2014 Idea Festival Louisville – September 30 thru October 3, 2014 – Hope to see you for a little innovation, ideas, and curiosity. But mostly, it is really, really fun!

Next week is the 2014 Idea Festival.   I have been popping into various sessions since 2008.  But this year, I got a pass for all sessions from Wed thru Friday.  This will only be the second time, I decided to take the big leap, and I can assure you I am pretty excited about it, again.

I enjoy the freshness of ideas, the creativity, no limits, curiosity unleashed and unbounded, and an all in all good time meeting people with cutting edge ideas that can cross-pollinate into the law and other areas of endeavor.  All you need do is keep an open mind, and wonder “what if?”

IF_KCThe events begin on Wednesday, and should you see me wearing shorts and sneakers, carrying my camera and iPad, please, please holler at me.  New faces, new friends, new ideas, all getting curiouser and curiouser provide for  delightful time.  I still look a little like the photo at the top of the page.

Kris Kimmel said it best in a Courier-Journal article last week – “Thinking Big at Idea Festival.”

Next week the 2014 Idea­ Festival kicks off in Louisville at the Kentucky Center. This year participants will again find themselves immersed in nearly 30 events and presentations on topics ranging from the search for life in the universe, how our minds process time, why “average” is over and the increasingly disruptive global economic and political landscape, to design thinking, how technology is making us smarter and even surviving the great zombie apocalypse. The complete program can be found at www.ideafestival.com.

* * *

In today’s world where organizations are either innovative or dead, imagination and rejecting the safe way are often the difference between the ordinary and extraordinary, survival and extinction. True, a restless, curious mind in and of itself guarantees nothing. But without imagination, a willingness to walk toward the unknown and a tolerance for uncertainty, nothing of value ever happens.

Related: State-affiliated group to sponsor IdeaFestival

The truth today is that doing the same old thing and being satisfied with being pretty good can quickly become a fast track to irrelevancy. Apple is one of the most highly capitalized companies on the planet in large part because it boldly envisioned a different world. It broke the rules. And now … it gets to make the rules.

No person who goes to the IdeaFestival knows exactly what they will discover. The traditional metrics and measurements often have little to do with the ultimate outcomes, insights and answers supplied by the incredible people who show up to speak and take part in IF.

That ultimate flash of discovery is all yours. But you must do two things to have a chance at that magical moment:

Be there and be aware.

I hope to see you there.

Kris Kimel is the founder of IdeaFestival and president of the Kentucky Science and Technology Corp.

2014 IdeaFestival

The festival will run Sept. 30-Oct. 3 at the Kentucky Center in Louisville. Find the complete schedule and purchases passes at www.ideafestival.com

Again, if you see me, stop and let’s talk.  There has never been a session that sparked my imagination.  The legal system is neither innovative or creative anymore.   Mike.

COA Published Decision Modified on 9/26/2014 – Grange Property & Casualty Co. v. Tennessee Farmers Mutual Ins. Co

The following Court of Appeals decision ordered to be published on 9/12/2014 was modified by order on 9/26/2014.  Since I do not have a copy of the earlier decision for purposes of comparision, I am hopeful that a reader might post a comment to this post and let us know of the significance whether to correct a typo or a substantive change.  Our earlier post of the minutes for 9/12/2014 with a short synopsis can be found by clicking here.

827.  Choice of Law, Uninsured Motorist Benefits, Tennessee Offset, and Priority of Coverages
Grange Property & Casualty Co.  v. Tennessee Farmers Mutual Ins. Co
COA Published 9/12/2014 PJ Clayton Affirming
Modified 9/26/2014
Pike County

COA: Sept. 26, 2014 Decisions (Minutes) (847-863): COA Judge Thompson breathes new life into “open and obvious” slip and fall defense in spite of SCOKY decisions in Shelton, Dick’s Sporting Goods & McIntosh, oh my!; reimbursable court costs do NOT include copies of deposition transcripts

The Kentucky Court of Appeals announced 17 decisions  on Sept. 26, 2014, with two opinions designated to be published –  ROXANNE SMITH VS. TERESA GRUBB (premises liability, open and obvious addressed on remand); RAYCHELL STILGENBAUER VS. COM. OF KENTUCKY (pretrial diversion revocation and drug court condition).

Here is the sign marking Constitution Square Historic Site in Danville, Kentucky.  My next few photos are going to be of scenes at or near this historic site.

