Hardin Judicial Center, 1997, in Elizabethtown, Kentucky. Photo taken using an iPad!
The Kentucky Court of Appeals announced 32 decisions on January 9, 2015, with 2 opinions designated to be published. There were no minutes for January 2, and these are the first from COA for the year 2015.
The two published cases are:
- 4. Government, Elected office compensation, statutory interpretation.
Whitlock vs. Rowland
COA, Published, 1/9/2015 from Jefferson County.COA reversed and remanded Jefferson Circuit Court Judge Susan Gibson which had rejected David Whitlock’s challenges to the validity of the Louisville Metro Code Ordinance Section 39.060 which purported to limit the rate of pay for Constables. - 31. Mandamus petitition to compel arbitration approved.
Stanton Health Faciliies LP vs. Frank A. Fletcher
COA Published 1/9/2015
Granting Petition for Writ of Mandamus; Powell CountyKRAMER, JUDGE: Petitioners, Stanton Health Facilities, et al., filed a petition for writ of mandamus to require the trial court to rule upon its motion to compel arbitration and to stay pretrial discovery pending resolution of the motion to compel arbitration. Having considered the petition for writ of mandamus, the response, and being otherwise sufficiently advised, the Court ORDERS that the petition be, and it is hereby, GRANTED.
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5. Summary Judgment. Res Ipsa Loquitur.
Gilbert vs. U-Haul International, Inc.
COA, NPO (Not to be published) 1/9/2014
Affirming; Scott County
CAPERTON, JUDGE: Appellant Peggy Gilbert appeals the order of the Scott Circuit Court granting summary judgment for her husband, Tom Gilbert. Finding no error, we affirm.
We review this matter to assess whether Peggy presented a genuine issue of material fact and whether Tom was entitled to a judgment as a matter of law. Recovery for negligence requires establishment of the elements of duty, breach of duty, causation, and damages. See, e.g., Lewis v. B & R Corp., 56 S.W.3d 432, 436–37 (Ky. App. 2001). Peggy argues that a genuine issue of material fact exists simply because Tom was unable to control the vehicle. But Tom’s failure to maintain control of the vehicle, when taken alone, is not enough to show negligence absent the application of res ipsa loquitur. The doctrine of res ipsa loquitur “recognizes that as a matter of common knowledge and experience the very nature of an occurrence may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury.” Bell & Koch, Inc. v. Stanley, 375 S.W.2d 696, 697 (Ky. 1964).
The case of Cox v. Wilson, 267 S.W.2d 83, 84 (Ky. 1954), describes the elements of res ipsa loquitur as follows: (1) The defendant must have had full management and control of the instrumentality which caused the injury. (2) The circumstances must be such that, according to common knowledge and the experience of mankind, the accident could not have happened if those having control and management had not been negligent. (3) The plaintiff’s injury must have resulted from the accident.
13. Medical Negligence. Venue and in personam jurisdiction re Indiana surgery center; Long Arm Statute (interesting read since physicians treated plaintiff in Louisville, but physician performed surgery in Indiana at the Metro Specialty Surgical Center)
Teddy Cooper vs. Dr. Ajith Nair, M.D.
COA NPO 1/9/2015
Affirming in part, vacating in part and remanding; Jefferson County
COMBS, JUDGE: Teddy Cooper and Lori Cooper, his wife, appeal from the order of the Jefferson Circuit Court dismissing their negligence action against Dr. Ajith Nair; Kentuckiana Pain Specialists, P.S.C.; and Metro Specialty Surgery Center, L.L.C. On appeal, the Coopers argue that the trial court erred in determining that Jefferson County was not the proper venue for their claims and that the court lacked in personam jurisdiction over Metro Specialty Surgery Center, a business entity organized under the laws of Indiana and domiciled there. Having reviewed the record and the arguments of counsel, we affirm in part, vacate in part, and remand.
17. Attorneys Lien
Thomas K. Stone v s. Pennie Dubarry
COA, NPO 1/9/2015
Affirming; Jefferson County
COMBS, JUDGE: Thomas K. Stone appeals the order of the Jefferson Family Court concluding that his attorney’s lien was invalid and ordering that it be set aside. After our review, we affirm.
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