COA: October 13, 2017 Court of Appeals Decisions (Minutes)

Nos. 861-889: 29 Decisions Posted with a 6 decisions designated 'to be published' with links to full text of each decision


866.  Medical Negligence.  Expert Proof.  Res ipsa loquitur
Estate of Chris Chamis v. Ashland Hospital Corporation d/b/a King’s Daughters Medical Center
Affirmed summary judgment in favor of hospital finding the res ipsa loquitur doctrine did not apply and eliminating the need for an expert witness to testify as to the failure of bed rails to establish the hospital’s expected standard of care, breach thereof and resulting injury.

Murrell v. Kentucky Parole Board

880.  Government Pensions
Marango v. Kentucky Retirement Systems

884.  Workers Compensation
First Class Services v. Hensley

887. Criminal Law.
Commonwealth of Kentucky v. Donald Adams

888. Workers Compensation.
McCoy Elkhorn Coal Corp, Insolvent Employer v. Sargent

Selected cases that were not designated for publication in tort, insurance and civil law.

862. Juror Excusal.  Experts. Instructions.  Residents’ Rights Act.
Estate of Joseph Stamper v. Berea Area Development LLC
Jerry Stamper, as Administrator of the Estate of Joseph Stamper, deceased (the Estate), appeals from a judgment of the Madison Circuit Court confirming a jury verdict in favor of Berea Area Development, LLC, d/b/a The Terrace Nursing and Rehabilitation Facility (the Terrace). The Estate argues that the trial court abused its discretion by denying its motion to excuse two potential jurors for cause and by excluding a portion of its expert’s testimony. We find no abuse of discretion on either issue. The Estate further argues that the trial court erred by failing to instruct the jury on the separate duties arising under the Residents’ Rights Act. Based on the recent decision of the Kentucky Supreme Court in Overstreet v. Kindred Nursing Centers Ltd. P’ship, 479 S.W.3d 69 (Ky. 2015), we conclude that the statutory duties merely involve a legislative codification of the common-law standard of care or do not survive the death of the resident. Since the jury instructions adequately set out the Terrace’s duties and standard of care, the exclusion of specific duties under the Act was at most harmless error. Hence, we affirm.

864.  Torts.  Malicious Prosecution. Abuse of Process, etc.  Elements discussed.
Dearborn Savings Bank v. Hall

871.  Premies Liability.  Open and Obvious and Comparative Negligence.
Rodgers v. Grant County Football Boosters
Reversed and remanded summary judgment dismissing claim arising from fall caused by flower pot near door at bingo hall – factual question for jury.  We conclude that there clearly remain questions of fact as to whether the flower pot constituted an unreasonable risk, the foreseeability of harm created by the flower pot, and whether the Boosters breached its duty of care to maintain the premises in a safe condition for its patrons. Furthermore, even if Rodgers was negligent in some respect, under comparative fault she has the right to determine if there was any negligence on the part of the Boosters that contributed to her injuries, and then to have a jury apportion that fault. Accordingly, summary judgment was improper.


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For more information on unpublished decisions and obtaining case information, then continue reading below the fold.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.