Defenses: Qualified Official Immunity

Qualified official immunity was addressed in Gibson v. Hicks, COA, Pub., 7/27/2012:

Qualified official immunity is not a mere defense but provides immunity from a claim. In Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), the Court explained the scope of protection afforded government officials:

[A]n official sued in his or her individual capacity enjoys only qualified official immunity, which affords protection for good faith judgment calls made in a legally uncertain environment. Thus, officials are not liable for bad guesses in gray areas, and most government officials are not expected to engage in the kind of legal scholarship normally associated with law professors and academicians. Thus, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. [Internal quotations and citations omitted].

Whether Gibson is entitled to qualified official immunity is a question of law subject to de novo review. Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).

In Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), the Court pronounced that qualified official immunity requires a classification of the particular acts or functions in question as either discretionary or ministerial. However, as noted by the circuit court, the distinction between discretionary and ministerial acts is often blurred and subject to a divergence of judicial opinion.3 To clarify the law and offer further guidance, in Haney, the Court explained the distinction:

Qualified official immunity applies only where the act performed by the official or employee is one that is discretionary in nature. Discretionary acts are, generally speaking, those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment. It may also be added that discretionary acts or functions are those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. On the other hand, ministerial acts or functions—for which there are no immunity—are those that require only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.

3 In his concurring opinion in Caneyville Volunteer Fire Dep’t. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 813 (Ky. 2009), Chief Justice Minton referred to immunity as a “judge- made swamp” that should be drained.

Haney, 311 S.W.3d at 240 (internal quotations and citations omitted).

* * *

In Stratton v. Commonwealth, 182 S.W.3d 516 (Ky. 2006), Cabinet employees placed a young child back into a home where the child died as a result of caretaker abuse. The administrator of the child’s estate filed an action against the Cabinet in the Board of Claims alleging that if the Cabinet employees had followed regulations requiring them to interview certain witnesses, the tragedy would have been prevented. The Court held that the Cabinet’s determination regarding what action, if any, should be taken to resolve each claim was discretionary “just as in police investigations.” Id. at 521.

More recently, in Turner v. Nelson, 342 S.W.3d 866 (Ky. 2011), the Court held that a teacher was entitled to qualified official immunity when it was alleged that she failed to report sexual abuse of a kindergarten student by a five-year-old classmate. Noting that KRS 620.030 requires that abuse be reported to appropriate authorities if a person knows or has reasonable cause to believe that a child is

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abused, the Court held that absent actual or personal knowledge of the alleged abuse, the determination that there is reasonable cause involves the exercise of discretion. Id. at 877-878. The Court again emphasized the rationale behind the qualified official immunity doctrine:

Since Turner did not have actual or personal knowledge of the events alleged, the only other basis upon which she was required to make a report would be the development of a “reasonable cause to believe” that one of the children had been abused. Making such a determination clearly involves the exercise of discretion. It is similar to a judicial decision that there is or is not probable cause to support an asserted proposition. The very purpose of the doctrine of qualified official immunity is to protect government officials exercising discretion from second-guessing of their good faith decisions made in difficult situations such as this. The essence of reaching a determination as to whether reasonable cause exists would require discretion. This requires that Turner make reasonable inquiry into the facts, weighing the credibility of each child and then using her judgment and experience of a teacher of kindergarten level students, to reach a decision as to whether there was reasonable cause to believe that sexual abuse had occurred.

Id.
The reasoning expressed in Turner is persuasive. The General Assembly did not intend that the Cabinet investigate every case of alleged abuse against an adult. The majority of such cases necessarily remain within the realm of law enforcement. Instead, as a threshold to the application of the Adult Protection Act, the alleged victim must be eighteen years of age or older and suffer from a mental or physical dysfunction that impairs his or her ability to manage his or her resources, perform daily activities, or protect against neglect or abuse.

Because Gibson did not have actual or personal knowledge of Hicks’s mental or physical condition, she was required to initiate an investigation only if there was reasonable cause to believe that Hicks was an adult as defined in the statute. “Making such a determination clearly involves the exercise of discretion.” Id. Therefore, as a part of the screening process, Gibson was required to exercise her professional judgment, based on training and experience, to determine whether the allegations of abuse met the statutory and regulatory criteria. We hold that Gibson is entitled to qualified official immunity.

Gibson’s allegation that she is entitled to statutory immunity under KRS 209.050 and KRS 44.070(1) is rendered moot by our decision that she was entitled to summary judgment.

