Kentucky Court of Appeals Decisions (Minutes ) for August 23, 2013 (Nos. 802-828); 27 decisions posted and no cases are “To Be Published”)

Sample Medical Illustration for Use in Court Prepared by Medical Illustrator Delilah Cohn, MFA, CMI http://www.medillustrationstudio.com

Sample Medical Illustration for Use in Court Prepared by Medical Illustrator Delilah Cohn, MFA, CMI http://www.medillustrationstudio.com

Medical illustrations can take your diagnostic images and put them in an illustration that can be  used in court, mediation or depositions to be more easily understood by jurors, adjusters, mediators and with more impact!

Your expert can use the illustration to portray their testimony, and jurors can take the hard copy back into the jury room.  Digital images can be incorporated into your media presentation for opening and closings.

Please note the above image is a picture of the illustration prepared by Delilah Cohn for my last trial and enabled me to obtain a $300,000 plus verdict.  A picture is worth a thousand words, and can be worth 300,000  dollars!  The actual image was of  better quality, and my testifying radiologist loved it!  It provided an excellent comparison comparing before and after MRI studies of the disk and its damage from the collision.  Wham!  An actual MRI slice does not depict the graphic consequences of an extruded disk and its encroachment on the spinal column and nerves like a colorful illustration.

Delilah Cohn, MFA, CMI (click here to go to her web site)

Delilah Cohn is an award-winning, board certified medical illustrator with over 30 years of experience. She earned a Bachelor of Science degree in Medical Art from the University of Illinois Medical Center in Chicago. She holds a Master of Fine Art degree in Illustration from Syracuse University and takes numerous continuing education programs in art and medicine to maintain her certification.

For those who wonder how I was able to “blur out” the name of the person in the image? Well,  I used a free program called “skitch” from Evernote.  Very useful.  To reduce the resolution of the image to a more manageable size for the internet, I used Pixelmator (a cheaper and easier to use version similar to Photoshop from Adobe ™). You can most definitely use photoshop or a stripped down version of Elements for both Mac and Windoze.  All Delilah provided me with high qualit digital images, I did not use them in this post but simply to a digital picture and made sure the image was only 72 DPI.  Good enough for the web, but not good enough for court.

Please note, a medical illustration can be tailored to your particular x-rays etc., or you can save some money and use “stock” photos which are helpful but lack the laser focus connection to your particular case.

Published and Unpublished Decisions from the Kentucky Court of Appeals for August 23, 2013 (click here for AOC set of minutes)

The Court of Appeals announced 18 decisions this date, designating four of those decisions for publication (“To Be Published”).

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts web site.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

Guess what none were designated to be published this week!

Download (PDF, Unknown)

TORTS. WRONGFUL DEATH. MEDICAL MALPRACTICE. DIRECTED VERDICT. Marlow vs. Buck, COA, NPO 4/12/2013

MARLOW(PATRICIA), AS ADMINISTRATRIX, ET AL.
VS.
BUCK (JAMES)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
2012-CA-000125-MR
2012-CA-000189-MR
NOT TO BE PUBLISHED 4/12/2013

NICKELL, JUDGE: Patricia Marlow, on behalf of the estate and minor children of Doveanna Marlow, deceased, (collectively “Marlow”) has appealed from the December 22, 2011, denial of her motion for a judgment notwithstanding the verdict (“JNOV”) following a jury verdict and subsequent judgment entered by the Fayette Circuit Court on December 2, 2011, in favor of James Buck, M.D. Dr. Buck has filed a protective cross-appeal. After a careful review of the record, the briefs and the law, we affirm.

Marlow’s executrix brought this action against Dr. Buck on December 31, 2008, and the case proceeded to a jury trial on November 14-17, 2011. The jury was presented evidence and testimony on three general issues: whether Dr. Buck breached the standard of care; whether such breach was a substantial factor in causing Marlow’s death; and damages. Of importance to this appeal, Dr. Buck admitted he had been the only person pushing the needle that pierced Marlow’s aorta and took responsibility for causing her death. He could only speculate as to why the guide needle was inadvertently advanced too far, but vehemently denied that he breached any standard of care. He stated he had performed thousands of CT-guided procedures without incident and confirmed he had acted in “the same careful and deliberate way” during Marlow’s procedure. Experts called by both sides universally agreed that bad results could occur absent medical malpractice in biopsy procedures.

