Kentucky Court of Appeals - Unpublished
Limitations - Automobile - Injury
Beaumont v. Muluken, 2013 WL 3237216 (Ky.App. June 28, 2013), motion for discretionary review granted April 9, 2014 (2013-SC-489-DG)

A claim for personal injury arising from a motor vehicle accident is governed by KRS 304.39-230(6), and requires that the action be commenced within two years of the last BRB payment made. In this case the plaintiff filed within two years of the date a check was reissued, but more than two years from the date the payment was originally made. The Court found it to be time barred, since the date of issuance governs the start of the time.

Kentucky Court of Appeals - Unpublished
Premises Liability - Licensees
Rozeboom v. Hugh Jass Burgers, LLC, 2013 WL 3332245 (Ky.App. June 28, 2013)

The plaintiff was a plumber who was retained by eCampus, who occupied the premises above the defendant restaurant. The plumber found it necessary to enter the restaurant, and sought and was given permission to enter the premises. The restaurant was not yet open to the public. The plumber slipped on some grease. The Court held that the plumber was a licensee, and thus owed no duty to maintain the premises for his safety. The Court did not consider whether the duty owed to a licensee had been breached, presumably because it had not.

United States Supreme Court
Employment - Title VII - Causation in Retaliation Claims
University of Texas Southwestern Medical Center v. Nassar, 570 U.S.___, 133 S.Ct. 2517, 2013 WL 3155234 (June 24, 2013)

In this case the Court concluded that federal retaliation cases require proof of causation in the traditional sense, including the sine qua non of "but for" causation. This means that the plaintiff must prove that the adverse employment action would not have occurred had the employee not engaged in the protected conduct. This is a significant development which will go a long way to prevent one of the most abused torts on the books, at least in the federal context.

To set the stage, the Court provides a history of causation analysis in the context of status claims, which helps provide context for the ruling. At the outset, the Court noted that the default causation rule is the standard but for rule, unless the statute provides a different standard. In the context of status claims, the statute prohibits discrimination because of any one of five statuses. In Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989), a majority of the Court determined that this language only required the employee to prove that the discrimination motivated or was a substantial factor in the decision to take the adverse action. The burden then shifted to the employer to show that the adverse employment action would have occurred anyway to avoid liability. Congress modified this holding in 1991, 42 U.S.C. §2000e-2(m), adopting the Court lesser standard but removing the ability to avoid liability by showing the action would have occurred anyway. However, Congress did remove monetary damages in the event the employer makes such a showing, 42 U.S.C. §2000e-5(g)(2), although injunctive relief remains available.

Twenty years later the Court revisited the causation question in the context of the ADEA in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (U.S. 2009). That Court focused on the language of the statute and in particular the word because. 29 U.S.C. §623(a). The Gross Court determined that the term "because of" meant "by reason of" or "on account of". Thus, the reasoned that the ADEA required the employment action to be causally related to age, while Title VII status cases only required the discrimination be causally tied to the status. Based on this difference in the language, the Court rejected the lesser standard of Price Waterhouse and held that a plaintiff was required to prove a traditional causal connection between the employment action and age.

The anti-retaliation provision of Title VII at issue in the case is found at 42 U.S.C. §2000e-3(a), which provides as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, . . . to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Court found this language to be similar to that in the ADEA, and presumably dissimilar to the language considered in Price Waterhouse. The difference the Court finds is at best subtle, and based on the opinion it is unlikely that this Court would have decided Price Waterhouse as its predecessor Court did. But the Court's motivation may have been on the common abuse of the retaliation claim by employees. The Court noted the increasing frequency of retaliation claims, and the ease with which an employee concerned about the stability of his employment could easily secure the protection of a potential retaliation claim simply by making a fabricated report of status discrimination. Such a fraud would be much more difficult to perpetrate is causation was an essential element.

United States Supreme Court
Employment - Title VII - Vicarious Liability for Hostile Environment
Vance v. Ball State, 570 U.S. ___, 2013 WL 3155228 (U.S. June 24, 2013)

The basis for the liability of an employer in hostile environment cases depends in large part on whether the harasser is a supervisor or a co-worker. The Court summed up this rule as follows:

If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

The problem is that supervisor is a concept that means different things to different people in different contexts. This case came from the Seventh Circuit, where a supervisor was a person with the power to take employment actions with respect to the complaining employee. The EEOC had staked out a much broader definition in its guidelines, requiring only that the employee exercise significant discretion over the complaining employee's daily work. In this case, the Supreme Court rejected the EEOC position and going forward a supervisor in an employee empowered by the employer to take tangible employment actions against the complaining employee.