Defenses: Claims Preclusion and Res Judicata in Gibson v. Hicks, COA, Pub. 7/27/2012

The doctrine of res judicata stands for the principle that once the rights of the parties have been fully determined, litigation should end. It is an affirmative defense which operates to bar repetitious suits involving the same cause of action. The doctrine is comprised of two subparts: claim preclusion and issue preclusion.

Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 371 (Ky. 2010) (internal footnotes and quotations omitted).

To apply, claim preclusion requires an identity of the parties and causes of action and a resolution on the merits. Id. Issue preclusion prevents a party from relitigating an issue “actually litigated and finally decided in an earlier action.” Buis v. Elliot, 142 S.W.3d 137, 140 (Ky. 2004) (quoting Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 465 (Ky. 1998). “[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).

From Gibson v. Hicks, COA,Pub., 7/27/2012

STATUTE OF LIMITATIONS, TOLLING, DOES THE DISCOVERY RULE APPLY RE THE PROPER DEFENDANT? Bland v. City of Mt. Washington, COA, NPO, 7/13/2012

The following unpublished decision by the Court of Appeals offers some black letter law on the accrual of a tort claim applying the discovery rule on a premises liability case.  Note the claimant fell in an obscure hole believing it was under the control of the school but discovery after a year had passed that it contained a release value maintained by the City.  Alas, there is the problem regarding suit against the proper party and failing to commence the cause of action within one year of the fall.  The claimant asserted that suit was filed within one year of her discovering who did maintain the hole and the air valve (which she did not note at the time of her fall or later when she and her husband examined the hole on the school property).

590.  STATUTE OF LIMITATIONS. DISCOVERY.
BLAND (MARY)
VS.
CITY OF MT. WASHINGTON , ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
LAMBERT (DISSENTS AND FILES SEPARATE OPINION) AND MOORE (CONCURS)
2011-CA-001239-MR
NOT TO BE PUBLISHED
BULLITT

CAPERTON, JUDGE: The Appellant, Mary Bland, appeals from a personal injury action in which the trial court entered a directed verdict on the issue of notice at the close of her case against the Appellee, City of Mount Washington. The final order entered by the court added additional grounds for dismissal that had previously been rejected via motions for summary judgment. This appeal followed. Upon review of the record, the arguments of the parties, and applicable law, we affirm.

To that end, we are in agreement with the court‘s conclusion, based upon the evidence of record, that Bland made no effort to remove the debris from the bottom of the hole or to conduct any additional research as to the owner of the hole or its purpose. We disagree with Bland’s argument that because the hole had grass and debris around it, the identity of the owner was “obstructed” as that term has been defined by our courts. Further, we are in agreement with the court below that a simple and routine title examination would have identified the owner of the hole. Indeed, prior to the expiration of the statute of limitations, Bland could have hired individuals to more thoroughly examine the hole with permission from the court and property owner, conducted title examinations, taken depositions or otherwise make efforts to ascertain the party responsible for the hole. While the pictures submitted by Bland showed the condition of the hole at ground level, we are not persuaded by her argument that these pictures amount to evidence of due diligence in this matter. Accordingly, we find no factual issue on the matter relating to the statute of limitations and affirm the granting of a directed verdict on this issue.

Upon finding that the statute of limitations is applicable to this matter, we turn now to Bland’s argument that Mount Washington should be estopped from asserting the statute of limitations. Bland argues that Kentucky law favors tolling a limitations period when the defendant cannot be identified by virtue of the defendant’s conduct. She asserts that in this case, Mount Washington concealed its identity, albeit perhaps unintentionally, by virtue of its neglect of the hole such that its ownership could not be identified upon inspection.

STATUTE OF LIMITATIONS, TOLLING AND DISCOVERY RULE:

Bland also argues that Kentucky has adopted the discovery rule for those who act with due diligence, and that the discovery rule is applicable to this matter. She argues that the discovery rule, set forth in Kentucky Revised Statutes (KRS) 412.140, delays accrual of the statute of limitations until discovery takes place, or reasonably should have taken place.

Concerning the applicability of the discovery rule to this case, Mount Washington asserts that it clearly does not apply and asserts that Kentucky law mandates its use only when injuries are latent. Mount Washington states that in this instance Bland was immediately aware of her injury and began medical treatment shortly thereafter. Mount Washington argues that the evidence submitted by Bland indicates that she did no investigation to determine the reason for the hole’s placement or the contents of the hole, either of which would have led her to determine if it was a utility. Mount Washington asserts that Bland did not attempt to speak to anyone at the school to determine the hole’s ownership.

