Kentucky Court of Appeals Decisions (Minutes ) for September 20, 2013 (Nos. 890-907); 18 decisions announced with 3 decisions designated “To Be Published”)

Court of Appeals - Louisville, Kentucky Counsel's Last Minute Preparations Before the Judges Enter Photo Taken With DMD App for Panorama Using iPad3

Click here for AOC set of minutes of Kentucky Court of Appeals Decisions (Minutes ) for September 20, 2013 (Nos. 890-907); 18 decisions announced with 3 decisions designated “To Be Published”)

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts web site.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

891. Estates.  Prejudgment Interest, Arbitration Award.
June Ison v. Ricky Robinson
Perry County, Special Judge Ron Johnson
Published 9/20/2013

TAYLOR, JUDGE: June Ison, Executrix of the Estate of Roy Campbell, brings a direct appeal from a judgment entered by the Perry Circuit Court on February 22, 2010, confirming an arbitration award in favor of Ricky Robinson, Tonia Robinson, Robinson and Hicks Construction, Inc., David Sizemore, Valerie Sizemore, Mark D’Onofrio, Kristi D’Onofrio, Terry North, Kim North, Rizwan Ali, Shaheen Ali, Clarice W. Wallace, Howard Feltner, Phyllis Feltner, and Jerry Wyrick (hereinafter collectively referred to as appellees) (2010-CA-000898-MR). Appellees cross-appeal from that judgment on the issue of whether the circuit court should have awarded prejudgment interest at the rate of 12 percent per annum from the date of the original arbitration award entered January 16, 2004 (2010-CA- 000945-MR).1 Additionally, June Ison, Executrix of the Estate of Roy Campbell, further appeals a subsequent order entered by the Perry Circuit Court on July 12, 2010, which again confirmed the arbitration award and further denied various Kentucky Rules of Civil Procedure (CR) 59 motions that had been made after the original judgment was entered February 22, 2010 (2010-CA-001490-MR). This order also denied any prejudgment interest to appellees on the award.2 Appellees cross-appeal, asserting that they are entitled to prejudgment interest from the date of the arbitration award, as originally ordered (2010-CA-001619-MR) on January 16, 2004. Apparently the parties were concerned with a “calendar” order entered by the circuit court at the hearing on the CR 59 motions on April 9, 2010, which facilitated the filing of the first appeal and cross-appeal. While this Court has substantial doubt as to whether the calendar notations made by the Perry Circuit Court on April 9, 2010, constituted a final judgment as required under Kentucky Revised Statutes (KRS) Chapter 417, et seq., and CR 54.01, the parties have, nonetheless, properly perfected their appeals and for judicial economy this Court has considered all of the appeals together.

892.   Employment Law.  Wrongful Termination of hospital employees.
Stephanie Foster v. Jennie Stuart Medical Center
Christian County, Judge John L. Atkins
Published 9/20/2013

CLAYTON, JUDGE: This appeal stems from summary judgment orders entered against Stephanie Foster and Lisa Oliver. Both filed suits against Jennie Stuart Medical Center (hereinafter “JSMC”), Debbie Bauer,1 Austin Moss,2 and Terry Peeples3 (hereinafter collectively “the individual appellees”) after their employment was terminated. Foster appeals from summary judgment orders, which dismissed her claims for defamation and the denial of termination appeal rights, as well as the dismissal of all claims against the individual appellees. Oliver appeals from summary judgment orders dismissing her claims for wrongful termination, defamation, and the denial of termination appeal rights, as well as the dismissal of all claims against the individual appellees. We find some of these issues were not ripe for summary judgment; therefore, we affirm in part, reverse in part, and remand for further proceedings.

895.  Open Records (tax records, data base, privacy issues)
Department of Revenue v. Timothy Eifler
Franklin County, Judge Thomas Wingate
Published 9/20/2013

CLAYTON, JUDGE: This is an appeal from the Franklin Circuit Court’s decision affirming an Attorney General’s Opinion which held that the Appellee, Timothy J. Eifler, was entitled to obtain records from the Appellant, Kentucky Department of Revenue (the Department), under the Open Records Act (ORA). Based upon the following, we affirm the Franklin Circuit Court’s opinion.

The circuit court held that Eifler was entitled to inspect the public record, i.e., the Department’s database, and that it did not need to create a query to satisfy the ORA request. We agree. The Department may redact the private information from the database and then allow Eifler to inspect the records.

Based upon the above, we affirm the decision of the Franklin Circuit Court and hold that the Department must produce the documents for inspection sought by Eifler.

Tort Report – torts, insurance, civil, procedure

902.  Torts. Slip and Fall, Premises Liability, Ice and Natural Hazards
Ollie Barker vs. John D. Northcutt
Rowan County, Judge William Evans Lane
Not to be Published, 9/20/2013

CAPERTON, JUDGE: Ollie Barker appeals from the grant of summary judgment in favor of John D. Northcutt and Northcutt & Son Home For Funerals, Inc. (hereinafter “Northcutt”). After our review of the parties’ arguments, the record, and the applicable law, we agree with Barker that a genuine issue as to a material fact exists precluding summary judgment. Thus, we reverse and remand this matter for further proceedings.

The facts of this case revolve around a slip and fall outside of Northcutt’s Home for Funerals.

On appeal, Barker argues that the trial court erred in granting summary judgment. Northcutt argues: (1) based on longstanding Kentucky law regarding naturally occurring outdoor hazards, the grant of summary judgment was correct; and (2) Barker’s interpretation of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) is misplaced.1 With these arguments in mind we turn to our jurisprudence.

In Kentucky, a danger is “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man in the position of the visitor exercising ordinary perception, intelligence, and judgment.” Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 529 (Ky. 1969) (citations omitted). “Whether a natural hazard like ice or snow is obvious depends upon the unique facts of each case.” Schreiner v. Humana, Inc., 625 S.W.2d 580, 581 (Ky. 1981).

Barker was aware of the inclement weather.  Contrary to the arguments of Northcutt this awareness by itself does not mandate summary judgment. Unlike the plaintiff in Green, it was not until after he fell that Barker could see that ice was present, that it had mounded2 up and that it was plainly visible. We believe that under these facts summary judgment was premature because there is an issue regarding the obviousness of the hazard prior to Barker’s falling. As such, we reverse and remand this matter for further proceedings.

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