The Coming Things

Its one thing to know what the Courts have said about a particular issue, but no analysis can be complete without an assessment of what might change in the near term. Here we try to collect the issues which the Kentucky Supreme Court has thought significant enough to accept review, which at least theoretically is granted only for special reasons. We hope you find this collection helpful.

Arbitration

Private Universities


Daymar Colleges Group, LLC v. Dixon, 2012 WL 4335393 (Ky.App. September 21, 2012), review granted August 21, 2013 (2013-SC-000687-DG).

The student/plaintiffs brought suit claiming fraud in the enrollment and marketing process. The enrollment contract contained two arbitration agreements, one broadly applicable to claims brought against the university, and the other delegating to arbitration the enforceability of the arbitration agreement. The Court of Appeals held that the Court was to determine conscionability, but also found that the cost of arbitration did not render the provision unconscionable.

Constitutionality of Kentucky Uniform Arbitration Act


Griffin v. Linden , 2011 WL 1434659 (Ky.App. April 15, 2011), review granted August 23, 2012 (2012-SC-000377-DG).

The movant challenges that portion of the KUAA as allows an interlocutory appeal, asserting that it invades the rule making province of the Court. This is an indirect re-litigation of the impact of an interlocutory appeal on the jurisdiction of the trial court to proceed during its pendency. See Linden v. Cunningham, 2010 WL 5258474 (Ky. December 16, 2010).

Unconscionability


Energy Home v. Peay , 2011 WL 1434639 (Ky.App. April 15, 2011), review granted August 23, 2012 (2011-SC-000462-DG).

The purchase agreement for a manufactured home did not contain an arbitration agreement, but a separate arbitration agreement attached to the warranty booklet was signed months later at the closing. The Court of Appeals panel determined the agreement to be unconscionable.

Causation

Superseding Cause - Suicide


Patton v. Bickford, 2013 WL 3778148 (Ky.App. July 19, 2013), review granted June 11, 2014 (2013-SC-000560-DG). Previous Report

The Court of Appeals held that a suicide was a superseding intervening cause of a student's death allegedly related to bullying at school.

Damages

Lost Profits - Plaintiff Opinion


Turner v. Andrew, 2011 WL 3962582 (Ky.App. September 9, 2011), review granted June 21, 2012 (2012-SC-000614-DG).

This property damage claim was decided by the trial court on procedural issues, with which the Court of Appeals disagreed. The panel held that the individual plaintiff was a real party in interest where he was the sole owner of the business and operated it out of his house. The opinion also recited that the truck was purchased by the individual, but does not say who owned it at the time of the accident. The panel also held that the individual could provide opinion evidence on lost profits, at least to avoid a summary judgment.

Dram Shop Liability

Scope of Act


Fort Mitchell Country Club v Lamarre, 2011 WL 2496242 (Ky.App. June 24, 2010), review granted March 14, 2012 (2011-SC-000665-DG).

This was an alcohol related golf cart accident at a private country club. The country club held a retail license, but in this instance sold alcohol by the bottle to be consumed off the premises. The Court of Appeals held that the limitations on liability created by KRS 413.241 did not apply to sales outside the scope of the seller's license.

Employment

Obesity as a Disability


Wagner's Pharmacy, Inc. v. Pennington, 2013 WL 3480307 (Ky.App. July 12, 2013), review granted August 13, 2014 (2013-SC-000541-DG). Previous Report

In this case, the employee claimed to have been terminated because she was morbidly obese and had poor hygiene. The Court of Appeals held that obesity in this context constituted a disability under the Kentucky Civil Rights Act. The federal Equal Employment Opportunity Commission has been advocating a liberal interpretation in a number of contexts (and has generally been on the losing end in litigation), but its interpretation would not have justified this holding. Hopefully, the Supreme Court took this case to clarify the meaning of disability.