Here is the sign marking Constitution Square Historic Site in Danville, Kentucky. My next few photos are going to be of scenes at or near this historic site.

The two published decisions are:

864.  Premises Liability, Slip and Fall, “Open and Obvious”; Post-Shelton & Post-McIntosh
ROXANNE SMITH VS. TERESA GRUBB
COA, Published 9/26/2014 – Reversing and Remanding decision from Clay County
PJ Thompson

THOMPSON, JUDGE: The matter before us is on remand from the Kentucky Supreme Court. Our Supreme Court vacated this Court’s to be published opinion rendered on June 15, 2012, and directed we consider the issue relating to the open and obvious doctrine in light of its decisions in Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), and Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901 (Ky. 2013). Because our prior opinion was vacated and the parties present issues other than that pertaining to the open and obvious doctrine, it is necessary to address those issues in this opinion.

We hold Smith did not have sufficient control and supervision of the Speedway premises to be individually liable and, therefore, the action against her must be dismissed. Likewise, the claim against Speedway must be dismissed because the condition of the parking lot was open and obvious and was not a condition that created an unreasonable risk of harm.

Based on the foregoing, we reverse the findings of fact, conclusions of law, and judgment of the Clay Circuit Court and remand for proceedings consistent with this opinion.

866. Criminal Law, Diversion Revocation
RAYCHELL STILGENBAUER VS. COM. OF KENTUCKY
COA, Published 9/26/2014 Dismissing.  Opinion by PJ Vanmeter

VANMETER, JUDGE: Raychel Stilgenbauer appeals from the Boyd Circuit Court’s order revoking her diversion, adjudicating her guilty of first-degree possession of a controlled substance, and imposing a five-year sentence of imprisonment. For the following reasons, we affirm.

Upon review of the record and applicable law, we are unable to say that the trial court exceeded its authority by modifying the diversion agreement to include completion of drug court as a condition.  Moreover, the trial court did not abuse its discretion by revoking Stilgenbauer’s diversion for failure to complete drug court as ordered.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (continue reading).

COA: Sept. 19, 2014 Decisions (Minutes) (847-863): no jury impanelled, no directed verdict; road rage doctor’s case dismissed; of flags, funeral processions, and duty to others

The Kentucky Court of Appeals announced 17 decisions  on Sept. 19, 2014, with two opinions designated to be published –  Barbara Cox vs. Jeffrey Owen from Jefferson County; and  Dr. Jack Readnour vs. Jerry Gibson from Kenton County.

A View of "Constitution Square" in Danville, Virginia.  Whom do you think these two gentlemen are?

A View of “Constitution Square” in Danville, Virginia. Who are those guys in the center of the Governors’ Circle?

For more information on “Constitution Square”, click here.  FYI:  A bronze statue depicting two men shaking hands, a symbol taken from the state seal, stands in the middle of the Governor’s Circle.

The two Court of Appeals opinions to be published are:

827.  Error for Trial Court to Direct Verdict Before Impaneling Jury
BARBARA COX VS.  JEFFREY OWEN
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
CLAYTON (PRESIDING JUDGE); COMBS (CONCURS) AND NICKELL  CONCURS
JEFFERSON
COA To Be Published; 9/19/2014

863.  Road Rage Incident Prompted Injury Claims by Pro Se Plaintiff which failed to survive summary judgment
Affirming
Kenton County
COA Published 9/19/2014

COMBS, JUDGE: Jack Readnour, pro se, appeals from an order of the Kenton Circuit Court granting summary judgment and dismissing the claims he asserted against Jerry Gibson, III; Tammy Gibson, his wife; Jerry Gibson, Jr., his father; Thomas G. Abbott; and Dylan Mead. After our review, we affirm.

CAPERTON, JUDGE, CONCURRING: I concur with the result reached by the majority but write separately to express my opinion of those persons who believe they can privately enforce traffic laws. It is apparent from the facts that the Gibsons believed they had the right, as individuals, to enforce our traffic laws. Quite the contrary, they have shown no authority that allows them to enforce traffic laws and, as is apparent from the facts, the Gibsons violated our traffic laws by obstructing a lane of travel on multiple occasions. Their conduct may well be found to have been a factor in precipitating the events that followed.

