky and the United States Constitutions, a landowner whose property is taken for public purposes must be justly compensated. In Kentucky, a jury ultimately determines what compensation is just, and in this case there was more than ample evidence for the jury to decide that the Bastón property, surrounded by industrial development and in an area which both the Airport Board and the Boone County Planning Commission envisioned as industrial, would be put to its highest and best use by being developed industrially rather than residentially. Notwithstanding the fact that the property was served by a narrow road that was not ideal and needed improvement, other properties in the area had been adapted for industrial use and qualified experts opined that the Bastón property could also become industrial in use with appropriate, feasible modifications to the road. The Court of Appeals erred by substituting its weighing of the evidence for that of the jury. The Court of Appeals erred further by ruling that the landowner’s counsel appealed impermissi-bly to the jury either by referring to the effects of the airport’s runway project or to the obvious fact that the Airport Board is a large landowner with formidable resources. KRS 416.660 requires that the market effects of government projects be removed from the determination of a condemned property’s market value, not that they be ignored and suppressed altogether from evidence. Finally, the airport’s wealth was hardly a secret, and counsel’s references to it were not gratuitous, inflammatory statements likely to distract the jury from the relevant evidence. Accordingly, we reverse the Opinion of the Court of Appeals and hereby reinstate the November 29, 2005 Judgment of the Boone Circuit Court.

MINTON, C.J.; CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ. concur. SCHRODER, J., not sitting.

      . Bastón called the airport Deputy Director as a witness but, pursuant to KRE 607, she was entitled to impeach his credibility and, pursuant to KRE 611(c), to ask leading questions.

      . In Smith, counsel for a defendant-physician in a medical malpractice case equated being sued for malpractice with criminal charges, referred repeatedly to "presumably horrible” photographs that had been excluded from evidence, accused the plaintiff's expert of collaborating with plaintiffs counsel simply to earn money and suggested that all of plaintiffs counsel's objections had prevented the jury from seeing the case he could have properly presented on behalf of the unfairly maligned physician. 841 S.W.2d at 174. In Clement Brothers, plaintiffs counsel characterized the corporate defendant in a negligence case involving blasting damages as a "rich, grasping, foreign corporation running ruthlessly roughshod over the poor, honest, long-suffering citizens of Barren County; its attorney as a rich man who would be upset if it were his 'mansion' that suffered the blasting damage” and the whole scenario as akin to "a wolf devouring a lamb.” 414 S.W.2d at 577. In Rockwell, plaintiff’s counsel referred repeatedly to the corporation’s California base "where everybody has got a tan and a $60 haircut and life is good.” Counsel also implored the jury to consider the difference between men (which God made with a soul) and corporations (which men made to make money), and the champagne corks that would pop in Seal Beach, California if the jury did not impose punitive damages. 143 S.W.3d at 627-28.


source: Caselaw Access Project

author: Justice VENTERS.

license: Public Domain

text:
    Elaine T. HENSON and St. Paul Fire and Marine Insurance Company, Appellants/Cross-Appellees, v. David KLEIN, Appellee/Cross-Appellant.
    Nos. 2007-SC-000795-DG, 2008-SC-000204-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Brian Edward Clare, Judson Fuller Devlin, Fulton & Devlin, Louisville, KY, Counsel for Appellants/Cross-Appellees.
    Catherine Marie Cundiff Sewell, Peter J. Sewell, Derek Patrick O’Bryan, Sewell, O’Brien & Neal, PLLC, Louisville, KY, Counsel for Appellee/Cross-Appellant.
   Opinion of the Court by

Justice VENTERS.

This case arises from the collision of two personal watercrafts on Lake Cumberland, one operated by Appellant, Elaine Henson, and the other operated by Appellee, David Klein. A judgment based on a jury verdict was entered in the trial court in Klein’s favor. The Court of Appeals affirmed the judgment. We granted discretionary review to consider Henson’s argument that the jury was incorrectly instructed on the sudden emergency doctrine, and to re-examine our holding in Regenstreif v. Phelps, 142 S.W.3d 1 (Ky.2004). We conclude that the sudden emergency jury instruction is essential to a proper determination of liability in emergency situations. Accordingly, we reaffirm Regenstreif, and affirm the decision of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

As a result of the collision, Henson sued Klein, alleging that his negligence caused her injuries. St. Paul Fire and Marine Insurance Company paid workers’ compensation benefits to Henson, and intervened in the action to assert its right of subrogation against Klein. By agreement prior to trial, St. Paul allowed its interest in the matter to rise or fall with Henson’s claim and did not participate in the trial. Although both Henson and St. Paul have appealed, for the reader’s convenience, we refer throughout this opinion to both Appellants collectively as “Henson.”

Evidence at trial established the following facts. Henson, director of business development for a construction company, assisted her employer in entertaining several business guests for a weekend on a houseboat on Lake Cumberland. Henson’s friend, Klein, accompanied her to assist as needed. The houseboat was equipped with two personal watercrafts which were available for use by the hosts and their guests.

“Personal watercraft” is defined by KRS 235.010(4) as a vessel which uses an internal combustion engine to power a jet pump for its primary source of propulsion, and is operated by a person sitting, standing, or kneeling on the vessel, as opposed to a conventional boat, within which passengers and operators ride. Personal watercrafts are more commonly known by their brand names, such as Jet Ski, WaveRunner, or Sea-Doo. The two involved here were Sea-Doos, and we will refer to them throughout this opinion by that name.

Like most boats, a Sea-Doo has no mechanical brake. Stopping is normally achieved by releasing the throttle to stop the forward propulsion. With no rudder, steering is achieved by turning a handlebar that changes the direction of the jet thrust. As a result, steering efficacy is significantly reduced when the throttle is released. Because they operate under different mechanical systems and in an entirely different environment, the driving characteristics of personal watercrafts are very different from automobiles, motorcycles, or other vehicles that operate on land.

