                                                 RENDERED: OCTOBER 29, 2015
                                                           TO BE PUBLISHED

                $nprrntr Olourf 1.fintfurkg
                                2014-SC-000589-CL

IN RE:

NANCY J. MCCARTY; NANCY J. MCCARTY,
                                                            F {I
AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF DAVID W. MCCARTY,
                                                           DATE                   TAN A
DECEASED; AND LIBERTY MUTUAL
AGENCY MARKETS

                            THE UNITED STATES
V.                COURT OF APPEALS FOR THE SIXTH CIRCUIT
                             NO. 13-6484/6499

COVOL FUELS NO. 2, LLC (A UTAH
CORPORATION)

               OPINION OF THE COURT BY JUSTICE VENTERS

                              CERTIFYING THE LAW

      The United States Court of Appeals for the Sixth Circuit certified to this

Court pursuant to CR 76.37(1) a question of Kentucky law. The certified

question is:

      Whether a subcontractor injured while installing a garage door
      on an unfinished building at a mine site may maintain a
      wrongful death action against a mine operator under a
      negligence per se theory for alleged violations of Kentucky
      mining [statutes and] regulations, codified in KRS §§ 351-352
      and KAR §§ 805-825.1 1 1

         1 While the certified question refers to "KAR §§ 805-825," which could be
interpreted as referring to KAR Sections 805 through 825, the intervening regulatory
titles (e.g., Department of Insurance (KAR § 806) and Department of Charitable
Gaming (KAR § 820)) bear no relationship at all to the issues we address. We construe
the certified question as referring only to KAR Sections 805 (ENERGY AND
ENVIRONMENT CABINET) and 825 (ENERGY AND ENVIRONMENT CABINET -
KENTUCKY MINE SAFETY REVIEW COMMISSION).
Based upon our review of the applicable Kentucky law and the facts relevant to

this inquiry, and for the reasons set forth below, we conclude that KRS

Chapters 350 2 , 351 and 352 and Kentucky Administrative Regulations (KAR)

Sections 805 and 825 do not support a wrongful death action predicated upon

a theory of negligence per se in the factual context presented here. 3


                              I. FACTUAL BACKGROUND
         Covol Fuels (Covol) operates a coal mine in Muhlenberg County,

Kentucky. Covol contracted with H 86 B Builders for the construction of a post-

frame structure at Covol's mine site. H 86 B subcontracted with Evansville

Garage Doors for the installation of an 1,800-pound overhead, commercial-

grade garage door for the building. David McCarty and Jeremy Means,

employees of Evansville Garage Doors, were dispatched to the Covol mine site

to install the heavy door. McCarty was highly skilled in this specialized aspect

of the construction industry, having installed approximately 1,000 garage

doors.

         McCarty was killed during the installation of the door at the Covol site.

At the time of the accident, he was standing on an unsecured stepladder

checking the tension spring mechanism on the door, which was suspended

directly over his head in the open position. Suddenly, the door descended and


      2 Although the certified question does not refer to KRS Chapter 350, the Estate

argues for its application and so we include it in our consideration of the issue.
       3 We note at this point that our analysis is limited to claims based upon alleged

violations of the identified statutes and regulations. We do not address the viability of
any claims or potential claims based upon common law theories of premises liability
because such claims are outside the scope of the certified question.

                                            2
struck one of the rails of McCarty's stepladder. Under the weight of the door,

the stepladder collapsed. McCarty was wearing a safety harness but it was not

secured to anything so he fell, striking his head and suffering a fatal injury.

      The Federal Mine Safety and Health Administration (MSHA) investigated

the circumstances of McCarty's death because it occurred on property

containing a coal mine. The MSHA inspector concluded that McCarty's fall

resulted from the placement of the ladder directly below the door opening,

coupled with the installers' failure to follow the manufacturer's installation

instructions requiring that the door be blocked from motion so that it would

not move during the installation process.

      McCarty's widow, Nancy J. McCarty, Individually and as the Personal

Representative of McCarty's Estate (collectively, the Estate) brought a wrongful

death action against Covol alleging, among other things, that Covol was

negligent per se for violating various coal mine safety statutes and regulations.

