Feb. 10, 2012 COA Minutes — Nos. 143-168 (26 decisions; 6 published)

  Feb. 10, 2012 COA Minutes —          Nos. 143-168 (26 decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

147.  CRIMINAL LAW
BLAKE (JEFFREY DALE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
LAMBERT (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000987-MR
TO BE PUBLISHED
GRAVES

TAYLOR, CHIEF JUDGE: Jeffrey Dale Blake brings this appeal from an April 20, 2010, judgment of the Graves Circuit Court upon a conditional plea of guilty to sundry offenses (including receiving stolen property over $300) and a sentence of three-years’ imprisonment which was probated for a term of five years. We reverse and remand.

151. CRIMINAL LAW
WILSON (RICKY LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001399-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: Ricky Lee Wilson appeals the Fayette Circuit Court’s judgment convicting him of first-degree Trafficking in a Controlled Substance; Possession of Drug Paraphernalia; third-degree Trafficking in a Controlled Substance; Possession of Marijuana; Alcohol Intoxication in a Public Place; and of being a second-degree persistent felony offender (PFO-2nd). After a careful review of the record, we affirm.

155.  REAL PROPERTY. MORTGAGES.  HOME EQUITY ASSET TRUST
BERGHAUS (RACHEL L.)
VS.
US BANK
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
COMBS (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002050-MR
TO BE PUBLISHED
CAMPBELL

COMBS, JUDGE: The Campbell Circuit Court dismissed the counterclaim of Rachel L. Berghaus in litigation initiated by U.S. Bank. The court also entered a judgment and order of sale in favor of U.S. Bank, trustee for the registered holders of Home Equity Asset Trust 2004-2, Home Equity Pass-Through Certificates, Series 2004-2. Berghaus now appeals. After our review, we affirm in part, vacate in part and remand.

156. CRIMINAL LAW. EXPUNGEMENT.
COMMONWEALTH OF KENTUCKY
VS.
JONES (CHARLOTTE M.)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002324-MR
TO BE PUBLISHED
JEFFERSON

VANMETER, JUDGE: The Commonwealth of Kentucky appeals from the December 1, 2010, order of the Jefferson Circuit Court granting Charlotte Jones’s motion to expunge the record of her voided felony conviction of illegal possession of a controlled substance in the first degree, schedule II – cocaine. For the following reasons, we affirm.

159.  CIVIL PROCEDURE.  CERTIFYING CLASS ACTION.
MERCK & COMPANY, INC.
VS.
RATLIFF (JAMES), ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000234-MR
TO BE PUBLISHED
PIKE

WINE, JUDGE: Merck & Company, Inc., n/k/a Merck Sharp & Dohme Corporation (Merck) appeals from an order of the Pike Circuit Court certifying a class for a class action lawsuit initiated by James Ratliff, on behalf of himself and others similarly situated.2 In the underlying lawsuit, Ratliff alleges that Merck concealed the dangerous side effects of the prescription medication, rofecoxib, marketed under the name “Vioxx.” Merck argues on appeal that class certification was inappropriate under CR 23 and seeks a reversal of the class-certification order. Upon a thorough review of the record and applicable caselaw, we reverse the order of the Pike Circuit Court.

160.  TORTS.  EVIDENCE RES IPSA LOQUITOR.
RYAN (CANDIDA)
VS.
FAST LANE, INC.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2011-CA-000300-MR
TO BE PUBLISHED
CARTER

KELLER, JUDGE: Candida Ryan (Ryan) appeals from an order of the Carter Circuit Court granting summary judgment in favor of Fast Lane, Inc. (Fast Lane). For the following reasons, we affirm. On February 21, 2007, Ryan filed suit against Fast Lane in the Carter Circuit Court alleging negligence.1 Specifically, Ryan claimed that she was injured while pumping gas at Fast Lane when gas entered her eyes, and that such injury was due to a latent defect in the gasoline pump.

On appeal, Ryan argues that the trial court erred in granting summary

judgment because it did not apply the res ipsa loquitur doctrine. We disagree. As set forth in Sadr v. Hager Beauty School, Inc., 723 S.W.2d 886, 887 (Ky. App. 1987):

[Res ipsa loquitur] is an evidentiary doctrine which allows a jury to infer negligence on the part of the defendant. If the inference is forceful enough it can create a rebuttable presumption of negligence, possibly resulting in a directed verdict.

