Kentucky Tort Report

Kentucky Tort Report (COA) for Nov. 9, 2007 (2007:54)

Kentucky Tort Report (COA) for Nov. 9, 2007 (2007:54)

Published Decisions - COA

BROOKS V. LEXINGTON-FAYETTE URBAN COUNTY HOUSING AUTHORITY
CIVIL PROCEDURE:  Post judgment interest, law of the case,
2006-CA-000526
PUBLISHED: REVERSING AND REMANDING
PANEL:  ACREE PRESIDING; DIXON, KELLER CONCUR
COUNTY: FAYETTE
DATE RENDERED: 11/09/2007

Short digest: In this case, a plaintiff was awarded post judgment interest against a state agency which appealed all the way to SCOKY and prevailed on other issues but did not appeal the award of post-judgment interest.  When the trial court heard the matter on remand, the agency's motion to rescinded and set aside the first award of post judgment interest was granted.  Even though the law in Kentucky provides that a state agency is not liable for post judgment interest on an award, the state agency in this case had failed to appeal that issue the first time, and thus that portion of the award is final and subject to the law of the case on remand and the trial court cannot rescind and set aside the original award of post-judgment interest.

Longer digest:

This appeal reached COA for the second time having a 15-year-long history of litigation. The issue presented was whether the trial court erred, upon remand from the Kentucky Supreme Court and without the Court’s instruction, in revoking an award of post-judgment interest on the basis of sovereign immunity.

In 1992, Brooks initiated a suit against her former employer, Lexington-Fayette Urban County Housing Authority (Housing Authority) for race discrimination and retaliation in contravention of the Kentucky Civil Rights Act (KCRA).  At trial, the jury found for the Housing Authority on Brooks' claim of race discrimination, but awarded her $40,000 in damages on her claim of retaliation.  The court allowed post-judgment interest at 12% as set forth in Kentucky Revised Statute (KRS) 360.040. The trial court also awarded Brooks her costs and attorney fees “in such amount as the Court shall determine upon application by Plaintiff.” 

The first appeal that went up to the Supreme Court was on issues other than the award of post-judgment interest.  Upon remand of the case, the Housing Authority relied on a Supreme Court decision decided the same day as Brooks (Ky. Dept. of Corrections v. McCullough, 123 S.W.3d 130 (2003) in which the Supreme Court held that a state agency is not liable for post-judgment interest on a judgment obtained under the KCRA.  The Housing Authority then moved the circuit court to eliminate 
post-judgment interest from the 1997 which was sustained by circuit court in reliance upon Powell v. Board of Education of Harrodsburg, 829 S.W.2d 940 (1992) for the proposition that an award of interest pursuant to KRS 360.040 is not applicable to judgments against state agencies.

COA held that when the trial court rescinded that portion of its original Judgment allowing interest, it did so contrary to the law of the case doctrine applicable to this case. Consequently, the circuit court’s judgment that reinstates the June 7, 1999, judgment without the allowance of post-judgment interest is reversed.

SCOKY has plainly stated that “a judgment is not final so long as post judgment motions are available and time for making such a motion remains[.]”  Kurtsinger v. Bd. Of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 458 (Ky. 2002). Moreover, the Supreme “Court has made clear that a ruling on a post-judgment motion is necessary to achieve finality[.]” Gullion v. Gullion, 163 S.W.3d 888, 891 (Ky. 2005).

The law of the case doctrine is similar to but distinct from the doctrine of res judicata. “There is a difference between such adherence (the law of the case doctrine) and res adjudicata.  One directs discretion; the other supersedes it and compels judgment.

In other words, in one it is a question of power, in the other of submission.” Southern Ry. Co. v. Clift, 260 U.S. 316, 43 S.Ct. 126, 67 L.Ed. 283, 284 (1922).

The McCullough Court concluded that a state agency is immune from any judgment interest entered upon the KCRA.  Thus, there occurred no change of law during the first appeal.

No appellate decision affirmatively held in the first appeal that interest may be imposed on KCRA-based judgments. It is the consequence of valid judgments coupled with operation of a valid legal doctrine – the law of the case doctrine – that binds the Housing Authority to pay the interest at issue. The judgment of the Fayette Circuit Court is REVERSED and REMANDED for disposition in accordance with this opinion.

Digested by Michael Stevens

NALLEY V. BANIS, M.D.
TORTS: Medical negligence and expert witnesses
2005-CA-001334
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; THOMPSON, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 11/09/2007

COA affirmed summary judgment dismissing medical negligence claims filed against physician.

Dr. Banis performed elective chin implant and brow lift procedures on Mrs. Nalley at Norton Hospital. Several days later, she developed a staphylococcus infection near her chin implant, requiring Dr. Banis to remove the implant. Thereafter, Mrs. Nalley and her husband filed their complaint in the circuit court.

Despite the general rule that expert testimony is necessary in most medical malpractice cases, the Nalleys premised their entire case on the exceptions to this general rule and maintain that expert testimony is not needed to meet their burden.

Kentucky recognizes two exceptions to this requirement, both of which permit the inference of negligence even in the absence of expert testimony. See Perkins v. Hausladen, 828 S.W.2d 652, 654-55 (Ky. 1992).  Expert testimony is not required if “'any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care.'” Id. at 655

Regarding the second exception, if the defendant physician makes admissions of a technical character from which the jury can infer that he acted negligently, a plaintiff would not have to present expert testimony. Id. A "trial court's ruling with regard to the necessity of an expert witness [is] within the court's sound discretion."

The circuit court did not abuse its discretion in rejecting Nalleys' arguments that the exceptions to the necessity for expert witnesses apply to the case at hand. Laypeople do not have sufficient general knowledge to recognize that infection is the result of negligence.

Digest by Michael Stevens

COLLIER V. CARITAS HEALTH SERVICES, INC.
TORTS:  MEDICAL NEGLIGENCE, EXPERTS, AND SUMMARY JUDGMENT
2006-CA-001612
PUBLISHED: VACATING AND REMANDING
PANEL: MOORE PRESIDING; THOMPSON AND GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 11/09/2007

Short Digest:  In a medical negligence case, the trial court must first determine if experts are required to prove negligence, and then the plaintiff must be given a reasonable time to disclose those experts.  In this case, the trial court properly concluded experts were needed but failed to give the plaintiff's sufficient time to produce the experts and thus vacated the summary judgment dismissing the claim since it was used a discovery sanction.

COA vacated summary judgment dismissing Horace Collier's medical negligence claim and remanded for further proceedings.   

Mr. Collier filed his complaint in the circuit court, alleging that after he was admitted to Caritas, he was not re-evaluated or treated in a timely manner and thus sustained personal injuries as a result of the Appellees' negligence.

Mr. Collier failed to meet the expert witness deadline and on February 2, 2006, a hearing was held wherein Mr. Collier requested an extension through February 28, 2006, to identify expert witnesses. This motion was granted, but Mr. Collier still failed to disclose an expert witness. Both Appellees (doctor and hospital) then filed motions for summary judgment arguing that Mr. Collier could not meet his prima facie case of negligence absent expert proof that their treatment of Mr. Collier failed to meet the required standard of care of medical professionals.

