Tort Report for January 2012 – default judgment; immunity and sovereign immunity; res judicata; farm animals act (immunity); bullying; medical malpractice; and directed verdict.

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

Decisions re: default judgment; immunity and sovereign immunity; res judicata; farm animals act (immunity); bullying; medical malpractice; and directed verdict.

CIVIL PROCEDURE.  DEFAULT JUDGMENT.
MONTIES RESOURCES, LLC, ET AL.
VS.
EMECO EQUIPMENT (USA), LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN NO 2010-CA-001285-MR; AFFIRMING IN 2010-CA-000598-MR; AND AFFIRMING 2010-CA-001286-MR
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2010-CA-000598-MR
2010-CA-001285-MR
2010-CA-001286-MR
NOT TO BE PUBLISHED COA 1/13/2012
KNOX

DEFENSES. IMMUNITY.
HUMPHREY (KRISTIN), ET AL.
VS.
SAPP (KIM)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-002278-MR
NOT TO BE PUBLISHED COA 1/13/2012
JEFFERSON

“KELLER, JUDGE: Kristin Humphrey (Kristin), individually and as next friend of L.H. and M.H., and Jason Humphrey (Jason), individually and as next friend of L.H. and M.H. (collectively the Humphreys), appeal from the trial court’s summary judgment in favor of Kim Sapp (Sapp). On appeal the Humphreys argue that the court incorrectly determined that Sapp has immunity. Having reviewed the record, we affirm.”

DEFENSES, RES JUDICATA.
PRICE (RACHEL)
VS.
YELLOW CAB CO. OF LOUISVILLE
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2010-CA-001894-MR
TO BE PUBLISHED COA 1/20/2012
JEFFERSON

LAMBERT, JUDGE: Rachel Price has appealed from the opinion and order of the Jefferson Circuit Court granting summary judgment in favor of Yellow Cab Co. of Louisville and dismissing her complaint on the basis of res judicata. We have carefully considered the record as well as the parties’ arguments in their briefs, and we find no merit in Price’s appeal. Therefore, we affirm the circuit court’s opinion and order.

This case presents us with an unusual situation where the subject matter of the second suit was certainly raised in the prior suit, while the specific causes of actions alleged in the complaint were not actually pled. We must agree with Yellow Cab that because Price actually raised the issue of its alleged fraudulent misrepresentation regarding Garcia’s whereabouts in her prior suit and she was actually successful in obtaining a reversal of the dismissal of the suit based solely upon this argument, she is precluded from bringing claims on this subject matter in a subsequent case. There is nothing in the record, other than Price’s mere assertion in her response to the motion to dismiss and again in her brief, to support her statement that Yellow Cab requested that the misrepresentation issue be severed from the personal injury claim for trial. The record of the trial in the prior action was not certified as a part of the record on appeal, and we have no way to verify this self-serving statement. “It is the appellant’s duty to present a complete record on appeal.” Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007). Therefore, we hold that the circuit court did not commit any error as a matter of law in dismissing Price’s complaint.

DEFENSES. SOVEREIGN IMMUNITY.
MERCER COUNTY FISCAL COURT, ET AL.
VS.
DEAN (KAREN), ET AL.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001933-MR
NOT TO BE PUBLISHED COA 1/6/2012
MERCER

WINE, JUDGE: Mercer County Fiscal Court and Billy Humphrey, Road Supervisor of the Mercer County Road Department, appeal from the denial of their motion for summary judgment against the Appellees Karen Dean and Kenneth Dean and from the dismissal of their third-party complaint against the Appellee Michael Scull. On appeal, Mercer County and Billy Humphrey argue that they should have been granted summary judgment against the Deans on the basis of immunity and that their complaint against Scull should not have been dismissed because they are entitled to indemnity.

