COA 2011 Minutes for June 17, 2011 — No.s 581-603 (23 decisions)

COA 2011 Minutes for June 17, 2011 —          No.s 581-603 (23 decisions)

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  • Total number of decisions: 23 decisions this week
  • Published Decisions: 7 – 583; 585/ 590;593; 594;599 602
PUBLISHED DECISIONS (with link to full text at AOC):

583. STATUTE OF LIMITATIONS
GOLDEN OAK MINING COMPANY
VS.
LUCAS (VINA), ET AL.
OPINION REVERSING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2008-CA-002148-MR
TO BE PUBLISHED
LETCHER

ACREE, JUDGE: The appellant, Golden Oak Mining Company, appeals a judgment of the Letcher Circuit Court. Golden Oak argues that the claims of the
appellees, Vina Lucas, Daniel Cook, Sherri Cook, Dan Lucas, Betty Lucas, Mack Fultz, Owana Fultz, and Tabitha Fultz, are barred by the statute of limitations and that the circuit court erred by denying its motion for summary judgment and subsequent motions for directed verdict presenting that argument.
On appellate review, we must answer two questions. First, when did the appellees’ causes of action accrue, initiating the five-year limitations period under Kentucky Revised Statute(s) (KRS) 413.120? Second, if accrual occurred more than five years prior to the filing of the Complaint on February 7, 2003, did any event toll or extend that limitations period? We conclude that the limitations period commenced no later than 1997, and that no event resulted in a tolling or extension of the limitations period. Therefore, it was error for the trial court to deny Golden Oak’s motion for summary judgment and its subsequent motions for directed verdict. For the reasons stated herein, we reverse.

585. FAMILY LAW.  GRANDPARENTS AND DE FACTO CUSTODIAN STATUS.
HELTSLEY (ANTHONY), ET AL.
VS.
FROGGE (BRIAN LEE), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2009-CA-001867-ME
2010-CA-000049-ME
TO BE PUBLISHED
WARREN

ACREE, JUDGE: The primary issue on appeal is whether the Warren Family Court properly denied de facto custodian status to a child’s grandparents. We must also determine whether the family court properly ordered the grandparents to pay a portion of the attorney’s fees incurred by the child’s father.

590. TORTS. BAD FAITH CLAIM ARISING FROM MEDICAL NEGLIGENCE CLAIM.
THE MEDICAL PROTECTIVE COMPANY
VS.
WILES (AURELIA), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (CONCURS)
2010-CA-000262-MR
TO BE PUBLISHED
KENTON

LAMBERT, JUDGE: Before this Court is an appeal from a multi-million dollar judgment of the Kenton Circuit Court in a third-party insurance bad faith case brought pursuant to Kentucky’s Unfair Claims Settlement Practices Act (UCSPA).

The bad faith claim arose from the handling of a medical malpractice claim. On appeal, the Medical Protective Company (Medical Protective) contends that the $2.2 million punitive damages award should be set aside based upon erroneous jury instructions and insufficient evidence, and that the trial court erred in awarding statutory interest, attorney fees, and prejudgment interest pursuant to KRS 304.12-235 based upon an argument that the statute is not applicable to third- party claims. Having carefully considered the record, the parties’ arguments, both in their briefs and at oral argument, and the applicable case law, we reverse the trial court’s award of statutory interest and attorney fees, but affirm in all other respects.

593.  CRIMINAL LAW. SEX OFFENDER STATUS.  STANDING TO APPEAL
STAGE (JIMMY DALE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DISMISSING
MOORE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND ISAAC (CONCURS)
2010-CA-000475-MR
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: Jimmy Dale Stage has filed a motion to reconsider our prior opinion and order dismissing this appeal from the Jefferson Circuit Court’s order of sex offender risk determination due to Stage’s lack of standing. After a careful review of the record, we GRANT Stage’s motion for reconsideration and WITHDRAW our opinion and order rendered on February 18, 2011 by separate order. The present opinion and order is ORDERED SUBSTITUTED in its entirety for that originally rendered. Nevertheless, we DISMISS this appeal due to a lack of case or controversy.

