Construction Bulletin

Kentucky’s Independent Duty Rule

April 13, 2020

By: John W. Hays

On April 2, 2020, the Sixth Circuit Court of Appeals affirmed the dismissal of negligence and trespass claims a property owner asserted against a subcontractor (and Jackson Kelly client) hired to install a gas pipeline and to restore the property disturbed by the pipeline construction. The property owner claimed that the subcontractor blew wood chips into the woods on her property without her permission. The subcontractor produced project documents to show that they disposed of the wood chips as directed, and Jackson Kelly argued on summary judgment that the tort claims were not viable, because the claims merely restated the subcontractor’s contractual duties. The trial court agreed and dismissed the tort claims based upon its application of the rule in Kentucky that a tort claim cannot based solely upon a contractual duty. The independent duty rule was set forth in Presnell Constr. Managers, Inc. v. EH Contr., LLC (Ky.2004) and reaffirmed in Superior Steel, Inc. v. The Ascent at Roebling’s Bridge, LLC (Ky.2017). The Sixth Circuit found no error in the trial court’s judgment, because the property owner failed to show that the subcontractor violated any duty that was independent of its contractual duties. The clear message is that claimants cannot assert a viable tort claim by merely repackaging a contract claim. Laura Nelson v. Columbia Gas Transmission, et al. (6thCir.2020).