ACREE, Chief Judge:
Randall and Bobbie Stathers, and Brandalyn Elkins appeal the Garrard Circuit Court's November 8, 2010 order granting summary judgment in favor of appellees Garrard County Board of Education (Board), Branscum Construction Company, Inc. (Branscum), Elza Construction, LLC (Elza), Impact Drilling & Blasting, Inc.,
The Board, Branscum, and Elza cross-appeal the circuit court's June 7, 2010 order finding that the Board is not entitled to governmental immunity and, in turn, denying the Board's motion to dismiss.
For the reasons that follow, we reverse as to the appeal, affirm as to the cross-appeal, and remand for additional proceedings.
In June 2007, the Board entered into a contract with Branscum to build a new high school building in Lancaster, Kentucky. To aid in the construction, Branscum hired Elza to serve as the project's
Randall and Bobbie Stathers, husband and wife, reside approximately one-half mile from the construction site. Brandalyn Elkins is the Stathers' next-door neighbor.
From August 2007 through June 2008, blasting regularly occurred at the construction site. The blasting caused the Appellants' houses to shake and rattle. Within weeks of the start of the blasting, the Appellants noticed interior and exterior cracks developing in their homes, and doors were no longer shutting properly.
In the fall of 2008, the Stathers and Elkins filed separate yet virtually identical complaints against the Appellees, alleging they engaged in the ultra-hazardous activity of blasting at the construction site which produced violent concussions and vibrations resulting in significant damage to the Appellants' residences.
In January 2009, the parties began discovery; both the Stathers and Elkins were deposed.
During his deposition, Randall Stathers testified his house was built in 1958 and was originally owned by his grandfather. Randall explained that as a child he "ate Sunday dinner there every Sunday" and even "lived there for a couple of years." Randall could not recall "any kind of remodeling or any kind of major construction or repairs or changes to the house" when it was owned by his grandfather. Upon purchasing the house in 2004, Randall testified he was not aware of any settling or stress cracks in the house.
Randall explained that, in the fall of 2007, he was "leaving early in the morning and getting home late at night" so he was not home when most of the blasting occurred. However, Randall recalled feeling blasts on days when he was home early. In all, Randall testified he felt "two pretty good [blasts] and two or three slight [blasts]." During one of the large blasts, Randall claimed the "house shook quite violently."
Barbara Stathers testified that, unlike Randall, she was home daily and often felt the house shake as a result of the blasting. Barbara testified that, starting in August 2007, she "could feel the house move whenever there was blasting." Barbara explained: "I mean, you could hear it and the floors shook and the windows.... Anytime there was blasting, you could feel it. You know, if you stand on the floors, you could feel the floors move." Barbara recalled a particularly big blast that occurred on October 10, 2007, which she "could really hear" and that "really shook" the house; a similar "huge blast" occurred on October 22, 2007. In all, Barbara testified she felt blasts on approximately thirty-seven days between August 2007 and June 2008.
Like Randall, Barbara did not recall any cracks or damage to the interior or exterior of the house prior to the fall of 2007. On or about October 15, 2007, Barbara's insurance agent advised her to begin inspecting the house for damage. Upon doing so, Barbara discovered interior and exterior cracking. Randall confirmed Barbara's testimony, adding the cracks "were more noticeable after some of the big shocks" and he "kept noticing more damage"
During Elkins deposition, she testified she purchased her house in 2003, and when she moved in, she personally removed all the wallpaper in the house and repainted every room with the exception of one. During this process, Elkins obtained "a good view of all of the walls" and observed no cracks or evidence of cracking, patchwork, or repairs. Similarly, a pre-purchase inspection of her home — required by her mortgage lender and conducted by a neutral third party — revealed only one pre-existing crack in the exterior brick veneer that the previous homeowner had repaired.
Elkins testified that, as an employee of the Garrard County Board of Education, she was aware of the construction project "from way back." However, because Elkins worked full-time, she was often not home when the blasting occurred. Once the school year ended, Elkins felt blasts shake her house on May 28, 2008, May 29, 2008, and June 11, 2008.
