December 22, 2011 COA Minutes — Nos. 1150-1172 (23 decisions; 4 published)

December 22, 2011 COA Minutes —  Nos. 1150-1172 (23 decisions; 4 published)

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PUBLISHED DECISIONS OF COA:

1150.  CRIMINAL PROCEDURE.  INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POLLINI (JASPER)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2009-CA-000964-MR  ON REMAND FROM SUPREME COURT OF KENTUCKY NO. 2010-SC-000504-D
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: This case comes to us on remand from the Kentucky Supreme Court for consideration of Jasper Pollini’s ineffective assistance of appellate counsel claim under Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010)(the Kentucky Supreme Court rendered Hollon and ruled that the time had come for recognition of IAAC claims premised upon appellate counsel’s alleged failure to raise a particular issue on direct appeal.). After careful review, we vacate and remand to the trial court for proceedings consistent with this opinion.  Turning to the merits of the omitted issue, we conclude that the omitted ex parte contact between the judge and jury in this case amounts to reversible error. A review of the record indicates that while the judge instructed the jury that the transcript of Plank’s conversation with police did not exist, in fact the transcript did exist, but had not been entered into the record in its entirety.

1162.  TORTS.  PRESMISES LIABILITY.  MCINTOSH LINE OF CASES. "OPEN AND OBVIOUS".  LANDLORD'S DUTY RE RENTED PREMISES AND REPAIRS.
TRUE (BRANDON)
VS.
FATH BLUEGRASS MANOR APARTMENT
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND STUMBO (CONCURS)
2010-CA-001784-MR
TO BE PUBLISHED
KENTON

THOMPSON, JUDGE: Brandon True appeals from a summary judgment of the Kenton Circuit Court dismissing his claim against his landlord, Fath Bluegrass Manor Apartment, for injuries sustained when he fell from his apartment balcony. He contends that there are material issues of fact requiring that this Court reverse the summary judgment or, alternatively, remand to the circuit court to consider the application of the Supreme Court’s decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). We agree with the circuit court that Fath cannot be liable for True’s injuries caused by an open and obvious hazard that True was aware of prior to his fall. Further, we hold that, under the facts, McIntosh does not apply and, therefore, remand is unnecessary.

True contends that there are material issues of fact that precluded summary judgment on his negligent repair claim and that the question of whether a condition is open and obvious is an issue of fact for the jury. Consideration of the issues necessarily requires a review of a landlord’s liability to a tenant for personal injuries caused by a hazard on the premises occupied by a tenant.

The general rule is that the tenant takes the premises as he finds them, and, in the absence of a contract imposing upon the landlord the duty to make repairs or improvements, he is under no implied obligation to do so. But notwithstanding this, if the landlord undertakes to
make improvements or repairs on a leased building, and he makes them in such a negligent and careless manner as to injure the tenant, the tenant may recover the damages he sustains by reason of this negligence or carelessness[.]

Contrary to True’s assertion, the circuit court did not ignore the law applicable to negligent repairs. Rather, the circuit court carefully considered the undisputed facts and correctly emphasized that a negligent repair claim is premised on the tenant’s reliance that a defect has been remedied. Recovery is permitted only if a repair resulted in an increased danger that was unknown to the tenant or if the negligent repair gave the deceptive appearance of safety. Id. In this case, the undisputed facts are to the contrary.
True and Habermehl testified that they were aware that the railing was loose because screws were missing. They further testified that after they moved in but prior to the fall, Fath had not repaired the railing. Thus, this is not a negligent repair claim. The applicable law is that a tenant takes the premises in “as is” condition and the landlord is only liable for injuries caused by defects unknown to the tenant and not discoverable through reasonable inspection.

Nevertheless, True contends that this Court must remand the case for consideration of the Kentucky Supreme Court’s holding in McIntosh, rendered the same day as the circuit court’s summary judgment. In McIntosh, the Supreme Court modified the open and obvious doctrine so that it is no longer an absolute bar to recovery from a landowner. Instead, the Court adopted the modern trend expressed in the Restatement (Second) of Torts § 343A(1) (1965), and its focus on forseeability.

