COAKY Minutes: May 3, 2013 — settlements; punitives; premises liability; medical malpractice

Published and Unpublished Decisions for COAKY for May 3, 2013

Click here or this week’s COA minutes and decisions
No. 437-458;  22 decisions; 2 decisions “To Be Published”
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This week the following issues were addressed by COAKY: punitive damages; another post-McIntosh decision on the open and obvious dangers in premises liability cases; oral settlement agreements; medical malpractice case and need for expert witnesses.

PUBLISHED DECISIONS –

440.  CRIMINAL LAW
YOUNG VS. COMMONWEALTH OF KENTUCKY
OPINION VACATING
STUMBO (PRESIDING JUDGE)
CAPERTON (CONCURS) AND DIXON (DISSENTS)
2011-CA-000956-MR
2011-CA-000957-MR
TO BE PUBLISHED
LAWRENCE

STUMBO, JUDGE: Michael and Janie Young appeal from a judgment and sentence on a conditional plea of guilty where they both plead guilty to theft by deception over $10,000. They each reserved the right to appeal the denial of their motions to dismiss the indictment. We find no crime occurred and that the appellants’ motions to dismiss should have been granted. We therefore vacate the Youngs’ convictions.

441
COOMER VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
THOMPSON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND KELLER (CONCURS)
2011-CA-001512-MR
TO BE PUBLISHED
ADAIR

THOMPSON, JUDGE: Tabitha Coomer, Courtney Miller and Timothy Miller appeal from an order of the Adair Circuit Court revoking and forfeiting Timothy’s bail bond in the amount of $50,000. The issues presented on appeal are: (1) whether a $25,000 bond posted by Tabitha was forfeited when Timothy was charged with committing additional offenses after his arraignment in the Adair District Court; (2) whether the revocation and forfeiture of the entire bond was excessive; (3) whether the circuit court erred when it refused to listen to an audio recording of a drug buy between Timothy and a confidential informant; and (4) whether the circuit court had authority to direct payment of the forfeited bond to the office of the Adair County Sheriff. We conclude that the forfeiture of the entire $50,000 was excessive and that the circuit court was without authority to direct payment of the forfeited bond to the Adair County Sheriff.

TORT REPORT

447.  PUNITIVE DAMAGES.
GREEN RIDGE FARM, INC. VS. SHIPP
COA, NPO 5/3/2013
HARDIN COUNTY, OPINION  AFFIRMING
MAZE, JUDGE: Appellant, Green Ridge Farm (hereafter “Green Ridge”), appeals from the trial order of the Hardin Circuit Court denying its motion for directed verdict and granting the motion for directed verdict on the matter of punitive damages filed by Appellees, Shipp Farms (hereafter “Shipp”). After reviewing the record and relevant law, we find that the trial court acted correctly and within its discretion regarding both motions. Therefore, we affirm.

451. PREMISES LIABILITY. ANOTHER MCINTOSH DECISION.
EMBRY VS.  MAC’S CONVENIENCE STORES, LLC
COA, NPO 5/3/2013
JEFFERSON COUNTY (JUDGE ECKERLE), OPINION AFFIRMING
STUMBO, JUDGE: Danny L. Embry appeals from an Opinion and Order of the Jefferson Circuit Court denying his Motion to Alter, Amend or Vacate an Opinion and Order granting the renewed Motion for Summary Judgment of Mac’s Convenience Stores, LLC, d/b/a Circle K & Circle K Midwest. In his action seeking damages from a slip and fall injury, Embry argues that the trial court erred by not permitting him to fully conduct discovery, and by granting summary judgment based on a misapplication of the “open and obvious” doctrine. Embry contends that even if the open and obvious doctrine was properly applied, Mac’s can still be held liable if the injury was foreseeable. We find no error, and accordingly affirm Opinion and Order on appeal.

The panel of this Court went on to affirm the Order setting aside the Default Judgment. It also reversed the Orders granting Summary Judgment in favor of Mac’s to allow the trial court to consider the then newly rendered Kentucky Supreme Court opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). That Opinion, whic h was rendered during the pendency of the first appeal before this Court, modified the “open and obvious” doctrine of premise liability by holding that, “[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Kentucky River, 319 S.W.3d at 389, quoting Restatement (Second) of Torts § 343A(1) (1965) (emphasis added). The matter was then remanded to the trial court for reconsideration under the revised open and obvious doctrine.