At the close of Marlow’s case-in-chief, and again at the close of all the proof, Marlow moved the trial court to direct a verdict in her favor. She argued Dr. Buck and his retained causation expert made judicial admissions that removed the issue of causation from the jury. Dr. Buck opposed the motions and contended that although he had admitted he caused the guide needle to puncture Marlow’s aorta, there had been no admission he violated the standard of care or that he was legally responsible for Marlow’s death based on such breach. The trial court denied the motions and reasoned sufficient evidence existed to send the matter to the jury.

Download (PDF, 114KB)

Bifurcation of issues (separate trials) ordered on the morning of trial affirmed on appeal (Calhoun v. Prevence, COA, Pub., 6/22/2012)

Ordering separate trials, aka bifurcation, is a practice often applied in bad faith and underinsured motorist claims (no Coots advance).

In this COA decision, bifurcation was applied in a different context, and I thought the standards outside the usual venue might be useful to know and apply:

528.  TORTS. AUTOMOBILE COLLISION. BIFURCATION.
CALHOUN (MARY B.), ET AL.
VS.
PROVENCE (CHARLES E.), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-001282-MR
2010-CA-001348-MR
TO BE PUBLISHED
LAUREL

STUMBO, JUDGE: Mary C. Calhoun (“Mrs. Calhoun”) and Leslie D. Calhoun (“Mr. Calhoun”) appeal from a Judgment of the Laurel Circuit Court reflecting a jury verdict in favor of Mrs. Calhoun in her action to recover damages arising from an automobile accident. She argues that the trial court erred in bifurcating the trial, failing to grant a directed verdict, failing to grant a new trial on the issue of causation, and prohibiting the introduction of the at-fault driver’s criminal charges. Cross-appellant Legend Motors, d/b/a Legend Suzuki, argues that the court erred in failing to conclude that it did not own the vehicle operated by the at-fault driver, and that the purchaser’s insurer provided primary insurance coverage as a matter of law. We find no error, and accordingly affirm the Judgment on appeal.

The first phase resulted in a directed verdict in favor of the Calhouns against Provence on the issue of liability and an order overruling the Calhouns’ motion for a directed verdict on the issue of whether the accident caused Mrs. Calhoun’s injuries. The jury returned a verdict against Mrs. Calhoun on the issue of comparative negligence and awarded damages as follows: 1) past medical expenses: $1,289.00; 2) past pain and suffering: $600.00; 3) future pain and suffering: none; 4) lost wages: $1,800.00; and 5) vehicle damage: $3,200.00. The jury denied Mr. Calhoun’s claim for loss of consortium and returned a verdict in favor of Provence on Mrs. Calhoun’s claim for punitive damages.

At the close of phase 2, the trial court directed a verdict in favor of Legend Suzuki and Yaden’s Auto Sales on the Calhouns’ claim of negligent entrustment. It denied the motion of Kentucky Auto Exchange for a directed verdict. The matter went before the jury, which returned a verdict in favor of Mrs. Calhoun and against Kentucky Auto Exchange on the issue of negligent entrustment. The jury apportioned liability as follows: 1) Charles E. Provence, II: 48%; 2) Mrs. Calhoun: 10%; and 3) Kentucky Auto Exchange: 42%.

A Judgment was rendered which reflected the verdicts, with credit given for basic reparations benefits payable pursuant to KRS 304.39-060(2)(a). The Calhouns’ motions for a Judgment Notwithstanding the Verdict and New Trial were overruled, and this appeal followed.

COURT’S ANALYSIS ON THE BIFURCATION ISSUE:

Extensive discovery was conducted and the trial court rendered an Order bifurcating the proceedings. The first phase of the trial was conducted to determine Provence’s liability, if any, as well as Mrs. Calhoun’s comparative negligence and damages. At the second phase, the claims against Legend Suzuki and Yaden’s Auto Sales would be tried. These claims included negligent entrustment, negligent hiring, retention and supervision, and apportionment among all parties.

