Tort Report for Feb. 2012 – timely filing of appeal; finality for filing appeal; Rule 11; class action certification; teacher’s qualified immunity; statute of limitations, discovery rule, car accidents; zero verdict for pain and suffering; sudden emergency doctrine; juror challenge; reversed summary judgment for genuine issues; premises liability and subsequent remedial measures

Here is the tort report for February 2012. Individual cases are below the fold, published and nonpublished, SCOKY and COA.  However this month, there were no SCOKY TORT decisions.

Issues:  timely filing of appeal; finality for filing appeal; Rule 11; class action certification; teacher’s qualified immunity; statute of limitations, discovery rule, car accidents; zero verdict for pain and suffering; sudden emergency doctrine; juror challenge; reversed summary judgment for genuine issues; premises liability and subsequent remedial measures

APPEALS.  TIMELY FILING AND SHOW CAUSE.
WILLIS (AARON LAMONT)
VS.
WILLIS (DARLENE DENISE)
OPINION AND ORDER DISMISSING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND VANMETER (CONCURS)
2011-CA-001519-MR
TO BE PUBLISHED
COA 2/17/2012
BOYD

APPEALS.  FINALITY. PENDING MOTION TO AMEND COMPLAINT.
CROSS (JASON H.), ET AL.
VS.
COX (LELAND E.), ET AL.
OPINION DISMISSING AND REMANDING
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND WINE (CONCURS)
2010-CA-001511-MR
NOT TO BE PUBLISHED
COA 2/17/2012
BARREN

ATTORNEYS.  SANCTIONS.  RULE 11.
DETERS (ERIC), ET AL.
VS.
KENTON COUNTY
OPINION AND ORDER DISMISSING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MOORE (CONCURS)
2010-CA-002317-MR
NOT TO BE PUBLISHED
COA 2/17/2012
KENTON

CIVIL PROCEDURE.  CERTIFYING CLASS ACTION.
MERCK & COMPANY, INC.
VS.
RATLIFF (JAMES), ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000234-MR
TO BE PUBLISHED
COA 2/3/2012
PIKE

WINE, JUDGE: Merck & Company, Inc., n/k/a Merck Sharp & Dohme Corporation (Merck) appeals from an order of the Pike Circuit Court certifying a class for a class action lawsuit initiated by James Ratliff, on behalf of himself and others similarly situated.2 In the underlying lawsuit, Ratliff alleges that Merck concealed the dangerous side effects of the prescription medication, rofecoxib, marketed under the name “Vioxx.” Merck argues on appeal that class certification was inappropriate under CR 23 and seeks a reversal of the class-certification order. Upon a thorough review of the record and applicable caselaw, we reverse the order of the Pike Circuit Court.

DEFENSES. TEACHER NEGLIGENCE.  QUALIFIED OFFICIAL IMMUNITY APPLIED.
ADAMS (SHARON), ET AL.
VS.
DAWSON (MELANIE)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2011-CA-000537-MR
NOT TO BE PUBLISHED
COA 2/3/2012
CALLOWAY

STUMBO, JUDGE: Sharon Adams, individually and as next friend of Austin Herald appeals from an order granting summary judgment for Melanie Dawson. This is a personal injury case where Herald was injured while at school. Ms. Dawson was Herald’s teacher. Adams argues that summary judgment should nothave been granted. We find Ms. Dawson was protected by qualified official immunity; therefore, summary judgment was appropriate.

DEFENSES. STATUTE OF LIMITATIONS (COA HOLDS “DISCOVERY RULE” NOT TOLL SOL IN MVRA CLAIMS AND LOSS OF CONSORTIUM CLAIMS)
FROST (NANCY A.), ET AL.
VS.
DICKERSON (BRYAN D.)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000537-MR
TO BE PUBLISHED
COA 2/24/2012
BOONE

NICKELL, JUDGE: Nancy A. Frost and Glen F. Frost appeal from a Boone Circuit Court order dismissing Nancy’s action for damages and Glen’s action for loss of consortium in this personal injury case stemming from an automobile accident. At issue is whether the “discovery rule” tolls the limitations period for bringing a tort action under Kentucky’s Motor Vehicle Reparations Act (“MVRA”), KRS 304.39-230. We hold that it does not, and, therefore, we affirm.

MOTIONS. NEW TRIAL. DAMAGES (ZERO PAIN AND SUFFERING VERDICT) EVIDENCE.  SUDDEN EMERGENCY DOCTRINE AND CHALLENGE OF JUROR.
ADAMS (PAMELA), ET AL.
VS.
MILLER (RANDALL), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
KELLER (CONCURS IN RESULT ONLY) AND LAMBERT (CONCURS)
2010-CA-001884-MR
NOT TO BE PUBLISHED
COA 2/24/2012
CAMPBELL

CAPERTON, JUDGE: Pamela and Thomas Adams appeal from the denial of their motion for a new trial following a jury verdict which found Randall Miller liable for the motor vehicle accident at issue on November 12, 2007. Said verdict did not award the full amount of damages sought and did not award any damages for pain and suffering. The Adamses argue that the jury verdict is not supported by the evidence, that the jury was erroneously instructed on the doctrine of sudden emergency, and that a juror should have been excused for cause. After a thorough review of the record, the parties’ arguments, and the applicable law, we do not find reversible error and, accordingly, affirm the jury verdict in question.

