Standard of Care and Negligence Per Se (Moloney vs. Becker, COA, PUB, 4/19/2013)

The published decision by the Court of Appeals in Moloney vs. Becker is just chock full of stuff.  In addition to the standard of review law on motions for JNOV and directed verdict, we have a little legal rif on negligence per se and the “standard of care”.


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. ***

A claim of negligence per se merely substitutes the common law standard of care with a statutory standard of care. Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. App. 2008) (quoting Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 926-27 (Ky. 1994)). Whether John violated his common law standard of care or the statutorily-imposed standard of care found in KRS 524.130 is immaterial since “the violation ‘must be a substantial factor in causing the result.’” Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999) (quoting Britton v. Wooten, 817 S.W.2d 443, 447 (Ky. 1991)). The issue in the underlying case is whether substantial evidence supported the jury’s finding that John’s negligence was not a substantial factor in causing an injury to the Estate. Thus, the Estate’s argument that John’s actions violated KRS 542.130 is not germane to the issue.

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Legal malpractice, assignment of claim, real party in interest: Davis v. Scott, COA, NPO 3/8/2013

247.  Legal Malpractice, assignments and real party in interest; tolling of the statute of limitations.
Davis vs. Scott, Hardin County
COA, Not Published, 3/8/2013

NICKELL, JUDGE: Tim Davis and Tim Davis & Associates, Inc. (collectively “Davis”) appeal from the February 21, 2011, order of the Hardin Circuit Court that denied Davis’s motion to alter, amend, or vacate the Court’s previous order dismissing, without prejudice, Davis’s legal malpractice lawsuit, Action No. 05- CI-00800 (“first action”), against John J. Scott and Whitlow & Scott (collectively “Scott”). Davis also appeals from the February 21, 2011, order of the Hardin Circuit Court that dismissed, with prejudice, Davis’s second legal malpractice lawsuit against Scott, Action No. 10-CI-002530 (“second action”). We reverse the trial court’s order in the first action and remand for further proceedings. We affirm the trial court’s dismissal of the second action.

This case involved an assignment of a legal malpractice claim with SCOKY ruling in the first appeal that “If an assignment is invalid or incomplete, the assignor may still maintain a suit in his or her name. Thus it would follow that Davis can pursue his malpractice claim as the real party in interest, as opposed to simply a nominal plaintiff.”  Davis v. Scott, 320 S.W.3d 87, 92 (Ky.  2010).

Our best understanding of the Supreme Court’s intention is that Davis should be permitted to pursue the first action by showing the assignment no longer exists and he is the real party in interest. There is no disagreement that, by order of the United States District Court, Middle District of Tennessee, the assignment no longer exists. The question thus becomes: how can Davis successfully show that he is now the real party in interest?

Upon concluding that an assignment had occurred between Davis and Global, the Supreme Court cited numerous factors that together established Davis was not the real party in interest. In particular, the Court noted:

Global selected and retained Davis’s counsel in the malpractice action and bore the financial responsibility for the cost of suing Scott. Because Davis is obligated to bring the action, he may not withdraw the suit. Davis is not permitted to settle the malpractice claim without Global’s express written consent. Davis agreed to share privileged, attorney-client information with Global. Global retained control over the initiation, continuation and/or dismissal of the malpractice claim.

Davis, 320 S.W.3d at 91. Therefore, if Davis can show these factors are no longer present, Global is in no other way involved in the legal proceedings, and Global no longer retains an interest in the outcome of the lawsuit, he succeeds in showing he is the real party in interest and the first action is thus no longer tainted. Upon these showings, the lawsuit should continue. However, if he is unable to prove to the trial court that he is, in fact, the real party in interest, then the order denying Davis’s motion to alter, amend, or vacate its previous order dismissing the case was appropriate.

For the foregoing reasons, the February 21, 2011, order dismissing Action No. 10-CI-002530 is affirmed. Additionally, the February 21, 2011, order of the Hardin Circuit Court denying Davis’s motion to alter, amend, or vacate in Action No. 05-CI-00800 is reversed and remanded for additional proceedings consistent with this Opinion.