During the weekend outing, Henson decided to take a ride on one of the Sea-Doos. Her employer asked Klein to follow her on the other Sea-Doo. He complied. After about an hour, they decided to return to the houseboat. Henson led the way, with Klein trailing behind her and off to the left, in what may be described as the “wingman formation.” The testimony placed Klein thirty to forty-five feet behind Henson and ten to twenty feet to her left. Elmer Knable, one of the business guests on the houseboat, witnessed the impending collision between Henson and Klein.

Knable testified that as the two Sea-Doos drew near the houseboat, Henson looked back over her left shoulder and shouted something to Klein. As she did so, she suddenly turned her Sea-Doo sharply to the left and abruptly decelerated to a stop directly in Klein’s path. Klein reacted by leaning his body to the left and steering toward the left in an apparent effort to avoid Henson, but within seconds his Sea-Doo struck the forward left side of Henson’s craft. The collision left Henson with serious injuries. Knable testified that if Henson had not abruptly turned to the left and stopped, Klein would not have hit her. No evidence was offered to suggest that Henson was confronted with an object or obstacle that she sought to avoid by stopping or turning to the left.

Henson brought suit against Klein in the Jefferson Circuit Court. In due course, the case was tried before a jury. With respect to Klein’s duties, the trial court instructed the jury as follows:

It was the duty of [Klein] ... to exercise ordinary care for the safety of other persons using the waterway, including [Henson], and this general duty included the following specific duties:
(a) To operate his personal watercraft in a reasonable and prudent manner in accordance with the “Rules of the Road” so as not to endanger human life, human physical safety or property; []
All of the above duties being subject, however, to this qualification: that if immediately before the accident [Klein] was suddenly and unexpectedly confronted with an emergency by [Henson] turning her personal watercraft into the path of [Klein’s] approaching watercraft, and if such emergency was not brought about by any failure on his part to perform the duties above set forth, he was not thereafter required to adopt the best course possible in order to avoid the impending danger but was required to exercise only such care as the jury would expect an ordinarily prudent person to exercise under the same conditions and circumstances.
If you are satisfied from the evidence that [Klein], failed to comply with one or more of his duties and that such failure on his part was a substantial factor in causing the accident, you will find [Klein] at fault.

With respect to Henson, the trial gave this instruction:

It was the duty of [Henson] ... to exercise ordinary care for the safety of other persons using the waterway, including [Klein], and this general duty included the following specific duties:
(a) To operate her personal watercraft in a reasonable and prudent manner in accordance with the “Rules of the Road” so as not to endanger human life, human physical safety or property;[] and
(b) Not to change the course of her personal watercraft without first determining that a course change could be made without risk of collision.[]
If you are satisfied from the evidence that [Henson] failed to comply with one or more of her duties, and that such failure was a substantial factor in causing the accident, you will find [Henson] at fault for the accident.

These instructions were followed by a proper apportionment of fault instruction. The interrogatory in the first verdict form asked the jury, “Did defendant, David Klein, fail to comply with one or more of the duties set forth in Instruction No. 1, and, if so was that failure a substantial factor in causing the collision?” The jury answered “no,” and as instructed, completed no other verdict forms, and then returned its verdict to the courtroom. Judgment was entered accordingly.

Henson appealed and argued to the Court of Appeals that the trial court erred by instructing the jury that Klein’s duties were subject to the sudden emergency doctrine and by failing to instruct the jury that Henson had the right-of-way over Klein. Klein filed a protective cross-appeal to preserve his claim that the trial court erred by refusing to allow opinion testimony from an officer who had investigated the accident. The Court of Appeals affirmed the judgment on appeal without reaching the merits of the cross-appeal.

On discretionary review, Henson reiterates her arguments regarding the jury instructions. We invited the parties to submit additional oral and written arguments relating to the viability of the sudden emergency doctrine. Henson argues that because tort damages are now allocated in accordance with comparative fault principles, the sudden emergency doctrine and the jury instruction that implements it no longer serve a useful purpose and cause confusion for juries.

II. THE SUDDEN EMERGENCY DOCTRINE RETAINS A VALID AND USEFUL PLACE IN KENTUCKY JURISPRUDENCE

A. The Current Status of the Sudden Emergency Doctrine in Kentucky

In Bass v. Williams, 839 S.W.2d 559, 563 (Ky.App.1992), the Court of Appeals concluded that the shift from contributory negligence to comparative negligence eliminated the need for a sudden emergency instruction. The Bass court reasoned that the sudden emergency doctrine “has a quality to it that diminishes the duties of the defendant-driver ... and is in violation of the ‘direct proportion to fault’ concept in Hilen[],” and further, that it violates the concept that “[a party] is liable for an amount equal to his degree of fault, no more and no less.” Bass, 839 S.W.2d at 563; see also Stratton v. Parker, 793 5.W.2d 817, 820 (Ky.1990).

The demise of the sudden emergency doctrine in Kentucky was short-lived. Twelve years later, in Regenstreif v. Phelps, 142 S.W.3d 1 (Ky.2004), this Court overruled Bass. Regenstreif rejected the notion that the sudden emergency doctrine was incompatible with comparative negligence, finding instead that it “necessarily complements” comparative negligence “in those particular cases where additional circumstances alter the way in which one’s degree of fault should be determined.” Id. at 6.

Despite Regenstreif the question of the sudden emergency doctrine’s viability lingered. Now, we reaffirm its place as a necessary component of the process by which juries must determine the fault of parties who, finding themselves suddenly and unexpectedly in a position of imminent peril, respond in a way that might otherwise breach a specific duty of due care.

B. The Sudden Emergency Doctrine Defined

The sudden emergency doctrine is generally defined at 57A Am.Jur.2d, Negligence § 198 (2004):

[W]hen an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.

The Restatement (Second) of Torts § 296 (1965) describes it as follows:

(1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.
(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency.