Elkins began noticing damage to her house in September of 2007: "the first thing I noticed was my back door wasn't shutting properly. It seemed to be off — I don't know the correct word. It wasn't lining up to shut properly. And then I started noticing more cracks, small, and then they would get larger, and just over time, over several months, everything just got progressively worse and it continues to get progressively worse." Elkins testified that, as of 2009, there was "damage[] in every room of [her] house." Elkins explained:
Elkins testified the house "was built in 1957" and "there were no ceiling cracks or wall cracks like this in the house at the time that [she] bought the house in 2003."
Following the taking of the Appellants' depositions, Irvine and Pyles moved for summary judgment claiming the record was void of any evidence establishing the blasting at the construction site caused the damage to the Appellants' homes. The Board, Branscum, and Elza quickly joined the motion. The Appellants responded to the summary judgment motion with two initial reports — one regarding each house — from Joseph Poage, a licensed structural engineer.
With respect to the Stathers' home, Poage discovered exterior cracks that "did not appear to be recent" and "surface cracks around the perimeter that had been patched in the past." However, Poage also discovered interior cracks in the ceiling and walls as well as recent exterior cracks; Poage opined the cracks "could have been caused by the earth's vibration resulting in earth movement." Poage explained that "vibration can affect the bearing material under footing which in turn results in settlement." Poage opined that "ground motion caused foundation settlement [resulting in] the damage to the house" but explained it was imperative to obtain the relevant blasting records.
Regarding the Elkins' home, Poage discovered "extensive cracks in the foundation and the interior dry-wall" that appeared
By order dated March 16, 2010, the circuit court denied Irvine and Pyles' motion and ordered the Appellants to produce their final expert reports. In compliance, the Appellants provided subsequent written reports from Poage dated March 1, 2010 and April 15, 2010. In the March 1, 2010 report, Poage opined that "[t]he cracking of the brick veneer on [Elkins'] house appears to have occurred due to vibration." Further, in the April 15, 2010 report — which discussed both houses — Poage acknowledged the blasting records revealed the blasting at the construction site "appears to be below state requirements" but then questioned the accuracy of that information. Poage reiterated that "hair line cracks as well as open mortar joints in brick and block masonry" found on the Stathers' home "can be caused by vibration." Poage also confirmed that Elkins' house had "plaster crack associated with vibration that are throughout rooms on the side where the blasting occurred" as well as cracks in the exterior brick veneer that "could have been caused by low level vibration due to particle velocity. From all indications the blasting at the Garrard County High School lasted over two years; from 2007 through 2008 and into 2009."
On May 27, 2010, Irvine and Pyles renewed its motion for summary judgment claiming Poage's subsequent reports again failed to connect the blasting at the construction site to the Appellants' foundation and plaster crack complaints. The Board, Branscum, and Elza joined Irvine and Pyles' renewed motion.
On November 8, 2010, the circuit court entered summary judgment in the Appellees' favor and dismissed the Appellants' claims. In so doing, the circuit court reasoned that Poage's reports "speculate as to the cause of the wall and ceiling cracking in the [Appellants'] homes, but [Poage] does not give an opinion within any degree of probability that any of the [Appellants'] complaints were caused by the blasting or construction activities of the [Appellees]." The circuit court further explained "[t]he deposition testimony of record is also void of any eyewitness testimony which would connect any particular blasting event to any item of damage." This appeal followed.
Our task in reviewing a grant of summary judgment is to determine whether the circuit court correctly found no genuine issue exists as to any material facts and whether, based on such facts, appellee is entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.1996). When reviewing a summary judgment order, only legal questions and the existence, or non-existence, of material facts are considered. Id. Therefore, a grant of summary judgment is reviewed de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001). With this standard in mind, we turn to the case before us.
Appellants contend the circuit court erred in granting summary judgment on
In response, the Appellees assert the Appellants failed to produce sufficient proof — through expert testimony or otherwise — beyond mere speculation, demonstrating any reasonable probability that the blasting by the Appellees caused the damage alleged by the Appellants. As a result, the Appellees contend, no genuine issue of material fact exists as to causation and summary judgment was proper.