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Another page of links added! Causes of Action (Elements)!

Another page of useful links to useful posts has been aggregated.  We already have a category for Defenses and Cause of Action.

But the categories simply list all the posts that have been tagged with that category.  However, these two ages are indexed to those pages which provides a little more utility for the user.

The “Pages” are in the right column.  Just scroll down till you find them.



LAMBERT, SENIOR JUDGE: Cody Martin appeals from a summary judgment of the Jefferson Circuit Court holding that Keith Elkins breached no duty under Kentucky law by allowing his son to host a party at his residence where alcoholwas consumed by teenagers. On appeal, Martin argues that the Jefferson Circuit Court erred in its decision.

Thus, the trial court was correct in granting summary judgment. As has oft been stated, the proper purpose of a summary judgment “is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor[.]” Id. at 503.

Accordingly, we affirm the Jefferson Circuit Court.


The question presented here is whether a social host owes a duty to underage guests who consume alcoholic beverages on the host’s property. This presents an issue of first impression as prior cases involving the Dram Shop Act are inapplicable to a social host serving (or allowing guests to consume) liquor in his own home.2 See, e.g., Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 335 (Ky. 1987); Estate of Vosnick v. RRJC, Inc., 225 F. Supp. 2d 737, 740 (E.D. Ky. 2002). Further, no cases in Kentucky discuss this particular issue with respect to minors. Wilkerson v. Williams, 336 S.W.3d 919 (Ky. App. 2011). We review this question of law de novo. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).

Social host liability is a fledgling area of the law in this jurisdiction. To date, there is only one state law case which addresses it (outside of the Dram Shop context). In 2002, the Sixth Circuit noted Kentucky’s lack of case law on social host liability, stating as follows:

Kentucky law on social host liability is nonexistent. The parties do not cite and the Court is unable to find a Kentucky case addressing the liability of social hosts to third parties for the negligent acts of intoxicated guests. To be clear, the Court is faced with a total dearth of precedent[.]

2 Despite Martin’s arguments to the contrary, KRS 244.085(3) is inapplicable to the present case as Elkins neither served nor assisted minors in obtaining alcohol. As stated above, the minors themselves brought alcohol to the party with them.

Given the vacuum of precedential authority, the Court is faced with the task of predicting how the Kentucky courts would rule. The Court is aided in this enterprise by a review of the law in other jurisdictions[.]

Judging from the academic scholarship, other jurisdictions handle the question of social host liability in one of three ways. First, a minority have refused to impose social host liability altogether. Examples include Minnesota, Mississippi, Ohio, Pennsylvania, and Vermont. Second, some have imposed liability by statute. Examples include Georgia and Oregon. Finally, the majority have imposed liability based on common law negligence principles. This final set is further subdivided into two groups—those that extend social host liability for the provision of alcohol to both minors and adults, and those that limit social host liability to the provision of alcohol to minors only. Among the former group are California, Indiana, Iowa, Massachusetts, and New Jersey. Among the latter group are Michigan, North Carolina, and Wisconsin.

Estate of Vosnick, 225 F. Supp. 2d at 740-41 (E.D. Ky. 2002) (internal citation and footnote omitted).

This Court was presented with the opportunity to address social host liability in 2011 in Wilkerson, 336 S.W.3d 919. In Wilkerson, we stated that,

[As a general rule,] “an actor whose own conduct has not created a risk of harm has no duty to control the conduct of a third person to prevent him from causing harm to another.” Carneyhan, 169 S.W.3d at 849. . . . [However,] a duty could arise to exercise reasonable care to prevent harm by controlling a third person’s conduct where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct[.]”

… .

[Nonetheless,] “[t]he foreseeability of the injury defines the scope and character of a defendant’s duty.” Norris v. Corrections Corp. of America, 521 F. Supp. 2d 586, 588 (W.D. Ky. 2007). “The most important factor in determining whether a duty exists is foreseeability.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citation omitted). “[C]ourts have held that, except under extraordinary circumstances, individuals are generally entitled to assume that third parties will not commit intentional criminal acts.” James v. Meow Media, Inc., 300 F.3d 683, 693 (6th Cir. 2002).