In the present case, Billy Humphrey enjoys official immunity. Indeed, when an officer or employee of a governmental agency is sued in his or her representative capacity, their “actions are afforded the same immunity, . . . to which the agency, itself, would be entitled[.]” Yanero, 65 S.W.3d at 522. Thus, as Mercer County is entitled to the protection of governmental immunity, so is Billy Humphrey in his official capacity as the county road supervisor. Because he was not sued individually, we need not even address the issue of whether the location and placement of a stop sign is a discretionary act. Id.
As both Mercer County and Billy Humphrey are cloaked with immunity, the circuit court is not the proper forum for the action.3    Rather, the proper forum for any claims the Deans may have against Mercer County and Billy 2 In contrast, an employee is not immune from suit for the negligent performance of a ministerial act. 3 Nevertheless, we do not find fault with the Deans’ choice of filing in the circuit court. As the Kentucky Supreme Court recently acknowledged in Nelson County Bd. of Educ., 337 S.W.3d at 622, “the soundest course [when in doubt] is to commence the action in circuit court[]” and let the courts decide whether jurisdiction lies with the courts or the Board of Claims.

Humphrey is the Board of Claims. Nelson County Bd. of Educ., 337 S.W.3d at 621. Thus, the Deans are not left without remedy. As was recently acknowledged in Nelson County Bd. of Educ., the savings statute will operate to allow the timely filing of their claims within the Board of Claims after the dismissal of the present action by the circuit court. Id. at 624; KRS 413.270.

Hence, we reverse and remand to the trial court with instructions for the court to dismiss the action with prejudice. As we are reversing for a dismissal of the action with prejudice, we need not address the issues raised on appeal by Mercer County regarding causation and the dismissal of the third-party complaint against Scull.

TORTS. FARM ANIMAL ACTIVITIES ACT.
BIESTY (THOMAS)
VS.
FLYNN (WILTON), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2011-CA-000084-MR
NOT TO BE PUBLISHED COA 1/27/2012
ESTILL

NICKELL, JUDGE: Thomas Biesty has appealed from the Estill Circuit Court’s entry of summary judgment in favor of Wilton Flynn and his brother, Lamon Flynn. He contends the trial court erroneously found the Farm Animal Activities Act1 (“the Act”) insulated the Flynns from liability for Biesty’s injuries sustained while training Lamon’s horse on Wilton’s farm. We affirm.

TORTS. BULLYING CLAIM. IMMUNITY OF GOVERNMENT OFFICIALS.
FLORENCE (JOYCE)
VS.
L. (P.)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
SHAKE (CONCURS) AND LAMBERT (DISSENTS)
2010-CA-000003-MR
2010-CA-000004-MR
NOT TO BE PUBLISHED  COA 1/20/2012
FAYETTE

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

 

TORTS.   MALICIOUS PROSECUTION.
WHITLOCK (ARTHUR)
VS.
HANEY (LARRY W.) SR.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000062-MR
NOT TO BE PUBLISHED 1/20/2012
CARTER

WINE, JUDGE: Arthur Whitlock appeals from an order of the Carter Circuit Court granting a directed verdict and dismissing his malicious prosecution claim against Larry Haney, Sr. Whitlock argues that there were issues of fact concerning whether Haney lacked probable cause to bring a criminal charge against him. We agree with Whitlock that Haney’s omission of material facts in his grand jury testimony may support a finding that he lacked probable cause to bring the criminal charge. Because this is an issue of fact, we conclude that the trial court erred by granting a directed verdict for Haney. Therefore, we reverse and remand for a new trial on this issue.

TORTS. MEDICAL MALPRACTICE CLAIM (SUMMARY JUDGMENT AND GENUINE ISSUES)
HAYES (MARK)
VS.
ASHLAND HOSPITAL CORPORATION
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002113-MR
NOT TO BE PUBLISHED COA 1/27/2012
BOYD

TAYLOR, CHIEF JUDGE: Mark Lynn Hayes, II, individually and as administrator of the Estate of Kimberly Carter Hayes, (collectively referred to as appellants) bring this appeal from an October 22, 2010, summary judgment of the Boyd Circuit Court dismissing their medical malpractice action. We affirm.

To prove medical negligence, a plaintiff must demonstrate the standard of care (duty), breach of the standard of care, and that such breach caused injury. See Andrew v. Begley, 203 S.W.3d 165 (Ky. App. 2006). Generally, an expert opinion is required in a medical negligence action to establish the standard of care, breach of such standard, and causation. Jarboe v. Harting, 397 S.W.2d 775 (Ky. 1965); Morris v. Hoffman, 551 S.W.2d 8 (Ky. App. 1977). Our case law has carved out one exception to this rule in medical and professional malpractice actions where the negligence is so apparent that a layperson with general knowledge would have no difficulty in recognizing the malpractice. Stephens v. Denison, 150 S.W.3d 80 (Ky. App. 2004).