The rationale for the rule arises from the perception of human nature that “a prudent person, when brought face to face with an unexpected danger, may fail to use the best judgment, may omit some precaution that otherwise might have been taken, and may not choose the best available method of meeting the dangers of the situation.” 57A Am.Jur.2d, Negligence § 200 (2004). “The principle embodied in [the sudden emergency] rule enjoys almost universal acceptance in the courts of the nation, founded as it is upon common sense and a proper recognition of prudent standards in human conduct,” Breaux v. Roy Young, Inc., 397 So.2d 1384, 1388 (La.App.1981).

An important aspect in understanding how to transfer the doctrine from its abstract theoretical definition to a real-world practical context is emphasized in the following articulation of the concept, from Regenstreif, 142 S.W.3d at 4, (quoting Harris v. Thompson, 497 S.W.2d 422, 428 (Ky.App.197S)):

[W]hen a defendant is confronted with a condition he has had no reason to anticipate and has not brought on by his own fault, but which alters the duties he would otherwise have been bound to observe, then the effect of that circumstance upon these duties must be covered by the instructions.

(emphasis added).

As explained below in Section C, without the specific sudden emergency instruction, the duties set out in standard comparative negligence instructions would be immutable. They would not permit the jury to base its finding of fault on whether it believed a party’s conduct was a reasonable response to an emergency situation because the jury would not know that a qualifying emergency event “alters the duties” required of the affected party.

C. The Development of Sudden Emergency Doctrine in Kentucky Jurisprudence

In City of Louisville v. Maresz, 835 S.W.2d 889, 892 (Ky.App.1992), the Court of Appeals briefly recited the historic underpinning of the sudden emergency doctrine, including its introduction into American law by the United States Supreme Court in Stokes v. Saltonstall, 38 U.S. (13 Pet.) 181, 193, 10 L.Ed. 115 (1839) (citing as authority the English case of Jones v. Boyce, 1 Starkie’s Rep. 393, 171 Eng. Rep. 540 (N.P.1816)) and its introduction into Kentucky jurisprudence in South Covington & Cincinnati Street Ry. Co. v. Ware, 84 Ky. 267, 1 S.W. 493 (1886) (citing Stokes, and noting that “[t]his rule is sustained by both reason and precedent.”)

The rule of law is that when a person is placed in a position of peril by the negligence of another, and is compelled to choose instantly what to do to save himself, if he chooses as a person of ordinary prudence would have in such a position and is injured, he has a right to recover, notwithstanding the fact that, if he had made a different choice, he would not have been injured.

Illinois Central R. Co. v. Wilkins, 149 Ky. 35, 147 S.W. 759, 760 (1912).

Although the sudden emergency doctrine initially appeared in cases, such as Illinois Central R. Co., absolving the plaintiff from the fatal effect of contributory negligence, the rationale behind the rule applied with equal force to those defending themselves against charges of negligence. By the early twentieth century, a review of reported cases shows that the rule was more often invoked by defendants, often transportation companies, as evidenced by its application in Kentucky Traction & Terminal Co. v. Roschi’s Adm’r, 186 Ky. 371, 216 S.W. 579 (1919) and Consolidated Coach Corp. v. Hopkins’ Adm’r, 238 Ky. 136, 37 S.W.2d 1 (1931) (“[I]f the driver of the bus had turned to the right instead of turning to the left, he would have passed behind the Ford, and no one would have been injured, but, with only two-thirds of a second in which to act, the bus company is not responsible if he chose not the wisest course.”)

We are aware of no boating accident cases in Kentucky that involve the sudden emergency doctrine, but we note that the concept has long been accepted in mari-

time litigation. See The Elizabeth Jones, 112 U.S. 514, 526, 5 S.Ct. 468, 28 L.Ed. 812 (1884) (quoting The Bywell Castle, L.R. 4 Prob. Div. 219) (“where one ship has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind.”). In Sekerek v. Jutte, 153 Pa. 117, 25 A. 994, 995 (1893), the court noted:

[T]he change in the movement of the [decedent’s] boat which brought a portion of it in front of [appellants’ steamboat] was sudden, unexpected, and disconcerting. The action of the appellants’ servants must therefore be considered in the light of the situation which suddenly confronted them. They were in the presence of an emergency which imperiled the lives of the men in the boat, and ... had but a moment of time in which to think and act.

The doctrine has also been recognized in modern recreational boating accidents. See Reed v. Reed, 182 Neb. 136, 153 N.W.2d 356 (1967) (whether defendant’s conduct in motorboat collision was excusable under sudden emergency doctrine was question for jury); Del Vecchio v. Lund, 293 N.W.2d 474 (S.D.1980) (operator of motorboat that struck water skier held entitled to a sudden emergency instruction).

We turn next to an examination of the practical application of the doctrine before and after the shift to comparative negligence.

D. The Purpose Of The Sudden Emergency Instruction Is To Explain To A Jury That In An Emergency, Specific Duties Are Subject To Change

In his analysis of the doctrine in Harris, Chief Justice Palmore wrote:

[W]hether the instruction on a motorist’s duties should be qualified by a proviso such as the sudden emergency theory does not depend upon whether the particular circumstance might be characterized in common parlance as a ‘sudden emergency,’ but whether it changes or modifies the duties that would have been incumbent upon him in the absence of that circumstance.

497 S.W.2d at 428 (emphasis added.)

Henson, adopting the views expressed in Bass and the Regenstreif dissent, argues that a sudden emergency instruction is not needed under a comparative negligence system because “at the end of the [sudden emergency] analysis, the jury is back to the exact language of ordinary care.” The following statement reveals the flaw of that view:

It is our belief that the sudden emergency instruction so qualifies [Defendant’s] duties to such an extent that they are lessened. Fault is determined by breach of duties and that is the sole factor upon which liability is fixed.... It is conclusively clear that such an instruction is not necessary because everything under the sudden emergency was already said in the instructions on general and specific duties of the driver.

Bass, 839 S.W.2d at 563.

Far from being a defect of the sudden emergency instruction, the “lessening]” of the duties applicable to individuals confronted with a sudden emergency is exactly what the doctrine requires. It is the essence of the doctrine as it developed in American law over the past 170 years. The sudden emergency instruction tells the jury that, if it believes an emergency existed, the relevant duties change.

