COA 2011 Minutes for June 24, 2011 — Nos. 604-627 (24 decisions)

COA 2011 Minutes for June 24, 2011 — Nos. 604-627 (24 decisions)

604.  TORTS. PREMISES LIABILITY.  "McIntrosh" Slip and Fall. "Open and Obvious".
SHELTON (WILMA)
VS.
KENTUCKY EASTER SEALS SOCIETY, INC.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2009-CA-000945-MR
TO BE PUBLISHED
ON REMAND FROM SUPREME COURT OF KENTUCKY
FAYETTE

WINE, JUDGE: Wilma Shelton appeals from an order of the Fayette Circuit Court granting summary judgment in favor of Kentucky Easter Seals Society, Inc. This Court rendered an opinion on July 30, 2010. Mrs. Shelton filed a motion for discretionary review with the Kentucky Supreme Court. The motion for discretionary review was granted, and this case was remanded for further consideration in light of the recent case of Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010). For the reasons stated below, we again affirm the trial court’s summary judgment in favor of the appellees.

It is well established in Kentucky, as a general rule, that if a hazardous condition is “open and obvious”, a landowner owes no duty of care to an invitee regarding the hazardous condition. See, e.g., Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky. 1987). Mrs. Shelton acknowledges generally the open and obvious rule in Kentucky case law. She also concedes that she knew of the wires on the right side of her husband’s bed, establishing that the hazard was open and obvious. Mrs. Shelton instead argues that the circumstances surrounding her accident cause the hazard to fit within two separate exceptions to the open and obvious rule.
Mrs. Shelton asserts two separate arguments for reversal of summary judgment, the first of which is an exception to the open and obvious rule as described in Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526 (Ky. 1969). The Bonn Court derives this exception directly from Restatement (Second) of Torts §343A (1965). The Restatement specifically states that a landowner has no liability for physical harm to invitees caused by “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.” Id. Circumstances in which a landowner should expect the harm are “where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will . . . forget what he has discovered, or fail to protect himself against it . . .” Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 367 (Ky. 2005), citing Restatement (Second) of Torts §343A (1965).
Very recently, the Kentucky Supreme Court modified the open and obvious doctrine in McIntosh, whereby it adopted the modern trend as expressed in the Restatement (Second) of Torts §343A (1965) regarding open and obvious conditions:
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.
McIntosh, 319 S.W.3d at 389. Contrary to Mrs. Shelton’s position, we do not find the opinion in McIntosh abrogates the open and obvious doctrine in Kentucky. The Court in McIntosh explained, While “open and obvious danger” is no longer a complete defense under the Restatement, it is nonetheless a heightened type of danger which places a higher duty on the plaintiff to look out for his own safety. Such a condition, being open and obvious, should usually be noticed by a plaintiff who is paying reasonable attention. Yet the plaintiff is not completely without a defense to this: there could be foreseeable distraction, or the intervention of a third party pushing the plaintiff into the danger, for example. Even in such situations, a jury could still reasonably find some degree of fault by the plaintiff, depending on the facts.
Id. at 392.

Mrs. Shelton argues that a hospital should foresee that visitors will be distracted by tending to their loved ones admitted to the facility. She asserts that Cardinal Hill should have reasonably anticipated that her husband’s condition would have distracted her from the hazard of the wires.

Mrs. Shelton had an unfortunate accident due to a known hazard at her husband’s bedside. Both parties agree that the wires beside the patient’s bed were open and obvious, and that the general rule remains that a landowner is not liable for such open and obvious hazards. Mrs. Shelton has failed to offer substantial evidence in support of her theory that she was distracted or had no alternate route to approach the bed. Without that evidence, there is no genuine issue of material fact to put before a jury. We affirm the trial court’s order granting summary judgment in favor of Kentucky Easter Seals Society, Inc.

605.  Real Property. Dower Interest.  Judgment Lien.
MILLS (MELBOURNE) JR., ET AL.
VS.
ABBOTT PLAINTIFFS, ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2009-CA-001114-MR
TO BE PUBLISHED
FAYETTE

SHAKE, SENIOR JUDGE: Melbourne Mills, Jr. and Bertha Darlene La appeal from a Fayette Circuit Court summary judgment in favor of the Appellees.2    The sole issue presented by this appeal is whether La’s dower rights in the encumbered properties created a material issue of fact. After a review of the record andapplicable caselaw, we affirm the Fayette Circuit Court summary judgment and subsequent order denying Mills and La’s motion to amend, alter, or vacate.

