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.

Cause of Action: Premises Liability Open and Obvious Hazard Distinguished by COA for licensee (as opposed to invitee) (Klinglesmith vs. Estate of Reba Pottinger, COA, NPO 9/12/2014)

Klinglesmith vs. Esate of Reba Pottinger
Premises Liability.  Slip and Fall.  Licensee treated differently on open and obvious.
COA Not Published 9/12/2014; PJ Stumbo Affirming

[Although the issue of plaintiff’s failure to offer proof of causation was the basis to the lower court’s summary judgment and the Court of Appeals’ affirmance of the dismissal, Judge Stumbo in her opinion addressed a distinction on how open and obvious interplays with the landowner’s duties to an invitee (as in Shelton and McIntosh vs. a licensee in Klinglesmith.  This is why the case is noted under the topic causes of action.]

STUMBO, JUDGE: Stella Klinglesmith appeals from an Order of the Jefferson Circuit Court dismissing via Summary Judgment her personal injury action against the Estate of Reba Pottinger. Klinglesmith contends that the court erred in concluding that the open and notorious doctrine barred her recovery, and that she would be unable to demonstrate causation if the matter proceeded to trial.

As a basis for the Order granting Summary Judgment, the Court noted that Klinglesmith testified in her deposition that she did not observe any defect in the porch and was not sure why she fell. After discussing Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), and the exception to the open and obvious doctrine, the Court determined that Klinglesmith had over a year since the filing of this action to conduct discovery, and had not established that the condition of the porch was a substantial factor in causing her injury. The Court rendered Summary Judgment, and this appeal followed.

Klinglesmith contends that under Shelton, an open and obvious condition does not eliminate a landowner’s general duty to maintain premises in reasonably safe condition or the duty to warn of or eliminate unreasonably dangerous conditions, but, rather, is factor in determining whether landowner fulfilled his or her duty of care. Klinglesmith appears to contend that the Jefferson Circuit Court erred in absolving the Estate of liability because the defect in the

The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klinglesmith engage in an activity of the type that the owner conducts or permits to be conducted on his land.

Cause of Action. Kentucky is not a “direct action” state. Insurance company not proper defendant in wrongful death claim resulting in dismissal withOUT prejudice (Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co. COA, NPO 2/21/2014)

Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co
COA, NPO 2/21/2014 PJ Caperton Affirming in Part, Reversing in Part, and Remanding
Allen County
Affirmed dismissal of wrongful death claim (but without prejudice) asserted against insurer rather than insureds.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

CAPERTON, JUDGE: The Appellant, Dovie Moore, Administrator of the Estate of Peyton Spencer Green (hereinafter “Moore”), appeals the February 5, 2013, order of the Allen County Circuit Court, dismissing her wrongful death claimagainst the Appellee, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”). Upon review of the record, the arguments of the parties, and the applicable law, we affirm. However, because we also conclude that the dismissal should be without prejudice, we reverse that portion of the order and remand for entry of an order dismissing without prejudice.

Cause of Action: Discrimination Based Upon National Origin

John Charalambakis v. Asbury College
COA PUB 2/7/2014

THOMPSON, JUDGE: John Charalambakis, a former professor at Asbury College, sued for employment discrimination, breach of contract and defamation. Charalambakis appeals from summary judgment on his discrimination and retaliation claims, dismissal of his defamation claim, the jury verdict on breach of contract claim and the final judgment awarding costs. 

Charalambakis ‘ first claim is the trial court erred in granting summary judgment on his claim of discrimination on the basis of national origin. Under the KCRA it is unlawful for an employer to discharge, discriminate against or adversely affect an individual’s status as an employee because of that individual’s national origin. KRS 344.040(1)(a), (b). Kentucky interprets the KCRA consistently with Title VII of the Federal Civil Rights Act. American General Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688, 691 (Ky. 2002). To establish a prima facie case of discrimination, “[a] plaintiff must show that: (1) he is a member of a protected class; (2) he was terminated; (3) he was qualified for the position; and (4) he was replaced by a person outside a protected class or was treated differently than a similarly situated, non-protected employee.” Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 501 (6th Cir. 2007). A prima facie case of national origin discrimination can be established through direct evidence of discrimination or by establishing a circumstantial case raising an inference of discrimination pursuant to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

CAUSES of ACTION: Legal Negligence and “Suit within a suit” resolution of underlying premises liability claim moots legal negligence suit (Freeman vs. Becker Law Office)

Legal Malpractice, Premises Liability and “Suit Within a Suit”

Tonia Freeman vs. Becker Law Office, Kevin Renfro, Bubalo Heistand & Rotman, and Dianne E. Sonne
COA, Not Published 1/10/20014

This is a legal malpractice claim against a private organization operating from a government building at Fort Knox which was treated as a “suit within a suit”. After a jury rendered a verdict that the private organization (Toys for Tots) was not in possession of the premises where Tonia Freeman was an employee and received her injuries on a slip and fall, the legal negligence claim premised upon the premises liability basically went away.

Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc., 2011-SC-000554-DG, SC, Published 11/22/2013 – Open and Obvious Doctrine Buried

slipandfallA 4-3 decision announced this past week and authored by Chief Justice Minton should end nearly three years of parsing and quibbling over their earlier decision in Kentucky River Medical Center v. McIntosh,  319 S.W.3d 385 (Ky. 2010) which by many accounts marked the demise of the “open and obvious” doctrine in premises liability cases.  Well, “open and obvious” is gone, gone, gone, and its eulogy recognized in Justice Scott’s dissent in the following case.

The Supreme Court’s decision in Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc.2011-SC-000554-DG, should serve as a landmark in Kentucky jurisprudence not only on the limited issue presented in premises liability law but on the  historical power of the common law of the Commonwealth as a bulwark in the protection of the public’s right to be secure and safe and the duty of care owed to others and to  yourself. More importantly (and I may well be alone on this), but I see this decision also as a Magna Carta moment for Chief Justice Minton and the current court on our historical and constitutional right to a civil jury trial – a right that seems to have eroded in the wake of summary judgment expansion and the convenience of the courts to handle a docket of cases growing in complexity and number.

Let us not forget the judiciary is a separate and equal branch of our government.  And that the common law and the right to a jury trial in civil cases are part and parcel of the judiciary’s power.  The right to an independent jury goes back to the Trial of William Penn (aka Bushell’s Case) in 1670 and was echoed in the Trial of John Peter Zenger, and the authority of the common law stood as a check on the Crown.


As Chief Justice Minton noted in the last paragraph of his opinion:

We reverse the Court of Appeals and remand the case for further proceedings because Cardinal Hill had a duty to Shelton and there remains a question of material fact whether that duty was breached or not. The approach we embrace in this opinion brings Kentucky even further into the modern era of tort law and takes one more step in our journey toward a fairer system less burdened by vestiges of contributory negligence. We may walk slowly in the law, but we should never walk backward. 65 Perpetuating the confusion engendered by the open-and-obvious doctrine would be a step backward. 

Although I applaud this decision for looking forward and not retrenching from Justice Noble’s opinion written in McIntosh, I cannot help but feel sorrow for those claimants who  met the “resistance” and ultimately were denied compensation or at least a chance to be heard on their claims following the remand of their cases the post-McIntosh remands but before Shelton.

Here is a brief summary of Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc.:

Cause of Action: Negligent Hiring, Training and Supervision (Carberry v. Golden Hawk Transportation, COA, PUB 6/21/2013)

COA.Neg.HiringCarberry vs. Golden Hawk Transportation Co.
COA, PUB 6/21/2013

Citing the Flor-Shin two-prong test for negligent hiring and retention:

Flor-Shin identifies the two elements necessary to prove a claim of negligent hiring and retention—an unfit applicant for a particular job and creation of an unreasonable risk of harm by the hiring of that applicant.

In Flor-Shin, an award of summary judgment to a floor maintenance company was vacated because it had hired and placed William Bayes, a man with an extensive criminal record,10 inside a locked K-Mart store with a single female employee whom he sexually assaulted. Here, we agree with the trial court’s application of Flor-Shin and its award of summary judgment. Ivey was hired as a truck driver. A check of his driving history, as required by 49 CFR § 391.25, revealed a few driving violations over a lengthy career but not enough to make him unfit to handle a big rig. Unlike Bayes in Flor-Shin, Ivey’s job with Golden Hawk did not place him alone in an enclosed space with the public and definitely not with Carberry. The attack occurred in the open and in public view..