The Court made a great deal of how this ruling will simplify the threshold issue of the harasser's status. However, language in the opinion leaves open the argument that one who does not fully fit the definition may still be deemed a supervisor where a superior must approves the recommendations of the harasser. This probably will cause new disputes to replace the old ones, but the new rule is nonetheless a significant improvement over the EEOC attempt to enlarge its sphere of power.

Kentucky Court of Appeals
Negligent Hiring and Retention
Carberry v. Golden Hawk Transportation Company, 402 S.W.3d 665, 2013 WL 3105549 (Ky.App. June 21, 2013)

This is a case involving a battery committed by an employee truck driver while on a detour from his assigned route. The plaintiff argued that the employer was nonetheless liable for the employee's conduct on the ground that the employer was negligent in hiring him. The employer's HR Manager stated in an affidavit that all legally required background checks on his employment and driving record had been completed without demonstrating any propensity towards violence. The Court reaffirmed that the elements of a negligent hiring claim are that: (1) the employer knew or reasonably should have known that an employee was unfit for the job for which he was employed, and (2) the employee's hiring or retention at that job created an unreasonable risk of harm to the plaintiff.

The Court first observed that the employee was not a supervisor or given access to special locations, and thus giving a driver a truck and some tools did not create an unreasonable risk of harm. In fact, left unsaid by the Court is the fact that the truck and employment played no causal role at all in the assault. This by itself should have been sufficient to sustain the dismissal, but the Court continued its analysis.

The plaintiff argued that no criminal background check was done, and that had it been done it would have been discovered that the employee had been convicted of misdemeanor battery of a child under 18 and a separate battery a year or two before he was rehired. Plaintiff argued that a criminal background check was required by federal regulation, citing 49 CFR §391.25 and 49 CFR §391.21. The Court determined that neither section required a criminal background check, and based on this the Court found that no background check was necessary. This opinion could be read to hold that there is no common law duty to conduct a criminal background check, at least as to persons not being hired as supervisors or with access to an enclosed place with the public.

The plaintiff also noted that the employee had misrepresented his employment history between his original hire and rehiring, and should have investigated more deeply. The Court held, however, that absent some sort of red flag, a prospective employer was entitled to rely on the statements made in the application.

Kentucky Court of Appeals - Unpublished
Joint Tortfeasors - Apportionment and Indemnity
Downs v. CSX Transportation, 2013 WL 3120191 (Ky.App. June 21, 2013), motion for discretionary review denied June 11, 2014 adn opinion depublished (2013-SC-482-D)

This case is a little bit odd since the issue discussed at some length was moot, and thus the entire opinion is obiter dictum. The plaintiff was an employee of CSX and was injured by a General Electric refrigerator that had been loaded on a railroad car. The defendants filed a third party complaint against LG, whose employees had loaded the cars. The jury found that neither CSX nor GE was negligent. The finding ends the case and moots any issue concerning the third party complaint. Nonetheless, the Court held that the instruction permitting an apportionment against the third party defendantwas error because the third party claim was for indemnity. The opinion was largely a rehash of Justice Cooper's analysis in Degener v. Hall Contracting Corp., 27 S.W.3d 775 (Ky. 2000), but tends to reinforce the importance of pleading contribution in a third party complaint if the object is apportionment.

Kentucky Court of Appeals
Immunity - Official Qualified Immunity - Police
Mattingly v. Mitchell, 425 S.W.3d 85, 2013 WL 3105373 (Ky.App. June 21, 2013), motion for discretionary review denied April 9, 2014 (2013-SC-478-D)

The case arose out of a police pursuit where the vehicle being chased hit another vehicle. The claim considered on appeal was the state law claim for negligence. While the Court agreed that the decision on whether to initiate pursuit was different than the ministerial act of operating a vehicle in emergency circumstances, it nonetheless found the pursuit to be ministerial. The basis for this finding was that the Louisville Police Department had an extensive policy governing the circumstances under which a pursuit should be initiated, and the Court opined that the officer either violated or complied with it. Once categorized in a binary fashion, the conduct is ministerial and the officer was entitled to no immunity in his individual capacity.

