COA 2010 Minutes: January 29, 2010 (Nos. 86-126)

COA 2010 Minutes: January 29, 2010 (Nos. 86-126)

  • 41 decisions
  • 8 published

Published Decisions with digest and link to full text decision at AOC:

  • 92
    EMPLOYMENT; COURT COSTS
    BRETT VS. MEDIA GENERAL OPERATIONS, INC.

    OPINION AFFIRMING
    ** ** ** ** **
    BEFORE: LAMBERT AND VANMETER, JUDGES; HARRIS,1 SENIOR JUDGE.
    HARRIS, SENIOR JUDGE: John Wesley Brett (Brett) appeals from a Fayette Circuit Court summary judgment entered on March 27, 2008, in favor of his former employer, Media General Operations, Inc., d/b/a WTVQ-TV (WTVQ), and William Stanley (Stanley), former general manager of WTVQ.2    Brett also appeals from orders entered on June 23 and July 16, 2008, awarding costs to WTVQ and Stanley. After a careful review of the record and briefs and consideration of counsels’ oral arguments, we affirm.

  • 93
    BUSINESS RENTAL
    PENDLETON VS. U.S. 60 ASSOCIATES, LLC
    OPINION AFFIRMING
    ** ** ** ** **
    BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE. ACREE, JUDGE: Appellants, Lonnie Pendleton and Doug Dawson, seek reversal
    of the Clark Circuit Court’s decision granting summary judgment in favor of Appellees, U.S. 60 Associates, LLC (Associates). The Circuit Court determined that Associates’ subtenants, Pendleton and Dawson, were liable for unpaid rent. KRS 383.010(5) provides for the recovery of rent from whomever it is owed whether they are an assignee or undertenant. Therefore, we affirm.
  • 99
    FORECLOSURE
    HARVEST HOMEBUILDERS LLC V. COMMONWEALTH BANK AND TRUST CO.
    OPINION AFFIRMING
    ** ** ** ** **

    BEFORE:    COMBS, CHIEF JUDGE; TAYLOR, JUDGE; HENRY,1 SENIOR JUDGE.
    TAYLOR, JUDGE: Harvest Homebuilders LLC and Barbara A. Jeter bring this appeal from a September 10, 2008, judgment of the Oldham Circuit Court awarding Commonwealth Bank and Trust Co. (Commonwealth Bank) a deficiency judgment in the amount of $207,334.35. We affirm.

  • 102
    CRIMINAL
    PIERCY VS. COMMONWEALTH OF KENTUCKY
    PINION AFFIRMING
    ** ** ** ** ** BEFORE: ACREE, KELLER, AND LAMBERT, JUDGES.

    LAMBERT, JUDGE: Stephen Piercy, Sr., entered a conditional guilty plea to trafficking in marijuana (over 8 ounces but less than 5 pounds), trafficking in a controlled substance II, illegal possession of drug paraphernalia, operating a motor vehicle with expired plates, and being a persistent felony offender I (“PFO I”).
    Piercy reserved the right to appeal the trial court’s denial of his suppression motion and now appeals. After careful review, we affirm.

  • 103
    WORKERS COMP
    KENTUCKY ASSOCIATED GENERAL CONTRACTORS SELF INSURANCE VS. LOWTHER
    AFFIRMING
    ** ** ** ** **
    BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; LAMBERT,1 SENIOR JUDGE.
    LAMBERT, SENIOR JUDGE: Kentucky Associated General Contractors Self- Insurance Fund (KAGC) and Ladegast & Heffner Claims Service, Inc. (Ladegast) seek review of a determination of the executive director of the Kentucky Office of Workers’ Claims that a fine in the amount of $10,000 was appropriate for failure of KAGC and Ladegast to pay a claim. We affirm the decision of the Franklin Circuit Court upholding that penalty.
  • 115
    TORTS – DUTY OF CARE & PROXIMATE CAUASE ADDRESSED FOR CAR PARKED SIDE OF ROAD IN EMERGENCY LANE
    HIGGINBOTHAM VS. KEENELAND ASSOCIATION
    OPINION AFFIRMING
    ** ** ** ** **
    BEFORE: LAMBERT AND WINE, JUDGES; HARRIS,1 SENIOR JUDGE. LAMBERT, JUDGE: Appellants are the estate of a passenger killed in an automobile accident and a passenger injured in that accident. They appeal from summary judgment entered in favor of Appellee, Keeneland Association, the employer of the operator of the other vehicle involved in the accident. After careful review, we affirm. ***

    iting Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328 (Ky. 1987), Appellants also argue that Pinkerton had a duty to refrain from parking on the shoulder of Versailles Road based upon the so- called “universal duty of care.” The Kentucky Supreme Court has determined that the universal duty of care is “not boundless” and that “[t]he requirement of ‘duty to all’ is a beginning point for any duty analysis.” See Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 848-849 (Ky. 2005) (internal citations omitted). Moreover, this Court has directly addressed the issue and held that “Grayson 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.” Jenkins v. Best, 250 S.W.3d 680, 689 (Ky. App. 2007) (internal citations omitted).

