Hardin Memorial Hospital – Defendant in Medical Negligence Claim Dismissed for Government Immunity in James Mooring vs. Hardin County dba Hardin Memorial Hospital 2013-CA-000513 (listed below)
The Kentucky Court of Appeals announced 16 decisions on April 17, 2015, with five (5) of their opinions designated to be published.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Adminisrative Office of the Courts.
Click here for all of 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.
For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.
Published appellate cases for week of April 17, 2015:
300. Property Dispute. Restrictive Covenant
KL & JL Investments vs. Donald Lynch
Hardin County
JONES, JUDGE: This appeal concerns a property dispute between the Appellant, KL & JL Investments Inc. (“KL & JL Investments”), and several other landowners in close proximity to KL & JL Investments’ tract of land, the Appellees (hereinafter referred to as “the Property Owners”).1 On August 31, 2012, the Hardin Circuit Court ruled that the Property Owners could enforce a restrictive covenant limiting KL & JL Investments’ development of the tract to a single-family residence. This appeal followed. For the reasons more fully explained below, we AFFIRM.
309. Attack on Constitutionality of Stop and Ejection Provision of KAR 1:025, Section 22 Appeal Dismissed
Estate of Trudy Koenig vs. Public Protection Cabinet
Franklin County
311. Defense of Governmental Immunity Not Apply Since not Gov’t Agency
Kentucky River Foothills Development Council, Inc. vs. Cathy Phirman
Madison County
JONES, JUDGE: Appellant, Kentucky River Foothills Development Council, Inc., (“Kentucky River”) appeals from the September 23, 2013, order of the MadisonCircuit Court denying its motion for summary judgment and finding that Kentucky River was not a government agency and, therefore, not entitled to governmental immunity. For the reasons set forth below, we AFFIRM.
312. Trespass and Fraud
Ronnie Norwich vs. Allen Norwich
Campbell County
J. LAMBERT, JUDGE: Ronnie Norwich and his former wife, Jennifer Quammen, have appealed from the Campbell Circuit Court’s January 2, 2014, order entered following a bench trial. The circuit court found that Ronnie committed fraud against Allen Norwich and Debra Norwich, and it also dismissed a claim for punitive damages and a cross-claim for trespass. Having carefully reviewed the record and the parties’ arguments, we affirm.
313. Reversed Family Court Order Permitting Non-custodian, non-parent’s intervention into step-parent adoption
L.(W.R.) vs. H.(A) Intervening Party
Kenton County
ACREE, CHIEF JUDGE: This is an appeal from an order of the Kenton Family Court granting the motion to intervene of A.H., a non-custodian, non-parent, in a step-parent adoption action initiated by W.R.L., and further dismissing W.R.L.’s adoption petition. For the following reasons, we reverse the family court’s order granting intervention and dismissing, and remand this matter with instructions to reinstate the adoption petition.
Tort Report – Decisions Relevant to Insurance and Accident Attorneys
298. Affirmed summary judgment dismissing automobile accident claim for failure to timely comply with expert witness disclosures
William Branch vs. Rex Gibson
COA NPO (nonpublished opinion) 4/17/2015
Affirming Fayette County
STUMBO, JUDGE: William Lovell Branch appeals from a Judgment and Final Order of the Fayette Circuit Court dismissing his negligence action against John Lankford and Rex Gibson. Branch alleged that Lankford and Gibson negligently operated their respective vehicles which caused an accident resulting in Branch’s traumatic brain injuries. He argues that the trial court erred in concluding that no genuine issues of material fact remained for adjudication, and that the Defendants/Appellees were entitled to Summary Judgment as a matter of law. Branch contends that his growing recollection of the accident raises genuine issues of material fact relating to causation, that expert testimony is not required to overcome a Summary Judgment motion, and that the trial court erred when it restricted his witnesses due to alleged Kentucky Rules of Civil Procedure (CR) 26 disclosure deficiencies. We find no error, and AFFIRM the Judgment and Final Order on appeal. * * *
When viewing the record in a light most favorable to Branch and resolving all doubts in his favor, we cannot conclude that the Fayette Circuit Court improperly rendered Summary Judgment in favor of Lankford and Gibson. The accident at issue occurred on December 7, 2007. During the years that followed, and as noted by the trial court, Branch was availed of ample opportunity to produce discovery and engage expert witnesses to reconstruct the accident and/or render opinions as to causation and damages. Even so, the sole sworn testimony – whether lay or expert – supportive of Branch’s claim is his statement that he remembers seeing vehicle headlights behind him just prior to the accident and remembers a collision. Nothing in the record bolsters his claim that Lankford or Gibson were negligent in operating their vehicles, and they have consistently maintained that Branch lost control of his vehicle when crossing the bridge over I- 64, struck Lankford’s vehicle, then continued over an embankment and came to rest in a field. As it appears impossible that Branch would be able to produce evidence at trial warranting a judgment in his favor, Steelvest, supra, we find no error in the entry of Summary Judgment.
302. Medical Negligence. Immunity of Hospital
James Mooring vs. Hardin County, Kentucky d/b/a Hardin Memorial Hospital
COA NPO 4/17/2015
Affirming – Hardin County
Affirmed dismissal of medical negligence claim against county owned hospital on basis of sovereign immunity and claims did not exceed the amount of 1 million dollars which was the hospital’s Risk Retentiona Program.
310. Civil Procedure, Notice of Appeal Failed to Name Indispensable Party (Note there was pending a motion to amend Complaint to Name Previously “Unknown Defendants”)
Estate of Tommy Rowe vs. Big Sandy Regional Detention Center
COA NPO 4/17/2015
Dismissing – Johnson County
NICKELL, JUDGE: Mary Rowe, as Administratrix of the Estate of Tommy Rowe, has appealed from the July 22, 2013, order of the Johnson Circuit Court denying her motion to file an amended complaint wherein she sought to name previously unknown defendants. Following a careful review, we must dismiss this appeal.
In the case sub judice, the only parties properly before this Court are Mary and BSRDC. Our jurisdiction is limited to resolution of claims between those two parties. However, the issues presented do not lie within those parameters and we are without authority to review them. Therefore, because the proper and indispensable parties are not before the Court, and no relief can be granted in their absence, it is ORDERED that this appeal be, and hereby is, DISMISSED.
311. Defense of Governmental Immunity Not Apply Since not Gov’t Agency
Kentucky River Foothills Development Council, Inc. vs. Cathy Phirman
COA PUBLISHED; Madison County
“Published Decisions” are yellow highlighted in third column while tort report cases are highlighted by number and plaintiff (first and second columns)
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