Rather than grant the summary judgment motion, the court, after a hearing on the issue, made a determination that an expert was needed and granted the plaintiff thirty days to name an expert. This required the trial court to continue the trial date. The trial court informed the plaintiff that if she failed to name an expert in the time given, dismissal would be granted. This was consistent with the Kentucky Supreme Court which has noted that "the trial court properly exercised its discretion to announce a ruling on the necessity of an expert witness and to grant [plaintiff] a reasonable time in which to procure an expert." Baptist Healthcare Sys., Inc., 177 S.W.3d at 681

However, the COA did conclude that the record compelled vacating summary judgment in this matter. Pursuant to CR 56.03, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  The record showed that Mr. Collier's answers to interrogatories and
admissions, signed under oath and penalty for perjury, indicate that Mr. Collier or his attorney had spoken to at least one physician regarding standard of care but was not yet prepared (or required) to name an expert at that time.  Under CR 56.03, this is sufficient to defeat summary judgment, at least at the stage in the proceedings and basis for which summary judgment was requested, i.e., failure to have named an expert over seven months before the trial date.

The grant of summary judgment for Mr. Collier's failure to name a witness by the end of February 28, 2006, was in error.

First, the court must make a determination that an expert is needed before ruling on summary judgment motions.  After that determination has been made, plaintiffs should be given a reasonable time to disclose experts. If plaintiffs fail to disclose expert witnesses in the time granted, sanctions may be appropriate.

However, if plaintiffs have not disclosed their expert witnesses on the eve of trial, dismissal would be warranted.  This Court had held that summary judgments are "not to be used as a sanctioning tool of the trial courts."  Thus, the order of the Jefferson Circuit Court is vacated, and this case is remanded for further proceedings consistent with this opinion.

Digested by Michael Stevens

Not Published Decisions

MILLER V. ZEMBRYCKI
CIVIL PROCEDURE: Genuine issue of material fact existed in SJ grant re truck transfer
2006-CA-000750
NOT PUBLISHED: 89
DATE RENDERED: 11/09/2007

OHIO VALLEY AUTO SALES, INC. V. EVANS
CONTRACTS:  Mutual assent and trial court's determination of factual issue
2006-CA-001196
NOT PUBLISHED: 107
DATE RENDERED: 11/09/2007

HOLLIS V. HOLLIS
ATTORNEY FEES:  Attorney is real party interest and indispensable party
2005-CA-001617
NOT PUBLISHED: 67
DATE RENDERED: 11/09/2007

JEFFRIES V. CHAFFIN
CIVIL PROCEDURE:  Plaintiff estopped for failure to notify bankruptcy of potential asset
2006-CA-001260
NOT PUBLISHED: 90
DATE RENDERED: 11/09/2007

BROUGHTON V. MOTORCYCLE SAFETY FOUNDATION, INC.
RELEASES:  Affirmed release of negligence in advance of participation in Motorcycle training course and no disparity in bargaining position
2006-CA-001839
NOT PUBLISHED: 93
DATE RENDERED: 11/09/2007

EDMON V. HARRIS, M.D.
MEDICAL NEGLIGENCE:  Affirmed striking expert doctor's deposition testimony following contempt for not answering questions
2006-CA-002502
NOT PUBLISHED: 113
DATE RENDERED: 11/09/2007

Kentucky Tort Report (COA) for Nov. 2 , 2007 (2007:53)

Kentucky Tort Report (COA) for Nov. 2 , 2007 (2007:53)

Published Decisions - COA

DAVIS V. 3 BAR F RODEO
SETTLEMENTS AND RELEASE:  RELEASE OF FUTURE ACTS
CIVIL PROCEDURE: GENUINE ISSUE OF MATERIAL FACT 
2006-CA-002212
PUBLISHED; REVERSING AND REMANDING
PANEL: WINE PRESIDING; LAMBERT, TAYLOR CONCUR
COUNTY: GRANT
DATE RENDERED: 11/02/2007

COA reversed and remanded summary judgment order dismissing the claims by Susan Davis and the estate against the Grant County Fair, Inc. (GCF), 3 Bar F Rodeo (3-BFR), Marcus Fannin and Bobby Ray Fannin for the injuries and wrongful death of the administratrix's husband, Charles.

Specifically, Susan argues the trial court erred by denying her motion for summary judgment based upon the Appellees alleged failure to give her husband the mandatory warning pursuant to KRS 247.4027, which resulted in Charles' severe internal bodily injuries which ultimately led to his death. 

Summary judgment was not appropriate and the case remanded.

The facts are thus: the announcer for the rodeo, Aaron Platt (Platt), called for participants for a game called the Ring of Fear whereby audience members participate by entering the rodeo ring and standing in marked circles on the ground, at which time, Kenny, the bull, was then released into the ring. The last person standing, without stepping outside of the circle, won the grand prize of $50.00. Charles proceeded to the ring to try his luck in the Ring of Fear.  Susan alleges the bull was angered by someone jabbing him with a wooden object and beating sticks against his cage prior to his release. Once released, the bull proceeded to drive his head into Charles' abdomen, lifting him off the ground which caused Charles' liver to burst and he was bleeding internally. Charles faded into temporary unconsciousness next to his wife in the stands. Charles died the next morning with the cause of death ruled blunt trauma to torso and internal bleeding.

Susan then brought a wrongful death action against alleging that their negligence had caused her husbands death. GCF and the other defendants all moved for summary judgment based upon a release signed by Charles prior to his participation in the Ring of Fear.

Susan filed a cross-motion for summary judgment, asserting that the Appellees failed to properly warn of the dangers of the Ring of Fear as required by KRS 247.4027. Susan alleged the Appellees failure to warn was a substantial factor in causing the injuries that led to her husbands death. The trial court granted summary judgment to the Appellees, finding that the release was sufficient to exempt them from liability in light of Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). The trial court denied Susans cross-motion for summary judgment.

This appeal followed.

Susan argues the Appellees breached their duty to warn pursuant to the Farm Animals Activities Act (FAAA), found in KRS 247.401 through KRS 247.4029 which represents a statutory plan designed to outline the duties and responsibilities of both participants and sponsors conducting animal activities.

Although COA agreed with Susan that the statute applies to this case, the COA noted KRS 247.4027(2)(a) allows for a waiver of liability if the participant signs a release waiving his right to bring an action against the farm animal event sponsor.  If a sponsor of an animal activity does post the suggested warnings found in KRS Chapter 247, he is granted immunity from liability if someone gets hurt. If, as in this case, the warnings are not posted, the sponsor loses the immunity and may be held responsible for the injury in accordance with other applicable law. KRS 247.4013.

Although KRS 247.402 requires farm animal activity sponsors to warn of the inherent risks, there is no duty to reduce or eliminate the inherent risks. However, to intentionally mistreat or aggravate a farm animal would be the antithesis of this duty.  While it is clear that the Appellees did not have warning signs posted at the ring entrance, it is undisputed that Charles signed a release just prior to his participation in the Ring of Fear. Therefore, the central issue in this case is the validity of the release Charles signed.

While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. The COA disagreed with the trial court that the release form signed by Charles satisfies all of the factors in Hargis v. Baize, 168 S.W.3d 36 (Ky.2005). The release uses the word negligence. The release does specifically and explicitly release the Appellees from liability for any and all claims and liability arising out of strict liability or ordinary negligence of Releases [Appellees] which causes the undersigned [Charles] injury or death .

The language of the release is specific as to its purpose to exonerate the sponsors from ordinary negligence liability.   However, there is no language that releases Appellees from conduct that would constitute gross negligence. Susan contends that Appellees provoked Kenny by prodding him and beating on his cage prior to his release into the ring.

The intentional provocation of the bull by Appellees to attack the participants is clearly not contemplated by the release. 

While the Appellees dispute the allegations of intentionally mistreating Kenny, if true, it would at the very least constitute gross negligence. The release contemplates getting into the ring with a bull and even mentions that rodeo animals are unpredictable. However, the release does not contemplate a bull that has been infuriated by the Appellees prior to its release into the ring.