SUMMARY JUDGEMENT REVERSED ON GENUINE ISSUES, CREDIBILITY
JOHNSON (VALERIE D.), ET AL.
VS.
BREWER (BETTY), ET AL.
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002096-MR
NOT TO BE PUBLISHED
COA 2/3/2012
SCOTT

CLAYTON, JUDGE: Michael H. Johnson and his guardian, Valerie D. Johnson, bring this appeal from a Scott Circuit Court order granting summary judgment to Betty Brewer, Charles F. Brewer, Gregory Brewer, and Indiana Insurance Company (hereinafter “the Brewers”).

On appeal, the Johnsons argue that summary judgment was inappropriate because the Brewers had failed to show that there were no genuine issues of material fact regarding whether Charles Brewer had observed the applicable standard of care for a driver entering an intersection on a green light. Although it is undisputed that Michael Johnson ran the red light and that Charles Brewer was proceeding on a green light through the intersection, “[c]omparative negligence . . . calls for liability for any particular injury in direct proportion to fault.” Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984). “A driver approaching an intersection with the right-of-way has no absolute right to proceed so unconditional that she can ignore duties of reasonable lookout, sounding a horn when necessary, and avoiding collision when there is reasonable opportunity to do so.” Wittmer v. Jones, 864 S.W.2d 885, 888 (Ky. 1993). “A green light or ‘go’ signal, is not a command to go regardless of other persons or vehicles that may already be at the intersection but is a qualified permission to proceed carefully in the direction indicated.” Swartz v. Humphrey, 437 S.W.2d 750, 753 (Ky. 1969).

The Johnsons contend that police photographs of the intersection which were taken at the time of the accident and are in the record indicate otherwise. We agree that the photographs are not conclusive. Thus, a factual dispute exists regarding how much of the intersection is visible to traffic approaching from the west.

Next, the Johnsons argue that simply because the sole eyewitnesses who are able to testify about the accident deny that Charles did anything wrong is not dispositive, and that a jury should assess their credibility. It is well established that the credibility of a witness is a matter for the jury. Estep v. Commonwealth, 957 S.W.2d 191, 193 (Ky. 1997). “Where questions exist regarding the credibility of witnesses and the weight of evidence, such matters must await trial and not be determined on motion for summary judgment.” Amos v. Clubb, 268 S.W.3d 378, 382 (Ky. App. 2008). We agree that a jury should assess the credibility of Betty and Gregory Brewer’s testimony regarding the events immediately preceding the collision.

The Brewers argue that the unverified allegations in the complaint are of little significance as they are not admissions of fact but rather mere assertions of a claim. Nonetheless, on its face, the complaint may be admissible.

[Kentucky Rules of Evidence] KRE 801A(b) 1 allows the introduction as non-hearsay of an adverse party’s admissions, including admissions contained in superceded or abandoned pleadings, but only against the declaring party.” See Dalton v. Mullins, 293 S.W.2d 470 (Ky. 1956) (pre-Rules holding that Appellant’s abandoned pleading was admissible as competent evidence against Appellant).

Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 119 (Ky. 2008). Because material issues of fact remain regarding Charles Brewer’s observance of the duty to maintain a reasonable lookout and maintain a safe speed, the credibility of the witnesses, and the topography of the intersection, summary judgment was not appropriate in this case.

The order granting summary judgment to the Brewers and Indiana Insurance Company is reversed, and the matter is remanded for further proceedings in accordance with this opinion.

TORTS.  EVIDENCE RES IPSA LOQUITOR.
RYAN (CANDIDA)
VS.
FAST LANE, INC.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2011-CA-000300-MR
TO BE PUBLISHED
COA 2/10/2012
CARTERKELLER, JUDGE: Candida Ryan (Ryan) appeals from an order of the Carter Circuit Court granting summary judgment in favor of Fast Lane, Inc. (Fast Lane). For the following reasons, we affirm. On February 21, 2007, Ryan filed suit against Fast Lane in the Carter Circuit Court alleging negligence.1 Specifically, Ryan claimed that she was injured while pumping gas at Fast Lane when gas entered her eyes, and that such injury was due to a latent defect in the gasoline pump.

TORTS. MEDICAL NEGLIGENCE. 
PARTEE (KATHY D.)
VS.
GAPP (GREGORY)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
KELLER (CONCURS) AND WINE (CONCURS)
2010-CA-000129-MR
NOT TO BE PUBLISHED
COA 2/10/2012
CHRISTIAN

LAMBERT, SENIOR JUDGE: Kathy D. Partee appeals from a judgment of the Christian Circuit Court entered on a jury verdict adverse to her claims of medical negligence against Gregory Gapp, M.D. For reasons that follow, we affirm.

TORTS. PREMISES LIABILITY.  IMPEACHMENT; SUBSEQUENT REMEDIAL MEASURES.
SINKHORN (CARL)
VS.
THE OXFORD APARTMENT CLUB RESORT, LLC
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001826-MR
NOT TO BE PUBLISHED
COA 2/17/2012
JEFFERSON

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