When the substantive law of the case admits to no specific duties, a sudden emergency instruction may be unnecessary. The genei*al duty to exercise ordinary care for one’s own safety and the safety of others is universally present and never changes, although the conduct that constitutes a violation of the general duty may depend on the circumstances. But in the modern world of litigation, most aspects of human conduct and interaction are governed by statutes and regulations that prescribe specific duties. A negligence claim resting exclusively on the general duty of ordinary care is rare indeed. When a statutory duty is supported by evidence, it must be incorporated into a jury instruction as a “specific duty.” Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711, 722 (Ky.App.1992) (“[TJhe court obviously is required to instruct the jury regarding that [statutory] duty because the violation of such a duty, standing alone, may be sufficient to support a claim of negligence.”).

Moreover, when a statutory duty is applicable, the jury instructions should, after explaining the general duty, specify that it “includes” certain enumerated specific duties because the breach of a duty imposed by statute or ordinance is negligence per se if the harm which occurred incident to violation of the statute is that type of harm which the statute was intended to prevent. See Wemyss v. Coleman, 729 S.W.2d 174, 180 (Ky.1987). Where one’s ability to conform to a specific duty is arguably affected by the presence of a sudden and unexpected peril, the jury is not adequately or fairly informed of what the substantive law requires unless the specific duty is qualified with a sudden emergency instruction.

Harris illustrates the point. There, a motorist crossed the centerline of a highway in apparent violation of his specific duties to keep his vehicle under reasonable control and on the right side of the road. As a result, he struck and killed two pedestrians. Harris pinpoints the reason why the sudden emergency instruction is necessary:

In this case the [sudden emergency instruction] was made necessary because by not remaining on the right side of the road [the motorist] violated a specific duty unless the exceptional circumstance of the ice on the road had the effect of relieving him from it. Had the accident taken place in his own lane of travel, or on the right side of the highway, it would not have been necessary, because then the unexpected presence of the ice would have amounted to no more than a condition bearing upon the question of whether the accident resulted from a failure on his part to comply with the more generalized duties of ordinary care. The proper criterion is whether any of the specific duties set forth in the instruction would be subject to exception by reason of the claimed emergency.

Harris, 497 S.W.2d at 428 (emphasis added.)

The point bears repetition: had the accident occurred under circumstances that implicated only the generalized duty of ordinary care, no sudden emergency instruction was required. But, the specific duties implicated by the conduct in question would be subject to exception by reason of the claimed emergency. The presence of the emergency does not excuse the breach of a specific duty; under appropriate circumstances, it can eliminate the duty so that the conduct (crossing to the wrong side of the road) is not a breach at all. Harris accurately explained the consequences of failing to give the sudden emergency instruction when it is due:

The next following duty, which was to operate his automobile on the right-hand side of the highway ‘and not to pass over the center medium (sic) at the point where the accident herein occurred,’ was not modified so as to allow for an unanticipated emergency which, without fault on his part, may have prevented his so doing. As given in this instruction the duty was absolute, hence in the absence of some qualifying language appearing elsewhere in the instructions it would have amounted to a directed verdict against [the motorist], because obviously he did cross over the center line of the highway on the way toward striking the two pedestrians.

Id. at 427.

Without the “qualifying language” provided by a sudden emergency instruction, the jury would have no choice but to find the motorist at fault based on the obvious breach of specific duties, despite the law’s recognition that in an emergency, with little time for deliberation, the obligation to obey a specific duty may yield. A simple ordinary care instruction under comparative negligence does not do that.

E. The Advent Of Comparative Negligence Did Not Eliminate The Need To Instruct Juries On Sudden Emergency

Although the sudden emergency doctrine developed when contributory negligence denied damages to injured plaintiffs whose own breach of care contributed to their injuries, it is not in principle uniquely or exclusively applicable to contributory negligence. Moreover, nothing in the substance of the doctrine is incompatible with the more equitable principles of comparative negligence. Before the adoption of comparative negligence, juries routinely determined whether either party, or both parties, had breached general or specific duties of care. The sudden emergency qualification of those duties applies equally to both plaintiffs and defendants. Brown v. Todd, 425 S.W.2d 737, 739 (Ky.1968) (“the [sudden emergency] instruction qualifies the duties imposed on any party charged with negligence. In this case one of defendant’s defenses was that the plaintiff driver was contributorily negligent. If the latter had a right to defend the charge of contributory negligence on the ground of sudden emergency, he would be entitled to the instruction the same as if he had been a defendant charged with original negligence.”).

Under both comparative negligence and contributory , negligence principles, a judgment of liability is based on the answers to two questions. First, who was at fault? Second, upon what basis will the damages be allocated among those parties found to be at fault?

Under comparative negligence, the determination of who was at fault follows exactly the same path as it did under contributory negligence. The question of fault has always been answered by determining whether the party breached an applicable duty and whether the breach was a substantial factor in causing the injury claimed.

What comparative negligence changed was the way we allocate, or apportion, fault. Under contributory negligence, if the plaintiff was to any degree at fault for his injury, all the damage was allocated to him, and he could recover nothing from the defendant, regardless of the defendant’s degree of culpability. Under comparative negligence, the finder of fact allocates to each party a percentage of the total fault, and hence a percentage of the damages, based upon that party’s conduct and the relationship of that conduct to the injury. Because the sudden emergency doctrine relates only to the question of whether a duty 'was breached, and has no affect on the means by which damages are allocated, the shift to comparative negligence should not in any way alter our view about the necessity of a sudden emergency instruction. Whether we allocate damages under comparative negligence or contributory negligence, without a sudden emergency instruction, the jury has no way to know that one’s obligation to conform to specific duties may be affected by the sudden presence of imminent peril. Eliminating the sudden emergency instruction effectively eliminates the sudden emergency doctrine. We decline to do so now, and thus we reaffirm the conclusions reached in Regenstreif.

