Louisville Gas & Electric Co. v. Roberson

Opinion of the Court by

For what appears to have been public safety reasons, a street lamp was installed at the intersection of Preston Highway and Miles Lane in Jefferson County. This was accomplished by means of a contract whereby Louisville Gas & Electric Company (LG & E) installed the street lamp and leased it to the Jefferson County Fiscal Court. The contract provided for installation of several such street lamps at specified locations and the county paid a monthly fee to LG & E. LG & E acknowledged that it was responsible for maintaining the street lamp under its agreement with the county.

At 8:30 p.m. on February 23, 2001, ten-year-old Shytone Roberson attempted to cross the five lanes of Preston Highway north of the intersection. While on the highway, Roberson was struck by an oncoming vehicle and died of injuries received. It is contended that at the time of the accident the street lamp at the intersection was not working. There appears to be some evidence that the street lamp had been inoperable for a significant period of time. Appellees, the Roberson estate and his father, Jonathan Mark Roberson, claim negligence on the part of LG & E for failing to maintain the street lamp in a working condition and that such negli*109gence was a substantial factor in causing the death of Shytone Roberson.

The trial court granted summary judgment to LG & E, finding “no duty recognized under common law with regard to repair and maintenance of the non-dangerous instrumentality of a street lamp.” On appeal, the Court of Appeals reversed upon a panel vote of 2-1 with the judges in the majority writing separately. Chief Judge Combs rendered the lead opinion relying upon the provisions of Restatement (2d) of Torts, Section 324A, the so-called “undertaker’s doctrine.” This doctrine imposes upon one who undertakes to render services for the protection of third persons liability for failure to exercise reasonable care, providing certain requirements are met. Judge Guidugli concurred in the result believing that LG & E owed a duty to maintain the street lamps but questioning whether it owed a duty to Shytone Roberson based on his having crossed the highway away from the crosswalk.1 Judge Schroder dissented without opinion. Thus, the case was reversed and remanded to the trial court. This Court granted discretionary review and, for the reasons hereinafter set forth, affirms the Court of Appeals.

From the record, it appears that LG & E did not decide where street lamps were to be located; that the location of street lamps, including the one at the intersection of Preston Highway and Miles Lane, was decided by county government. While the contract between the Jefferson County Fiscal Court and LG & E is sparse, it specifies certain street lamp locations. Thus, a discretionary decision was made by the governmental entity that a street lamp should be installed at the relevant location. LG & E had no independent duty with respect to location, installation and maintenance of the street lamp, and its duty, if any, arose from its contract with county government to install and maintain the street lamp. As such, the duty upon LG & E was derivative of the contractual relationship it had with the county.

In general, government is charged with a duty of ordinary care with respect to highway safety. This duty requires government to keep highways

in a reasonably safe condition for travel, to provide proper safeguards, and to give adequate warning of dangerous conditions in the highway. This includes the duty to erect warning signs and to erect and maintain barriers or guardrails at dangerous places on the highway to enable motorists, exercising ordinary care and prudence, to avoid injury to themselves and others.2

While our decisions generally focus on the safety of motorists and their passengers, such rules, of necessity, apply to the ability of motorists to avoid injury to “others” including pedestrians. Recently, this Court held in Commonwealth v. Babbitt3 that the Commonwealth could be held liable for failure to provide warnings or to erect guardrails at a particular location, and that the inquiry was fact-intensive with due regard for design guidelines, available funds, and cost effectiveness. We held “[i]f a determination is made that the failure to provide warnings or to erect a guardrail constitutes negligence, the factfinder must then determine from the evidence whether the presence of warnings or a guardrail would have prevented or *110reduced the damages sustained by the claimant and apportion liability in accordance with KRS 411.182.”4 In some circumstances, the danger of a roadway will be more or less obvious. Where a highway crosses a deep chasm, the need to erect guardrails would logically follow. In other circumstances, however, the danger of a particular roadway is not obvious and the inquiry will be, in the language of Babbitt, “fact-intensive” with due regard for a host of factors. In still other circumstances, the safety analysis may not be necessary because government has already made a discretionary determination that safety measures should be undertaken. In those cases, courts need not look behind executive decision making, but may accept the discretionary determination that protective measures are warranted. However, such discretion is not irrevocable, and a subsequent decision maker would not necessarily be bound by a previous discretionary determination.