Circumstantial Evidence - Burden Shifting Analysis


The Board of Regents of Northern Kentucky University v. Weickgenannt, 2013 WL 6157134 (Ky.App. November 22, 2013), review granted August 13, 2014 (2013-SC-000820-DG). Previous Report

In this case, we were critical of the Court of Appeal's application of the burden shifting test used to determine whether circumstantial evidence supports the claim of discrimination. The sole evidence available to make out a prima facie case was the fact that males had been given tenure. The Court used this same evidence to find that the plaintiff had met her burden of showing pretext. While the same evidence can be used in a proper case, this rule usually requires more evidence than just disparate treatment and must undermine in some way the legitimate reason offered by the employer.

Causation Where Adverse Action Was Being Considered Prior to Protected Conduct


Banker v. University of Louisville Athletic Association, Inc., 2013 WL 375496 (Ky.App. February 1, 2013), review granted November 21, 2013 (2013-SC-000108-DG) and February 12, 2014 (2014-SC-000778-DG). Previous Report

The Court likes to say that the Kentucky Civil Rights Act is the mirror of the federal equivalents and that the federal decisions serve as a guide for Kentucky. In this case, the proof was that the employer was considering the adverse employment action before the employee engaged in the allegedly protected conduct for which the employee claims retaliation. The Unites States Supreme Court has determined that such a claim fails for lack of causation. It will be interesting to see why the Court granted review in this case since it was clearly correctly decided. Often the Kentucky Court is uncomfortable with the federal reliance on reason and precedent, preferring a more emotional and ad hoc system that reflects personal beliefs of the members of the Court as opposed to the precedent before them. Or, the Court could take this opportunity to address a number of federal decisions relating to causation and discuss how they will impact Kentucky law in this area.

Whistleblower


Pennyrile Allied Community Services v Rogers, 2012 WL 6214354 (Ky.App. December 14, 2012), review granted September 18, 2013 (2012-SC-000012-DG). Previous Report

This case presents the Court with an opportunity to decide whether the whistleblower requires a report on a matter of public concern.

Public School Teachers - Whistleblower, Free Speech


Patton v. Pollard, 2011 WL 6003893 (Ky.App. December 2, 2011), motion for discretionary review granted October 17, 2012 (2012-SC-000139-DG). Previous Report

This case arises from what can best be labeled a personality conflict between a school principal and a French teacher. The teacher was initially reprimanded, and ultimately her position was eliminated. At issue were claims based on the state constitutional equivalent of free speech, the whistleblower statute, KRS 61.102(1), and state statutes concerning sick leave, KRS 161.155.

Policemen's Bill of Rights


Hill v. City of Mt. Washington, 2011 WL 163037 (Ky.App. January 20, 2012), review granted September 20, 2012 (2012-SC-000104-DG).

The Court of Appeals held that the Policeman's Bill of Rights, KRS 15.520, which contains a number of procedural protections, applies only to complaints initiated by a citizen. Prior decisions are less than clear on this point, so the Supreme Court will hopefully establish a clear scope for the applicability of this important statute.

Policemen's Bill of Rights


Pearce v. University of Louisville, 2011 WL 5599540 (Ky.App. November 18, 2011), review granted August 23, 2012 (2011-SC-000756-DG).

The Court of Appeals held that the Policeman's Bill of Rights, KRS 15.520, which contains a number of procedural protections, applies only to complaints initiated by a citizen. Prior decisions are less than clear on this point, so the Supreme Court will hopefully establish a clear scope for the applicability of this important statute.

Public School Teachers - Conduct Unbecoming


Board of Education of Fayette County v Hurley-Richards, 2011 WL 3862217 (Ky.App. September 2, 2011), review granted May 24, 2012 (2011-SC-000599-DG).

A teacher was disciplined for conduct unbecoming a teacher, and the lower courts concluded the conduct was not sufficient since there was at most a mistake in judgment. The Court suggested that the term required some type of dishonest or corrupt behavior.

Teachers - Reduction in Force - Seniority


Webb v. Meyer, 2010 WL 2696277 (Ky.App. July 9, 2010), review granted February 23, 2012 (2012-SC-000109-DG) and April 16, 2012 (2012-SC-000113-DG).