F. The Sudden Emergency Doctrine Should Not Be Modified To Apply Only When The Party Invoking It Is Entitled To A Directed Verdict

Citing Brown v. Wilson, 401 S.W.2d 77 (Ky.1966), Henson correctly notes that an emergency will not pardon the breach of a specific duty when the party invoking the doctrine caused the emergency. She contends, however, that the sudden emergency instruction given by the trial court created a presumption that Klein was acting within his standard of care, essentially granting Klein a directed verdict. We do not agree. The jury instruction given by the trial court properly and clearly informed the jury that Klein’s reaction to the sudden emergency could be considered only “if such emergency was not brought about by any failure on [Klein’s] part to perform the duties above set forth.” Whether Klein was negligent, and whether his own negligence was a factor in creating the emergency were issues of fact to be resolved by a well informed and properly instructed jury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky.2003) (“Breach and injury, are questions of fact for the jury to decide.”). The instruction given did not impede the jury’s ability to perform its role as the arbiter of the facts.

Henson also argues that the sudden emergency instruction given by the trial court was too confusing and too difficult for a jury to follow. She suggests that, if we decline to abolish the doctrine, we should establish a bright line rule limiting the sudden emergency instruction to cases in which the party seeking its protection would, but for the emergency, be entitled to a directed verdict.

The bright line rule urged by Henson would result in an unjust and uneven application of the sudden emergency doctrine. Under Henson’s bright line rule, the instruction would be denied to those against whom there existed some evidence of negligence before the onset of the emergency even though they may ultimately be found faultless if their negligence did not contribute to the emergency and their response to the emergency was reasonable under the circumstances. We see no indication that Kentucky trial courts and juries, in more than a century of experience with the sudden emergency doctrine, have experienced any difficulty in understanding or applying it. Therefore, we see no reason to modify the rule.

III. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE APPLICABLE DUTIES

Having reaffirmed the place of the sudden emergency doctrine in Kentucky jurisprudence, we now turn to Henson’s more specific question: whether the doctrine was properly applied, given the evidence before the trial court. Henson argues that the sudden emergency instruction should not have been given in this matter because the circumstances present here amounted to no more than a sudden “occurrence,” rather than a sudden emergency, and because Klein’s negligence precipitated the emergency. Finally, Henson asserts that the trial court erred by failing to instruct the jury that as the lead vehicle she had the right-of-way. We conclude that the trial court properly instructed the jury.

Relying primarily on Robinson v. Lansford, 222 S.W.3d 242 (Ky.App.2006) and adopting the terminology used therein, Henson contends that Klein was not confronted with a “sudden emergency” but instead faced only a “sudden occurrence.” She defines “sudden occurrence” as “a reasonably anticipated action,” whereas a sudden emergency is an “unforeseeable and unexpected event.” She argues that in the exercise of ordinary care, Klein should have anticipated that Henson would turn her Sea-Doo and yell to him, and thus the sudden emergency instruction was improper. We do not find that categorizing an event as either an “occurrence” or an “emergency51 is a particularly helpful tool in determining when the sudden emergency doctrine applies. Those categories are not the basis upon which Robinson was decided.

Robinson arose from a chain reaction, rear-end automobile collision. Robinson, in the lead vehicle, struck a vehicle in the road ahead of her and thus came to an abrupt stop. Lansford, following immediately behind Robinson, failed to stop and crashed into her. Lansford claimed Robinson’s sudden stop confronted him with a sudden emergency. The Court of Appeals, citing Harris, correctly concluded that the sudden emergency instruction should not have been given, stating “[t]he doctrine should be applied [only] if it changes or modifies a duty that would have been incumbent upon a plaintiff or defendant in the absence of the emergency.” Robinson, 222 S.W.3d at 245.

Lansford could not claim his response to Robinson’s abrupt stop must be viewed in light of how the emergency may have altered his specific duties because there was no evidence that he responded or took any action at all as a result of the emergency. He simply continued ahead until he crashed. His lack of any action in response to the perceived emergency precludes him from a sudden emergency instruction because no duty, “incumbent upon a plaintiff or defendant in the absence of the emergency” could have been affected. Id. For that reason, Robinson referred to the matter as a “sudden occurrence” rather than a “sudden emergency.”

Here, the evidence sufficiently supported Klein’s claim that when Henson suddenly changed course and turned in front of him, he responded by trying to retain control of his vessel while veering to the left away from her. He had other options. He could have released the throttle and tried to stop. He could have veered to the right. The sudden emergency instruction was properly given to inform the jury how Klein’s duty to operate his Sea-Doo in accordance with the “Rules of the Road” may have been affected by the facts as the jury found them.

Henson argues that the trial court and the Court of Appeals misconstrued the nature of the specific duties applicable to each of the parties. She asserts that by giving the sudden emergency instruction, the trial court adopted the theory that boats in the water should travel in “lanes” analogous to automobiles on a highway. This argument highlights the essential difference in the way the two parties view the accident. Henson sees the case as analogous to Robinson and Maresz; a rear-end collision that happened because two vehicles were travelling in the same lane, and the first one suddenly stopped, allowing the second vehicle to crash into it. Klein views the case, not as a rear-end collision case, but as a case in which Henson changed her path of travel in such a way that she entered Klein’s intended path.

“Each party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 449 (Ky.App.2006) (quoting Farrington Motors v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky.1957)). The problem with Henson’s argument is that no evidence supports it. The evidence shows without contradiction that her Sea-Doo was not struck from behind because of a sudden stop. It was struck on the left side when she suddenly and sharply turned away from her line of travel. In more nautical terms, she changed her course, and entered Klein’s anticipated line of travel.

Whether the two Sea-Doos, travelling together in a wingman formation, are considered to be travelling within a single lane or traveling in separate parallel lanes is immaterial to our resolution of the matter. Henson did not ask for an instruction that reflected either view. Her complaint is the sudden emergency instruction tacitly established a “lane theory” with attendant duties not recognized by the law. We neither endorse nor condemn what Henson refers to as a “lane theory.” The evidence simply did not support her theory that this was a rear-end collision.

