# Phelps v. Louisville Water Co.

> Kentucky Supreme Court · April 24, 2003 · 103 S.W.3d 46

URL: https://www.frixlaw.com/law-library/cases/9634904

## Case

- **Full name:** Beverly K. PHELPS, Administrator of the Estate of Dannie Phelps, Jr.; And Lawrence M. Cason, Administrator of the Estate of Lawrence Michael Cason, Jr. Appellants/Cross-Appellees v. LOUISVILLE WATER COMPANY Appellee/Cross-Appellant
- **Court:** Kentucky Supreme Court
- **Decided:** April 24, 2003
- **Citations:** 103 S.W.3d 46; 2003 Ky. LEXIS 85; 2003 WL 1936667
- **Precedential status:** Published
- **Opinion:** Dissent by Cooper
- **Judges:** Lambert, Johnstone, Keller, Wintersheimer, Stumbo, Cooper, Graves
- **Cited by:** 99 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634904

## How later opinions describe it (automated extraction)

- explaining that a jury could find gross negligence where there were eighteen instances of misconduct “evidencing] a conscious disregard for public safety, including several misrepresentations of a highway’s unsafe condition, failures to notify the proper entities, and violatio…
- noting that a jury could find gross negligence when there were eighteen instances of misconduct, including several misrepresentations, violations of the company’s internal policies and standards, failures to notify the proper entities, and improper conduct at work zone
- stating where preservation is lacking, it is not an appellate court’s duty to “search the vast record on appeal to make that determination”
- stating a jury could find gross negligence where there were eighteen instances of misconduct

## Opinion text

COOPER, Justice,
dissenting.
I agree with the majority opinion’s conclusion that the Louisville Water Company is not an agency of the City of Louisville, thus leaving for another day the issue of the constitutionality of KRS 65.2001 as applied to municipalities by KRS 65.200(3). But, cf. Yanero v. Davis, Ky., 65 S.W.3d 510, 525 (2001) (“[T]o the extent that the 1986 amendments to the Board of Claims Act could be construed as attempts to limit the liability of non-immune persons or entities to the liability limits set forth in KRS 44.070(5), those provisions would violate Section 54 of the Constitution.”).
However, I would reverse this case primarily because of the trial court’s failure *60 to instruct the jury on punitive damages in accordance with KRS 411.130(1), as interpreted in Cooper v. Barth, Ky., 464 S.W.2d 233, 234 (1971). Williams v. Wilson, Ky., 972 S.W.2d 260, 270 (1998) (Cooper, J., dissenting) (“Never before have we questioned the authority of the General Assembly to enact statutes establishing the degree of culpability necessary to entitle a litigant to recover punitive damages.”). Particularly fallacious is the majority opinion’s equation of “malice or willfulness,” Cooper v. Barth, supra, at 234 (citing Sistrunk v. Meisenheimer, 205 Ky. 254 , 265 S.W. 467, 468 (1924) and Cadle v. McHargue, 249 Ky. 385 , 60 S.W.2d 973, 974 (1933)), with “wanton or reckless disregard,” Horton v. Union Light, Heat & Power Co., Ky., 690 S.W.2d 382, 389-90 (1985).
Further, even if the jury had awarded the same punitive damages ($2,000,000.00) under a proper instruction, the award is patently excessive under the facts of this case. BMW of North America, Inc. v. Gore, 517 U.S. 559, 574-75 , 116 S.Ct. 1589, 1598-99 , 134 L.Ed.2d 809 (1996); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18 , 111 S.Ct. 1032, 1043 , 113 L.Ed.2d 1 (1991); Sand Hill Energy, Inc. v. Ford Motor Co., Ky., 83 S.W.3d 483, 512-14 (2002) (Cooper, J., dissenting). Applying the test enunciated in Gore, supra, to the de novo review required by Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436-43 , 121 S.Ct. 1678, 1685-89 , 149 L.Ed.2d 674 (2001), the evidence in this case warranted an award of punitive damages of, at most, $500,000.00; therefore, the award should be reduced to a sum no more than that amount. State Farm Mut. Auto. Ins. Co. v. Campbell, — U.S. -, slip op., at 15, 123 S.Ct. 1513 , - (2003) (“When compensatory damages are substantial, then a lesser ratio [of punitive to compensatory damages], perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.”).
Accordingly, I would reverse and remand this case for a new trial on the issue of punitive damages.
GRAVES, J., joins this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634904. Public record. Not legal advice.