This is a blasting case and, therefore, a strict liability case. See Island Creek Coal Co. v. Rodgers, 644 S.W.2d 339, 348 (Ky. App.1982) ("Kentucky has expressly renounced the `negligence' theory in blasting cases."); David J. Leibson, 13 Ky. Prac. Tort Law § 12:6 (2011) ("Blasting is an activity which has repeatedly been held subject to strict liability."). Under a blasting strict liability analysis, proof of causation between the blasting and the claimed property damage is required. Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky.1970) (noting "one common denominator" between strict liability and similar tort-based causes of action is the need to establish causation); Island Creek Coal, 644 S.W.2d at 348 (explaining it is only necessary to prove causation and damages in blasting strict liability cases); Wolf Creek Collieries Co. v. Davis, 441 S.W.2d 401, 402-03 (Ky. App.1969). The Appellants must therefore show a genuine issue of material fact exists as to causation to maintain their strict liability claim and survive summary judgment. We think they have.
We begin by noting that "causation... presents a mixed question of law and fact." Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky.2003) (citing Deutsch v. Shein, 597 S.W.2d 141, 145 (Ky.1980)). Therefore, whether a plaintiff's damage was caused by the tort defendant typically "should be left to the jury to determine." Eichstadt v. Underwood, 337 S.W.2d 684, 686 (Ky.1960) (reviewing denial of defendant's directed verdict motion). It is not surprising then that, with the exception of medical malpractice cases,
Despite our inability to locate such a case, we acknowledge that there is an exception to this general rule. That exception is where it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991) (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985)). The word "impossible" in the context of the summary judgment standard is to be "used in a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). As we explain, we do not believe it is a practical impossibility that Appellants will be able to produce evidence at trial warranting a judgment in their favor.
We begin, however, by noting the gravamen of the circuit court's order granting summary judgment in favor of the Appellees — that the Appellants failed to offer any expert testimony that opines, within a reasonable degree of engineering probability, that the blasting at the construction site caused the damage sustained. The Appellants maintain there is no requirement that a plaintiff in a blasting case produce any expert testimony to establish causation. We are persuaded by Appellants' analysis.
Appellants direct our attention to a line of cases addressing, in part, whether the plaintiffs' blasting claims could get as far as the jury on the issue of causation, even absent supporting expert testimony of causation. See, e.g., River Queen Coal Co. v. Mencer, 379 S.W.2d 461, 463-64 (Ky.1964); Security Fire & Indem. Co. v. Hughes, 383 S.W.2d 113 (Ky.1964); and Bradford v. Sagraves, 556 S.W.2d 166, 167-69 (Ky.App. 1977). All of the cases cited here, and more, conclude that they could. Because each of these cases affirms a trial court's denial of a directed verdict motion based on the plaintiff's failure to present expert testimony, it would be absurd to conclude that expert testimony is required to survive a summary judgment motion. River Queen is representative of the analysis in these directed verdict cases.
In River Queen, the plaintiffs testified that, after the defendant commenced blasting operations approximately one-and-one-half miles from their home, their "house was often severely shaken and they observed cracks which became progressively worse." 379 S.W.2d at 463. The plaintiffs "testified to feeling the vibrations from the blasting, hearing the dishes and windows rattle, and to the physical damage to the house which immediately ensued" after the blasting started. Id. However, seismologists testifying on the defendant's behalf claimed, under the circumstances, "it was a physical impossibility for [the plaintiffs'] house to have been damaged by either vibrations or concussions emanating from the charges set off by" the defendant. Id.
On appeal, Kentucky's highest court concluded "there was enough evidence to take the [plaintiffs'] case to the jury despite [the defendant's] abundant expert testimony that the [plaintiffs'] home was too far away to be affected by the blasting." In so concluding, the Court reasoned that,
Id. at 464. The cases of Security Fire & Indem. Co. v. Hughes and Bradford v. Sagraves present the same analysis and reach the same holding.
In sum, River Queen, Hughes, and Bradford instruct that a court should not discount relevant lay testimony in ascertaining whether there is a causal connection between a defendant's blasting and the complaining plaintiff's damages; furthermore, lay testimony, even in the absence of supporting expert testimony, may be sufficient to create a genuine issue of material fact that must be determined by a jury. Accordingly, we reject the Appellees' position that the "Appellants must put forth some expert testimony connecting the blasting at the high school to their complaints of cracked walls, ceilings, and foundations." (Appellee Irvine and Pyles' Brief at 14).