Henson further contends that the trial court improperly declined to instruct the jury on a second theory of the case— that Klein failed to yield the right-of-way to Henson. 301 KAR 6:030; § 6(b)(2) provides, among other things, that the operator of a vessel (including personal watercraft) overtaking another vessel “shall yield the right of way to the vessel being overtaken.” We agree with the trial court and the Court of Appeals that the evidence does not support such an instruction. There was no evidence that Klein was overtaking Henson or that the collision occurred because he failed to yield the right-of-way. Therefore an instruction reflecting that theory of the case was not proper.

We conclude that the trial court correctly instructed the jury on the duties applicable to each party, and properly qualified Klein’s specific duty with the sudden emergency instruction.

TV. KRS 285.285(4): “THE RULES OF THE ROAD”

As noted previously, the jury was instructed on the general duty of ordinary care and the specific duty imposed by KRS 235.285(4) to operate a motorboat or personal watercraft on public waters “according to the ‘Rules of the Road’ and in a reasonable and prudent manner so as not to endanger human life, human physical safety, or property.” No objection was made to this instruction. In doing so, the trial court complied with its obligation to instruct in accordance with the applicable duties, as described in Wemyss, 729 S.W.2d at 180:

The “general duty,” breach of which gives rise to liability, is the duty to exercise ordinary care, and properly drafted instructions utilize “specific duties” as imposed by statutes only as amplification of the “general duty,” and not as the source of such duty. Where there is a statutory duty, the usual instruction, after explaining the general duty, will then specify that such general duty “includes” certain enumerated specific duties. See illustrative instructions in Palmore, Kentucky Instructions to Juries, Vol. 2, Chapter 16, Automobiles.

However, we cannot allow the uncertainty in the specific duty created by KRS 235.285(4) to pass without comment. Nothing in the statute explains what compliance with those “Rules” requires or what the legislature meant by “the Rules of the Road.” The statute is vague in that regard. It was suggested at the trial and presented as evidence that “Rules of the Road” referred to duties imposed by law on motorists, and meant that boat operators in traffic with other boats should, in analogous situations, observe the same rules that govern automobile traffic. That is not a useful analogy, considering that boats and automobiles have very different operating characteristics and mechanical systems, and they operate in very different environments. Applying rules made for vehicles travelling on well-defined roads to boats on a large lake or river is difficult and uncertain. We think it is more likely that the phrase, “Rules of the Road,” was intended as a reference to the Inland Navigation Rules, 33 U.S.C.A. § 2001, et. seq., which govern traffic on the inland waterways of the United States, and which are commonly referred to as “The Rules of the Road.” See Matheny v. Tennessee Valley Authority, 557 F.3d 311, 317 (6th Cir.2009) (“These Inland Rules of Navigation supply the ‘Rules of the Road’ governing navigation on inland waters.”); Turecamo Maritime, Inc. v. Weeks Dredge No. 516, 872 F.Supp. 1215, 1229 (S.D.N.Y.1994) (“The Inland Navigation Rules encompass longstanding steering and sailing rules and principles, otherwise known as ‘Rules of the Road’, which govern navigation on inland waters.”).

We highlight this ambiguity in the statute with the respectful suggestion that the General Assembly provide clarification to better inform the boating public and the courts of the specific duties the legislature intended to impose.

V. KLEIN’S CROSS-APPEAL

Klein filed a cross-appeal in this matter to preserve his argument that the trial court improperly limited the testimony of one of his witnesses, an officer who investigated the accident. However, due to the disposition of this case in his favor, we decline to review the merits of that argument.

VI. CONCLUSION

For the reasons set forth above, we affirm the opinion of the Court of Appeals affirming the judgment of the Jefferson Circuit Court in this matter.

All sitting. All concur.

      . Regenstreif overruled Bass v. Williams, 839 S.W.2d 559 (Ky.App.1992), and held that the sudden emergency doctrine is unaffected by the adoption of comparative fault.

      . Klein resided in Jefferson County.

      . This specific duty is imposed by KRS 235.285(4).

      . This specific duty is imposed by KRS 235.285(4).

      . This specific duty is imposed by 301 KAR 6:030; Section 6(f).

      . Hilen v. Hays, 673 S.W.2d 713 (Ky.1984) (adopting the principles of comparative negligence apportioning damages among the parties according to each party’s share of fault and abolishing contributory negligence as a complete bar to recovery.)

      . Although the rationale for the doctrine is applicable to any field of human endeavor, it is interesting to note that its use in litigation has been almost entirely in the context of transportation cases, perhaps because that activity very frequently combines the risks of exposure to injury with a need to respond quickly to changing conditions.

      . The same reason was applied by the Court of Appeals in Maresz, 835 S.W.2d at 893, stating, "However, there is no evidence whatsoever that appellee Maresz, when presented with this sudden occurrence, chose a course of conduct which appeared at the time to have been the safest course, which now appears not to have been the best or wisest choice....”


author: LAMBERT, Senior Judge:

text:
    Stephanie GRAYSON; Shane Grayson; S1 Grayson; and S2 Grayson, Appellants, v. June GRAYSON, Appellee.
    No. 2009-CA-001963-ME.
    Court of Appeals of Kentucky.
    July 16, 2010.

      Jonathan D. Whitaker, Lexington, KY, for appellants, Stephanie Grayson and Shane Grayson.
    Jeffrey L. Schumacher, Maysville, KY, for appellee.
    Before DIXON and VANMETER, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

LAMBERT, Senior Judge:

Stephanie Grayson and Shane Grayson are husband and wife and the parents of 51 Grayson, a minor female, and S2 Gray-son, a minor female. They appeal to this Court from the September 28, 2009, findings of fact, conclusions of law, and amended judgment of the Mason Circuit Court. That judgment granted Appellee June Grayson, paternal grandmother of SI and 52 Grayson, limited grandparent visitation with the children over the vehement objection of the children’s parents, Appellants herein. Upon our determination that the trial court erred in its conclusion and judgment that grandparent visitation was in the children’s best interest, we reverse.

