April 13, 2012 COA Minutes — Nos. 334-349 (16 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

335. REAL PROPERTY.
CARRIER (REGINA S.), ET AL.
VS.
KIRCHHEIMER (SHEILA T.), ET AL.
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
STUMBO ( CONCURS) AND LAMBERT (CONCURS)
2009-CA-002163-MR
TO BE PUBLISHED
BRECKINRIDGE

TAYLOR, CHIEF JUDGE: Regina S. Carrier and Carl Wayne Carrier bring this appeal from an October 21, 2009, Findings of Fact, Conclusions of Law, and Judgment of the Breckinridge Circuit Court adjudicating a petition for declaration of rights involving certain real property. Kentucky Revised Statutes (KRS) 418.040. We reverse and remand.

This matter was heard by the circuit court without a jury, and the circuit court entered written findings of fact and conclusions of law in compliance with Kentucky Rules of Civil Procedure (CR) 52.04. The circuit court concluded that Sandy Beach Lane was a private road for the sole use and benefit of lot owners in Sandy Beach Subdivision. The court also held that the one-foot strip was restricted in use and could not be utilized by lot owners of either Sandy Beach II or Taylor’s Landing to access Sandy Beach Lane. This appeal follows.

In the case sub judice, it is uncontroverted that no written or recorded instrument evidencing a restriction of use upon the one-foot strip is found in the record. Rather, the only evidence demonstrating the existence or terms of such restriction consisted of merely oral testimony. Under these facts, any purported restriction on the one-foot strip is presently unenforceable against the Carriers as no such restriction was recorded within the property’s chain of title.15 See Oliver, 885 S.W.2d 699.

In sum, we hold that Sandy Beach Lane is a public roadway and that the one-foot strip of land is not restricted in use.

For the foregoing reasons, the Findings of Fact, Conclusions of Law, and Judgment of the Breckinridge Circuit Court is reversed and this case is remanded for further proceedings consistent with this opinion.

345. MEDICAL NEGLIGENCE. DAMAGES (INCREASED LIKELIHOOD OF FUTURE COMPLICATIONS)
GILL (PAULA K.)
VS.
BURRESS (SUSAN M.)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000332-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: Paula K. Gill, D.M.D., appeals a summary judgment entered by the Fayette Circuit Court in favor of Susan M. Burress, M.D., after the circuit court determined that Burress conclusively proved that Gill would be unable to establish damages arising out of Burress’s alleged professional negligence in failing to detect a mass in Gill’s breast consistent with ductal carcinoma for a period of approximately eighteen months. We find that issues of material fact exist relating to certain elements of damage properly recoverable by Gill, but that other damages claimed by Gill are not recoverable in this case as a matter of law. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

We begin our analysis by identifying Gill’s injury. Gill has had cancer. Burress makes the point in her brief of stating that her negligence, if any, did not cause the cancer. Gill argues, however, that she can prove that the virulent and life-threatening effect of the disease has been exacerbated by Burress’s negligent treatment and diagnosis. Specifically, Gill alleges that due to Burress’s negligence, her tumor grew unchecked for a period of approximately eighteen months and required stronger and more expensive treatment to cure.

In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)

A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.

As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).

As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).

348. WORKERS COMPENSATION
DALLAS NATIONAL INSURANCE COMPANY
VS.
BOARD (JEFFREY), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2011-CA-001645-WC
TO BE PUBLISHED
WORKERS’ COMP

THOMPSON, JUDGE: Dallas National Insurance Company appeals from an opinion and order of the Workers’ Compensation Board affirming the decision of the Administrative Law Judge (ALJ) awarding permanent total disability benefits to Jeffrey Board and assessing sanctions pursuant to KRS 342.310. Dallas presents four issues: (1) whether Dallas provided insurance coverage to Bruce Stull, D/B/A J.B.T. Trucking (Stull), Board’s employer; (2) whether Kentucky had jurisdiction over Board’s claim; (3) whether Board was entitled to permanent total disability benefits; and (4) whether sanctions were appropriate. We conclude there was no error and affirm.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

SEE, GILL V. BURRIS ABOVE RE MEDICAL NEGLIGENCE AND DAMAGES.

346. TORTS. PREMISES LIABILITY (LANDLORD-TENANT)
MARTIN (LATASHA)
VS.
MOORE (JEFF)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000376-MR
NOT TO BE PUBLISHED
FAYETTE

KELLER, JUDGE: Appellant Latasha Martin appeals from the Fayette Circuit Court’s entry of summary judgment in favor of Appellee Jeff Moore. Appellant filed a premises liability action after falling down a staircase in a residence owned by Appellee and breaking her ankle. After careful review, we conclude that the trial court’s grant of summary judgment was appropriate. Thus, we affirm.

The law governing landlord-tenant liability in a case such as this is well established and agreed upon by the parties. “[A] landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection.” Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979); see also Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 775 (Ky. App. 2000). However, “[i]t has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein.” Milby, 580 S.W.2d at 728. Moreover, “the landlord is under no implied obligation to repair the demised premises in the absence of a contract to that effect, nor is he responsible to a tenant for injuries to persons or property caused by defects therein, where there has been no reservation on the part of the landlord of any portion of the rented premises.3 In such cases the law applies to the contract or lease the doctrine of caveat emptor.” Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751, 751 (1920); see also Lambert, 37 S.W.3d at 775-76. Thus, “[w]here the tenant is put in complete and unrestricted possession and control of the premises, as here, the landlord is liable only for the failure to disclose known latent defects at the time the tenant leases the premises.” Lambert, 37 S.W.3d at 776; see also Carver v. Howard, 280 S.W.2d 708, 711 (Ky. 1955).

Knowledge of a patent defect does not necessarily give rise to constructive notice to search for latent defects.

“The latent defect must be known; it is not required by any precedent to be intuited.” Schneder v. Erdman, 752 S.W.2d 789, 791 (Ky. App. 1988).

Although Appellant fails to support her assertion that a step gave way beneath her with anything beyond her own testimony, the parties do not dispute that if the step was actually defective, such a defect would be latent since it could not be readily seen or observed. The record plainly shows that Appellee was unaware of such a defect and Appellant has failed to present adequate proof showing otherwise. Therefore, summary judgment was appropriate.5

For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.

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