The first phase resulted in a directed verdict in favor of the Calhouns against Provence on the issue of liability and an order overruling the Calhouns’ motion for a directed verdict on the issue of whether the accident caused Mrs. Calhoun’s injuries. The jury returned a verdict against Mrs. Calhoun on the issue of comparative negligence and awarded damages as follows: 1) past medical expenses: $1,289.00; 2) past pain and suffering: $600.00; 3) future pain and suffering: none; 4) lost wages: $1,800.00; and 5) vehicle damage: $3,200.00. The jury denied Mr. Calhoun’s claim for loss of consortium and returned a verdict in favor of Provence on Mrs. Calhoun’s claim for punitive damages.

At the close of phase 2, the trial court directed a verdict in favor of Legend Suzuki and Yaden’s Auto Sales on the Calhouns’ claim of negligent entrustment. It denied the motion of Kentucky Auto Exchange for a directed verdict. The matter went before the jury, which returned a verdict in favor of Mrs. Calhoun and against Kentucky Auto Exchange on the issue of negligent entrustment. The jury apportioned liability as follows: 1) Charles E. Provence, II: 48%; 2) Mrs. Calhoun: 10%; and 3) Kentucky Auto Exchange: 42%.

A Judgment was rendered which reflected the verdicts, with credit given for basic reparations benefits payable pursuant to KRS 304.39-060(2)(a). The Calhouns’ motions for a Judgment Notwithstanding the Verdict and New Trial were overruled, and this appeal followed.

The Calhouns first argue that the trial court committed reversible error in bifurcating the proceedings. Directing our attention to CR 42.02, the Calhouns note that a trial court shall order separate trials if it determines that such trials “will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy[.]” The Calhouns argue that under the facts at bar, a bifurcated proceeding would not be conducive to expedition and economy, and that the trial court did not determine that two trials “will avoid prejudice.” Rather, the Calhouns maintain that in bifurcating the proceeding, the court merely opined the trial would be more efficient and “may” be less potentially prejudicial. Additionally, the Calhouns contend that the court made no indication of what the prejudice would be, nor which party would be prejudiced. In sum, the Calhouns argue that the bifurcation was not supported by the record and the law, that it resulted in conflicting verdicts, and that it was manifestly arbitrary, unfair, unreasonable and not supported by sound legal principles.

We have closely examined the record and the law on this issue, and find no error. CR 42.02 states that,

“[i]f the court determines that separate trials will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy, it shall order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims,counterclaims, third-party claims or issues.”

Accordingly, separate trials shall be conducted if the court determines that they will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy. In the matter at bar, the trial court stated as its basis for bifurcation its concern that the introduction of Provence’s criminal history and driving record could prejudice the proceedings against the remaining defendants if all of the claims were adjudicated in a single proceeding. In granting the defendants’ motion for bifurcation, the court held that bifurcation 1) would be cleaner, 2) the trial would be more efficient, 3) the proceedings may be less prejudicial and 4), the plaintiffs would not be prejudiced by bifurcation.

We are not persuaded by the Calhouns’ contention that the trial court’s basis for bifurcating the proceeding was unsupported by the law. CR 42.02 not only allows, but requires bifurcation upon the court’s finding that separate trials will be convenient, will avoid prejudice or will be expeditious. It is noteworthy that the language utilized in the civil rule is disjunctive; that is to say, the word “or” rather than “and” is used. To support the conclusion that bifurcation is warranted, the trial court need only determine either that separate trials will be convenient, or will avoid prejudice or will be expeditious and economical. In the matter at bar, the Laurel Circuit Court determined that separate proceedings would be more efficient. This finding, taken alone, is sufficient to support the court’s determination that bifurcation was warranted. As the Calhouns properly acknowledge, a trial court has broad discretion in ruling on a motion to bifurcate. Island Creek Coal Company v. Rodgers, 644 S.W.2d 339 (Ky. App. 1982). Such a decision will be overturned only if it constitutes an abuse of discretion, which is found where the decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999). We do not conclude that the decision at issue constitutes an abuse of discretion and accordingly find no error on this issue.

The Calhouns also argue that the timing of the bifurcation, the morning of trial, was prejudicial because it required a substantial reorganizing of Appellants’ order of proof. While this court believes that an earlier decision on the bifurcation issue would have been preferable, we cannot say that the trial court abused it wide discretion on the issue.