Id. at 923. Unfortunately, Wilkerson is not directly on point, as it involved a tortfeasor of the age of majority.

Nevertheless, we noted in Wilkerson, that “[t]he foreseeability of the injury defines the scope and character of a defendant’s duty.” Id., quoting Norris, 521 F. Supp.2d at 588. In the present case, Elkins, an adult landowner who was aware that minors were imbibing in alcohol on his property, had a special relationship with those minors. Where minors and alcohol are concerned, the scope of foreseeability is expanded. Many ugly outcomes may be foreseeable when minors consume alcohol, including alcohol poisoning, drunk driving accidents, drowning, and other non-intentional torts.

However, the alleged tortious conduct in this case was an assault by Byrd on Martin, an act which occurred at another location and due to an automobile fender bender. This conduct was beyond the scope of reasonable foreseeability by Elkins. Wilkerson, 336 S.W.3d at 923. As previously stated, persons are generally entitled to assume that third parties will not commit intentional criminal acts. Id. Indeed, even the Dram Shop statutes, which are intended to be more stringent as they apply to businesses rather than individual social hosts, place the primary liability for injuries to third parties upon the intoxicated person rather than the business establishment. KRS 413.241(3); Isaacs v. Smith, 5 S.W.3d 500 (Ky. 1999).

In Wilkerson, this Court held that a social host could not foresee that a drunken party guest would punch another guest in the face. Wilkerson, 336 S.W.3d at 923. In Isaacs, the Supreme Court stated that, in the dram shop context, a night club owner could not foresee that a bar patron who got into a shouting match with another patron would later in the evening draw a weapon and shoot the other patron. Isaacs, 5 S.W.3d at 503. The law is clear that intentional torts against third parties, such as bar fights, assaults, and shootings, are not foreseeable to social hosts or bar owners. Thus, viewing the evidence in a light most favorable to Martin, Elkins is entitled to judgment as a matter of law. As the Supreme Court noted in Isaacs, although proximate cause is typically a question for the jury, “a duty applies only if the injury is foreseeable.” 5 S.W. 3d at 502. Without a duty, there can be no breach or causation.

Thus, the trial court was correct in granting summary judgment. As has oft been stated, the proper purpose of a summary judgment “is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor[.]” Id. at 503.

Accordingly, we affirm the Jefferson Circuit Court.



ACREE, CHIEF JUDGE: Randall and Bobbie Stathers, and Brandalyn Elkins appeal the Garrard Circuit Court’s November 8, 2010 order granting summary judgment in favor of appellees Garrard County Board of Education (Board), Branscum Construction Company, Inc. (Branscum), Elza Construction, LLC (Elza), Impact Drilling & Blasting, Inc.,1 and Irvine and Pyles Drilling Company, Inc. (Irvine and Pyles). The circuit court found that the Stathers and Elkins failed to present sufficient evidence that blasting by the appellees caused damage to their respective homes.

The Board, Branscum, and Elza cross-appeal the circuit court’s June 7, 2010 order finding that the Board is not entitled to governmental immunity and, in turn, denying the Board’s motion to dismiss.

For the reasons that follow, we reverse as to the appeal, affirm as to the cross-appeal, and remand for additional proceedings.


his is a blasting case and, therefore, a strict liability case. See Island Creek Coal Co. v. Rodgers, 644 S.W.2d 339, 348 (Ky. App. 1982) (“Kentucky has expressly renounced the ‘negligence’ theory in blasting cases.”); David J. Leibson, 13 Ky. Prac. Tort Law § 12:6 (2011) (“Blasting is an activity which has repeatedly been held subject to strict liability.”). Under a blasting strict liability analysis, proof of causation between the blasting and the claimed property damage is required. Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970) (noting “one common denominator” between strict liability and similar tort-based causes of action is the need to establish causation); Island Creek Coal, 644 S.W.2d at 348 (explaining it is only necessary to prove causation and damages in blasting strict liability cases); Wolf Creek Collieries Co. v. Davis, 441 S.W.2d 401, 402-03 (Ky. App. 1969). The Appellants must therefore show a genuine issue of material fact exists as to causation to maintain their strict liability claim and survive summary judgment. We think they have.