594.  CRIMINAL PROCEDURE.  SEARCH AND SEIZURE.
MUNDY (RYAN DAQUAN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000507-MR
TO BE PUBLISHED
FAYETTE

ACREE, JUDGE: The issue before this Court is whether the Fayette Circuit Court erred when it determined the warrantless search of Ryan Mundy’s vehicle was lawful pursuant to the emergency aid exception because the arresting officer reasonably believed that Mundy was in need of immediate aid. After careful consideration, we reverse and remand for further proceedings.

599.  ADMINISTRATIVE LAW. DISCARGE FROM NURSING HOME.
KING (GENEVA)
VS.
BUTLER REST HOME, INC., ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2010-CA-001467-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, JUDGE:    Geneva King appeals from the opinion and order of the Franklin Circuit Court affirming the findings of fact, conclusions of law, and final order of the Cabinet for Health and Family Services (“Cabinet”) which held the actions taken by Butler Rest Home, Inc., d/b/a River Valley Nursing Home (“River Valley”) discharging Geneva from its long-term care facility to be in compliance with federal and state law. For the following reasons, we affirm.

602.  FAMIL LAW.  MODIFYING JOINT CUSTODY.
CORNS (GARY LEE)
VS.
CORNS (NOW RATCLIFF) (TAFFY LYNN)
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
THOMPSON (CONCURS) AND ISAAC (CONCURS IN PART AND DISSENTS IN PART)
2010-CA-001911-ME
TO BE PUBLISHED
LEWIS

NICKELL, JUDGE: Gary Lee Corns appeals from an order of the Lewis Circuit Court, Family Court Division, modifying an award of joint custody of his minor daughter to a grant of sole custody to his former wife, Taffy Lynn Corns (now Ratcliff). Having reviewed the briefs, the record, and the law, we reverse for lack of subject matter jurisdiction and a denial of due process and remand for further proceedings consistent with this Opinion.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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591.  TORTS. RAIL ROAD CROSSING ACCIDENT. PRIVATE CROSSING. SUSEQUENT REMEDIAL MEASURES
TILFORD (MICHAEL)
VS.
ILLINOIS CENTRAL RAILROAD CO.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
KELLER (CONCURS) AND ISAAC (CONCURS)
2010-CA-000334-MR
2010-CA-000380-MR
NOT TO BE PUBLISHED
HICKMAN

CLAYTON, JUDGE: Michael Tilford appeals from the January 21, 2010, Hickman Circuit Court judgment and verdict, which dismissed all claims against the Illinois Central Railroad Company (hereinafter “ICRR”) in a railroad crossing accident in which an ICRR train collided with his truck. In addition, ICRR files a protective cross-appeal of several interlocutory orders and rulings, which were merged into the trial order and judgment. After careful review, we affirm the judgment.

