Aug. 5, 2011 COA Minutes — Nos. 721-745 (25 decisions; 3 published)

Aug. 5, 2011 COA Minutes —    Nos. 721-745 (25 decisions; 3 published)

728. REAL PROPERTY.  LAND CONTRACTS, BREACH, REMEDY.
MAYNARD (MACKADOO)
VS.
WILLIAMSON (THOMAS E.), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2010-CA-001019-MR
TO BE PUBLISHED
PIKE

VANMETER, JUDGE:    Mackadoo Maynard appeals from a judgment of the Pike Circuit Court requiring Thomas E. and Valerie Williamson to pay him $401 for which he is to execute a deed transferring certain real property to the Williamsons. We find no error and affirm the Pike Circuit Court’s judgment.

We further note that Maynard’s proposed remedy, forfeiture of the Williamsons’ equity under the land contract, is explicitly prohibited under Sebastian v. Floyd, 585 S.W.2d 381 (Ky. 1979). In Sebastian, the court noted that under an installment land contract, the seller retains bare legal title as a lien to secure payment, but that equitable title passes to the purchaser when the contract is entered. Id. at 382. The court further stated that no practical distinction exists between a land sale contract and a purchase money mortgage. Id. at 383. In the event of default, the purchaser’s entire equity is not forfeited, but instead the seller
must seek a judicial sale of the property by foreclosure proceedings, including the attendant right of the purchaser to redeem the property by paying the debt in full, including any interest and expenses. Id.
In this instance, the trial court possessed the equitable power to require the Williamsons to resubmit payment of $401 to Maynard as being owed for the checks he held until they were stale and refused by the bank. The Williamsons having then fulfilled the terms of the land contract, Maynard was then obligated to perform under the land contract and execute the appropriate deed.
Finding no error, we affirm the Pike Circuit Court’s judgment.

733. PRISON HEARING, DUE PROCESS.
FOLEY (JAMES)
VS.
HANEY (STEVE), ET AL.
OPINION VACATING AND REMANDING
KELLER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND SHAKE (CONCURS)
2010-CA-001240-MR
TO BE PUBLISHED
BOYLE

KELLER, JUDGE: James Foley (Foley) appeals from the trial court's order denying his petition for declaratory judgment. On appeal, Foley argues that he was deprived of due process by a prison hearing officer and that the trial court erred when it failed to reverse the hearing officer's findings. The appellees have not filed a brief in response to this appeal. For the following reasons, we vacate and remand.

On appeal, Foley argues that the hearing officer's findings are deficient for two reasons: (1) the hearing officer did not set forth why he found the informant to be reliable; and (2) prison officials intentionally withheld the medical facility and cafeteria records he requested. We agree with Foley as to the first issue and in part as to the second issue.

Based on the preceding, the trial court denied Foley's petition. In doing so, the court stated that the disciplinary proceedings comported with the minimal due process and evidentiary requirements set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985). Furthermore, the court found that "although the report did not specifically state why the [confidential] information was deemed reliable, it is apparent from the report that such a finding was made." It is from this order that Foley appeals.

STD OF REVIEW OF PRISON DISCIPLINARY HEARINGS:

In reviewing prison disciplinary proceedings, "[t]he court seeks not to
form its own judgment, but, with due deference, to ensure that the agency's judgment comports with the legal restrictions applicable to it." Smith v. O'Dea, 939 S.W.2d 353, 355 (Ky. App. 1997). If there is some evidence to support the outcome, the court should not interfere with the disciplinary proceedings. Walpole, 472 U.S. at 455, 105 S. Ct. at 2774. With these standards in mind, we analyze the issues raised by Foley on appeal.

734. QUALIFIED IMMUNITY.  TORTS.
JERAULD (DUSTIN)
VS.
KROGER (MARK), ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001429-MR
TO BE PUBLISHED
KENTON

CLAYTON, JUDGE: This is an appeal of a Kenton Circuit Court opinion granting
summary judgment to the Appellees, Mark Kroger, Pamela Sams and Ramona Parker. The trial court held that they were entitled to qualified immunity in an action alleging state claims of negligence and intentional infliction of emotional distress. For the reasons that follow, we affirm the decision of the trial court.