Accordingly, there being no genuine issue of material fact as to causation of death, the circuit court properly rendered summary judgment dismissing appellants’ medical malpractice claim.

TORTS. MEDICAL MALPRACTICE.  CIVIL PROCEDURE (SUMMARY JUDGMENT, AFFIDAVITS)
ROGERS (JIMMY)
VS.
INTEGRITY HEALTHCARE SERVICES, INC.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-001876-MR
TO BE PUBLISHED COA 1/27/2012
LINCOLN

LAMBERT, JUDGE: Jimmy Rogers appeals from the Lincoln Circuit Court’s grant of summary judgment in favor of Integrity Healthcare Services, Inc. (“Integrity”)1 as to Rogers’s medical malpractice claims against Integrity. After our review, we affirm.

Rogers first challenges the circuit court’s reliance upon Lipsteuer, supra, and Gilliam, supra, which held that an affidavit cannot be used to defeat a motion for summary judgment if it contradicts previous testimony provided by the non-moving party. Rogers admitted in his motion to set aside the summary judgment that his affidavit contradicted his previous interrogatory answers. However, he contends that the subject decisions are inapposite in this case and that summary judgment was, therefore, entered erroneously because they dealt with affidavits that contradicted deposition testimony – not interrogatory answers.

As correctly noted by Integrity, though, Rogers failed to raise this particular argument before the circuit court. Therefore, we consider it waived since “‘[a] new theory of error cannot be raised for the first time on appeal.’” Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011), quoting Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999); see also Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954) (“[I]t is the accepted rule that a question of law which is not presented to or passed upon by the trial court cannot be raised here for the first time.”). Moreover, this Court has explicitly recognized that a party “cannot submit a later affidavit contradicting his earlier sworn answers to interrogatories to defeat summary judgment.” Best v. West American Ins. Co., 270 S.W.3d 398, 403 n.6 (Ky. App. 2008) (Emphasis added). Thus, no “extraordinary error” occurred here that would merit relief in the absence of preservation. See Fischer, 348 S.W.3d at 589; CR 61.02. Accordingly, Rogers’s argument must be rejected.

“It is beyond dispute that causation is a necessary element of proof in any negligence case.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991). “[I]n most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.” Id. (Footnote omitted); see also Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006).3 Thus, in order “[t]o survive a motion for summary judgment in a medical malpractice case in which a medical expert is required, the plaintiff must produce expert evidence or summary judgment is proper.” Andrew, 203 S.W.3d at 170.

Integrity asserts – correctly – that the subject affidavit fails to establish that either of the nurses was qualified as an expert to opine on medical causation and provides no evidence of their respective backgrounds, qualifications, or their knowledge of the subject medical history. Moreover, Rogers did not produce any reports or statements from the nurses summarizing or explaining their opinions and the bases for them. In light of these threshold failures, we cannot say that the circuit court erred in refusing to consider the affidavit and the opinions offered by the nurses therein as evidence of medical causation or in consequently entering summary judgment.4 Rogers had ample time to produce expert witnesses to support his cause of action and to sustain his burden of proof, but he failed to do so. Therefore, Integrity was entitled to summary judgment as a matter of law. See Blankenship, 302 S.W.3d at 673.

TRIAL. DIRECTED VERDICT.
NICHOLS (MICHAEL)
VS.
HAZELIP (MICHAEL), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002168-MR
TO BE PUBLISHED COA 1/13/2012
JEFFERSON

“VANMETER, JUDGE: Michael Nichols appeals from a judgment entered by the Jefferson Circuit Court after a jury rendered a verdict in favor of Michael Hazelip and Steven Gregson, regarding a physical altercation that took place between the parties. For the reasons stated hereafter, we affirm.”