This material issue of fact as disputed by the parties can only be resolved by a trier of fact and is not appropriately resolved by summary judgment. Accordingly, COA reversed and remanded this case to the Grant Circuit Court for a jury trial.

Digested by Michael Stevens

Not Published Decisions

COLLINS V. FEDERAL NATIONAL MORTGAGE ASSOCIATION
APPEALS:  APPELLATE COURT AFFIRMED UNABLE TO DISCERN THE ISSUES AND ARGUMENTS 
2006-CA-000867
PUBLISHED;   70
DATE RENDERED: 11/02/2007

COM. V. PHILLIP MORRIS USA
APPEALS:  FINAL AND APPEALABLE ORDER; ORDER COMPELLING ARBITRATION 
2006-CA-001425
PUBLISHED;   104
DATE RENDERED: 11/02/2007

TURNER V. FUGATE
CIVIL PROCEDURE: NEW TRIAL, INADEQUATE DAMAGES; ZERO DAMAGES 
2006-CA-001396
PUBLISHED;   126
DATE RENDERED: 11/02/2007

BAKER V. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
CIVIL PROCEDURE:  WARNING ORDER ATTORNEY, DILIGENT EFFORTS, COMPLAINT EXHIBITS, DEFECTIVE MORTGAGE DOCUMENT 
2006-CA-001450
PUBLISHED;   123
DATE RENDERED: 11/02/2007

TALLMAN V. CITY OF ELIZABETHTOWN, KY
CIVIL PROCEDURE:  KRS 413.270 TOLLING AND SAVINGS STATUTE; SUPPLEMENTAL JURISDICTION
2006-CA-002542
PUBLISHED;   110
DATE RENDERED: 11/02/2007

CISSELL V. KFC CORP.
TORTS:  TORT OF OUTRAGE (GAPFILLER); EMOTION DISTRESS AND DAMAGES; SOL
2006-CA-001596
PUBLISHED;   99
DATE RENDERED: 11/02/2007

BREATHITT COUNTY BOARD OF ED. V. PRATER
TORTS:  ABSOLUTE IMMUNITY; VICARIOUS LIABILITY; YANERO
2007-CA-000141
PUBLISHED;   97
DATE RENDERED: 11/02/2007

POLK V. SAPP
TORTS: SOVEREIGN IMMUNITY DEFENSE; OFFICIAL IMMUNITY AND REAL PARTY IN INTEREST;  DEPT OF CORRECTIONS
2006-CA-002553
PUBLISHED;   105
DATE RENDERED: 11/02/2007

CINTAS CORP. V. SITEX CORP.
TORTS: IMPROPER INTERFERENCE WITH A CONTRACT; MALICIOUS PROSECUTION 
2005-CA-002377
PUBLISHED;   126
DATE RENDERED: 11/02/2007SALMON V. COM.

Kentucky Tort Report (SCOKY) for Nov. 1 , 2007 (2007:52 )

Kentucky Tort Report (SCOKY) for Nov. 1 , 2007 (2007:52 )

Published Decisions

QUEENSWAY FINANCIAL HOLDINGS LTD V. COTTON & ALLEN
CIVIL PROCEDURE:  STATUTE OF LIMITATIONS, PROFESSIONAL NEGLIGENCE
2004-SC-000254-DG.pdf
PUBLISHED: AFFIRMING; OPINION WRITTEN BY -  NOBLE
DATE RENDERED:  11/01/2007

The Supreme Court affirms grant of summary judgment to Cotton & Allen, PSC, on statute-of-limitations grounds in this case of professional (accounting) negligence.

Queensway agreed to buy Paradigm Insurance. Under the agreement, Paradigm was to produce an audited financial statement as of 9/30/97, to be performed by CPA firm Collon & Allen. As part of the audit, Cotton & Allen was to review Paradigm's reserves. Before the purchase was concluded and before Cotton & Allen's report was delivered, Paradigm's general counsel and head of claims sent a memo to Queensway, in short, detailing changes needed in Paradigm's reserves. Cotton & Allen delivered its report thereafter on 12/16/97 (showing no problem with the reserves) and the deal was completed 12/31/97. When Queensway took over operations, Paradigm's reserves were adjusted upward by approximately $3.3 million as reflected in a memo from the general counsel dated 12/31/97. The Indiana Department of Insurance conducted an evaluation in 1998 questioning Paradigm's reserves and in 1999 ordered an upward adjustment of $6 million. On 2/11/00, Queensway filed suit against Cotton & Allen, alleging breach of contract and negligence in auditing the financial statements and asking for damages both as of the time of the purchase of Paradim and afterward. The issues at bar involve the accrual and discovery of the potential cause of action under KRS 413.245.

The Supreme Court holds that the action was, indeed, time-barred, but for different reasons than the lower courts held, i.e., the cause of action accrued at the time of purchase when Queensway overpaid for Paradigm. If the reserves were set too low, then the price paid for the company was too high. Also, that Queensway had to make a significant adjustment, and in essence suffered losses after havintg had the benefit of Cotton & Allen's audit report, should have put them on notice that something was wrong with the report. Cotton & Allen's report showed no problem with the reserves, yet within weeks of its delivery, Paradigm had to make significant adjustments to those reserves. Judgment affirmed.  

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

DOLLAR GENERAL STORES, LTC V. SMITH
CIVIL PROCEDURE:  VENUE AND STATUTE OF LIMITATIONS AND SAVINGS PROVISION
2005-SC-000867-DG.pdf
PUBLISHED: 1051 AFFIRMING; OPINION WRITTEN BY -  LAMBERT
DATE RENDERED:  10/31/2007 

If you're the kind of person who can get excited about civil procedure, this case is for you. The SC addresses the issue of whether the savings provision in KRS 413.270 applies where the original forum dismissed a case on ground of forum non conveniens (FNC) and the claim was re-brought in another proper venue within the extended time allowed. On April 28, 2002, Ms. Smith was injured in a slip-and-fall on Dollar General's (DG) premises in Casey County. She filed suit on the last day of the one-year SOL in Jefferson County; there was no contention that Jeff. Co. lacked jurisdiction (JD) or was an improper venue, but the Jeff. Circuit Court dismissed the claim under FNC because the accident and injury occurred, and most of the witnesses resided in, Casey Co. Fifteen days after the dismissal, Ms. Smith filed in Casey Circuit Court, but by that time the SOL had run. She pled that the SOL was tolled under KRS 413.270, but the Casey Court held that statute was inapplicable and dismissed the case as time-barred. The Court of Appeals reversed, holding that KRS 413.270 was applicable to a case timely brought but previously dismissed on grounds of FNC. The majority of the SC affirmed this decision, with Justice Abramson concurring and Justice Minton dissenting.

KRS 413.270 provides for a 90-day savings period where claims are brought in a court having no JD and applies to claims brought "in due time and good faith" which are adjudged to have abeen brought in a court with "no JD." The SC notes that while the statutory language speaks to JD, it has long held that dismissal for improper venue also triggers the saving statute. D & J Leasing, Inc. v. Hercules Galion Prods., Inc., 429 S.W.2d 854; Shircliff v. Elliott, 284 F.2d 947 (6th Cir.). Shircliff held that in view of the remedial purpose of the saving statute and the frequent confusion of JD and venue, "JD" in KRS 413.270 should be broadly construed to achieve its remedial purpose.

DG argued that KRS 413.270 should be read literally, but the SC held that there is no reasonable explanation for the legislature to have acted to save claims brought in an improper JD, but denied the saving provision to claims brought in an improper venue. It concluded with the Shircliff court that the legislature used the term "JD" broadly to include the concept of place as well as the concept of power.

