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Brown v. Commonwealth6/16/2005
he value of human life." Johnson v. Commonwealth, 885 S.W.2d 951, 952 (Ky. 1994); Kruze v. Commonwealth, 704 S.W.2d 192 (Ky. 1985); Harris v. Commonwealth, 793 S.W. 2d 802 (Ky. 1990); Nicolas v. Commonwealth, 657 S.W.2d 932 (Ky. 1983).
One would presume this reservation is based upon the severity of the potential sentence. Wanton murder is a Class A felony with a penalty of twenty years to life. Second degree manslaughter is a Class C felony with a maximum sentence of ten years. Reckless homicide, the least culpable of the three, has a maximum penalty of five years in the penitentiary. Moreover, pursuant to KRS 439.3401(3), Capital, Class A and B felonies are generally classified as "violent offender" offenses, subject to an 85% serve out of the sentence imposed. Class C and D felonies are not subject to this 85% serve out rule.
The majority's logic to avoid the constraints set out in Johnson, Kruze, Harris and Nicolas, su ra, is contained in four sentences.
"Appellant's conduct was substantially more than a mere traffic violation. In addition to driving at a rate exceeding the speed limit and violating the traffic signal, there was substantial evidence that Appellant was watching television rather than monitoring the traffic at the intersection and that he had attempted to `time' the traffic light despite the fact that it remained red at all times during his approach. Moreover, from the testimony regarding the manner in which Appellant and Kaylor operated their vehicles and Kaylor's unusual conduct after the collision, the jury could reasonably have inferred that Appellant and Kaylor were racing during the period immediately preceding the collision and that Appellant ran the red light to "outrun" Kaylor, not realizing that Kaylor had slowed down to turn onto the bypass. While the evidence was by no means overwhelming on these points, we cannot say as a matter of law that it was unreasonable for the jury to believe beyond a reasonable doubt that Appellant acted under circumstances manifesting extreme indifference to human life."(Slip opinion p. 9-10).
Brown was driving at a rate exceeding the speed limit. This was a 55 mile per hour four-lane and the evidence established he was driving 60-65 miles per hour. In civil cases, we have denied "punitive damages" on accidents up to ten miles per hour over the speed limit, even when the collision occurs in the wrong lane. See Kinney v. Butcher, 131 S.W.3d 357 (Ky. App. 2004). "Kinney also alleged that Butcher was traveling 55 miles per hour in a 45 mile per hour zone,. .." Id. at 358. We agree with the trial court's assessment of the circumstances of this case to the effect that traveling at a possible speed of ten miles per hour in excess of the posted speed limit and failing to complete a pass before entering a no-passing zone constitute nothing more than ordinary negligence. Were we to accept Kinney's argument that it amounts to wanton or reckless disregard for the safety of others, it would effectively eliminate the distinction between ordinary and gross negligence in the context of automobile accidents. Nearly all auto accidents are the result of negligent conduct, though few are sufficiently reckless as to amount to gross negligence, authorizing punitive damages. We are of the opinion that punitive damages should be reserved for truly gross negligence seen in cases such as Shortridge v. Rice, 929 S.W.2d 194 (Ky. App. 1996), Stewart v. Estate of Cooper, 102 S.W.3d 913 (Ky. 2003) and Phelps v. Louisville Water Co., 103 S.W.3d 46 (KY. 2003) In both Shortridge and Stewart, the defendant tortfeasors were driving while intoxicated and in Phelps, the jury was presented with eighteen instances where Louisville Water Co., misreprese
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