Kentucky Court of Appeals - Unpublished
Professional Liability - Medical - Battery
Seaton v. Patterson, 2012 WL 6651885 (Ky.App. December 21, 2012), motion for discretionary review filed January 16, 2013 (2013-SC-000048-D), denied November 13, 2013.

This case achieved a certain degree of infamy in the Kentucky press, which of course reported the case in sensational fashion. The plaintiff went into surgery expecting a circumcision, and awoke with an amputated penis. Plaintiff claimed that this was performed without consent and under circumstances that did not constitute an emergency, and was therefore a battery. The jury found for the surgeon, and thus on appeal plaintiff argued that he was entitled to a verdict as a matter of law. The Court found that he had in fact consented to the procedure, because the consent he signed contemplated unforeseen or unknown conditions, in this case penile cancer.

Kentucky Court of Appeals - Unpublished
Insurance - Bad Faith - Unfair Claims Settlement Practices Act
Martindale v. First National Insurance Company of America, ___ S.W.3d ___, 2012 WL 6632774 (Ky.App. December 21, 2012), motion for discretionary review denied March 12, 2014 and depublished (2013-SC-301-D)

While this opinion lacks any profound insights or detailed analysis, it may prove to be a most helpful precedent. The factual predicate of this bad faithclaim is the most common one found among third party claimants who bring these suits. Basically, they are aggrieved that the liability insurer did not agree with them concerning value, and as a result they had to try their case. The Court in this case makes it clear that this is not enough to sustain a cause of action, and that even if the insurer was wrong about its valuation, that standing alone itself did not prove bad faith.

Kentucky Court of Appeals
Duty - Firefighter's Rule
Rice v. Vanderespt, 389 S.W.3d 645, 2012 WL 6632826 (Ky.App. December 21, 2012), motion for discretionary review November 21, 2013.

The plaintiff is a police officer who was injured in responding to a call of domestic violence. Upon arrival, she saw a man come out of the house naked with blood dripping from his face. She called for backup, but before it could arrive the man jumped off the porch and advanced toward her. She lost her weapon to the man, who fired shots striking Rice and bystanders. The defendants were the landlords of the man who shot Rice. The Court held that the trial Court properly dismissed the claims based on the Firefighter's Rule, which is a form of assumption of risk. The failure of the landlord's to evict the tenant (assuming that such was a tort) did not create a risk of injury beyond that which is inevitably involved in responding to a domestic violence call.

Kentucky Court of Appeals - Unpublished
Statute of Limitations - Discovery Rule
Hawk v. Air-Tite Window Company, 2012 WL 6632752 (Ky.App. December 21, 2012)

The plaintiff brought suit for improper installation of replacement windows, which caused moisture damage to the house into which they were installed. The Court suggested that the claim was governed by KRS 413.120(4), and more than five years had elapsed when the complaint was filed. The plaintiffs argued that the discovery rule saved their cause of action. The Court did not reject the application of the discovery rule, but instead determined that plaintiffs were on notice of a problem when they first noticed brown staining on their carpet near the window location.

Kentucky Court of Appeals
Experts - Daubert
Ries v. Oliphant, ___ S.W.3d ___, 2012 WL 6632511 (Ky.App. December 21, 2012), motion for discretionary review filed January 22, 2013 (2013-SC-000059-D)

In this medical malpractice case, a central issue was whether the maternity patient's blood loss occurred before or after admission to the hospital. The defense offered expert testimony from Dr. Goldsmith, who said he could calculate the rate of blood loss, and that based on his calculations the significant blood loss occurred at home. The trial Court did not conduct an actual Daubert hearing. Goldsmith's opinion was based on a mathematical formula based on 1) the total blood volume, 2) hematocrit level and 3) the rate of equilibrium of a human fetus in utero. The plaintiff challenged his opinion on the ground that Goldsmith used the equilibrium rate for an adult or child human, as opposed to a fetus in utero.