After a period of discovery, Covol moved for summary judgment on all claims.

The federal district court granted summary judgment. In its evaluation of the

negligence per se claim, which is our only concern, the district court reasoned

that at the time of the accident, McCarty was not within the class of persons

protected by Kentucky's mine safety laws and that his accidental death did not

occur under circumstances that our mine safety laws were intended to prevent.

      The Estate appealed to the Sixth Circuit challenging, among other issues,

the district court's rejection of its negligence per se theory. We subsequently

granted the Sixth Circuit's request to certify the law in regards to whether the


                                         3
statutes and regulations relied upon by the Estate were intended: 1) to protect

employees of independent contractors, such as garage door installers who, like

McCarty, were injured while working in the proximity of a mine site; and 2) to

prevent the type of accident that caused McCarty's death.


                                    II. ANALYSIS

      In 1942, the Kentucky General Assembly enacted KRS 446.070 to codify

the common law principles of negligence per se. St. Luke Hosp., Inc. v. Straub,

354 S.W.3d 529, 534 (Ky. 2011). KRS 446.070 provides: "A person injured by

the violation of any statute may recover from the offender such damages as he

sustained by reason of the violation, although a penalty or forfeiture is imposed

for such violation."

      We said in Straub that "in accord with traditional legal principles related

to the common law concept of negligence per se, [KRS 446.070] applies

when . . . the plaintiff comes within the class of persons intended to be

protected by the statute [alleged to have been violated]."   Id. Our case law also

recognizes two other conditions which must be satisfied for the application of

KRS 446.070. First, "[t]he statute must have been specifically intended to

prevent the type of occurrence that took place."   Hargis v. Baize, 168 S.W.3d

36, 46 (Ky. 2005). Second, "the violation [of the statute] must have been a

substantial factor in causing the result." Id.

      At this point, it must be noted that KRS 446.070 expressly references

only causes of action for "person[s] injured by the violation of any statute." No

reference is made in the statute to injuries that result from the violation of an

                                         4
administrative regulation. Straub addresses that issue. When the violation of

an administrative regulation is at issue, "KRS 446.070 creates a cause of

action 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." Straub, 354 S.W.3d at 535 (citing Centre College v. Trzop, 127

S.W.3d 562, 567 (Ky. 2003)).

      Furthermore, when a provision of the enabling statute for the

promulgation of administrative regulations expressly mandates compliance

with those regulations, the violation of the regulation is the equivalent of a

violation of a statute, thereby bringing the regulation within the scope of KRS

446.070. Hargis, 168 S.W.3d at 41. With these fundamental principles in

mind, we proceed to an examination of the statutes and regulations asserted by

McCarty's estate and his widow to determine whether a negligence per se claim

can be based upon those provisions.

A. KRS Chapters 351 and 352

      We first consider the statutory provisions identified as applicable to the

Estate's negligence per se claims. The certified question generally refers to KRS

Chapters 351 and 352; the Estate specifically cites KRS 352.280, KRS

352.330, and KRS 352.340.

      KRS Chapter 351 is titled "DEPARTMENT OF NATURAL RESOURCES"

and sets forth a multitude of statutory provisions applicable to the

organization, duties, and operations of that agency, which is the principal

agency overseeing mining operations in the Commonwealth. KRS 351.020 (the


                                         5
Department of Natural Resources "shall administer all laws of the

Commonwealth relating to mines."). KRS 351.010(q) defines a "mine" as:

      any open pit or any underground workings from which coal is
      produced for sale, exchange, or commercial use, and all shafts,
      slopes, drifts, or inclines leading thereto, and includes all buildings
      and equipment, above or below the surface of the ground, used in ,
      connection with the workings. Workings that are adjacent to each
      other and under the same management, but which are
      administered as distinct units, shall be considered a separate
      mine[.]

(emphasis added).

      Central to the Estate's argument is the assertion that McCarty's fatal

injury occurred at a "mine" because the garage door installation was being

performed at a building situated on a coal mine site. However, as emphasized

above in the statutory text, the only "buildings" that fall within the definition of

a "mine" are those being "used in connection with the workings [of the mine]."

