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relationship of the defendants (e.g., general contractor/subcontractor) the defendants are treated as a single party for purposes of fault apportionment. IC 34-51-2-4.
In contrast to most states, Kentucky’s general wrongful death statute, KRS 411.130, does not specify the categories of damages that are recoverable. It does, however, provide that punitive damages may be recovered for gross negligence or a willful act. The measure of damages in a wrongful death action, as derived from common law, is the damage to the estate by the destruction of the decedent’s power to labor and earn money. Aull v. Houston, 345 S.W.3d 232 (Ky. App. 2010). Pensions are counted in calculating permanent economic loss to the decedent’s estate. Heskamp v. Bradshaw’s Adm’r, 172 S.W.2d 447 (Ky. 1943).
In 1997, the Kentucky Supreme recognized a new claim for loss of parental consortium. Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997). The Kentucky Court of Appeals declined to expand this claim to allow recovery by adult children for loss of parental consortium, stating such an expansion would have to come from the legislature. Clements v. Moore, 55 S.W.3d 838 (Ky.App. 2000).
Kentucky also has a survival statute, enabling a personal representative to revive any personal injury action accrued to the decedent prior to death in the wrongful death action. KRS 411.133. Such claims can include conscious pain and suffering and pre-impact fright. Conscious pain and suffering is recoverable, even if brief prior to death. Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000).
Several Liability
Kentucky long ago abandoned the common law doctrine of joint and several liability. Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984). Joint tortfeasors can only be held liable for their individual percentages of fault for the damages awarded to the plaintiff. As an example, where three joint tortfeasors are each apportioned 25% fault and the plaintiff is apportioned the remaining 25%, each joint tortfeasor is only responsible for paying 25% of the plaintiff’s awarded damages, not 75% as would be the case if liability were joint and several.
Damages
In general, damages recoverable in negligence actions are limited to the actual pecuniary loss sustained or out-of-pocket damages. Young v. Thornton, 563 S.W.3d 22 (Ky. 2018). The plaintiff should not be placed in a better position than if the wrong had not been done. Id.
A plaintiff has two avenues from which to attempt to recover punitive damages in Kentucky. By statute, a plaintiff must prove, by clear and convincing evidence, that the defendant acted toward the plaintiff with fraud, malice or oppression. KRS 411.184. Punitive damages cannot be awarded for breach of contract or against a principal or employer for the conduct of an agent or employee unless the principal ratified or should have anticipated the conduct. Id.
The Kentucky Supreme Court has also recognized a common law gross negligence basis for punitive damages. Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998). “Gross negligence” requires a showing that the conduct was “wanton or reckless for the lives, safety or property of others.” Id.