The blocking of traffic lanes has become prolific on our roads; to this I lend a word of caution. While on many occasions the operator of the vehicle taking the initiative to avoid the traffic delay is without an excuse or emergency to justify his actions which are violative of traffic laws, there may be times that the violator has a medical emergency or other factual scenario that would justify his actions to use clear lanes or initiate emergency procedures. Those that seek to interfere without authority to do so may find themselves immersed in a legal battle wherein they must justify their actions or bear civil and/or criminal liability.

[KCR NOTE: As an  aside, here is a news story several years back on a "Dr. Jack Readnour" - "Accused 'fake doctor' back in jail" Feb 17, 2009.]

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (continue reading).

Cause of Action: Retail Store (Wal-Mart) Owed No Duty to Patrons of store when altercation occurs Rose vs. Wal-Mart COA Not Published 9/12/2014; PJ Combs Affirming Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons (Rose v. Wal-Mart, COA, NPO 9/12/2014)

Torts.  Duty Owed to Patrons of store when altercation occurs
Rose vs. Wal-Mart
COA Not Published 9/12/2014; PJ Combs Affirming
Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons under facts of this case.

Cause of Action: Premises Liability Open and Obvious Hazard Distinguished by COA for licensee (as opposed to invitee) (Klinglesmith vs. Estate of Reba Pottinger, COA, NPO 9/12/2014)

Klinglesmith vs. Esate of Reba Pottinger
Premises Liability.  Slip and Fall.  Licensee treated differently on open and obvious.
COA Not Published 9/12/2014; PJ Stumbo Affirming

[Although the issue of plaintiff's failure to offer proof of causation was the basis to the lower court's summary judgment and the Court of Appeals' affirmance of the dismissal, Judge Stumbo in her opinion addressed a distinction on how open and obvious interplays with the landowner's duties to an invitee (as in Shelton and McIntosh vs. a licensee in Klinglesmith.  This is why the case is noted under the topic causes of action.]

STUMBO, JUDGE: Stella Klinglesmith appeals from an Order of the Jefferson Circuit Court dismissing via Summary Judgment her personal injury action against the Estate of Reba Pottinger. Klinglesmith contends that the court erred in concluding that the open and notorious doctrine barred her recovery, and that she would be unable to demonstrate causation if the matter proceeded to trial.

As a basis for the Order granting Summary Judgment, the Court noted that Klinglesmith testified in her deposition that she did not observe any defect in the porch and was not sure why she fell. After discussing Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), and the exception to the open and obvious doctrine, the Court determined that Klinglesmith had over a year since the filing of this action to conduct discovery, and had not established that the condition of the porch was a substantial factor in causing her injury. The Court rendered Summary Judgment, and this appeal followed.

Klinglesmith contends that under Shelton, an open and obvious condition does not eliminate a landowner’s general duty to maintain premises in reasonably safe condition or the duty to warn of or eliminate unreasonably dangerous conditions, but, rather, is factor in determining whether landowner fulfilled his or her duty of care. Klinglesmith appears to contend that the Jefferson Circuit Court erred in absolving the Estate of liability because the defect in the

The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klinglesmith engage in an activity of the type that the owner conducts or permits to be conducted on his land.

Defenses: Failure to revive cause of action upon defendant’s death dismissed as untimely and “equitable estoppel” not help the plaintiff under facts (Allen vs. Emily Conner, COA, NPO 2/28/2013)

Geraldine Allen vs. Emily Conner (now deceased) and Ohio Cas. Ins. Co.
COA NPO 2/28/2013
Affirming
Jefferson County

COMBS, JUDGE: Geraldine H. Allen appeals the April 8, 2013, order of the Jefferson Circuit Court dismissing her personal injury action against her alleged tortfeasor, Emily M. Conner, for failure to revive it within one year of Conner’s death. After our review, we affirm.  Court rejected application of equitable estoppel defense under these facts.

Ephriam McDowell Home in Danville, Kentucky.  "Father of modern surgery" conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809.  Patient sang hymns during procedure, recovered and died in 1842.

Ephriam McDowell Home in Danville, Kentucky. “Father of modern surgery” conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809. Patient sang hymns during procedure, recovered and died in 1842.

