Attorney Sidebar: Honoring Our Profession

~Phil Grossman

“I hold every (person) a debtor to (his or her) profession; for which as (members of their professions) of course do seek countenance and profit, so ought they of duty to endeavor themselves, by way of amends to be a help in ornament thereunto.”
~Sir Francis Bacon
Preface, Maxims of the Law

* * *

“We did not choose an easy profession. We work hard, most of us, for our clients. From our labor, we have a right to be rewarded, to seek some measure of comfort and profit. Our first duty is to our clients, but we cannot do that without taking care of our families and ourselves. That, we are not so different from other professions.

What is different is the time – honored tradition of being a “help and an ornament thereunto.” Our respect for the majesty and dignity of the law and the way we honor the Constitution and judicial system, leads us to a higher purpose. That we abhor abuse of the legal system in that we use our respect for the law to protect victims is unique. Our purpose is wrapped in a heritage that is dignified when we use our positions to strengthen the foundations of the law and protect the long history of the civil justice system.

Indeed, there are forces that do not respect what we do and that do not admire the heritage we seek to preserve. We are armed with the knowledge that we are not just beneficiaries of the tradition we inherited, but rather that we are, more importantly, fiduciaries of this exceptional legacy. From that knowledge, we will measure our success by the way we pass on this heritage to others. And if we live by that measure, we will succeed in our mission and Bacon’s charge [“I hold every person a debtor to their profession.”].”

~ Phil Grossman, President of Kentucky Justice Association
The Advocate, Jan/Feb 2018, page 4.

 

COA: January 12, 2018 Court of Appeals Decisions (Minutes)

Nos. 23-33: 11 Decisions Posted with 1 decision designated for publication

PUBLISHED DECISIONS:

25.  Appeals.
Steffan v. Smyzer
Appellant, Donald Steffan in his individual capacity as an employee of the Jefferson County Board of Education, appeals from an opinion and order of the Jefferson Circuit Court denying his motion for summary judgment based on immunity under the Paul D. Coverdell Teacher Liability Protection Act of 2001, 20 U.S.C.A. §§ 6731-6738. We conclude that the trial court’s order was interlocutory in nature and, as such, Appellant’s appeal must be dismissed.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

26.  Torts. Negligent misrepresentation, and intentional interference with a prospective contractual relationship.
Turner v. Kentucky River Community Care

30.  Automobiles. Ownership and certificate title;  not equitable title.
Houston v. Barker

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

MNT01122018

COA: January 5, 2018 Court of Appeals Decisions (Minutes)

Nos. 1 - 22 --- 22 Decisions Posted with 5 decisions designated for publication

PUBLISHED DECISIONS:

6.  Medical negligence.
Quattrocchi v. Nicholls
Appeal of jury verdict in favor of Paul Nicholls, M.D., and dismissing the medical negligence claim brought by Ann Quattrocchi. Ann argues that the trial court improperly excluded evidence of a surgical incident which led to her sciatic nerve palsy. As the evidence of record shows exclusion of the evidence and the failure to grant a continuance amounted to an abuse of discretion, we reverse and remand.

9.  Criminal Law.  DNA and Daubert.
Commonwealth of Kentucky v. Baldwin
The Commonwealth of Kentucky brings this appeal from an interlocutory order excluding expert testimony regarding DNA1 evidence. The Commonwealth offered the evidence during Robert L. Baldwin’s murder trial. After reviewing the record and observing that the Trimble Circuit Court did not conduct a Daubert hearing regarding the analytical technology used to further test blood from the crime scene, we vacate the order and remand.

11.  Underinsured Motorist Benefits and Stacking.
Consolidated Ins. Co. v. Slone
Consolidated Insurance Company appeals from an order of the Magoffin Circuit Court declaring that the appellees are entitled to stack the underinsured motorist coverages (UIM) provided in a vehicle insurance policy issued to the Magoffin County Board of Education. The primary issue presented is whether an anti-stacking provision in the Consolidated policy limits the total UIM coverage available to $500,000. We conclude that the provision precludes the appellees, who are insureds of the second class, from stacking the UIM coverages. We further conclude that any alleged misrepresentation made by a Consolidated insurance agent regarding stacking to the Magoffin County Board of Education does not estop Consolidated from enforcing the anti-stacking provision.