The opinion says that Goldsmith admitted to knowing of no scientific study or other objective source setting the rate of equilibrium for a fetus in utero, and in a brief it was admitted that this rate was impossible for medical science to determine. Goldsmith apparently justified the use of this rate because of the fact that equilibrium occurs in humans and animal studies in which an in utero rate was determined. The Court's analysis treated these as two distinct issues, and most likely the science would support them being analyzed in tandem. The Court holds that the fact that equilibrium in adult and child humans is not relevant to the rate in utero answers a question likely not asked. The purpose of that leg of the argument is not to show the rate, but rather that there is a rate. It was the animal studies from which Goldsmith drew the rate. The Court rejected any reliance on animal studies not because it was shown to be improper, but because the Court felt that no evidence was offered as to the significance of the animal studies. At the risk of being cynical, it is most likely that the opinion does not fully recite the facts on this issue.

The seriousness of the analysis is a welcome development, but it should be noted that this came in the context of a defense witness. We doubt the same judge's would have done much more than defer to discretion and the expert supported recovery. But in any event, we wonder if the Court realized the possible import of its analysis. Critical is its conclusion that the equilibrium rate for a fetus in utero cannot be determined. If this is true, how can the plaintiff ever prove the opposite. If a fact cannot be known, then the party with the burden of proof loses. Of course, there may have been alternative was to prove when the critical blood loss occurred, but if there was such proof it was not mentioned in the opinion, and likely would have been.

Kentucky Court of Appeals
Governmental Liability - Qualified Immunity
Wales v. Pullen, 390 S.W.3d 160, 2012 WL 6632822 (Ky.App. December 21, 2012)

The plaintiff was involved in a motorcycle accident when he struck tree branches that were in the street. This occurred about four days after a windstorm that downed power lines and trees throughout the city. Storm was the city engineer. The city had a tree cleanup system, but by statute it was the responsibility of the city engineer to remove trees. The Court held that the fact that Storm claimed he was unaware of the statute was of no significance in determining whether he acted as to a ministerial function in failing to remove the trees. How plaintiff will prove negligence when others in the city had undertaken responsibility for tree removal will be interesting.

Kentucky Supreme Court
Emotional Distress
Osborne v. Keeney, 399 S.W.3d 1, 2012 WL 6634129 (Ky. December 20, 2012), petition for rehearing denied June 20, 2013

It was just a matter of time, we suppose, but the Court has decided to dispense with the impact rule in claims of emotional distress without physical injury. The opinion reflects a significant level of naiveté about litigation and insurance, but that is by itself not surprising. It is also not the first time the Court has abandoned a long-standing principle because it felt that it was too difficult to apply, as assumption of risk met the same fate. We suppose that increasing our expectations for judges, lawyers and law schools would just be too much to ask. The new rule will not be an easier to apply, but does have the positive of shifting the responsibility for its application from the judiciary to the mental health "profession". Why the Court thought they could do this better remains a mystery. The real purpose of the impact rule was to protect from fraud, and this adaptation most likely does little more than make the mental health profession a party to it.

Henceforth, a plaintiff can recover for negligently inflicted emotional distress if the plaintiff can show that the emotional injury is "severe" or "serious." In determining what constitutes a "severe" or "serious" emotional injury, the Court offers the following:

• such an injury occurs where a reasonable person, normally constituted, would not be expected to endure the mental stress engendered by the circumstances


• distress that does not significantly affect the plaintiff's everyday life or require significant treatment will not suffice


• expert medical or scientific proof must be offered to support the claimed injury or impairment


• Tennessee cases may provide guidance as to the intent of the Kentucky Court in this regard

The foregoing appears to require an objective standard, which should mean that preexisting mental conditions would not be relevant in determining whether the threshold has been met. Also, when it comes to experts, the Court inserts the term medical, which should exclude psychologists or social workers as experts. It is possible, however, that the Court was simply being imprecise in this respect.

This ruling will be retroactive. The Court dismisses the idea that this has in other states, or will in Kentucky, increase litigation, but the Court has no way of knowing this. It would be shocking if we do not see a significant number of amended pleadings following this ruling. It should also create significant coverage problems in cases that previously would not have been covered by liability insurance. Any case that claims something other than bodily injury is a candidate for abuse of this ruling, and simply adding an emotional distress claim can potentially create coverage where none would otherwise exist. At a minimum, insurers writing in Kentucky should expect an increase in defense costs, and we would expect this to result in increases in premiums.

