December 2, 2011 COA Minutes — Nos. 1099-1116 (18 decisions; 3 published)

December 2, 2011 COA Minutes —  Nos. 1099-1116 (18 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

1103.  PRODUCTS LIABILITY.  INHERENTLY DANGEROUS CONDITION.  RE FAILURE TO HAVE ADEQUATE REARVIEW ON VEHICLE.
MESSERLY (SANDRA DENISE), ET AL.
VS.
NISSAN NORTH AMERICA, INC., ET AL.
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
WINE (CONCURS) TAYLOR (DISSENTS AND WILL NOT FILE SEPARATE OPINION)
2010-CA-000717-MR
TO BE PUBLISHED
BOONE

CAPERTON, JUDGE: The Appellants, Sandra and Curtis Messerly, appeal from the April 12, 2010 order entered by the Boone Circuit Court granting Appellees’ (hereinafter “Nissan”) motion for summary judgment in which the court dismissed the Appellants’ complaint with prejudice. On appeal, the Appellants argue that the trial court improperly granted summary judgment. After a thorough review of the parties’ arguments, the record, and the applicable law, we reverse and remand this matter for further proceedings.

The essential facts of this case are not in dispute. Appellant Sandra Messerly and her two children were outside on April 15, 2005, when she decided to move her 2002 Nissan Xterra mid-size sport utility vehicle from a concrete pad behind her home to make more room for the children to play. Sandra left Carter, age five weeks, strapped into his stroller just outside the open garage door. Foxx, her nineteen-month-old son, was in the garage sitting on his father’s ATV. Sandra started the car, checked her mirrors, and looked over her shoulder, but never looked into the garage to check on her children. Unfortunately, Foxx left the ATV and moved to a location behind the vehicle Sandra was operating. As Sandra was backing up, she hit Foxx with the right side of the Xterra. Foxx sustained fatal injuries.
Thereafter, Sandra and Curtis Messerly sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors. Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law. Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and is inseparable from the product’s inherent characteristics.

On appeal, the Appellants present three arguments, namely: (1) a genuine issue of material fact exists as to whether the design of the Nissan Xterra was unreasonably dangerous and that the trial court erred when it ruled that Nissan was entitled to judgment as a matter of law; (2) Texas federal courts have allowed two similar wrongful death backover cases to be tried by a jury, despite a Texas statute that creates a presumption of non-defectiveness where a vehicle meets government safety standards; and (3) the reasoning of the trial judge in deciding to grant summary judgment in favor of the defendants was inappropriate because the video recordings of court hearings show that the judge made factual findings that were not based on any evidence in the record, that the judge conducted an independent investigation of the blind zone on his own vehicle, and ignored Kentucky law on summary judgment.

The Appellees present three counter-arguments, namely: (1) the Nissan Xterra was not unreasonably dangerous as a matter of law; (2) Appellants’ evidence did not create any relevant and material questions of fact; (3) criticism of the trial court is unjustified and irrelevant. With these arguments in mind we now turn to our applicable standard of review.

We believe that a more proper characterization of these numerous arguments presented by the parties concerning this issue is whether the trial court erred by granting summary judgment to Nissan, i.e., whether the risk of a backover injury in the 2002 Xterra was a question for the jury in light of the evidence presented by the parties and our laws.
In Montgomery Elevator Co. v. McCullough by McCullough, 676 S.W.2d 776 (Ky. 1984), the Kentucky Supreme Court explained this Commonwealth’s approach to products liability law:
The fundamental shift in products liability law from a negligence standard to the new theory expressed in § 402A of the Restatement (Second) of Torts occurred in Kentucky in 1966 when § 402A was adopted in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966). The shift is from the conduct of the actor, which is the problem in negligence cases, to the condition of the product. This is the “special liability” in § 402A of persons engaged in the business of manufacturing or selling products and the standard for such liability is if the product is “in a defective condition unreasonably dangerous to the user or consumer . . . .”

In Nichols, [Nichols v. Union Underwear Co. Inc., 602 S.W.2d 429 (Ky. 1980)] we arrived at a simple standard for the trier of fact to use to apply the words in § 402A. The manufacturer is presumed to know the qualities and characteristics, and the actual condition, of his product at the time he sells it, and the question is whether the product creates “such a risk” of an accident of the general nature of the one in question “that an ordinarily prudent company engaged in the manufacture” of such a product “would not have put it on the market.” . . . Considerations such as feasibility of making a safer product, patency of the danger, warnings and instructions, subsequent maintenance and repair, misuse, and the products' inherently unsafe characteristics, while they have a bearing on the question as to whether the product was manufactured “in a defective condition unreasonably dangerous,” are all factors bearing on the principal question rather than separate legal questions. In a particular case, as with any question of substantial factor or intervening cause, they may be decisive.
Montgomery Elevator Co. at 780-781 (boldface emphasis added).

We believe that Montgomery Elevator elucidated the considerations
for the trier of fact, i.e., the jury, when determining whether a product was manufactured “in a defective condition unreasonably dangerous.” While the parties argue extensively about the obviousness of the danger, i.e., the patency of the danger, and whether as a matter of law the court could decide such questions, Montgomery Elevator clearly places this decision in the purview of the jury in the case sub judice. We agree with Appellants that the evidence presented to the trial court presented a jury question in light of Montgomery Elevator. Thus, the trial court erred in granting summary judgment to Nissan. As such, we decline to address the parties’ remaining arguments.
In light of the aforementioned, we reverse and remand this matter for further proceedings.

1108.  EMPLOYMENT LAW.  WRONGFUL TERMINATION.
PATTON (GRACE)
VS.
POLLARD (ROBERT), ET AL.
OPINION AFFIRMING IN PART AND REVERSING IN PART
WINE (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2010-CA-001404-MR
TO BE PUBLISHED
KNOTT

WINE, JUDGE: Grace Patton appeals from a summary judgment of the Knott Circuit Court dismissing her claims against Robert Pollard, Harold Combs, and the Knott County Board of Education, et al., (the Appellees) for retaliation and wrongful termination, violation of her First Amendment rights to free speech, breach of contract, promissory estoppel and violation of applicable statutes. Upon review, we reverse the summary judgment of the Knott Circuit Court in part and affirm in part, albeit on different grounds than those stated by the trial court.

1112.  CRIMINAL PROCEDURE.  MIRANDA.
DIKE (OLIVIA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND WINE (CONCURS)
2010-CA-001846-MR
TO BE PUBLISHED
GRAVES

MOORE, JUDGE: Olivia Dike appeals the judgment of the Graves Circuit Court following her conditional guilty plea to the charges of First Degree Possession of Methamphetamine, first offense; and Possession of Drug Paraphernalia, first offense. After a careful review of the record, we vacate the judgment against Dike because the circuit court erred in failing to suppress her statement and the evidence found as a result of her statement.

Pursuant to the reasoning in Smith, Officer Farmer’s interrogation of Dike about the drugs and needles was “not made in relation to any quantifiable public safety threat,” as she was found in a private residence with those items, rather than out in public. Smith, 312 S.W.3d at 360. Therefore, the public safety exception does not apply to Dike’s case and the circuit court erred in failing to suppress both her statement and the evidence that was discovered based upon her statement. Moreover, because that evidence provided the basis for her charges in this case, we cannot say that the error was harmless, and the Commonwealth makes no argument that it was harmless error.

Accordingly, the judgment of the Graves Circuit Court is reversed and the case is remanded.

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TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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Published. See products liability decision above.

Nonpublished:  None.

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