Skaggs v. Assad, By and Through Assad, s. 84-SC-986-D
| Decision Date | 03 July 1986 |
| Docket Number | Nos. 84-SC-986-D,84-SC-1003-DG,s. 84-SC-986-D |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Knolan SKAGGS and Nick Skaggs, Movants, v. Richard ASSAD, an infant, By and Through his Parent and Next Friend, Noel S. ASSAD and Noel S. Assad, Respondents. Richard ASSAD, an infant, By and Through his Parent and Next Friend, Noel S. ASSAD and Noel S. Assad, Movants, v. Knolan SKAGGS and Nick Skaggs, Respondents. |
David R. Monohan, Woodward, Hobson & Fulton, Steven B. Strepey, Louisville, for Skaggs.
Kenneth L. Sales, Segal, Isenberg, Sales & Stewart, Louisville, for Assad.
The primary issue we decide on this appeal and cross-appeal is whether a comparative negligence instruction is necessary, pursuant to Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), when no such instruction was requested, and when an instruction on contributory negligence was, in fact submitted. Stated another way, does the giving of an instruction on contributory negligence preserve the error of a failure to give an instruction on comparative negligence?
Prior to answering that question, we must first determine whether, on the facts of the case at bar, there was sufficient evidence introduced to justify the giving of an instruction on contributory negligence.
The Court of Appeals answered the second question in the affirmative. We agree. The Court of Appeals answered the first question in the affirmative. We disagree.
This appeal and cross appeal arose from a personal injury suit brought by Richard Assad, a 10 year old, and Noel S. Assad, Richard's father, against Nick Skaggs, a 14 year old, and Knolan Skaggs, Nick's father. While playing with a "BB" gun in the snowy yard of the Skaggs family, Nick Skaggs fell, causing his BB gun to discharge. The pellet struck Richard Assad, nearly 80 feet away, causing him to lose sight in one eye. At the close of the evidence at trial, the Assads' motion for a directed verdict was denied. Over the objection of the Assads, the trial court submitted to the jury an instruction on the alleged contributory negligence of Richard Assad. The jury found for the defendants, the Skaggs.
The Court of Appeals also ruled that there was sufficient evidence to justify the giving of an instruction on the contributory negligence issue, and moreover, ruled that the father, Knolan Skaggs, as a matter of law was not guilty of any negligence and should have been dismissed as a party defendant.
The Skaggs then filed a motion for discretionary review, claiming that the Court of Appeals erred in applying the comparative negligence doctrine of Hilen v. Hays to this case solely based on the fact that a contributory negligence instruction was requested and given by the trial court. The Assads filed a cross motion for discretionary review arguing that the Court of Appeals erred in finding sufficient evidence to submit the question of contributory negligence to the jury and further erred in determining that Knolan Skaggs was negligence free, as a matter of law. We granted discretionary review on both motions.
We first address the question of the contributory negligence instruction. There can be no question but that Richard Assad, a ten year old, is legally capable of being contributorily negligent. Goff v. Horsley, Ky., 439 S.W.2d 937 (1969). The only question is whether there was sufficient evidence before the court to justify the giving of the instruction. Both the trial court and the Court of Appeals ruled that the evidence was sufficient to justify giving the contributory negligence instruction. We agree.
This accident happened on a February day in 1982. The boys were playing in the Skaggs' yard, which was in an icy and snowy condition. Each boy had a BB gun--Nick Skaggs, a pistol and Richard Assad, a rifle. Both guns were owned by the Skaggs boy, but it was Richard Assad who asked Nick Skaggs to bring the guns out to play on the ice and snow. Young Assad had been instructed on several occasions by both his parents not to play with BB guns. In spite of that, he admitted he had played with them on several occasions before the accident. When the accident occurred Nick Skaggs was walking on an incline in the yard with the safety to the gun in the "off" position. He slipped and fell, causing the butt of the gun to strike the ground and discharge. The pellet traveled some eighty feet and struck young Assad in the eye.
Presumably, Richard Assad was aware of the operation of the BB guns and the potential danger connected with them. Moreover, he and Nick Skaggs were playing with these potentially dangerous guns in a yard which was snowy and icy. Certainly both boys knew--or should have known--of the danger of walking, running and playing on ice while carrying BB guns. It is beyond cavil that the conduct of Richard Assad was more than sufficient to submit the question of contributory negligence to the jury. Reasonable minds certainly could have believed that Richard Assad was negligent. 1
Having decided that the instruction on contributory negligence was proper, we now address the primary issue on this appeal. In Hilen v. Hays, the plaintiff had requested an instruction on comparative negligence. Based on the existing law of the Commonwealth the trial court properly declined the request. This Court reversed and brought into Kentucky Common Law for the first time the doctrine of comparative negligence. Anticipating there would be questions as to the effective date of the new doctrine, we said:
"The appellee complains that the rules should not be changed in his case. But unlike contract law the appellee here did not act in reliance on the state of the law at the time of the act, and has no legitimate complaint against the retroactive application of a change. We conclude ... that the comparative negligence doctrine shall apply to:
* * *
3) All cases pending, including appeals, in which the issue has been preserved ". (emphasis added). Id. at 720.
Neither party to these appeals submitted a request, oral or written, to the trial court relative to comparative negligence. Neither party argued the issue before the Court of Appeals. On May 10, 1984, the Court of Appeals ordered the present case submitted to them on briefs. On July 5, 1984, our opinion in Hilen v. Hays was rendered. The Court of Appeals then determined that since Hilen v. Hays had abolished the doctrine of contributory negligence the presence of an issue of contributory negligence automatically required the submission of a comparative negligence instruction to the jury. We do not agree.
It is clear from Hilen v. Hays that this view is not specifically mentioned. All Hilen v. Hays requires is that in all pending cases, the issue of comparative negligence will be considered, retroactively, if it has been preserved for appellate review. Is the presence...
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