As premised in the certified question itself, the structure upon which McCarty

was working was an "unfinished building." Apparently, at the time of the

accident, the building was under construction and was not being "used in

connection with the workings" of Covol's mining operations. Similarly, the

stepladder, harness, tools, and other equipment associated with the garage

door installation would not qualify as "equipment" within this statutory

definition because they were not being "used in connection with the workings"

of a "mine."

      The Estate's invocation of KRS Chapter 351 is tenuous because the

Department of Natural Resources is tasked only with administrating coal

mining laws. The installation of a garage door on an unfinished building, even
                                          6
though situated in proximity to a coal mine, lies outside the scope of KRS

Chapter 351 and the Department's bailiwick.

      The criteria identified in Straub and Hargis for determining the

applicability of KRS 446.070 requires an assessment of the legislative intent

behind the statute: was the injured person among the class of individuals

intended to be protected by the statute, and was the occurrence of the kind

that the statute was designed to prevent? KRS 351.101, titled "Declaration of

legislative finding of fact," and KRS 351.241, titled "Statement of General

Assembly," provide critical insight into the legislative considerations

underpinning KRS Chapter 351. KRS 351.101 provides:

      The General Assembly hereby finds and declares the following:

      (1) The highest priority and concern of the Commonwealth must be
      the health and safety of the coal industry's most valuable
      resource, the miner.
      (2) The continued prosperity of the coal industry is of primary
      importance to the state.
      (3) A high priority must be given to increasing the productivity and
      competitiveness of the mines in this state.
      (4) An inordinate number of miners are killed or injured during the
      first few months of their experience in a mine and upon acquiring
      new work assignments in a mine.
      (5) These injuries result in the loss of life and serious injury to
      miners and are an impediment to the future growth of the state's
      coal industry.
      (6) Mining is a technical occupation with various specialties
      requiring individualized training and education.
      (7) Injuries can be reduced through proper miner training,
      education, and certification.
      (8) Mine safety can be improved by the imposition and
      enforcement of sanctions against licensed premises and certified
      and noncertified personnel whose willful and repeated violations of
      mine safety laws place miners in imminent danger of serious
      injury or death.
      (9) Abuse of illicit substances and alcohol in the mining industry
      represents a serious threat to the health and safety of all miners.
                                         7
      Substance and alcohol abuse adversely affect the health and
      safety of miners. Mine safety can be significantly improved by
      establishing as a condition of certification that miners remain drug
      and alcohol free.

(emphasis added).

Similarly, KRS 351.241 provides:

      The General Assembly hereby finds and declares the following:

      (1) Thousands of Kentuckians enter underground mines each day
      to produce coal that is so vital to the economy of our nation and
      the well-being of its people.
      (2) The underground coal mine is a hazardous environment that
      constantly requires the highest degree of safety consciousness on
      the part of every individual.
      (3) Despite training and a variety of safety efforts, each year coal
      mines continue to take a heavy human toll: large numbers of
      miners are injured; many are left permanently disabled; and a
      lesser number pay the ultimate price--death.
      (4) Many activities are performed by a variety of persons; therefore,
      each coal miner is expected to learn and perform a large number
      of tasks.
      (5) Miners frequently become engaged in unfamiliar tasks when
      substituting for others or assisting a fellow worker.
      (6) The American zeal for work and productivity very frequently
      causes the miner to give second priority to normal safety measures
      and precautions.
      (7) Studies have demonstrated that experienced persons observing
      and providing on-the-job counseling to individual miners
      regarding their work habits can bring about a significant reduction
      in underground mine accidents and fatalities.

(emphasis added).

      These statutory provisions are dominated by references to miners and

the dangers miners confront while performing their jobs. In light of this

emphasis, these provisions signal that the class of persons the legislature

intended to protect by the statutory framework of KRS Chapter 351 is the

traditional coal miner and others associated with the process of extracting coal


                                        8
who also are routinely exposed to the unique dangers and risks inherent to

coal mining. For the same reason, the dangers that these statutes purport to

address are the occupational hazards traditionally associated with mining coal

and working in a coal mining environment.