We begin by noting that “causation . . . presents a mixed question of law and fact.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citing Deutsch v. Shein, 597 S.W.2d 141, 145 (Ky. 1980)). Therefore, whether a plaintiff’s damage was caused by the tort defendant typically “should be left to the jury to determine.” Eichstadt v. Underwood, 337 S.W.2d 684, 686 (Ky. 1960) (reviewing denial of defendant’s directed verdict motion). It is not surprising then that, with the exception of medical malpractice cases,4 we could find no Kentucky appellate opinion affirming any grant of summary judgment based on a plaintiff’s inability to establish, through expert testimony, the existence of a genuine issue of the material fact – in this case, a genuine issue regarding causation.

Despite our inability to locate such a case, we acknowledge that there is an exception to this general rule. That exception is where it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.

4 “Under Kentucky law, a plaintiff alleging medical malpractice is generally required to put forth expert testimony to show that the defendant medical provider failed to conform to the standard of care.” Blankenship v. Collier, 302 S.W.3d 665, 670 (Ky. 2010) (citation omitted). “When it is evident that the plaintiff has not secured a single expert witness and has failed to make any expert disclosures after a reasonable period of time, there truly is a failure of proof and a summary judgment motion is appropriate.” Id. at 674. This rule has never been applied to a blasting case and, to our understanding, has never been applied to any case other than medical malpractice cases. Even in these cases, summary judgment is not granted for lack of proof of causation; summary judgment is granted because there was no proof of the standard of care (i.e., the measure of the duty) and, therefore, no proof of a breach. Id. (Plaintiff “never created a genuine issue of material fact regarding [defendant physician’s] negligence by identifying a medical expert who could testify about a breach of the standard of care.”).

1991) (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)). The word “impossible” in the context of the summary judgment standard is to be “used in a practical sense, not in an absolute sense.” Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). As we explain, we do not believe it is a practical impossibility that Appellants will be able to produce evidence at trial warranting a judgment in their favor.

Cause of Action: Dram Shop (Carruthers v. Edwards, COA, Pub. 8/10/2012)

In this published decision from the COA, not only is the Dram Shop Act addressed as a normal cause of action for bar’s liability for serving too much alcohol to a patron, but the constitutionality of the act is affirmed AND some creative drafting to pursue claim against the property owner under the dram shop, common law negligence, and landlord liability.


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.


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.

The relevant sections of KRS 413.241 “imposing liability upon a dram shop or its creation of a priority of liability between the dram shop and the intoxicated tortfeasor[,]” however, remain unchanged. Id. at 244. KRS 413.241 still imposes a duty upon a dram shop and its employees, before selling or serving alcohol to a person, to use their powers of observation to perceive readily visible warning signs that a person is intoxicated, and to refrain from serving or selling alcohol to that patron. KRS 413.241(2). If the dram shop or its employees fail to perceive, or simply ignore, those warning signs, the dram shop may be held liable pursuant to KRS 413.241 provided the dram shop’s negligent conduct is also the proximate cause of the plaintiff’s injuries. Id.; Taylor, 345 S.W.3d at 244.

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.

Cause of Action: Libel Per Se (Flint v. Marx, COA, NPO, 8/10/2012)

From Flint v. Marx, COA, NPO, 8/10/2012 (pro se appeal):

“Four elements are necessary to establish a defamation action, whether for slander or libel, to wit: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation.” McBrearty v. Kentucky Cmty. & Technical Coll. Sys., 262 S.W.3d 205, 213 (Ky. App. 2008). The standard for determining whether a written publication is libelous per se is long-standing:

FOOTNOTE: Defamation communicated orally is slander.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004), quoting 2 DAN B. DOBBS, THE LAW OF TORTS, § 401 at 1120 (2001).

The general proposition is that words, written or printed, are libelous and actionable per se, justifying a recovery without allegations of special damages, if they tend to degrade and disgrace the person about whom they are written or printed, or tend to expose him to public hatred, ridicule, contempt, aversion, or disgrace, or to induce an evil opinion of him in the minds of right-thinking persons and to deprive him of their friendly intercourse and society.

