Campbell County Courthouse and Newport City Offices, Newport, Kentucky. This is the Fifth Courthouse for Campbell County and was built in Newport which was the largest city but not the county seat. This Courthouse was completed in 1884 in a “Victorian eclectic” style. The County seat remained in Alexandria even with the best efforts of the Citizens of Newport who raised the money for the building. This courthouse was listed in the National Register of Historic Places in 1988.
Published Court of Appeals appellate cases for this week –
October 16, 2015: Links are to full text of PDF decision with AOC.
849. Prisons and Inmates.
Jose Ramirez vs. Tracy Nietzel, Hearing officer at Northpoint Training Center
COA Published Opinion Reversing. Boyle County.
D. LAMBERT, JUDGE: This appeal surrounds an inmate disciplinary hearing at Northpoint Training Center (hereinafter, “Northpoint”). Appellant (hereinafter, “Ramirez”) was disciplined by the Appellee (hereinafter, “Adjustment Officer Nietzel”) for his alleged involvement in an assault on two other inmates, Henry Rodgers, (hereinafter, “Rodgers”) and Ricky Lee, (hereinafter, “Lee”).
At no point does Adjustment Officer Nietzel make a finding regarding reliability of the confidential information she must have based her findings of guilt upon. In reviewing the sealed documents, only one inmate is cited by the investigative officer as having implicated Ramirez.9 Kentucky Corrections Policies and Procedures Policy Number 9.18(D)(7)(d) states: If the adjustment officer or committee decides that information given by a single confidential informant is sufficient for finding that the inmate committed the prohibited act, the adjustment officer or committee report shall include a statement giving the rationale for that decision. Therefore, we reverse the findings of the circuit court and void the disciplinary proceeding, report and conviction in question, and order restoration of any good time credit lost and repayment to Ramirez of all sums paid for restitution in connection with the disciplinary proceeding.
Selected Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from Oct. 16, 2015. Links are to full text of decision in PDF at AOC.
845. Multiple trial issues – continuance; directed verdict; loss of parental consortium claim; missing evidence instruction; res ipsa loquitor; new trial motion
BETTY RIGGS MITCHELL VS. BAPTIST HEALTHCARE SYSTEM, INC.
COA Nonpublished Opinion Affirming. Fayette County.
J. LAMBERT, JUDGE: Betty Riggs Mitchell, Administratrix of the Estate of Michael David Riggs, Deceased and Christy K. Riggs, as Next Friend of Allison Riggs, Kimberly Riggs, and April Riggs, Minors, appeal from the Fayette Circuit Court’s judgment following a jury verdict in favor of Baptist Healthcare System, Inc. d/b/a Central Baptist Hospital (Central Baptist). After careful review, we affirm the judgment of the trial court.
No error in denial of trial continuance.
The standard of review for a trial court’s denial of a continuance is whether the court abused its discretion. Guffey v. Guffey, 323 S.W.3d 369 (Ky. App. 2010). The appropriateness of a continuance is based on the unique facts and circumstances of the case. Id. The Guffey court followed the factors set out in Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (overruled on other grounds). The Snodgrass court said the factors to be considered for a motion to continue are: 1) length of delay; 2) previous continuances; 3) inconvenience to litigants, witnesses, counsel, and the court; 4) whether the delay is purposeful or is caused by the accused; 5) availability of other competent counsel; 6) complexity of the case; and 7) whether denying the continuance will lead to identifiable prejudice. As such, the trial court maintains vast discretion when ruling upon a movant’s request for a continuance. Stallard v. Witherspoon, 306 S.W.2d 299, 300 (Ky. 1957). The decision to deny a continuance request may not be reversed simply because the trial court would have been justified in granting the continuance. Riordan v. Riordan, 252 S.W.2d 901, 902 (Ky. 1952). Instead, the decision to grant or deny a continuance may only be reversed upon proof that the trial court clearly abused its discretion. Id. Accordingly, the Court’s review is limited to whether the trial court’s decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 72 (Ky. 2010).
No error in not giving spoliation instruction.