On March 31, 2005, the Appellees filed suit in Boone Circuit Court against Mills and several other attorneys who represented the Appellees as plaintiffs in a lawsuit against the manufacturers of the drug “Fen-Phen.” In the lawsuit, the Appellees alleged that Mills and the other attorneys misappropriated millions of dollars from the settlement. On March 8, 2006, the Boone Circuit Court granted summary judgment against Mills and his codefendants and found that each defendant had breached his fiduciary duties to his former clients.
Following the judgment, Mills allegedly transferred half of his interest in the Tanbark Property to La on April 17, 2007. The recorded deed transfer states, “in consideration of the LOVE and AFFECTION that Melbourne Mills, Jr. has for Bertha La, and for other good and valuable consideration.” Coincidently, La was a plaintiff in the Fen-Phen action. Mills later married La on July 25, 2008.

On August 1, 2007, the Boone Circuit Court entered a damage judgment in the amount of $42,000,000, exclusive of prejudgment and postjudgment interest against Mills. On October 8, 2007, the Appellees filed a judgment lien in Fayette County against two parcels of property that Mills owned, the Tanbark property and the Hill-n-Dale property.4    On April 18, 2008, the Appellees filed suit against Mills in Fayette Circuit Court to enforce their judgment lien.

Mills moved the court to alter, amend, or vacate its previous ruling based upon La’s dower interest in the property. On May 18, 2009, the Fayette Circuit Court denied Mills’s motion. Now, Mills appeals from both the court’s April 15, 2009, summary judgment and its denial of his motion to alter, amend, or vacate that judgment.

 Since the judgment lien was entered prior to the marriage of Mills and La, any dower interest is subject to the preexisting encumbrance.5 Therefore, La’s dower interest was not an issue of material fact that should have precluded summary judgment.
Accordingly, we affirm the Fayette Circuit Court summary judgment and subsequent order.

606. REAL PROPERTY.  RESTRICTIVE COVENANTS.  SURFACE MINING.
BOWLES (BEVERLY CARDWELL), ET AL.
VS.
HOPKINS COUNTY COAL, LLC. , ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2009-CA-001209-MR
TO BE PUBLISHED
HOPKINS

SHAKE, SENIOR JUDGE: Beverly Cardwell Bowles and Donna Faye Cardwell (“Appellants”) appeal from the February 13, 2009, opinion and judgment, and May 29, 2009, order of the Hopkins Circuit Court. Those judgments relate to certain real property and addressed the validity of a restrictive covenant forbidding surface mining of the property; the use of a water impoundment to reclaim a surface-mined portion of the property; and ownership rights of the coal bed methane (“CBM”) located within the property. Because we find no error with the trial court’s judgments, we affirm.

607. INSURANCE CONTACT INTERPRETATION.
CERTAIN UNDERWRITERS AT LLOYD'S, LONDON
VS.
ABUNDANCE COAL, INC.
OPINION REVERSING IN PART, VACATING IN PART AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2009-CA-001283-MR
TO BE PUBLISHED
KNOTT

ACREE, JUDGE: Certain Underwriters at Lloyd’s, London (Lloyd’s) appeal an order of the Knott Circuit Court granting the motion of Abundance Coal, Inc. (Abundance) to dismiss Lloyd’s declaratory judgment action. Finding the circuit court erroneously dismissed the case, we reverse in part, vacate in part, and remand.

Abundance is not entitled to coverage by Lloyd’s for punitive damages recoverable by the Sparkman plaintiffs. That portion of the circuit court’s order to the contrary is reversed.
Abundance is not entitled to coverage for injuries the Sparkmans suffered as the result of pollution caused by Abundance.

If, however, dust and debris which allegedly entered the Sparkmans’ property do not constitute pollution as defined in the insurance policy, Abundance is entitled to coverage of any amounts for which it is liable on those claims.  Accordingly, we vacate that portion of the circuit court’s order which holds Lloyd’s policy covers all liability Abundance incurs as the result of the Sparkman Complaint, and remand the matter for additional proceedings consistent with this opinion.

