SCOKY announced 30 decisions for September 24, 2015; 15 published. Three disciplinary matters were also announced, plus 8 cases granted discretionary review. Two major decisions on nursing home powers of attorney on compulsory arbitration and McIntosh’s open and obvious rule in premises liability extended further to outdoor hazard (icy parking lot) cases.
![Post card of Lincoln County Court House in Stanford, Kentucky built in 1909. Stanford, Built 1909, The architect was Milburn, Heister & Co., The contractor was F. Krueger & Sons. Frank Pierce Milburn (1868–1926) was a prolific architect of the late 19th and early 20th centuries. While Milburn designed commercial buildings and residences, his practice was primarily focused on public buildings, particularly courthouses and legislative buildings. Milburn was a native of Bowling Green, Kentucky who practiced as an architect in Louisville from 1884 to 1889; Kenova, West Virginia 1890-1895; Charlotte, North Carolina; Columbia, South Carolina; and Washington, D.C. after 1904. From 1902 Milburn was architect for the Southern Railway.[1] Milburn pioneered a new approach to the marketing of architectural services, publishing sponsored books of his work, placing advertisements in trade publications, entering competitions and moving his office to suit available opportunities.[2] This resulted in work in every Southern state apart from Mississippi. Milburn was particularly successful in obtaining commissions for significant public buildings, ranging from county courthouses to state capitols. Milburn did significant work at the South Carolina State House and the old Florida Capitol, and unsuccessfully competed for work on the Arkansas Capitol.[](https://kycourtreport.com/wp-content/uploads/2015/09/Lincoln-County.CH_.Stanford.2015.09.28.jpg)
Post card of Lincoln County Court House in Stanford, Kentucky built in 1909.
124. Nursing home arbitration, power of attorney.
Extendicare Homes, Inc. vs. Belinda Whisman
Questions Presented: Power-of Attorney. Arbitration. Nursing home facilities. Personal Injury. Wrongful Death. Pre-dispute arbitration agreement in nursing home admission document was not validly formed or enforceable where the authority to arbitrate was not conferred upon the attorney-in-fact by the power-of-attorney instrument. Agent’s authority to waive principal’s constitutional right to access the courts and to trial by jury will not be inferred, but must be clearly expressed by the principal. Wrongful death beneficiaries are not bound to contractual arrangements purportedly made by the decedent or the decedent’s attorney-in-fact.
This decision consolidates three case accepted for discretionary review seeking relief from orders of the Court of Appeals refusing to compel arbitration of pending circuit court disputes.
Each of the three cases originated with the filing of an action in the circuit court asserting claims against the nursing home for personal injuries suffered by the nursing home resident, violations of KRS 216.510 et seq.,3and for wrongful death of the resident. In each case, at the time of the resident’s admission to the nursing home, an attorney-in-fact for the resident executed a written document providing that any claims or disputes arising out of the relationship between the resident and the nursing home would be submitted to arbitration, rather than adjudication in the courts.
The central issue is whether, based upon the language of the particular power-of-attorney instrument, an arbitration agreement was validly formed between the respective nursing home facility and the resident whose interests were thereby affected. For the reasons set forth below, we conclude in two of the cases, Extendicare Homes, Inc., et al, v. Whisman (Case No. 2013-SC-426-I) and Kindred Nursing Centers Limited Partnership, et al., v. Wellner (Case No. 2013-SC-431-I), that the authority to enter into a pre-dispute arbitration agreement was not among the powers granted to respective attorney-in-fact and, therefore the arbitration agreements were not formed with the assent of the party to be bound thereby. Lacking the essential element of assent, we conclude that the arbitration agreements in those cases were never validly formed.
129. Workers Compensation. Statutes of limitation and repose.
Consol of Kentucky, Inc. vs. Osie Daniel Goodgame, Jr.
Questions Presented: Workers’ Compensation. Issues presented include what date the statute of limitations and statute of repose, contained in KRS 342.185(1), begin to run for an alleged work-related cumulative trauma injury.
Affirmed the Court of Appeals, in part, and vacate the ALJ’s opinion finding that Goodgame did not timely file his claim for cumulative traumatic injury suffered in Kentucky. As did the Court of Appeals, we remand this matter to the A1,,1 for a proper finding regarding when Goodgame’s cumulative trauma injury became manifest. If the Al,,J determines that Goodgame’s injury became manifest more than two years before he filed his claim, she may again dismiss his claim. However, if she determines that Goodgame timely filed his claim, she must then determine the extent of his disability that is attributable to the work he performed in Kentucky.
135. Torts. Premises Liability and “Open and Obvious” Doctrine. Icy hotel parking lot.
James Carter vs. Bullitt Host, LLC
Questions Presented: Torts. Personal Injury. Open and Obvious Doctrine. Whether application of the open and obvious doctrine allows for summary judgment in this case, arising out of a fall in an icy hotel parking lot.