Regarding a spoliation of evidence instruction, Mitchell contends that Central Baptist was put on notice on July 26, 2010, of a potential lawsuit related to the care and treatment of Riggs and was under a duty to preserve evidence as of that date. In support of this, Mitchell alleges that the evidence was kept in the ordinary course of business by Central Baptist, who had absolute care, custody, and control over the evidence. Mitchell contends that an adverse inference should be drawn, because Central Baptist had notice that the evidence and records were relevant at the time they were destroyed or lost and cites to University Medical Center, Inc. v. Beglin, 375 S.W.3d 783 (Ky. 2011). Mitchell contends the jury should have been instructed to disregard the testimony because the evidence and records were missing under Kentucky Rules of Civil Procedure (CR) 37.02.
Central Baptist argues that the trial court correctly determined that the missing Glimepiride pills and corresponding report made by Nurse Vibbert did not warrant a missing evidence instruction. We agree with Central Baptist. The trial court maintains discretion to issue a missing evidence instruction in cases where evidence is missing without explanation and the party who lost the evidence had “absolute care, custody, and control” over it. Beglin, at 791. The consequences of missing evidence are thoroughly explained in the Kentucky Evidence Law Handbook:
Destruction of evidence by a litigant (or potential litigant) is relevant in some instances and supportive of an inference that the destroyed evidence was unfavorable to the destroyer (or favorable to the opposing litigant), but not without preliminary proof that the destroyer knew of its potential relevance to a claim or defense. An inference based on the destruction (or loss) may not be drawn if the destroyer acted inadvertently (mere negligence) or if there is an adequate explanation for the destruction (loss). Lawson, The Kentucky Evidence Law Handbook, § 2.65 (4th ed. 2003) (internal citations omitted). As described by the handbook, it is well-settled that a missing evidence instruction should not be utilized in cases where the evidence was lost as a result of negligence or destroyed in the normal course of business management. Beglin, at 791.
No error on not finding defendant liable under res ipsa loquitur.
Mitchell argues that, as a matter of law, the jury should have found res ipsa loquitur that failure by Central Baptist to properly monitor Riggs with finger stick blood glucose monitoring resulted in the medical conditions suffered by Riggs. The elements of the doctrine of res ipsa loquitur require a “showing that (1) the defendant had full control of the instrumentality which caused the injury; (2) the accident could not have happened if those having control had not been negligent; and (3) the plaintiff’s injury resulted from the accident.” Bowers v. Schenley Distillers, Inc., 469 S.W.2d 565 (Ky. 1971). This doctrine is not applicable if it is shown that the injury may have been due to some voluntary act on the plaintiff’s part. See Schmidt v. Fontaine Ferry Enterprises, 319 S.W.2d 468 (Ky. 1959). The applicability of res ipsa loquitur in an action against a hospital for injury to a patient “depends mainly on whether the particular injury was of a kind that a jury could find would not usually occur in the absence of negligence.” See Jewish Hospital Ass’n of Louisville, Ky. v. Lewis, 442 S.W.2d 299, 300 (Ky. 1969).
We agree with Central Baptist that Mitchell failed to put on adequate proof at trial to support her claims for loss of parental consortium, and thus a directed verdict was properly entered by the trial court on this claim. Thus, this Court held in Clements that parental consortium claims are not available to adult children. In the instant case, there was no affirmative proof presented at trial that the claimants were the minor children of Riggs at the time of his death. Absent such proof, the jury could not award loss of consortium damages to the claimants, and a directed verdict was warranted. We will not disturb this on appeal.
No error in not granting plaintiff’s motion for new trial.
The trial court is vested with broad discretion in granting or refusing to grant a new trial, and the appellate courts will not interfere with that unless it appears there has been an abuse of discretion. Savage v. Three Rivers Medical Center, 390 S.W.3d 104 (Ky. 2012). Generally, reasons for granting a new trial must be very strong, and it must appear with reasonable certainty that injustice or wrong would result unless the motion is granted. See Gray v. Sawyer, 247 S.W.2d 496 (Ky. 1952).
846. Board of Claims. No common law duty for landowner or easement holder to control vegetation at railroad crossing.
PERKINS ESTATE VS. Commonwealth of Kentucky
COA Nonpublished opinion affirming Fayette Circuit Court order affirming Board of Claims summary judgment grant dismissing claim.
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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