SC: October 15 & 16, 2014 Oral Arguments before Ky Supreme Court – Open & obvious on ice and snow; SOL, PIP and a reissued check; sovereign immunity apply to sewer district?; DNA and effective assistance of counsel in death penalty case

On October 15, 2014 the Supreme Court of Kentucky (SCOKY) will hear oral arguments in the application of the premises liability “open and obvious” doctrine in a fall arising in an icy hotel parking lot; and the application of the two year statute of limitations for motor vehicle accident as to the exact date of the last PIP payment (check issued,  the date the PIP check was reissued or the date the replacement check clears the bank.

On October 16, 2014,  the Court will hear arguments on whether sanitary sewer districts get sovereign immunity; and post-conviction DNA testing & ineffective assistance of counsel in death penalty case.

2014.10.Breathitt.Older Court House.IMG_5872

The “OLD” Breathitt County Court House in Jackson, Kentucky. Photo by Michael Stevens.

For Kentucky Supreme Court LIVE argumentsclick here on date and time of argument.

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

For the complete calendar with links to the appellate briefs, counsel, issues, case name, dates, times and more, then  click on ‘continue reading’ below.

COA: Oct. 10, 2014 Decisions (Minutes) (892-912): bad faith summary dismissal at trial affirmed; directed verdict of medical negligence claim affirmed on appeal

The Kentucky Court of Appeals announced 21 decisions  on Oct. 10, 2014, with two opinions designated to be published –  (920) Mary Bouvette vs. Michael Bouvette from Jefferson County (COA reversed and remanding holding family court judge abused her discretion in denying appellant wife’s two motions for a continuance on financial matters and noting attorney fees award could change on remand); and Samantha G. Holloway vs. Direct General Insurance Company of Mississippi, Inc. from Fayette County (COA affirmed trial court summarily dismissing appellant’s bad faith claim against insurer; claimant/appellant’s unsworn interrogatory responses and unsworn, undated report of a putative expert were not enough to refute summary dismissal).

Marker in Jackson,Kentucky noting the many trials from the feud era.  Photo by Mike Stevens.

Marker in Jackson,Kentucky noting the many trials from the feud era. Photo by Mike Stevens.

Here are a few links of historical value for Breathitt County:

Click here for links to all the archived Court of Appeals minutes.

“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 (None this week).

COA: October 2014 Oral Argument Calendar for Court of Appeals (eg., appeal of default judgment; summary judgment on sexual harassment and retaliation claim against Wendy’s; capacity of patient to execute arbitration agreement; award of jury verdict against Indiana Ins. Co. for unfair claims settlement practices act and consumer protection act following 8-day jury trial appealed

The Court of Appeals of Kentucky will hear oral arguments for the month of October on October 6 in Pineville,  October 7 in Somerset, October 9 in Louisville, October 13 in Frankfort,  October 14 in Frankfort,  and October 17 in Bardstown.

2014.10.Boyle.Historical Marker Near Constitution SquareIMG_9970

Historical Marker Posted Adjacent to Constitutional Square in Danville, Kentucky.

Some issues of note with links to the “case information” at AOC are:

For a link to the archives of all oral argument calendars organized by year and month for the COA, then click here.

Complete Kentucky Court of Appeals’ schedule for oral arguments in October 2014 with dates, locations, counsel, issues, etc. can found below by “continue reading”

SC: September 18, 2014 Supreme Court of Ky Decisions (Minutes 145-161): rebuttable presumption; cell phone search – location and contents;

The Supreme Court of Kentucky announced a  17 decisions on September 18 , 2014, with 7 Kentucky Supreme Court opinions designated for publication; four attorney/judicial ethics and disciplinary matters; addressing; and five motions for discretionary review granted.

John Gill Weisiger Memorial Park Adjoining Constitution Square in Danville. "The land embraced within this park, bounded by Main Street, First Street, Walnut Street, and Alleyway, was conveyed to the commonwealth of Kentucky as a gift by Miss Emma Weisiger, and accepted by the Governor of Kentucky on October 15, 1937, as a memorial to her brother John Gill Weisiger.

John Gill Weisiger Memorial Park Adjoining Constitution Square in Danville.
“The land embraced within this park, bounded by Main Street, First Street, Walnut Street, and Alleyway, was conveyed to the commonwealth of Kentucky as a gift by Miss Emma Weisiger, and accepted by the Governor of Kentucky on October 15, 1937, as a memorial to her brother John Gill Weisiger.  Photo by Mike Stevens.

The published decisions are:  Boone Creek Properties vs. Lexington-Fayette  Urban County Government (Rebuttal presumption of irreparable harm in context of police powers);  Robert Parker vs. Commonwealth of Kentucky (criminal procedure and applicability of Davis v. US,131 S.Ct. 2419 (2011) to vehicle search incident to person’s arrest;  James Hedgepath v. Commonwealth of Kentucky (criminal procedure motion to suppress cell phone location, SUV, and cell phone contents);  Anthony Spicer vs Commonwealth of Kentucky (double jeopardy in relation to conduct not representing two separate courses of action);  Kentucky Uninsured Employer’s Fund vs. Julian Hoskins (workers complensation; relationship between the common law loaned servant doctrine and the employee leasing arrangements that are the subject of KRS 342.615);  Patrick Darcy vs. Commonwealth of Kentucky (Joint trials of criminal defendants. Reconciling a defendant’s interest in a reasonable continuance of the joint trial with his codefendant’s asserted statutory right to a speedy trial under KRS 500.110);   Fonda Morgan vs. Daniel Getter and A.G., A Child (Family Law. Child Custody. Guardian Ad Litem. Issue is whether a guardian ad litem may serve as both an advocate for a child and as a witness or advisor to the court in child custody cases).