The SC then reviewed the Casey Co. order of dismissal with due regard for the basis of the Jefferson Co. order of dismissal, FNC. FNC was thoroughly considered in Beaven v. McAnulty, 980 S.W. 2d 284, where the SC granted a writ of prohibition holding that the trial court acted beyond its JD in transferring a civil action from the Jeff. Cir. Ct. to the Marion Cir. Ct. on grounds of FNC. Beavens held that Kentucky's doctrine of FNC only empowered a trial court to dismiss or stay an action before it, not to transfer it. Shortly after that case, the legislature adopted KRS 452.105, a statute mandating that a trial court transfer a case upon a determination that the venue selected was improper. The SC noted that this statute has been construed as requiring transfer rather than dismissal. The question remains, though, as to whether transfer is available upon a determination of FNC, and the SC held that it is. It noted that there is no fundamental distinction between venue and FNC: venue derives from a statutory mandate as to which county (or counties) is the proper place for a claim to be heard. FNC presupposes proper venue but posits that another county where venue would also be proper is a more convenient forum and calls for a discretionary ruling by a trial court to that effect. FNC is a subdivision of venue requiring the exercise of trial court discretion; the SC ruled that it must follow that a dismissal on the grounds of FNC would necessarily be a venue based dismissal resulting in applicability of the savings statute, KRS 413.270.

HERE'S THE BIG IDEA IN THIS CASE, AND I QUOTE: "Notwithstading language of Beaven to the contrary, in the future, cases should not be dismissed on the grounds of FNC." Remember it, write it down, take a picture.

Justice Minton dissented, noting that the proper role of the courts in interpreting statutes is to determine the intent of the legislature as expressed in "plain language" without resort to guessing about what the legislature intended. He therefore could not agree with the majority's assumption that when the legislature used the words "no JD" in KRS 413.270, it intended to conflate three distinct legal concepts--JD, venue, and FNC. He stated he felt it was time to clean up loose language by overruling certain precedents to the extent that imprecise use of those three legal terms has distorted the saving statute well beyond is express provisions. He finds no reason to assume the legislature meant FNC when it used the legal terms of "improper venue" in KRS 452.105 and "no JD" in KRS 413.270. He would construe the savings statute at issue, as well as the closely related transfer statute, according to the legal meanings of the terms used in the statutes and would overrule ambiguous authority to the contrary. He noted that the majority freely mixed legal concepts by equating JD with venue and improper venue with FNC, and he argued that the result contravenes the legislature's directive in KRS 446.080(4) that legal terms in statutes be construed by their "peculiar and appropriate meaning in the law." Finally, he noted that while some argue expanding the grace granted by the saving statute is good because more cases get "saved" from dismissal on SOL grounds, he would contend if the legislature wants to broaden the protection of KRS 413.270 to cases initially filed with the SOL in a court that ultimately declined to hear the case on FNC grounds, then the legislature can amend the statute or provide for it.

Justice Abramson concurred with the majority, in that she did not feel Ms. Smith should be punished for her counsel's reliance on the overly broad reading of the saving statute, but she stated that she felt the dissent reflects what she believes is the correct interpretation of the two statutes.

Digested by Cherry Guarnieri

COMMONWEALTH V. YAMAHA MOTOR MANUFACTURING CORP OF AMERICAN
CIVIL PROCEDURE: STANDING (GOVERNMENT CONTRACTS)
2005-SC-000979-DG.pdf
PUBLISHED: 395 AFFIRMING; OPINION WRITTEN BY -  LAMBERT
DATE RENDERED:  10/31/2007 

Held that participants in a bidding process for public contracts have sufficient interest to seek relief where the process is infected with fraud or dishonesty. To that end, a disappointed bidder or competitor may challenge the award of a public contract to another bidder upon a showing of fraud, collusion or dishonesty.  Standing requires that a party have "a judicially recognizable interest in the subject matter of the suit."  Enactment of the Kentucky Model Procurement Code (KMPC) effected substantial change. As recognized by this Court in the KMPC has changed the rules of the game, providing access not previously available to challenge and investigate the propriety of government purchasing contracts.

Digested by Michael Stevens

WITTEN, M.D.  VS. BONNIE PACK, ADMINISTRATRIX
MEDICAL NEGLIGENCE
2005-SC-000414-DG.pdf
PUBLISHED: REVERSING; OPINION WRITTEN BY -  SCOTT
DATE RENDERED:  10/31/2007 

The Supreme Court denies Edwards' petition for writ of prohibition that sought to bar the enforcement of the trial court's Order compelling Edwards to disclose proprietary business records of both his company that is a named party as well as non-party companies he also owned as sole partner, the Court ruling that such documents were discoverable from Edwards under CR 34.01 for both the party and non-party companies since all requested records were undeniably in the possession, custody or control of the party upon whom the request was served (Edwards).

Digested by Paul O'Bryan
O'Bryan and Denbow

Not Published Decisions

UNIVERSITY OF KY MEDICAL CENTER V. HON. GARY PAYNE
WRIT OF PROHIBITION; DISCOVERY
2007-SC-000256-MR.pdf
NOT TO BE PUBLISHED:
DATE RENDERED:  11/01/2007

SCHLAGEL V. SCHLAGEL
WRIT OF MANDAMUS; APPEAL SUPERSEDEAS BOND
2006-SC-000430-MR.pdf
NOT TO BE PUBLISHED
DATE RENDERED:  11/01/2007

Kentucky Tort Report (COA) for Oct. 26 , 2007 (2007:51 )

Kentucky Tort Report (COA) for Oct. 26 , 2007 (2007:51 )

Published Decisions - COA

LARKINS V. MILLER
SETTLEMENTS AND RELEASES
2006-CA-002043
PUBLISHED: AFFIRMING
PANEL:  THOMPSON PRESIDING; WINE HENRY CONCUR
COUNTY: BOONE
DATE RENDERED: 10/26/2007 

Larkins appeals TC's entry of summary judgment for Miller on their claims for breach of contract and fraud stemming from the sale of an unimproved lot in a new subdivision being developed by Miller. At the time of sale, Larkins alleged that Miller advised them that the slope of the lot would result in additional construction costs that would not exceed a few thousand dollars. Larkins completed the sale and signed a formal Release Agreement that disclaimed any reliance on Miller's representations about slope stability and released Miller from all claims and demands relating directly or indirectly to slope stability issues. When the Larkins finally moved forward with construction 5 years later, they learned that the slope of the lot would result in an additional $83,000 in building costs. Larkins moved forward with this lawsuit, which Miller defended on the clear wording of the Release. Larkins countered that the Release was invalid because it wasn't supported by valuable consideration.

On appeal, the COA summarily rejected Larkins' argument that the Release was not enforceable, pointing out that the Release was executed by them on the same date the check was written by them to Miller for the full purchase price of the property. The COA held that the check constituted valuable consideration and therefore validated the Release. Consequently, the TC's entry of SJ for Miller was affirmed.

Chad Kessinger
Schiller, Osbourn, Barnes & Maloney

CONNER V. PATTON
TORTS: EXECUTIVE IMMUNITY AND RETRIBUTION
2006-CA-001370
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; WINE, GUIDUGLI CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 10/26/2007 

CA affirms TC order denying appellant Tina Conner's motion to amend her complaint and granting appellee Paul Patton's motion to dismiss her action. (Franklin Cir. Ct., Hon. Roger L. Crittenden, Judge, presiding)

Appellant and appellee had a sexual relationship while appellee was Governor of the Commonwealth of Kentucky. Conner alleges that, after she terminated the relationship, her construction business "no longer had access to public construction projects and her nursing home suffered from a pattern of harassment from [state] agencies." Conner filed suit against Patton and the Commonwealth, raising various claims including sexual harassment, intentional infliction of emotional distress, outrage, defamation and waste. All claims against the Commonwealth were dismissed, as were the sexual harassment and waste claims against Patton, individually and in his official capacity. Conner appealed, but the CA affirmed the dismissals. During that appeal, the TC also entered an order dismissing Conner's defamation claim against Patton, which Conner did not appeal, leaving only the IIED claim against Patton.