Kentucky Supreme Court
Professional Liability - Attorneys - Case Within the Case
Osborne v. Keeney, 399 S.W.3d 1, 2012 WL 6634129 (Ky. December 20, 2012), petition for rehearing filed January 14, 2013

This was a case where the attorney allegedly missed the statute of limitations. The underlying claim was for injuries sustained when a general aviation aircraft crashed into plaintiff's house. For discussion of the Court of Appeals opinion, click here. There was no dispute about the fact that plaintiff was required to show that she would have been successful in the underlying action, and that her recovery would be based on that (this opinion does not deal with the question of whether the recovery is less attorney fees). This opinion reaffirms that principle.

Due to some unfortunate language contained in the previously landmark case on this issue, Marrs v. Kelly, 95 S.W.3d 856 (Ky. 2003), which has prompted some plaintiff attorneys to suggest that the jury should only be instructed as to substantial factor, presumably leaving it to experts and counsel to argue what the standard of liability applies to the underlying case. This case clarifies that the jury should be instructed as to the case within the case just as it would have been instructed in the underlying action.

The holding of this opinion will be straightforward in application in cases where the underlying case was subject to jury trial. But what if the alleged negligence is missing an appeal? Will a jury be allowed to determine what an appellate court would do? This should be an issue of law for the court on the question of whether the appeal would have been successful, but for the jury if it must be determined what would have occurred had the case been retried. It will also be interesting to see how this case applies to administrative matters, such as workers' compensation. While this opinion does not answer all questions on this point, it sets Kentucky law on a reasonable track for a fair resolution of these cases.

Kentucky Supreme Court
Professional Liability - Attorneys - Punitive Damages
Osborne v. Keeney, 399 S.W.3d 1, 2012 WL 6634129 (Ky. December 20, 2012), petition for rehearing filed January 14, 2013

The Court held in this case that a plaintiff in a legal malpractice action cannot recover punitive damages that might have been awarded in the underlying action from the attorney. As the Court notes, this is consistent with the general principle that punitive damages are unavailable where they cannot serve as a deterrent, such as where the tortfeasor is dead. The dissent argued that punitive damages in the underlying case become compensatory in the legal malpractice case.

One unfortunate aspect of this case is that, the Court has once again suggested, without any rationale, that punitive damages can be sought in a legal malpractice case. Worse yet, it suggests that the standard is gross negligence, even though the jural rights doctrine would not be applicable to legal malpractice cases. The court and lawyers alike seem to assume that an action for legal malpractice is a tort, but it has always be a contract action. We are aware of no opinion where a conscious decision was made, or a rationale was given, for changing this. It may be too late, but the defense bar needs to wake up on this point.

Kentucky Supreme Court
Dram Shop - Knowledge of Intoxication
Fort Mitchell Country Club v. Lamarre, 394 S.W.3d 897, 2012 WL 6634310 (Ky. December 20, 2012), petition for rehearing denied April 25, 2013

The plaintiff was injured in an accident involving the operation of a golf cart. The operator of the cart and the plaintiff had been drinking wine with dinner. This case involves a private country club which apparently serves members their own alcohol, and is the holder of a special private club license under KRS 243.270. The trial Court granted summary judgment based on the provisions of the Dram Shop Act, KRS 413.241, and the Court of Appeals reversed on the ground that the Act did not apply to a private club.

The Supreme Court reinstated the trial Court's ruling, and its decision primarily turns on the absence of evidence that Mr. Plummer appeared to be intoxicated at the time served by the club. The Court of Appeals said little about this issue, and seemingly assumed it to be shown from the volume of alcohol consumed. The most important aspect of this decision addresses this very point. Liability under the Dram Shop Act is not premised on the amount of alcohol consumed, but on how the customer appeared at the time of service.

The Court noted that the only proof of the operator's intoxication was that the four of them consumed two bottles of red wine over dinner. There was no proof as to the amount consumed by the individuals. More importantly, there was no evidence that, while at the club, the operator's speech was slurred, and the club employees did not believe he was intoxicated. The Court of Appeals opinion suggests that later the operator may have been playing the music loud and driving haphazardly. The Supreme Court did not mention this proof, but since it was after service by the club it was not relevant to how things appeared at the time of service.