Since the Court’s pronouncement, this Court has had occasion to discuss its
application. In Lucas v. Gateway Community Services Organization, Inc., 343 S.W.3d 341 (Ky.App. 2011), it was stressed that there must be a reasonably foreseeable distraction that caused the plaintiff to fail to discover an obvious condition, forget its existence, or fail to protect against the danger. Id. at 346.
There is no evidence that True was distracted from his “duty to act reasonably to ensure [his] own safety, heightened by [his] familiarity with the location and the arguably open and obvious nature of the danger.” McIntosh, 319 S.W.3d. at 395. He was aware of the loose railing and the obvious danger it presented. His focus should have remained on the potential danger and, consequently, the exceptional circumstances described in McIntosh do not apply.
True points out that there are six disputed facts that can only be resolved by a jury: (1) whether he was intoxicated when he fell; (2) whether he fell from the balcony or dismantled it himself; (3) whether the landlord agreed to make repairs; (4) whether True or Habermehl informed Fath that the balcony needed repair; (5) the nature of the railing’s defect; and (6) whether Fath retained control over the premises.

Under our summary judgment standard, disputed facts warrant a jury trial only when material. Lewis, 56 S.W.3d at 436. The initial five disputed facts are immaterial because the common law we have recited precludes recovery.

Finally, True suggests that there is a fact issue regarding whether Fath retained control over the premises. He cites Carver v. Howard, 280 S.W.2d 708, 711 (Ky. 1955), wherein the general rule is stated: “[T]he landlord must exercise ordinary care to keep in a reasonably safe condition the premises reserved for common use of his tenants.” Although the lease placed certain restrictions on the activities and use of the apartment, the leased apartment space was not open for the common use of all tenants and, therefore, the control retained by Fath is immaterial.

Based on the foregoing, the summary judgment of the Kenton Circuit Court is affirmed.

1170.  JUVENILES.  DEPENDENCY NEGLECT.
H. (K.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION REVERSING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000896-ME
2011-CA-000897-ME
TO BE PUBLISHED
MORGAN

The sole issue on appeal is whether the Cabinet presented sufficient evidence to establish that K.H. has neglected A.B.H. and K.S.H. Kentucky Revised Statutes (KRS) 620.100(3) provides that the Commonwealth bears the burden of proving dependency, neglect, or abuse of a child by a preponderance of the evidence. The Cabinet does not allege that A.B.H. and K.S.H. have ever been subjected to any direct acts of abuse or neglect. Rather, the Cabinet contends that K.H.’s refusal to sign the Aftercare Plan amounts to neglect by exposing the children to a risk of sexual abuse from A.H. The trial court’s findings regarding the weight and credibility of the evidence shall not be set aside unless clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01. On the other hand, the trial court’s application of the law to those facts is subject to de novo review. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999).

But based on this unproven, potential risk of harm, the Cabinet further inferred that that the restrictions set out in the Aftercare Plan were necessary and that K.H.’s failure to agree to those terms amounted to neglect as defined in KRS 600.020(1)(f). This conclusion is too attenuated from the established evidence of record. There is no allegation that K.H. has done anything improper in the care of her own children. The Cabinet concedes that she is a good and fit mother. Her children are well-cared for and have never been abused. The Cabinet also admits that she cooperated with them during its investigation of A.K.Y’s allegations. At worst, K.H. has chosen to believe in the innocence of her husband, which she is entitled to do. For this, the Cabinet has labeled her a neglectful parent. Under the circumstances, we must conclude that the trial court’s finding of neglect was clearly erroneous as it applied to K.H.