16.  Revenue and Taxation.  Ad valorem re county library.
Coleman v. Campbell County Library Road
Charlie Coleman, John P. Roth Jr. and Erik Hermes (hereinafter “the taxpayers”) bring this appeal from the Campbell Circuit Court’s grant of summary judgment to the Campbell County Library Board of Trustees (hereinafter “the Board”). The primary issue is whether the holding of an opinion(hereinafter “the Opinion”) of the Court of Appeals, which harmonized statutes relating to public library ad valorem tax rates, is to be applied retroactively or prospectively only.

20.  FELA.  Jury instructions.
Boggs v. CSX Transportation, Inc.
Larry M. Boggs appeals from the judgment of the Jefferson Circuit Court entered upon a jury verdict in favor of CSX Transportation, Inc., (CSX). Boggs presents numerous issues for our review. However, our disposition of the appeal turns upon our resolution of a single issue: whether the trial court erred in its instructions to the jury panel. After our review, we reverse and remand for further proceedings.

 

Selected cases that were not designated for publication in tort, insurance and civil law. None.

 

 

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT01052018

Causes of Action: Parental Duty to Supervise Children

Thomas v. Bottoms, COA, NPO, 12/22/2017

In this case, the COA has a tight summary and analysis of claims for negligent parental supervision of their children.  Briefly, the plaintiff was guest at an outside party and was hit in the back of her head by a water balloon thrown by a five year-old and the other child ducked.  Boom she was hit.

Here are excerpts from the case:

The general rule with respect to a parent’s duty to supervise a child is as follows:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(b) knows or should know of the necessity and opportunity for exercising such control.

The existence of a parent’s duty to control a minor child largely turns on the foreseeability of the child’s injurious conduct. For a child’s act to be foreseeable, it is not necessary that the child have committed that same act before. A duty to control the child may also arise where the child previously has committed a very similar act and there are circumstances making it foreseeable that the child might later commit the specific act at issue.

Hugenberg v. W. Am. Ins. Co./Ohio Cas. Grp., 249 S.W.3d 174, 181- 82 (Ky. App. 2006) (quoting Restatement (Second) of Torts § 316 (1965)).

. . .

“The essence of a negligent supervision claim is that the parent’s ‘failure to exercise due care has made it possible and probable that the child would injure another.’” Hugenberg, 249 S.W.3d at 181 (citing Moore, 418 S.W.2d at 248). In the present case, no evidence in the record supports that E.B. had previously engaged in conduct that had the potential to cause harm. See generally, James v. Wilson, 95 S.W.3d 875, 887 (Ky. App. 2002) (The minor child went to his high school and shot and killed three students and injured five more. This Court affirmed the granting of the summary judgment as to the parents regarding negligent supervision because there was no evidence that the child had ever exhibited violent tendencies toward anyone.) Therefore, the Breiners were under no duty to take precautionary measures that would have prevented Linda from getting hit with a water balloon.

Regarding Linda’s negligence claims against Nelson Bottom, it is well settled in Kentucky that a social guest is considered a licensee. Shipp v. Johnson, 452 S.W.2d 828 (Ky. 1969); Restatement (Second) of Torts, § 330 cmt. H.3

(1965). “[A] premises owner or occupant owes a duty to a licensee not to willfully or wantonly injure the licensee and to warn of dangerous conditions known by the owner/occupant.” Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565, 567 (Ky. App. 2014). 1 It was not foreseeable that a five-year old child playing with a water balloon would injure an adult at the party, and E.B. had not engaged in similar injurious conduct in the past. Accordingly, there was nothing of which to warn Linda. Moreover, the children were playing out in the open. Accordingly, Linda cannot create a genuine issue of material fact sufficient to survive summary judgment against Nelson Bottoms.