The manner in which a school board is to conduct a reduction in force is governed by KRS 161.011. The statute requires the use of seniority in determining employee rights. The Court of Appeals held that a reduction in force occurred where the number of employees in a job classification is reduced, even if the overall number of employees stay the same.

Experts

Daubert


Oliphant v. Ries, 2012 WL 6632511 (Ky.App. December 21, 2012), review granted November 21, 2013 (2013-SC-000059-DG). Previous Report

This case presents the Court with the opportunity to clarify just what Daubert means in Kentucky jurisprudence. In this case no Dauber hearing was held, so the Court may elaborate on when a hearing is required. Likewise, the expert extrapolated data from infant and animal studies to an adult, but there was no literature to support or reject the idea. Can the Court take the expert's word for it? That is the question and a big part of what it means to be a gatekeeper.

Federal Employee Liability Act

Necessity of Expert Testimony


Caniff v. CSX Transportation, Inc., 2012 WL 5038812 (Ky.App. October 19, 2012), review granted August 21, 2013 (2012-SC-000622-DG).

The plaintiff was a railroad worker who injured his back carrying a 75 pound knuckle in order to effect repairs to a stopped train. The trial court held that in order to prevail the employee had to prove that the railroad's standards were outside the standard of care, which in turn required expert proof.

Immunity

Sanitation Districts


Coppage Construction Co., Inc. v. Sanitation District No. 1, 2013 WL 276019 (Ky.App. January 25, 2013), review granted April 9, 2014 (2013-SC-000122-DG). Previous Report

The Court of Appeals, relying on Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91 (Ky. 2009), held that a Sanitation District created by counties pursuant to statute was a governmental agency. This case may present a clue as to whether the Court in in the process of restricting or expanding governmental immunity.

Immunity for Road Markings and Signage


Mercer County Fiscal Court v. Dean, 2012 WL 28789 (Ky.App. January 6, 2012), review granted August 21, 2013 (2013-SC-000831-DG).

The Court of Appeals held that a suit could not proceed against the county and its Road Supervisor, who was sued in his official capacity only, in which plaintiffs alleged that a stop sign and markings were improper. It's not clear what the Supreme Court found interesting about this case.

Schools - Official Immunity


Marson v. Thomason, 2012 WL 876754 (Ky.App. March 16, 2012), review granted February 21, 2012 (2012-SC-000109-DG).

This case arose out of an injury to a student that occurred while on school property. The student was a visually impaired twelve year old who fell from a set of improperly retracted bleachers shared by the middle and high school while unsupervised. The defendants were principals, teachers and one was lead custodian. The Court of Appeals held that each, in their official capacities, were protected by governmental immunity. The gymnasium was used as part of a child care program, and since it was part of the promotion of public education served a governmental function. However, the Court declined to extend official immunity to the defendant in their individual capacities. The Court determined that the duty to properly retract the bleachers and to provide supervision for students was ministerial. The Court further held that several defendants that were not on the premises the day of the fall were entitled to dismissal, but this seems to be based on the absence of fault, which was not really before the Court. Finally, the Court held that any claims based on vicarious liability were to be dismissed.

Police - Confidential Informants


Gaither v. Justice & Public Safety Cabinet, 2011 WL 1556313 (Ky.App. May 4, 2012), review granted December 12, 2012 (2012-SC-000324-DG).

This case arose out of the use of a confidential informant that went very wrong, leading to the death of the informant. The Board of Claims found that the officers were negligent in allowing the informant to testify before the grand jury, in the use of him in an undercover operation the day after he testified, against the same person his testimony implicated, and in failing to terminate the operation before they lost contact with him. The applicable General Order required the officers to monitor the informant as closely as possible but does not give specific directives. In a 2-1 opinion, the Court of Appeals found the actions to be discretionary and therefore immune.

Insurance

UIM - Duty to Advise of Option to Purchase


Smith v. Allstate Insurance Company, 2010 WL 3515806 (Ky.App. September 10, 2013), review granted August 13, 2014 (2013-SC-000732-DG).