After the matter was remanded to the Jefferson Circuit Court, Mac’s again moved for Summary Judgment. Oral arguments on the motion were conducted on September 30, 2011, after which the circuit court rendered an Opinion and Order on October 27, 2011, granting Summary Judgment. As a basis for the Opinion and Order, the court determined that the defect in the pavement was open and notorious, that it was readily apparent, and that Mac’s could not have foreseen that Embry would trip over a readily visible condition. In so doing, the court noted that Embry admitted that had he looked before stepping backward off his trailer he would have noticed the unevenness of the pavement. Embry moved to alter, amend or vacate the court’s October 25, 2011 Order. The motion was denied, and this appeal followed.

454. MEDICAL MALPRACTICE
GOFF VS. DR. ALBERTO GONZALEZ
COA, NPO 5/3/2013
PULASKI (JUDGE DAVID TAPP), AFFIRMING

TAYLOR, JUDGE: Patricia Goff, Executrix of the Estate of Thomas South, (referred to as Estate) brings this appeal from a November 18, 2011, order of the Pulaski Circuit Court directing a verdict in favor of Alberto Gonzalez, M.D. and dismissing the Estate’s medical malpractice action. We affirm.

Accordingly, we conclude that expert medical testimony was needed to establish causation which was a necessary element to a determination of negligence by Gonzalez in this case. The circuit court properly rendered a directed verdict in favor of Gonzalez at trial.

For the foregoing reasons, the order of the Pulaski Circuit Court is affirmed. ALL CONCUR.

455.  SETTLEMENT AGREEMENTS.
BEAMS VS. NEW HART COUNTY HEALTHCARE, LLC
COA, NPO 5/3/2013
AFFIRMING (JUDGE DAVID SEAY)

STUMBO, JUDGE: Juanita Beams appeals from an Order and Judgment of the Hart Circuit Court finding that Beams entered into an oral settlement agreement with New Hart County Health Care, LLC d/b/a Hart County Health Care Center and sustaining the Center’s motion to enforce the agreement. Beams argues that the trial court erred when it concluded that the parties reached a valid and enforceable settlement agreement. For the reasons stated below, we affirm the Order and Judgment on appeal.

On October 21, 2008, Beams filed the instant action against Hart County Health Care Center in Hart Circuit Court alleging that her knee injury resulted from the Center’s negligence. The matter was litigated for the next three years with a jury trial being scheduled for April 25, 2011. Five days prior to trial, the parties engaged in a settlement conference. Final settlement was reached by way of an oral agreement, which was memorialized on the record in open court by the parties’ verbal assent. According to the video record, the terms of the settlement were confidential, though Beams would later allege in her pleadings that Hart County Health Care Center agreed to pay to Beams the sum of $50,000. Hart County Health Care Center disputes that figure, and contends that Beams has violated the confidentiality agreement which was included in the settlement agreement.

In concluding that an enforceable oral settlement had been reached, the Hart Circuit Court noted that both Beams, who was represented by counsel, and Hart County Health Care Center entered into protracted settlement talks in Judge Seay’s presence, and then each stated unequivocally their verbal assent to the agreement in open court. This determination is supported by the record.

The record then supports the Hart Circuit Court’s conclusion that Beams and

Hart County Health Care Center orally acknowledged the settlement of the action in open court. The first question for our consideration then is whether an oral settlement acknowledged in open court and on the record in the midst of a civil proceeding is enforceable. Oral settlement agreements are binding and enforceable. Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437, 445 (Ky. 1997). “It has long been the law of this Commonwealth that the fact that a compromiseagreement is verbal and not yet reduced to writing does not make it any less binding.” Id. Motorists Mutual is dispositive.

Having reviewed the circuit court’s determination that Beams orally assented to settle this action and that the settlement is enforceable, we find no error. Furthermore, the circuit court did not abuse its discretion in denying Beams’ Motion to Alter, Amend or Vacate the Judgment. Beams very clearly and expressly acknowledged the settlement in open court, and the settlement and acknowledgement thereof are enforceable. We find no error.

For the foregoing reasons, we affirm the Order and Judgment, and the Order Denying Motion to Alter, Amend or Vacate of the Hart Circuit Court.

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