Casey County Court House, Liberty, Kentucky. Built 1887. Color image courtesy of Keith Vincent, www.CourtHouseHistory.com.
Supreme Court of Kentucky announced 41 decisions on August 20, 2015, with 13 Kentucky Supreme Court opinions designated for publication; 5 attorney/judicial ethics and disciplinary matters were announced; and 12 motions for discretionary review were granted.
July was a down month with no decisions from SCOKY.
Click here for a list of all our posts on Supreme Court of Kentucky decisions posted east month as minutes. Click here for a link to archived list of minutes posted at the Administrative Office of the Courts official web site. Click here for the AOC page for this month’s minutes.
Selected published decisions:
87 Nursing Home. Cause of Action under KRS 216.515 and SOL
James Overstreet vs. Kindred Nursing Centers Limited Partnership
SC Published opinion affirming; Mercer County
Questions Presented: Limitation of Actions. KRS 216.515. Issues include whether KRS 216.515 created a new cause of action or whether the cause of action was one for personal injury, and whether the statute of limitations for personal injury or for a newly established statutory action applies. [KRS 216.515 lists rights of nursing home residents and duties of facilities.]
Opinion by Justice Venters. KRS 216.515 sets forth certain rights of nursing home residents. In this appeal we address the statute of limitations applicable to actions brought pursuant to that statute. We also consider whether actions based upon rights created by KRS 216.515 survive the death of the nursing home resident so that such actions may be brought after the resident’s death by the personal representative of the resident’s estate.
Ultimately, we conclude that claims brought under KRS 216.515(6) are subject to the one-year limitation period prescribed by KRS 413.140, to the extent that such actions seek to recover for personal injuries indistinguishable from a common law personal injury action. In contrast, actions brought pursuant to other subsections of KRS 216.515, to the extent they assert liabilities created exclusively by KRS 216.515, are subject to the five-year statute of limitations provided by KRS 413.120(2). We also conclude that actions to recover for personal injury to a nursing home resident, or for injury to the resident’s real or personal property, pursuant to KRS 411.140, survive the resident’s death and may be brought by the personal representative of an injured resident’s estate. In contrast, actions otherwise brought to enforce rights created exclusively by KRS 216.515 must be brought by the “resident or his guardian” pursuant to KRS 216.515(26), and therefore do not survive the resident’s death. Accordingly, we affirm the decision of the Court of Appeals, although we do so partly upon different grounds.
99. Employment law. Retaliatory Discharge.
Mary Banker vs. University of Louisville Athletic Association, Inc.
SC Published Opinion Reversing and Remanding COA Decision; Jefferson County.
Questions Presented: Employment Law. Retaliatory Discharge. Sufficiency of the evidence of causation or pretext to support the jury verdict for the discharged plaintiff.
Opinion by Justice Keller.
A jury found in favor of Mary Banker on her retaliatory discharge claim against the University of Louisville Athletic Association, Inc. (ULAA), and the trial court awarded attorney fees to Banker’s attorney, Bryan Cassis. ULAA filed a motion for a judgment notwithstanding the verdict or for a new trial, which the trial court denied. ULAA then appealed to the Court of Appeals, which reversed and remanded for dismissal of Banker’s claim. Banker filed a motion for discretionary review and, because the Court of Appeals did not address all of the issues raised by ULAA, it filed a cross-motion for discretionary review. We granted both motions and consolidated the appeal and cross-appeal.On appeal, Banker argues that she put forth sufficient evidence to establish that ULAA discharged her for engaging in a protected activity under the Kentucky Civil Rights Act and that the Court of Appeals substituted its view of the evidence for the jury’s. In its cross-appeal, ULAA argues that the jury’s award of damages and the trial court’s award of an attorney fee were not supported by the evidence. Having reviewed the record and the arguments of the parties, we reverse and remand.
100. Medical Malpractice. Evidence. Informed Consent.
Loretta Sargent vs. William Shaffer, M.D.
SC Published Opinion Reversing and Remanding COA; Fayette County
Questions Presented: Evidence Law. Jury Instructions. Medical Malpractice. Informed Consent. KRS 304.40- 320(2). Whether a jury instruction on informed consent in a medical negligence action must contain the duty enumerated in KRS 304.40- 320(2).
Opinion by Justice Venters. On discretionary review, Appellant Loretta Sargent argues that the Court of Appeals erred in affirming a judgment of the Fayette Circuit Court absolving Appellee William Shaffer, M.D., from liability on Sargent’s claim that he failed to obtain her informed consent before operating on her. The trial judgment
was based upon a jury verdict resulting from jury instructions which Sargent contends improperly stated Dr. Shaffer’s duties under KRS 304.40-320, Kentucky’s informed consent statute. For the reasons that follow, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.
102. Civil Procedure. Standing. Business entity not a named plaintiff.
Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group vs. Consol Energy, Inc.
SC Published Opinion Reversing and Remanding COA; Knott County
Questions Presented: Civil Procedure. Parties. Standing. Issues include whether the Court of Appeals properly vacated the trial court’s judgment in favor of a business entity that was not a named plaintiff.
Opinion by Justice Abramson. This action resulted in a jury verdict and judgment in favor of Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group on claims of breach of contract and tortious interference with contract. On appeal, Defendants CONSOL Energy, Inc. (“CONSOL”) and CONSOL of Kentucky, Inc. (“CKI”) raised various substantive issues regarding the claims asserted and the trial, while Plaintiffs Keith Randall Sparkman (“Sparkman”) and In-Depth Sanitary Service, Inc. sought review of an evidentiary ruling by cross-appeal. The Court of Appeals never reached the issues raised by the parties, but instead sua sponte concluded that it had no jurisdiction over the appeal. The contracts at the center of the dispute were entered into by In-Depth Sanitary Service Group (“Group”), a sole proprietorship that was not named in the complaint, (as opposed to the Plaintiff In-Depth Sanitary Service Inc.), and consequently, the
judgment was in favor of Group, a “non-party.” Finding no appellate jurisdiction in those circumstances, the Court of Appeals reversed and remanded the judgment to Knott Circuit Court for further proceedings including “any appropriate corrective action.” The appellate court also
dismissed the cross-appeal on that same ground as well as for being improperly taken from the wrong judgment. We now reverse and remand this matter to the Court of Appeals to address the appeal and cross-appeal on the merits.
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