June 15, 2012 COA Minutes — Nos. 510-524 (15 decisions; 3 To Be Published)

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PUBLISHED DECISIONS OF COA:

512.  FAMILY LAW.  VISITATION. GRANDPARENTS.
KIDD (AARON K.)
VS.
COMBS (JAMES)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2009-CA-002260-ME
2009-CA-002299-ME
TO BE PUBLISHED
PERRY

LAMBERT, JUDGE: Aaron Kidd has appealed from the November 18, 2009, findings of fact, conclusion of law, and judgment entered by the Perry Circuit Court related to the custody of his minor daughter, Jaiden Combs. The circuit court awarded joint custody to Kidd and Jaiden’s maternal great-grandparents, James and Irene Combs, designated the Combses as the primary residential custodians, and ordered visitation for Kidd and Jaiden’s mother, Shannon Combs. Kidd contests the circuit court’s designation of the Combses as de facto custodians and the custody ruling in general. We have thoroughly reviewed the record on appeal, including the recordings of the temporary and permanent custody hearings. Finding no error in the circuit court’s rulings, we affirm.

518.  REVENUE AND TAXATION. HORSE INDUSTRY.
THE FAMILY TRUST FOUNDATION OF KENTUCKY, INC., D/B/A THE FAMILY FOUNDATION
VS.
THE KENTUCKY HORSE RACING COMMISSION, ET AL.
OPINION VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND COMBS (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000164-MR
TO BE PUBLISHED
FRANKLIN

LAMBERT, SENIOR JUDGE: It could not be gainsaid that thoroughbred breeding and racing occupy a central role in Kentucky life. The thoroughbred industry is deeply imbedded in our history, culture and economy. In recent years, it has been widely reported and seems to be true that the industry has fallen on hard times. A primary contention is that Kentucky racing purses have not kept pace with those offered by tracks in other states rendering Kentucky tracks competitively disadvantaged. The thoroughbred industry has repeatedly engaged the political branches of state government seeking expanded gaming revenue sources, but little success has been achieved.

In pursuit of new revenue, Kentucky thoroughbred race tracks, the state racing commission and gaming vendors developed a gaming product whereby parties may wager on “historical” races by means of a device that looks like a slot machine. Although the trial court record and the record on appeal are underdeveloped, it seems that a patron may use the devise by inserting money or its equivalent, selecting a numbered “horse” in a “historical” race, and watching all or part of a race run at another place and time. The patron wins or loses his bet based on the outcome of the historical race.

The overarching issue presented is whether wagering on historical races violates the provisions of KRS Chapter 528 which variously proscribe gambling. Prior to reaching that issue, if at all, we find it necessary to provide background context and address certain preliminary issues.

This appeal is by the Family Trust Foundation of Kentucky, Inc., (Family Foundation) from an order of the Franklin Circuit Court granting Appellees’ petition for declaration of rights. As Appellees sought, the trial court upheld regulations adopted by the Kentucky Horse Racing Commission (the Commission) authorizing “historic racing.” Upon review and for reasons hereinafter stated, we vacate and remand for further proceedings.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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515.  TORTS.  FELA.
ZAPP (LARRY)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2010-CA-001999-MR
NOT TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Larry Zapp appeals from an order of the Jefferson Circuit Court denying his motion for a new trial following a defense verdict in an action brought under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Zapp contends that the trial court erroneously allowed CSX Transportation, Inc. to introduce a video at trial that was irrelevant to the case at hand and misleading to the jury. After our review, we affirm.

519. TORTS. PREMISES LIABILITY. ANOTHER OPEN AND OBVIOUS POST-MCINTOSH DISMISSAL.
SMITH (ROXANNE), ET AL.
VS.
GRUBB (TERESA), ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND VANMETER (CONCURS)
2011-CA-000223-MR
TO BE PUBLISHED
CLAY

THOMPSON, JUDGE: Speedway SuperAmerica, LLC, and its local store manager, Roxanne Smith, appeal from the Clay Circuit Court’s findings of fact, conclusions of law and judgment (judgment) awarding Teresa Grubb $5,762.45 for past medical expenses, $175,000 for pain and suffering, and awarding her husband, Randy Grubb, $20,000 for loss of consortium. The issues presented are: (1) whether the trial court erred when it found Smith individually liable; (2) whether the open and obvious doctrine applied and precluded recovery; (3) whether the trial court properly considered Teresa’s comparative fault; and (4) whether Judge House, the trial judge, was required to recuse after he and the plaintiffs’ attorney were identified by a federal court as participants in a vote-buying scheme. After a review of the record and contemplation of the applicable law, we conclude that Smith cannot be individually liable and that the condition on Speedway’s premises was open and obvious.