The insured had an automobile policy with Allstate which had apparently been renewed for thirty one years, and it did not provide for underinsured motorist coverage. In 1990, the General Assembly enacted KRS 304.20-040(13) which requires a notice with the first renewal advising that "added uninsured motorists, underinsured motorists, and personal injury protection coverages may be purchased". Obviously, the first renewal notice was issued long before the statute was effective, but the Court of Appeals nonetheless applied to impose a duty to give notice which in effect rewrote the statute as well as the policy as purchased.

UIM - Contractual Limitations


Riggs v. State Farm Mutual Automobile Insurance Company, 2013 WL 3778143 (Ky.App. July 19, 2013), review granted June 11, 2014 (2013-SC-555-DG). Previous Report

The Court of Appeals held that a two year contractual limitations on the bringing of suit contained in the underinsured motorist coverage afforded by an automobile liability policy was unenforceable. While this holding is clearly inconsistent with prior precedent, the Court could adopt the opinion's reasoning, reject it and reaffirm the prior cases, or craft some middle ground. Absent such a provision a UIM claim would be subject to the 10 year limitations period applicable to written contracts (modified in 2014)

Motorcycle Exclusion and Loss of Consortium Claim


Hoskins v. Kentucky Farm Bureau, 2011 WL 2012 WL 4841094 (Ky.App. October 12, 2012), review granted June 12, 2013 (2013-SC-000731-DG). Previous Report

The Court of Appeals held that a motorcycle exclusion barred the recovery of underinsured motorist benefits by the motorcycle rider, but did not preclude a spouse who was not involved in the accident from recovering for loss of consortium. The Court of Appeals opinion is a muddle, but it is not clear what the Supreme Court will do with the issue.

Torts Involving Legal Process

No cases pending

Limitations of Actions

Automobile Accidents


Beaumont v. Muluken, 2013 WL 3237216 (Ky.App. June 28, 2013), review granted April 9, 2014 (2013-SC-000489-DG). Previous Report

The Court held that the limitations applicable to motor vehicle accidents set forth in KRS 304.39-230(6) begins to run the date of the last basic reparation payment, and is not extended by a reissuance of the check.

Prior Suit as Tolling Limitations


Davis v. Scott, 2013 WL 845155 (Ky.App. March 8, 2013), review granted September 18, 2013 (2013-SC-000228-DG).

This is the second trip for this case. Previously, the Supreme Court held that the assignment of a legal malpractice case was unenforceable, but that the assignment would not prevent the former client from bringing the case in his own name. On remand, the suit was dismissed without prejudice, and a new suit filed in the former client's name. It was, however, dismissed due to the expiration of the statute of limitations. The Court of Appeals held that the Supreme Court opinion required that the time be tolled during the first action, even though precedent is to the contrary.

Open Records

Redaction of Witness Information from Police Reports


Kentucky New Era, Inc. v. City of Hopkinsville, 2012 WL 1365863 (Ky.App. April 20, 2012), review granted December 12, 2012 (2012-SC-000290-DG).

A newspaper submitted an open records request for Hopkinsville Police Department citations and reports relating to specified crimes during a specified time period. The Department declined to produce records relating to juveniles, and redacted identifying information concerning victims, subjects and witnesses. KRS 61.878(1)(a) exempts from the open record laws information of a personal nature where disclosure would constitute a clearly unwarranted invasion of privacy. The Court of Appeals held that the personal information could be redacted, and in the case of juveniles, names could be withheld as well.

Premises Liability

Natural Accumulations


Carter v. Bullitt Host, LLC, 2013 WL 1688338 (Ky.App. April 19, 2013), review granted February 12, 2014 (2013-SC-000325-DG). Previous Report

This case joins several others pending before the Supreme Court dealing with duty and natural accumulations. We can expect the Court to reconcile this line of cases with its decision in Shelton v. Kentucky Easter Seals Society, Inc ., 413 S.W.3d 901 (Ky. 2013).

Natural Accumulations


Bruner v. Miami Management Company, Inc., 2011 WL 1484056 (Ky.App. April 27, 2012), review granted December 20, 2012 (2012-SC-000318-DG).