A review regarding the duties of railroads shows that such duties depend on whether the crossing is ascertained to be private, public, or ultrahazardous. The distinction between public and private railroad crossings is critical because “the duties required of persons who operate railroad trains, when approaching and passing over public crossings, are very different from those which are required of them at private crossings.” Stull’s Adm’x v. Kentucky Traction & Terminal Co., 172 Ky. 650, 189 S.W. 721, 723 (Ky. App. 1916).
The common law imposes a minimal duty for railroad companies at private crossings. In contrast, “[t]he General Assembly . . . imposes multiple duties on railroads at public crossings. KRS 277.010, et. seq.” See Calhoun v. CSX Transp., Inc., 331 S.W.3d 236, 240 (Ky. 2011). In the case at hand, the Tommy Via Road crossing is considered a public crossing.2    The duties of parties operating a train at a public railroad crossing are explained in KRS 277.190, which says:
(1) Every railroad company shall provide each locomotive engine running over any of its lines with a bell of ordinary size and a whistle. The bell shall be rung or the whistle sounded at a distance of at least fifty (50) rods from the place where the track crosses upon the same level any highway or crossing where a signboard is required to be maintained. The bell shall be rung or the whistle sounded continuously or alternately until the engine has reached the highway or crossing except as provided in subsection (2) of this section.
2 Additional duties are imposed if the railroad crossing is ultrahazardous; however, the trial court granted partial summary judgment to ICRR and held that the crossing was not ultrahazardous. This ruling has not been challenged on appeal.
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Thus, upon approaching a public grade crossing, Kentucky statutory law imposes on the persons operating a train, the duty to maintain a lookout and provide an audible warning. In addition, in Louisville & N.R. Co. v. Elzey, 302 Ky. 407, 411, 194 S.W.2d 962, 964 (Ky. 1946), it was stated that “[t]he only duties appellant owed appellee in the operation of its train were to maintain a lookout ahead, and to use all the means at its command to avoid the collision after discovering appellee’s peril.” So that, the railroad crew must keep a lookout, ring a whistle, and make every effort to stop once a peril is discovered.
In particular, Tilford argues that Subpart C of Jury Instruction Number Three is incorrect when it states that the railroad’s duty to exercise ordinary care to avoid collision arises “once the peril is perceived.” He protests that the inclusion of the phrase “once a peril is perceived” is a fundamental misstatement of the law. Notwithstanding jurisprudence, for example, Elzey, that has stated a railroad crew has no duty to take action to avoid a collision until a person is discovered at peril, it is simple logic and commonsense that this duty, to stop a train, only occurs upon the discovery of peril. In fact, statutory law allows that trains have the right-of-way at public crossing. KRS 189.560(1)(c). Therefore, the crew of a train is entitled to presume that an approaching motorist will yield the right-of-way, and it is only necessary to exercise ordinary care to avoid a collision when the person puts themselves in a position of peril.
Besides that, a close reading of Jury Instruction Number Three definitively states that not only does the railroad crew have the duty to act once a
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peril is discovered, but also Subparts A and B state the additional statutory duties of the railroad crew found in KRS 277.190(1). This portion of the jury instructions elucidates that a railroad crew is to sound the whistle or ring the bell at a point not less than eight hundred twenty-five (825) feet from the crossing; to sound the whistle or ring the bell continuously or alternately from that point to the crossing; and, to keep a lookout ahead for vehicles on or about to pass through the crossing or approaching it so closely as to be in danger of collision. The duties in subpart A and B not only mirror the duties found in KRS 277.190(1) but also conform precisely to Palmore’s pattern instruction. See John S. Palmore, Kentucky Instructions to Juries, Vol. 2, § 25.01 (5th Ed. 2009).
Regarding other arguments by Tilford concerning the jury instructions, we do not agree nor find any legal precedent to support Tilford’s suggestion that the instructions should be based on the ICRR’s operating rules rather than statutory mandates. The legal duties herein result from the law not a company manual.

***

Tilford’s second argument is that the trial court’s decision to exclude evidence under KRE 407 was erroneous. The language of KRE 407 provides that:
When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
The rationale behind the rule is a public policy concern. Evidence of certain remedial efforts is not admissible so that parties will perform remediation without concern for any possible court action. Com., Cabinet for Health and Family Services v. Chauvin, 316 S.W.3d 279, 303 (Ky. 2010) (citing to Robert G. Lawson, Modifying the Kentucky Rules of Evidence – A Separation of Powers Issue, 88 Ky. L.J. 581–585 (2000).

Before addressing this argument, we note that regarding evidentiary matters, our standard of review is limited to a determination of whether the trial court abused its discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581.

592.  CIVIL PROCEDURE, MOTION TO SET ASIDE VERDICT. EVIDENCE, MEDICAL RECORDS.
GERSTLE (THERESA)
VS.
TAYLOR (GREG), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS)
2010-CA-000390-MR
NOT TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Theresa Gerstle, proceeding pro se, has appealed from the Jefferson Circuit Court’s judgment entered November 23, 2009, following a jury trial and from an opinion and order entered February 3, 2010, denying her motion to set aside the verdict. On appeal, Gerstle argues that the trial court improperly denied her motion to continue the trial and should have admitted certain medical records into evidence. Having thoroughly reviewed the record and the applicable law, we affirm.