The evidence in this case reveals extreme vitriol by the paternal grandmother, Appellee herein, toward her daughter-in-law and, perhaps to a lesser degree, toward her son, Appellants herein. It is equally clear that Appellants dislike Appel-lee and want her to have no contact with their children. Various wounds inflicted by these parties upon one another have been festering for years. It is unnecessary to narrate the distasteful behavior of Appellee toward her daughter-in-law and son, or, as she claims, their mistreatment of her. Instead, we will rely on quotations from the trial court’s findings of fact. Findings no. 1 and 2 set the stage:

1. Respondents Shane Grayson and Stephanie Grayson (hereinafter Mother and Father) were married in 1994 and have two daughters [SI] Grayson, age 8 and [S2] Grayson, age 5. Mother is a teacher and Father is a Sales Manager and active in the children’s school site based committee.
2. Petitioner June Grayson, hereinafter Grandmother, babysat often for the children and had significant contact with them early in their lives.

Thereafter, the trial court found as follows:

3. Father and Dave Grayson (hereinafter Grandfather) worked together and built the house in which Mother and Father live.
4. Early on there were incidents that upset Mother and Father regarding Grandmother’s conduct which included swerving a car at them 16 years ago. Despite these problems contact with and involvement with the children continued until “Good Friday” 2007. On that date an incident took place in which Grandmother threatened to contact Social Services. At that point Mother and Father refused to allow Grandmother to see the children and she has not seen them since.
5. Grandfather and other family members are not restricted from seeing the children.
6. There is extreme acrimony between the Grandmother and Mother. Grandmother stated in deposition that she wished her son would divorce Mother especially after the children are grown. She further stated at trial that years ago in the “swerving” incident if her son had not been in the car she would probably have hit the other vehicle (occupied by Mother). She also stated there can be no peace between she [sic] and Stephanie (the Mother) and that there is extreme tension between them due to numerous confrontations.
7. More recently there was an incident when Grandmother went to the children’s school on Grandparents’ Day after allegedly being told not to do so. This action upset [SI Grayson].
8. There was also testimony by a neighbor of Mother and Father, Ms. Conley, that Grandmother sought information from her regarding the parents. Ms. Conley testified that Mother and Father were good parents and the children were well adjusted.
9. Mother and Father assert in retrospect that they would have curtailed contact with Grandmother sooner but desired to maintain peace.
10. Grandmother indicated that with all she and Grandfather have done for the Mother and Father (employment, housing, babysitting, money help with the wedding, etc.) they have not shown much appreciation.
11. By all testimony Mother and Father are fit parents.
“... a fit parent has a superior right, constitutionally, to all others in making decisions regarding raising of his or her children, including who may and may not visit them. A fit parent’s decision must be given deference by the Courts, and Courts considering the issue must presume that a fit parent’s decision is in the child’s best interest.” Vibbert v. Vibbert, 144 S.W.3d 242 (Ky.App.2004).
12. The Court has reviewed the various factors set out in Vibbert, supra and finds that:
a. there is no testimony that the relationship between the Grandchildren and Grandmother was unstable;
b. time spent together was significant until 2 years ago;
c. under the extremely tense relationship of the Parties the detriments of normal visitation outweigh its benefits;
d. visitation with Grandmother probably would not affect the children’s relationship with their parents;
e. the Parties have emotional issues that would affect normal visitation. The emotional relationship with each other, i.e. Grandmother with Father and Mother especially is horrible.
f. from the G.A.L. Report it is not clear whether the children have any desire to see their Grandmother.
13. There was no evidence presented by either side as to the children being deprived by a lack of visits with Grandmother. It was acknowledged by Mother and Father that it would be best for the children in a normal situation to have contact with Grandparents.
14. King v. King, 828 S.W.2d 630, 632 (Ky.1992) relied on by Grandmother states, “one of the main purposes of the statute (KRS 405.021) is to prevent a family quarrel of little significance to disrupt a relationship which should be encouraged rather than destroyed.” Unfortunately, in this case the problem between the Parties is very deep.
15. While this Court strongly desired this matter be worked out the Parties have been adamant that their relationship is totally fractured.
16. King, supra states, “That grandparents and grandchildren normally have a special bond cannot be denied. Each benefit from contact with the other.” 828 S.W.2d 630, 632. It is in the children’s best interest not to have the relationship with their Paternal Grandparents totally destroyed. Father testified there would be no visits with Grandmother while the children were minors. Unfortunately, in the present case not even the Paternal Grandfather is visiting with the grandchildren herein. The evidence was clear and convincing due to the mandates in King v. King. Under the circumstances of this case very little contact is appropriate in the children’s best interest.
17.Nothing herein prevents additional visits by Grandfather or a later reconciliation of the Parties’ differences.

The trial court referred to the car swerving incident in findings no. 4 and no. 6. With respect to that incident, Appellee gave the following testimony in this proceeding:

Q 143: Did you ever threaten Stephanie [Grayson]?
A. No, all I did was swerve at them on the road. And I wouldn’t because he [her son Shane] was in the vehicle — I wouldn’t hit them.
Q: Do you consider that dangerous at all, to swerve [your vehicle] into the path of an oncoming vehicle?
A. Sure it is. Sure it is. If Shane [her son] hadn’t been in it I’d probably hit it.
Q464: Mrs. Grayson, did I understand you to say that you don’t think that you contributed to the problem here today?
A. No, I did not.
Q465: Not at all?
A. No.
Q466: You have not contributed in any way to this situation?
A. No, I did not.
Appellee also testified at trial as follows:
Q: You don’t care if it [i.e., slander of the Appellants] hurts them or not do you?
A. No.
Q. No, you don’t. Can you repeat that please? You don’t care if it hurts them or not do you?
A. I don’t care. As long as they don’t let me see the kids, I don’t care what happens to them [the Appellants],

A guardian ad litem represented the children in the trial court. The report of the guardian ad litem was unambiguous:

Should the Court deny the Petitioner’s request for visitation, it is my opinion there will be no resulting harm to the children. On the other hand, should the Court grant the Petitioner’s visitation, I believe it will endanger this happy family. Petitioner’s husband, Dave, is not a party to this action and presumably could resume his relationship with the grandchildren. While he testified that he stopped seeing them because it was not fair to his wife, it was also not fair to his grandchildren. Perhaps, in time, if he can reestablish his relationship with the children, they might naturally express their desire to visit with their Nanny. In the meantime, I agree with the opinion of the neighbor, Mrs. Conley, that the Petitioner must humble herself and accept Stephanie as her daughter-in-law and the mother of these children. In sum, I do not believe that Court imposed visitation would be in the best interest of these children and I cannot recommend it.