      The Estate does not direct our attention to any specific provision from

KRS Chapter 351 in support of its negligence per se claim. We are unable to

identify any provisions within that chapter that impose upon coal mine

operators a special duty of care owed to independent contractors and

craftsmen who enter upon the premises to perform work unrelated to coal

mining. Of course, the traditional common law duty of a landholder to make

the property reasonably safe and to warn of unknown or latent dangers

remains applicable, see Lewis v. B & R Corporation, 56 S.W.3d 432, 437-38

(Ky. App. 2001), but that duty is outside the scope of the question we address.

Accordingly, we are constrained to conclude that the statutory text does not

support the theory that KRS Chapter 351 imposes statutory duties upon Covol,

the violation of which would support a negligence per se claim under KRS

446.070.

      The certified question and the Estate's pleadings also refer to KRS

Chapter 352, which is styled: "MINING REGULATIONS." Chapter 352 sets

forth a host of provisions relating to mining operations, including certain safety

provisions aimed at reducing the dangers inherent to the coal mining

environment. Among the statutory subtitles contained in KRS Chapter 352 are

the following representative examples:


                                         9
• 352.020 Mine ventilation plans — Methods of ventilation — Amount of air
  required — Plan requirements.

• 352.090 Abandoned parts of mine to be posted — Sealing.

• 352.110 Mines to have two openings — Exception — Condemnation of land for
  opening.

• 352.140 Operation of cages and cars.

• 352.161 Examination of conveyor belts.

• 352.220 Electricity in mines and surface installations.

• 352.241 Explosives and blasting devices in mines.

• 352.300 Stations for fire bosses — Persons not to pass or remove danger
  signals.

• 352.550 Coercion of trade of miners prohibited.

      A fair reading of KRS Chapter 352 in its entirety, as illustrated by the

above examples, fails to confirm the Estate's theory that the Chapter intended

to create duties owed by a coal mine operator to specialized workers whose

labor and injury are associated with coal mining only by the fortuitous

circumstance that they happen to take place on land occupied by a mining

operation. The Estate cites three provisions of KRS Chapter 352 in support of

its claim, which may be fairly abridged as follows:

1. KRS 352.280 - Examination of mine by properly certified person — Duties —
Frequency of examinations.

      (1) In all \mines the licensee, mine manager, or superintendent
      shall employ one (1) or more properly certified persons.
      (2) A properly certified person shall examine carefully, within
      three (3) hours before each shift enters the mine:
             (a) Every working place;
             (b) All places adjacent to live workings;
             (c) Every roadway where persons are required to work or
             travel;
                                         10
             (d) All abandoned panels on the intake;
             (e) Every set of seals on the intake; and
             (f) All roof falls near active workings on the intake and on the
             working sections.
      (3) Before proceeding with the examination he shall see that the
      air current is traveling its proper course.
      (4) A properly certified person shall use approved gas detection
      devices in the performance of the required examination and shall
      examine the entrances to all worked-out and abandoned portions
      adjacent to the intake roadways and working places under his
      charge where explosive gas is likely to accumulate.

      (6) If an explosive mixture of gas is discovered, the properly
      certified person shall place a danger signal across the entrance to
      every place where explosive gas is discovered or where immediate
      danger is found to exist from any other cause. The signal shall be
      sufficient warning to ensure that persons do not enter the area.
      (7) When the mine is idle and workmen are required to go into
      the mine, the section, portion, or part of the mine entered must be
      inspected by a properly certified person within three (3) hours
      before the workmen enter.
      (8) Each week, a properly certified person designated by the mine
      foreman shall examine each set of seals on the return, all
      designated intake and return entries, and all escapeways.
      (emphasis added).

2. KRS 352.330 - General duties of mine foreman -- Duty of licensee.

      The mine foreman shall exercise general supervision over the
      ventilating apparatus and the airways, traveling ways, working
      places, pumps and drainage, and shall see that as the miners
      advance their excavations proper breakthroughs are made as
      required by law to properly ventilate the mine. He shall see that
      employees are provided with sufficient props, cap pieces, and
      timbers of suitable size, which shall be delivered to the working
      place and shall see that the props are cut as square as practicable
      at both ends and as near as practicable to the proper length
      required or designated for the places where they are to be used.
      The mine foreman shall see that the water is drained as nearly as
      practicable out of the working places, and that the working places
      are kept as free from water as practicable during working hours.
      He shall see that every person employed to work in the mine
      is, before beginning to work, instructed in the particular
      danger incident to his work in the mine and furnished a copy
      of the rules of the mine . . . . (emphasis added).