Regarding Linda’s claims against Dixie Bottoms, the landlord, “[a] long line of cases in this Commonwealth hold that when a third person is injured on rented premises his cause of action, except for certain situations, lies against the tenant rather than the landlord.” Rogers v. Redmond, 727 S.W.2d 874, 875 (Ky. App. 1987). Consequently, summary judgment was correctly granted for any claims against Dixie.

In light of the above-stated reasons, the circuit court’s grant of summary judgment to all appellees in this case was warranted. Therefore, we AFFIRM.

From Thomas v. Bottoms

COA: December 22, 2017 Court of Appeals Decisions (Minutes)

Nos. 1051-1071 -- 18 Decisions Posted with 2 decisions designated for publication

PUBLISHED DECISIONS:

1054.  Declaratory Judgment.  Participation in County Employees Retirement System (CERS)
County Employees Retirement System v. Frontier Housing
Affirmed dismissal of motion to dismiss on sovereign immunity.

1066.  Torts.  duty of care.
Mitchell v. Commonwealth of Kentucky 
Affirmed dismissal of claim against state for escaped convict who was evading police and struck Mitchell.  The trial court concluded CTS did not have a special relationship with Brenda triggering a duty of care, and it was not foreseeable Mace would walk away from CTS, travel from Jefferson County to Floyd County, steal a car, and, while attempting to evade police in a high-speed car chase cause a collision with Brenda which would result in her death.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

1063.  Appeal.  Dismissed untimely notice of appeal.
Henderson v. Oliver

1065.  Torts.  Negligent supervision of children. Lays out elements etc. in case where child hit plaintiff in back of head with water balloon.
Thomas v. Bottoms

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12222017

Attorney Sidebar: Four things you need to be a good judge

James C. Chenault

To be a good judge, it takes four things: impeccable honesty willingness to work, a personality like people generally, and some knowledge of the law. If you go through your professional life devoted yourself to being a lawyer,er, if you devote yourself to the profession, you have a tremendous legal curiosity about all of it. In this coun we accept what the course do more than anyplace else in the world.

~ James C. Chenault
Kentucky Lawyers Speak, page 82.

COA: December 15, 2017 Court of Appeals Decisions (Minutes)

Nos. 1037 - 1053 -- 17 Decisions Posted with 3 decisions designated for publication

PUBLISHED DECISIONS:

1038.  Rule 11.  Affirmed trial court’s Rule 11 sanctions.
Large v. Oberson

1039.  Torts.  Defamation.  Affirmed summary judgment dismissing defamation  action .  No discovery.
National College of Kentucky, Inc. v. Wave Holdings, LLC

1045.  Negligent hiring/retention.  Higher standard for carriers.
Kendall v. Godbey

Since genuine issues of material fact exist as to whether Community Cab properly vetted Abukar prior to employing him, we hold that summary judgment was improperly granted and remand this matter to the trial court for a continuation of the litigation concerning the legal malpractice. In making this determination, we are proffering no opinion as to the ultimate result of the litigation but merely indicating that summary judgment was premature.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

1037.  Summary judgment and timing of discovery
Krohn v. Meuser

1044.  Affirmed dismissal of wrongful use of civil process.
The Getty Law Group v. Bowles, Rice, McDavid, Graff & Love

1046.  Tresspass.  Affirmed award of $19,402.22 in damages on claims of trespass to chattel and trespass to personal property.
Stanley v. Knuckles

1047.  Wrongful death claim when decedent fell into a septic tank sinkhole and died presented a host of issues from wrongful death, municipal immunity, independent contractor etc.
Estate of Dorothy Brown v. Louisville/Jefferson County Metropolitan Sewer District

1048.  Torts. Workplace sexual harassment, hostile work environment, and retaliatory discharge.
Gibson v. H&J Restaurants, LLC

1051.  Immunity and negligence claim against prison security officers.
Collins v.  Vandiver

1052.  Premises liability, immunity and schools.
Sergent v. Murphy

1053.  Claims of breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED)
Watson v. Jargoe Homes

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12152017

COA: December 8, 2017 Court of Appeals Decisions (Minutes)