Reliance upon the doctrine of res ipsa loquitur is predicated upon a showing that (1) the defendant had full control of the instrumentality which caused the injury; (2) the accident could not have happened if those having control had not been negligent; and (3) the plaintiff's injury resulted from the accident. The doctrine does not apply if it is shown that the injury may have been due to some voluntary action on the plaintiff’s part.

(Citations omitted).
As to the first element, we note that Ryan was operating the pump at the time of her injury. Therefore, we cannot say that the pump was under the exclusive control of Fast Lane. Thus, the trial court did not err in concluding that Ryan was unable to prove the first element.

As to the second element, we agree with the trial court that there was no evidence that Fast Lane was negligent. Ryan alleged that Fast Lane breached a duty “to keep the premises and pumps in a reasonably safe condition and to warn [Ryan] of any hidden and latent defects and dangers[.]” However, Ryan concedes that she is unable to submit any evidence that the pump was defective. In fact, Chapman and Holbrook testified that they inspected the pump; no changes were made because the nozzle appeared to be in proper working order; and no one else experienced problems with the pump after Ryan used it.

Further, Sunderhaus testified that the lack of shut-off on a nozzle is expected to occur from time to time. Additionally, he testified that, even if there was a malfunction with the nozzle in this case, he did not think there was any way that Fast Lane could have anticipated the malfunction. Consequently, without more than conclusory allegations and subjective beliefs, Ryan’s claim that the accident would not have happened but for Fast Lane’s negligence cannot survive summary judgment. Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990). Accordingly, we conclude the trial court correctly determined that res ipsa loquitur does not apply to the instant case.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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159.  CIVIL PROCEDURE.  CERTIFYING CLASS ACTION.
MERCK & COMPANY, INC.
VS.
RATLIFF (JAMES), ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED
SEE ABOVE PUBLISHED DECISION.

160.  TORTS.  EVIDENCE RES IPSA LOQUITOR.
RYAN (CANDIDA)
VS.
FAST LANE, INC.
SEE ABOVE PUBLISHED DECISIONS.
145.  MEDICAL NEGLIGENCE. 
PARTEE (KATHY D.)
VS.
GAPP (GREGORY)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
KELLER (CONCURS) AND WINE (CONCURS)
2010-CA-000129-MR
NOT TO BE PUBLISHED
CHRISTIAN

LAMBERT, SENIOR JUDGE: Kathy D. Partee appeals from a judgment of the Christian Circuit Court entered on a jury verdict adverse to her claims of medical negligence against Gregory Gapp, M.D. For reasons that follow, we affirm.

Appellant subsequently filed the underlying medical negligence suit against Appellee on the grounds that he had deviated from the applicable standard of care and skill by negligently administering Methotrexate without taking further steps or allowing additional time to confirm that Appellant’s pregnancy was actually ectopic. After a three-day trial, a jury determined that Appellee had not breached the applicable standard of care and found in his favor. This appeal followed.

On appeal, Appellant raises a number of grounds for reversal and a new trial – none of which was preserved below. While acknowledging this lack of preservation, Appellant nonetheless asks us to review her claims under the “palpable error” standard set forth in Kentucky Rules of Civil Procedure (CR) 61.02. That rule provides that “[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” An error is palpable only when it is “easily perceptible, plain, obvious and readily noticeable.” Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997). “Fundamentally, a palpable error determination turns on whether the court believes there is a ‘substantial possibility’ that the result would

have been different without the error.” Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007), quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Even a cursory examination of Appellant’s claims reveals that they lack merit under these standards, but we nonetheless address them individually.

157. APPEALS.
STULL (VERNON), ET AL.
VS.
WILLIAMS (JOHN) JR., ET AL.
OPINION AND ORDER DISMISSING
TAYLOR (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-000003-MR
NOT TO BE PUBLISHED
MONTGOMERY

TAYLOR, CHIEF JUDGE: Vernon Stull and Katherine Stull bring this appeal from November 8, 2010, November 22, 2010, and December 20, 2010, orders of the Montgomery Circuit Court. Having reviewed the record, we conclude that the above-styled appeal is untimely taken, thus depriving this Court of jurisdiction.

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