This week’s Court of Appeals decisions numbered 458-483 with 26 decisions; 5 of which have been designated “to be published”.  COA addressed government budgetary furloughs, Retired Justice Graves’ expert testimony in will contest, indemnity, attorney lien, and Post-Shelton premises liability for a McDonalds’ icy parking lot… and more.

Street in front of Anderson County Court House, Lawrenceburg, Kentucky replicating AGFA B&W film. Photo taken by Michael Stevens on 4/14/2013.

Street in front of Anderson County Court House, Lawrenceburg, Kentucky replicating AGFA B&W film. Photo taken by Michael Stevens on 4/14/2013.

The published decisions for week of May 30, 2014 can be directly accessed as follows:

Click here for links to all the archived Court of Appeals minutes.

The Tort Report – Selected decisions this week on tort, insurance and civil law.

458.  Premises Liability in Post Shelton v. Kentucky Easter Seals, Ice in McDonald’s parking lot
Theresa Hayden, Adm’x of Estate of Joseph Rawlings vs. UP, Inc.
COA, Not Published, 5/30/2014 from Hardin County

NICKELL, JUDGE: Teresa Hayden, the administratrix of her son Joseph Rawlings’s estate, appeals from a summary judgment granted to UP, Inc., by the Hardin Circuit Court. Rawlings suffered injuries to his head and knee when he slipped and fell on a chunk of ice in the parking lot of a McDonald’s restaurant operated by UP. Under the new standard for premises liability recently clarified in 1 By order entered June 6, 2012, this Court substituted Hayden in her capacity as administratrix.  Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013), we hold that material issues of fact remain regarding whether UP breached its duty of care to Rawlings; hence, we reverse and remand for further proceedings.  * * *

When we apply this new framework [Shelton] for analyzing premises liability to the facts of this case, we conclude reasonable minds could differ as to whether UP acted reasonably in allowing the lumps of ice to remain scattered in the McDonald’s parking lot, particularly in an area customers would have to cross to get to the door. A jury could find it was foreseeable that a McDonald’s customer would slip and fall, even though the ice lumps were open and obvious, because an invitee could be distracted while trying to cross the drive-thru lane to gain access to the restaurant. Under these circumstances, the judgment of the circuit court must be reversed.

472.  Indemnity.
Enerfab, Inc. vs. Kentucky Power Co.
COA, Published, 5/30/2014 from Boyd County

DIXON, JUDGE: Appellant, Enerfab, Inc., appeals from an order of the Boyd Circuit Court granting summary judgment in favor of Appellee, Kentucky Power Company, and enforcing an indemnity clause in the parties’ contract.  [Contractor’s employee working on power plant and not wearing safety belt required by state OSHA rules, is injured falling from platform.   Employee sued power company for his injuries.  Power company defended on exclusive remedy provisions of workers compensation; and filed third party indemnity claim against the contractor seeking indemnification for all sums should pay to employee, attorney fees and costs of defending.]  Trial court granted summary judgment in favor of power company.  Enterfab claimed summary judgement in error and entitled to exception under the indemnification clause which excluded sole negligence of the power company. COA disagreed; and affirmed summary judgment dismissal.

Indemnity Clause:

In states other than Ohio, to the extent permitted by law, Contractor shall indemnify, defend at its expense, and save Owner harmless, from any liabilities, costs and claims, including judgments rendered against, and fines and penalties imposed upon Owner and reasonable attorneys’ fees and all other costs of litigation, arising out of the contract, including injuries, disease or death to persons, or damage to property, including environmental claims and liabilities, caused by Contractor, its employees, agents or subcontractors, or in any way attributable to the performance of the contract, except that Contractor’s obligation to indemnify Owner shall not apply to any liabilities arising from Owner’s sole negligence. To the extent provided in this section, Contractor agrees to indemnify Owner for Owner’s acts or omissions, negligent or otherwise.

Indemnity is “[a] duty to make good any loss, damage, or liability incurred by another[,]” and “arises from a promise by the indemnitor to safeguard or hold harmless a party against an existing or future loss, liability, or both.”  Frear v. P.T.A. Industries, Inc. 103 S.W.3d 99, 107 (Ky. 2003) (Citations omitted); see also 41 Am.Jur.2d Indemnity § 1 (1995). Furthermore, general principles of contract construction apply equally to indemnification agreements. “The right of an indemnitee to recover of the indemnitor under a contract of indemnity according to the terms of such a contract is well recognized. Such a contract is not against public policy and will be enforced if the indemnitee has suffered loss thereunder and has complied with its terms.” United States Fidelity & Guaranty Co. v.
Napier Elec. & Constr. Co., 571 S.W.2d 644, 646 (Ky. App. 1978) (Quoting National Surety Corp. v. Peoples Milling Co., 57 F.Supp. 281, 282 (W.D. Ky. 1944)); Thompson v. The Budd Co., 199 F.3d 799, 807 (6th Cir.1999) (holding that an indemnitor’s liability “shall be determined by the provisions of the indemnity agreement itself”).

The only exception to the indemnification provision contained in section 16.2 provides that Enerfab’s obligation to indemnify Kentucky Power “shall not apply to any liabilities arising from . . . [Kentucky Power’s] sole negligence.” We must agree with Kentucky Power, however, that under the undisputed facts, there could be no finding that liability, if any, arose from its sole negligence because Perry was not wearing the KOSHA-required safety belt at the time of his accident. He was obligated by KRS 338.031(2) to “comply with occupational safety and health standards and all rules, regulations and orders . . . which are applicable to his own actions and conduct.” A violation of a KOSHA regulation constitutes a violation of KRS 338.031. Hargis v. Baize, 168 S.W.3d 36, 42 (Ky. 2005). Accordingly, Perry’s failure to wear the required safety gear constituted negligence per se.

For complete PDF of minutes with links to each decision, then go below the fold.

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