    entucky law has long distinguished between events which are possible and events which are reasonably probable. Kentucky’s highest Court has held that, “[m]en are not called upon to guard against every risk that they may conceive as possible but only against what they can forecast as probable.” Merchants Ice & Cold Storage Co. v. United Produce Co., 279 Ky. 519, 131 S.W.2d 469, 472 (1939). While it was certainly possible that a vehicle could collide with Pinkerton’s vehicle that morning, it was not reasonably probable that the temporary parking of Pinkerton’s vehicle on the shoulder of the road would cause the injuries to Appellants. Pinkerton had a legal right to be parked on the shoulder, two of his wheels were in the grass, his vehicle was visible to oncoming motorists, he intended to be parked there for no more than three or four minutes, and there were miles of shoulder available in the event another vehicle needed access. Based on these undisputed facts, a reasonable person in Pinkerton’s position could not have foreseen the injuries sustained by Appellants or that Moureaux would lose control to the extent that she could not bring her vehicle to a complete stop utilizing the portions of the shoulder available to her on that morning. A driver is “not required to anticipate such negligent inattention on the part [of another driver].” Frozen Food Marketers v. Feisstreitzer, 335 S.W.2d 896, 897 (Ky. 1960). Accordingly, the Fayette Circuit Court appropriately found the accident at issue in this case was not foreseeable to Pinkerton when he stopped to briefly activate the sign.

    Finally, even assuming that the Appellants could somehow prove that Pinkerton and Keeneland owed a legal duty to refrain from parking on the shoulder of the roadway, Appellants cannot establish that Pinkerton’s actions and/or inactions were a substantial factor in bringing about the collision. “[I]t is not enough that the harm would not have occurred had the actor not been negligent,” but the negligence must be a substantial factor in bringing about the harm.
    -13-
    Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003) (citing the Restatement (Second) of Torts § 431 comment (a) (1965)).
    Thus, it is not sufficient for the Appellants to establish that Moureaux would not have struck Pinkerton’s vehicle had it not been located on the shoulder of the road. The Appellants must also establish that the location of Pinkerton’s vehicle was a “substantial factor” in bringing about the collision and resulting harm. This they simply cannot do. There is not any evidence to support the notion that the location of Pinkerton’s vehicle was a substantial factor in bringing about the collision. It is undisputed that Moureaux lost control of her vehicle because she improperly reacted to a flat tire. The location of Pinkerton’s vehicle had absolutely nothing to do with that fact. Appellants suggest that the location of Pinkerton’s vehicle may have influenced Moureaux. However, Moureaux’s testimony on this subject belies this argument, as she testified that she does not place any blame on Pinkerton and in fact instead stated she improperly reacted to the flat tire, in contravention of her drivers’ manual instructions. Thus, as a matter of law, Pinkerton was not a substantial factor in causing the collision. See Pence v. Sprinkles, 394 S.W.2d 945, 947 (Ky. 1965) (“Proximate cause becomes a question of law when . . . there is no dispute about the essential facts of causation, and but one conclusion may be reasonably drawn from the evidence.”) (Citations omitted).

  • 123
    WORKERS COMP
    DAMRON VS. KENTUCKY MAY MINING CO.
    OPINION AFFIRMING
    APPELLEES
    ** ** ** ** ** BEFORE: ACREE AND CLAYTON, JUDGES; HARRIS,1 SENIOR JUDGE.
    CLAYTON, JUDGE: James Damron appeals from a split decision of the Workers’ Compensation Board (Board) reversing the opinion and award of the Administrative Law Judge (“ALJ”), who found on reopening that Damron’s occupational hearing loss had worsened and awarded him permanent partial disability (PPD) benefits for a 425-week period. Kentucky May Mining Company (Kentucky May) appealed the ALJ’s decision. Upon reconsideration, the Board determined that the ALJ erroneously awarded PPD benefits to Damron because the increase in his hearing loss was not due to noise exposure while at work but was due to aging. After careful review, we affirm the Board’s decision.
  • 126
    UNIFORM TRANSFERS TO MINORS ACT,  JURISDICTION, WRIT OF PROHIBITION
    PETER VS. HON. SUSAN SCHULTZ-GIBSON
    OPINION AND ORDER DENYING PETITION FOR WRIT OF PROHIBITION
    ** ** ** ** ** BEFORE: KELLER AND STUMBO, JUDGES; KNOPF,1 SENIOR JUDGE.
    KNOPF, SENIOR JUDGE: This is an original action brought under Kentucky Rules of Civil Procedure (CR) 76.36, in which Emil Peter III (Petitioner) seeks a writ of prohibition on the grounds that Hon. Susan Schultz Gibson, Judge, Jefferson Circuit Court, Division Twelve, is allegedly proceeding outside of her jurisdiction in an underlying civil action. Judge Gibson determined that the circuit court had jurisdiction over a complaint in which Emil Peter IV, the Real Party in Interest (RPI), sought an accounting from Petitioner as to funds originally held by Petitioner on RPI’s behalf under Kentucky’s version of the Uniform Transfers to Minors Act (UTMA) even though such claims generally must be brought in district court pursuant to KRS 385.192. The question before this Court is whether the circuit court acted outside of its jurisdiction by maintaining jurisdiction in the underlying accounting action. Having now considered the petition for a writ of prohibition, the response thereto, and being otherwise sufficiently advised, the Court ORDERS that the petition be DENIED for reasons set forth below.

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