Kentucky Court of Appeals
Procedure – Summary Judgment – Inconsistent Affidavit
Rogers v Integrity Healthcare Services, Inc., 358 S.W.3d 507, 2012 WL 246639 (Ky.App. January 27, 2012)

The Plaintiff filed this medical malpractice case and took no real steps to prosecute it, in fact requiring the filing of a motion to compel for the Defendant to obtain responses to written discovery.  These responses provided no basis for the claims, no experts were identified, and Plaintiff denied any communications with Defendant or its agents.  Three and one-half years after suit was filed, the Defendant filed a motion for summary judgment, citing as grounds the absence of expert proof or other basis on which a liability finding could be based.  Plaintiff then filed an affidavit stating that he had been told by two of Defendants agents that the IV had been improperly placed in his arm and caused his injury.  The Court of Appeal reaffirmed the principle that a summary judgment cannot be defeated by the filing of an affidavit inconsistent with prior testimony, whether that testimony is by affidavit or written discovery.

Kentucky Court of Appeals
Assault – Emotional Distress
Nichols v Hazelip, 374 S.W.3d 333, 2012 WL 95569 (Ky.App. January 13, 2012), motion for review denied September 12, 2012.

This case involved an altercation on a golf course, and the jury determined that Nichols had committed the tort of assault, which is essentially a threat to commit a battery.  Nichols argued that emotional distress could not be recovered absent contact or physical injury, a rule that relates to negligence generally and duty specifically.  The Court made it clear that the rule, almost by definition, could not apply to an intentional tort such as assault.

Kentucky Court of Appeals
Employment – Wrongful Discharge
Jackson v JB Hunt Transport, Inc., 384 S.W.3d 177, 2012 WL 95553 (Ky.App. January 13, 2012), motion for review denied December 12, 2012.

The defendant employer had adopted a Voluntary Assistance Program (VAP), following guidelines provided by the federal government, to permit self reporting of drug or alcohol abuse with DOT consequences.  Jackson self reported cocaine use and in accordance with the program was permitted a leave of absence to obtain treatment.  During treatment Jackson used cocaine again, and tested positive for same.  He was terminated even though he went ahead and completed the treatment program.

The Court first determined that the federal regulation providing for VAP, 49 C.F.R. sec. 382.121, does not create a private cause of action under federal or Kentucky law.  The Court also rejected a state law wrongful discharge cause of action for several reasons.  First, the court noted that Jackson was not terminated because he participated in the program, but because he violated the terms of the program.  Second, the federal program on which the VAP was based was specifically designed not to interfere with the employer-employee relationship.  Perhaps most importantly, Jackson had signed a document agreeing that he could be terminated if he tested positive for drug or alcohol during treatment.

Kentucky Court of Appeals
Employment – Policeman"s Bill of Rights
Beavers v City of Berea, ___ S.W.3d ___, 2012 WL 28690 (Ky.App. January 6, 2012), motion for review filed February 7, 2012 (2012-SC-79-D), in abeyance.

Beavers was a police officer who became involved in a pursuit which resulted in force being used against a passenger in the pursued vehicle.  The passenger did not file a complaint, but the department conducted an investigation and was discharged by letter signed by the Mayor and Chief of Police.  Beavers demanded an evidentiary hearing as required by KRS 15.520. The Court of Appeals affirmed the decision that KRS 15.520 does not apply where the employment action is not based on a citizen complaint.