                                        11
3. KRS 352.040 - Examination of mine by mine foreman or assistants —
Removal of dangers — Record.

      (1) The mine foreman or his assistants shall visit and carefully
      examine each working place in the mine at least every four (4)
      hours while the mine employees are at work. He shall examine
      as live workings, on regular inspections, all places in live sections
      that are temporarily abandoned. . . . He shall see that every mine
      liberating explosive gas is kept free of standing gas in all working
      places and roadways, and that all accumulations of explosive or
      noxious gases in the worked-out or abandoned portions of any
      mine are removed as soon as possible after discovery. He shall
      ensure that all preshift examinations are conducted by a certified
      person and that examinations of conveyor belts have been
      conducted. He shall not allow any person who may be endangered
      by the presence of explosive or noxious gases to enter that
      portion of the mine until the gases have been removed. He shall
      direct and see that all dangerous places and the entrances to
      worked-out and abandoned places in all mines are properly
      barricaded across the openings, so that no person will enter, and
      that danger signs are posted upon the barricade to warn persons of
      existing danger . . . .
      (2) The mine foreman or his assistants, fire bosses, or other
      certified persons shall, at least once every week, travel and
      examine all air courses, escapeways, the caches of self-
      contained self-rescuer devices required by KRS 352.133, the
      caches' contents, seals on the return, roads, and openings that
      give access to old workings or pillar falls . . . .
      (3) Examinations of conveyor belts shall be conducted by a
      certified foreman or a certified belt examiner . . . . (emphasis
      added).

      The Estate posits that the duties created in these statutory provisions,

including the requirements for periodic inspections set forth in KRS 352.280

and KRS 352.040, apply equally to workers engaged in the mining operation

and to specialized independent contractors such as McCarty, who happen to be

upon the property. We respectfully reject this interpretation.

      In the context of the statutory language, and construing the cited

chapters as a unified statutory scheme, it is manifestly clear that the legislative


                                         12
intent in enacting these provisions was to target and ensure the safety of the

actual coal mining operations for the protection of the traditional coal miners

and the mining technicians and engineers, mechanics, maintenance personnel

workers, and other ancillary workers exposed to dangers of the mining

environment. Nothing in the statutory text tasks the mine operator with

tending to the safety of non-mining craftsmen and technicians and protecting

them from the hazards of their own non-mining occupations.

      Given the extensive statutory emphasis on the dangers of mining, we

regard it as highly improbable that the General Assembly intended to burden

coal mine inspectors and supervisors with the duty to become versed in the

safety requirements 'of such extraneous activities as installing massive garage

doors and other processes unique to the business of erecting buildings and

foreign to the process of extracting coal. The mine operator's unfamiliarity with

the special techniques, requirements, and hazards of the various construction

trades is certainly a major reason for using specialized outside contractors

instead of in-house laborers. Expecting the mine operator to provide safety

inspections for the unfamiliar work of specialized independent contractors

would divert resources away from the safety of workers actually engaged in

mining coal, thereby increasing the very risks that the statute is designed to

reduce.

      From our review of KRS Chapters 351 and 352 in their entirety and in

context, we conclude that Mr. McCarty was not "within the class of persons

intended to be protected by the statute" as required for the application of KRS


                                        13
446.070 and the principles of negligence per se, as set forth in Straub. We also

conclude that the occurrence identified as the cause of McCarty's tragic

death—the failure to secure the garage door in accordance with the

manufacturer's installation instructions, and its subsequent fall—is not the

type of occurrence that the foregoing mining statutes were intended to prevent.

Consequently, the Estate's claims cannot be based upon a negligence per se

theory predicated upon violations of KRS Chapters 351 and 352.

B. Administrative Regulations

      The Estates relies upon three regulations in support of its negligence per

se claim under KRS 466.070: 805 KAR 7:090; 805 KAR 3:020; and 805 KAR

3:100. "KRS 446.070 creates a cause of action 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." Straub, 354 S.W.3d at 535 (citation

omitted).

