Case Notes: Watch out for the 1 year Statute of Limitations and Premises Liability – Landel vs. The Kroger Company (COA NPO 1/16/2015)

Not actual parking lot in this case.  Used solely for illustrative purposes.

Not actual parking lot in this case. Used solely for illustrative purposes.

The one-year state of limitations for most torts may be the law, and may work in many cases, but it can be way too short in this era of trying to figure out who the proper party is in this complex world of hide the ball from the Plaintiff.  The recent Court of Appeals’ decision in Landel vs. Krogers out of Russell County demonstrates this in relationship to whose parking lot is it anyway.

In this case, Vickie Landel was a Kroger customer who fell and injured herself in the parking lot.  She filed suit against Krogers since it was the parking lot outside of the Krogers’ store.  She fell on March 10, 2011, and filed her original complaint on November 2, 2011, but sought to amend the complaint to add the shopping center on March 21, 2012 – just eleven days after the one year anniversary and the expiration of the statute of limitation.  The shopping center obtained summary judgment dismissing the complaint against it for untimely filing (SOL), and Krogers obtained a dismissal of the complaint since it had no duty over the parking lot.

The plaintiff Landel claimed she did not know the identity of the shopping center, but Krogers had notified her by letter that the shopping center was responsible and provided her a copy of the lease.

Before discussing the issue of tolling as raised by the plaintiff in this case, let us take a look at some lessons to be learned in this case and those of a similar nature.

The identity of the “real” plaintiff can be difficult in the commercial context, and the identification of the real party can be fatal.  Most Krogers’ stores, however, have the actual name of the owner of the store location in black letters on the window near the door.  The name of the entity can be confirmed at the Secretary of State for the proper name for the style and the proper person for service.  However, this does not get you past possible problems, such as a the dangerous condition of the floor was the work of a vendor (eg., the Brown Hotel case and indemnity), or the mats were placed and cleaned by a contractor, or as in this case the parking lot is not the store’s responsibiilty.    The solution, unfortunately, is “fast filing with fast followup” since delay and deny and do nothing by the defendant does not inure a benefit to the plaintiff.

Some useful techniques for getting around this improperly denominated party defendant are:  correcting a misnomer “, and CR 15.03 involving relation back of amendments (eg., nexus between corporations and/or subsidiaries and the relating back (An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03. party relates back.”  Within this context, I would have suspected that Krogers would have notified it lessor of the lawsuit (and thus notice under 15.03(2)(a) who would have know from the filing of the original complaint that they/shopping center would have been the proper party.

However, these outs are not an adequate solution to what I believe are the real problems: a. who they are may not be who you think they are with a name hidden in corporate names, agreements; and b. the insurer/insured may not be forthright about the correct identity of the responsible party (delay has its benefits, especially as the statute’s expiration approaches; and c. the  one-year is just too darn short when you have ten years for written contracts with the defendant usually self-evident, but with defective products made in China and distributed under other’s names).

The solution? Some are file soon, notice the corporate-representative for his/her deposition per CR 30.02(6).  The better solution is a longer statute of limitations with an easier tolling/relation back doctrine to avoid hide the ball and to allow the potential of resolving these cases short of suit.  One year.  Seriously!

For other posts on this blog about the statute of limitations, click here.

COA: Jan. 16, 2014 Court of Appeals Decisions (Minutes) (33-50 with 2 published)(civil service retirement at divorce; modification of timesharing of child): TORTS: (class action attorney fees and common fund; failure to timely add parties and SOL)

Selfie of Michael Stevens using iPhone.   ;-)

Selfie of Michael Stevens using iPhone. 😉

I would like to take this time to thank each of you for your support and encouragement these past years.  We are going to have a great 2015.

The Kentucky Court of Appeals announced 18 decisions  on January 16, 2015, with 2 opinions designated to be published.

The two published cases are:

40.  Divorce. Division of state civil service retirement
Richard F. Brown vs. Lisa G. Brown
COA Published 1/16/2015
Affirming (Franklin County)

JONES, JUDGE: This matter is on appeal from an order of the Franklin Circuit Court awarding Appellee Lisa G. Brown (now Robinson), a pro-rata share of Appellant Richard F. Brown’s gross monthly annuity under the Civil Service Retirement System. On appeal, Richard argues that the circuit court erred as a matter of law because its award to Lisa included cost-of-living adjustments (“COLAs”) that Richard’s civil retirement account received after the parties divorced. For the reasons more fully explained below, we AFFIRM.

42.  Family Law.  Modification of timesharing with son
Cory Hoskins vs. Melissa Hoskins (now Brown)
COA Published 1/16/2015
Opinion Reversing and Remanding (Morgan County)

THOMPSON, JUDGE: Cory David Hoskins appeals from an order of the Morgan Circuit Court modifying timesharing with his son. He contends the trial court erroneously considered the report of a guardian ad litem (GAL) appointed by the court when modifying the parties’ timesharing arrangement. Based on our Supreme Court’s recent clarification of the role of GAL’s in domestic child custody and visitation matters, we reverse and remand.

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

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