Published Court of Appeals appellate cases for this week –
September 4, 2015:
742. Civil Procedure. Default Judgment, Setting Aside When Not served amended complaint
James S. Faller, Trustee of Tanya Faller Irrevocable Living Trust vs. Konrad Goess-Saurau
COA Published Opinion Vacating and Remanding Russell Cir. Ct.
James S. Faller, II, as Trustee of the Tanya Faller Irrevocable Living Trust, appeals the order of the Russell Circuit Court granting Konrad Goess-Saurau’s motion for default judgment. Faller asserts that the trial court erred in entering the judgment, since he had not been served with an amended complaint, thus effectively tolling his time to respond. We agree and therefore vacate the default judgment and remand this matter for further proceedings.
753. Revenue and Taxation.
Dept. of Revenue, Finance and Administration Cabinet vs. Shinin’ B Trailer Sales, LLC
COA Published Opinion Affirming; Franklin County
MAZE, JUDGE: The Department of Revenue, Finance and Administration Cabinet (the Department) appeals from an order of the Franklin Circuit Court upholding an order by the Kentucky Board of Tax Appeals (Board). The Department argues that the Board and the circuit court erred in finding that horse trailers which include living quarters similar to those in recreational vehicles fall within the statutory exemption from sales taxes under KRS 139.470(21). However, we agree with the Board and the circuit court that the trailers at issue are “intended for the carriage of freight,” and that the transportation of horses is within the meaning of the term “carriage of freight.” Hence, we affirm.
Selected Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from September 4, 2015. Links are to full text of decision in PDF at AOC.
744. Ripeness and no justiciable claims.
Meredith Lawrence vs. Robert Ryan, PA
COA Not Published Opinion (NPO). Reversing and Remanding. Gallatin.
Meredith Lawrence and Meredith Lawrence, P.S.C., appeal a decision of the Gallatin Circuit Court dismissing with prejudice various civil claims they jointly filed against Robert Ryan, P.A. Upon review, the circuit court had no subject matter jurisdiction over the claims at issue. We therefore reverse, remand, and direct the circuit court to dismiss the claims without prejudice.
When Lawrence filed his claims in this matter over a year before the United States Supreme Court denied his petition for writ of certiorari, his claims were unripe. At that point in time, even if Ryan’s conduct could have been considered negligent, it had yet to cause Lawrence legally cognizable damage. See Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 272 (Ky. App. 2005) (“without legally cognizable damages, there is no ripe claim for legal malpractice”).
754. Discovery. Adequate time. Premises Liability. “Slip and Fall” at restaurant and resultant hot coffee burns
Margie Ann Faesy vs. JG 1187, Inc. d/b/a McD0nald’s Restaurant
COA NPO. Affirming. Franklin.
Faesy’s primary argument on appeal is that JG had a duty to never serve hot beverages between the temperatures of 195 and 205 degrees Fahrenheit. She reasons that because JG served her coffee at that temperature and the coffee ultimately burned her, JG proximately caused her injuries.
A hot cup of coffee is also, to a much lesser extent, inherently dangerous; as the circuit court indicated, everyone understands or should understand that hot coffee (what Faesy specifically ordered) is hot, and hot things cause burns. However, it does not necessarily follow that a restaurant that serves such beverages is liable in damages to each person burned by such beverages. Here, despite Faesy’s allegation that 195 to 205 degrees was an excessively hot temperature for her cup of coffee, there is nothing of record illustrating that Faesy’s cup of coffee was any hotter than the temperature of coffee she would have received at any other restaurant, or hotter than the industry standard for coffee temperatures in general. There is nothing of record demonstrating that Faesy’s injuries would have been any less had she been exposed to coffee served at the industry standard for coffee temperatures, assuming that it is any lower; as Faesy herself explains in the reply brief she has filed in this matter, even a beverage heated to 180 degrees is “known to cause a full thickness burn to human skin within two to seven seconds.” Moreover, hot beverages are most certainly not within the category of those substances or chattels which by their very nature are not only inherently dangerous, but unsafe for general use.
JG was merely required to anticipate reasonable use of its product. And, as the circuit court observed, it did so. It maintained its premises in a reasonably safe condition (there were no tripping hazards alleged). It provided Faesy with a reasonably safe cup (Faesy does not allege that the cup malfunctioned in any way). Faesy testified she was aware the cup contained a warning cautioning her that the coffee was hot. Faesy does not argue this warning was inadequate (nor was it), or that it had any bearing upon what caused her to spill her coffee onto herself. Thus, as in Bloyd, we are left with the proposition that the dangerous propensity of the instrumentality at issue here (hot coffee as opposed to a revolver) was a condition rather than a legal cause of Faesy’s injuries.
Lastly, Faesy argues that she was denied an adequate period of time for discovery. In light of what she conceded during her deposition (i.e., that the fall was entirely her own fault, there was nothing wrong with the coffee cup, and that she was aware of the warning on the cup that the coffee was hot), additional discovery was, as the circuit court pointed out, unnecessary.
760. Dismissal of claims for failure to prosecute affirmed on appeal.
Keith Bradley vs. Rosemary Creech
COA NPO. Affirming. Wolfe County.
Taken generously, the appellants’ argument in their three-page brief before this Court is that the circuit court failed to address the six factors enumerated in Ward v. Housman, 809 S.W.2d at 719, relating to involuntary dismissals. Their argument, however, is flatly refuted by a cursory review of the circuit court’s order as it appears above.5 We have reviewed the order for an abuse of discretion; finding none, we affirm.
We pause to note that no reason is given by the Appellants for their lack of prosecution of this case. They concede that it has nothing to do with Adkins’ incarceration. Specifically, in their brief, they state “The fact that one of its Appellants (Adkins) is imprisoned created no impediment to the proceedings in this case. Adkins and his family have the financial ability to obtain his attendance at trial. However, the presence of a party at trial in a civil case is not required.” We are left to ponder why this case has not otherwise moved along. Regardless, the circuit court did not abuse its discretion in dismissing it.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for 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.
The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.
[gview file=”https://kycourtreport.com/wp-content/uploads/2015/09/MNT09042015.pdf”]
