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CONSTRUCTION AND DEATH ACTIONS IN KENTUCKY
Overview of Negligence Actions in Construction Accidents Under Kentucky Law
Kentucky plaintiffs must prove four elements to succeed in a claim for negligence: (1) a duty of care owed to the plaintiff; (2) breach of that duty of care; and (3) causation; and (4) damages. Boland-Maloney Lumber Co., Inc. v. Burnett, Nos. 2008-CA-59, 2008-CA-299, 302 S.W.3d 680, 2009 Ky. App. LEXIS 169, 2009 WL 2901206, at *3 (Ky. Ct. App. Sept. 11, 2009). In the context of construction, Kentucky courts have held the that builders can only be liable for injuries to remote purchasers that result from dangerous and concealed conditions they created. Wise v. Ball Homes, Inc., LEXIS 114 (Ky.App. 1989).
In the context of construction, Kentucky recognizes an “up the ladder” immunity defense for general contractors regarding claims asserted by injured employees of subcontractors. Because Kentucky law makes the general contractor effectively the employer of the subcontractor’s injured employee for purposes of providing worker’s compensation benefits (in the event that the subcontractor failed to procure such coverage), the general contractor enjoys the same legal immunity as the employer. KRS 342.060.
Outside of the worker’s compensation arena, Kentucky applies rules of agency to determine whether a general contractor can be held liable for the negligence of its subcontractors. In general, a principal will not be held liable for the negligent acts of an independent contractor. Miles Farm Supply v. Ellis, 878 S.W.2d 803 (Ky.App. 1994). Kentucky recognizes an exception, however, where the work undertaken constitutes a nuisance or involves an inherently dangerous activity. Id.
Kentucky recognizes various theories under which builders can be held liable for construction defects. Failures to comply with the state building code, for example, can constitute negligence per se and also provide a remedy independent of tort law. KRS 198B.130, Real Estate Mktg. v. Franz, 885 S.W.2d 921 (Ky. 1994). Causes of action can also be grounded in claims for breach of implied warranty of habitability and fitness for a particular purpose. Id.
Statutes of Limitation
The statute of limitations for personal injuries is one year, but is five years if the claim is against a builder of a home or other improvements. KRS 413.140 and KRS 413.120. The cause of action against the builder accrues at the time of original occupancy after completion of the improvements. The statute of limitations for breach of contract is ten years. KRS 413.120
Comparative Fault
Kentucky is considered a “pure” comparative fault state. While any fault attributed to the plaintiff operates to proportionately diminish the plaintiff’s recoverable damages, a plaintiff can be apportioned 99% fault and still recover 1% of their proven damages. KRS 411.182. Fault can also be apportioned by juries to “third-party defendants” (i.e., parties not named by the plaintiff(s) who are brought into the litigation by one or more of the defendants). CR 14.01.
In the construction context, where a plaintiff seeks to recover from two defendants based upon the
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