In addressing this issue, we note that KRS 412.140, the “discovery rule,” states in pertinent part that:

(1)The following actions shall be commenced within one (1) year after the cause of action accrued:

(a)An action for an injury to the person of the plaintiff ….

In Hazel v. General Motors Corporation, 83 F.3d 422 (6th Cir. 1996), the court explained Kentucky’s discovery rule as follows:

Kentucky’s discovery rule provides that a cause of action does not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both his injury and the responsible party. This rule is designed to protect the blamelessly ignorant plaintiff from losing the right to recover for an injury during the period in which the injury may remain inherently unknowable to the plaintiff. The typical scenarios for the application of the rule include medical malpractice and latent disease cases. Plaintiff argues that he had no reason to know that the design of the fuel system may have caused his injury until he watched the “Dateline” segment years later and that the cause of action did not accrue until that time.

Id. (internal citations omitted).

While Bland attempts to rely upon this case as support for her assertion that the discovery rule applies to her case, we disagree. We note that in McClain v. Dana Corporation, 16 S.W.3d 320 (Ky. 2000), this Court, in discussing the discovery rule, held that:

The discovery rule does not operate to toll the statute of limitations to allow an injured plaintiff to discover the identity of the wrongdoer unless there is fraudulent concealment or misrepresentation by the defendant of his role in causing the plaintiff’s injuries. A person who has knowledge of injury is put on “notice to investigate” and discovery, within the statutory time constraints, the identity of the tortfeasor.

Further, we note that, as stated by our Supreme Court in Fluke Corp. v. Lemaster, 306 S.W.3d 55, 60 (Ky. 2010):

The discovery rule is available only in cases where the fact of injury or offending instrumentality is not immediately evident or discoverable with the exercise of reasonable diligence, such as in cases of medical malpractice or latent injuries or illnesses.

Sub judice, there was no question that Bland knew she had fallen into a hole, and that the fall was directly responsible for her injury. Bland immediately sought treatment for the injury, and shortly thereafter filed suit against the Bullitt County Board of Education. There was nothing latent about her injury, nor was the instrumentality hidden or unable to be discovered with the exercise of reasonable diligence.

To that end, we are in agreement with the court‘s conclusion, based upon the evidence of record, that Bland made no effort to remove the debris from the bottom of the hole or to conduct any additional research as to the owner of the hole or its purpose. We disagree with Bland’s argument that because the hole had grass and debris around it, the identity of the owner was “obstructed” as that term has been defined by our courts. Further, we are in agreement with the court below that a simple and routine title examination would have identified the owner of the hole. Indeed, prior to the expiration of the statute of limitations, Bland could have hired individuals to more thoroughly examine the hole with permission from the court and property owner, conducted title examinations, taken depositions or otherwise make efforts to ascertain the party responsible for the hole. While the pictures submitted by Bland showed the condition of the hole at ground level, we are not persuaded by her argument that these pictures amount to evidence of due diligence in this matter. Accordingly, we find no factual issue on the matter relating to the statute of limitations and affirm the granting of a directed verdict on this issue.

Upon finding that the statute of limitations is applicable to this matter, we turn now to Bland’s argument that Mount Washington should be estopped from asserting the statute of limitations. Bland argues that Kentucky law favors tolling a limitations period when the defendant cannot be identified by virtue of the defendant’s conduct. She asserts that in this case, Mount Washington concealed its identity, albeit perhaps unintentionally, by virtue of its neglect of the hole such that its ownership could not be identified upon inspection.

Concerning Bland’s argument that negligence can be imputed to Mount Washington, it again asserts that there was a complete absence of proof to support this charge. Mount Washington asserts that there was no evidence submitted to establish that it had any knowledge of the missing meter cover or air release valve prior to the time that Bland stepped into the hole. Additionally, Mount Washington argues that there is no evidence that it failed to exercise the appropriate care in maintaining the cover in a reasonably safe condition and indeed, asserts that immediately after obtaining knowledge that the cover was no longer on the hole, had it replaced.

In addressing this issue we note that KRS 413.190(2) provides as follows:

When a cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, and he by absconding or concealing himself or by any other indirect means obstructs the prosecution of the action, the time of the continuance of the absence from the state or obstruction shall not be computed as any part of the period within which the action shall be commenced.

The law in this Commonwealth is clear that by either statutory or equitable estoppel, the actions taken by Mount Washington must have been calculated to mislead or deceive, and to induce inaction by the party. See Adams v. Ison, 249 S.W.2d 791 (Ky. 1952). As the Court stated in Fluke, the essential elements of equitable estoppel require appellants to show:

(1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

Id. at 62 (citing Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Government, 265 S.W.3d 190, 194-95 (Ky. 2008)).

