Recent SCOKY Decision Discusses Applicability of Negligence Per Se Statute to Violation of Administrative Regulation

In McCarty v. Covol Fuels No. 2, LLC, 476 S.W. 3d 224 (Ky. 2015), the Kentucky Supreme Court discussed at length the applicability of Kentucky’s negligence per se statute to the violation of an administrative regulation. The statute in question, KRS 446.070, permits a person injured by another’s violation of a state statute to recover civil damages from the violator, even if the violator incurs a penalty or forfeiture for the violation. Case law has added several conditions on the ability to recover: (1) the plaintiff must come within the class of persons intended to be protected by the statute; (2) the statute must have been intended to prevent the type of occurrence at issue; and (3) the violation must have caused the plaintiff’s damages.

The Supreme Court had previously held in Centre College v. Trzop, 127 S.W.3d 562 (Ky. 2003), that the violation of a safety regulation adopted pursuant to the exact mandate of an enabling statute may give rise to a negligence per se claim. Then, in St. Luke Hospitals, Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011), a case involving a claim of negligence per se for alleged constitutional violations, the Court discussed generally the breadth of the negligence per se statute and its applicability to the violation of various types of legal authorities, including federal statutes and regulations, laws of other jurisdictions, municipal ordinances, and administrative regulations. Citing Trzop, the Court noted that the negligence per se statute created a private cause of action for violation of an administrative regulation only in these “narrow circumstances … (1) the regulation must be consistent with the enabling legislation and (2) it must apply to the safety of the citizenry.” 354 S.W.3d at 535.  The Court in Straub declined to extend the negligence per se doctrine to a constitutional violation.

In McCarty, the Court reiterated the holding in Straub and that decision’s analysis of Trzop, and found that the personal representative of an employee of a garage door company who was killed while installing a garage door on a building on a mine site could not maintain a negligence per se claim based on alleged violations of mine safety statutes and regulations because there was no nexus between the installation of a garage door and the mine safety regulations at issue.