Not an actual depiction of the steps involved in the decision below. Used for blogging illustration.
The Kentucky Court of Appeals announced 24 decisions on January 23, 2015, with 4 opinions designated to be published.
The issues addressed in the published decisions centered on agency’s failure to consider medical evidence when applying for retirement benefits; affirming denial of official qualified immunity to principals engaging in ministerial duties; affirmed trial courts decision not to enforce terms of antenuptial agreement against spouse who had declined to enforce it in the ten years before his death; and last but not least another Court of Appeals decision affirming another trial judge’s dismissal of a premises liability/slip and fall claim by finding a work around of the Shelton/McIntosh decisions and the now discredited defense of open and obvious conditions.
The published decisions are briefly digested below, with the tort, insurance and civil procedure decisions digested below the line with a complete copy of this week’s COA minutes.
Click here for links to all the archived AOC Court of Appeals minutes
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The 4 published cases are:
56. GOVERNMENT RETIREMENT
Kentucky Retirement Systems vs. Dianne Carson
COA, Published 1/23/2015
Opinion Affirming; Franklin Cir. Ct.
VANMETER, JUDGE: Under KRS1 61.600, a Kentucky Employees Retirement Systems member may file a second application for benefits, following an initial denial, if accompanied by new medical evidence. The issue we must resolve in this case is whether the Franklin Circuit Court erred in its decision to remand this case to the agency based on the court’s determination that the agency failed to reconsider all the medical evidence, including that presented with the first application. We hold that the court did nor err, and therefore affirm its Opinion and Order.
58. Defenses. Qualified Official Immunity No Given to High School Principals Performing Ministerial Duties
James Beward and Gary Emberton vs. Cody Whitaker
COA Published 1/23/2015
Opinion affirming; Bullitt Cir. Ct.
J. LAMBERT, JUDGE: James W. Beward and Gary Emberton, former Bullitt Central High School principals, have appealed from the April 4, 2013, summary judgment of the Bullitt Circuit Court ruling that they were not entitled to qualified official immunity for injuries student Cody Whitaker sustained in an unsupervised hallway prior to the start of the school day. The circuit court held that the school’s 2008 Spring Supervision Schedule gave Beward and Emberton ministerial duties to supervise the Freshman Hall End station in the absence of the person assigned to supervise that station. We affirm.
64. Divorce. Estoppel/waiver applied for one spouse’s failure to enforce provisions of antenuptial agreement for the ten years prior to his death
Michael Bickel, Adm’r Est. of Kenneth Bickell vs. Sandra Rae Haley
COA Published 1/23/2015
Opinion Affirming; Jefferson Cir. Ct. (Judge C. McCay Chauvin)
VANMETER, JUDGE: Antenuptial agreements, like other contracts, are subject to rules of construction and enforcement, and parties may waive, or be estopped from, enforcement of terms or conditions. The issue we must resolve in this case is whether the Jefferson Circuit Court erred in declining to enforce certain provisions in an agreement when one spouse, prior to his death, failed or declined to enforce those provisions for over ten years. We hold that the trial court did not err and therefore affirm.
68. Premises Liability. Another COA decision working around the Shelton “open and obvious” distinction
Janice Ward vs. JKP Investments, LLC
COA Published 1/23/2015
Opinion affirming; Jefferson Cir. Ct. (Judge James M. Shake)VANMETER, JUDGE: Janice Ward appeals from the Jefferson Circuit Court’s order dismissing via summary judgment her personal injury action against JKP Investments, LLC. Upon review of the record and applicable law, we affirm.
In this case, the deteriorating condition of the step was objectively obvious, but the obviousness of the condition is only one factor to consider under the Shelton analysis. To survive summary judgment, Janice needed to come forward with affirmative evidence, viewed in a light favorable to her, showing that JKP should have reasonably foreseen that visitors would be distracted, would be engaging in some activity while traveling on the deteriorating step, or would otherwise not proceed with caution given the surrounding area. Janice failed to make this showing. While the record shows the Derby party was a lawn party and party-goers walked throughout the yard that day, Janice’s deposition testimony is devoid of any allegations of circumstances which would have reasonably distracted her while traversing the deteriorating step, or which would have made the condition of the step an unreasonable risk.