The A71ppellee, Bullitt Host, LLC, d/b/a Holiday Inn Express, operates a hotel. The Appellant, James Carter, sued Bullitt Host for injuries he suffered in a fall on ice on the hotel property. He alleged negligence in Bullitt Host’s maintenance of the entryway of the hotel during or soon after a severe snow storm. The hotel obtained summary judgment on the grounds that the icy patch on which Carter fell was a naturally occurring open-and-obvious hazard for which there can be no liability under Standard Oil Co. v. Manis, 433 S.W.2d 856 (Ky. 1968). The Court of Appeals affirmed. The parties have raised, among other things, broad questions of the continued viability of Manis and how naturally occurring hazards, such as ice and snow, should be treated after this Court’s recent open-and-obvious cases. Because the Manis rule was established under contributory negligence principles, and the law of the Commonwealth has been since 1984 by case law, Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984), and since 1988 by statute, KRS 411.182, that all tort actions must provide for the apportionment of fault among all parties to an action, the Manis rule is no longer viable, and we hold that all open and obvious hazard cases, including obvious natural outdoor hazard cases, are subject to the comparative fault doctrine.
We have hesitated at times to say that the open-and-obvious doctrine is completely “a vestige of contributory negligence,” Shelton, 413 S.W.3d at 910, though we have stated that such a claim is “compelling,” id. But our close review of the cases above establishes that the rule previously applied in the snow-and-ice open-and-obvious cases is readily explained by reliance on the doctrine of contributory negligence, rather than other concerns. Cf. McIntosh, 319 S.W.3d at 389 (discussing the open-and-obvious doctrine as an application of contributory negligence). Though the cases are often doctrinally imprecise, see id. (noting that “the precise doctrinal rationale was not carefully
considered” in older cases), they are unquestionably “rooted in the bygone era
of contributory negligence,” Shelton, 413 S.W.3d at 904.
But contributory negligence is no longer the law.
And our Court has already, very recently, addressed whether the openness and obviousness of a danger can be a complete defense in the face of modern tort law in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013). Shelton specifically answered questions about duty and breach, and held that while considerations of the obviousness of a hazard often were traditionally deemed to go to the existence of a duty, such considerations were better addressed in deciding whether the defendant breached the almost universally accepted general duty of ordinary care owed by every person to all other persons. Instead of killing a case prematurely because of the obvious nature of a hazard, most non-frivolous cases will now be allowed to mature fully and go before a jury to determine whether there has been tortious conduct at all and, if so, to apportion fault among the parties.
The open-and-obvious nature of a hazard is, under comparative fault, no more than a circumstance that the trier of fact can consider in assessing the fault of any party, plaintiff or defendant. Id. at 911-12. Under the right circumstances, the plaintiff’s conduct in the face of an open-and-obvious hazard may be so clearly the only fault of his injury that summary judgment could be warranted against him, for example when a situation cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable. Id. at 918. Applying comparative fault to open- and-obvious cases does not restrict the ability of the court to exercise sound judgment in these cases any more than in any other kind of tort case.
Under comparative fault, every person has a duty of ordinary care in light of the situation, and that duty applies equally to plaintiffs and defendants. For fault to be placed on either party, a party must have breached his duty; and if there is a breach, fault must be apportioned based on the extent a party’s breach caused or helped cause harm to the plaintiff.
But it is just as true under comparative fault as it has always been that if a landowner has done everything that is reasonable under the circumstances, he has committed no breach, and cannot be held liable to the plaintiff. The difference under comparative fault is that a landowner is not excused from his own reasonable obligations just because a plaintiff has failed to a degree, however slight, in looking out for his own safety. The Manis rule, at least as articulated in later cases like Corbin Motor Lodge, is the antithesis of this.
It is true that no one controls the weather; but neither is anyone reasonably expected to do so. A landowner is held only to reasonable conduct. The gravamen of a tort claim has always been that harm has come to a plaintiff because of the unreasonable conduct of the tortfeasor. Such conduct need only be the conduct that the ordinary person would not do under the same circumstances, in order to be tortious. And the plaintiff must likewise act in a reasonable manner for his own safety. Trial courts and juries have been ably applying this concept since torts became actionable. There is no valid reason to believe that they cannot do so when bad weather or any other natural hazard is involved.
We have spun our wheels long enough trying to drive open-and-obvious hazard cases the wrong way down a rocky road built on contributory- negligence concepts when all the rest of tort law runs smoothly on comparative-fault principles. It is time to clearly say that all torts, as the statute requires, are subject to a comparative fault analysis.
136. Products Liability. Design defect. Punitive damages.
Nissan Motor Co. LTC vs. Amanda Maddox
Questions Presented: Whether the plaintiff presented sufficient evidence to warrant a punitive damages instruction where the defendant car manufacturer complied with federal safety standards.
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