Sub judice, there was simply no evidence that Mount Washington took any action to mislead or deceive Bland, nor any evidence to suggest that the utility company did anything to prevent discovery of the true owner of the air release valve. Accordingly, we decline to reverse on this basis.

Another Post-McIntosh COA decision holding defect open and obvious (Smith v. Grubb, Pub. COA, 6/15/2012)

Some panels and some judges continue to go on their own merry way on what is meant by the SCOKY in its McIntosh decision regarding premises liability and the open and obvious defense. Here the case went to jury which held the manager of the premises liable, the defect not open and obvious, and the COA’s judges, Thompson, Lambert and Vanmeter, substituting their judgment of the facts over those of the jury.   Maybe the changes by the SCOKY are not open and obvious to me.

519. TORTS. PREMISES LIABILITY. ANOTHER OPEN AND OBVIOUS POST-MCINTOSH DISMISSAL.
SMITH (ROXANNE), ET AL.
VS.
GRUBB (TERESA), ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND VANMETER (CONCURS)
2011-CA-000223-MR
TO BE PUBLISHED
CLAY

THOMPSON, JUDGE: Speedway SuperAmerica, LLC, and its local store manager, Roxanne Smith, appeal from the Clay Circuit Court’s findings of fact, conclusions of law and judgment (judgment) awarding Teresa Grubb $5,762.45 for past medical expenses, $175,000 for pain and suffering, and awarding her husband, Randy Grubb, $20,000 for loss of consortium. The issues presented are: (1) whether the trial court erred when it found Smith individually liable; (2) whether the open and obvious doctrine applied and precluded recovery; (3) whether the trial court properly considered Teresa’s comparative fault; and (4) whether Judge House, the trial judge, was required to recuse after he and the plaintiffs’ attorney were identified by a federal court as participants in a vote-buying scheme. After a review of the record and contemplation of the applicable law, we conclude that Smith cannot be individually liable and that the condition on Speedway’s premises was open and obvious.

In Lucas v. Gateway Community Services Organization, Inc., 343 S.W.3d 341 (Ky.App. 2011), the Court applied the law as modified in McIntosh. Similar to the present case, the plaintiff stepped on crumbling gravel in a parking lot and fell. The trial court granted summary judgment to the premises owner on the basis of the open and obvious doctrine and this Court affirmed. The plaintiff’s contention that McIntosh required that the issue of her carelessness be submitted to the jury was rejected. In doing so, this Court emphasized that there was no evidence that the plaintiff was distracted by some outside force or her view obstructed. Unlike McIntosh, she was not under time-sensitive or stressful circumstances but simply failed to exercise care for her own safety. Under the circumstances, summary judgment was appropriate. Id. at 346.

As in Lucas, we conclude that McIntosh did not preclude a directed verdict based on the open and obvious doctrine. It modified the doctrine to the extent that trial courts must analyze the facts on a case-by-case basis. Therefore, the open and obvious doctrine has not been eliminated in this Commonwealth, rather, McIntosh created an exception that is simply stated: even if a condition on a premises owners’ property is open and obvious, the owner will not be absolved from liability if it was foreseeable that the plaintiff would be distracted and not observe or appreciate the danger.

When a motion for summary judgment or directed verdict is made by the owner, the question becomes whether there is a material issue of fact regarding the foreseeability of the plaintiff’s injury. Absent a material issue of fact upon which a fact-finder could reasonably find that the injury was foreseeable, the open and obvious doctrine precludes recovery. Otherwise, it is a question of fact and the application of comparative fault.

In this case, Teresa fell when she stepped on eroded blacktop in proximity to a drain covered by a grate. Such imperfections are so common that they should be anticipated and observed by an invitee and, absent special aspects of the pothole or foreseeable distraction, the premises owner has no liability. As stated by the Michigan Court when presented similar facts:

[P]otholes in pavement are an “everyday occurrence” that ordinarily should be observed by a reasonably prudent person. Accordingly, in light of plaintiff’s failure to show special aspects of the pothole at issue, it did not pose an unreasonable risk to her.

Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 523, 629 N.W.2d 384, 389 (2001).

The photographs and testimony indicate that the pothole was several feet from any parked car, under a well-lit canopy, not uncommonly deep or shielded from view, and located near a drainage grate. It had no special aspects that would pose an unreasonable danger to an observant invitee but was an erosion of the surface, a common condition in parking lots. Teresa admitted that the pothole was not concealed: she simply failed to observe the pothole.