In order to be libelous per se, it is not essential that the words involve an imputation of crime, or otherwise impute the violation of laws, involving moral turpitude, or immoral conduct. But defamatory words, to be libelous per se, must be of such a nature that the court can presume as a matter of law that they do tend to disgrace and degrade the person, or to hold him up to public hatred, contempt, or ridicule, or to cause him to be shunned and avoided.

Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677, 681 (1931) (Internal citations omitted). Whether a written publication is defamatory and actionable per se is generally an issue of law to be determined by the court. See Yancey v. Hamilton, 786 S.W.2d 854 (Ky. 1989); Digest Pub. Co. v. Perry Pub. Co., 284 S.W.2d 832 (Ky. 1955); Deitchman v. Bowles, 166 Ky. 285, 179 S.W. 249 (1915).

As an initial matter, we note that the order of summary judgment entered by the trial court suggests that a written publication may be libelous per se only if it imputes unfitness to perform the duties of an office, occupation, or employment or if it has a tendency to prejudice a person in his/her trade, calling, or profession. However, this is an incorrect statement of the law. See Courier Journal Co. v. Noble, 251 Ky. 527, 65 S.W.2d 703, 703 (1933) (holding that spoken words are slanderous per se only if they impute crime, infectious disease, or unfitness to perform duties of office, or prejudice one in profession or trade, or tend to disinherit him and written or printed publications, which are false and tend to injure one in his reputation or to expose him to public hatred, contempt, scorn, obloquy, or shame, are libelous per se.); see also Stringer, 151 S.W.3d at 794-95; Shields, 238 Ky. 673, 38 S.W.2d at 680-81. However, while the trial court’s reasoning was wrong in this instance, “we, as an appellate court, may affirm the trial court for any reason sustainable by the record.” Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930 (Ky. App. 1991); see also Kentucky Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803, 805 n.3 (Ky. 2010).

Our review of this case has proven difficult because appellant’s brief fails to directly identify which aspects of the subject letter he believes are defamatory in nature. Instead, appellant offers only a general assertion that the letter was libelous as a matter of law without explaining why that is, in fact, the case. Moreover, appellant has cited to no useful legal authority that would support his position. This lack of specificity and articulation was also a problem below.

For instance, appellant’s complaint is replete with vague accusations such as that “the letter made statements that are not true and [are] taken out [of] context” or that the letter was part of the condominium association’s “personal vendetta to turn owners against” him. The complaint’s only direct reference to the specific content of the letter is in appellant’s allegation that the “words in [appellee’s] letter show that he has no feelings for other people and has no concern for the truth and or the Association’s by-laws.” This lack of specificity would notbe an issue if the remainder of the record gave a better sense of the basis of appellant’s claims, but this is not the case. Instead, the only allusion to the content of appellee’s letter in the record6 is in a letter written in response by appellant to association members that was filed as an exhibit below. However, none of the statements referenced in appellant’s letter can be reasonably viewed as defamatory in nature. At most, they arise to the level of mere insult, name-calling, or hyperbole.

Thus, we are left to speculate at the actual basis for appellant’s claim, which we simply will not do. While we are generally willing to overlook inartful pleading by a pro se litigant, we are not willing to create his arguments or to conduct his legal research for him. See Grant v. Lynn, 268 S.W.3d 382, 391 (Ky. App. 2008). Appellant’s brief provides no assistance in ascertaining exactly what content in appellee’s letter merits legal recourse. Consequently, in light of appellant’s failures in this regard, we are compelled to conclude that the trial court did not err in granting summary judgment as to appellant’s claim of libel per se

Causes of Action: Violation of ethical rule does not create a cause of action (Rose v. Winter, Yonker & Rousselle, COA, NPO, 7/27/12)

The following decision which was not published provides an interesting start on the interplay between our ethics rules and a cause of action.  At first blush and a quick read of the Supreme Court Rule (Code of Professional Responsibility 7.10) 3.30, one might have thought that a claim of illegal or illegal solicitation of clients would have permitted this claim to adjudicated in the courts rather than going through the disciplinary process first.