All parties agree that the sole issue before our Court is whether each
of the Appellees is entitled to qualified official immunity. Immunity from suit is not only available “to the state [but] also extends to public officials sued in their representative (official) capacities.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001). Qualified official immunity is an affirmative defense that must be specifically pled. Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980).
Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity. . . . Similarly, when an officer or employee of a governmental agency is sued in his/her representative capacity, the officer’s or employee’s actions are afforded the same immunity, if any, to which the agency, itself, would be entitled. . . . . But when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment. 63C Am.Jur.2d, Public Officers and Employees, § 309 (1997). Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment, id. § 322; (2) in good faith; and (3) within the scope of the employee's authority. Id. § 309; Restatement (Second) Torts, supra, § 895D cmt. g. Yanero, 65 S.W.3d at 521-522. In Rowan County v. Sloas, 201 S.W.3d 469 (Ky. 2006), the Kentucky Supreme Court held that the supervision of prisoners is a discretionary act and entitles those in that position to qualified immunity. In order to prove that a jail employee is liable for negligence in a suicide attempt, the employee must either know or have reason to know that the prisoner is at risk of harm and fail to take reasonable care to prevent the prisoner from harm. Sudderth v. White, 621 S.W.2d 33 (Ky. App. 1981).

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726.  STATUTE OF LIMITATIONS. 
GREYWOLF (SAMUEL LEE EDWARDS)
VS.
ROMAN CATHOLIC DIOCESE OF COVINGTON
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2010-CA-000814-MR
NOT TO BE PUBLISHED
FAYETTE

DIXON, JUDGE: Appellant, Samuel Lee Edwards Greywolf, appeals from an order of the Fayette Circuit Court granting summary judgment in favor of Appellee, the Roman Catholic Diocese of Covington, finding that Greywolf’s action against the Diocese was barred by the statute of limitations. Finding no error, we affirm.

As the trial court herein noted, the seminal case in Kentucky on the tolling of statutes of limitations in lawsuits brought by victims of childhood sexual abuse is Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 290 (Ky. App. 1998), wherein a panel of this Court held:
[W]here the law imposes a duty of disclosure, a failure of disclosure may constitute concealment under KRS 413.190(2), or at least amount to misleading or obstructive conduct. [Citation omitted]. KRS 199.335,2 the statute in effect when these incidents occurred, imposed a legal duty on any person to report child abuse to law enforcement authorities. The Diocese failed to comply with this duty, and such failure constitutes evidence of concealment under KRS 413.190(2).
In Secter, the Court determined that the Diocese of Covington obstructed the prosecution of John Secter's cause of action by continually concealing the fact that it had knowledge of the accused’s propensities well before the time that Secter was abused, and that the Diocese even continued to receive reports of sexual abuse of other students during part of the time period in which Secter was abused. Id.
Notwithstanding the application of the tolling provision, the law still imposes a duty on a plaintiff to exercise reasonable care and diligence in pursuing a cause of action. For the defendant’s concealment to toll the running of the statute of limitations, it must hide the plaintiff’s cause of action in such a manner that it cannot be discovered by the exercise of ordinary diligence. Pursuant to Adams v. Ison, 249 S.W.2d 791, 793 (Ky. 1952), the statute begins to run as soon as the concealment is revealed, or the facts were or should reasonably have been discovered. This is an objective test regarding when the plaintiff should be charged with reasonably knowing that the concealment had been uncovered.

730.  TORTS. PREMISES LIABILITY.  "OPEN AND OBVIOUS" AND MCINTROSH EXAMINED
WEBB (BETTY)
VS.
DICK'S SPORTING GOODS
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001194-MR
NOT TO BE PUBLISHED
FAYETTE

KELLER, JUDGE: Betty C. Webb (Webb) fell when she entered a Dick’s Sporting Goods store (Dick’s) in Lexington, Kentucky. The trial court granted Dick’s motion for summary judgment based on Dick’s “open and obvious” defense. On appeal, Webb argues that she raised material issues of fact and that the trial court inappropriately applied the open and obvious defense. Dick’s argues that Webb knew of any danger, that she proceeded despite her knowledge, and that she failed to show what Dick’s could have or should have done to remedy the alleged danger. For the following reasons, we reverse and remand.