The Grubbs argue that because Smith and other Speedway employees did not notice the pothole prior to Teresa’s fall, it could not have been open and obvious. We disagree. The standard is an objective one and not dependent on whether the employees noticed the pothole. Although Teresa was not obligated to look directly at her feet with each step taken, in the exercise of ordinary care for her own safety, she was required to observe the surface of the parking lot. Humbert v. Audubon Country Club, 313 S.W.2d 405, 407 (Ky. 1958).

Under the undisputed facts, the exception to the rule that a premises owner is not liable to injured invitees for open and obvious conditions on its premises is not applicable. There is no evidence that Speedway knew or should have known that an invitee on its premises would blindly walk through its parking lot oblivious to common imperfections. The pothole was only a danger to the unwary. Hamlet, 13 S.W.2d at 1052-1053. Therefore, the trial court erred as a matter of law when it denied Speedway’s motion for a directed verdict.

 

Medical Negligence Statute of Limitations not tolled for continuous course of treatment (Litsey v. Allen, COA, Pub., 6/1/2012)

Retired (and Senior Judge) Joseph Lambert’s decisions are almost always a breath of fresh air in succinctness, analysis, and lack of extraneous issues.  In the following decision, Senior Judge Lambert addressed the applicability of the tolling provision to medical malpractice cases arising from the “continuous course of treatment.”  In this case, the patient had alleged inappropriate sexual advances by her treating physician during the putative tolling period, and claimed that the Xanax prescriptions impaired her ability to exercise proper judgment about her course of treatment and his misconduct.  As stated by the COA —

However, in her deposition, Litsey testified that she had “no doubt” that Dr. Allen’s conduct was inappropriate at the time she left his office on August 27, 2007. Although Litsey continued to have her prescriptions renewed by Dr. Allen after that date, she does not allege that she was relying on him to correct the consequences of poor treatment. This is not a case for the continuous course of treatment doctrine, and there was no tolling of the statute of limitations.

485. STATUTES OF LIMITATION.  MEDICAL NEGLIGENCE (CONTINUOUS TREATMENT AND TOLLING ADDRESSED)
LITSEY (DEVON)
VS.
ALLEN (JACK), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001777-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Devon Litsey appeals from a summary judgment of the Jefferson Circuit Court dismissing her claims against Jack Allen, M.D., his medical practice Gray & Allen, P.S.C. (collectively, “Dr. Allen”) and his insurance carrier, State Farm Fire and Casualty Company (State Farm). Litsey argues that the trial court erred by holding that her claims for malpractice and intentional infliction of emotional distress were barred by the one-year statute of limitations in KRS 413.140(1)(e). We agree with the trial court’s conclusion that Litsey’s claim for malpractice was not tolled following her last visit with Dr. Allen, and that her claim for intentional infliction of emotional distress was subject to the one-year limitation period.

With respect to the medical malpractice claim, KRS 413.140(1)(e) provides that “[a]n action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice[]” “. . . shall be [brought] within one (1) year after the cause of action accrued[.]” Litsey admitted that her last visit with Dr. Allen occurred on August 27, 2007, more than one year prior to the filing of her claim. However, after her last visit, Litsey continued to have her prescriptions filled through Dr. Allen’s office until January of 2008. In addition, Litsey scheduled an appointment with Dr. Allen for January 17, 2008, but she did not keep the appointment. Litsey contends that the one-year limitation period was tolled by the “continuous course of treatment” doctrine and that the action filed in December of 2008 was timely.

In Harrison v. Valentini, 184 S.W.3d 521 (Ky. 2005), the Kentucky Supreme Court applied continuous treatment rule to medical malpractice cases. As applied, the “continuous course of treatment doctrine” provides that “the statute of limitations is tolled as long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission.” Id. at 524. (Footnote omitted). Since Litsey remained a patient of Dr. Allen’s until at least January of 2008, she maintains that her action filed in December of 2008 was timely.