“Nichols filed a complaint against Gregson and Hazelip for assault and battery, seeking damages related to a shoulder injury he claimed was worsened as a result of the altercation. Gregson filed a counterclaim against Nichols alleging assault. After the presentation of evidence, the parties moved for directed verdicts, which the trial court denied, but ruled that Nichols’ request for damages regarding his shoulder injury was not to be submitted to the jury since he failed to prove any injury was caused by the altercation. The jury found Nichols to be the initial aggressor in the incident, found in favor of Gregson on his counterclaim and awarded $50,000 in compensatory damages for pain and suffering and $200 in punitive damages. This appeal followed.

Nichols’ first argument on appeal is that the trial court erred by denying his motion for a directed verdict in regards to Gregson’s counterclaim. Specifically, Nichols alleges that (1) Gregson could not recover damages for mental suffering absent evidence of a physical injury or contact, and (2) the evidence demonstrated that Gregson was the aggressor in the physical altercation. We disagree.”

“Next, Nichols argues he should have been granted a new trial because defense counsel questioned a witness regarding Nichols’ insurance coverage and questioned Nichols regarding his prior psychiatric care. Nichols fails to address how either question resulted in prejudice so as to affect his substantial rights, i.e., affected the outcome of the case. See CR 61.01 (a court “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties[]”). Thus, we fail to appreciate how this claim of error warrants a new trial.

Nichols’ next argument is that the trial court erred by allowing both Gregson and Hazelip four peremptory strikes since their interests were not antagonistic under CR 47.03. We disagree.”

“To determine if coparties have antagonistic interests, courts consider three factors: “1) whether the coparties are charged with separate acts of negligence[]; 2) whether they share a common theory of the case[]; and 3) whether they have filed cross-claims.” Sommerkamp, 114 S.W.3d at 815 (internal citations omitted). The court shall consider other factors, including “whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment.” Id.”

TRIALS.  JURY QUESTIONS.
MCGILL (HELEN OGATA)
VS.
CLAY (ANTHONY), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001280-MR
NOT TO BE PUBLISHED COA 1/6/2012
CLARK

WINE, JUDGE: Helen Ogata McGill appeals from an order of the Clark Circuit Court which denied her motion for a new trial following an adverse jury verdict. McGill argues that the instructions should have explained that it had directed a verdict of liability against the Appellee, Anthony Clay. She further argues that the jury’s questions to the court clearly indicated that they were confused by the instruction and believed that liability was still at issue. As a result, McGill maintains that the trial court should have advised the jury about the directed verdict in response to their questions.

We agree with McGill that the trial court had the discretion to advise the jury about the directed verdict and to clarify the instructions when asked by the jury. Under the circumstances, it may have been a better practice had the trial court directly informed the jury that it had granted a directed verdict on liability for McGill. However, the court sufficiently informed the jury that the only issue before it was to determine McGill’s damages. Since there was substantial evidence to support the jury’s conclusion that McGill’s injuries were not caused by the automobile accident at issue, we conclude that the trial court did not clearly err or abuse its discretion by declining to elaborate further on the instructions. Hence, we affirm.

TORTS.  DOG ATTACK. LANDLORD.
BRISCOE (CARL)
VS.
JOHNSON (HAYDON)
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001761-MR
NOT TO BE PUBLISHED COA 2/6/2012
POWELL

WINE, JUDGE: Carl Briscoe, Jr., appeals from a summary judgment of the Powell Circuit Court dismissing his claims against Haydon Johnson arising from a dog attack. He argues that genuine issues of material fact remain. Upon review, we agree and reverse the judgment of the Powell Circuit Court.

We find McDonald to be directly on point with the present case. The trial court erred by finding that there was no duty without first determining whether Johnson was the landowner/landlord. The question of whether a duty arose, such as could create liability for Johnson, rests first upon whether Johnson was the landowner/landlord. A genuine issue of material fact remains as to this question. Thus, it was error for the trial court to grant summary judgment in favor of Johnson.

We note, as an aside, that we have not considered the deeds attached to Johnson’s brief in arriving at our decision today, as they are not contained in the record.1    Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(vii).

In conclusion, we reverse the summary judgment of the Powell Circuit Court and remand for further proceedings consistent with this opinion, including a determination of whether Johnson was the landowner and/or landlord of the property in question. We make no determination regarding whether a duty actually existed or was breached in this case, however.

 

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