CIVIL PROCEDURE – Statute of Limitations (SOL) tolled by conduct of defendant: Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349), et al. (SC 10/29/2009)

Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349), et al.
2007-SC-000443-DG October 29, 2009
2008-SC-000109-DG October 29, 2009
Opinion by Justice Scott; all sitting.

Emberton sued GMRI after he contracted the hepatitis A virus at one of its Red Lobster restaurants. Following trial, the jury awarded Emberton $8666 in medical expenses, plus $225,000 for pain and suffering. The Court of Appeals reversed on the grounds that Emberton’s suit was barred by the one-year statute of limitations. The Court of Appeals ruled Emberton “failed to investigate the source of his illness when reasonable diligence could have revealed the likely tortfeasor within the statutory period.” The Supreme Court reversed and reinstated the jury’s award, holding that the statute of limitations on Emberton’s claim was tolled under KRS 413.190(2) since GMRI, through its district manager, engaged in conduct that was “intentionally deceptive and designed to prevent public disclosure of [the GMRI employee’s] infection though the health department, the restaurant’s employees and its patrons.” The Court rejected GMRI’s challenge to the constitutionality of KRS 360.040—which establishes Kentucky’s post-judgment interest rate. The Court also ruled against GMRI’s appeals of evidentiary issues, the pain and suffering award and its claim of an inconsistent verdict at trial.

Chief Justice Minton and Justice Abramson concurred in result only.