June 2012 SCOKY Minutes

Decisions: 78  through 97

16  decisions with 10 published

Click here for this month’s minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)

Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS
(Number, NAME, ISSUE AND LINK TO FULL TEXT):

78.  Torts. Dog Bites/Attacks.
Brandon Benningfield v. Helen Zinsmeister
2009-SC-000660-DG
Questions Presented:
Animal control. KRS 258.235(4). Issues include whether a landlord is strictly liable as a KRS 258.095(5) “owner” for injuries inflicted by a tenant’s dog and, if so, whether the liability extends to injuries inflicted off the leased premises.

79. Torts. Medical Torts and Negligence.
Tanya A. Childers v. Sandra F. Geile MD etc.
2009-SC-000790-DG
Questions Presented:
Where doctor’s conduct was properly the subject of a traditional tort claim, it did not meet the elements of the tort of intentional infliction of emotional distress.

80,  Mortgages and Releases.
Gary Hall v. Mortgage Electronic Registration Systems, Inc.
Questions Presented:
Although the mortgage company filed a release referencing the wrong mortgage, the property owners were not entitled to statutory damages because they provided insufficient notice of the release’s deficiency. The mortgage company had “good cause” not to file a new release once it checked and found it had already filed one.

81. Criminal Law. Murder.
Michael Elery v. Commonwealth of Kentucky
Questions Presented:
Murder, Tampering with physical evidence and Violating a protective order-Life without possibility of probation or parole. Evidence of other crimes. Jury instructions about extreme emotional disturbance and reasonable doubt. Exclusion of portable breath analysis results. Juror issue. Admission of character evidence of the victim.

82.  Attorneys Fees.
Rodger Lofton v. Fairmont Specialty Insurance Managers
Questions Presented:
Attorney’s Fees. At issue is attorney’s entitlement to a fee under quantum meruit after withdrawing from a representation that involved a contingent fee contract.

83. Criminal Law.  Crimes.
Brian Allen McGuire v. Commonwealth of Kentucky
Questions Presented:
First degree manslaughter, killing while acting under extreme emotional distress, and Unlawful possession of a weapon on school property-20 years. Fundamental principles that control in a case of workplace violence. Witnesses in a criminal trial belong neither to the state nor to the defense and may decline to speak to either side. While the employer controls access to the witness/employee during working hours and the logistics of a work-site interview, they do not control the witness or trial counsel’s access to them during non-working hours.

84. Criminal Law. Murder.
Kenneth D. Hudson v. Commonwealth of Kentucky
Questions Presented:
Murder-25 years. Trial court properly declined to instruct the jury on defense theories of accomplice liability for first degree manslaughter, second degree manslaughter and reckless homicide. Evidence of gang activity and of a Tennessee shooting was properly admitted as it was relevant and not highly prejudicial under the facts of this case.

85. Family Law. Writ. Judicial Disqualification.
John David Lee v. Hon. Stephen M. George
Questions Presented:
Family Law. Denial of a Writ of Prohibition. Petition to disqualify judge, opposing counsel and the guardian ad litem. Discussion of trial court’s requirement of the posting of a bond before further motions could be filed by a pro-se party.

86. WORKERS COMPENSATION
Audi of Lexington v. Colin Elam
Questions Presented:
Workers’ Compensation. Issues include whether an ALJ may infer reasonably that the progression of a pre-existing degenerative condition contributed in the same proportion to the permanent impairment rating present after surgery as a physician testified that it did to the impairment rating assigned a year before the surgery.

87. CRIMINAL LAW
Travis Smith v.  Commonwealth of Kentucky

Questions Presented:
First degree burglary by complicity, First degree robbery by complicity and Second degree assault by complicity-20 years. Each of the complicity instructions captured the necessary elements to properly instruct the jury. Trial court erred in imposing court costs under KRS 23A.205(2) without determining if the defendant was a “poor person” as defined in KRS 453.190(2). Conviction affirmed but case remanded for further proceedings on the question of the imposition of court costs.

88. Real Property.  Partition.
Kenton Smith v. Richard Williams
Questions Presented:
Partition action for the sale of jointly owned real estate. Statute of Frauds prevented the enforcement of an alleged oral “buy/sell” agreement between the parties.

89.  District Court Jurisdiction. Guardianship Settlements.
Hon. Annette Karem, Judge v. Justin Bryant
Questions Presented:
District Court Jurisdiction. Settlements. KRS 387.520(1). KRS 24A.120. Writ of Prohibition. Issues include interpretation of KRS 387.520(1) and KRS 24A.120 and the extent of the District Court’s jurisdiction and authority regarding settlements in guardianship cases.

90.  Criminal Procedure.  Search and seizure.
Crystal Lynn Guzman v. Commonwealth of Kentucky
Questions Presented:
Search and Seizure. Issue is the breadth of the “protective sweep” exception to the search warrant requirement.

91.  Insurance.  Permissive User.  Step Down Provision.
Danielle N. Bidwell v. Shelter Mutual Ins. Co.
Questions Presented:
Insurance. Motor Vehicle. Permissive User Coverage. Issues involve the enforceability of a 90% “step-down” policy provision purportedly limiting recovery to the statutory minimum despite a $250,000 per person policy liability limit.

TORT REPORT

CIVIL, TORTS, PROCEDURE, INSURANCE

Published:

78.  Torts. Dog Bites/Attacks.
Brandon Benningfield v. Helen Zinsmeister

79. Torts. Medical Torts and Negligence.
Tanya A. Childers v. Sandra F. Geile MD etc.

82.  Attorneys Fees.
Rodger Lofton v. Fairmont Specialty Insurance Managers

89.  District Court Jurisdiction. Guardianship Settlements.
Hon. Annette Karem, Judge v. Justin Bryant

NOT TO BE PUBLISHED:

96. TORTS. DEFAMATION. WRIT.  PRIVILEGE.
JOHN MIKE BREEN, INCORRECTLY 2011-SC-000705-MR WARREN
NAMED; CORRECT NAME-MICHAEL A. BREEN A/K/A MIKE BREEN V.
HON. THOMAS CASTLEN
MEMORANDUM OPINION OF THE COURT – AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, SCOTT, AND VENTERS,
JJ., CONCUR. MINTON, C.J., NOT SITTING.
2011-SC-000705-MR

 

 

 

 

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.