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Kentucky Court of Appeals soft launches a hard change to proximate cause

11/6/25

By: Lucas Ryan Harrison

In Jena Lhotsky v. Guy Sutcliffe, No. 2024-CA-1521-MR (Ky. Ct. App. Oct. 17, 2025), a recently published opinion, the Kentucky Court of Appeals proposed a substantial change to how courts across the Commonwealth analyze proximate cause. After wading through nearly sixty years of case law regarding proximate cause, the Court asks whether a different, more simplified approach might be better, inviting the Supreme Court of Kentucky to consider the same.

On August 28, 2020, Alex Lhotsky was a passenger in a vehicle driven by Willard Patterson in Prospect, Kentucky. The two were traveling 34 miles per hour over the speed limit in heavy rain when Patterson lost control of the vehicle. The vehicle collided with a stone mailbox situated eleven feet from the roadway. Tragically, Patterson did not survive the accident, and Lhotsky sustained severe permanent brain injuries and other physical injuries. Mr. Lhotsky filed suit against Patterson’s estate and the owner of the property associated with the mailbox. The property owner ultimately moved for summary judgment and argued he owed no duty to Mr. Lhotsky and the mailbox was not the proximate cause of the accident. The Jefferson Circuit Court agreed and granted summary judgment, which was subsequently appealed.

The Court of Appeal’s opinion painstakingly walked through Kentucky’s current proximate cause analysis. Causation has historically consisted of two parts, but-for causation and proximate cause. Even though breach of a legal duty, if owed, may be the actual but-for cause—like a stone mailbox’s presence in the path of a runaway vehicle—if the breach is too attenuated from the damages in time, place or foreseeability, the breach might not be the proximate cause of the accident. Ultimately, the question of proximate cause in Kentucky has been whether the injury is a natural and probable consequence of the negligent act. This often requires considerations of probability, foreseeability, knowledge and notice that do not sit comfortably as questions of law for a court to answer.

The Court discussed nearly three-quarters of a century’s worth of case law and affirmed the summary judgment, holding that the mailbox was not the proximate cause of Lhotsky’s injuries. Concluding its analysis, the Court proposed a major shift in the evaluation of proximate cause moving forward: “However, perhaps the better analysis is whether ‘the act created only a situation which was harmless unless acted upon by other forces out of the control of the defendant.’ Restatement (Second) of Torts §433.” This is an invitation to the Kentucky Supreme Court to consider a substantial simplification to proximate cause analysis. Questions of probability, foreseeability, knowledge and notice would be removed in favor of a clearer legal determination.

While the Court’s proposed rule is currently mere dicta, the change would be welcomed by many who prefer simplification of the complex and arguably byzantine proximate cause analysis currently in place. The Kentucky Supreme Court is now faced with a choice of depublishing the Court of Appeal’s opinion or, if further appeal is sought, accepting review to clarify whether this newly proposed proximate cause standard will be adopted across the Commonwealth.

For more information, please contact Lucas Ryan Harrison at lucas.harrison@fmglaw.com or your local FMG attorney.

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