But not so fast.

The COA held that bar complaint must be filed.  Thus, a favorable decision presumably must be obtained, first.  And which would presumably set up the date of accrual of the cause of action for statute of limitations purposes.

Would the actual decision by the bar and eventually the Supreme Court on the matter should it wind up that far now serve as res judicata for the particular issue of the solicitation leaving the trial court with nothing further to do than order the fees returned?

“[D]ecisions of administrative agencies acting in a judicial capacity are entitled to the same res judicata effect as a judgment of a court.” Godbey v. University Hospital of the Albert B. Chandler Medical Center, Inc., 975 S.W.2d 104, 105 (Ky.App. 1998).

What was the old equity rule?  Justice delay, justice denied.

Keep in mind that the claims in this lawsuit were never addressed or resolved.  So do not assume there was or is an ethics violation.

Eg., SCR 3.130(7.10) provides:

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.


KELLER, JUDGE: The Appellants, James Rose (James) and Christopher Rose (Christopher), appeal from an order of the Jefferson Circuit Court dismissing their complaint against the Appellees, Winters, Yonker & Rousselle, P.S.C.; Bill Winters; Marc Yonker; and Donald Kannady. For the following reasons, we affirm.

The Appellants filed a complaint against their former attorneys, the Appellees, seeking forfeiture of all attorney fees paid by them to the Appellees for alleged violations of the Kentucky Supreme Court Rules of Professional Conduct. They also sought class certification for similarly situated former clients of the Appellees.

On appeal, the Appellants argue that the trial court erred when it concluded that it lacked jurisdiction to determine whether the Appellees illegally or unethically solicited clients. Specifically, they argue that SCR 3.130(7.10) authorizes a client to file a civil suit against their attorney for recovery of all fees when the attorney illegally or unethically solicits them as a client. We disagree.

In this case, there were no allegations made in the complaint that the Appellees were negligent in handling the Appellants’ personal injury claims or in negotiating the settlements. Instead, the Appellants’ claims are based on violations of the Kentucky Supreme Court Rules of Professional Conduct. We are unaware of any authority supporting this type of cause of action. In fact, in Hill v. Willmott, 561 S.W.2d 331, 333-34 (Ky. App. 1978), this Court addressed a similar issue and concluded that the Rules of Professional Conduct do not create a private cause of action.

The sole remedial method for a violation of the Code is the imposition of disciplinary measures after a hearing by the Board of Governors of the State Bar Association for any “ . . . charges brought under this code as well as charges for other unprofessional or unethical conduct calculated to bring the bench and bar into disrepute.”
See R.A.P. 3.130. Nowhere does the Code of Professional Responsibility or the Rules attempt to establish standards for civil liability of attorneys for their professional negligence. This is not to say that a cause of action cannot be asserted for negligence on the part of an attorney. All we are holding is that the duty set forth in the Code and the Rules establishes the minimum level of competence for the protection of the public and a violation thereof does not necessarily give rise to a cause of action.


We note that the Preamble to SCR 3.130 also indicates that the Kentucky Supreme Court Rules of Professional Conduct do not create a private right of action. The Preamble states the following:


Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.

(Emphasis added). Furthermore, as stated in Grigsby v. Kentucky Bar Ass’n, 181 S.W.3d 40, 42 (Ky. 2005), the Supreme Court of Kentucky “has the sole authority to admit and discipline attorneys.”

The Appellants argue that, despite the holding in Hill and the language in the Preamble, SCR 3.130(7.10) specifically provides for a civil action for recovery in this case. SCR 3.130(7.10) provides:

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.

(Emphasis added).

As correctly noted by the trial court, the language of SCR 3.130(7.10)appears to presuppose that the appropriate disciplinary agency must first determine whether the lawyer illegally or unethically solicited a potential client in violation of SCR 3.130(7.09). Only after making the determination of unethical or illegal solicitation by the appropriate disciplinary agency does the rule make provision for forfeiture of fees under SCR 3.130(7.10). Therefore, we conclude that, while the rule provides for a cause of action to recover fees, it does not provide a cause of action to determine whether a solicitation in this case was illegal or unethical.

