Kentucky Supreme Court
Employment – Violation of Public Policy- Concealed Carry
Mitchell v University of Kentucky, 366 S.W.3d 895, (Ky. April 26, 2012).

Mitchell was a graduate student and was employed by the University of Kentucky Medical Center. He also had a license to carry a concealed weapon. Co-workers reported to administration that Mitchell had a firearm in his locker. He denied the report and no firearm was found. Mitchell advised University police that he did have a firearm in his vehicle, which was parked on University property. He was suspended pending an investigation. He was ultimately terminated for violating policy against firearms on University property.

The court acknowledged at the outset that a public university had a right to control the use of its property. KRS 164.975(1). Further, while it is a crime to carry a concealed weapon, an explicit exception is set forth in KRS 527.020(8) where a weapon is kept in a glove compartment in an automobile. The same statute further provides that no person or organization can prohibit the carrying of weapon in the glove compartment. The Court then concluded that, assuming the firearm was in Mitchell’s glove compartment, his termination was in violation a of well established statutory public policy. This ruling would apply to any employee, whether or not the employee had a license to carry the firearm.

The court held that Mitchell’s statutorily protected rights under the concealed carry law were violated as well. KRS 527.020(4) precludes any person from prohibiting a license holder from keeping a firearm in his or her vehicle. The Court held that this statutory provision takes precedence over the general provision allowing the university to control its property. For similar reasons, the court held that a claim could also be based on KRS 237.106(4), which provides for a cause of action where an employer punishes an employee for exercising the rights set forth in KRS 237.106.

Kentucky Supreme Court
Employment - Whistleblower
Wilson v Central City , 372 S.W.3d 863, 2012 WL 1450136 (Ky. April 26, 2012).

A former employee brought an action against his employer alleging that his termination was in retaliation for reporting alleged misconduct, relying on KRS 61.101.That statute defines an employer as the Commonwealth or a political subdivision thereof. The Court held that a city was not a political subdivision and therefore a city employee could not rely on the statute.

Kentucky Court of Appeals
Abuse of Process – Improper Motive
Williams v Cline , 2012 WL 1365964 (Ky.App. April 20, 2012), motion for discretionary review denied December 12, 2012, opinion ordered de-published.

The portion of the case dealing with abuse of process is obiter dicta since the holding turned on immunity, but this may have significant ramifications on the civil side. The underlying case was criminal, and apparently a person who resembled and may have been related to the criminal was incarcerated and charged. At a pre-trial hearing, the prosecutor offered to dismiss the charges in exchange for a stipulation that the Commonwealth had probable cause to bring the claim, which was accepted. The plaintiff alleged that the motive for the offer was to protect the prosecutor from a malicious prosecution case, which was an improper motive. She claimed that the prosecution was in possession of exculpatory evidence at that time. The Court held that the claim raised a jury issue as to improper motive.

On the civil side, it is common for plaintiff’s attorneys, particularly in medical liability and product cases, to sue a number of defendants, and as the proof clears defendants the parties are dismissed in exchange for a covenant not to sue. It is difficult to see how this dicta would not apply. If the defendant has no liability, the plaintiff has a duty to end the litigation. Threatening to maintain groundless litigation unless a covenant not to sue is executed would seem to be the same improper motive. Of course, being dicta, and an intermediate court opinion, there is plenty of room for the Supreme Court to disagree. Plus, the Court would have to find that an agreement not to sue did not apply to the improper extraction of that promise.

Kentucky Court of Appeals
Malicious Prosecution – Prosecutorial Immunity
Williams v Cline , ___ S.W.3d ___, 2012 WL 1365964 (Ky.App. April 20, 2012), motion for discretionary review filed May 18, 2012 (2012-SC-299-D).

Once a formal prosecution is commenced, a prosecutor has absolute immunity for all conduct which occurs within his lawful authority, regardless of good faith. Prior to that, however, the immunity granted a prosecutor is qualified, and will apply only if the conduct was accompanied by good faith. The opinion implies but does not make an assessment of whether the facts supported a finding of bad faith, although the facts recited would suggest good faith.

Kentucky Court of Appeals
Malicious Prosecution – Probable Cause
Williams v Cline , ___ S.W.3d ___, 2012 WL 1365964 (Ky.App. April 20, 2012), motion for discretionary review filed May 18, 2012 (2012-SC-299-D).

A prosecutor offered to dismiss criminal charges on the condition that the criminal defendant stipulate that there was probable cause to proceed. The criminal defendant agreed, then filed suit alleging malicious prosecution. The prosecutor raised the stipulation as a defense to the probable cause element of the tort. The Court first noted that such a stipulation passed constitutional muster so long as the stipulation was entered into voluntarily and without prosecutorial misconduct. The Court held that the same criterion would determine whether the stipulation was effective to negate a malicious prosecution action.

Kentucky Court of Appeals
Malicious Prosecution – Relationship with Negligence
Williams v Cline , ___ S.W.3d ___, 2012 WL 1365964 (Ky.App. April 20, 2012), motion for discretionary review filed May 18, 2012 (2012-SC-299-D).

While this opinion primarily dealt with abuse of process and malicious prosecution against a public prosecutor, the plaintiff also alleged that the prosecutor was negligent in its investigation. The Court discusses the role immunity would have, but glosses over the rather obvious problem, the absence of any duty. If the prosecutor were to be determined to owe a duty to exercise ordinary care to a criminal defendant, then the Court would have sanctioned a claim for negligent prosecution, which of course does not exist. This most likely was a mere oversight, but if this case stands it will be cited as relaxing the tort of malicious prosecution, allowing negligence to substitute for malice.