 

STD OF REVIEW: Appellate review of inadequate or inconsistent damages

From CUMMINGS (CALVIN) VS. STEELE (BURNICE W.), ET AL., NPO, COA 3/11/2011

The decision of whether to grant a motion for a new trial based upon
inadequate or inconsistent damages “‘. . . . is a discretionary function assigned to the trial judge who has heard the witnesses first-hand and viewed their demeanor and who has observed the jury throughout the trial’.” Cooper v. Fultz, 812 S.W.2d 497, 501 (Ky. 1991) (quoting Davis v. Graviss, 672 S.W.2d 928, 932 (Ky.1984)), abrogation on other grounds recognized by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky.2002). The trial court’s ruling will be upheld unless it is clearly erroneous. Id. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998). Therefore, we must determine whether substantial evidence existed to support the trial court’s decision to deny Cummings’ motion for a new trial.

 jury’s decision to award damages for medical expenses and lost
wages but not to award damages for pain and suffering is not a legal inconsistency. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001). Kentucky law does not require a jury to award pain and suffering damages in every case in which it awards medical expenses. Id. Instead, the question of whether a jury’s award of damages is inadequate requires an examination of the underlying evidence. Id. at 602.

Evidence that contradicts the jury’s decision is not enough to show inadequacy. The jury is given the responsibility of evaluating the evidence and determining the credibility of witnesses. A jury is not bound to believe any particular witness. Spaulding v. Sprinkle, 774 S.W.2d 465, 467 (Ky. Ct. App. 1989).

** *

While juries are not required to award pain and suffering damages each time a plaintiff is compensated for medical expenses, “. . . . where a substantial personal injury is sustained, suffering is presumed.” Schriewer v. Schworer, 296 Ky. 749, 178 S.W.2d 598, 599 (1944). Based upon the uncontroverted evidence of Cummings significant injuries and the inadequacy of the award, we conclude that the trial court’s Order was clearly erroneous.

Trial: Supplementing Damage Interrogatory Answers AFTER close of evidence and before submitting to jury permitted

The following is an important decision by the COA which held in this published decision that the CR 26 answers to damage interrogatories can be supplemented at the close of evidence and before the case is submitted to the jury.

Engle v. Baptish Healthcare System, Published, 2/25/2011

Although Baptist received a defense verdict, it filed a cross-appeal regarding the trial court’s instructing the jury on punitive damages. Engle’s complaint, filed November 24, 2004, requested an unspecified amount of punitive damages. Baptist requested answers to interrogatories, and one of Baptist’s interrogatories asked Engle to categorize and specify the amount of his damages. In his answer to Baptist’s interrogatory, Engle made no reference to punitive damages.

The trial in this matter concluded on October 9, 2009. After the close of evidence at trial, but before the matter was submitted to the jury, Engle moved to supplement his answers to Baptist’s interrogatories because he wished to specify a sum of punitive damages for the jury to consider. Baptist objected, contending that Kentucky Rule(s) of Civil Procedure (CR) 8.01(2) precluded Engle from supplementing his interrogatories at that time. In support, Baptist cited Fratzke v. Murphy, 12 S.W.3d 269 (Ky. 1999), which “recognized that a trial court can authorize answers or supplemental answers to interrogatories for good cause, as late as during the trial itself.”4 [fn 4 In Tennill v. Talai, 277 S.W.3d 248, 251 (Ky. 2009), the Supreme Court of Kentucky interpreted Fratzke in this manner.]   Baptist urged that Engle’s motion was untimely because both sides had already finished presenting their cases. Nevertheless, the trial court granted Engle’s motion to supplement his answers to Baptist’s interrogatories, and the question of punitive damages was submitted to the jury.

In its cross-appeal, Baptist repeats its argument that Engle’s motion was improper solely because it occurred after both sides had presented their respective cases. Baptist urges that, should we remand this matter, Engle should be precluded from seeking punitive damages upon retrial.

However, Baptist presents no authority supporting that a motion to supplement answers to interrogatories is improper within the meaning of Fratzke if it is made after the close of evidence but prior to submitting a matter to the jury. Moreover, Fratzke merely holds that a motion to supplement answers to interrogatories may be granted as late as during trial. We have determined that a new trial is warranted in this matter, the new trial in this matter has yet to occur, and Baptist presents no authority that would prohibit Engle from moving to supplement his answers during the course of retrial. Therefore, we find no error in the trial court’s decision to grant Engle leave to amend his answers to Baptist’s interrogatories.

