June 2013 – Topical Summary of Kentucky Court of Appeals Published Decisions with Digests and Links to Full Text (prepared by the AOC)

Top of the Old Limestone Court House in Lexington, Kentucky Photo by Michael Stevens

Top of the Old Limestone Court House in Lexington, Kentucky
Photo by Michael Stevens

Click here for June 2013 monthly summaries.

Click here  for entire listing of archived COA Monthly Summaries of Published Decisions.

Here are some of the tort, insurance and civil decisions of interest, dealing with qualified official immunity involving a police chase in violation of police regulations; qualified official immunity by school plant operator for clearing sidewalks of ice; negligent hiring claim against long haul trucker employed who had criminal record; a post McIntosh (but pre Shelton) decision holding hole in sidewalk was open and obvious; affirmed denial of motion for new trial in med-mal case over post verdict juror comments, eg., openand shut case, worries over higher medical bills, ruining doctor’s practice, and inattentive juror.

IV. IMMUNITY

A. Mattingly v. Mitchell
2012-CA-000083
06/21/2013 2013 WL 3105373 (DR Pending)
Opinion by Judge Thompson; Judges Combs and Stumbo concurred.
In an action where a vehicle occupant was killed in a collision allegedly caused by a police officer’s high-speed pursuit of another vehicle, the Court of Appeals held that the circuit court properly denied summary judgment in favor of the police officer on the basis of qualified official immunity because his pursuit of the other vehicle was a ministerial act. The police department’s standard operating procedures contained specific directives to officers regarding when a pursuit could be initiated and continued and when it must be terminated.

B. Mucker v. Brown
2012-CA-001013
06/07/2013 2013 WL 2450491 (DR Pending)
Opinion by Judge Thompson; Judges Combs and Stumbo concurred.
The Court of Appeals held that the circuit court properly denied summary judgment in favor of a school plant operator on the basis of qualified official immunity. A school employee filed an action against the plant operator in her individual capacity after the employee slipped on ice that had accumulated on the school’s sidewalk. The Court held that although the plant operator may have had the discretion to decide when and where to begin clearing the sidewalk, she had the ministerial duty to clear the sidewalk of ice prior to the time students, parents, and staff members were reasonably anticipated to arrive at the school. Therefore, because her duties in this regard were ministerial in nature, she was not entitled to qualified official immunity.

VI. NEGLIGENCE

A. Carberry v. Golden Hawk Transp. Co.
2011-CA-000269 06/21/2013 2013 WL 3105549 (Released for Publication)
Opinion by Judge Nickell; Judges Lambert and Taylor concurred.
The Court of Appeals affirmed the entry of summary judgment in an action where the appellant – an assault victim who was assaulted by a long-haul trucker in a motel parking lot – sought damages against appellee, the trucker’s employer, for negligent hiring and retention and negligent training and supervision. Using appellee’s tractor-trailer, the trucker had detoured to drive his girlfriend to meet appellant, her ex-husband, in a motel parking lot. Following a dispute, the trucker assaulted appellant and caused him significant head injuries. In affirming the entry of summary judgment, the Court determined that appellant had not established that: (1) the trucker was unfit for his job as a long-haul trucker, and (2) hiring him created an unreasonable risk of harm as required for a claim of negligent hiring and retention. Because neither 49 C.F.R. § 391.21 nor the standard federal job application for a truck driver requires information about an applicant’s criminal history, appellant’s claim that appellee negligently investigated the trucker before hiring him was unfounded. Moreover, the trucker’s alleged failure to list two recent employers was not attributable to appellee because the trucker certified that he had submitted a truthful application. Furthermore, because the assault occurred unbeknownst to appellee, without its approval or authorization, and not in furtherance of its business, appellee could not have foreseen that the trucker would assault appellant where appellee did nothing to place the trucker in proximity to appellant, especially where the trucker’s on-the-job conduct and performance gave no indication that the assault was imminent or even possible. Finally, the Court held that summary judgment was not entered prematurely where the facts of the assault were undisputed and no amount of discovery would change the fact that the assault did not occur in the course and scope of the trucker’s employment.

B. Lewis v. Faulkner Real Estate Corp.
2009-CA-001224
06/14/2013 2013 WL 2711081 (Released for Publication)
Opinion by Judge Clayton; Judges Taylor and Thompson concurred.
On remand from the Kentucky Supreme Court, the Court of Appeals affirmed the circuit court’s determination that appellee was not liable in negligence for foot injuries sustained by a pedestrian when he stepped in a hole next to a sidewalk on appellee’s property and fell. Citing to Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), the Court determined that there were no genuine issues of material fact and that appellee was entitled to summary judgment as a matter of law. The record supported the circuit court’s conclusion that the hole next to the sidewalk in question was “open and obvious,” that the pedestrian would have seen it if he had been looking, and that appellee had no reason to anticipate the harm from the hole.

VII. NEW TRIAL MOTION

A. Crawford v. Marshall Emergency Services Associates, PSC
2011-CA-001750
06/14/2013 2013 WL 2660572 (DR Pending)
Opinion by Judge Moore; Chief Judge Acree and Judge Taylor concurred.
The Court of Appeals affirmed the circuit court’s denial of appellant’s motion for a new trial following a defense verdict in a medical malpractice action. After interviewing jurors post-verdict, appellant alleged that one juror had been inattentive during the trial; that another juror had stated during the trial that it was an “open and shut case”; and that another juror had stated during deliberations that a verdict in appellant’s favor would result in higher medical bills and insurance premiums and would ruin the appellee doctor’s practice. The Court held that a new trial was not merited because appellant’s allegations were based entirely upon post-trial juror affidavits or hearsay statements, which are generally inadmissible as evidence and incapable of impeaching a verdict. Because the affidavits and hearsay statements relied upon by appellant met no exception to this general rule of inadmissibility, the circuit court committed no error in denying appellant a new trial.

The complete summary of published decisions is available below the “fold”:

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