Here are selected published decisions dealing with torts, insurance, and civil matters of note from the Court of Appeals of Kentucky as summarized by the AOC.

Please note some have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

IMMUNITY

University of Louisville v. Rothstein
2014-CA-000997 04/01/2016 2016 WL 1267992 DR Pending

Opinion by Judge Nickell; Chief Judge Acree and Judge Jones concurred. The University of Louisville challenged the Franklin Circuit Court’s denial of its motion for summary judgment. U of L had asserted it was entitled to sovereign immunity on appellee’s claims relating to an alleged breach of his written employment contract. The circuit court concluded immunity had been waived under the Kentucky Model Procurement Code (KMPC), KRS 45A.005 et seq. On appeal, U of L asserted the waiver of sovereign immunity contained in KRS 45A.245 did not apply to employment contracts. The Court disagreed, concluding the statute waived the defense of sovereign immunity in all written contract actions against the Commonwealth – including those subject to the KMPC. Because U of L is a state agency and the employment contract between U of L and appellee was written, the Court determined the waiver provisions of KRS 45A.245 were applicable. Thus, it was held, the circuit court correctly determined appellee’s action was not barred by the defense of sovereign immunity, and the denial of summary judgment was affirmed.

NEGLIGENCE

Johnson v. Norfolk Southern Railway Company
2014-CA-001298 04/15/2016 2016 WL 1534275 DR Pending

Opinion by Judge Dixon; Judges Combs and D. Lambert concurred. In a premises liability action brought by a police officer against a railway company, the Court of Appeals reversed a directed verdict in favor of the railway company entered on the grounds that the Firefighter’s Rule barred the officer’s recovery as a matter of law. Under the Firefighter’s Rule, firefighters and public protection agents such as police officers are required to assume the ordinary risks of their employment, a dangerous occupation, to the extent necessary to serve their public purpose; the Rule operates as a defense for those who are the owners or occupiers of the property the agents are employed to protect. Sallee v. GTE South, Inc., 839 S.W.2d 277 (Ky. 1992), sets forth three prongs necessary to the application of the Firefighter’s Rule as adopted in Kentucky: (1) the purpose of the policy is to encourage owners and occupiers, and others similarly situated, in a situation where it is important to themselves and to the general public to call a public protection agency, and to do so free from any concern that by so doing they may encounter legal liability based on their negligence in creating the risk; (2) the policy bars public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk; and (3) the policy extends only to that risk. The Court concluded that in this case appellee did not fit within the first prong of the Rule. Appellant had responded to a call about an individual acting in a disorderly manner at the end of a street adjacent to Centre College. After the individual fled the scene, appellant and another officer chased him on foot across a field and through a tree line located on appellee’s property. At the end of the pursuit, appellant fell to the bottom of a steep embankment located on the other side of the tree line, suffering injuries to her wrist and eye. The Court noted that there was no evidence that appellee had placed the call regarding the suspect or was even aware of the incident, the company did not create the risk that necessitated or caused appellant’s presence on the property, and appellant was injured by a risk different in both kind and character than the one she was called upon to engage. Ultimately, appellant’s entering onto the property and subsequently falling down the embankment was the result of wholly independent factors not involving appellee. Although appellant assumed all of the risks inherent with being a police officer, she “was not injured by the risk [s]he was called upon to engage, but by a risk different in both kind and character.” Sallee, 839 S.W.2d at 279. Accordingly, on remand determination of appellee’s liability for appellant’s injuries would depend not upon the Firefighter’s Rule, but rather upon those considerations which generally govern the relationship between possessors of real property and those who are injured on it.

WORKERS’ COMPENSATION

Finke v. Comair, Inc.
2014-CA-000624 04/29/2016 2016 WL 1719311

Opinion by Judge Jones; Chief Judge Acree and Judge J. Lambert concurred. Appellant challenged the determination of the Workers’ Compensation Board that she did not have an unfettered right to have her father present during an Independent Medical Examination, and that the Administrative Law Judge did not abuse his discretion in determining that appellant failed to present a “compelling reason” why she could not submit to the examination without her father present. The Board also upheld the ALJ’s decision that appellant was not entitled to receive any benefits during the time of her noncompliance. The Court of Appeals affirmed, holding that upon request an ALJ has discretion to order deviations in IME protocol so long as the examinee demonstrates a “good cause” basis for the requested deviation. However, vague allegations of “general discomfort,” as offered here, are insufficient to show good cause. If the examinee has privacy concerns, she may request an ex parte communication with the ALJ or leave to file her concerns under seal. Finally, the Court held that benefits properly suspended under KRS 342.205(3) cannot be retroactively restored.

Click here for the AOC’s archived summaries of monthly published decisions for the Court of Appeals.

Click here for the monthly summaries of published decisions tagged in the Kentucky Court Report’s posts.

This month’s summary of published decisions:

[gview file=”https://kycourtreport.com/wp-content/uploads/2016/07/April2016.pdf”]