 

 

CRIMINAL – Jurors (challenges, rehabilitating): Richard Gabbard v. Commonwealth of Kentucky (SC 10/29/2009)

Richard Gabbard v. Commonwealth of Kentucky
2008-SC-000062-MR October 29, 2009
Opinion by Justice Noble. All sitting; all concur.

Gabbard argued hismurder conviction must be reversed under Shane since he was forced touse two peremptory strikes to remove two jurors who should have beenstruck for cause. The Supreme Court held that the trial court should havestruck one of the jurors for cause after admitting she had already formedan opinion that Gabbard was guilty. The Court admitted the issue was a“tough call,” but held that the trial court relied too much on the juror’sstatements that she could set aside her personal views and base herdecision solely on the evidence. The Court noted that under Montgomery,pervasive bias or prejudice cannot be rehabilitated by using “magicquestions.” On the strike sheet, Gabbard’s defense counsel identified thejurors he would have struck if he had not been required to use hisperemptory challenges on the jurors that he believed should have beenstruck for cause. One of the jurors identified in this manner actually sat onthe jury– thus the exception to Shane did not apply and the conviction wasreversed. Further, the Court formally adopted this practice as arequirement, holding that henceforth “in order to complain on appeal thathe was denied a peremptory challenge by a trial judge’s erroneous failureto grant a for-cause strike, the defendant must identify on his strike sheetany additional jurors he would have struck.”

CIVIL PROCEDURE – Sanctions (excluding witnesses) for missing court ordered deadline: LeBlanc v. Dorten (COA 9/18/2009)

LeBlanc v. Dorten
2008-CA-001574 9/18/09 2009 WL 2971760 DR pending
Opinion by Judge Lambert; Judge Acree and Senior Judge Harris concurred.

The Court affirmed a jury verdict in appellee’s favor on appellant’s claims related to a motor vehicle accident. The Court first held that the trial court did not abuse its discretion in excluding witnesses and evidence submitted after a court-ordered deadline. The court’s decision was directly related to appellant’s failure to comply with the discovery deadlines and thus, the sanction clearly bore a direct relationship to the defect and was not unreasonable or capricious. Further, CR 37.02(2)(b) supported the court’s sanction. The Court distinguished cases that did not involve the violation of a court order. The Court also held that appellant’s answer to interrogatories was an insufficient disclosure of his witnesses. The Court next held that the trial court did not err in denying rebuttal evidence. Appellee presented no evidence at trial and therefore, there was nothing to rebut. The Court finally held that the trial court did not err in denying appellant’s motion for a new trial. Appellant’s avowal testimony, taken without an oath in the presence of a judge, was not uncontradicted evidence of perjury.

CRIMINAL LAW – Pro se representation; death penalty voir dire and challenges: Jerry Bernard Winstead v. Commonwealth of Kentucky Court of Justice (SC 5/21/2009)

Jerry Bernard Winstead v. Commonwealth of Kentucky Court of Justice
2007-SC-000425-MR May 21, 2009
Opinion by Justice Abramson. All sitting; all concur.

Winstead was convicted of murder and first degree robbery and sentenced to concurrent terms of life without parole and twenty years. On appeal, Winstead argued that he had been denied his right to 2 represent himself at trial. The Supreme Court noted that there is a strong presumption against the waiver of counsel, which can only be overcome by a clear and unequivocal invocation of the right to represent one’s self. The Court concluded that Winstead’s pro se discovery motions and letter to the trial court expressing dissatisfaction with his appointed counsel did not amount to much an invocation—thus there was no error.

The Court also rejected Winstead’s argument that Juror #29 should have been struck for cause since he said Winstead’s poverty and family history would not affect his sentencing decision. The Court held potential jurors are to be struck for cause if they would automatically vote for the death penalty regardless of mitigating evidence, however that right does not extend to disqualifying a potential juror who would give no weight to a particular mitigating factor. The juror in question had said he would not automatically vote to impose the death penalty and would consider mitigating evidence. The Court observed that Winstead was not entitled to jurors who were bound to weigh mitigating evidence in his favor.