On the allegation of negligent training and supervision, an employer may be held liable for the negligent supervision of its employees “only if he or she knew or had reason to know of the risk that the employment created.” Booker, 350 F.3d at 517 (quoting Restatement (Second) of Agency § 213 (1958) (Comment & Illustrations)); see also Smith v. Isaacs, 777 S.W.2d 912, 914 (Ky. 1989). On the strength of VanBuskirk’s affidavit, the trial court found Golden Hawk had no reason to suspect Ivey would commit an assault while on the job and went on to find Ivey “acted so outside the normal scope of employment that no reasonable amount of training or supervision could have prevented the attack.” On the facts presented, we agree. The meeting between Sexton, Carberry and Ivey occurred unbeknownst to Golden Hawk and was not in furtherance of Golden Hawk’s business interests. We see no basis upon which Carberry could succeed on a claim of negligent training and supervision.

In Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946), a commercial bus driver stopped his vehicle, alighted and assaulted another motorist. Wood’s attempt to recover damages for the assault from the bus line was thwarted because: the master is liable only for the acts of his servant committed in the course or scope of the latter’s employment and not for the acts of the servant committed by him while not serving the master and outside of the scope of his employment. Hines v. Wall, 194 Ky. 379, 239 S.W. 451. Wood, 302 Ky. at 113, 194 S.W.2d at 82. Just as the bus driver in Wood did not assault the other driver in furtherance of the bus company’s interests, Ivey did not assault Carberry in furtherance of Golden Hawk’s interests. Therefore, the trial court’s order awarding summary judgment to Golden Hawk is affirmed.

Causes of Action: Premises Liability – Licensee vs. Invitee

caution wet floor

The following not to be published decision from the Court of Appeals addresses the duties owed to a licensee vs. an invitee and how the distinction made a difference to the plumber whose suit was dismissed and affirmed on appeal.

Rozeboom vs. Hugh Jass Burgers LLC
COA NPO 6/28/2013

TAYLOR, JUDGE: Wes Rozeboom brings this appeal from an April 3, 2012, summary judgment of the Fayette Circuit Court dismissing Rozeboom’s premises liability action against Hugh Jass Burgers, LLC. We affirm.

Rozeboom asked permission from the manager of Hugh Jass Burgers to enter the restaurant and repair the waterline for The manager of Hugh Jass Burgers gave Rozeboom permission to enter the restaurant. On the day of the accident, Rozeboom entered the restaurant at approximately 8:00 a.m., before the restaurant opened to the public. After working for several hours, Rozeboom started removing his tools from the restaurant, and after a couple of trips, he slipped on a greasy spot on the floor and fell, causing a fracture to his tibial plateau.

Rozeboom contends that the circuit court improperly rendered summary judgment by dismissing his premises liability claim against Hugh Jass Burgers. In particular, Rozeboom claims that he was an invitee at the time of his injury as his work also benefited Hugh Jass Burgers. Rozeboom believes the circuit court erroneously concluded that he was a licensee or independent contractor at the time of his injury.

The resolution of this appeal revolves solely upon the issue of whether Rozeboom was an invitee at the time of his injury. Rozeboom believes he was an invitee; conversely, Hugh Jass Burgers argues he was not an invitee but rather was a licensee. For the following reasons, we conclude that Rozeboom was a licensee and was not an invitee.

In this Commonwealth, an individual is considered an invitee if:

(1) he enters by invitation, express or implied, (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner.

West v. KKI, LLC, 300 S.W.3d 184,190 (Ky. App. 2008) (quoting Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 491-92 (Ky. App. 1999)).

Therefore, to constitute an invitee, it must be initially determined whether the individual entered the premises upon the invitation of the landowner. Such invitation may be either expressed or implied. Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870 (1942). An express invitation normally occurs through the verbal language of a landowner, and an implied invitation occurs when:

[T]he owner or occupant does something or permits something to be done which fairly and reasonably indicates to the person entering the premises, that his presence is consistent with the intentions and purposes of the occupant, and leads the one entering to believe that the use is in accordance with the design or purpose for which the place is adapted, and to be used in mutuality of interests.

Shoffner, 166 S.W.2d at 873. By contrast, an individual who enters the premises upon the mere permission of a landowner is considered a licensee. The distinction between invitation or permission of a landowner is pivotal to the determination of the status of the entrant. This distinction has been eruditely explained:

[A]n invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. . . .

Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee, as stated in § 330; but it does not make him an invitee, even where his purpose in entering concerns the business of the possessor. . . .

Restatement (Second) of Torts § 332 cmt. b (1965).