Wendy's opened its store even though the area had been blanketed with snow, ice and sleet. Despite weather warnings not to drive, Mr. Bruner drove to Wendy's to meet his wife for lunch. He saw that the lot had been plowed, but did not see any evidence that it had been salted. When he got out of his vehicle he slipped on ice. The Court of Appeals, in a 2-1 opinion, found that the Supreme Court created a duty to remedy such a condition in Kentucky River Medical Center v. McIntosh, 319 SW 3d 385 (Ky. 2010). The dissent correctly observed that the majority opinion misreads the McIntosh opinion, but since the author of the majority opinion has just been appointed to the Supreme Court, the status of the longstanding natural accumulation rule may be in play. Or perhaps the Court accepted review in order to correct the error.

Procedure

Class Actions


Merck & Co. v Ratliff, 2011 WL 413522 (Ky.App. February 10, 2012), review granted November 14, 2012 (2012-SC-000162-DG). Previous Report

The Court of Appeals disallowed the certification of a class comprised of persons who had taken Vioxx without physical injury but had incurred the expense of a health screening.

Product Liability

Failure to Include Safety Features


Nissan North America, Inc. v. Messerly, 2011 WL 6004318 (Ky.App. December 2, 2011), review granted September 20, 2012 (2012-SC-000109-DG) and November 14, 2012 (2012-SC-000615-DG). Previous Report

The Court accepted review of this split decision allowing a jury to determine that an automobile that does not contain the latest safety devices in an automobile. Needless to say this should be reversed, but the intrigue lies in what guidance the Court may provide in the process.

Professional Liability

Medical Malpractice - Informed Consent


Sargent v. Shaffer, 2013 WL 375541 (Ky.App. February 1, 2013), review granted December 19, 2013 (2012-SC-000109-DG).

The plaintiff suffered paralysis following back surgery, and brought suit claiming negligence in the surgery and lack of informed consent. Having lost with the jury, plaintiff challenged the jury instructions on informed consent. Specifically, plaintiff argued that the instruction should mirror the language of KRS 304.40-320. The Court of Appeals rejected the contention as should the Supreme Court. There is also an issue concerning a demonstration at trial, and this could be the point of interest for the Court.

Medical Malpractice - Informed Consent


Miller v. Fraser, 2012 WL 6061720 (Ky.App. December 7, 2012), review granted September 19, 2013 (2013-SC-000829-DG). Previous Report

The trial court excluded expert testimony to the effect that informed consent was not given with respect to a medication, on the ground that informed consent was only necessary in connection with surgical procedures. The Court of Appeals reversed, but we can expect the Supreme Court to hold that informed consent can apply to any treatment which has risks.

Evidence of Prior Discipline


Branham v. Rock , 2012 WL 4743138 (Ky.App. October 5, 2012), review granted June 12, 2013, 2012 (2012-SC-000109-DG). Previous Report

The primary issue before the Court of Appeals was the exclusion of evidence of prior discipline and prior test failure that was not related to the allegations in the case.

Medical - Agency Relationship Between Hospital and Physician


Grubb v. Norton Hospitals, 2010 WL 2787982 (Ky.App. July 6, 2010), review granted April 26, 2012 (2010-SC-000532-DG).

This opinion being reviewed deals with the challenge of jurors for cause, but the basis for review is more likely the agency issues addressed. The Court of Appeals panel agreed with the trial court that the physicians were not the agents, real or ostensible, of Norton Hospital where the contract was with a subsidiary of Norton's parent, which was a separate legal entity. The Court also held that an on-call physician was not the agent of the attending physician. The Court also approved the trial court's exclusion of evidence of liability insurance offered to show common control.

Trespass

Trespass - Willful versus Innocent


Crutcher v. Harrod Concrete and Stone Company, 2013 WL 1163945 (Ky.App. March 22, 2013), review granted June 11, 2014 (2013-SC-000549-DG). Previous Report

The Court held that the proof supported a finding of willful trespass, primarily based on the fact that the trespasser could have done more to establish the boundary. In effect it equated negligence with willfulness. The Court of Appeals also held that limestone would be treated the same as coal for purposes of damages.