Aug. 10, 2012 COA Minutes — Nos. 692-719 (28 decisions; 3 Published)

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PUBLISHED DECISIONS OF COA:

697.  CHILD SUPPORT.  INTERVENTION BY COMMONWEALTH.
BOGGS (MARTHA)
VS.
COMMONWEALTH OF KENTUCKY, ET AL.
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001401-MR
TO BE PUBLISHED
KENTON

ACREE, CHIEF JUDGE: Martha Boggs appeals an order of the Kenton Family Court overruling her motion to vacate a previous order of child support. Finding the Commonwealth did not properly intervene in the action, we conclude the motion to set child support was ineffectual, and we vacate and remand.

712.  TORTS.  DRAM SHOP/COMMON LAW CLAIMS/LANDLORD LIABILITY.
CARRUTHERS (MONICA)
VS.
EDWARDS (MAX), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND STUMBO (CONCURS)
2011-CA-001612-MR
TO BE PUBLISHED
MCCRACKEN

ACREE, CHIEF JUDGE: Appellant Monica Carruthers was injured when Lucas Watson, a patron of Foolish Heart, Inc., d/b/a/ Froggy’s Sports Bar, purportedly drove his vehicle while intoxicated, striking Carruthers in Foolish Heart’s parking lot. Carruthers filed suit against several individuals, including Appellees Max and Lois Ann Edwards, the owners of the premises on which Foolish Heart is located. The issue in the case before us may be summarized as this: what liability can be imputed to an owner of real property, on which a bar or similar establishment is operated by a tenant, when a patron of that bar consumes alcohol and, thereafter, drives a motor vehicle causing injury or death to a third party? Following a careful review, we affirm the McCracken Circuit Court’s July 28, 2011 order granting the Appellees’ motion to dismiss Carruthers’ complaint for failing to state a claim upon which relief may be granted.

DRAM SHOP:

We first address whether Carruthers’ complaint stated a valid claim under the Dram Shop Act against the Appellees. Kentucky’s Dram Shop Act, KRS 413.241, provides, in pertinent part:

(1) The General Assembly finds and declares that the consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person.

(2) [N]o person holding a permit under KRS 243.030, 243.040, 243.050, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person . . . for any injury suffered off the premises . . . because of the intoxication of the person to whom the intoxicating beverages were sold or served, unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.

The parties first dispute the continuing validity of the Dram Shop Act following this Court’s recent opinion Taylor v. King, 345 S.W.3d 237 (Ky. App. 2010). In Taylor, this Court declared unconstitutional KRS 413.241’s provision governing proximate cause “to the extent it would prevent a fact-finder from determining whether an injury was a foreseeable consequence of a dram shop’s improper service of alcohol.” Id. at 244. In so doing, we explained “the legislative finding regarding proximate causation in KRS 413.241(1) intrudes upon the fact- finding role of the courts[.]” Id. at 243. Accordingly, in light of Taylor, KRS 431.241(1)’s presumption or imputation of proximate cause no longer exists. Id.

In sum, while Taylor struck down as unconstitutional the presumption of proximate cause codified in KRS 423.241(1), it neither addressed nor held the remainder of KRS 413.241 unconstitutional. 345 S.W.3d at 244. Dram shop liability – under specifically delineated circumstances – still exists in this Commonwealth, as does the statutory limitation on liability. See KRS 413.241(2).

Carruthers next argues that if the circuit court based its order dismissing her complaint on the Dram Shop Act, the order is erroneous as a matter of law and must be reversed because, in Carruthers’ view, she asserted a valid Dram Shop Act claim against the Appellees. We disagree because Carruthers’ complaint cannot be read as asserting such a claim under the Dram Shop Act against these Appellees.

The statute addresses two types of persons: a dram shop (and its servers) who serve alcohol to an intoxicated person, and the intoxicated person the dram shop serves. KRS 423.241(2). It does not create or comment upon the liability of a third-party who fits neither description. Although Appellees run their own dram shop, they served no alcohol to Watson. We conclude that no purpose intended by our Legislature’s passage of the Dram Shop Act would be served by imposing liability upon a lessor who simply holds title to property on which his properly licensed lessee engages in the regulated sale of intoxicating liquors. See Robinson v. Walker, 211 N.E.2d 488, 491 (Ill. App. 1965). Therefore, the complaint failed to state a claim based upon the Dram Shop Act.

COMMON LAW:

Carruthers asserts in her brief that, “because the allegations in the Complaint must be taken as true, it must be accepted that the Edwards were personally involved in the operation of [Foolish Heart d/b/a] Froggy’s.” We have carefully read the claim against the Appellees, including those other portions of the complaint incorporated by reference, and we do not agree. The relationship between Appellees and Foolish Heart was that between lessor and lessee. There is no reasonable reading of the complaint that asserts any further connection, by contract or conduct, indicating that the Appellees had any say whatsoever in the operation of Froggy’s. If a common law claim upon which relief can be granted against Appellees exists, it must be based either: (1) upon their status as owners of the premises, or (2) upon their own negligence.

We find no common law claim based on Appellees’ status as owners of the premises.