In the case at hand, Rozeboom asked permission to enter the restaurant for the sole purpose of repairing a leaky pipe for For this limited purpose, the manager of Hugh Jass Burgers consented to Rozeboom’s entry. Rozeboom was not employed by Hugh Jass Burgers and performed no repairs at the behest of Hugh Jass Burgers. Additionally, Rozeboom entered the restaurant at 8:00 a.m., well before it opened to the general public and did not dine at the restaurant.

From these facts, it is clear that Rozeboom did not enter the restaurant upon the express or implied invitation of Hugh Jass Burgers. Rather, the manager of the restaurant merely gave Rozeboom permission to enter the restaurant if he desired to do so. And, the mere fact that Rozeboom’s entry may have indirectly benefited Hugh Jass Burgers does not equate to an implied invitation under the particular facts herein. Simply stated, the undisputed facts indicate that Rozeboom’s entry into the restaurant was the direct result of his own insistence for the benefit of and was not at the express or implied invitation of Hugh Jass Burgers. Thus, we conclude that by entering the restaurant by request and upon the permission of the manager of the restaurant, Rozeboom was legally a licensee at the time he suffered his injury.

Accordingly, being a licensee at the time of his injury, the circuit court properly rendered summary judgment dismissing Rozeboom’s premises liability action against Hugh Jass Burgers, LLC.

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

Negligent or defective restraints system aka seat belt (Nissan Motor Company, LTD vs. Amanda Maddox. Pub. COA 8/30/2013)

Seat Belt claim:

Negligent restraint system.
Nissan Motor Company, LTD  vs. Amanda Maddox
Published.  8/30/2013.  Lincoln County (J. Tapp).

COMBS, JUDGE: Nissan Motor Company, Ltd., and Nissan North America, Inc., (collectively, “Nissan”) appeal the judgment of the Lincoln Circuit Court which held them liable for injuries sustained by Amanda Maddox (now Gifford). After our review, we affirm.

Amanda asked the jury to determine that Nissan had designed the Pathfinder to provide maximum protection for the 50th percentile dummy while neglecting the safety of larger occupants. She claimed that Nissan merely wanted to achieve the five-star rating in order to be more appealing to consumers. She also pointed out that while Nissan consistently touted the safety of the load limiter in the seatbelt, the back seatbelts do not have load limiters, and crash tests are not performed on back seat occupants. Amanda also cited weaknesses in the testimony of Nissan’s witnesses, such as a lack of analysis of her collapsed seat. After our review of the full record and pertinent authorities, we are not persuaded that the verdict was unsupported by the evidence or that it was a result of passion. Thus, we affirm the denial of the motion for a directed verdict.

Plaintiffs in a products liability action may plead negligence claims based on one of three theories: 1) design defect; 2) manufacturing defect; or 3) failure to warn. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 251 (Ky. 1995). Amanda presented both a failure-to-warn theory and a design-defect claim. Although the jury needed to find against Nissan according to only one theory in order to find it liable, it determined that Nissan was liable under both theories. See Martin v. Ohio County Hospital Corp., 295 S.W.3d 104, 115-16 (Ky. 2009).

Three elements are necessary to prove a crashworthiness claim:

(1) an alternative safer design, practical under the circumstances;

(2) proof of what injuries, if any, would have resulted had the alternative, safer design been used; and

(3) some method of establishing the extent of enhanced injuries attributable to the defective design.

Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 41 (Ky. 2004).

CAUSATION: “Substantial factor” and causation of harm in negligence cases (Moloney v. Becker, COA, PUB 4/12/2013)

The Court of Appeals addresses causation and substantial factor in making the link from negligence to harm:


VANMETER, JUDGE: The Estate of Mabel C. Moloney (“Estate”) appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate’s motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm. ***

Causation is a question of fact when “‘the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.’” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003) (citation omitted). In a negligence case such as this one, “the jury resolves any conflicts in the testimony and also any conflicts in the reasonable inferences to be drawn from the testimony[.]” Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 385 (Ky. 1985) (citations omitted).

Kentucky has adopted the “substantial factor” test to establish causation, which was explained in Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980), as follows:

“In order to be a legal cause of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent. (T)his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff’s harm.

The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called ‘philosophic sense,’ yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.”

Id. at 144 (quoting Restatement of Torts, Second sec. 431, Comment a.) In determining whether an event is a substantial factor in causing an injury, courts should consider:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.
Restatement (Second) of Torts § 433 (1965).

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