Discovery - Social Security Records Peters v. Wooten , 297 S.W.3d 55 (Ky.App. July 17, 2009)
This otherwise unnotable case contains some dictum which is truly incredible that will make it easier for plaintiffs to hide the truth concerning their past histories. The trial Court had ordered the plaintiff to sign an authorization to allow the defendant to obtain plaintiff’s social security records, which in turn generated relevant information concerning the plaintiff’s employment history. The panel approved of the use of the information, but stated that the trial Court had erred in forcing the signing of an authorization. Perhaps the panel was unaware that this is the only way social security records can be obtained. The panel suggested that the Civil Rules provide the method for obtaining medical information, but there is no rule which the Social Security Administration recognizes as requiring it to produce records. Thus, as long as this case is on the books, a plaintiff not inclined to produce such records can now hide them. Perhaps more importantly, because this is dicta there is no real motivation for the defendant to seek review by the Supreme Court.
The Court of Appeals reaffirmed the validity of the so-called Economic Loss Doctrine in Kentucky, subject to the final word from the Supreme Court. The Economic Loss Doctrine is just of many efforts made to clean up the mess that was made in product liability cases, one of which was the failure to account for the basic difference between tort and contract. The panel relied heavily on the concurring opinion by Justice Keller in Presnell Constr. Mgrs. v. E.H. Constr. LLC, 134 S.W.3d 575 (Ky. 2004). In that opinion, Justice Keller rejected the type of injury as the key criteria, and instead opined that the focus should on the source of the duty. If the duty arose out of contract then the action is in contract, and if the duty existed independent of the contract then it lay in tort. This test is equally unsatisfactory, because a duty that arises from contract can also cause personal injury or property damage, and where that occurs a tort is clearly implicated. The correct test is the original test. Whether an action lies in tort or contract, as well determining which tort applies, is best determined by reference to the interest which was invaded. Contract law protects the interest one has in the bargain he made in contract. Different torts protect different interests. For example, negligence protects the interest one has in being free from unreasonable risk of injury to one's person or property. If the product fails but only injures itself, the purchaser has lost the benefit of his bargain, the product, and the claim lies in contract. The very same incident can, where an injury to a person or property other than the product is sustained, clearly implicates the tort of negligence. Of course, the technical problem is that product liability is a modern creature borne of the concept of redistribution of wealth more than any traditional tort concept, and in fact it is more closely related to warranty than anything else. For this reason a modern rationale has to be created to bring the action more in line with tort law, and this is the function of the Economic Loss Doctrine. Review by the Supreme Court seems likely unless the parties settle.
An employee drank vodka at work, drank more vodka on the way home, and had an accident after arriving at home but as beginning a trip to Alabama. The employee had a history of drinking and the employer knew he had no driver's license. Two weeks prior to the accident the employee had been put on probabtion for drinking at work. Despite the fact that this was no model employee, the Court held that the tort of negligent hiring and/or retention did not apply. The Court found no causal relationship between the employment and the harm since neither the employer's property or premises was involved in the accident, and accordingly the employer did not control the employee at the time of the accident.