HONORABLE JOHNNY RAY HARRIS, JUDGE
This appeal involves the leakage of hydrogen sulfide (H2S) from a gas well owned by EQT and located in Floyd County, Kentucky. It is uncontroverted that at certain concentrations H2S poses a danger to human health and life.
Slone resided in a mobile home located between 300 feet to 600 feet from the gas well owned by EQT. Around April 2013, EQT discovered that the well was leaking H2S; at trial, EQT introduced evidence that the leakage from the well was caused by mine subsidence. Nevertheless, sometime in May 2013, EQT informed Slone of the leak and relocated her to a motel. EQT finally killed the well in June 2013 and eventually plugged the well in November 2013.
On April 10, 2014, Slone filed a complaint against, inter alios, EQT in the Floyd Circuit Court.1 Slone claimed to have suffered myriad adverse health effects caused from the well's release of H2S near her residence and that EQT breached numerous duties of care owed to her. In particular, Slone alleged:
5. On May 26, 2013, [Slone] was severely injured as a result of exposure to leaking gas from EQT Production Company's gas well located near Kentucky Route 777 at 3532 Turkey Creek, McDowell, Kentucky, wherein [Slone] resided.
. . . .
8. That in addition to the duty of extraordinary care, the Defendant, EQT Production Company also, at the time of the incident complained of herein, owed a duty of ordinary care to individuals, including the Plaintiff, Reba Slone, who resided onthe property through which EQT Production Company's gas wells and pipelines are situated and/or adjoining.
9. The Defendant, EQT Production Company was under a duty of care to construct and maintain their gas distribution system so as to prevent the escape of gas therefrom. However, they so carelessly and recklessly allowed the gas well and/or the lines running from the gas well in the vicinity of Reba Slone's home to become and remain in such a state of disrepair that EQT Production Company's natural gas escaped from their gas well and/or the lines running therefrom.
10. That the incident set out in paragraph 5 above was the result of the negligent and/or grossly negligent acts of the Defendant, EQT Production Company or their employees, agents or servants, said negligent and/or grossly negligent acts including, but not being limited to, the following breaches of their duty of care owed to the Plaintiff, Reba Slone and to others similarly situated:
A. EQT Production Company's failure to drill and/or install their well in a safe manner such that their natural gas could not escape from their gas well and/or the lines therefrom and cause injury or death to others and/or damage to the property of others.
B. EQT Production Company's failure to maintain, monitor, repair and/or inspect their gas wells and/or the lines running therefrom so as to confine their natural gas within their gas wells and/or within the lines running therefrom to ensure that their gas well and/or lines running therefrom were not in such a state of disrepair that gas could escape from them, posing a potentially hazardous condition to theindividuals who live on the property through which those wells and/or gas lines are situated.
11. That one or more of the individual acts of negligence and/or gross negligence committed by the Defendant, EQT Production Company was the direct and proximate cause of Reba Slone's exposure to gas and the severe permanent bodily injuries suffered by the Plaintiff, Reba Slone.
12. That on the date of the subject accident, Defendant, EQT Production Company knew, or in the exercise of reasonable care, should have known in the exercise of ordinary care that the failure to properly drill, install, maintain, monitor, repair and/or inspect their gas wells and/or the lines running therefrom, would cause leaks therein, creating a condition where gas might escape from their wells and/or their pipelines and leak posing a grave risk to any persons and/or property nearby. As a result, the Defendant, EQT Production Company negligently and/or in a grossly negligent manner failed to discover and repair such leaks in their gas well and/or lines running therefrom.
13. That a direct result of the negligence and/or gross negligence of Defendant, EQT Production Company in drilling, installing, maintaining, monitoring, repairing and/or inspecting their gas wells and/or the lines mining therefrom, Plaintiff, Reba Slone sustained serious and permanent bodily injuries which have caused her to suffer pain, suffering, mental anguish and inconvenience and will continue to suffer such pain, suffering, mental anguish and inconvenience in the future.