A lone dissent makes the point that strictly speaking a licensor under KRS 243.270 does not come within the provisions of the Dram Shop Act. The majority never really explains this, but it is hard to see how this would change the result in this case. If the second section of the Act did not apply, then there would be no basis for liability because the primary point of the statute is to negate the Court's prior rulings as to causation. Even if the Court ignored this detail, a pure negligence action would require a showing that the customer appeared to be intoxicated when served.

Kentucky Court of Appeals
Experts - Daubert
Jackson v. Ghayoumi, ___ S.W.3d ___, 2012 WL 6214169 (Ky.App. December 14, 2012), motion for discretionary review denied February 12, 2014

This was a suit for professional negligence against a chiropractor, in which the plaintiff claimed electronic stimulation treatment modalities administered to her neck caused her to miscarry at six weeks. The plaintiff sought to prove the causal connection through expert witness Dr. Priver, presumed to be an M.D. The trial Court struck Dr. Priver's testimony after a Daubert hearing.

Dr. Priver testified that he had no knowledge regarding the delivery of electrical stimulation to the body, how electricity is conducted by the body, or how electrical stimulation to the neck could cause a miscarriage. His sole source of information was the manuals to the machines, which did not deal with whether a miscarriage could result from use. The Court affirmed the trial Court's ruling excluding Dr. Priver and that expert testimony was necessary for the case to proceed.

The only disconcerting part of the opinion is that the Court states that its review is under an abuse of discretion standard. It is hard to believe, however, that the Court would have affirmed a ruling allowing such testimony. It is not hard, however, to believe that there are Circuit Courts in Kentucky where such testimony would be allowed. This case should not be read to say that what is science in one county is not science in another, but that does not mean that it won't be so read.

Kentucky Court of Appeals
Insurance - UIM - Named Insureds
Sparks v. Trustguard Insurance Company, 389 S.W.3d 121, 2012 WL 6213770 (Ky.App. December 14, 2012)

This case refutes an attempt to obtain a lower premium by lying to the insurer but then collect coverage on a risk the insurer did not agree to take. Mr. King purchased an automobile policy which included underinsured motorist coverage, and listed a Camaro as a covered automobile. The Camaro, however, was not owned by King, but was instead owned by King's girlfriend. Following an accident, she wanted to recover UIM benefits under the policy. She obviously did not meet the definition of family member and therefore was not a named insured.

The plaintiff advanced a novel argument which she called the de facto insured rule. This seems to be largely based on the idea since Sparks had the insurable interest in the vehicle, KRS 304.14-060, then she was entitled to the insurance proceeds. The Court rejected the argument, noting that the insurable interest statute would have the effect of voiding the policy as to the Camaro, not adding a named insured. More importantly, insurable interest relates to recovery for the damage to the property, and has nothing to do with UIM coverages which are personal in nature.

The Court also rejected several other theories. One was estoppel, and the Court held that an insurer had no duty to investigate the statements made by an insured in the application. Another was that the contract was illusory, which is really silly given the fact that plaintiff was not even on the policy. The cases cited show that this defense has been misunderstood by the Court before, so perhaps the plaintiff cannot be faulted for trying it.

Kentucky Court of Appeals
Premises Liability -Duty of Landowner
Brock v. Louisville Metro Housing Authority, 2012 WL 6214303 (Ky.App. December 14, 2012), motion for discretionary review denied August 21, 2013 (2013-SC-000035-D), opinion ordered de-published

The plaintiff was an employee of a dog-grooming and kennel business, and apparently one of her jobs was to exercise the animals. On the day in questions she took a husky for a walk, using the same route she routinely used. A portion did not have a sidewalk, and the opinion suggests that plaintiff walked on the street itself. The husky stopped to take care of his puppy business at a tree located on property owned by the defendant. When done, the husky pulled the plaintiff onto the grassy area, where she stepped into a hole and fell. The hole was several inches deep and covered by grass and leaves. The trial Court dismissed the case on the ground that plaintiff was a trespasser and owed no duty.