We shall first consider whether the trial court abused its discretion in denying Gerstle’s motion to continue the trial. In support of this argument, Gerstle states that her attorney withdrew on the morning of trial, depriving her of her due process right to representation of her own choice. Appellees argue that Gerstle was not entitled to a continuance for several reasons, including her failure to file an affidavit as required by Kentucky Rules of Civil Procedure (CR) 43.03 and her fault in bringing about the withdrawal. Furthermore, appellees correctly point out that Gerstle has no constitutional right to counsel in this civil action, noting that this entitlement is limited to indigent criminal defendants and is only extended in civil proceedings under very limited circumstances not present here. We agree that the trial court properly denied Gerstle’s motion for a continuance.
“[A]n application for a continuance is addressed to the sound discretion of the court and the action of the court will not be disturbed unless that discretion is abused.” Lewis v. Liming, 573 S.W.2d 365 (Ky. 1978). See also Hunter v. Commonwealth, 869 S.W.2d 719, 720-21 (Ky. 1994); Stallard v.
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Witherspoon, 306 S.W.2d 299, 300 (Ky. 1957); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. App. 1996). The test for abuse of discretion is “whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000)).
We have reviewed the cases Gerstle cited in her brief, and we do not agree that those authorities mandate a reversal in this case. First, we note that in Griffin v. Russell, 161 Ky. 471, 170 S.W. 1192 (1914), the defendant supported his motion to continue with an affidavit, while Gerstle did not. Gerstle relies on a decision of the former Court of Appeals in Cox v. Spears, 181 Ky. 363, 206 S.W. 20 (1918), for its statement that the plaintiff should have had an opportunity to present her case after her attorney withdrew. However, the circumstances presented in Cox are markedly different from those presented in the current matter:
An application for a continuance is always addressed to the sound discretion of the trial judge; but where the facts are such as to show that the complaining party is not in fault, or some unavoidable casualty has intervened, a reasonable opportunity should be granted for the preparation of the case. Here the plaintiff’s only attorney, Mr. Adkins, had withdrawn from the practice of law and entered the coal business, which necessarily took him away from the courthouse. So far as the record discloses, Mrs. Cox did not know of this, and she had had very little, if any, experience in court proceedings. She was relying upon her attorney to attend to the preparation of the cause. The attorney states on oath that he did not know of the motion to submit the case at the time it was submitted, and did not learn of the submission until about the time judgment was entered. These facts considered,
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Id. at 21.
it appears that Mrs. Cox was entitled to have the submission set aside and the case continued for preparation. [Emphasis added.]
Likewise, in Bohannank v. Mills, 2 Ky. Op. 597, 1868 WL 6806 (1868), the former Court of Appeals held that a continuance should have been granted because the record was unclear as to the circumstances of the attorney’s withdrawal.
[A]s on the calling of the cause the plaintiffs [sic] counsel had their names stricken from it, the court should have continued the cause with a rule against the plaintiff to prosecute his suit; this would be but fair to him if his counsel for justifiable cause, unknown to him, should abandon the case, and but fair to the court to ascertain whether practitioners in his court for an unjustifiable cause or censurable practice has [sic] adopted such a course.
Id. at 598. In Snodgrass v. Commonwealth, 814 S.W.2d 579 (Ky. 1991), the Supreme
Court of Kentucky provided a list of factors to consider in determining whether a continuance is appropriate:
Factors the trial court is to consider in exercising its discretion are: length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice.
Id. at 581. We have considered these factors in our review of the trial court’s decision.
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Based upon our review of the record, we hold that the trial court did not abuse its considerable discretion in denying Gerstle’s motion for a continuance due to the withdrawal of her attorney, or for any of the other reasons she alleged orally on the record or by written motion. The record establishes that Gerstle has considerable experience in litigating pro se cases, that she instituted this case with the filing of a pro se complaint, and that she did not retain an attorney until almost a year into the case. And even then she continued to file motions and other documents herself. As such, we perceive no prejudice to the court’s requiring Gerstle to represent herself at trial.
Furthermore, Yates directly attributed the reason for his withdrawal to Gerstle’s laxity in providing him with needed information that would allow him to prepare for trial. Yates informed the court that he had problems getting Gerstle to focus on this case, both due to her health issues and pending bankruptcy proceedings. By the date of trial, the case had been pending for two years, and the trial had been scheduled for several months, affording Gerstle more than enough time to obtain the necessary documents and expert proof to support her claim.
For all of these reasons, we must hold that the trial court, after patiently and thoughtfully considering all of Gerstle’s arguments and the record, did not abuse its discretion in ordering the trial to proceed with Gerstle representing herself.
Next, we shall consider whether the trial court properly disallowed the introduction of Gerstle’s medical evidence. The trial court ruled that Gerstle could
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not introduce unauthenticated records, but could testify regarding her treatment and what she was billed for that treatment. Gerstle asserts that she should have been permitted to introduce those documents under the business records exception in Kentucky Rules of Evidence (KRE) 803(6). However, this argument is essentially another ground Gerstle proposes for continuing the trial. She argues that her failure to comply with KRE 803(6) arose through no fault of her own, and therefore she should be permitted a continuance in order to comply with the rule. We reject this argument.
KRE 901(a) provides that an item must be authenticated as a condition precedent to admissibility, and that this may be “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Supreme Court of Kentucky addressed this rule of evidence in Thrasher v. Durham, 313 S.W.3d 545, 549 (Ky. 2010), explaining:
Under KRE 901, a document must be authenticated before it can be admitted into evidence. While the proponent’s burden is slight, it is nonetheless real and requires a showing “sufficient to support a finding that the matter in question is what its proponent claims.” KRE 901(a); Johnson v. Commonwealth, 134 S.W.3d 563 (Ky. 2004). This burden may be met in any number of ways, including circumstantial evidence permitting an inference that the document is what it is represented to be.
“On appellate review, the trial court’s finding of authentication is reviewed for abuse of discretion.” Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004).
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Gerstle did not provide any foundation for the records she sought to introduce into evidence. Nor did she or her attorney identify an
y documentary evidence she planned to introduce in her pretrial compliance. Nevertheless, the trial court allowed Gerstle to use the records at issue to refresh her recollection during her testimony about what treatment she received and about any billing statements she received. Therefore, we hold that the trial court did not abuse its discretion in disallowing the unauthenticated records to be admitted into evidence.
For the foregoing reasons, the judgment and order of the Jefferson Circuit Court are affirmed.