Conner then moved for leave to file a 2nd amended complaint. In response, Patton moved to dismiss her claim for want of prosecution, which was granted, and denied her motion to amend and her subsequent motion to alter, amend or vacate.

CA holds that denial of Conner's amendment was proper in that, if Patton enforced laws and regulations against her nursing home, if his actions fall under his lawful authority, his motives are irrelevant. Further, Conner cannot prove Patton's actions before she exercised her constitutional right to free speech were retaliatory and in violation of those rights. Also, Conner did not make any of the necessary allegations to succeed in a due process claim. Conner's slander per se claim was properly dismissed as it is based on the same allegations of the defamation claim, which was dismissed and not appealed.

As to the IIED claim, the CA holds that "[t]he fact that Patton was in a powerful position as the Governor of Kentucky, and that he therefore was able to express vindictiveness relating to their personal relationship in a manner which could interfere with her financial stability or career, does not elevate the situation to the level of outrageousness required for a plaintiff to recover on a claim for IIED.

As to her failure to prosecute her claims, Conner did not take any action in this matter, other than to change counsel, from January 2003 until October 2005.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

GREENE V. PASCHALL TRUCK LINES
WORKERS COMP:  ALJ REVIEW OF SETTLEMENT AGREEMENT; SUBROGATION AND TORT RECOVERY PROCEEDS
2006-CA-001974
PUBLISHED: AFFIRMING IN PART, VACATING IN PART, REMANDING
PANEL:  NICKELL PRESIDING; TAYLOR, PAISLEY CONCUR
WORKERS COMP BOARD
DATE RENDERED: 10/26/2007 

The ALJ’s opinion dismissed claimant Greene's claim for permanent disability income benefits and granted partial future medical benefits for injuries arising from a work-related collision. The ALJ also declined to review, citing a lack of jurisdiction, an agreement reached between Greene and his former employer, Paschall Truck Lines (hereinafter “PTL”), pertaining to payment of a subrogation lien. A petition for reconsideration filed by Greene was summarily dismissed by the ALJ, and the WCB then affirmed the ALJ's decision in all respects and this appeal ensued.

Although the COA agreed with the Board’s opening premise that tort damages paid by a tortfeasor to an employee, employer or employer’s carrier are paid outside the Workers’ Compensation Act and only a court may review them, COA did NOT agree that the use of tort recovery funds to pay an employer’s subrogation lien somehow converts questions about the amount of subrogation due the employer into part and parcel of the tort claim. Nor did the COA agree that an employee and his employer’s workers’ compensation carrier, simply by reaching a settlement, can transform a subrogation issue that would normally be within the jurisdiction of an ALJ into a tort issue that can only be reviewed by a trial court  and thus the COA did not agree that the use of tort recovery funds to pay an employer’s subrogation lien somehow converted questions about the amount of subrogation due the employer into part and parcel of the tort claim.  In light of Kentucky’s statutory scheme, it is wholly appropriate that the ALJ review the terms of the (settlement) agreement between the claimant Greene and his former employer PTL’s carrier.

Since the ALJ is the ultimate arbiter when it comes to resolving workers’ compensation subrogation issues, he erred in declining to exercise jurisdiction and the Board erroneously affirmed that decision.  The ALJ can and should disapprove any agreement submitted for review that does not comport with the beneficent purpose of the Workers’ Compensation Act.  COA further found nothing to prohibit an ALJ from granting future medical expenses for a specific work-related injury to the exclusion of others.

COA affirmed that portion of the Board's opinion dismissing Greene’s claim for permanent disability income benefits and the Board’s opinion limiting PTL's responsibility for future medical expenses to the ongoing removal of glass as it works its way to the surface of Greene’s skin.  However, because COA held the ALJ had jurisdiction to review the settlement agreement reached between Greene and PTL, but declined to exercise it, that portion of the opinion was vacated and remanded.

Peter Naake
Priddy, Cutler, Miller & Meade

Not Published Decisions

STRAUSBAUGH V. H & BLOCK FINANCIAL ADVISORS, INC.
ARBITRATION:  CHOICE OF LAW
2005-CA-001083
NOT TO BE PUBLISHED: 140
DATE RENDERED: 10/26/2007

HARROD CONCREDTE
TORTS: TRESPASS, STATUTE OF LIMITATIONS, ACCRUAL, AND LIMITING DAMAGES TO LAST FIVE YEARS FOR CONTINUING TRESPASS
2005-CA-001712
NOT TO BE PUBLISHED: 130
DATE RENDERED: 10/26/2007

BORQUE V. CSX TRANSPORTATION CORP.
TORTS: RAILWAY, FELA, FSAA
CIVIL PROCEDURE: NO PREJUDICE ON LATE PRODUCTION OF PHOTOS PER TRIAL ORDER
2006-CA-000093
NOT TO BE PUBLISHED: 100
DATE RENDERED: 10/26/2007 

CRAFT V. CRAFT
CIVIL PROCEDURE: DIRECTED VERDICT, SUFFICIENCY OF EVIDENCE FOR JURY VERDICT
2006-CA-001176
NOT TO BE PUBLISHED: 120
DATE RENDERED: 10/26/2007

KY DEPT. OF REVENUE V. CURTSINGER
APPEALS: ADVERSE RULINGS
REVENUE AND TAXATION: VEHICLE TAXES; AD VALOREM TAXES, REFUNDS, AND CONSTITUTIONALITY
2006-CA-001379
NOT TO BE PUBLISHED: 110
DATE RENDERED: 10/26/2007

LYONS LUMBER CO. V. ASHCRAFT
DAMAGES: LIQUIDATED AND CERTAINTY OF AMOUNT; JUDGMENT; PREJUDGMENT INTEREST; CLAIM NOT LIQUIDATED UNTIL JUDGMENT AND PREJUDGMENT INTEREST JUDICIAL DISCRETION
2006-CA-001705
NOT TO BE PUBLISHED: 80
DATE RENDERED: 10/26/2007

RATLIFF V. POTTER
TRIAL: INSTRUCTIONS AND FAILURE TO PRESERVE ERROR BY PRO SE LITIGANT
2006-CA-001727
NOT TO BE PUBLISHED: 76
DATE RENDERED: 10/26/2007

Kentucky Tort Report (COA) for Oct. 19, 2007 (2007:50)

Kentucky Tort Report (COA) for Oct. 19, 2007 (2007:50)

Published Decisions - COA

LEE V. FARMER'S RURAL ELECTRIC COOPERATIVE CORP.
TORTS: DUTY AND FORESEEABILITY; MARKING POWER LINES AND AIRPLANE ACCIDENT
2006-CA-001641
PUBLISHED: REVERSING AND REMANDING
PANEL: DIXON PRESIDING; VANMETER, GRAVES CONCUR
COUNTY: BARRENT
DATE RENDERED: 10/19/2007

Lee appeals TC's entry of summary judgment for Farmers RECC in her wrongful death action stemming from an accident in which her husband's low flying plane struck an unmarked power line 1/4-inch in diameter and stretching 870 feet across the channel of Nolin Lake at a height of 85 feet. FRECC argued that it was under no statutory or common duty to mark this particular power line, and the TC agreed.