 Winstead also argued that he had been denied his constitutional right to voir dire potential jurors on the issue of racial prejudice. Winstead had sought to ask broad questions designed to elicit racial attitudes (e.g. “How would you react to an interracial romantic relationship in your family?”), but the trial court limited the questions to the racial aspects of the case (e.g. “Would the fact that individuals in this case were involved in interracial relationships have any bearing on your judgment?”). The Supreme Court found no abuse of discretion in limiting the extent of the questioning since it did not render the trial fundamentally unfair. The Court noted that Winstead was allowed to ask questions that afforded him the opportunity to assess verbal responses and demeanor regarding the racial facets of the case.

Torts – discovery/admissibility of SSD application, Financial hardship exception to collateral source rule, aggravation of pre-existing condition instructions, judgment NOV denial affirmed: Peters v. Wooten (COA 7/17/2009)

Peters v. Wooten
2007-CA-001955 07/17/2009 2009 WL 2059085

Opinion by Judge Moore; Judge Acree and Senior Judge Knopf concurred.

The Court affirmed a verdict and judgment for the defense after a jury trial in a personal injury case arising from an automobile accident. The Court first held that the trial court erred in ordering discovery of appellants’ Social Security disability application. The Court then held that, although the error occurred, the trial court did not abuse its discretion in overruling appellant’s objection to the evidence at trial when the records were used only to point out inconsistencies in appellant’s prior testimony regarding his work history and did not reference appellant’s attempt to collect benefits or disclose the name of the agency. The Court next adopted the “financial hardship” exception to the collateral source rule and held that the trial court did not abuse its discretion in allowing appellee’s attorney to question appellant regarding collateral source benefits when appellant’s wife opened the door by testifying that appellant did not seek medical treatment due to financial hardship. The Court also held that the probative value of not leaving the impression with the jury that appellant lacked monetary means to seek medical treatment outweighed any prejudice produced by the evidence. The Court next held that the trial court did not err in refusing to give a jury instruction allowing an award of damages resulting from the aggravation of a pre-existing injury when the court provided a broad instruction consistent with case law. The Court finally held that the trial court did not err in denying appellant’s motion for a judgment notwithstanding the verdict as

6
appellant’s testimony was subject to a credibility determination by the jury and there was nothing to suggest the verdict was palpably or flagrantly against the evidence such that it indicated the jury reached the verdict as a result of passion or prejudice.

Unqualified right to jury trial: KNIGHT V. HAZARD COAL CORP. (COA 9/5/2008)

KNIGHT V. HAZARD COAL CORP.
CIVIL:  Right to jury trial is unqualified

2007-CA-001712

TO BE PUBLISHED: REVERSING AND REMANDING
PANEL:  DIXON PRESIDING; LAMBERT, STUMBO CONCUR
PERRY COUNTY
        DATE RENDERED: 9/5/2008

Appellants appeal from the Perry Circuit Court’s Findings of Fact, Conclusions of Law and Judgment in this dispute over the use of a coal haul road.
The COA held that the Appellants were denied their right to a trial by jury abd
reversed.

At issue was a “coal haul road” that crosses the owner’s’ property and had been used by
the coal company to haul coal, mine supplies, equipment, coal refuse, and personnel.
The coal company responded that their right to access the coal haul road was established by the mineral severance deeds and was further permitted by prescriptive easement established by years of open, continuous and uninterrupted use.
All parties, except for Hazard Coal Corporation, demanded a jury trial in their initial pleading.

A jury trial was thereafter scheduled but during a pretrial conference, the trial court announced, on its own initiative, that it would conduct a bench trial on all issues except damages.
Because the trial court improperly denied Appellants a trial by jury, the COA
did not reach the merits of the easement issue.

CR 38.01 clearly states, “The right of trial by jury as declared by the Constitution of Kentucky or as given by a statute of Kentucky shall be preserved to the parties inviolate.”
The civil rules further provide that any party may demand a trial by jury and that such demand “may not be withdrawn without the consent of the parties.” CR 38.04.   
The Kentucky Constitution, is contravened by Civil Rule 39.01(c), which permits a trial court to deny this right in an action at law for damages upon a determination that the case, because of the peculiar questions involved or because the action involves complicated accounts, or a great detail of facts, is impractical for a jury to intelligently try.
the Kentucky Constitution, in actions at law, gives the litigant an unqualified right to trial by jury. Section 7

Digested by Michael Stevens