Having reviewed the record and recent relevant caselaw, we hold that the
trial court's summary judgment was inappropriate. As noted by the parties, the Supreme Court of Kentucky recently discussed the open and obvious doctrine at length. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). In McIntosh, a paramedic who was tending to a patient tripped over a curb at the entrance to the medical center's emergency room. She filed suit and, during discovery, the paramedic admitted that she had previously been through that emergency room entrance a number of times without incident. The medical center asserted that any danger associated with the entrance was not only open and obvious but known to the paramedic. Therefore, it moved for summary judgment, which the trial court denied. Following a jury verdict in favor of the paramedic, the medical center moved for judgment notwithstanding the verdict, a motion the trial court also denied. On appeal, the medical center argued that the trial court should have barred the paramedic's claim under the open and obvious doctrine. Id. at 387-88.
The Supreme Court undertook a lengthy and comprehensive review of the open and obvious doctrine and affirmed the trial court. In its review, the Court noted that the doctrine, which had its roots in contributory negligence, is at odds with the concept of comparative negligence. Id. at 391. The Court stated that there is a growing trend among states to apply a comparative fault analysis to facts that previously resulted in landowners being automatically absolved from liability for open and obvious conditions. Id. at 389. This trend is supported by the Restatement (Second) of Torts § 343A(1)(1965), and that section's accompanying commentaries, which state that:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. . . . (emphasis added).
There are . . . cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger . . . . .
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious . . . is not . . . conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.
Id. at 389-90 (emphasis in original).

If an invitee falls victim to an open and obvious danger, she will have some,
perhaps a significant amount of, fault. However, "this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place. Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any." Id. at 391.
The Court noted that the open and obvious doctrine infers that, absent a duty to warn of a known danger, the land possessor has no duty. However, that is not
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the case. A land possessor has a duty to “eliminate or reduce the risk posed by unreasonable dangers. In short, ‘[e]ven where the condition is open and obvious, a landowner's duty to maintain property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such condition.’” Id. at 393 (citing Phalen v. State, 11 Misc.3d 151, 804 N.Y.S. 2d 886, 898 (N.Y. Ct. Claims 2005) (emphasis in original). Thus, the duty of the landowner is separate from that of the invitee, and trial courts must "ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable." Id. at 392.
In this case, Dick's premised its motion for summary judgment on the argument that it had no duty to warn Webb or otherwise protect her from the open and obvious danger. However, that is not the law. As noted by the Supreme Court in McIntosh, a landowner's duty is twofold: to warn of dangers and to take steps to eliminate them. Under McIntosh, Dick's may not have had a duty to warn Webb of the open and obvious danger created by the wet floor; however, that did not relieve Dick's of its duty to take reasonable steps to eliminate or reduce the danger. Whether Dick's fulfilled that duty is a question of fact for the jury, not a question of law for the court. Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680 (Ky. App. 2009).

We note that Dick's argues that McIntosh should be narrowly applied to its facts, i.e., when an invitee is engaged in some sort of lifesaving activity. We do not read McIntosh that narrowly. Based on our reading of McIntosh, a trial court is required to determine whether the landowner met its duty to protect the invitee in all circumstances where it is foreseeable that the invitee might: be distracted; realize there is a danger but forget about the danger; or choose to ignore the danger because the benefit outweighs the risk.

735. QUALIFIED IMMUNITY.
HUNTER (WILLIAM B.)
VS.
UNIVERSITY OF LOUISVILLE
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001613-MR
NOT TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE:    This is an appeal from a dismissal granted by the Jefferson Circuit Court in an action involving a federal notice of levy. The appellant, William B. Hunter, contends that the trial court erred by concluding that his employer, University of Louisville, was immune from liability for the actions that it undertook in order to comply with the administrative levy on his wages or salary. After our review, we affirm.

736.  TESTIMONIAL IMMUNITY.
SMITH (TIMOTHY M.)
VS.
WOLFE (KIM)
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001770-MR
NOT TO BE PUBLISHED
KENTON

TAYLOR, CHIEF JUDGE: Timothy M. Smith brings this appeal from an August 25, 2010, summary judgment of the Kenton Circuit Court dismissing Smith’s claims against Kim Wolfe for intentional infliction of emotional distress, negligent infliction of emotional distress, the tort of outrage, and violation of Kentucky Revised Statutes (KRS) KRS 367.826. We affirm.

