TORT REPORT OF CIVIL AND INSURANCE DECISIONS: COA 2010 Minutes July 30, 2010 (Nos. 729-747)

TORT REPORT OF CIVIL AND INSURANCE DECISIONS:
COA 2010 Minutes July 30,
2010 (Nos. 729-747)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • Total number of decisions:  19
  • Published Decisions:  4 (731, 732, 735, 741)
  • Tort, Civil, Insurance, Workers Compensation: 
    • 732. Torts.
    • 738. Appeals.
    • 740. Torts, slip and fall.
    • 746. WORKERS COMPENSATION

DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF
EACH:

732. TORTS. PREMISES LIABILITY.  RESIDENTIAL LANDLORD AND LEASED PREMISES.
JAIMES (THERESA)
VS.
THOMPSON (MICHAEL D.)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2008-CA-002355-MR
TO BE PUBLISHED
JEFFERSON

ACREE,
JUDGE: Appellant, Theresa Jaimes, seeks reversal of the Jefferson
Circuit Court’s grant of summary judgment denying her recovery for
injuries sustained when she slipped and fell on property owned by the
appellee. The appellee, Michael Thompson, did not retain control of the
premises where Theresa Jaimes’ injury occurred. Therefore, he is not
liable and the decision of the Jefferson Circuit Court is affirmed.

738.  APPEALS. SUPERCEDEAS BOND.
THOMPSON (PAUL), ET AL.
VS.
SWETNAM (BRUCE A.), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2009-CA-000650-MR
NOT TO BE PUBLISHED
SHELBY

ACREE, JUDGE: Paul and Carla Renee Thompson appeal orders of the Shelby Circuit Court denying their requests for judgment on the supersedeas bond posted by Bruce and Patricia Swetnam, and for a hearing to determine whether the bond
amount was sufficient. After careful review of the parties’ arguments and the record, we affirm.

740. TORTS. PREMISES LIABILITY. SLIP AND FALL AT  HOSPITAL. OPEN AND OBVIOUS.
SHELTON (WILMA)
VS.
KENTUCKY EASTER SEALS SOCIETY, INC.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2009-CA-000945-MR
NOT TO BE PUBLISHED
FAYETTE

WINE, JUDGE: Wilma Shelton appeals from an order of the Fayette Circuit Court granting summary judgment in favor of Kentucky Easter Seals Society, Inc. For the reasons stated below, we affirm.
Factual and Procedural Background
On March 9, 2007, Wilma Shelton was visiting her husband at Cardinal Hill Rehabilitation Hospital (“Cardinal Hill”), which was owned and operated by Kentucky Easter Seals Society, Inc. (“Easter Seals”). Mrs. Shelton had visited her husband every day for five weeks since his admittance to Cardinal Hill. Before her husband was admitted to Cardinal Hill, Mrs. Shelton had been warned by a neighbor of the danger of numerous wires beside the beds at Cardinal Hill. After a visit with her father, the Sheltons’ daughter complained to staff at Cardinal Hill about the danger of these wires. Mrs. Shelton admits she always attempted to avoid the wires whenever she approached her husband’s bed. Because the left side of the bed was not accessible to her, Mrs. Shelton approached the right side of the bed, where the wires were located, each time she kissed her husband goodbye.

On March 9, 2007, as Mrs. Shelton approached her husband’s bed to kiss him, her foot became entangled in a wire, and she fell to the floor and onto her hands and knees. Both her husband and her daughter witnessed the fall. Mrs. Shelton experienced immediate pain in her left knee. She was later diagnosed with a non-displaced transverse fracture of the lower third of the patella. Mrs. Shelton filed suit against Easter Seals in March of 2008.

Mrs. Shelton had an unfortunate accident due to a known hazard at her husband’s bedside. Both parties agree that the wires beside the patient’s bed were open and obvious, and that the general rule remains that a landowner is not liable for such open and obvious hazards. Mrs. Shelton has failed to offer substantial evidence in support of her theory that she was distracted or had no alternate route to approach the bed. Without that evidence, there is no genuine issue of material fact to put before a jury. We affirm the trial court’s order granting summary judgment in favor of Kentucky Easter Seals Society, Inc.

746. WORKERS COMPENSATION.
STREET (DEIRDRE)
VS.
GOODY'S FAMILY CLOTHING, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (CONCURS)
2009-CA-002191-WC
NOT TO BE PUBLISHED
WORKERS' COMP

CLAYTON, JUDGE: This is an appeal of a decision of the Workers’
Compensation Board (the “Board”). [EDITOR'S NOTE.  This is a terrible way to write an introductory paragraph to an appellate decision.  No mention of the issues, holding, decision, procedural backdrop.  Just cold turkey into the case requiring the reader to ferret it out through several pages of discourse.  It smacks of a trial court order rather than an appellate decision. On the last page (12), it was written "For the foregoing reasons, we affirm the decision of the Board upholding the ALJ’s determination that Street’s case should be dismissed."]

[Buried in page 9 is the following:]

Street contends that this order took the issue of whether the University Evaluation should be admitted off the table and it was an abuse of discretion for the ALJ to change its opinion in its May 13, 2009 order. When confronted with this issue, the Board held:
“[T]he “law of the case doctrine” does not apply to the facts of this case so as to deny the ALJ the opportunity in reversing himself on the question of the admissibility of the university evaluation. (Footnote omitted). It first must be pointed out there can be no appeal from the ALJ’s prior order of March 16, 2009, omitting the university report since it was interlocutory in nature. As such, the ALJ retained jurisdiction in this case. To this extent, since there had been no appeal from this order, “the law of the case doctrine” had no applicability.
****
The Board recognizes the better practice would have been for the ALJ to have given notice by way of order he was changing his mind as to the admissibility of the university evaluation prior to the rendition of the final decision. Notwithstanding the above, the record reflects the parties were given ample opportunity to cross- examine the university evaluator and was also given the opportunity to rebut the university evaluator’s findings by other evidence.
Workers’ Compensation Board’s opinion, pages 31-32. We agree with the finding of the Board.
Since the ALJ had not reached a final decision in this case, any ruling would have been interlocutory. The ALJ’s decision to introduce the UE’s findings was not in error and the Board was correct in upholding that decision.

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