Massie v. Persson
| Decision Date | 06 March 1987 |
| Docket Number | No. 85-CA-282-MR,85-CA-282-MR |
| Citation | 729 S.W.2d 448 |
| Court | Kentucky Court of Appeals |
| Parties | 39 Ed. Law Rep. 890 Patricia D. MASSIE, Administratrix of the Estate of Ronald Gregory Massie, Deceased, Appellants, v. Charles PERSSON; Whitney & Steinmetz Consulting Engineers; Fain & Johnston, Inc.; Jack B. Clotfelter and William Johnson d/b/a Clotfelter & Johnson, Architects; State Electric Inspection Bureau; D.W. McCauley and James W. Little d/b/a Suburban Electric Company, Appellees. |
John H. Burrus, Landrum, Shouse & Patterson, Lexington, John J. Brady, Paris, for appellants.
Andrea K. Donoho, Lexington, for appellees.
Philip T. Durand, Ambrose, Wilson & Grimm, Knoxville, Tenn., for Charles Persson.
W.T. Adkins, Ronald L. Green, Boehl, Stopher, Graves & Deindoerfer, Lexington, for Whitney & Steinmetz.
Peter J. Sewell, Segal and Shanks, Louisville, for Fain & Johnston.
James D. Ishmael, Jr., Wyatt, Tarrant & Combs, Lexington, for Clotfelter & Johnson.
John M. Swinford, Cynthiana, for D.W. McCauley.
Henry A. Triplett, Bennett, Bowman, Triplett & Vittitow, Louisville, for State Elec. Insp. Bureau & D.W. McCauley.
Before COOPER, WILHOIT and DUNN, JJ.
Appellant administratrix's decedent, Ronald Gregory Massie, a student athlete at Bourbon County Junior High School, was electrocuted on April 17, 1980, while using a whirlpool bath at the school. On February 4, 1981, Patricia D. Massie was appointed administratrix of his estate. She appeals from the trial court's summary judgment entered in favor of the five construction defendant appellees in her wrongful death action for Ronald's estate filed originally in Fayette Circuit Court 1 on March 9, 1981. She also appeals that part of the amended final judgment dismissing pursuant to a jury's verdict her claim against defendant appellee football coach, Charles Persson. We affirm in part and reverse and remand in part.
In the mid-1960's, the Bourbon County Board of Education, by contract with its architects, developed plans for the construction of the Bourbon County Junior High School building. The construction effort was begun during 1967 and 1968 and was completed in late 1968 or early 1969. To the extent relevant here, the following defendant appellees participated in the construction of the building:
(a) Jack B. Clotfelter and Bill Johnson d/b/a Clotfelter and Johnson Architects;
(b) Fain and Johnston, Inc., General Contractors;
(c) Whitney & Steinmetz Consulting Engineers;
(d) Suburban Electric Company, the electrical sub-contractor;
(e) State Electric Inspection Bureau, electrical inspection firm and David W. McCauley, electrical inspector, its employee.
A certificate of approval from the State Electric Inspection Bureau was executed on December 28, 1968, certifying that all 357 receptacles in the completed school building had been inspected and approved and were certified to have been installed in accordance with the requirements of the 1965 National Electrical Code in effect at that time. McCauley, State Electric Inspection Bureau's employee, was responsible for testing and approving the receptacles.
In 1972, the Bourbon County Board of Education acquired a stainless steel whirlpool bath for the school. It was a portable unit consisting of a steel tub upon which was mounted a control panel and an impeller or agitator unit. It would accommodate only one person, and was constructed and wired internally in such a manner as to provide grounding continuity as a single unit from the point of its three-pronged grounded plug and throughout its various motors and switches. In its original configuration, the unit was approved for safe use by the Underwriters Laboratory and carried the UL label.
Defendant appellee, Charles Persson, became football coach of the school in June, 1979. He decided to modify the existing whirlpool to accommodate more than one athlete at a time. He constructed a concrete block pool supplied with water from an adjacent shower and drained it into the shower area. He removed the agitator from the metal whirlpool by unbolting the control panel from the stainless steel tub and placed the agitator in the new pool. It was powered by an electric cord from it to the unbolted control panel which sat next to the new block pool and was attached to the original steel tub with athletic tape. The control panel was connected by another cord to its source of power, an electric receptacle nearby in another room that was one of the 357 receptacles installed when the building was built. The control panel cord and its male plug were also held together by athletic tape.