This suit arose from a car collision in which Geraldine Allen sued Emily Conner.  Allen’s attorney gave Conner’s liability insurer an indefinite extension while preparing and submitting a demand; thus no attorney was retained by the Ohio Cas./Liberty Mutual adjuster to represent or defend Conner.  However, Conner died, and an estate opened (unbeknown to the Ohio Cas adjuster or the attorney.  After the demand was received and while invesigating the claim, Ohio Casualty/Conner’s attorney discovered Conner had died more than a year previously.  The insurance lawyer filed an answer to the complaint and asserted that her claim was barred by the provisions of Kentucky Revised Statute[s] (KRS) 395.278, since an application to revive the action had not been made within one year of Conner’s death. On January 10, 2013, Allen filed a motion to revive the action and requested leave to file an amended complaint that included allegations against Ohio Casualty for unfair claims settlement practices and violations of Kentucky’s Consumer Protection Act.

When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

If an action is not revived against the administrator of the When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

Cause of Action. Kentucky is not a “direct action” state. Insurance company not proper defendant in wrongful death claim resulting in dismissal withOUT prejudice (Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co. COA, NPO 2/21/2014)

Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co
COA, NPO 2/21/2014 PJ Caperton Affirming in Part, Reversing in Part, and Remanding
Allen County
Affirmed dismissal of wrongful death claim (but without prejudice) asserted against insurer rather than insureds.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

CAPERTON, JUDGE: The Appellant, Dovie Moore, Administrator of the Estate of Peyton Spencer Green (hereinafter “Moore”), appeals the February 5, 2013, order of the Allen County Circuit Court, dismissing her wrongful death claimagainst the Appellee, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”). Upon review of the record, the arguments of the parties, and the applicable law, we affirm. However, because we also conclude that the dismissal should be without prejudice, we reverse that portion of the order and remand for entry of an order dismissing without prejudice.

COA: Sept. 12, 2014 Decisions (Minutes) (820-846): open obvious defense distinction made on licensee vs. invitee duty; store’s duty to intervene in physical altercation involving customers; choice of law on UM “other insurance” clauses and “offsets”

2014.09.Boyle.First College in West.IMG_9940

First College in the West – 1783. Centre College. Danville, Kentucky.

The Kentucky Court of Appeals announced 27 decisions  on Sept. 12, 2014, with two opinions designated to be published – Grange v. Tennessee Farmers Mutual Ins. Co.  (choice of law decision regarding Kentucky UM policy and Tennessee UM policy and applying the Tennessee rule of offsetting coverage); and Hack v. Commonwealth of Kentucky (criminal decision).

The two Court of Appeals opinions to be published are:

827.  Choice of Law, Uninsured Motorist Benefits, Tennessee Offset, and Priority of Coverages
Grange Property & Casualty Co.  v. Tennessee Farmers Mutual Ins. Co
COA Published 9/12/2014 PJ Clayton Affirming
THIS DECISION WAS MODIFIED ON 9/26/2014.
Pike County

CLAYTON, JUDGE: Grange Property and Casualty Company (hereinafter “Grange”) appeals the Pike Circuit Court’s order that granted the summary judgment motion of Tennessee Farmers Mutual Insurance Company (hereinafter “Tennessee Farmers”) and denied Grange’s motion for summary judgment.

Presented with a choice of law question, the trial court decided that under the modern test, that is, which state “has the most significant relationship to the transactions and the parties,” Tennessee law was applicable regarding the priority of the uninsured motorist (UM) coverage between Grange and Tennessee Farmers. Restatement (Second) Conflicts of Law § 188 (1971).

Further, the trial court determined that Grange’s UM policy provided primary coverage to the injured party and Tennessee Farmers’ policy provided secondary coverage. Additionally, based on Tennessee law, Tennessee Farmers’ secondary coverage for Ferlin Pruitt was extinguished since the injured party had collected over $100,000.00 in workers’ compensation benefits. After careful consideration, we affirm.

840.  Criminal Law.  Search and Seizure. “Knock and talk” rule.  Curtilage examined.
Hack v. Commonwealth of Kentucky
COA Published 9/12/2014;  PJ Clayton Reversing and Remanding
Graves County

CLAYTON, JUDGE: Donna Hack appeals the Graves Circuit Court’s opinion and order dated July 11, 2013, denying her motion to suppress evidence seized after a warrantless entry into her garage.  The trial court denied in part and granted in part the motion to suppress. Hack subsequently entered an Alford plea, reserving the right to appeal the denial of her suppression motion.  After careful review, we reverse the decision of the Graves Circuit Court and remand for further proceedings consistent with this opinion.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (continue reading).