Attorney disciplinary matters included:  Charles David Keen; Jason Robert Gilbert;  Cletus Maricle;  and Steven O. Thornton (reinstated to practice law).

Opinion corrected in Phillip Tibbs, MC vs. Hon. Kimberly N. Bunnell (Order Corrected the Opinion of the Court by Justice Scott Rendered August 21, 2014, by Substitution of the Entire Opinion in Lieu of the Original. Entered: September 10, 2014).

Motions for discretionary review were granted in the following cases (for the denials of motions, see the minutes for this month):  Cabinet for Health and Family Services v. JMG (2013SC000797, Fayette);   Ruth Ann Sadler vs. Barbara Lois Van Buskirk (Fayette);  Commonwealth of Kentucky vs. Adrian Parrish (Jessamine);  Saint Joseph Healthcare, Inc. d/b/a/ Saint Joseph Hospital vs. Larry O’Neil Thomas as Adm’or of the Estate of James “Milford” Gray, deceased (Fayette);   Kevin Addison vs. Lydia Addison (Hardin).

Each of the cases, whether published or not to be published, can be found in the official “minutes” below organized by number, parties, county, and links to the full text of each (with the published decisions’ issue noted as “questions presented.”   I have highlighted in yellow those cases of interest to Kentucky and Louisville injury attorneys.

Here is an unusual entry, Angela Ellis Hunter vs. State Farm Mut. Auto. Ins. Co., 2014-SC000071, Order Granted Discretionary Review, Vacated the Court of Appeals’ Dismissal as Violative of Supreme Court Order 2012-07 and Remanded Back to the Court of Appeals. All Sitting. All Concur.  Court of Appeals (2012CA001907) then “Order – on 9-10-14, Supreme Court of Ky Granted Appellant’s Motion for Discretionary Review in This Matter, Vacated This Court’s Order of Dismissal, and Remanded the Case for Further Proceedings on the Merits of the Appeal. in Light of This Decision, the Court Hereby Orders as Follows. Appellant’s Shall Be Filed on or Before 60 Days From This Date. All Further Briefing Shall Proceed in Accordance With the Schedule Set Forth in Cr 76.12(2)(A)”on 9/29/2014

Click here for links to all the archived Supreme Court of Kentucky minutes.

“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 – none.

COA: Oct. 3, 2014 Decisions (Minutes) (876-891): open records request to University Medical Center, public agency? exempt?; PVA not prohibited from hiring family members

The Kentucky Court of Appeals announced 17 decisions  on Oct. 3, 2014, with two opinions designated to be published –  UNIVERSITY MEDICAL CENTER, INC. VS. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, INC. (Open Records.  Is University Medical Center a public agency and/or exempt under KRS 61.878?); and KENTUCKY EXECUTIVE BRANCH ETHICS COMMISION VS. FELICIA WOOTEN  (Ethics.  Did PVA improperly use office for financial gain by hiring family members in violation of KRS 11A.020(1)(c)?  No.).

 

Constitution Square in Danville, Historic Site's Buildings (Photo by Michael Stevens)

Constitution Square in Danville, Historic Site’s Buildings (Photo by Michael Stevens)

The two published decisions are below. Click on the ‘hot link’ for the case name to see entire PDF decision posted at AOC.

881.  Open Records.  Is University Medical Center a public agency and/or exempt under KRS 61.878?
UNIVERSITY MEDICAL CENTER, INC. VS. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, INC.
COA, Published 10/3/2014;  Opinion by Judge Nickell Affirming and Remanding to Jefferson Cir. Ct.

NICKELL, JUDGE: The question before us is whether University Medical Center, Inc. (“UMC”)—operator of University of Louisville Hospital and related facilities (“ULH”)1—is a public agency within the scope of Kentucky’s Open Records Act (“Act”).2 Two paths have been suggested to conclude UMC is a public agency. We may follow the lead of the Office of the Attorney General (“OAG”) and hold UMC is a public agency under KRS 61.870(1)(j) because it was “established, created, and controlled by a public agency[.]” Or, we may follow the Jefferson Circuit Court’s lead and hold UMC is a public agency under KRS 61.870(1)(i) because “the majority of its governing body is appointed by a public agency[.]” In contrast, UMC maintains it is a private entity, and therefore, not subject to the Act, because it was created by two private individuals representing two private healthcare providers, and the majority of its Board of Directors is elected, not appointed by anyone. For the reasons that follow, we reject the OAG’s analysis, affirm the circuit court’s holding, and remand to the circuit court for determination of whether the requested records are otherwise exempt from disclosure under KRS 61.878.

883.   Ethics.  Did PVA improperly use office for financial gain by hiring family members in violation of KRS 11A.020(1)(c)?  No.
KENTUCKY EXECUTIVE BRANCH ETHICS COMMISION VS. FELICIA WOOTEN
COA, Published 10/3/2014; Opinion by PJ Stumbo affirming Franklin Cir. Ct.

STUMBO, JUDGE: Kentucky Executive Branch Ethics Commission (“the Commission”) appeals from two Orders of the Franklin Circuit Court. Those Orders reversed two Final Orders of the Commission holding that several Property Valuation Administrators improperly used their official positions or offices to obtain financial gain for their family members in violation of KRS 11A.020(1)(c). As a basis for the reversals, Judges Phillip J. Shepherd and Thomas D. Wingate independently determined that KRS 11A.020(1)(c) does not bar Property Valuation Administrators from hiring or promoting family members. In this consolidated appeal, we conclude that KRS 11A.020(1)(c) cannot reasonably be interpreted to prohibit Property Valuation Administrators from promoting and hiring family members. Accordingly, we AFFIRM the Orders on appeal.

“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 (None this week).

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) (864-875): 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.