Nos. 1024 - 1036 -- 13 Decisions Posted with 5 decisions designated for publication

PUBLISHED DECISIONS:

1026.  Oral trust and real property.
Bickett v. Cecil

1031.  Criminal Law.  Motion to suppress.  DNA. Discovery violations.
Terry v. Commonwealth of Kentucky 

1032.   Civil Procedure.  Torts.  Reversed & remanded default judgment for slip and fall at Campbell House in Lexington .
HP Hotel Management v. Layne

1035.  Workers Compensation.  Reversed and remanded ALJ decision that Overstreet’s permanent partial disability benefits terminate when he reaches normal old-age Social Security retirement age pursuant to Kentucky Revised Statute (KRS) 342.730(4)
Overstreet v. American Printing House for the Blind

1036.  Family Law.  Vacated DVO and remanded to family court for full evidentiary hearing.
Allen v. Gueltzow

Selected cases that were not designated for publication in tort, insurance and civil law. None.

None

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12082017

COA: December 1, 2017 Court of Appeals Decisions (Minutes)

Nos. 1010-2023 -- 24 Decisions Posted with 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

1012.  Criminal Law.  Giving a police officer a false name.
Stephenson v. Commonwealth of Kentucky

1014. Discrimination. Vacated and remanded trial judge improperly dismissing.  discrimination complaint.
Taylor v, Middleton Fire Protection District

Selected cases that were not designated for publication in tort, insurance and civil law. None.

1010.  Reversed default judgement.  Long arm statute, service by SOS.
Cemerlic v. Verralab JA LLC
Appealed order denying motion to set aside a default judgment. They argud they showed good cause to set aside the default judgment: they have a valid excuse for their default because they were not properly served by the Secretary of State and were unaware of the lawsuit, they have a meritorious defense and there is no prejudice. Reversed & remanded. Note that NO brief was filed by appellee, and Judge Acree filed dissent.

MNT12012017

Attorney Sidebar: Three Weapons of the Insurance Defense

Rick Friedman and Patrick Malone

The defense wields three weapons to defeat plaintiff’s cases that should be won:
*  Complexity
*  Confusion
*  Ambiguity

Complexity, confusion, and ambiguity are insidious enemies. They creep up when you are not looking. They rarely attack head on. They are particularly abundant and pernicious in complex cases such as insurance bad faith or medical malpractice. This is because both the facts and the jury instructions in these cases are often complex, confusing, and ambiguous. But these enemies appear in simple cases too.

Sometimes, complexity, confusion, and ambiguity are inherent in the case; other times, they proliferate due to conscious defense strategy of confounding the jury and judge with endless, and immaterial detail. In either event, you must defeat complexity, confusion, and ambiguity, or they will defeat you.

~ Rick Friedman and Patrick Malone, Rules of the Road, page 1-2.

These three descriptors are not new.  They have been known by other names, other phrases.  “Rabbit trails”, “smoke and mirrors”, “misleading”; and some have described the defense as “whack the weasel” to divert the opponent from the real issue.

The response of some was to “stay focused”, “keep your eye on the ball”, “don’t take the bait”, etc.  And although this appears to be aimed at those defending cases, the cloud of chaos and confusion is a maneuver available in any case to shroud the weakness, downplay the problem, deflect a counterpunch, waste time and divert resources.   When you take the bait, then there may be a critical issue that can get lost in the tall weeds.

To keep your eye on the ball, I suggest the often advised (but rarely implemented) admonition to draft your instructions early on.  No matter how many times you have tried the same type of case.  Back to basics and reexamining those elements, those statutory or regulatory duties, and more are how you prepare your order of battle and plan of attack or defense.

Experienced judges see and know this, and must keep the focus and watch out for endless motions, papering the case, and attempts to divert time and precious resources of the courts, the lawyers, and the litigants from seeking justice.  Some call a trial a chess game.  A trial is not a game, and it is too serious for those who want to play at it.