Finally, we note that the cases cited by the Appellants in support of their argument that Kentucky courts routinely decide whether ethical violations have occurred are distinguishable from this case. In Shoney’s, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994), the issue was whether communications of plaintiff’s counsel with Shoney’s employees with knowledge that Shoney’s was represented by counsel was grounds for disqualification. The Shoney’s employees did not assert a private right of action for the alleged ethical breach by plaintiff’s counsel. Thus, Lewis is inapplicable to the instant case.

In Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), plaintiff’s counsel brought an action against his former client to enforce an attorney’s lien arising out of counsel’s representation of plaintiff under a contract that had been terminated by plaintiff prior to a settlement. The action was for enforcement of contractual rights and did not involve the Kentucky Supreme Court Rules of Professional Conduct. Therefore, Baker is also inapplicable to the instant case.

Appellants also cite to Bonar v. Waite, Schneider, Bayless & Chesley, No. 2007-CA-001374-MR, 2009 WL 3336065 (Ky. App. Oct. 16, 2009). Because the Supreme Court of Kentucky granted discretionary review in that case, it is not final. CR 76.28(4). Thus, the Appellants improperly cite to it, and we need not address it. However, we do note that the Bonar case involved a dispute between attorneys as to whether they were entitled to attorney fees. It was not a private action to enforce provisions of the Kentucky Supreme Court Rules. Therefore, it is inapplicable to the instant case.

For the foregoing reasons, we affirm the order of the Jefferson Circuit Court.


Causes of Action: Third party indemnity

Third party indemnity is always a bothersome concept with terms such as active-passive, primary-secondary, etc. entering into the lexicon.  Recent nonpublished decision entitled Greenwell v. Lowes Home Centers, COA, NPO, 7/27/2012, wrestles with this issue within the context of a collision in the parking lot and third-partying the parking lot owner for contributing to the collision because of the negligent installation of the traffic light (failure to have tether on light which was swinging in the wind at time of collision).

Basic facts is Barlow was injured in collision and sued Greenwell nearly 25 months after the collision.  No indication in decision whether complaint included Lowes, but since this was a third-party claim one can expect Lowes was now added as a party.  Trial court dismissed indemnity claim which was affirmed on appeal.  Greenwell also raised issue of error relating to apportionment and contribution, but these issues were not addressed by the judge in his order which will now be addressed when returned to the trial court.

Greenwell contends that the circuit court erred by dismissing his third-party indemnity claim against Lowe’s. Specifically, Greenwell contends that Lowe’s negligently installed the traffic light by failing to install a tether thereupon and that the wind caused the signal heads on the traffic device to swing, resulting in the obstruction of the traffic light from his view at the time of the accident. Under these facts, Greenwell maintains that Lowe’s was the active tortfeasor, and he was the passive tortfeasor. Thus, Greenwell claims entitlement to indemnity from Lowe’s.

Indemnity is a firmly entrenched principle in our common law and “is available to one exposed to liability because of the wrongful act of another with whom he/she is not in pari delicto [in equal fault].” Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky. 2000). Indemnity is an equitable principle and is based upon the theory “that where one party, whose fault is passive or secondary, incurs liability because of another party, whose fault is active or primary, the passive party should be allowed to recover from the active party for the liability paid.” 1 Comparative Negligence Manual § 9:14 (3d ed. 2012). In Kentucky, common law indemnity has been recognized under two “classes of cases”:

The cases in which recovery over is permitted in favor of one who has been compelled to respond to the party injured are exceptions to the general rule, and are based upon principles of equity. Such exceptions obtain in two classes of cases: (1) Where the party claiming indemnity has not been guilty of any fault, except technically, or constructively, as where an innocent master was held to respond for the tort of his servant acting within the scope of his employment; or (2) where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.

Degener, 27 S.W.3d at 780 (quoting Louisville Ry. Co. v. Louisville Taxicab & Transfer Co., 256 Ky. 827, 77 S.W.2d 36, 39 (1934)).

