Kentucky Tort Report

Duty and foreseeability, power lines and airplance accident: LEE V. FARMER'S RURAL ELECTRIC COOPERATIVE CORP. (COA 10/19/2007)

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

Spoliation of Evidence, duties of a minor: Hays v. Alia (COA 10/19/2007)

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

Boating Accident Claim: Henson v. Klein, COA 10/5/07

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

Torts (loss of chance), Insurance Question on Voir Dire, and Expert Witness Disclosures: Dawson v. Jewish Hospital, COA 9/28/2007

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

NPO: TORTS: FIDUCIARY BREACH OF TRUST AND OFFSETS

ELLIOT V. J.C. BRADFORD & CO.
TORTS:  FIDUCIARY BREACH OF TRUST AND OFFSETS
2006-CA-000546
NOT PUBLISHED:
DATE RENDERED: 09/14/2007

SUMMARY JUDGMENT AND GENUINE ISSUE OF MATERIAL FACT & 10 DAYS TO RESPOND: Brock v. Pilot Corp. COA 9/7/2007

BROCK V. PILOT CORP.
CIVIL PROCEDURE: SUMMARY JUDGMENT AND GENUINE ISSUE OF MATERIAL FACT & 10 DAYS TO RESPOND
PROPERTY: MECHANICS LIEN AND PRE-LIEN NOTICE
TORTS:  UNJUST ENRICHMENT
2006-CA-001498
PUBLISHED: AFFIRMING
PANEL:  THOMPSON, PRESIDING; VANMETER, PAISLEY CONCUR
COUNTY: BELL
DATE RENDERED: 09/07/2007

Plaintiff was a third-in-line subcontractor hired to perform some hauling of excavated material from a property upon which the Defendant was building a Pilot Food Mart. The party who subcontracted the Plaintiff never paid him for his work, and he brought the instant action against the Defendant. The trial court granted Defendant's Motion for Summary Judgment, which was styled "Memorandum in Opposition to [Plaintiff's] MSJ and In Support of [Defendant's] MSJ."

The CA held that the requirement that a party be given ten days to respond to an MSJ is mandatory "unless waived," according to Storer Communications v. Oldham County, 850 S.W.2d 340, 342 (Ky., 1993) and CR 56. The CA noted that the Plaintiff failed to cite to any place in the record where he objected to the trial court's consideration of the Defendant's MSJ, and the CA deemed his objection waived.

The CA also held that in order for the Plaintiff to recover under the theory of unjust enrichment, he had to show not only that the Defendant benefited from his efforts, but also that it did not pay any person for the work he performed. The evidence proved that the Defendant paid the first-in-line subcontractor for the Plaintiff's work and that the second-in-line subcontractor failed to pay the Plaintiff. The unjust enrichment claim was therefore deemed precluded.

The Plaintiff argued that one of the Defendant's agents assured him the Defendant would pay for his work, and hence there was no need to provide the requisite notice under KRS 376.010(3) to the Defendant within 120 days of his intent to file a mechanic's lien (which he did not provide, by the by). The CA noted that a general contractor is not deemed an agent of a landowner as a matter of law, Middletown Engineering Co. v. Main Street Realty Co., Inc., 839 S.W.2d 274 (Ky., 1974). It examined the factors in Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 757 (Ky., 1985), as to whether one acting for another is a servant or an independent contractor, and held that the Plaintiff failed to establish that the original subcontractor was the Defendant's agent. In that there was not direct contact between the Plaintiff and the Defendant or any of its agents, the CA held his prelien notice was untimely.

Cherry Henault 

SCOKY grants discretionary review in Com., Transportation Cabinet, Department of Highways v. Shannon D. Sexton regarding duty of landowners for trees

The Kentucky Supreme Court granted discretionary review in Commonwealth, Transportation Cabinet, Department of Highways v. Shannon D. Sexton, (2006-SC-0454-DG).  Click here for previous digest and link to text at this site.