In his complaint, Smith set forth the following claims of relief against Wolfe: (1) intentional infliction of emotional distress, (2) negligent infliction of emotions distress, (3) the tort of outrage, and (4) violation of KRS 367.826. All of these claims were predicated upon either Wolfe’s trial testimony or upon her pretrial misrepresentations as to her academic credentials.
It is clear that any statements made by Wolfe during her testimony at the criminal trial are shielded by absolute testimonial immunity and may not form the basis for Smith’s claims of relief against Wolfe. See McClarty v. Bickel, 155 Ky. 254, 159 S.W. 783 (1913); Stone v. Glass, 35 S.W.3d 827 (Ky. App. 2000)(citing Lawson v. Hensley, 712 S.W.2d 369 (Ky. App. 1986)). Thus, Wolfe is absolutely immune from civil liability for her testimony during Smith’s criminal trial.
The more troublesome issue presented is whether Wolfe’s pretrial communications made directly in anticipation of her trial testimony is afforded the same absolute testimonial immunity. In preparation for her trial testimony, the record reveals that Wolfe, in both written and oral communications, repeatedly held herself out as possessing a Ph.D. in psychology. As summarized by the circuit court, Smith claimed that in Wolfe’s pretrial communications she misrepresented her academic credentials which “improperly influenced the direction of the criminal case against him” and ultimately led to his criminal conviction and imprisonment.
We are convinced that if the absolute testimonial immunity afforded to a witness at trial is to have any true effect, it must, likewise, extend to pretrial communications or statements made by a witness in preparation for trial.3    See Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281 (1942). Thus, a witness should be afforded absolute immunity from civil liability for communications or statements made directly in preparation for and preliminary to a judicial proceeding. Id. This rule is consistent with the position taken in the Restatement (Second) of Torts § 588 (1977), which recognizes absolute testimonial immunity as encompassing a witness’s pretrial statements made in preparation of trial.4
We, thus, conclude that Wolfe is clothed with absolute testimonial immunity for any communications made directly in anticipation of and prior to her testimony at trial. This would, of course, include Wolfe’s oral and written misrepresentations as to her credentials. As such misrepresentations form the basis for Smith’s remaining claims of relief against Wolfe, we are of the opinion that the circuit court properly rendered summary judgment dismissing Smith’s complaint in its entirety.

3 In General Electric Company v. Sargent & Lundy, 916 F.2d 1119 (6th Cir. 1990), the Sixth Circuit Court of Appeals opined that this Commonwealth would recognize that absolute testimonial immunity extends to pretrial communication made in preparation for trial. 4 We also observe that other jurisdictions are in agreement. See Gallo v. Barile, 935 A.2d 103 (Conn. 2007); Mahoney & Hagberg v. Newgard, 729 N.W.2d 302 (Minn. 2007); Oparaugo v. Watts, 884 A.2d 63 (D.C. 2005); Krouse v. Bower, 20 P.3d 895 (Utah 2001); Hawkins v. Harris, 661 A.2d 284 (N.J. 1995); Radue v. Dill, 246 N.W.2d 507 (Wis. 1976).

737.  JURISDICTION, PERSONAL.
ALLEN (JORDAN R.)
VS.
JONES (HENRY)
OPINION DISMISSING
COMBS (PRESIDING)
DIXON (CONCURS IN RESULT) AND ISAAC (DISSENTS BY SEPARATE OPINION)
2010-CA-000438-MR
NOT TO BE PUBLISHED
OPINION FROM PREVIOUS MINUTE SHEET OF 01/14/2011
LOGAN

COMBS, JUDGE: Jordan Allen appeals from an order of the Logan Circuit Court dismissing his action against Henry H. Jones for lack of personal jurisdiction. After our review, we dismiss this appeal.