After the project was completed Coach Persson asked the school's industrial arts teacher's opinion as to its workability before it became operational in December, 1979. The teacher without benefit of tools, testing equipment or expertise, said it would work apparently implying that it would work safely.
On April 17, 1980, after a school baseball game Patricia's decedent, Ronald Massie, with two other boys were directed to use the newly structured whirlpool. As the first boy to use it was getting out, another boy entered, followed by Ronald. After the two were in the pool for a while they, in distress, cried for help. A nearby coach disconnected the whirlpool and he and another coach removed the two from it. The one boy recovered, but tragically Ronald died from electrocution.
There were various deficiencies in the wiring of the enlarged whirlpool bath at the time of the accident. The electric receptacle into which the control panel was plugged was improperly grounded in violation of the 1965 National Electric Code in effect when the building was built. Coach Persson did not attach or install a "ground fault interrupter" to the errant receptacle as provided for installations of this type in the 1975 National Electric Code in effect at the time he modified the whirlpool. There were at least three faulty wiring conditions existing in the whirlpool equipment components.
The above named five construction defendants appellees moved the trial court for summary judgment based primarily on KRS 413.135(1) which in pertinent part provides:
No action to recover damages, whether based upon contract or sounding in tort, resulting from or arising out of any deficiency in the design, planning, supervision, inspection or construction of any improvement to real property, or for any injury to property, either real or personal, arising out of such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, inspection or construction of any such improvement after the expiration of five (5) years following the substantial completion of such improvement.
Patricia in opposition to the summary judgment motions argued that the five year statute of limitations provision of the statute was not available to the construction appellees because it is unconstitutional. She was joined in this position in the trial court by other defendants not parties to this appeal, Bourbon County Board of Education and its members. The trial court relying on Carney v. Moody, Ky., 646 S.W.2d 40 (1982), which upheld the statute's constitutionality, disagreed and on July 1, 1983, entered summary judgment in favor of the named construction defendants appellees. Patricia also maintained Carney did not apply to wrongful death actions.
The trial court, however, did not have the benefit of our Supreme Court's decision in Wallace v. Tabler, Ky., 704 S.W.2d 179 (1986), which held that KRS 413.135 violated Kentucky Constitution Sec. 59, subd. 5, proscribing local and special legislation regulating limitation of civil causes, in that there was no rational justification for conferring special privileges and immunity upon architects, engineers and builders at the time the statute was enacted. In view of this holding of the statute's unconstitutionality, the trial court obviously was in error in granting summary judgment.
However, each of the construction defendants appellees dismissed by the summary judgment directly or indirectly raises the issue of Patricia waiving in a two-fold way her right to appeal the issue of the statute's unconstitutionality: 1) She did not attack in the trial court on the question of it being violative of the proscriptions in Kentucky Constitution Sec. 59, subd. 5, the ground upon which our Supreme Court in Tabler based its conclusion of unconstitutionality; and, 2) she failed to notify the attorney general of her constitutional attack on the statute before judgment as required by KRS 418.075 and CR 24.03. We agree there was a waiver in both instances.
CR 76.12(4)(c)(iv) in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. Pittsburg and Midway Coal Mining Co. v. Rushing, Ky., 456 S.W.2d 816 (1969). In accord see Akers v. Floyd County Fiscal Court, Ky., 556 S.W.2d 146 (1977); Carr v. Cincinnati Bell, Inc., Ky.App., 651 S.W.2d 126 (1983); Kaplon v. Chase, Ky.App., 690 S.W.2d 761 (1985).
Patricia attempts to establish preservation of the issue by pointing in her reply brief to the trial record to establish that she had argued before the trial court that Carney, supra, did not apply to her case and if applied would be an unconstitutional abrogation of her cause of action, one for wrongful death. In so arguing in the trial court, however, she primarily was referring to Kentucky Constitution Sec. 241, while Carney held the statute to be non-violative of Secs. 14 and 54...
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...the rule is outlined: This tribunal assumed the Supreme Court meant what it said for we wrote through Judge Dunn in Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987): CR 76.12(4)(c)(iv) in providing that an appellate brief's contents must contain at the beginning of each argument a ref......
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