608.  DAMAGES. ZERO PAIN AND SUFFERING VERDICT. MILLER V. SWIFT ISSUE. ZERO WAGE LOSS AWARD.
DENNIS (FREEMAN NATHAN KYLE)
VS.
FULKERSON (GAY), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
WINE (PRESIDING JUDGE)
VANMETER (CONCURS) AND THOMPSON (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION)
2009-CA-001367-MR
2009-CA-001422-MR
TO BE PUBLISHED
GRAYSON

WINE, JUDGE: Freeman Nathan Kyle Dennis (“Dennis”) appeals from the denial of his Kentucky Rule of Civil Procedure (“CR”) 59.01 motion for a new trial by the Grayson Circuit Court in his medical negligence case. On appeal, he contends that the jury verdict was inadequate and merits reversal. Gay Fulkerson, M.D., and Gay Fulkerson, M.D., P.S.C., cross-appeal the Grayson Circuit Court’s denial of her CR 59.05 motion to alter, amend, or vacate the judgment on the ground that the award of past medical expenses was “written off” by the hospital. Upon review, we affirm the appeal, 2009-CA-001367-MR, and reverse and remand the cross- appeal, 2009-CA-001422-MR.

Like Michael, Dennis makes a claim for pain and suffering for the interim period between the misdiagnosis and the ultimate diagnosis and surgery. However, unlike in Bayless, supra, no action that Dennis took or failed to take could have changed his circumstances. In fact, only diagnosis by a doctor could have led to earlier surgery which might have avoided him developing a “pus filled” abdominal cavity which required an eight-inch incision to allow for debridement of infectious material and removal of the appendix.
In another similar case, Miller v. Swift, supra, the plaintiff was a woman who suffered from a host of various chronic illnesses prior to a car accident. Although the case did not involve a misdiagnosis, it dealt with a “zero” damage award for pain and suffering. The Supreme Court upheld a “zero” damage award for pain and suffering in that case because it found that the evidence would have supported a finding that her previous conditions and illnesses were the cause of her pain and suffering and that the car accident did not act to exacerbate or worsen the pain or conditions she already had.
This case is similar to Miller v. Swift, supra, in that Dennis was going to require surgery regardless of whether he was diagnosed on Monday or Wednesday. While there was some evidence that the surgery he ultimately required was more invasive, there was also expert testimony that his appendix may have perforated 12 to 24 hours before he ever presented to the emergency room. Based upon this, the jury could have determined that, even if the diagnosis had been made earlier, infection may have already spread through his abdominal cavity (which would have necessitated the more invasive surgery anyway). Accordingly, while the jury certainly could have reached a different conclusion based upon the evidence presented, the conclusion it reached with respect to pain and suffering was nonetheless supported by the evidence. Accordingly, we do not find that the trial court clearly erred by refusing to grant Dennis’s motion for a new trial based on inadequate damages on this ground.

Finally, we reach the issue raised in Fulkerson’s cross-appeal that Dennis’s award for past medical expenses should be reduced to the extent that his medical bill was “written off” by the Twin Lakes Regional Medical Center.   We agree it was proper to allow the introduction of the entire medical bill to aid the jury in determining an appropriate amount of damages for pain and suffering. As noted in Beckner, supra, at 289, “. . . the proper procedure is to reduce the amount of judgment at the conclusion of the trial to the extent that its award would provide a double recovery.”

609. ZONING.
HUDMAN (DARREN), ET AL.
VS.
TERRY (JAMES I.) SR., ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
NICKELL (CONCURS) AND SHAKE (CONCURS)
2009-CA-001510-MR
2009-CA-001523-MR
TO BE PUBLISHED
ANDERSON

ACREE, JUDGE: Darren and Carolyn Hudman and the Anderson County Board of Zoning Adjustments appeal the July 29, 2009 order of the Anderson Circuit Court reversing the Board’s decision to grant the Hudmans a conditional use permit. James and Vickie Terry cross-appeal the circuit court’s ruling that the Hudman property at issue constitutes a single plot instead of two. We affirm.

610.  DOWER.
HUMPHREY (WANDA LEE), ET AL.
VS.
BLACKFORD (JANET GAIL), ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
NICKELL (CONCURS) AND VANMETER (CONCURS)
2009-CA-001733-MR
TO BE PUBLISHED
MCLEAN

SHAKE, SENIOR JUDGE: Wanda Humphrey, Lester Humphrey, Patsy Sue Winstead, and Curtis Winstead (Appellants) appeal from a McLean Circuit Court summary judgment in favor of Louis Blackford, Kenneth Blackford, and Janet Gail Blackford (Appellees). The Appellants claim the trial court’s decision was erroneous on two grounds: (1) the Appellants inherited a valid dower interest in property; and (2) there is a factual dispute concerning intent to relinquish dower rights. A review of the record and applicable caselaw indicates that James Blackford (Blackford) and Mary Lou Blackford Havener (Havener) made an unambiguous conveyance of property to a W.E. Quisenberry, Sr., trustee. The trust provided Havener with a life estate in the property with the remaining interest given to Blackford, his heirs, or assigns. Havener relinquished her dower interest by executing the deed. Therefore, we affirm the McClean Circuit Court summary judgment.