On appeal, Allen contends that the trial court erred in concluding that Kentucky lacks jurisdiction over Jones. He also suggests that the transfer of the pick-up truck from Jones to Wood in Tennessee may not have complied with Kentucky law. Finally, Allen argues that Tennessee should not permit sellers of vehicles to transfer them without proof of insurance. We cannot address these issues.
CR 3 provides that a civil action is commenced “by the filing of a complaint with the court and the issuance of a summons . . . .” The record does not indicate that Allen ever consummated his attempt to file a complaint nor did he have a summons issued against Jones. Consequently, the trial court had no authority to consider Jones’s dispositive motion, and there is no substantive matter for this court to review. Accordingly, we dismiss this appeal.

740.  QUALIFIED IMMUNITY AND DISCRETIONARY ACTS.
CHAMPION (PHILLIP) AND
GIBSON (RHETT)
VS.
WAUGH (ANGIE AND CHRISTOPHER) AS PARENTS AND NEXT FRIEND OF DYLAN CHRISTOPHER WAUGH AND K & K MUSIC CO. OF BLUEFIELD, INC.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
ISAAC (PRESIDING JUDGE)
DIXON (CONCURS) AND MOORE (CONCURS)
2009-CA-002090-MR
NOT TO BE PUBLISHED
OPINION FROM PREVIOUS MINUTE SHEET OF 04/01/2011
KNOTT

ISAAC, SENIOR JUDGE: Phillip Champion and Rhett Gibson appeal from an interlocutory order denying their motion for summary judgment against Angie and Christopher Waugh, as parents and next friend of Dylan Christopher Waugh.  Appellants argue they were entitled to qualified official immunity. We affirm in part, reverse in part, and remand.

ecently, in Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010), our Supreme Court explained the difference between discretionary and ministerial acts as follows:
Discretionary acts are, generally speaking, “those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment.” It may also be added that discretionary acts or functions are those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which
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would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. On the other hand, ministerial acts or functions-for which there are no immunity-are those that require “only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.”
(Internal citations omitted). In Yanero, supra, the Court defined bad faith as:
[B]ad faith can be predicated on a violation of a [causally related] constitutional, statutory, or other clearly established right which a person in a public employee's position presumptively would have known was afforded to a person in the plaintiff's position … or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive.
In their complaint, Appellees alleged that Champion and Gibson were negligent by allowing the defective machine to remain in service and encouraging Dylan to use the machine in a defective condition thereby causing his injuries. Gibson, as director of the Sports Complex, has “an affirmative duty to exercise reasonable care to inspect for hazardous conditions.” Lanier v. Walmart Stores, Inc., 99 S.W.3d 431, 433 (Ky. 2003). The Court also stated:
The occupier must not only use care not to injure the visitor by negligent activities, and warn him of hidden dangers known to the occupier, but he must also act reasonably to inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the property.
Id. While the duty to reasonably inspect the premises is affirmative, we conclude that under these circumstances, the act of inspection itself is discretionary because
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the act is necessarily comprised of personal judgment and deliberation. Gibson testified that he inspected the premises for hazards before the Sports Complex opened and there is no indication that he had any reason to question the stability of the machine or the means to ascertain whether K& K Music Co. had properly installed the machine. Any question regarding his notice of the defective condition of the machine concerned whether the machine was in working order as a token dispenser and not toward the actual latent nature of the hazard, which was that the machine was not properly bolted to the floor. Further, there is no evidence of bad faith on the part of Gibson and his actions were clearly within the scope of his authority.

743.  PIP BENEFITS.
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY
VS.
SAMONS (LINDA KAYE), ADMINISTRATRIX OF THE ESTATE OF KENNETH R. CRUM
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001659-MR
NOT TO BE PUBLISHED
OPINION FROM PREVIOUS MINUTE SHEET OF 06/17/2011
FLOYD

LAMBERT, JUDGE: The issue presented in this appeal is whether an insurance company providing insurance to the driver of an uninsured motor vehicle that he did not own is required to pay basic reparation benefits to a pedestrian who was hit and injured by the vehicle. The Floyd Circuit Court held that Kentucky Farm Bureau Mutual Insurance Company (Kentucky Farm Bureau) was responsible for the payment of basic reparation benefits under these circumstances. After thoroughly reviewing this issue, we find the circuit court’s ruling to be in error. Hence, we reverse.