595.  TORTS. MVA. INDEMNITY.
SHORT (WILLIE)
VS.
SLONE (TOMMY), ET AL.
OPINION REVERSING AND REMANDING
ISAAC (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000623-MR
NOT TO BE PUBLISHED
KNOTT

ISAAC, SENIOR JUDGE: Willie Short, Jr. appeals from a summary judgment granted in favor of Phillip Slone and Rebecca Slone on his claim for indemnity stemming from an automobile accident. Short argues that the trial court’s order was interlocutory and that summary judgment was inappropriate and premature because he is entitled to indemnity if Phillip was found to be primarily liable for the accident. We reverse and remand.

The Supreme Court of Kentucky held that the principles of comparative fault did not abolish the common law right to indemnity, which is available “to one exposed to liability because of the wrongful act of another with
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whom he/she is not in pari delicto” or equally liable. Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky. 2000). As stated in Degener:
The cases in which recovery over is permitted in favor of one who has been compelled to respond to the party injured are exceptions to the general rule, and are based upon principles of equity. Such exceptions obtain in two classes of cases: (1) Where the party claiming indemnity has not been guilty of any fault, except technically, or constructively, as where an innocent master was held to respond for the tort of his servant acting within the scope of his employment; or (2) where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.
Id. at 780 (quoting Louisville Ry. v. Louisville Taxicab & Transfer Co., 256 Ky. 827, 77 S.W.2d 36, 39 (1934)). Therefore, the apportionment statute does not abolish the common law right of indemnity where one is only constructively or secondarily liable to a plaintiff. Further, “[i]ndemnity is not an issue until fault has been determined.” Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 253 (Ky. 1995), overruled on other grounds by Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104 (Ky. 2009).
In the present case, the apportionment of liability has not been determined. Further, there are genuine issues of material fact regarding the determination of fault as evidenced by the parties’ conflicting versions of the accident. Here, it is possible that “both parties have been in fault, but not the same fault” toward Rebecca, but the issue of fault has not been adjudicated. Therefore, summary judgment was inappropriate.
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Accordingly, the order of the Knott Circuit Court is reversed and remanded for further proceedings consistent with this opinion.

596.  EXPERT WITNESSES.  ULTIMATE ISSUE.  FAULT IN ACCIDENT.  NEW TRIAL. DIRECTED VERDICT.
EDWARDS (VIENNA)
VS.
LUMBLEY (CHARLAINA M.)
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND STUMBO (CONCURS)
2010-CA-000812-MR
NOT TO BE PUBLISHED
MCCRACKEN

MOORE, JUDGE: Vienna Edwards appeals a defense verdict in her automobile negligence action against appellee, Charlania M. Lumbley. Edwards also appeals the trial court’s decision to prohibit her witness, McCracken County Sheriff’s Deputy Chad Shaw, from testifying about his opinion that Lumbley was at fault for the automobile accident at issue in this matter. After careful review, we affirm.