In support of its decision, the Court in Harrison noted “that the trust and confidence [which] marks the physician-patient relationship puts the patient at a disadvantage to question the doctor’s techniques, and gives the patient the right to rely upon the doctor’s professional skill without the necessity of interrupting a continuing course of treatment by instituting suit.” Harrison, 184 S.W.3d at 524. By tolling the statute of limitations for medical malpractice, the continuous course of treatment doctrine gives the patient the right to rely upon the physician without interrupting treatment by instituting suit. The doctrine “also gives the physician a reasonable [opportunity] to identify and correct errors made at an earlier stage of treatment.” Id. at 524-25, citing Watkins v. Fromm, 108 A.D.2d 233, 488 N.Y.S.2d 768, 772 (1985). Consequently, the Court held that,

where a patient relies, in good faith, on his physician’s advice and treatment or, knowing that the physician has rendered poor treatment, but continues treatment in an effort to allow the physician to correct any consequences of the poor treatment, the continuous course of treatment doctrine operates to toll the statute of limitations until the treatment terminates at which time running of the statute begins.

Id.at 525.

In this case, Litsey alleges that Dr. Allen made inappropriate sexual advances to her on her last two office visits, March 29, 2007 and August 27, 2007. Litsey contends that her reliance on Dr. Allen for Xanax prescriptions impaired her ability to exercise proper judgment about her course of treatment and his misconduct. However, in her deposition, Litsey testified that she had “no doubt” that Dr. Allen’s conduct was inappropriate at the time she left his office on August 27, 2007. Although Litsey continued to have her prescriptions renewed by Dr. Allen after that date, she does not allege that she was relying on him to correct the consequences of poor treatment. This is not a case for the continuous course of treatment doctrine, and there was no tolling of the statute of limitations.

DEFENSES: Issue Preclusion (collateral estoppel) of Res Judicata

From WARD REALTY, LLC VS. ROY STOESS ESTATE, LLC,
COA, NPO, 5/28/2012
2011-CA-000811-MR

It is well settled that the doctrine of res judicata serves as a bar to repetitious lawsuits involving the same cause of action. Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459 (Ky. 1998); Coomer v. CSX Transportation, Inc., 319 S.W.3d 366 (Ky. 2010). Res judicata is composed of two subparts – claim preclusion and issue preclusion. Yeoman, 983 S.W.2d 459; Coomer, 319 S.W.3d 366. In this appeal, we are concerned with the doctrine of issue preclusion. Issue preclusion, also known as collateral estoppel, generally operates to bar issues that were litigated in a previous action from being relitigated in a second action. Yeoman, 983 S.W.2d 459. The following elements are necessary for issue preclusion to operate as a bar in subsequent litigation:

First, the issue in the second case must be the same as the issue in the first case. Restatement (Second) of Judgments § 27 (1982). Second, the issue must have been actually litigated[.] Id. Third, even if an issue was actually litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action. Id. Fourth, for issue preclusion to operate as a bar, the decision on the issue in the prior action must have been necessary to the court’s judgment. Id.

Yoeman, 983 S.W.2d at 465.

Defenses: Res Judicata and Collateral Estoppel

PRICE V. YELLOW CAB CO. OF LOUISVILLE
COA, PUBLISHED
JAN. 20, 2012

Res judicata is an affirmative defense that bars repetitious suits involving the same cause of action. Yeoman v. Commonwealth, Health Policy Board, 983 S.W.2d 459, 464 (Ky. 1998). The Supreme Court of Kentucky defined this doctrine in City of Louisville v. Louisville Professional Firefighters Ass’n, Local Union No. 345, IAFF, AFL-CIO, 813 S.W.2d 804, 806 (Ky. 1991), as follows: “Under the doctrine of res judicata or ‘claim preclusion,’ a judgment on the merits in a prior suit involving the same parties or their privies bars a subsequent suit based upon the same cause of action.” The City of Louisville Court then cited to Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970), in which the former Court of Appeals addressed the elements of res judicata:

The general rule for determining the question of res judicata as between parties in actions embraces several conditions. First, there must be identity of the parties. Second, there must be identity of the two causes of action. Third, the action must be decided on its merits. In short, the rule of res judicata does not act as a bar if there are different issues or the questions of law presented are different.

City of Louisville, 813 S.W.2d at 806. In City of Covington v. Board of Trustees of Policemen's and Firefighters' Retirement Fund of City of Covington, 903 S.W.2d 517, 521 (Ky. 1995), the Supreme Court addressed the doctrine of collateral estoppel:

Collateral estoppel is closely related to the doctrine of res judicata. The latter may be used to preclude entire claims that were brought or should have been brought in a prior action, while the doctrine of collateral estoppel only applies to issues actually litigated. Offensive collateral estoppel refers to the successful assertion by a party seeking affirmative relief that a party to a prior adjudication who was unsuccessful on a particular issue in that adjudication is barred from relitigating the issue in a subsequent proceeding. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4, 99 S.Ct. 645, 649 n. 4, 58 L.Ed.2d 552 (1979). Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the other plaintiff had previously litigated and lost against another defendant. Id.

