The Court of Appeals posted 17 decisions on Jan. 27, 2017, numbered 103-119 with 4 decisions designated for publication.
Published Decisions (with topic and county indicated) for Jan. 27, 2017
104. Criminal Law. Post-conviction DNA Testing.
Owens v. Commonwealth of Kentucky
Affirming – Simpson County
107. Criminal Procedure. Valid search warrant.
Lundy v. Commonwealth of Kentucky
Affirming – Nelson County
109. Claim against city
Louisville Jefferson County Metro Gov’t v. Braden
Vacating and remanding, dismissing appeal – Jefferson County
We hold that the trial court’s exclusive reliance upon Lewis’s compliance with Louisville Metro Police Department (LMPD) Standard Operating Procedures (SOPs) was misplaced. We further hold that, at the time of the accident, Lewis was not operating within the scope of his employment for purposes of triggering Louisville Metro’s statutory obligation to defend and indemnify him under CALGA. Therefore, we vacate the trial court’s order granting summary judgment in favor of the Estate; and we remand to the trial court for entry of an order granting summary judgment in favor of Louisville Metro.
112. Regulatory Law. Waste dumping. Easement.
South Central Kentucky Properties v. Commonwealth of Kentucky, Dept of Transportation
Affimring – Franklin County
Selected not to be published decisions – torts, insurance and civil:
105. Premises liability. Landlord tenant.
Carney v. Galt
Affirming in part, Reversing in part, remanding – Jefferson County
111. Miller v. Swift, New Trial and Zero Pain and Suffering. Introduction of UIM contract to jury not error.
Shelter Mutual Ins. Co. v. Sheffield
Affirming – Franklin County
Interesting case. Judge granted new trial following zero pain and suffering verdict. New trial awarded pain and suffering damages. Insurance company appealed grant of new trial and COA affirmed as not clearly erroneous by trial judge.
We are not persuaded by Shelter’s argument that since interpretation of a UIM contract is strictly a matter of law for the court to decide, the introduction of the contract creates a risk of confusing the jury. First, the jury was aware that it was a contract case. Furthermore, it was not required to interpret the contract but rather to ascertain Loren’s damages. Finally, the trial court appropriately instructed the jury on its duties in the jury instructions.
We believe that the introduction of the contract permitted the jury to understand the reason for the case and their purpose in hearing the matter. Shelter’s claim of prejudice is unfounded. Consequently, the trial court did not abuse its discretion in admitting the contract into evidence. The document was relevant to the proceedings since a UIM claim is a contract claim.
115. Immunity. Distinction made in official duties on removal of snow vs. snow and ice.
Fields v. Baker
Reversing and Remanding – Laurel
In slip and fall case were two grounds crew members entitled to immunity in their individual capacities in removal of snow and ice?
The uncontested facts in this case are that: Fields and Rains plowed the snow off of the parking lot; it was not within the scope of their ministerial duties to remove ice from the student parking lots unless expressly directed to by the superintendent or assistant superintendent; and Baker slipped and fell on ice in the student parking lot.
As Baker’s injuries are alleged to have occurred by Fields and Rains failing to remove ice from the student parking lot, and it was not within the scope of their job duties to remove ice from the student parking lot, summary judgment is appropriate. Accordingly, we reverse and remand for proceedings consistent with this Opinion and Order.
Winter precipitation comes in many forms. As Yukon Cornelius so aptly perceived, “Terrible weather we’ve been havin’ . . . snow, and ice!” Rudolph, the Red-Nosed Reindeer (NBC, 1964). How you treat that snow and ice in parking lots can mean the difference between a treacherous path and a safe one.
118. Nursing home. POA not specifically address alternative dispute resolution.
LP Beattyville LLC v. Estate of Dale Roger Brown
Affirming – Lee County
All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority. See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)
You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision. Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.
For links to all our posts on the minutes of the Court of Appeals, then click here.
For the index to archived minutes at the official AOC page, then click here.MNT01272017