In this appeal, Greenwell asserts he is entitled to indemnity under the second class as “both parties have been in fault … and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.” See Degener, 27 S.W.3d at 780. Greenwell asserts that both he and Lowe’s are atfault or were negligent in causing Barlow’s injury but that Lowe’s negligence is the primary cause of the injury. Consequently, Greenwell alleges that the circuit court improperly rendered summary judgment dismissing his claim of indemnity against Lowe’s. For the foregoing reasons, we are compelled to disagree.

* * *

In this case, if we view the facts most favorable to Greenwell, it appears that Lowe’s contracted with others to construct the traffic light. Despite plans providing for a tether wire on the traffic light, no tether was fixed to the traffic light. On the day of the accident, there was evidence the wind was blowing the traffic light back and forth. Greenwell testified that he never saw the traffic light before the accident. The accident occurred at a four-way intersection which was heavily traveled. Immediately before the accident, Greenwell admitted to seeing the intersection and the traffic in the intersection but asserts he did not see Barlow’s vehicle before he hit it. Greenwell’s brother, a passenger in the vehicle, spotted the traffic light and Barlow’s vehicle seconds before the accident.

Viewing the facts most favorable to Greenwell, the absence of a tether on the traffic light may have been a contributing cause of the accident, and Lowe’s may have been negligent in so constructing the traffic light. If so, both Lowe’s and Greenwell could be considered tortfeasors in pari delicto or active tortfeasors. See City of Louisville v. Louisville Ry. Co., 156 Ky. 141, 160 S.W. 771 (1913). However, under no scenario of provable facts would Greenwell’s purported negligence be degraded to passive thus entitling him to indemnity. See id.

Accordingly, we are of the opinion that the circuit court properly rendered summary judgment dismissing Greenwell’s indemnity claim against Lowe’s.

Causes of Action: No universal duty to protect others addressed

The following discussion of common law negligence and duty to protect others was discussed in Gibson v. Hicks, COA, Pub., 7/27/2012:

We first discuss whether Gibson had a common law duty to protect Hicks from her abusers.

-Essential elements of any common law negligence action are that the defendant must have a duty to the plaintiff and have breached that duty. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003). Whether a legal duty exists is a question of law. “If no duty is owed by the defendant to the plaintiff, there can be no breach thereof, and therefore no actionable negligence.” Ashcraft v. Peoples Liberty Bank & Trust Co., Inc., 724 S.W.2d 228, 229 (Ky.App. 1986).

There is no universal duty for every person to protect others against foreseeable injuries. Although Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328 (Ky. 1987), is “cited often by parties advocating a theory of liability or a cause of action where none previously existed and legal authority is otherwise lacking,” the universal duty concept has been repeatedly rejected. James v. Wilson, 95 S.W.3d 875, 891 (Ky.App. 2002).

Public employees, like ordinary citizens, do not have a common law duty to protect individuals from crime. Often referred to as the public duty doctrine, absent a special relationship to the victim, public officials have a duty to the public at large, not to individual crime victims. Ashby v. City of Louisville, 841 S.W.2d 184, 189 (Ky.App. 1992).

The “special relationship” test has been explained by our Supreme Court. In Fryman v. Harrison, 896 S.W.2d 908, 910 (Ky. 1995), the Court reiterated the prevailing view that “[i]n order to establish an affirmative duty on public officials in the performance of their official duties, there must exist a special relationship between the victim and the public officials.” The Court held that the “special relationship” requirement applies to federal civil rights cases and to ordinary tort cases. Id. It approved a two-part test. “It must be demonstrated that the victim was in state custody or was otherwise restrained by the state at the time in question, and that the violence or other offensive conduct was perpetrated by a state actor.” Id. (quotations omitted). Although recognizing that the result is often harsh, in Collins v. Hudson, 48 S.W.3d 1, 6 (Ky. 2001), the Court emphasized that the test is based in logic and public policy. Because Hicks was not in the Cabinet’s custody or otherwise restrained by Gibson or the Cabinet at the time she was neglected and abused, she cannot meet the Fryman test.