      There being no statutory text within the enabling statutes (KRS Chapters

351 and 352) which would support a negligence per se theory of liability for the

occurrence that injured McCarty, nor any precise mandate within the enabling

statutes for the promulgation of regulations that would include the

circumstances of this case, based upon the Straub rule alone, it would appear

that the administrative regulations cited by the Estate would, likewise, fail to

support a negligence per se claim. It would make little sense for the legislature

to enact statutory provisions limited exclusively to the reduction or elimination

of hazards associated with the mining of coal, and yet at the same time have


                                         14
those same statutes serve as enabling legislation for administrative regulations

focused upon occupational hazards far removed from the mining of coal so as

to reach the hazards associated with installing large, commercial garage doors.

Our resolution of the statutory issues in the preceding section should, by the

same force of reasoning, resolve the Estate's arguments relating to the

administrative regulations.

      The Estate relies heavily upon the mine visitor provisions of Section (1) of

805 KAR 7:090, a regulation concerned with "Surface Hazard Training." That

section provides that "[s]urface hazard training shall be provided by the [mine

operator] to visitors exposed to mine surface hazards[.]" Manifestly, a "mine

surface hazard" does not encompass the installation of a garage door on a

building under construction. To the extent that the garage door posed a

hazard during its installation, it was not a "mine" hazard. The enabling

statutes for this regulation are KRS 351.106, KRS 352.350, KRS 351.070, and

KRS 351.105, and yet an examination of those statutes does not disclose any

indication that this regulation could have been intended to bear the weight

advocated by the Estate.

      805 KAR 3:020 concerns the establishment of "general operating safety

standards controlling the operation of the Commonwealth's surface coal and

clay mines, which include strip and auger mining operations." Neither the text

of the regulation nor the text of the enabling statutes, KRS 13A.100, and KRS

351.070, encompasses the installation of a garage door during the construction

of a building on the mining premises.


                                        15
      Similarly, 805 KAR 3:100 concerns "safety standards controlling the use

and operation of equipment in the Commonwealth's surface type coal and clay

mines, which include strip and auger mining operations." More specifically,

the regulation addresses "exposed moving machine parts that may cause injury

to persons," and power tools and machinery such as grinders, hand-held power

tools, fork lifts, trucks, front-end loaders, bulldozers, and excavators, etc. This

regulation is clearly geared toward addressing the safety of tools and

equipment routinely used in the excavation of coal or clay. It does not

encompass the instrumentalities of McCarty's accident.

      None of the enabling statutes for the above-mentioned regulations

contain language that would support the promulgation of regulations creating

a duty owed by Covol to Mr. McCarty or the work in which he was engaged at

the time of his accident. Any administrative regulation purporting to reach

that hazard would fail as exceeding the scope of its enabling statute.    St. Luke

Hosp., Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011).

      In summary, the administrative regulations cited by the Estate apply to

mining operations, mine workers and the traditional dangers and risks

ordinarily associated with coal mining. We find nothing in the text of these

administrative regulations which would indicate that McCarty was within the

class of persons to be protected, or that his injuries were within the type of

harms to be prevented by the regulations. We have examined the additional

range of regulations cited in the certified question (Sections 805 and 825), and




                                         16
are unable to locate any provision which would change the result of our

discussion as set forth herein.

C. KRS 350.020

      Although KRS Chapter 350 (titled "Surface Coal Mining) is not

specifically included within the Sixth Circuit's certified question, the Estate

cites KRS 350.020, which identifies the following hazards and dangers of

"unregulated surface coal mining operations:"

      soil erosion, damage from rolling stones and overburden,
      landslides, stream pollution, the accumulation of stagnant water
      and the seepage of contaminated water, increase the likelihood of
      floods, destroy the value of land for agricultural purposes, destroy
      aesthetic values, counteract efforts for the conservation of soil,
      water and other natural resources, destroy or impair the property
      rights of citizens, create fire hazards, and in general create hazards
      dangerous to life and property, so as to constitute an imminent and
      inordinate peril to the welfare of the Commonwealth. The General
      Assembly further finds that lands that have been subjected to
      surface coal mining operations and have not been reclaimed and
      rehabilitated in accordance with modern standards constitute the
      aforementioned perils to the welfare of the Commonwealth.