Defenses: COA in NPO decision addresses immunity issue re bullying charges and supervision of students

FLORENCE V. L.P.
COA NPO
JAN. 20, 2012

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

There are two cases that Jane Doe relies on to show that the supervision of students is ministerial. Those are Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), and Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145 (Ky. 2003). We find these two cases distinguishable, for the same reasons the Kentucky Supreme Court did in Turner, supra.

Although we consider [Appellant’s] conduct in this case to be discretionary, we recognize the apparent incongruity with our precedent regarding a supervisory duty in the public school setting, as “we have held that a claim of negligent supervision may go to a ministerial act or function in the public school setting.” However, Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)[,] and Williams [v. Kentucky Dept. of Educ.], 113 S.W.3d 145 [(Ky. 2003)]-the cases relied upon in enunciating the public school distinction-have quite different facts from those before us.
In Yanero, this Court deemed “enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice” to be ministerial. Unlike the teacher’s decision-making in this case, a helmet requirement constitutes “an essentially objective and binary directive.” As a result, “[t]here is no substantial compliance with such an order and it cannot be a matter of degree: its enforcement was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” You do it or you don’t-and unlike here, there is no factual determination required for its application.

Admittedly, [in Williams] we have also “rejected the notion that the failure of teachers … to supervise their students in the face of known and recognized misbehavior was a discretionary act.” This decision stemmed from the requirement in KRS 161.180(1) that teachers must “hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.” The dispute in this case, though, concerns the means of supervision rather than a failure to supervise students who were drinking and driving to and from a school- sponsored function as occurred in Williams.
Turner at 876-877(citations omitted). In the case at hand, the appellants’ supervision of the students required more discretionary actions than requiring a student to wear a helmet during batting practice, as in Yanero. Further, the appellants did not fail to supervise and discipline students, as was the case in Williams. As is clear from the evidence of record consisting of depositions, e-mails exchanged by Mother to the school staff, and transcripts of telephone calls, the appellants all took action when notified by Mother of her belief that her daughter was being bullied and harassed. Florence acted by meeting with teachers to see if they knew about the harassment and to direct them to monitor Doe and Student 1. She also directly asked Doe if there was anything Doe needed to tell her about the incidents or if Doe would like her to follow up later. Florence gave Doe an administrative pass that would allow her to leave class anytime she felt uncomfortable or anxious and had Student 1’s schedule changed so he and Doe would not be in the same class. Florence also called and e- mailed Mother in order to keep her informed and to gather more information.

Public officials are presumed to have performed their duties in good faith. Rowan County, supra; Koscot Interplanetary, Inc. v. Commonwealth, by Allphin, 649 S.W.2d 201, 202 (Ky. 1983). Although Doe’s brief suggests bad faith on the part of the appellants, the record of appellants’ conduct from the first incident brought to their attention in mid-January until Mother removed Doe from Crawford in mid-April contains not an instance of disrespectful or unconcerned conduct toward Doe or her mother. On the contrary, what is notable in review of the e-mail and recorded conversations between the appellants and Mother and between the appellants and other school personnel is the respectful, concerned tone which the appellants maintained even as the tone of Mother increasingly reflected her escalating frustration due to her perceptions of Doe’s victimization. However, a concerned parent’s conclusion that her child is being victimized does not make it so. What is legally significant is that her concerns were heard and the appellants took steps to determine whether Doe was being bullied and to stop or prevent any bullying.
In discussing the conduct of school officials following the carnage at the hands of Michael Carneal, the James Court stated:

Any of the conduct engaged in by the teachers, administrators and Board members can be properly classified as discretionary as they personify the type of acts which are intended to receive protection. Without such protection, the ability of those entrusted with the education of our children to perform the varied functions fundamental to their employment would be hindered. The conduct exhibited by the school appellees inherently required conscious evaluation of alternatives, personal reflection and significant judgment. By definition, their actions were discretionary. In this circumstance, their judgment may arguably be questionable, particularly with the benefit of hindsight, but applying such an unrealistic standard is not only unjust, it’s unauthorized.