On appeal, Lee continued to argue that, at a minimum, FRECC had a common law duty to mark the power line considering that the supporting structures on either side of the lake were concealed by trees and vegetation, that FRECC knew that aircraft frequently flew at a low height over the lake, and the fact that there had been a prior accident involving another unmarked line over Nolin Lake. Thus, Lee maintained that her husband's accident was foreseeable to FRECC. In response, FRECC maintained its position on a lack of duty and contended that the decedent's violation of FAA regulations was the proximate cause of his death.

On review, the COA began by noting that in Kentucky a person only owes a duty to exercise ordinary care in those situations where an injury is foreseeable, and that foreseeability is to be determined by reviewing the facts as they reasonably appeared to the party being charged with negligence, not as they appear in hindsight. To demonstrate foreseeability, the claiming party need not demonstrate that the defendant should have been able to anticipate the precise injury sustained or the manner in which it was sustained. Rather, the party only needs to show that an injury of some kind to some person could have been foreseen under the circumstances.

The COA then goes through an analysis of the body of case law cited by both sides from other jurisdictions on whether FRECC could be held liable when it was under no statutory duty to mark this power line, which even Lee conceded. Upon comparing the facts of the particular cases to the present one, the COA noted that rendering a foreseeability determination under these case facts was an "arduous task," even suggesting that submitting the question of foreseeability to a jury much like these other jurisdictions when presented with conflicting evidence would be reasonable in this instance. The COA nevertheless noted that it was bound by Kentucky precedent that deems foreseeability as it relates to duty to be a pure question of law for the court's determination. As such, the COA concluded that the nature of Lee's injury was a foreseeable result of FRECC having failed to mark the subject power line given the lack of visibility of both the line itself and supporting structures on either side. The COA of course noted that it would be for a jury to determine whether FRECC breached its deemed duty and whether this breach was the proximate cause of the accident as compared to FRECC's argument that Lee's violation of a FAA regulation setting minimum flight altitudes was the actual cause of the accident and his death.

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

HAYS V. ALIA
TORTS:  INSTRUCTIONS; DUTY OF MINOR; SPOLIATION OF EVIDENCE
2006-CA-001871
PUBLISHED: AFFIRMING
PANEL:  STUMBO PRESIDING; NICKELL, HENRY CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/19/2007

CA affirms jury verdict for defense in this trampoline injury case.

Seven-year-old Katie visited her grandparents in Louisville. She left their home to walk down the street to meet a neighbor. En route and unsupervised by anyone, Katie met an unknown neighbor girl and began jumping with her on her family's trampoline. Katie suffered a significant leg break requiring surgeries and resulting in differing leg lengths.

CA upholds denial of directed verdict for plaintiff on liability because there was sufficient evidence on the issue, including Katie's grandparents' supervision, to present a question for the jury. Denial of directed verdict for plaintiff on her contributory fault is moot because the jury found in her favor on this question. Finally, the denial of a jury instruction on spoliation of evidence (destruction of the trampoline) was not improper as the destruction was considered a subsequent remedial measure.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

Not Published Decisions

PALMER V. BIGGS
APPEALS: FINAL AND APPEALABLE; TRIAL JUDGE REQUIRED TO STATE NO JUST REASON FOR DELAY REQUIRED
2005-CA-001662
NOT TO BE PUBLISHED: 81
DATE RENDERED: 10/19/2007

WHITTENBERG CONSTRUCTION CO. V. UNIVERSITY OF KENTUCKY
CIVIL: SOVEREIGN IMMUNITY DEFENSE APPLICABLE TO UK
2006-CA-002028
NOT TO BE PUBLISHED: 97
DATE RENDERED: 10/19/2007

LAND V. SECURE AMERICAN, INC.
CIVIL PROCEDURE: SUMMARY JUDGMENT AND FAILURE TO MEET BURDEN WITH EVIDENCE
2006-CA-001113
NOT TO BE PUBLISHED: 96
DATE RENDERED: 10/19/2007

THE RAILWAY EXPOSITION CO. V. CSX TRANSPORTATION, INC.
AFFIRMATIVE DEFENSES: PREEMPTION ISSUE
2006-CA-001601
NOT TO BE PUBLISHED: 125
DATE RENDERED: 10/19/2007

ROGERS V. BELLUSCIO
TORTS: DAMAGES - REASONABLE AND NECESSARY MEDICALS
2006-CA-001804
AFFIRMING; KELLER, VANMETER, GUIDUGLI
NOT TO BE PUBLISHED: 104
DATE RENDERED: 10/19/2007

Kentucky Tort Report (COA) for Oct. 12, 2007 (2007:49)

Kentucky Tort Report (COA) for Oct. 12, 2007 (2007:49)

Published Decisions - COA

None.

Not Published Decisions

MASON V. BEREA INDEPENDENT SCHOOL DISTRICT
TORTS: RECREATIONAL USE STATUTE
2006-CA-002061
NOT TO BE PUBLISHED: 77
DATE RENDERED: 10/12/2007

A plain reading of this statute indicates that immunity is not conditioned upon the injury arising out of the recreational activity per se, as long as the person injured was on the property for a recreational purpose.

CROUCH V. DARNALL
TORTS: GOV'T IMMUNITY IS QUESTION OF LAW; DISCRETIONARY ACTS
2006-CA-001388
NOT TO BE PUBLISHED: 86
DATE RENDERED: 10/12/2007

LOGSDON V. PAJ
TORTS: PREMISES LIABILITY (SLIP AND FALL) AND NATURAL OUTDOOR HAZARDS
2006-CA-001485
NOT TO BE PUBLISHED: 99
DATE RENDERED: 10/12/2007

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

Kentucky Tort Report (COA) for Sept. 28, 2007 (2007:47)

Kentucky Tort Report (COA) for Sept. 28, 2007 (2007:47)

Published Decisions - COA

CRAWFORD V. PITTMAN
CIVIL PROCEDURE:  DEFAULT JUDGMENT
2006-CA-001604
PUBLISHED: VACATING AND REMANDING
PANEL: NICKELL PRESIDING; STUMBO AND WINE CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007

Plaintiff filed suit for various causes of action, and Defendant's attorney filed an answer. Trial court (TC) entered an order setting a trial date for 11/15/05. On 06/17/05, defense counsel moved to reassign the trial date. On 06/28/05, two new attorneys filed a motion to enter appearance as counsel in substitution of previous defense counsel. None of the three defense attorneys appeared at motion hour on this motion, and the TC remanded it due to counsels' non-appearance. On 11/2/05 and 11/8/05, Plaintiff filed his witness list and proposed jury instructions, but he did not effectuate service on any of the three attorneys or on the Defendant. On 11/15/05 the case was called for trial, and the TC noted that neither the Defendant nor any of his counsel appeared. Upon Plaintiff's motion, the TC struck the Defendant's answer, granted a default issue on liability and allowed Plaintiff to present evidence as to damages. Three months later, the TC entered a written judgment in favor of the Plaintiff for some $62K. The second defense counsel moved to set aside the default judgment under CR 55.01, and the TC denied it on the basis of CR 37.02(2)(c). Defense counsel moved to alter, amend or vacate the denial, which was again denied, and this appeal followed.

Three errors alleged:

1. TC erred in awarding default judgment in contravention of CR 55.01, making judgment void ab initio. CA noted the standard of review on default judgments is abuse of discretion, but that where sanctions are imposed, as here, the discretion of TC is not unlimited. It must be supported by a finding of bad faith or willfulness on the part of the party being sanctioned. In the CAs review of a TC's imposition of sanctions, it must consider (a) whether the opponent was prejudiced by dismissed party's actions; (b) whether dismissed party was given a warning that dismissal could result from failure to cooperate and (c) whether other, less drastic sanctions had previously been imposed or considered prior to dismissal. Greathouse v. American Nat'l Bank & Trust Co., 796 S.W.2d 868 (Ky. App., 1990). The CAs found that the record had no evidence of any such findings; CA finds the TC abused its discretion in granting the default. CAs also noted that the TC's reliance on CR 37.02(2)(c) as grounds for granting default, was misplaced, as that rule relates to sanctions available only when a party fails to obey an order tor provide or permit discovery. The rule does not indicate sanctions are available to a party who otherwise violates orders of the Court. CAs agreed with defense counsel that CR 55.01 applies to this situation.