1172.  WORKERS COMPENSATION.   INDEPENDENT CONTRACTOR.
GOGEL (DON)
VS.
JOHN HANCOCK, ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2011-CA-001143-WC
TO BE PUBLISHED
WORKERS' COMP

KELLER, JUDGE: The Administrative Law Judge (ALJ) dismissed Don Gogel's (Gogel) workers' compensation claim, finding that Gogel was an independent contractor, not an employee. The Workers' Compensation Board (the Board) affirmed the ALJ, and Gogel appeals from the Board's opinion. On appeal, Gogel, who was an exercise rider for horse trainer John Hancock (Hancock), argues that the ALJ and the Board misapplied existing law. In the alternative, Gogel argues that the law should be changed from an analysis based on the "exercise of control," to one based on the "nature of the work." We disagree and affirm.

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TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

  • WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
  • FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

1165.  CIVIL PROCEDURE (DIRECTED VERDICT). INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED
JOHNSON

CLAYTON, JUDGE: Barbara Ferguson appeals from a judgment entered by the Johnson Circuit Court in a commercial motor vehicle accident. The judgment was based on a unanimous jury verdict in favor of Undertow Trucking, Inc. Ferguson maintains that the trial court erred when it failed to grant her motion for directed verdict on the issue of liability and denied her motion for a judgment notwithstanding the verdict. Furthermore, she argues that the trial court provided the jury with erroneous damage instructions. For the following reasons, we affirm.

On appeal, Ferguson argues three main issues. She maintains that the
trial court should have granted the motion for directed verdict on the issue of Undertow Trucking’s liability; that the trial court should have tendered separate instructions for past pain and suffering as well as future pain and suffering; and, finally, that Ferguson is entitled to jury instruction including the words – “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life.”

Undertow Trucking counters these arguments by noting that the trial court properly refused to direct a verdict of liability against the company; that the jury instructions appropriately instructed the jury regarding past and future pain and suffering; and, lastly, that the failure to include a jury instruction on damages for inconvenience, increased likelihood of future complications, and loss of enjoyment of life is harmless error.

STANDARDS OF REVIEW: DIRECTED VERDICT AND INSTRUCTIONS

The standard of review for reviewing a motion for a directed verdict is
set forth in Lewis v. Bledsoe Surface Mining Company, 798 S.W.2d 459, 461–62 (Ky. 1990), as follows:
Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky., 743, 184 S.W.2d 111 (1944), and Cochran v. Downing, Ky., 247 S.W.2d 228 (1952). The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’” NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988). If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, the judgment must be affirmed.
Thus, as the reviewing court, we do not address issues of credibility or the weight of the evidence. Our responsibility is to treat all evidence in favor of the prevailing party as true and make all reasonable inferences that may be drawn from the evidence in favor of the prevailing party. Under such circumstances the judgment of the trial court will only be reversed when a verdict is so palpably or flagrantly against the evidence as to indicate that it was reached as a result of passion or prejudice. In the instant case, the prevailing party is Undertow Trucking. Similarly, the same standard that is used for a directed verdict is also used for a judgment notwithstanding the verdict. Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991).

With regard to the review of jury instructions, any errors in jury instructions are considered as questions of law and are reviewed by this Court de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006). With these standards in mind, we now turn to the issues in the instant case.

Regarding jury instructions, Ferguson initially claims that the court erred when it failed to provide separate instructions regarding past and future pain and suffering. She also maintains that the trial court erred by not including the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life.”

Regarding her first assertion of error, Ferguson relies exclusively on McVey v. Berman, 836 S.W.2d 445 (Ky. App. 1992), for this proposition. In McVey, the Court said “[o]f course, it may be appropriate in many cases to give an additional separate instruction on future pain and suffering.” Id. at 450. The language therein is permissive not mandatory. Since Ferguson provides no other Kentucky law mandating separate instructions for past and future pain and suffering and has shown no prejudice resulting from this action by the trial judge, there is no error on the part of the trial judge.

Next, Ferguson argues that the jury instructions should have had the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life” in them. Given that we have held that the trial court did not err in failing to grant a motion for directed verdict or a motion for a judgment notwithstanding a jury verdict, clearly any error resulting would be harmless. The jury never deliberated as to damages and, therefore, it is unnecessary for us to go further in our examination of this issue.

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