Kentucky Tort Report (COA) for Octg. 5. 28, 2007 (2007:48)

Kentucky Tort Report (COA) for Octg. 5. 28, 2007 (2007:48)

Published Decisions - COA

GERSH V. BOWMAN
TORTS: DAMAGES
2006-CA-001566
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; THOMPSON, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/05/2007

CA affirms judgment against driver in this single vehicle MVA case. CA holds that defendant's conduct rose to the level of gross negligence warranting a punitive damage instruction and that appellant failed to preserve an objection to the pain and suffering instruction.

High school student Maxwell Gersh, travelling with fellow students Samantha Bowman and Michael McLaurine, attempting to negotiate a sharp 15 mph curve in the dark traveling at approximately 49 mph, despite McLaurine's warning. Bowman suffered extensive facial and cervical injuries resulting in 7 surgeries with at least 2 more to follow. Prior to trial, Gersh's motion for summary judgment precluding punitive damages was denied. At trial, Gersh objected generally to the jury instructions and specifically to the punitive instruction. The jury awarded all medicals, $250K in wage; pain & suffering of $2 million; and punitives of $100K.

On appeal, Gersh argued error in denying his motion for summary judgment precluding punitives and argued that the pain & suffering verdict was excessive. CA holds that Gersh's gross negligence merited the punitive damage instruction and that his general objection failed to preserve his objection to the pain & suffering instruction, which was capped at $2 million, the figure the jury awarded.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

HENSON V. KLEIN
TORTS: BOATING ACCIDENT
2006-CA-001692
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; THOMPSON, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/05/2007

Henson appeals judgment entered in Klein's favor following a jury trial on her personal injury claim stemming from a jet ski accident, arguing that the TC erred by permitting a sudden emergency instruction and for failing to instruct the jury that she had the right-of-way at the time of her watercraft's impact with another one being driven by her then boyfriend while at Lake Cumberland. Not surprisingly, the parties' testimony on the events leading up to the collision were at odds, with Klein testifying that while trailing behind and to the left of Henson's jet ski, she suddenly looked over her shoulder and him and yelled his name and veered 90 degrees to the left directly into his path. In response, Klein attempted to veer left but could not avoid hitting Henson. The testimony of an eyewitness substantially supported Klein's testimony, and importantly confirmed that Klein leaned his body and turn his jet ski promptly to the left in an attempt to avoid the collision. Following the defense verdict, Henson moved for a new trial on the argument that there was no sudden emergency since Klein had failed to exercise ordinary care by following her too closely, which was denied and led to this appeal.

In this opinion, the COA provides a good summary of the major appellate decisions on the sudden emergency doctrine over the last 40 years and the distinctions between the facts of the respective cases and how each set of facts compares to those in the present case. Described by the COA as a deceptively simple concept whose application by the courts has not been so simple, the sudden emergency doctrine is meant to define the conduct that one would expect from a ordinarily prudent person to take when faced with an atypical emergency situation that leaves the party with no time to carefully consider the situation. It applies in cases where a defendant takes evasive action that could be perceived as the safest course at that point in time but that may otherwise be considered a violation of some applicable statute or regulation (e.g., where a vehicle veers across the center line into oncoming traffic in order to avoid a vehicle pulling out in front of it ahead, the act itself being a traffic violation even though it could be considered reasonable under the circumstances). In those situations, it is necessary to qualify the defendant's typical duties as a driver when the evasive maneuver is in response to some emergency that often stems from some act of the claimant. The COA also compares sudden emergency to a mere sudden occurrence where the defendant takes no evasive action (the best examples of this being the fact scenarios in City of Louisville v. Maresz and Robinson v. Lansford where the respective defendants took no evasive action and instead rear-ended the plaintiffs who were stopped or decelerating ahead in the same lane). When the situation is merely considered a sudden occurrence, no qualifying instruction regarding the defendant's duties should be given, and the jury should apply the customary comparative fault principles. In the subject case, the COA felt that the evidence was more than sufficient to establish Klein took evasive action in direct response to the abrupt act of Henson turning into his path, thereby warranting the sudden emergency instruction given by the TC.

Turning to the second argument, the COA did not agree with Henson's assertion that the jury should have been instructed that she had the right-of-way at the time of the accident. Henson's position hinged on 301 KAR 6:030 s. 6 that deems a lead vessel to always have the right-of-way with respect to a trailing vessel. The COA noted that Henson's own expert testified that the accident was not a situation where Klein was attempting to overtake Henson's jet ski, which justified the TC's refusal to instruct the jury on the regulation. The COA therefore affirmed the judgment for Klein and the TC's denial of Henson's motion for a new trial.

Digested by James R. Chadword Kessinger
Schiller, Osbourn, Barnes & Maloney

Not Published Decisions

APPLIED SEALING TECHNOLOGY INC. V. B & R RUBBER AND SUPPLY CO., INC.
CIVIL PROCEDURE: BIFURCATION AND SEPARATE TRIALS; NEW TRIAL AND ADDITIONAL DEFENDANTS
2006-CA-001351
NOT TO BE PUBLISHED: 81
DATE RENDERED: 10/05/2007

RATLIFF V. PIONEER CLEANING SERVICES
CIVIL PROCEDURE: DEMAND FOR JURY TRIAL MUST BE PROPER 
2006-CA-001564
NOT TO BE PUBLISHED: 86
DATE RENDERED: 10/05/2007

LONGWORTH V. BIRD
TORTS: DEFAMATION
2006-CA-000167
NOT TO BE PUBLISHED: 100
DATE RENDERED: 10/05/2007