Boone County Courthouse, Burlington, Kentucky, Built 1889, Remodeled 1898.
Photo courtesy Keith Vincent at CourtHouseHistory.com — http://courthousehistory.com/gallery/states/kentucky/counties/boone.
The Kentucky Court of Appeals announced 33 decisions on May 1, 2015, with four (4) 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For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.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 May 1, 2015:
328. Government immunity and principal’s responsibilities with school facilities (children’s safety address when blind student fell of bleachers during assembly)
Gary Hurt, Jefferson County Bd of Ed vs. Barbara Parker
COA Published 5/1/14; Opinion vacating and remanding (Jefferson Cir Ct)
COMBS, JUDGE: Gary Hurt appeals the order of Jefferson Circuit Court which denied his motion for summary judgment. This case is before us on remand from the Supreme Court of Kentucky. We rendered our opinion affirming on January 4, 2013. On October 15, 2014, the Supreme Court remanded the case for us to reconsider in light of Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014). Upon second review, and in light of Marson, we now vacate and remand.
335. Power of attorney did not have authority to set up trust and thus no attorney fees either
Anne Dishman vs. Susan Dishman D0ugherty
COA Published 5/1/14; Opinion Vacating and Remanding; Jefferson Cir Ct.
LAMBERT, J., JUDGE: These appeals address rulings by the Jefferson Circuit Court awarding or failing to award attorney fees to L. Anne H. Dishman in her capacity as trustee or former trustee of the Charles H. Dishman, III Irrevocable Trust (the Dishman Trust). In her direct appeal, Dishman contends that she should have recovered all of the fees and costs she personally expended. In her cross- appeal, Susan Dishman Dougherty, in her capacity as executrix of the estate of Charles H. Dishman, III seeks reversal of the fees that were awarded. Because we agree with Susan that the Power of Attorney (POA) did not provide Anne with the authority to create the Dishman Trust, we must reverse the summary judgment, vacate the final judgment, and remand for the entry of a summary judgment in favor of Susan.
344. Criminal Law
Derek Lee Sullivan vs. Commonwealth of Kentucky
COA Published 5/1/14; Opinion Affirming (Boone Cir Ct)
VANMETER, JUDGE: Derek Sullivan appeals from the Boone Circuit Court’s order revoking his probation and ordering him to serve his five-year sentence of imprisonment. On appeal, Sullivan alleges that he was deprived of due process at the revocation hearing because of hearsay testimony offered by a probation officer. Upon review of the record and applicable law, we affirm.
360.Granted writ of prohibition against Judge for conducting hearing to temporarily modify primary residential custodian while father was deployed with National Guard
Wood vs. Hon. Richard Woeste
COA Published 5/1/14; Opinion & Order Granting Writ of Prohibition
THOMPSON, JUDGE: Petitioner, Jesse A. Wood, IV (father), and L.A.W. (son), through son’s guardian ad litem (GAL), filed a petition for a writ to prohibit the family court from conducting a hearing on a motion to temporarily modify primary residential custodian of son to Aliza Hunter (mother), while father was deployed with the Air Force National Guard. Father and son also filed two emergency motions to stay the family court from proceeding with a decision. We grant the writ of prohibition because the family court acted erroneously, there is no adequate remedy by appeal, and great injustice and irreparable injury have resulted. We deny the emergency motions as moot.
Tort Report – Insurance, Civil, Tort Decisions
PUBLISHED CASES
328. Government immunity and principal’s responsibilities with school facilities (children’s safety address when blind student fell of bleachers during assembly)
Gary Hurt, Jefferson County Bd of Ed vs. Barbara Parker
COA Published 5/1/14; Opinion vacating and remanding (Jefferson Cir Ct)
See synopsis above.
NOT TO BE PUBLISHED CASES FROM COA FOR 5/1/2015
330. Attorney fee dispute from criminal case With COA affirming trial court’s ruling in favor of law firm
Joseph Steven Clark vs. Hectus and Strause
Opinion affirming (Marion Cir Ct)
332. Premises Liability
Daniel Collins vs. Newport on the Levee LLC
ACREE, CHIEF JUDGE: This is a premises liability case. By order entered November 21, 2012, the Campbell Circuit Court entered summary judgment in favor of Appellee Newport on the Levee, LLC (NOTL), concluding NOTL did not breach the duty of care it owed to Appellant Daniel Collins. The issue before us is whether genuine issues of material fact exist that preclude summary judgment. We find none and affirm.
NOTL operates the Newport on the Levee Entertainment Complex (the Levee) located in Campbell County, Kentucky. On March 25, 2011, Collins and his young son visited a restaurant on the Levee’s premises. During their meal, Collins’s son became ill. Collins picked up his child, who weighed approximately 65 pounds, and carried him out of the restaurant. Exiting into the common area, Collins proceeded down the hallway at a brisk pace, still carrying his child, and turned the corner to his right. After Collins rounded the corner, he took four or five strides in the middle of the corridor when he felt something under his feet. Collins fell, dropping his child and injuring his knees, back, and neck.
After the fall, Collins observed two teenagers scurry to their feet. He surmised that he had tripped over them because they were “laying down in the middle of the floor . . . in some type of very relaxed capacity[.]” In his deposition, Collins described the individuals as wearing normal clothing (jeans and jackets). He admitted that the teenagers were not concealed or camouflaged, and nothing was blocking his view of them. Collins further stated he was paying attention to the path in front of him and he was not distracted. Nevertheless, he did not see the teenagers in the hallway.
342. Torts. Loss of Consortium of minor for mother’s injuries from medical malpractice rendering her incapable for taking care of him (not wrongful death).
Brandon Diaz by and through his legal Guardian Eloise Hall vs. Dr. Sujata Gutti, MD
KRAMER, JUDGE: Brandon Diaz, by and through his legal guardian Eloise Hall, asserted a loss of consortium claim against Sujata Gutti, M.D., in Pike Circuit Court. In particular, Brandon alleged that his mother was severely injured and rendered totally incapable of caring for him due to Dr. Gutti’s medical negligence. Thereafter, Dr. Gutti filed a Kentucky Rule of Civil Procedure (CR) 12.02 motion to dismiss arguing that Kentucky does not recognize a child’s or parent’s loss of consortium claim outside the context of a wrongful death action. The circuit court granted Dr. Gutti’s motion and dismissed, and this appeal followed.
We affirm. As to why, we begin by noting what we previously explained in Goebel v. Arnett, 259 S.W.3d 489, 492 (Ky. App. 2007):
In Bayless v. Boyer, 180 S.W.3d 439 (Ky. 2005), the Supreme Court of Kentucky declined to expand loss of consortium claims beyond the extreme case of a wrongful death action. The Supreme Court cited with approval this court’s opinion in Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711 (Ky. App. 1992), in which we, too, declined to recognize a claim for parental loss of consortium despite proof of serious and permanent injury to a child.
343. Affirmed dismissal of claims against national provider of non-medical health services who stole from the person being cared for
Rau vs. LOCY Y Associates LLC
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