March 16, 2012 COA Minutes — Nos. 265-281 (17 decisions; 4 published)

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PUBLISHED DECISIONS OF COA:

266.  CRIMINAL LAW
PARK (JAE H.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-000712-MR
TO BE PUBLISHED
JEFFERSON

274.  BOARD OF CLAIMS
ENERGY & ENVIRONMENT CABINET, DIVISION OF FORESTRY
VS.
ROBINSON (NICKIE D.), ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2011-CA-000139-MR
TO BE PUBLISHED
PIKE

KELLER, JUDGE: The Energy & Environment Cabinet, Division of Forestry of the Commonwealth of Kentucky (the Division), appeals from the circuit court’s opinion and judgment remanding this matter to the Board of Claims (the Board) for additional proceedings. On appeal, the Division argues that the Board correctly determined that the Division’s acts were discretionary, thus entitling the Division to immunity. In the alternative, the Division argues that, if its acts were ministerial, the Board determined that the Division was not negligent, negating the need for the circuit court’s remand. Nickie Robinson (Robinson) and Anna Robinson, his mother, argue that, because the acts complained of were ministerial, the Board was required to address whether they were performed negligently. The Division’s argument to the contrary notwithstanding, Robinson asserts that the Board did not address the Division’s negligence.1 Having reviewed the record, we agree that the Division’s actions were discretionary; therefore, we reverse and remand for reinstatement of the Board’s final order.

277.  TORTS.  MEDICAL NEGLIGENCE.
OGHIA (H. MICHAEL)
VS.
HOLLAN (EDWIN SCOTT)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2011-CA-000779-MR
TO BE PUBLISHED
BREATHITT

KELLER, JUDGE: Michael Oghia, M.D. (Dr. Oghia) appeals from a jury verdict and judgment in favor of Edwin Scott Hollan (Hollan). On appeal, Dr. Oghia argues that the trial court committed four reversible errors when it: (1) instructed the jury regarding the duty to inform; (2) failed to instruct the jury regarding comparative negligence; (3) improperly inserted itself into the proceedings by sua sponte stopping counsel for Dr. Oghia several times during his opening statement and cross-examination of Hollan; and (4) failed to declare a mistrial when counsel for Hollan allegedly referred to evidence outside the record in closing argument. Having reviewed the record and the arguments of counsel, we affirm.

281.  CRIMINAL LAW
GREGORY NAPIER
VS.
COMMONWEALT OF KENTUCKY
OPINION AND ORDER DISMISSING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND VANMETER (CONCURS)
2011-CA-002028-MR
TO BE PUBLISHED
DAVIESS

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271.  GOVERNMENT IMMUNITY.  SCHOOL TEACHERS.
MARSON (JOE), ET AL.
VS.
THOMASON (SHERRY), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002319-MR
NOT TO BE PUBLISHED
FLOYD

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