Rather, Janice’s deposition reveals that she was at the Derby party for approximately six hours; she had traversed the staircase in question three times that day without difficulty before falling; it was daylight when she fell; she was not looking or paying attention to where she was stepping; she placed her foot in the far corner of the step where cement was crumbling rather than walking up the middle of the relatively wide step; and she was not sharing the step with anyone.
Nothing in the record indicates that under the circumstances, JKP had reason to expect visitors’ attention might be distracted or that visitors would proceed to encounter an obvious danger. JKP’s duty of care is limited to foreseeable harm. Cf. Kentucky Med. Ctr. v. McIntosh, 319 S.W.3d 385, 393-94 (Ky. 2010) (hospital owed duty to paramedic who tripped and fell over curb located between ambulance dock and emergency room doors as she was helping transport a critically ill patient, despite open and obvious nature of the curb, as it was foreseeable that paramedic would be tending to the patient, not to each step she was taking, and also that paramedic might forget that the particular hospital in question had a unique danger that she needed to avoid.).
We believe this case presents the scenario contemplated in Shelton in which summary judgment is viable and appropriate and therefore uphold the decision of the trial court granting summary judgment in favor of JKP.
The Jefferson Circuit Court’s order is affirmed.
KRAMER, JUDGE, CONCURS.
MAZE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
51. Dismissal and New Trial (Fen Phen Case)
B. Dahlenburg Bonar vs. Stanley Morris Chesley
COA Not to be Published (NPO) 1/23/2015
Opinion and Order Affirming denying motion to dismiss; Boone Cir. Ct. (Judge Stephen K. Mershon)
J. LAMBERT, JUDGE: Barbara Bonar and B. Dahlenburg Bonar, P.S.C. (hereinafter Bonar) appeal an order of the Boone Circuit Court denying Bonar’s motion for a new trial. The Appellees, Stanley Morris Chesley (Chesley), Robert Steinberg (Steinberg), and Waite, Schneider, Bayless & Chesley Co. L.P.A. (WSBC), have filed a renewed motion to dismiss Bonar’s appeal. The Appellees argue that the appeal is not within the jurisdiction of this Court, that two of the Appellees have already been dismissed from the underlying case prior to the notice of appeal being filed, and that this appeal has not been prosecuted in conformity with the rules. After careful review of the parties’ briefs and oral arguments before this Court, we deny the motion to dismiss but affirm the trial court’s order denying Bonar’s motion for a new trial.
58. Defenses. Qualified Official Immunity No Given to High School Principals Performing Ministerial Duties
James Beward and Gary Emberton vs. Cody Whitaker
COA Published 1/23/2015
Opinion affirming; Bullitt Cir. Ct.
62. Uninsured Motorist Benefits. Hit and Run. Held helmet not an integral part of a motorcycle for triggering UM benefits.
Bruce Stallard vs. State Farm Mutual Auto Ins. Co.
COA NPO1/23/2015
Opinion Affirming; Jefferson Cir. Ct. (Judge A.C. Mckay Chauvin)
VANMETER, JUDGE: This case involves the question of whether a helmet is an integral part of a motorcycle triggering the uninsured motorist hit-and-run provision of an insurance policy. In granting summary judgment for the insurer, the Jefferson Circuit Court held, as a matter of law, that a helmet is not an integral part of a motorcycle and, accordingly, the accident was not caused by a force projected by the hit-and-run vehicle. Because no genuine issue of material fact was presented by the non-moving party, we affirm the grant of summary judgment.
68. Premises Liability. Another COA decision working around the Shelton “open and obvious” distinction
Janice Ward vs. JKP Investments, LLC
COA Published 1/23/2015
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