More than ninety years ago this Court decided Gee’s Adm’r v. City of Hopkinsville,5 a case that addressed the issues presented here. The City of Hopkinsville had macadamized a street that crossed Little River. The street was ordinarily safe for passage, but in times of heavy rainfall the river was swift and dangerous. After having been away from Hopkinsville for the day, James Gee returned after nightfall. Without knowledge of the day’s heavy rains and despite the presence of street lamps, upon traveling Second Street into Little River, Gee was swept away and perished. Affirming the trial court’s dismissal, this Court held that the city had a duty to exercise ordinary care to keep its streets in a reasonably safe condition; that this duty did not arise except as to streets the city had undertaken to improve; and that the manner or method of improvement was left to the discretion of city authorities. We held that the city was thus under no duty to construct a bridge across the river at Second Street, and that its failure to do so could not be the basis for liability. For its failure to erect a bridge, we said:

A city is only guilty of actionable negligence when defects or unsafe places in a street that it constructs are the proximate cause of the injury complained of. If the street it constructs is reasonably safe, it is not to be made liable for the failure to adopt other methods of construction, or for the failure to do something that it might or might not do in its discretion. If, however, the city had erected a bridge across this river as part of Second Street, then the law would have imposed upon the city the duty of exercising ordinary care to maintain this bridge in reasonably safe condition for public travel, but it assumed no liability for its failure to erect one.6

Gee’s Adm’r also claimed city liability for its failure to sufficiently light the street as to give notice of the dangerous condition. There was no contention that the lights provided were not functioning. As to the sufficiency of lighting, the Court stated:

[W]hen the city has provided sufficient lights to make the streets that it has constructed reasonably safe for public travel, this, in any state of case, is its full measure of duty in respect to lights. If this view is correct, it follows that, as the lights furnished were sufficient for the character of streets that was constructed, the plaintiff failed to make out a case on account of inadequate lights[.]7

*111Gee’s Adm’r articulates certain principles applicable to this case. If government undertakes, for the purpose of public safety, to improve streets and roadways, it must exercise ordinary care to put and keep them in a reasonably safe condition. And, if a discretionary determination is made as to a means (i.e., lighting) of improving public highway safety, there is a duty to exercise ordinary care to maintain the safety improvement.

When these principles are applied to the case at bar, certain conclusions emerge. As Preston Highway is a major thoroughfare in Jefferson County, and the county has improved it for public safety, the county must exercise ordinary care to keep it in a reasonably safe condition. Upon the determination that illumination was a component of reasonable safety, there was a duty to exercise ordinary care to maintain illumination.

The liability of LG & E, if any, is by virtue of its contract with the county. The so-called “undertaker’s doctrine” as set forth in the Restatement (Second) of Torts, § 324A(b), provides that:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if ... (b) he has undertaken to perform a duty owed by the other to the third person[.]

Dobbs, The Law of Torts, explains:

Consistent with the Restatement rules, the defendant is of course subject to liability if he assumes a duty by making a safety promise, and then negligently performs it, causing injury. That is a simple case of misfeasance and neither privity nor nonfeasance rules apply. Beyond that, a number of cases have imposed liability when the defendant has promised to inspect or repair traffic signals or elevators that create dangers when they are not properly working. The cases are not always clear’ whether liability depends upon active negligence or whether nonfeasance would suffice, but liability is imposed and the very fact that courts do not actually notice the distinction is itself evidence that they are entirely willing to impose liability for negligent nonperformance of a safety promise.8

These views mirror settled Kentucky law. Writing for this Court, Commissioner Osso W. Stanely said:

It is quite elementary that a duty to exercise the proper degree of care may have its origin, as here, in a contract. ... He contracted to relieve the plaintiff of the duty of keeping the combustible shavings incombustible. He thereby became liable to the plaintiff if while relying upon that promise it was injured by the defendant’s violation of his contractual duty of vigilance in that respect.9

As previously discussed, the county appears to have determined that illumination of Preston Highway in the vicinity of Miles Lane was a necessary or desirable safety improvement of the highway. To implement its safety determination, the county contracted with LG & E to install and maintain street lamps. As such, LG & E had a duty to exercise ordinary care to see *112that the street lamps it installed were maintained in a working condition.

Provided that public safety was the primary purpose of the street lamp, the duty of LG & E to exercise ordinary care with respect to maintenance of the street lamp has been established. Whether LG & E was negligent and whether its negligence, if any, was a substantial factor in causing the death of Shytone Roberson will be for the trier of fact to determine on remand. Accordingly, we affirm the Court of Appeals and remand to the Jefferson Circuit Court for further consistent proceedings.