This is an appeal of a decision from the Jefferson Circuit Court, Judge Ann Shake presiding.

The Court of Appeals in a published decision written by Judge Henry (with Judge Combs concurring) held "that a landowner in an urban or heavily populated area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises."

SCOKY Justice Will Schroder while sitting as a COA Judge filed a dissenting opinion in the COA decision:

Our first inquiry is whether or not the Department owed a duty of care to Sexton. We all agree that under present law, there is no duty. The majority believes it’s time to create a duty. I must dissent. The General Assembly could, and probably should consider creating such a duty, but not the courts. Also, the urban/rural distinction invites a number of questions, such as do we classify by city limits, population density, lot size, etc?

Attorney Daniel Alvarez is representing the claimant injured by the tree, and Andrew Draut the Commonwealth.

The Kentucky Supreme Court granted discretionary review in Commonwealth, Transportation Cabinet, Department of Highways v. Shannon D. Sexton, (2006-SC-0454-DG).  Click here for previous digest and link to text at this site.

This is an appeal of a decision from the Jefferson Circuit Court, Judge Ann Shake presiding.

The Court of Appeals in a published decision written by Judge Henry (with Judge Combs concurring) held "that a landowner in an urban or heavily populated area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises."

SCOKY Justice Will Schroder while sitting as a COA Judge filed a dissenting opinion in the COA decision:

Our first inquiry is whether or not the Department owed a duty of care to Sexton. We all agree that under present law, there is no duty. The majority believes it’s time to create a duty. I must dissent. The General Assembly could, and probably should consider creating such a duty, but not the courts. Also, the urban/rural distinction invites a number of questions, such as do we classify by city limits, population density, lot size, etc?

Attorney Daniel Alvarez is representing the claimant injured by the tree, and Andrew Draut the Commonwealth.

Torts: Invasions of privacy versus breach of confidentiality addressed in COA decision

JOHNS V. FIRSTAR BANK
TORTS - Invasion of privacy and breach of confidentiality
2004-CA-001558
PUBLISHED   
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING (DYCHE)
DATE:  3/24/2006

CA affirms in part, reverses in part and remands this invasion of privacy/breach of contract case.

Johns sought financing through Firstar to establish a juvenile detention facility. He requested complete confidentiality because his father, superintendent of the school board, had recently come under public scrutiny. Someone at the bank leaked his involvement, torpedoing the deal. He sued for invasion of privacy, breach of implied contract, breach of fiduciary duty and negligence. A jury awarded him $250,000 for lost profits. CA affirms in part, reverses in part, and remands, holding that jury award did not distinguish whether award was for invasion of privacy, which did not apply, or breach of confidentiality.

Ky Legislation: Ky Legislature: Booster seat bill picks up support

Ky Legislature: Booster seat bill picks up support - post and comment at Kentucky Law regarding proposed legislation and impact on torts by elimination of inadmissibility of evidence, apportionment, and negligence.

Top 10 + 1 Tort and Insurance Law Decisions for 2006

Top 10 + 1 Tort and Insurance Law Decisions for 2006 - posting at www.KentuckyLawBlog.com.

However, additional cases of note are: 

DOWELL V. SAFE AUTO INS. CO.
INSURANCE:  UM Benefits; coverage; "hit and run"
2005-SC-000153-DG.pdf
PUBLISHED: REVERSING AND REMANDING; LAMBERT
DATE RENDERED: 12/21/2006

Safe Auto's automobile insurance policy did not contain the typical "hit and run" exclusion of coverage and denied UM benefits when it's insured was injured in a car accident by an unknown driver/vehicle who had made contact.  SC rejected Safe Auto's position that there was no UM coverage since there was no proof that the vehicle was uninsured and concluded that an unidentified hit and run vehicle is not excluded from the UM coverage of this policy. As such, coverage is deemed applicable to Appellants .