“It cannot be disputed that as a general rule the landlord is not liable for the negligent acts of his tenant.” Green v. Asher Coal Min. Co., 377 S.W.2d 68, 69 (Ky. 1964). However, there are exceptions to the general rule. These exceptions “arise in those cases where the condition or use of the premises is so potentially harmful that the courts will not permit the owner to hide behind a lease.” Asher Coal, 377 S.W.2d at 70. Kentucky courts have never determined that, by their nature, establishments serving intoxicating beverages pursuant to a license issued and regulated by the Commonwealth are “so potentially harmful.” Id.; Taylor, 345 S.W.3d at 240.

Although Carruthers does not cite Restatement (Second) of Torts § 379A, we believe her asserted claim is most consistent with that section. Kentucky has not embraced the articulation of the tort described in § 379A4, though it is consistent with Asher Coal.

717.  FAMILY LAW. CHILD CARE EXPENSES.
NOSARZEWSKI (MARTA)
VS.
NOSARZEWSKI (ANDRZEJ)
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
COMBS (CONCURS) AND VANMETER (CONCURS)
2011-CA-002148-ME
TO BE PUBLISHED
FAYETTE

DIXON, JUDGE: Marta Nosarzewski (Mother) appeals, pro se, from a judgment of the Fayette Circuit Court awarding $10,828.61 to Andrzej Nosarzewski (Father) for the overpayment of child care expenses. Finding no error, we affirm.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED: 

See, above – Carruthers v. Edwards, 8/10/2012, Pub. COA, re dram shop, and claims re landlord liability and common law negligence the dismissals of which were affirmed by COA.

NOT PUBLISHED:

699.  TORTS. AUTOMOBILE ACCIDENT. CLOSING ARGUMENTS.  EVIDENCE OF MINOR PROPERTY DAMAGE AND PRIOR PERSONAL INJURY LAWSUIT OF PLAINTIFF.
WASHINGTON (MARCEL)
VS.
DELAFIELD (JESSICA L.)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
CAPERTON (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION) AND ACREE (CONCURS)
2010-CA-001920-MR
2010-CA-001987-MR
NOT TO BE PUBLISHED
FAYETTE

VANMETER, JUDGE: The Appellant, Marcel Washington, appeals from the Fayette Circuit Court judgment which directed a verdict against Appellee and Cross-Appellant, Jessica Delafield, following a jury trial in this motor vehicle collision case. Despite the directed verdict, the jury awarded no damages to Washington. On appeal, Washington argues that the trial court erred in permitting improper closing arguments, allowing photos showing vehicular damage into evidence, and allowing impeachment with collateral matters. Delafield cross- appeals the trial court’s order directing a verdict on the issue of her liability, as well as bench rulings excluding mention of Washington’s prior personal injury claims and lawsuits. Upon review of the arguments of the parties, the record, and the applicable law, we affirm.

705.  TORTS. LIBEL.
FLINT (EDWARD H.)
VS.
MARX (GERALD), ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
CLAYTON (CONCURS) AND STUMBO (CONCURS)
2011-CA-001057-MR
NOT TO BE PUBLISHED
JEFFERSON

TAYLOR, JUDGE: Edward H. Flint, pro se, appeals from the Jefferson Circuit Court’s grant of summary judgment as to his complaint of libel per se against Gerald Marx. He also presents a number of other issues for our consideration. After careful review, we affirm.

707.  TORTS. GOVERNMENTAL CLAIMS. STATUTE OF LIMITATIONS.
GRANT (TEREMUS)
VS.
WARREN COUNTY, ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
DIXON (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001324-MR
NOT TO BE PUBLISHED
WARREN

DIXON, JUDGE: Appellant, Teremus Grant, appeals pro se from orders of the Warren Circuit Court dismissing his personal injury action against the City of Bowling Green and Warren County. For the reasons set forth herein, we affirm in part, reverse in part and remand.

As a general rule, a party is not permitted to raise an issue for the first time on appeal. “The Court of Appeals is one of review and is not to be approached as a second opportunity to be heard as a trial court. An issue not timely raised before the circuit court cannot be considered as a new argument before this Court.” Lawrence v. Risen, 598 S.W.2d 474, 476 (Ky. App. 1980). However, there are circumstances where unpreserved issues may be raised, such as in situations addressing subject-matter jurisdiction. See Hisle v. Lexington– Fayette Urban County Gov’t, 258 S.W.3d 422, 430–31 (Ky. App. 2008) (because subject-matter jurisdiction concerns the nature and origin of a court’s power to act, it may not be waived and may be raised at any time in the proceeding). While Kentucky has not directly addressed this point, it has been stated in the federal context that sovereign immunity is a type of subject-matter jurisdiction. F.D.I.C. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Nevertheless, because of the circumstances by which Appellant’s claim against the County was dismissed, we decline to review the matter herein and believe it is best remanded to the lower court for proper consideration of the merits of the County’s motion to dismiss.

713.  TORTS.  PREMISES LIABILITY. DISMISSAL AFFIRMED (POST MCINTOSH OPEN AND OBVIOUS ISSUE)
RESNICK (ROBERT), ET AL.
VS.
PATTERSON (CHARLES OMER)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS IN RESULT ONLY) AND CAPERTON (CONCURS)
2011-CA-001657-MR
NOT TO BE PUBLISHED
BULLITT

LAMBERT, JUDGE: Robert Resnick appeals from the August 15, 2011, order of the Bullitt Circuit Court entering summary judgment in favor of Charles Patterson. After careful review, we affirm.

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