To prevail in her negligence claim, Edwards was required to prove, by a preponderance of the evidence, the four elements of that tort: duty, breach, causation, and injury. CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 58 (Ky. 2010). As to directed verdicts, this Court stated the appropriate standard of review in Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 215-16 (Ky. App. 2009):
When a directed verdict is appealed, the standard of review on appeal consists of two prongs. The prongs are: “a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.” Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998). “A motion for directed verdict admits the truth of all evidence which is favorable to the party against whom the motion is made.” National Collegiate Athletic Ass'n By and Through Bellarmine College v. Hornung, 754 S.W.2d 855, 860 (Ky.1988), citing Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky. 743, 184 S.W.2d 111 (1944).
Clearly, if there is conflicting evidence, it is the responsibility of the jury, the trier of fact, to resolve such conflicts. Therefore, when a directed verdict motion is made, the court may not consider the credibility or weight of the proffered evidence because this function is reserved for the trier of fact. National, 754 S.W.2d at 860 (citing Cochran v. Downing, 247 S.W.2d 228 (Ky.1952)).
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In order to review the trial court's actions in the case at hand, we must first see whether the trial court favored the party against whom the motion is made, including all inferences reasonably drawn from the evidence. Second, “the trial court must determine whether the evidence favorable to the party against whom the motion is made is of such substance that a verdict rendered thereon would be ‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’” If the answer to this inquiry is affirmative, we must affirm the trial court granting the motion for a directed verdict. Id. Moreover, “[i]t is well argued and documented that a motion for a directed verdict raises only questions of law as to whether there is any evidence to support a verdict.” Harris v. Cozatt, Inc., 427 S.W.2d 574, 575 (Ky.1968). Further, “a reviewing court cannot substitute its judgment for that of the trial judge unless the trial judge is clearly erroneous.” Bierman, 967 S.W.2d at 18.
In a similar vein, for a court to grant a motion for a new trial based upon insufficiency of the evidence, such as the CR 59 motion at issue in this matter, the court must first
ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party and . . . [o]nce the issue is squarely presented to the trial judge, who heard and considered the evidence, neither we, nor will the Court of Appeals substitute our judgment . . . for his unless clearly erroneous.
Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992) (internal citations and quotations omitted).

Our standard for reviewing a trial court's decision to admit or exclude evidence is limited to a determination of whether the trial court abused its discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id. at 581 (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
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Moreover, “[t]he decision as to qualification of the witness as an expert rests in the discretion of the trial court.” Moore v. Wheeler, 425 S.W.2d 541, 544 (Ky. 1968).
That said, the trial court did not exclude Deputy Shaw’s testimony because he lacked the title of “accident reconstructionist.”    As its order recites, the trial court arrived at its decision and refused to qualify Deputy Shaw as an expert because Deputy Shaw only received standard training in accident investigation; received no training in accident reconstruction; and, because he “does not claim to be a reconstructionist,” i.e., a person whose duty it is to reconstruct accidents.
As such, we find no abuse in the trial court’s decision. Kentucky jurisprudence holds that simply being a member of the police force does not qualify an individual to give opinion evidence as an expert. Southwood v. Harrison, 638 S.W.2d 706, 707 (Ky. App. 1982); see also Eldridge v. Pike, 396 S.W.2d 314, 316-17 (Ky. 1965); Redding v. Independent Contracting Co., 333 S.W.2d 269, 271 (Ky. 1960). A police officer must qualify as an expert by virtue of special training and/or experience. Ryan v. Payne, 446 S.W.2d 273, 277 (Ky. 1969); see also Redding, 333 S.W.2d at 271 (holding that two state troopers with no qualifications beyond “[having] been in police work a good many years” were unqualified to testify as experts regarding estimates of a vehicle’s speed prior to an accident, and that their opinions in that regard were “clearly incompetent and valueless.”)

 

 

 

 

 

 

 

 

 

 

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