(emphasis added). The statute further provides that the General Assembly's

purpose for the statute is "to minimize or prevent the injurious effects [of

unregulated surface coal mining] on the people and resources of the

Commonwealth."

      The Estate maintains that the statute's reference to mining activities that

"in general create hazards dangerous to life and property" encompasses the

installation of garage doors at a coal mining site. We are persuaded otherwise.

      The doctrine of ejusdem generis refutes the Estate's argument. Ejusdem

generis is a rule of statutory construction that provides "where, in a statute,


                                        17
general words follow or precede a designation of particular subjects or classes

of persons, the meaning of the general words ordinarily will be presumed to be

restricted by the particular designation, and to include only things or persons

of the same kind, class, or nature as those specifically enumerated, unless

there is a clear manifestation of a contrary purpose." Kentucky Retirement

Systems v. Brown, 336 S.W.3d 8, 16 (Ky. 2011) (quoting Steinfeld v. Jefferson

County Fiscal Court, 229 S.W.2d 319, 320 (Ky. 1950)).

      All of the particular hazards identified in the statute—water

contamination, blasting, dust issues, disposal of by-products, damage to

vegetation, and reclamation concerns—have a direct nexus to the

environmental consequences of "unregulated surface mining." The final

provision referring generally to "hazards dangerous to life and property" relates

to hazards that, likewise, have a direct nexus with the environmental hazards

of surface mining. The fortuitous installation of a heavy garage door on a coal

mining site has no nexus with unregulated coal mining, and is therefore, not

among the hazards addressed by KRS Chapter 350.

D. Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005)

      The Estate cites Hargis v. Baize as support for its claim that

administrative regulations promulgated to effect the safety of employees in a

regulated workplace from industrial hazards also protects independent

contractors exposed to those hazards. On the strength of Hargis, the Estate

argues that as an independent contractor, McCarty, like the decedent in

Hargis, was entitled to the protections afforded by the administrative


                                        18
regulations governing the particular regulated industry, and so the Estate is

thereby entitled to assert a negligence per se claim based upon the violation of

those regulations. However, the instant case is clearly distinguished by its

facts. In Hargis, the deceased contractor, was engaged in the type of

work—hauling and unloading logs at a saw mill—that was a core function of the

regulated business, whereas the installation of garage doors is entirely

unrelated to Covol's core business. Unlike the circumstances we address here,

the regulations relied upon by the plaintiff in Hargis specifically applied to the

type of work at issue. We are convinced that Hargis does not support a claim

based upon negligence per se in this case.


                                 III. CONCLUSION

      Based upon the foregoing analysis, we conclude in response to the

request of the United States Court of Appeals for the Sixth Circuit, that a

subcontractor injured while installing a garage door on an unfinished building

at a mine site may not maintain a wrongful death action against a mine

operator under a negligence per se theory for alleged violations of the Kentucky

mining statutes and regulations codified in KRS Chapters 350, 351 and 352

and KAR Sections 805 and 825.

      The law is so certified.

      All sitting. All concur.




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COUNSEL FOR NANCY J. MCCARTY AND NANCY J. MCCARTY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF DAVID W. MCCARTY, DECEASED:

Travis Leon Holtrey
Foreman Watson Holtrey, LLP

Lane C. Siesky
Siesky Viche, PC


COUNSEL FOR LIBERTY MUTUAL AGENCY MARKETS:

Mark Wayne Howard
Jones Howard Law PLLC


COUNSEL FOR COVOL FUELS NO. 2, LLC, A UTAH CORPORATION:

Robert E. Stopher
Robert Dmitri Bobrow
Boehl, Stopher 86 Graves, LLP


COUNSEL FOR AMICUS CURIAE
KENTUCKY JUSTICE ASSOCIATION:

Paul A. Casi, II
Jeffrey Wayne Adamson
Paul A. Casi, II, P.S.C.

Kevin Crosby Burke




                                20