CR 55.01 mandates tat notice of application for a default judgment must be given to alleged defaulting party at least 3 days prior to the heraing on the applciation if the alleged defaulting party has appeared in the action. There was no doubt that the Defendant did appear on this action earlier in its history, and CA held Defendant was therefore entitled to notice of application for default judgment. There being no such notice, the CA vacated it.

Though this holding was sufficient to vacate the default, the CAs discussed the remaining arguments.

2. CA noted that in TC's denial of post-judgment motions for relief, it indicated Defendant had failed to show presence of meritorious defense or good casue sufficient to satisfy the requirements set forth in CR 55.02 to set aside default judgment. However, CA held that as mandatory requirements of CR 55.01 were not present, the presence or absence of a meritorious defense is immaterial. Also, as default judgment was void as a matter of law, the TC had not discretion to exercise when ruling on motion to set aside judgment.

3. CA agreed with defense counsel that TC erred in holding damages hearing without first giving notice of same. In cases involving unliquidated damages where a party has made an appearance, the defaulting party admits liability but not amount of damages. As such, a separate hearing is required, and fundamental fairness requires the defaulting party be given notice of a damage assessment hearing before such is held. Because the Defendant had made an appearance, she was entitled to notice of the damages hearing, and the CAs held that even if it were not vacating the underlying default judgment, it woudl have been required to reverse the damages award for want of notice.

Digested by Cherry Guanieri

DAWSON V. JEWISH HOSPITAL
CIVIL: EXPERT WITNESSES, DISCLOSURES, VOIR DIRE
TORTS: LOSS OF CHANCE
2006-CA-001241
PUBLISHED: AFFIRMING
PANEL:  THOMPSON PRESIDING; MOORE, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007

This medical negligence claim arose from alleged negligent post-surgery care by the hospital's nursing staff. A jury returned a verdict in favor of Jewish Hospital and this appeal followed in which the appellant alleges the trial court: (1) erroneously excluded relevant and competent evidence concerning Mr. Dawson's bedsores; (2) denied the Dawsons' counsel an adequate opportunity to voir dire the jury; and (3) failed to tender a loss-of-chance instruction to the jury. The Dawsons also appeal from a post-verdict order requiring them to pay Jewish Hospital's expert witness fees. The appeals were consolidated. Finding no reversible error, affirmed'

Dawsons contend that Mr. Dawson experienced pain in his side. He went to Tri-County Baptist Hospital where a CT scan was performed which revealed a 6cm aortic aneurysm in his chest. Mr. Dawson was referred to Dr. Matthew Jung who reviewed the CT films and recommended surgery. He discussed with Mr. Dawson the potential complications from the surgery including paraplegia (paralysis) and death.

Twenty-one months after his initial diagnosis, Mr. Dawson again saw Dr. Lawson but refused a CT scan. Two days after seeing Dr. Lawson, Mr. Dawson's pain became so severe that he returned to Tri-County Hospital. While on the gurney, the aneurysm, which was by then 7.5cm, ruptured. He survived the rupture but was still in need of surgery. After he again refused, he was admitted to the hospital as a terminal patient.

Aware of the risk, Mr. Dawson elected to have the surgery.

Although vital signs were to be recorded every two hours, at 6:00 p.m., the flow sheet does not indicate any recorded vital signs for Mr. Dawson. However, shortly after 6:00 p.m., a nursing assistant drew blood for a glucose test and Mr. Dawson did not indicate that he had any problems. His blood pressure was continuously monitored at the nursing station.

Dr. Ganzel testified that even if the paralysis had been treated earlier, there was no chance of a reversal and success would be “highly unusual.” Dr. Bouvette also testified that the “late onset of paralysis has been known and accepted as a complication well into the second week following surgery.”

Dr. Luis Mispereta testified that although there have been a “few anecdotal reports” of reversal of paralysis caused by “compartment syndrome,” there has not been one instance when paralysis caused by a blood clot such as in Mr. Dawson's case has been reversed. Jewish Hospital also produced the testimony of Dr. Henry Garreston, a neurosurgeon, who testified that once Mr. Dawson was paralyzed, it was irreversible.

With regard to pretrial discovery and expert witnesses, the pretrial order clearly stated -  "There must be a literal compliance with the requirements of CR 26.02(4)(a)(i). A party must identify each person whom the party expects to call as an expert witness at trial, and state the substance of the fact and opinions to which the expert is expected to testify and a summary of the grounds of each opinion. . . . Failure to comply with the letter and spirit of the aforesaid civil rule may result in the suppression of the expert's testimony."

Despite the direct order of the court, outside the disclosure deadline, on December 5, 2005, the Dawsons attempted to supplement their expert disclosures to include expert opinions from Dr. Cowles and Nurse Batezel concerning bedsores and itemized medical expenses which included 53 providers different from those previously disclosed.

On December 20, 2005, the trial court sustained Jewish Hospital's motion to exclude any reference during the trial to bedsores.

Thus, if the bedsores were a natural consequence of the paralysis, Jewish Hospital cannot be liable for any damages incurred as a result of the bedsores; any error, therefore, was not prejudicial.

With regard to voir dire, the court permitted each party's counsel to question the jury and, at the close of Jewish Hospital's voir dire, counsel asked, without objection, two questions:

Defense Counsel: Does anybody here think lawsuits are driving up the costs of health care?

Defense Counsel: Does anyone here think that Kentucky is losing doctors as result of lawsuits?

The Dawsons contend that “approximately 50% of the jury panel raised their hands" in response to these questions; and Dawson'sr counsel's request to re-voir dire the jury panel was denied. Thus, they surmise, they “were left with a panel, 50% of which clearly indicated that they personally felt that the Dawsons' lawsuit would drive-up their health care costs and result in physicians leaving the state.”

The Dawsons did not object to a single voir dire question; did not challenge a juror for cause on the basis of bias, and, when asked if they accepted the jury, their counsel responded affirmatively. Any contention that the trial court abused its discretion when it denied the Dawsons the opportunity to have the last word in the jury selection process was waived.

The evidence in this case did not warrant (a loss of chance)...instruction ...under the loss-of-chance doctrine, the plaintiff must still prove that the defendant breached the applicable standard of care and the breach was a substantial factor in causing a diminished chance of recovery or survival from the underlying disease or injury.

Digested by Michael Stevens

JENKINS V. BEST, M.D.
TORTS: MEDICAL NEGLIGENCE
2006-CA-001277
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN PART
PANEL:  ACREE PRESIDING; TAYLOR, KNOPF CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007

CA affirms in part and reverses and remands in part these related appeals from the TC summary judgments for Best and University Obstetrical and Gynecological Associates ("University Associates") in this medical malpractice case. (Jefferson Cir. Ct., Hon. Judith E. McDonald-Burkman, judge, presiding).

CA holds that Dr. Farmer and Baptist Hospital have no standing to challenge the summary judgments in favor of their former co-defendants. Also, as to Jenkins' appeal, CA affirms summary judgment for Dr. Best and reverses and remands summary judgment for University Associates.