The question then becomes whether, despite Appellants' presentation of lay and expert testimony, and the reasonable inferences therefrom, it is still impossible, in a practical sense, for them to prevail at trial. Examining the record "in a light most favorable to the party opposing the motion for summary judgment and [resolving] all doubts ... in his favor[,]" Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991), we believe it is not impossible for a jury to rule for Appellants on their claims against Appellees.
We believe Appellants produced sufficient evidence on the issue of causation to survive the Appellees' motion for summary judgment. We can discern no meaningful distinction between the proof that survived directed verdict motions in River Queen, Hughes, and Bradford, and the proffer of evidence in this case that failed to survive summary judgment motion.
First, the depositions of the Stathers and Elkins provide ample evidence concerning the condition of both houses before the blasting began. Significantly, neither the Stathers nor Elkins observed interior or exterior cracks prior to the fall of 2007. See Bradford, 556 S.W.2d at 167 (noting, prior to the blasting, no damage or defect was apparent in the plaintiff's home).
Second, similar to the plaintiffs in River Queen, Bradford, and Hughes, Barbara and Randall both gave graphic descriptions of the blasting and the corresponding vibrations and effects. Barbara explained, when the blasts occurred, the house shook, the windows rattled, and the floors moved. Randall testified as to one blast which he claimed violently shook the house. Further, while Elkins was not home when many of the blasts occurred, she testified to feeling three blasts in May and June of 2008 when she was.
Third, after the blasts began, both the Stathers and Elkins observed significant changes to the condition of their homes compared to the houses' conditions immediately before blasting began. Specifically, as in River Queen, the Appellants testified they observed interior and exterior cracks which became progressively worse, and discovered doors would no longer shut properly. River Queen, 379 S.W.2d at 463. It is reasonable for a fact-finder to infer that these considerable changes, observed over a short period of time in homes over fifty years old, were not likely to have been caused by natural forces. See Hughes, 383 S.W.2d at 113 (noting the plaintiff testified that damage to his house, which he first noticed after the blasting began, "occurred during the three months of the blasting operations").
In sum, a fact-finder could reasonably conclude the blasting was the cause of damage to the Appellants' homes because of: (1) the condition of the homes observed before and after blasting commenced; (2) the temporal relationship between when the blasting vibrations occurred and when the damage was first observed; and (3) Poage's expert opinion that the damage could have been caused by earth vibrations and/or ground motion. See Binion, 422 S.W.2d at 890; Prater Creek, 741 S.W.2d at 279. Therefore, it was not impossible for Appellants to produce evidence at trial that would result in a jury verdict in their favor. We therefore reverse the circuit court's November 8, 2010 order granting summary judgment in the Appellees' favor.
We now turn to the Board's cross-appeal.
Prior to the circuit court's order granting summary judgment in favor of the Appellees, the Board moved to dismiss the Appellants' claims on the ground that the Board is entitled to governmental immunity. The Appellants opposed the motion. On June 7, 2010, the circuit court
The Board argues on cross-appeal that the circuit court mistakenly relied upon Kelley, and reiterates it is entitled to governmental immunity. We disagree.
As emphasized by the Board, in Yanero v. Davis, 65 S.W.3d 510 (Ky.2001) and Grayson County Bd. of Educ. v. Casey, 157 S.W.3d 201 (Ky.2005), our Supreme Court extensively discussed a school board's right to governmental immunity, explaining:
Casey, 157 S.W.3d at 202-03; Yanero, 65 S.W.3d at 527. Accordingly, if a school board is engaged in a governmental function it is absolutely immune from suit unless a statutory or constitutional provision provides otherwise. See Casey, 157 S.W.3d at 202-03; Yanero, 65 S.W.3d at 527.
Armed with Yanero and Casey, the Board contends, and the Appellants do not dispute, the construction of a school building is a governmental function, as it is an activity that directly furthers education. See Schwindel v. Meade County, 113 S.W.3d 159, 168 (Ky.2003) (finding "the sponsorship and conduct of an interscholastic athletic tournament by a board of education is a governmental function"); Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 888 (Ky.2009) (concluding "the Board's provision of housing for its night watchperson was a government act in direct furtherance of its education purpose"). We agree with this analysis, thus far.
