This week’s Court of Appeals decisions numbered 537-557, with 21 decisions; 5 of which have been designated “to be published”. COA addressed another post-Shelton remand back to the trial court on the open and obvious issue in an ice in the parking lot case; affirmed trial court’s order denying “John Doe” subpoena against internet provider for identity of defaming party; affirmed denial of nursing home’s motion to compel arbitration of a springing durable power of attorney.
Court House Clock, Bourbon County Court House, Paris, Kentucky.
Photo by Michael Stevens (4/2/2014)
The published decisions for June 20, 2014 with name, link to full text, and key issues are:
545. Premises Liability (ice and snow). Post-Shelton v. Ky Easter Seals Remand
Donald McKinley vs.Circle K
546. Criminal restitution of $338,810 for cruelty to animals reversed as ASPCA is not a victim under statutory scheme
Patricia Blevins vs. Commonwealth of Kentucky
552. Family Law. Affirmed family court’s calculation of child support
Todd Curtis Hawkins vs. Amie Sue Hawkins (now Newell)
556. Workers Comp. Affirmed WCB holding ALJ did not err in calculating credits for payments of worker suffering worsening work-related injury when fell off horse
Glen Farm Gardens vs. Bethany Taylor Balderas
557. Affirmed grant of writ of prohibition entered by trial judge quashing “John Doe” subpoenae to internet providers for identity of individuals alleged to have defamed plaintiff.
John Doe No. 1 vs. Judge Eddy Coleman
Click here for links to all the archived Court of Appeals minutes.
“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
The Tort Report – Selected decisions this week on tort, insurance and civil law.
540. Affirmed trial court’s denial of Kindred’s motion to compel arbitration
Kindred Healthcare, Inc. vs. Nicole Leab, Adm’r Est. of Priscilla Leab
COA Not Published 6/20/2014 affirming (Marshall County, Foust, J.)
THOMPSON, JUDGE: On December 31, 2010, Priscilla Leab became a resident of Oakview Nursing & Rehabilitation Center, a facility owned and operated by Kindred Healthcare, Inc. She remained a resident until her death. Nicole Leab, as administrator of the estate of Priscilla Leab, and on behalf of the wrongful death beneficiaries of Priscilla Leab (the Estate) filed this action on May 4, 2012, in the Marshall Circuit Court alleging negligence against Kindred in the care and treatment of Priscilla. Kindred moved to compel arbitration and dismiss or stay the action. The circuit court denied the motion and Kindred’s subsequent motion for reconsideration. COA Affirmed.
Durable springing power of attorney was not shown to be in effect at time of admission to nursing home and signing of compulsory arbitration agreement.
545. Premises Liability Remand. Post-Shelton.
Donald McKinley vs. Circle K.
COA Published 6/20/2014. Reversing and remanding. Jefferson County (Cowan, J.)
VANMETER, JUDGE: Donald McKinley appeals from the Jefferson Circuit Court’s order granting summary judgment in favor of Circle K. For the following reasons, we reverse and remand.
In the situation presented, the harm posed by the snow and ice on the back lot must be weighed with the burden of clearing and salting the back lot. That weighing involves reviewing the potential effect on Circle K (cost to pay independent contractor to clear back lot) versus the potential risk of harm (customers slipping and falling on the uncleared lot). Because McKinley was an invitee, Circle K had a duty to protect him from any unreasonable risks it could foresee. Based on the evidence that Circle K cleared the snow and ice from the front and side lots and salted those areas, a reasonable mind could find that Circle K was aware of the risk of physical harm the snow and ice presented to invitees and sought to protect against it. Furthermore, under the foreseeability factors adopted from the Restatement in Shelton, 413 S.W.3d at 914, a reasonable mind could find that it should have been foreseeable to Circle K that invitees who regularly parked in the rear of the store would continue to do so and would choose to encounter the risk of slipping and falling on the ice in exchange for the advantages of making purchases from the store.
In light of Shelton’s emphasis on the foreseeability and breach questions as questions of fact and their separation from the question of whether a duty existed, we believe an issue of material fact exists as to whether Circle K could have foreseen the harm to McKinley and whether it acted reasonably in fulfilling its duty to invitees to protect against the risk of physical injury from the ice and snow.
For the foregoing reasons, the order of the Jefferson Circuit Court is reversed and this case is remanded to that court for further proceedings.
