Hawes v. LaPointe
2008-CA-001559 10/16/09 2009 WL 3321082 Rehearing Pending
Opinion by Judge Dixon; Judge Caperton and Senior Judge Henry concurred.
The Court vacated and remanded an order of the circuit court dismissing appellant’s/cross-appellee’s civil action against appellee/cross-appellant in which he sought damages for assault, battery and emotional distress. The Court first held that the trial court did not erroneously violate appellant’s/cross-appellee’s right to a jury trial by granting the motion to dismiss. His rights could not be violated by a procedure he specifically agreed to. The Court next held that the trial court clearly erred in dismissing the civil action against appellee/cross-appellant on the grounds that his conduct was lawful and justified under KRS 503.080 and KRS 503.055. While KRS 503.058 was remedial and thus retroactive, KRS 503.055 was not in effect at the time of the incident in question and since it was deemed to be a substantive change in the law, it could not be applied retroactively. The Court further held that the trial court erroneously interpreted KRS 503.055. There was no evidence in the record to support a finding that appellee/cross-appellant held a “reasonable fear of imminent peril or great bodily harm.”