However, at this point we cannot agree with the Board's ultimate conclusion that because it was engaged in a governmental function, it is automatically entitled to governmental immunity. There is another step. Before we can agree with the Board, we must find inapplicable that "line of cases which allow recovery against the Commonwealth or a political subdivision on the ground that" compensation must be paid for injury to a plaintiff's land pursuant to sections 13 and 242 of the Kentucky Constitution. Commonwealth, Dep't of Highways v. Cochrane, 397 S.W.2d 155, 156 (Ky.1965).
In Kentucky State Park Comm'n v. Wilder, 260 Ky. 190, 84 S.W.2d 38 (1935), our Supreme Court explained:
260 Ky. at 192, 84 S.W.2d at 39 (emphasis added). "Under these express provisions," the Court later explained, "an appropriate action will lie against the commonwealth as well as against corporations or individuals for damages growing out of the taking, injuring, or destroying of private property for public purposes." Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161, 163 (1946).
Similarly, in Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521 (1929), the Court reasoned:
228 Ky. at 612, 15 S.W.2d at 523 (quoting Layman v. Beeler, 113 Ky. 221, 67 S.W. 995, 996, 24 Ky.L.Rptr. 174 (1902) (internal quotation marks omitted)).
The Board asserts, because the damage to the Appellants' homes does not rise to the level of a "taking" as defined in this Commonwealth,
As referenced, section 13 prohibits the taking of private property by the Commonwealth without just compensation. Ky. Const. § 13. The requirements of section 13 are amplified by section 242 which requires "just compensation for property taken, injured, or destroyed." Ky. Const. § 242 (emphasis added). The use of the word "or" implies there are three separate and distinct instances in which the Commonwealth may be required to pay a person just compensation for harm to that person's property: when the Commonwealth "takes" the property; when the Commonwealth "injures" the property; or when the Commonwealth "destroys" the property. In construing Section 242, our highest court has expressly stated this section "allows compensation for injury or destruction of property unattended by an actual taking." Wilder, 84 S.W.2d at 39. Accordingly, if the Commonwealth, or a subset thereof, injures or destroys the property of another — even if the injury or destruction does not rise to the level of a taking — just compensation must be paid. See Ky. Const. § 242.
Here, if the Appellants successfully prove their homes were damaged or destroyed as a direct consequence of the construction of the new high school, the Board may be liable in damages. Cochrane, 397 S.W.2d at 156 ("The Commonwealth must respond in damages if the use of its land wrongfully causes injury to the lands of others."). To that end and to that extent, the Board's governmental immunity is waived.
We have carefully considered the Board's argument that under Commonwealth, Natural Res. & Envtl. Prot. Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378 (Ky.1984), no taking has occurred since Stathers and Elkins retain possession of their respective properties. In Stearns, the Kentucky Supreme Court was confronted with the issue of whether a legislative enactment
In Stearns, the court discussed the then-state of "taking" jurisprudence:
678 S.W.2d at 381.
One commentator, Professor Carolyn S. Bratt, has stated that "[a]lthough the
In Bader v. Jefferson County, 274 Ky. 486, 119 S.W.2d 870 (1938), the court was confronted with the issue of "whether a county must compensate an abutting landowner where the State Highway Commission lowered the grade of a road and thereby merely impeded his ingress and egress, without taking any of his land or causing other resulting injury." The case thus addressed two issues: (1) whether compensation was owed; and (2), if so, which political entity was obligated to pay. Only the first issue bears on our case. The court in Bader unequivocally held:
274 Ky. at 488, 119 S.W.2d at 871.
Finally, the Board argues that this Court's decision in South Woodford Water Dist. v. Byrd, 352 S.W.3d 340 (Ky.App. 2011) supports its position that sovereign immunity bars Stathers' and Elkins' claim. That case, however, is factually distinguishable from this case in that the damages to Byrd's property resulted from the water district's failure to turn off service to a rental property. Those facts do not involve any governmental action that involves or implicates a public use, e.g., the construction of a public high school. Thus, Byrd apparently made no claim under Ky. Const. § 13 or § 242.
Accordingly, we affirm the circuit court's June 7, 2010 order denying the Board's motion to dismiss on immunity grounds.
Based on the foregoing analysis, as to the appeal of Appellants Stathers and Elkins, we reverse the Garrard Circuit Court's grant of summary judgment; as to the cross-appeal of Cross-Appellants Board, Branscum, and Elza, we affirm; we therefore remand this case for further proceedings consistent with this opinion.
ALL CONCUR.
