Ballard County Court House, Wickliffe, Kentucky.

Ballard County Court House,  Wickliffe, Kentucky.  

The Ballard County Courthouse, located at Fourth and Court Streets in Wickliffe, is the center of government of Ballard County, Kentucky. The courthouse was constructed from 1900 to 1905. It was the first permanent courthouse in Wickliffe and replaced a courthouse in Blandville that burned down in 1880. Architect Jerome B. Legg designed the courthouse; his design features an octagonal cupola atop the building, Ionic porticos over three of the entrances, and a central pavilion on each side.

The courthouse was added to the National Register of Historic Places on February 27, 1980.

 

Published Court of Appeals appellate cases for  this week –
September 25, 2015:    Links are to full text of PDF decision with AOC.

792.  Defamation.
Sam Cromity vs. Terry Meiners and Clear Channel Communications
COA Published Opinion Affirming Jefferson Circuit Court
(click here for news story about appellate decision)
(click here for Meiners’ blog post and video from police cruiser camera)

VANMETER, JUDGE: This case involves the issue of when a speaker’s opinion is actionable for defamation. Officer Sam Cromity appeals from the Jefferson Circuit Court’s order granting Terry Meiners and Clear Channel Communication, Inc.’s 1 motion for summary judgment on Officer Cromity’s defamation and false light claims. The trial court held that Meiners’ statements concerning Cromity were commentary involving non-actionable expressions of opinion, and for the following reasons, we affirm.

On March 18, 2011, Officer Cromity, a member of the Louisville Metro Police Department, cited Meiners on the Watterson Expressway for operating his vehicle in excess of the posted speed limit of 55 miles per hour. Later that day, Meiners, a radio personality, discussed the incident on the air. Over multiple broadcasts, Meiners described the traffic stop, and claimed that he had not been speeding and thus was not deserving of a traffic ticket. He proceeded to describe Cromity as an “out and out liar,” a “troubled public servant,” and “delusional,” and later began calling Cromity “Black Car Barney” in a reference to the incompetent television character Barney Fife. Meiners referred to Cromity as a “creative writer” and implied that Cromity had fabricated the speeding allegations, questioning the propriety of Cromity’s conduct in issuing him a ticket. Finally, Cromity claims Meiners accused him of intimidation given the way Meiners described how Cromity approached his vehicle. Meiners was ultimately acquitted of the charge of going 75mph in a 55mph zone in a separate criminal proceeding.

Cromity filed a complaint on March 15, 2012, alleging defamation damaging to his professional reputation and speech placing him in a false light. The trial court granted summary judgment in favor of Meiners, stating:  “The Court finds that the statements at issue made by Defendant Terry Meiners, during the context of two radio broadcasts, were commentary involving a matter of public interest and are non-actionable expressions of opinion based upon his description of the events of the March 18, 2011 traffic stop.”

In 1990, the United States Supreme Court addressed the issue of whether opinion speech is actionable for defamation in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), and took a position consistent with the Kentucky Supreme Court’s approach in Yancey. The Supreme Court declined to create a dichotomy between opinions, which the defendants in Milkovich asserted were entitled to absolute Constitutional protection from defamation actions, and defamatory facts, which are typically actionable. Id., 497 U.S. at 19, 110 S.Ct. at 2706. Instead, the Court found that the issue is not whether a statement is one of fact or opinion, but rather whether the alleged defamatory statement is provable as false. Id. In other words, for a statement to be actionable, the statement must be sufficiently factual so that it may be proven false, or the statement must imply underlying facts which are provable as false. Id., 497 U.S. at 21, 110 S.Ct. at 2707.

[T]he Supreme Court in Milkovich stated, “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 779, n. 4, 106 S.Ct. 1558, 1565, n. 4, 89 L.Ed.2d 783 (1986)). We agree with the trial court’s finding that Meiners’ statements addressed an issue of public concern, specifically, the integrity of a local police officer. Since Meiners fully disclosed the facts supporting his opinion, and those facts are not provable as false, Meiners’ opinions are constitutionally protected.

Selected Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from September 11, 2015.  Links are to full text of decision in PDF at AOC.

Only one decision (other than the defamation case above) on injury law.

797.  Sovereign immunity denied bussing company contracted by state to transport handicapped
Federated Transportation Services of the BlueGrass,, Inc.  vs. William Skiles
Not Published COA Opinion Affirming Jefferson Circuit Court Summary Judgment.

CLAYTON, JUDGE: This is an appeal from the denial of a motion to dismiss on the issue of sovereign immunity. Based upon the following, we affirm the decision of the Jefferson Circuit Court.

In determining whether an entity employed by a governmental agency is entitled to governmental immunity, a court must determine whether the entity is exercising a function which is integral to state government.

While the Transportation Cabinet is an agency of state government, Federated has not set forth evidence to convince us that it is also an agency providing an integral function of state government. In Transit Authority of River City v. Bibelhauser, 432 S.W.3d 171, 174 (Ky. App. 2013) (“TARC”), a panel of  our court held that TARC satisfied the first prong of the test set forth above in that it “is an agency of the consolidated Louisville Metro, which is an entity immune from suit.” Federated, however, has not shown that it is an entity created by the Transportation Cabinet. While it has set forth statutory authority for the Transportation Cabinet to use organizations such as Federated, it has not shown that it is an agency of state government. Thus, Federated has not shown that it has met the first prong necessary to establish immunity.

Federated has also not satisfied the second prong set forth in Comair and TARC. Federated, by its own admission, is a non-profit Kentucky corporation that, among other things, coordinates “human service transportation delivery within a specific area,” pursuant to its agreement with the Transportation Cabinet. Affidavit of Pam Shepherd, par. 1.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.

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