James, at 909-10. In this case, there is no allegation that known rights were violated or
that malice and/or corruption were responsible for the conduct of the school personnel. Consequently, neither the appellants’ actions nor any inaction resulted from bad faith. The Kentucky Supreme Court has stated, [i]t is imperative that teachers maintain the discretion to teach, supervise, and appropriately discipline children in the classroom. To do this, they must have appropriate leeway to do so, to investigate complaints by parents, or others, as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action, which may, at times, involve reporting the conduct of a child to the appropriate authorities. In fact, protection of the discretionary powers of our public officials and employees, exercised in good faith, is the very foundation of our doctrine of “qualified official immunity.”

Turner at 876. Based on the foregoing, we find that the trial court incorrectly denied
summary judgment for the appellants. We therefore reverse and remand this case with instructions to grant the appellants’ motions for summary judgment due to qualified official immunity.

Defenses: Workers Compensation Exclusive Remedy and Up the Ladder

From Kenney v. Cemex, Inc., COA, NPO, 3/25/2011

In its motion for summary judgment, Cemex argued that Kenney was barred from bringing any tort claim against it because he received workers’ compensation benefits from HS Construction’s insurance carrier. Cemex relied on the exclusivity provision of the Kentucky Workers’ Compensation Act, KRS 342.690(1). In relevant part, the exclusivity provision states:
If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. For purposes of this section, the term “employer” shall include a “contractor” covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact secured the payment of compensation.

“The statute makes it plain that if [a company] is a contractor, it has no liability in tort to an injured employee of a subcontractor.” Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 461 (Ky. 1986). This is referred to as “up-the-ladder” immunity. If a company meets the definition of “contractor” provided in the workers’ compensation statutes, then it is deemed to be an “up-the- ladder” employer of its subcontractors’ employees and, like any employer, is entitled to immunity from its employees’ tort actions. The statutes define a “contractor” as a “person who contracts with another . . . [t]o have work performed of a kind which is a regular or recurrent part of the work of the [person’s] trade, business, occupation, or profession.” KRS 342.610(2)(b).

Accordingly, the dispositive issue in this matter, and the focus of Kenney’s disagreement with Cemex, is whether the repairs Kenney was assigned to perform on the splitter gate at the 526 Ball Mill qualified as work that is a “regular” and “recurrent” part of Cemex’s business, per KRS 342.610(2)(b).
Kentucky jurisprudence further defines these terms. In General Elec. Co. v. Cain, 236 S.W.3d 579 (Ky. 2007), our Supreme Court held that, as used in the statute, “regular” and “recurrent” workis work that is customary, usual, or normal to the particular business (including work assumed by contract or required by law) or work that the business repeats with some degree of regularity, and it is of a kind that the business or similar businesses would normally perform or be expected to perform with employees.” Id. at 588.

The Court also stated that “‘regular’ means that the type of work performed is a ‘customary, usual or normal’ part of the premises owner’s ‘trade, business, occupation, or profession,’ including work assumed by contract or required by law.” Cain, 236 S.W.3d at 586-7. “Recurrent” means that the work is repeated, though not “with the preciseness of a clock.” Id. (quoting Daniels v. Louisville Gas and Elec. Co., 933 S.W.2d 821, 824 (Ky. App. 1996)).

The Sixth Circuit has held that work being done “periodically,” as an “ordinary part of plant maintenance,” is regular or recurrent. Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1257 (6th Cir. 1987). In Daniels, a panel of this Court held that emissions testing was a regular or recurrent part of a contractor’s business on the basis of its manager’s affidavit stating that testing had occurred on fourteen occasions in 28 years. Daniels, 933 S.W.2d at 824.

Appeals of Administrative Rulings: Timely filing required (limitation of actions)

 

From Gallien v. Kentucky Board of Medical Licensure, COA, Published, 3/25/2011

In this case, the Order of Suspension was mailed to Appellant on April 25, 2007. However, she did not file her petition for judicial review until August 18, 2008 – nearly 18 months later. This delay is fatal to Appellant’s appeal. Our precedent holds that “[w]here an appeal is filed in the circuit court by grant of a statute, as in this case, the parties must strictly comply with the dictates of that statute.” Spencer County Preservation, Inc. v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky. App. 2007). This is because “[a]n appeal from an administrative decision is a matter of legislative grace and not a right, and thus the failure to strictly follow statutory guidelines for the appeal is fatal.” Id.; see also Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978); Ky. Unemployment Ins. Comm’n v. Providian Agency Group, Inc., 981 S.W.2d 138, 139-40 (Ky. App. 1998); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). The circuit court concluded that it lacked jurisdiction to consider Appellant’s petition for judicial review because the petition had not been timely filed within the statutory 30-day period; thus, dismissal was merited. This conclusion was the correct one.