Despite this state of evidence, the trial court granted Appellee limited visitation rights with Appellants’ two little girls. She was granted a modest two visits per year, one in December and one in July, each for four hours with such visits to be supervised by the children’s father and one neutral party. The trial court seems to have based its conclusion upon language in King v. King, 828 S.W.2d 630, 632 (Ky.1992), as follows:

One of the main purposes of the statute [KRS 405.021] is to prevent a family quarrel of little significance to disrupt a relationship which should be encouraged rather than destroyed.... That grandparents and grandchildren normally have a special bond cannot be denied. Each benefits from contact with the other.

Trial courts are granted authority to require grandparent visitation by virtue of KRS 405.021. That statute states, in relevant part:

The Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so.

KRS 405.021(1). With respect to the circumstances in which grandparent visitation may be ordered, this Court has held

the courts must consider a broad array of factors in determining whether the visitation is in the child’s best interest, including but not limited to: the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child’s living and schooling arrangements; the wishes and preferences of the child. The grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child. We retain this standard of proof from Scott [Scott v. Scott, 80 S.W.3d 447 (Ky.App.2002) ], noting that the Supreme Court has mandated its use when “the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money.” Santosky v. Kramer, 455 U.S. 745, 756, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (citation omitted). Given that these cases involve the fundamental right of parents to raise their children as they see fit without undue interference from the state, the use of this heightened standard of proof is required.

Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky.App.2004) (emphasis added). In King v. King, supra, a divided Supreme Court of Kentucky upheld the constitutionality of KRS 405.021 and provided guidance for its application. The King Court held that the statute did not unduly intrude on the fundamental rights of the parents and that the evidence supported the conclusion that paternal grandparent visitation was appropriate. In reaching its conclusion, the King majority expressed an idealized view of the inherent value of the relationship between grandparents and grandchildren. In dissent, Justice Lambert recognized the value of warm relations between grandparents and their grandchildren, but expressed concern that the statute opened the door to unwarranted invasion of an intact family. Justice Wintersheimer dissented on the view that the evidence did not meet the requirements of the statute even if the statute was constitutional. Nevertheless, the King majority was persuaded that the evidence supported the trial court’s decision to grant visitation. It pointed to testimony that the child’s father had no reluctance about the grandfather’s ability to love and care for the child. There was no doubt expressed as to safety or care during periods of visitation. The Court concluded with the view “[tjhere appears to be no valid reason that a trivial disagreement between father and son should be allowed to deprive a grandparent and grandchild from developing the natural affinity so common between these family members.” King, 828 S.W.2d at 633. Earlier in the King opinion, the majority had commented, “[o]ne of the main purposes of the statute is to prevent a family quarrel of little significance to disrupt a relationship which should be encouraged rather than destroyed.” Id. at 632.

In contrast, perhaps, with the foregoing Kentucky authorities, the Supreme Court of the United States has cast doubt on the viability of grandparent visitation statutes •with the following observation: “In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).

From the evidence in this case, we see no need to grapple with the nuances of federal constitutional law for the evidence presented by Appellee did not meet the statutory standard of KRS 405.021. This statute imposes upon a grandparent who seeks visitation the burden of proving that it is in the best interest of the child or children to have such visitation. Such proof must be by clear and convincing evidence. Vibbert, 144 S.W.3d at 295. Our review of this record reveals little or no evidence that visitation with Appellee would be in the best interest of the Grayson children. Indeed, virtually all of the evidence is to the contrary. As shown by the trial court’s findings, Appel-lee has engaged in extraordinary acts of hostility toward the children’s mother and father. In the words of the trial court,

there is extreme acrimony between the Grandmother and Mother. Grandmother stated in deposition that she wished her son would divorce Mother especially after the children are grown. She also stated that there could be no peace between she [sic] and Stephanie [the Mother] and that there is extreme tension between them due to numerous confrontations.

Borrowing from the language in the King majority, the state of discord prevailing here is far more than a “trivial disagreement” and exceeds the bounds of a “family quarrel of little significance.”

Requiring a child to have visitation with a grandparent who has extreme animosity toward the child’s parent would be inherently unhealthy for the child and would potentially undermine the relationship between the child and its parent. The evidence in this case does not meet the standard that visitation with Appellee would be in the children’s best interest. The trial court appears to have relied more or less exclusively on the views expressed in King v. King. The trial court said as much: “The evidence was clear and convincing due to the mandates in King v. King. Under the circumstances of this case very limited contact is appropriate in the children’s best interest.”

We respect the views of the distinguished trial court. If this case were governed by an abuse of discretion standard, we might be inclined to uphold the judgment of very limited visitation between Appellee and her grandchildren. We discern an endeavor by the trial court to preserve a thread in the torn fabric of this family. But this was not a discretionary ruling by the trial court. The court was required to apply KRS 405.021 and determine whether visitation was affirmatively proven by clear and convincing evidence to be in the children’s best interest. Applying this standard, we can reach no conclusion other than that the trial court erred as a matter of law in its conclusions and judgment upon the evidence.

Accordingly, the judgment is reversed.

ALL CONCUR.