Baptist Hospital contracted with University Associates to provide a wide range of parinatology specialist services. University Associates engaged Dr. Best to provide those services to both University of Louisville Hospital and Baptist Hospital. On March 28, 2003, University Associates scheduled Dr. Best to be on call to deliver babies at UofL Hospital overnight; the contract required her to remain in-house at UofL overnight. University Associates also scheduled Dr. Best to be on call at Baptist without making any contingency plan in the event both contracts required simultaneous performance.

Jenkins came to Baptist twice on that date, 30 weeks pregnant and complaining of abdominal pain and vaginal bleeding. Dr. Farmer covered for her regular obstetrician and was informed by nurses by phone that her condition did not indicate fetal distress. He ordered an ultrasound to be performed by a perinatologist to reassure the patient and her family. The duty nurse called Dr. Best to perform the ultrasound and was told Dr. Best could not come tonight, but could come in the morning. The nurse told Dr. Farmer and he came to the hospital to examine Jenkins himself. He found her stable and ordered the ultrasound for the morning. At shift change that night (approximately one hour later) a new nurse became concerned about Jenkins' condition and called Dr. Farmer who had her transferred to a third hospital for a complete immediate obstetrical ultrasound. The child was delivered by C-section shortly thereafter; he was permanently and totally disabled and has since died. During his deposition, Dr. Farmer stated that he was unaware that University Associates had no contingency plan and that he had assumed that upon first consultation for the ultrasound as ordered, Dr. Best had determined that it was advisable to wait until morning. He thought that if Dr. Best thought an ultrasound was required immediately and she was unavailable, she would arrange for another specialist to conduct the ultrasound.

Best and University Associates were granted summary judgment on the basis that Dr. Best never had a physician-patient relationship with Jenkins. Farmer and Baptist appealed; COA holds that they have no standing to appeal the grant of SJ to their former co-defendants. On Jenkins' appeal, however, SJ for University Associates is reversed to determine whether its negligence, if any, was as substantial factor in causing the injuries complained of.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

MULLINS V. MIKE CATRON CONSTRUCTION CO.
WORKERS COMP:  Future Medical Treatment
2006-CA-002182
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; VANMETER, PAISLEY CONCUR
WORKERS COMPENSATION BOARD
DATE RENDERED: 09/28/2007

Medical benefits and University Evaluators - The Court of Appels held that an ALJ may refuse to grant future medical treatment in a case where he finds that no medical treatment is needed in the future. The COA distinguished recent Supreme court case law in FEI Installation v. Williams which held that an ALJ may not refuse to grant future medical benefits even if there is no permanent impairment, where a work related injury has been proven. The COA also held that the claimant failed to object to the appointment of Dr. Goldman as a University Evaluator under KRS 342.315. The Supreme Court in Morrison v. Home Depot had held that Dr. Goldman was not qualified as a university evaluator because he was merely a contracted evaluator and not an actual employee of a University.

Digested by Peter Naake
Priddy, Cutler, Miller & Meade

LUTZ V. ENERGY CONVERSION CORP.
WORKERS COMP:  Constitutionality of Pneumoconiosis statute
2006-CA-002628
PUBLISHED: AFFIRMING
PANEL:  BUCKINGHAM PRESIDING; HOWARD CONCURS; STUMBO DISSENTS W/SEP. OPINION
WORKERS COMPENSATION BOARD
DATE RENDERED: 09/28/2007

The claimant, a life long coal miner, challenged the clear and convincing burden of proof to overcome the consensus of a panel of experts, who found that he did not suffer from pneumoconiosis. The Court of Appeals rejected the argument, holding taht the statute reasonably classifies pneumoconiosis claims differently from traditional injury claims. Stumbo dissents, as she would hold that the statute denies equal protection to miners with this type of disease.

Digested by Peter Naake
Priddy, Cutler, Miller & Meade

Not Published Decisions

JONES V. KY. BOARD OF CLAIMS
BOARD OF CLAIMS:  CLAIM FOR UNNECESSARY FORCE OR VIOLATE PER KRS 431.025
2006-CA-002157
NOT PUBLISHED: 96
DATE RENDERED: 09/28/2007

BONNER V. COM.
CIVIL: JURISDICTION, NOT LOST ON TRANSFER
2006-CA-001226
NOT PUBLISHED: 73
DATE RENDERED: 09/28/2007

Kentucky Tort Report (COA) for Sept. 21, 2007 (2007:46)

Kentucky Tort Report (COA) for Sept. 21, 2007 (2007:46)

Published Decisions - COA

KENNEY V. HANGER PROSTHETICS & ORTHOTICS, INC.
CIVIL PROCEDURE: AMENDING COMPLAINT
BUSINESS LAW: BUSINESS TORTS
2006-CA-000939
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; MOORE, STUMBO CONCUR
FAYETTE COUNTY
DATE RENDERED: 09/21/2007

This  Kentucky Court of Appeals decision provides a veritable grocery list of business related causes of action and their elements.

In the case, John M. Kenney had been an employee of Hanger Prosthetics, but ventured out on his own. Kenney and his company, Kenney Orthopedics, LLC, filed a petitioner alleging that Hanger employee Michael Adams made false representations about him, such as that he embezzled from Hanger and was barred from competing with Hanger per a non-compete contract provision, which harmed his business venture. Only Kenney's claim of breach of contract passed summary judgment while the defamation and tortious interference with business claims died there.

Since the litigation souffle made of the claims of tortious interference and defamation claims fell, Kenney attempted to make a stew instead by amending his complaint to incorporate a grocery list of other causes of action. The trial court refused to amend the petition. The breach of contract claim resulted in a hung jury and the trial court granted another summary judgment in Kenney's favor regarding his claim for a 4% commssion from Hanger. Kenney appealed the trial court's refusal to amend its complaint to incorporate the following list of claims accompanied by the definitions given by the Court of Appeals:

A. Interference with Prospective Contractual Relations
[t]he tort of interference with a prospective advantage is plagued with the absence of a uniformly recognized terminology. It has been referred to as the tort of interference with a business relationship, inducing refusal to deal, interference with a prospective economic advantage, interference with advantageous relations, interference with reasonable economic expectancies, or interference with prospective business expectancies. . . . The American Law Institute has named the tort "Intentional Interference with Prospective Contractual Relation."
. . . .
B. Defamation Per Quod
The difference between defamation per se and defamation per quod is that, in the former, damages are presumed and, in the latter, the plaintiff must prove special damages.. . . .

C. Unfair Competition/Trade Practices
[U]nfair competition consists of either (1) injuring the plaintiff by taking his business or impairing his good will, or (2) unfairly profiting by the use of the plaintiff's name, or a similar one, in exploiting his good will. Underlying the whole theory is the matter of actual or intended deception of the public for business reasons. . . . .

D. Slander of Title, Trade Libel/Disparagement, Injurious Falsehood
Corporations and other businesses can and do recover for libel or slander when they have been defamed by charges such as crime or fraud. But defamatory charges commonly made against individuals–adultery, for example–have little relevance to corporations and many of the imputations about corporations are harmful without being defamatory. When the publication asserts that the corporate product is defective, inadequate, or harmful without asserting personal defamation, the traditional view regards the claim as essentially different from the claim for defamation. The same is true if the publication merely says that the plaintiff has gone out of business. This different claim goes under the general name of injurious falsehood. When the publication attacks a product, it is also called trade libel or commercial disparagement. When the publication attacks title to property rather than quality of a product, the claim is likely to be called slander of title. . . . .

1. Slander of Title
[T]hat the defendant has knowingly and maliciously communicated, orally or in writing, a false statement which has the effect of disparaging the plaintiff's title to property; he must also plead and prove that he has incurred special damage as a result.
. . . .
2. Trade