611.  TORT. DEFAMATION. LEGISLATIVE PRIVILEGE EXTENDED TO LOCAL GOVERNENT.
D.F. BAILEY, INC.
VS.
GRW ENGINEERS, INC.
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
ACREE (CONCURS) AND KELLER (CONCURS)
2009-CA-002140-MR
TO BE PUBLISHED
FAYETTE

DIXON, JUDGE: Appellant, D.F. Bailey, Inc. (“Bailey”), appeals from an order of the Fayette Circuit Court dismissing its action against Appellee, GRW Engineers, Inc. (“GRW”), for defamation, libel, and tortious interference with business relations.  we conclude that absolute privilege did not attach to the statements contained in the letter written by GRW to Mayor Sweeney.  For the reasons set forth herein, we reverse and remand the matter for further proceedings.

618.  SUMMARY JUDGMENT REVERSED.  DRAM SHOP.
LAMARRE (TIMOTHY J.), ET AL.
VS.
FORT MITCHELL COUNTRY CLUB
OPINION REVERSING
SHAKE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND STUMBO (CONCURS)
2010-CA-000813-MR
TO BE PUBLISHED
KENTON

SHAKE, SENIOR JUDGE: Appellants seek review of the April 19, 2010, order of the Kenton Circuit Court granting summary judgment in favor of Fort Mitchell Country Club (“FMCC”) and dismissing Appellants’ negligence claims against FMCC. Because we hold that it would have been possible for Appellants to produce evidence at trial in their favor and also that genuine issues of material fact exist, we reverse.

The trial court erred when it determined that there was no evidence that the FMCC employees knew or should have known that Mr. Plummer was intoxicated. The trial court based its finding on the fact that the LaMarres had not believed Mr. Plummer to be intoxicated and that a police officer who investigated the accident saw no indication of Mr. Plummer’s intoxication. Setting aside the question of whether the police officer actually spoke to Mr. Plummer that night, this is not the appropriate test to determine whether the FMCC employees knew or should have known if Mr. Plummer was intoxicated. Instead, the appropriate test is whether “a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.” KRS

619.  EVIDENCE. DUI. BREATHALYZER.
FERGUSON (ELIZABETH)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND WINE (CONCURS)
2010-CA-001031-DG
TO BE PUBLISHED
CARROLL

CAPERTON, JUDGE: Elizabeth Ferguson appeals from an order of the Carroll Circuit Court affirming the ruling of the Carroll District Court denying Ferguson’s motion to suppress the results of a breathalyzer test due to an alleged violation of KRS 189A.105(3). After a thorough review of the parties’ arguments, the record
and the applicable law, we agree with Ferguson that her motion to suppress should have been granted. Accordingly, we reverse the Carroll Circuit Court’s order and remand this matter for further proceedings.

620.  TORTS. PREMISES LIABILTY. SLIP AND FALL. OPEN AND OBVIOUS. MCINTOSH REVIEWED.
LUCAS (REBECCA)
VS.
GATEWAY COMMUNITY SERVICES ORGANIZATION, INC., ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND WINE (CONCURS)
2010-CA-001033-MR
TO BE PUBLISHED
MORGAN

LAMBERT, JUDGE: In this personal injury action arising from a slip-and-fall in a parking lot, Rebecca Lucas has appealed from the summary judgments entered
by the Morgan Circuit Court dismissing her claims against Gateway Community Services Organization, Inc., d/b/a Gateway Community Action Agency, and Dennis Gulley, both individually and as the Executive Director of Gateway Community Action Agency (collectively “Gateway”), as well as Mike Stacey. Because we agree with the circuit court that summary judgment was warranted in this case, we affirm.

However, the Supreme Court of Kentucky has very recently modified the open and obvious doctrine in McIntosh, supra, so that the doctrine is more compatible with comparative fault rather than contributory negligence. Deciding that the question of whether the doctrine applies is one of fact related to fault, the Supreme Court adopted the modern trend as expressed in the Restatement (Second) of Torts § 343A(1) (1965) regarding open and obvious conditions:
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.
See McIntosh, 319 S.W.3d at 389-90. The commentary to this section discusses cases where a possessor of land would still have to anticipate potential harm despite the fact that a danger is both known and obvious, such as in a case where an invitee’s attention is distracted. Id. This approach, the Court held, comports with Kentucky’s “focus on foreseeability in its analysis of whether or not a defendant has a duty. . . . That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor[.]” Id. at 390.