14. That a direct result of the negligence and/or gross negligence of Defendant, EQT Production Company in drilling, installing, maintaining, monitoring,repairing and/or inspecting their gas wells and/or the lines running therefrom, Plaintiff, Reba Slone has incurred, and will incur in the future, medical expenses and physician expenses.
15. That the acts of the Defendant, EQT Production Company which caused [Slone]'s exposure to gas complained of herein, constitute a wanton, malicious, and reckless disregard for the life, safety, and property of the Plaintiff, Reba Slone, and as such the [Slone] is entitled to punitive damages.
16. In total disregard of the duty owed to [Slone], and other members of the public, the Defendant, EQT Production Company, their agents, servants or employees, created and exacerbated a dangerous, extremely volatile, ultra-hazardous and potentially deadly condition due to their failure to properly monitor, detect, remedy, and warn [Slone] and others of the danger associated with escaping gas. These acts and failures to acts by Defendant, EQT Production Company, their agents, servants or employees, were grossly negligent and reckless, constituted a disregard for the rights, safety and position of others, including [Slone], and clearly exhibited a failure to exercise the degree of care required under the circumstances. These careless, negligent, reckless and unlawful acts and failures to act of the Defendant, EQT Production Company, their agents, servants or employees, were a substantial factor leading to the gas leak in question that resulted in the injuries and damages to [Slone] complained of herein.
Complaint at 2-6.
A jury trial was held in July of 2018, and the jury returned a unanimous verdict in favor of EQT. Slone filed a motion for a judgmentnotwithstanding the verdict and a motion for a new trial. Both motions were ultimately denied by the circuit court by order entered September 12, 2018. These appeals follow.
Slone initially contends that the circuit court committed reversible error by failing to give the jury a missing evidence instruction. Slone points out that EQT employees were instructed to take H2S gas measurements twice daily after discovering the leak. According to Slone, these H2S gas measurements were taken at Slone's mobile home and at the wellhead. Slone argues that the measurements were recorded by EQT, but EQT failed to produce the record of the gas measurements taken before the well was killed in June 2013. Slone points out that EQT offered no explanation for the missing record. Slone believes the record of the daily H2S measurements was pivotal evidence that could have demonstrated the concentration of H2S she was exposed to by the leaking well.
To be entitled to a missing evidence instruction, a party must demonstrate:
(1) the evidence is material or relevant to an issue in the case; (2) the opponent had "absolute care, custody, and control over the evidence;" (3) the opponent was on notice that the evidence was relevant at the time he failed to produce or destroyed it; and (4) the opponent, "utterly without explanation," in fact failed to produce the disputed evidence when so requested or ordered.
Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 731 (Ky. 2020) (quoting Univ. Medical Cent. Inc. v. Beglin, 375 S.W.3d 783, 792 (Ky. 2011)). It is unnecessary to present to "direct and conclusive evidence of intentional and bad faith destruction" of the missing evidence. Beglin, 375 S.W.3d at 789. However, where the proof demonstrates that the missing evidence was lost because of mere negligence, fire, natural disaster, or in the normal course of business, a missing evidence instruction is inappropriate. Id. at 791. And, we review the trial court's decision for an abuse of discretion. Id. at 791-92.
It is axiomatic that a missing evidence instruction is only appropriate where there is some proof at trial that evidence is actually missing. Here, Slone failed to introduce evidence at trial demonstrating that a document or documents existed recording daily H2S gas measurements taken by EQT after the well started leaking. In her brief, Slone cites to the deposition of the past EQT Senior Safety Director, Jerry Hamilton, as proof that a document existed recording the daily H2S measurements. In his deposition, Hamilton does state that he created such a document. Yet, Slone failed to produce him as a witness at trial, introduce into evidence the relevant portions of his deposition, or introduce relevant portions of his deposition by avowal. In fact, EQT only entered Hamilton's deposition in the record by avowal to preserve its objection to...