Kentucky Court of Appeals
Breach of Fiduciary Duty
Pallet v Monticello Banking Co., 367 S.W.3d 1, 2012 WL 1370878 (Ky.App. April 20, 2012)

The plaintiff was denied a loan, and a loan was made to another company. The president of the bank subsequently took a position with the company that obtained the loan. The plaintiff alleged that this was a conflict of interest and a breach of fiduciary duty. This case is significant because it seeks to draw some lines around the otherwise amorphous fiduciary duty concept. The court observed that ordinarily banks are not fiduciaries of their customers. It further observed that in cases where a fiduciary duty had been imposed on banks, the bank had profited by confidential information provided to it by the customer. The court held that this was not alleged here, and this appears to be correct. It is not clear that profit is the key, however, and a better formulation would require the use of confidential information in an attempt to advance its own interest at the expense of the customer. This same type of rationale should apply to professionals such as attorneys, accountants, etc.

Kentucky Court of Appeals
Interference with Contract – Essential Elements
Pallet v Monticello Banking Co., 367 S.W.3d 1, 2012 WL 1370878 (Ky.App. April 20, 2012)

An essential element of this tort is the existence of a contract. An allegation of an informal agreement that a loan would be extended, the Court held, did not satisfy the contract element of the tort.

Kentucky Court of Appeals – Unpublished
Exclusive Remedy – Up the Ladder Immunity
Hogg v ARCO National Construction Co., 2012 WL 1365858 (Ky.App. April 20, 2012)

Plaintiff Hogg sustained a work related injury and obtained a workers’ compensation award from Labor Ready. Labor Ready had contracted with ARCO to supply temporary employees to clean a dormitory ARCO was constructing before final completion. Labor Ready was required under the contract to provide workers’ compensation insurance. Hogg filed a tort suit against ARCO alleging negligence and violations of KOSHA. The Court held that the dormitory cleaning qualified as work of a kind that was regular and recurrent in ARCO’s business, and thus dismissed Hogg’s tort claim against ARCO.

Kentucky Court of Appeals
Professional Liability – Medical – Failure to Diagnose
Gill v Burress, M.D., 382 S.W.3d 57, 2012 WL 1231967 (Ky.App. April 13, 2012), motion for discretionary review denied November 14, 2012.

Gill, a female in her early forties, saw Dr. Burress for treatment, which included breast exam, but allegedly did not recommend a follow up mammogram. Subsequently, Gill detected a lump by self-examination, sought a mammogram, which resulted in a stage II or IIA diagnosis. Gill then underwent treatment that included radiation, a lumpectomy, chemotherapy and ovary removal. There was evidence that, following the treatment, Gill was disease free and it was more likely than not that Gill would remain disease free.

In her suit alleging a failure to diagnose earlier, Gill claimed damages as follows: 1) mental anguish due to an increased fear of cancer recurrence or death; 2) for the chemotherapy and ovary removal, 3) a five to twenty-five percent decrease in the chance of remaining cancer free, and 4) future medical treatment relating to a potential recurrence of cancer. The trial court dismissed all claims. In a sense, this case focuses on the conflict between two lines of cases previously highlighted here. In Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984), the Kentucky Supreme Court permitted recovery for possible future complications. More recently, in Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2009), the Court declined to allow a claim for loss of a chance. In so doing, the Court rejected the underlying thesis of Davis, at least to the extent future medical expense was allowed, which is that is sufficient to show it is probable that a potential loss will occur.

The Court of Appeals held that mental anguish related to increased fear of cancer recurrence was compensable. The idea is that while recurrence or cancer related death may be a mere possibility, it may be probable that worry over that possibility may cause emotional distress. How a reasonably jury is supposed to separate the emotional distress that would have occurred in any event from the alleged increase is ignored, as is the question of whether it is reasonable to think that a person is really less concerned about a risk of future cancer because it is slightly less likely. But practice often fails to meet theory in these cases. The Court also held that damages related to chemotherapy and ovary removal were compensable. This was based on its conclusion that the proof supported a finding that these would have been avoided had an earlier diagnosis been made. While its reading of the proof may be suspect, the logic works here. The Court, however, rejected the claim for recovery for decreased chance of remaining cancer free, and for possible future medical expense based on Kemper, just as we earlier predicted it should. Look for this case to show up on the Supreme Court’s docket.

Kentucky Court of Appeals
Automobile Liability
Golden v Paintsville City Utilities, 2012 WL 1139318 (Ky.App. April 6, 2012), motion for discretionary denied February 13, 2013, opinion ordered de-published.

This is a rare summary judgment in an automobile accident case. The plaintiff was in a standing vehicle when he was stuck by a vehicle owned by the defendant and operated by an employee, Larry Herald. It was undisputed that Herald was in his lane of travel until he was struck by a third vehicle which suddenly turned into Herald’s lane of travel. The Court affirmed summary judgment based on the absence of a breach of duty. However, it is suggested that Herald fishtailed at one point in an effort to avoid the vehicle which suddenly appeared. Since the vehicle did not leave its lane of travel, the court correctly based the decision on the absence of a breach. Had Herald’s vehicle left its lane in the effort to avoid, however, summary judgment would have still been appropriate but based on sudden emergency.