Therefore, we hold that the circuit court did not commit error in finding that there were no disputed issues of material fact regarding the open and obvious nature of the parking lot. But this holding does not conclude our analysis.

We must next look to whether an issue of fact remains concerning the foreseeability of the injury pursuant to McIntosh. While McIntosh had not been rendered when the circuit court entered the summary judgments, the parties have been able to argue on appeal whether that decision applies in this case. Lucas contends that the jury should consider whether the parking lot constituted an open and obvious danger when allocating fault and that the jury could reasonably conclude that she was distracted while looking for her car or that her view had been obstructed. On the other hand, Gateway and Stacey assert that McIntosh is distinguishable from the matter at hand because there was no distraction so as to make Lucas’s injury foreseeable. We agree with Gateway and Stacey that McIntosh does not apply to alter the result in this case.

621. CRIMINAL LAW.
BRADFORD (ROBERT E.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING WITH DIRECTIONS
LAMBERT (PRESIDING JUDGE)
SHAKE (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2010-CA-001314-MR
TO BE PUBLISHED
FAYETTE

LAMBERT, JUDGE: Robert Eugene Bradford has appealed from the final judgment of the Fayette Circuit Court entered pursuant to a conditional guilty plea, convicting him of incest and sentencing him to ten years’ imprisonment. Because we must hold in this case of first impression that the plain language of KRS 530.020, the incest statute, does not apply to a step-grandparent/step-grandchild relationship, we must reverse Bradford’s conviction.

624.  CRIMINAL LAW. SEARCH AND SEIZURE.  CURTILAGE.
OUSLEY (DANNY LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
CAPERTON (CONCURS) AND WINE (CONCURS)
2010-CA-001579-MR
TO BE PUBLISHED
FAYETTE

TAYLOR, CHIEF JUDGE: Danny Lee Ousley brings this appeal from a July 27, 2010, judgment of the Fayette Circuit Court sentencing appellant to five-years’ imprisonment probated for a period of five years. We reverse and remand.

hus, the Fourth Amendment of the United States Constitution and Section
10 of the Kentucky Constitution do not prohibit the warrantless search by police of trash or garbage deposited outside of the home’s curtilage in a location designated for trash collection. The more difficult issue is presented where trash or garbage is directly searched by police while still located within the curtilage of the home and before being placed in the designated location for collection. These cases must be decided based upon their respective facts to determine whether a reasonable expectation of privacy exists in the garbage. As hereinbefore stated, a reasonable expectation of privacy exists when an individual possesses a subjective expectation of privacy in the garbage that society accepts as objectively reasonable. Greenwood, 486 U.S. 35.

In sum, we hold that appellant possessed a reasonable expectation of privacy in his trash toter where located on his property and that the warrantless searches of the trash toter by the police violated the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution.5 Accordingly, we conclude that the circuit court erred by denying appellant’s motion to suppress evidence seized by police from the warrantless searches of his trash toter.

For the foregoing reasons, the judgment of the Fayette Circuit Court is reversed and this case is remanded for proceedings consistent with this opinion.

625
BROOKS (YOLANDA)
VS.
BROOKS (CHARLES)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001720-MR
TO BE PUBLISHED
WOLFE

VANMETER, JUDGE:    Yolanda Brooks appeals from the Wolfe Circuit Court’s findings of fact, conclusions of law, and decree of dissolution. For the following reasons, we affirm.  On appeal, Yolanda claims (1) she is entitled to a greater share of the marital property since the trial court excepted from classification as marital property Charles’ Kentucky Teachers’ Retirement System (“KTRS”) account, (2) the maintenance award of $360 per month for a period of two and a half years is insufficient, and (3) the needs and wants of the parties’ two minor children should not have been considered when the marital property was divided. We disagree.

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615.  ATTORNEYS FEES AND RULE 11 SANCTIONS.
SULLIVAN (RALPH W.)
VS.
RIGGS (GEORGE E.)
OPINION AND ORDER AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2010-CA-000696-MR
NOT TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Ralph W. Sullivan, proceeding pro se, has appealed from the opinion and order of the Jefferson Circuit Court denying his motion to disqualify the trial judge and dismissing his appeal. Having carefully reviewed the record and the applicable law, we affirm.