The decision turns on whether the plaintiff was a trespasser or a gratuitous licensee. An implied (or gratuitous) license arises from the lack of objection to a "customary and habitual use" by the public. This panel concluded that it was for the jury whether the landowner knew or should have known of the use, but there is nothing in the opinion to suggest that there was a "customary and habitual" use in the first place. Even this plaintiff did not intend to use the defendant's property. Counsel made argument as to how use might have occurred, and the Court made the all too common mistake of confusing conjecture by counsel with facts supported by evidence. At the end of the day, it would appear that this panel would impose a duty on a landowner as to land which adjoins a public road.

Kentucky Court of Appeals
Exclusive Remedy - Physical Aggression Exception
Jones v. Dougherty, 412 S.W.3d 188, 2012 WL 6213723 (Ky.App. December 14, 2012), motion for discretionary review denied November 13, 2013 (2013-SC-000036-D)

Jones, a teacher, was injured when Daugherty, an assistant principal, entered Jones' office holding a snake. Jones screamed and ran into a wall. Daugherty stood there with the snake and said Jones must be a sissy because she was afraid of her friend. Jones claimed injuries to her knees, heart and post traumatic stress syndrome. Apparently, Jones had filed a claim for workers' compensation benefits. In addition, Jones brought this civil action against her employer, the Board of Education, and her co-worker, Cynthia Daugherty. The trial Court granted summary judgment on the ground that Jones' claims were barred by the exclusive remedy provision in KRS 342.690.

The Court dispensed with the claims against the employer without much discussion at all. In order for an employee to sue his employer, he must show that the employer acted with a deliberate intention to cause the injury, KRS 342.610(4), and in this case the Board was not involved at all.

The exception that determines when a co-worker can be sued is found in KRS 342.690(1), and uses different language. A co-worker loses immunity if the plaintiff can show "the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee". It would seem clear that this exception is describing an assault or battery, but this opinion does not reach that level of specificity. The Court does say that the word 'wilful' suggest voluntary and intentional, but does not necessarily suggest malice. Physical refers to the body, not the mind, and aggression means an unprovoked attack or act of hostility. It is clear that the facts alleged did not come close to meeting this standard.

There is an extensive discussion of the concept of horseplay in the opinion, but it is not clear why. At one point language suggests the Court though horseplay was an exception to the exclusive remedy provision, but the role of horseplay is to remove an employee from the scope and course of his employment in the first instance. We think the Court engaged in a detour in this respect, but the opinion remains of value in clarifying the scope of the exclusive remedy provision.

Kentucky Court of Appeals
Employment - Whistleblower Statute
Rogers v. Pennyrile Allied Community Services, Inc., ___ S.W.3d ___, 2012 WL 6214354 (Ky.App. December 14, 2012), motion for discretionary review granted September 18, 2013 (2013-SC-000012-DG)

The plaintiff was an employee of the defendant, Pennyrile Allied Community Services, Inc., as a consumer educator coordinator. She claimed that she was terminated in retaliation for her having "reported" a crime to the local sheriff. The crime was that her supervisor visited her house to make sure she was doing her job. The trial Court dismissed the claim because the "report" did not involve a matter of public concern. This panel reversed, finding that there was no requirement that such a report be of public concern. while the panel is correct that the words "public concern" are not used in the statute, KRS 61.102(1), the opinion does not explain how the reporting of a private concern can constitute "whistleblowing", and the language used in the statute clearly suggests a concern for reporting of public wrongs. The Supreme Court should probably take this case and decide the issue.

Kentucky Court of Appeals
Vicarious Liability - Scope and Course
Collins v. Appalachian Research and Defense Fund of Kentucky, Inc., 409 S.W.3d 365, 2012 WL 6061749 (Ky.App. December 7, 2012), motion for discretionary review denied September 18, 2013 (2013-SC-000018-D)

Neumann was an attorney employed by Appalachian. On the morning of the accident, Neumann had run a number of errands, and had advised the office she would be late for that reason. When done she went to her father's house, and from there left for the office. On the way to the office she was involved in an automobile accident. The trial Court granted Appalachian's motion for summary judgment, and this opinion contains favorable language as to the summary judgment standard and scope and course analysis.