In Lucas v. Gateway Community Services Organization, Inc., 343

S.W.3d 341 (Ky.App. 2011), the Court applied the law as modified in McIntosh. Similar to the present case, the plaintiff stepped on crumbling gravel in a parking lot and fell. The trial court granted summary judgment to the premises owner on the basis of the open and obvious doctrine and this Court affirmed. The plaintiff’s contention that McIntosh required that the issue of her carelessness be submitted to the jury was rejected. In doing so, this Court emphasized that there was no evidence that the plaintiff was distracted by some outside force or her view obstructed. Unlike McIntosh, she was not under time-sensitive or stressful circumstances but simply failed to exercise care for her own safety. Under the circumstances, summary judgment was appropriate. Id. at 346.

As in Lucas, we conclude that McIntosh did not preclude a directed verdict based on the open and obvious doctrine. It modified the doctrine to the extent that trial courts must analyze the facts on a case-by-case basis. Therefore, the open and obvious doctrine has not been eliminated in this Commonwealth, rather, McIntosh created an exception that is simply stated: even if a condition on a premises owners’ property is open and obvious, the owner will not be absolved from liability if it was foreseeable that the plaintiff would be distracted and not observe or appreciate the danger.

When a motion for summary judgment or directed verdict is made by the owner, the question becomes whether there is a material issue of fact regarding the foreseeability of the plaintiff’s injury. Absent a material issue of fact upon which a fact-finder could reasonably find that the injury was foreseeable, the open and obvious doctrine precludes recovery. Otherwise, it is a question of fact and the application of comparative fault.

In this case, Teresa fell when she stepped on eroded blacktop in proximity to a drain covered by a grate. Such imperfections are so common that they should be anticipated and observed by an invitee and, absent special aspects of the pothole or foreseeable distraction, the premises owner has no liability. As stated by the Michigan Court when presented similar facts:

[P]otholes in pavement are an “everyday occurrence” that ordinarily should be observed by a reasonably prudent person. Accordingly, in light of plaintiff’s failure to show special aspects of the pothole at issue, it did not pose an unreasonable risk to her.

Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 523, 629 N.W.2d 384, 389 (2001).

The photographs and testimony indicate that the pothole was several feet from any parked car, under a well-lit canopy, not uncommonly deep or shielded from view, and located near a drainage grate. It had no special aspects that would pose an unreasonable danger to an observant invitee but was an erosion of the surface, a common condition in parking lots. Teresa admitted that the pothole was not concealed: she simply failed to observe the pothole.

The Grubbs argue that because Smith and other Speedway employees did not notice the pothole prior to Teresa’s fall, it could not have been open and obvious. We disagree. The standard is an objective one and not dependent on whether the employees noticed the pothole. Although Teresa was not obligated to look directly at her feet with each step taken, in the exercise of ordinary care for her own safety, she was required to observe the surface of the parking lot. Humbert v. Audubon Country Club, 313 S.W.2d 405, 407 (Ky. 1958).

Under the undisputed facts, the exception to the rule that a premises owner is not liable to injured invitees for open and obvious conditions on its premises is not applicable. There is no evidence that Speedway knew or should have known that an invitee on its premises would blindly walk through its parking lot oblivious to common imperfections. The pothole was only a danger to the unwary. Hamlet, 13 S.W.2d at 1052-1053. Therefore, the trial court erred as a matter of law when it denied Speedway’s motion for a directed verdict.

522. APPEALS.
STOECKLIN (JACK)
VS.
RIVER METAL RECYCLING, LLC
OPINION AND ORDER DISMISSING APPEAL
THOMPSON (PRESIDING JUDGE)
TAYLOR (CONCUR) AND KELLER (CONCURS)
2011-CA-000951-MR
TO BE PUBLISHED
CAMPBELL

THOMPSON, JUDGE: Jack Stoecklin filed this nuisance action against River Metals Recycling, LLC (RMR). Because Stoecklin filed a motion to voluntarily dismiss his claim with prejudice, we hold that his appeal from the Campbell Circuit Court’s order granting his motion must be dismissed.

The substantive facts underlying Stoecklin’s nuisance claim are not pertinent to our decision. Our decision turns on the procedural facts.

Convinced that he would not succeed on the merits without Roenker’s testimony, Stoecklin made an unusual strategic decision: He filed a motion to dismiss with prejudice. After Stoecklin’s motion was granted, he appealed from the order granting his motion for voluntary dismissal with prejudice.2 Therefore, the threshold issue is whether Stoecklin can appeal from the order granting his motion to voluntarily dismiss his claim with prejudice.

We conclude that Stoecklin’s attempt to self-expedite the appellate process cannot succeed.

It is a universal rule regulating the right of an appeal that it will not lie in favor of a party unless it was an involuntary adverse judgment. If the judgment appealed from was rendered at the instance of the complaining parties or by their consent, they will not be permitted to complain upon an appeal.

Harrel v. Yonts, 271 Ky. 783, 113 S.W.2d 426, 430 (1938).

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED.  SEE SMITH V. GRUBB ON OPEN AND OBVIOUS RE PREMISES LIABILITY.

NONPUBLISHED. NONE.

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