What is interesting about this opinion is that the Court actually performed its gatekeeping function. Collins attempted to create a factual issue to contradict the narrative offered by Neumann in her testimony. First, Neumann was asked in her deposition if she was at the Taylor County Courthouse before the accident, and she said she did not remember that. She conceded that had she been there it would have likely been on Appalachian business. Second, Collins offered the affidavit of a social worker who overheard someone at Russell District Court say that Neumann had been in an accident and her cases would need to be continued. There was no evidence that Neumann was actually scheduled to be in court the day of the accident. The idea was that this "proof" showed that Neumann was traveling between court appearances at the time of the accident, which in turn would place her on her employer's business. The Court rejected the attempt to create an issue of fact with hearsay and supposition.

Kentucky Court of Appeals
Limitation of Actions - Death - Loss of Affection
Potter v. Boland, 2012 WL 6061730 (Ky.App. December 7, 2012), motion for discretionary review denied October 16, 2013 (2013-SC-000017-D)

The Court of Appeals held in this case that a parental claim for loss of affection for a deceased minor must be brought in one year from death. While the Court makes the common error of calling such a claim loss of consortium, that phrase refers to spouses and encompasses the loss of sexual services, which should not be pertinent to a parental or minor claim. This pet peeve aside, the Court decided that such a claim must be brought within one year of death, citing KRS 413.140(e). This is not the last word, and the analysis does not necessarily apply to non-medical death actions, although it should.

The dissent argued that such a claim should be saved by the tolling provision set out in KRS 413.180. The dissent's view seems based on the idea that the loss of affection claim is to be brought by the estate, but this does not seem to be the case.

Kentucky Court of Appeals
Professional Liability - Medical - Informed Consent
Miller v. Fraser, ___ S.W.3d ___, 2012 WL 6061720 (Ky.App. December 7, 2012), motion for discretionary review filed December 21, 2012 (2012-SC-000829-D)

The sixteen year old plaintiff presented at an urgent care clinic complaining of abdominal pain, vomiting and headache. A consent form was signed by his mother, which permitted the clinic to run diagnostic tests and to provide medical treatment as necessary in the judgment of the staff. Dr Fraser diagnosed abdominal pain and prescribed ketorolac, Rocephin and Phenergan. The patient returned to the clinic the next day, and was seen by Dr. Grace. Dr. Grace ordered a CT scan, which led to a diagnosis of irreversible renal failure.

The plaintiff challenged the administration of ketorolac, and offered proof that the dosage was inappropriate given the patient's age, or whether it should have been given with the history of vomiting. There was also proof that it was contraindicated because the patient was dehydrated, although Dr. Fraser noted no dehydration when he saw the patient. There was also some proof that the renal damage was caused by the ketorolac (actually the opinion says expert proof was offered that ketorolac could have caused the damage, but hopefully this is loose language).

The trial Court declined to allow plaintiff to offer expert testimony to the effect that Dr. Fraser should have obtained informed consent. This was apparently based on the idea that informed consent only applied to surgical procedures. The Court of Appeal, acknowledging that the issue was one of first impression, held that the evidence should have been allowed. The Court refers to the informed consent statute for support, KRS 304.40-320, but this is misplaced since the statute is silent on the issue of when informed consent is required.

Kentucky Court of Appeals
FELA - Causation
Cooke v. CSX Transportation, Inc., 408 S.W.3d 752, 2012 WL 6061717 (Ky.App. December 7, 2012), motion for discretionary review denied October 16, 2013 (2013-SC-000011-D)

This case deals primarily with jury instructions on the issue of causation in FELA cases brought in state Court. While federal substantive law applies to determine what must be shown to establish causation, how the jury instruction is formulated is a matter of state law so long as no federal substantive policy is violated. In most jurisdictions this would be of little or no significance. However, Kentucky courts utilize what is often called the bare-bones approach to instructing the jury, which in practice means the jury is given only a general statement of law.

This was the second appeal, and on the prior appeal the Court of Appeals had directed that the jury be instructed using language such as "caused, in whole or in part&quo; or "played any part, even the slightest", and the trial court used the former language. Following the verdict, the United State Supreme Court approved an jury instruction which defined cause as "played a part‐no matter how small". CSX Transportation, Inc. v. McBride, ___ U.S. ___, 131 S.Ct. 2630, 2635 (2011). The Court of Appeals held that the language choices it had offered in its initial opinion were synonymous and thus both satisfied the FELA and federal common law.