Kentucky Supreme Court
Malicious Prosecution - Probable Cause - Advice of Counsel
Garcia v. Whitaker, 400 S.W.3d 270, 2013 WL 3121894 (Ky. June 20, 2013)

The plaintiff owned an automobile repair shop which specialized in foreign vehicles, and the defendant, an attorney, owned a Porsche. The plaintiff ended up having the repairs done at a dealership, paid for the repairs, and submitted a bill based on what the plaintiff had paid plus some markup. There was significant dispute in the testimony as to what occurred when the car was returned to the owner, but to make a long story short, the owner refused to pay and the plaintiff refused to return the automobile until he was paid. The defendant involved the County attorney, and caused a warrant to be issued for theft by failure to make proper disposition of property. The defendant accompanied the sheriff who ordered the plaintiff to return the vehicle without payment, and led to the arrest of the plaintiff who spent an evening in jail. The criminal charges were not really pursued by the defendant once he had his vehicle, and the plaintiff filed a mechanics lien. The jury ultimately determined that the defendant owed the cost of repairs.

The trial court had dismissed the malicious prosecution case on the ground that the defendant had acted on advice of counsel, in this case the County attorney. In this opinion the Supreme Court emphasized that the reliance on advice of counsel is in fact a way of showing probable cause, but a party's ability to rely on advice of counsel depends on the defendant providing full and fair facts to the attorney. The court held that in this case the defendant had failed to disclose a number of facts. A number of the facts which the court held should have been disclosed were based on the testimony of the plaintiff, and the defendant testified they were not facts at all. Accordingly, it will be difficult for any defendant to demonstrate probable cause based on advice of counsel where there is a divergence in the testimony as to what occurred and the defendant is a witness to those facts. It is difficult to believe that a defendant could reasonably be expected to reveal facts which he did not believe to be facts, although perhaps he could suggest in his affidavit the facts that were claimed by the plaintiff, if he knows them. This opinion may be flavored by the fact that the criminal charge chosen, even though chosen by the County attorney, clearly did not apply to the circumstances and the defendant had twenty some years experience practicing criminal law and should have known better.

Kentucky Supreme Court
Abuse of Process
Garcia v. Whitaker, ___ S.W.3d ___, 2013 WL 3121894 (Ky. June 20, 2013)

The plaintiff owned an automobile repair shop which specialized in foreign vehicles, and the defendant, an attorney, owned a Porsche. The plaintiff ended up having the repairs done at a dealership, paid for the repairs, and submitted a bill based on what the plaintiff had paid plus some markup. There was significant dispute in the testimony as to what occurred when the car was returned to the owner, but to make a long story short, the owner refused to pay and the plaintiff refused to return the automobile until he was paid. The defendant involved the County attorney, and caused a warrant to be issued for theft by failure to make proper disposition of property. The defendant accompanied the sheriff who ordered the plaintiff to return the vehicle without payment, and led to the arrest of the plaintiff who spent an evening in jail. The criminal charges were not really pursued by the defendant once he had his vehicle, and the plaintiff filed a mechanics lien. The jury ultimately determined that the defendant owed the cost of repairs.

The trial court had dismissed the abuse of process claim on the ground that the process was normal and inside the ordinary course of the proceedings. The Court first observed that the elements of the tort are (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. The Court first found that the evidence would have justified a jury determination that the owner used the criminal complaint to try and regain possession of his vehicle without paying for it, which would be an ulterior motive. Then the Court determined that the owner accompanying the sheriff and the sheriff ordering the plaintiff to disclose the location of the vehicle and then to confiscate property the plaintiff was entitled to keep was an illegitimate use of process.

Kentucky Court of Appeals
Premises Liability - Open and Obvious
Lewis v. Faulkner Real Estate Corporation, 403 S.W.3d 64, 2013 WL 2013 WL 2711081 (Ky.App. June 14, 2013)

This is a classic open and obvious factual situation. The plaintiff was walking along a sidewalk talking to a friend while they walked their dogs. Plaintiff stepped off the sidewalk and into a hole he described as the size of a laptop. The trial Court granted summary judgment, and the Court of Appeals affirmed. The Supreme Court remanded the case to be reconsidered in light of the decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). In this opinion, a panel of the Court of Appeals attempts to divine the message of McIntosh, and concludes that the open and obvious rule was correctly applied.

This panel of the Court assumed that the "change" announced by McIntosh was that a possessor of land could be liable for an open and obvious condition where the possessor should have anticipated the harm anyway. As we have discussed before, this has always been the rule, (see Wallingford v. Kroger Co., 761 S.W.2d 621 (Ky.App. 1988)), but McIntosh is written in such a way that suggests the Court thought it was changing the law. In McIntosh, the Court held that the hospital should have anticipated that an EMS crew would have been distracted by the their work and thus not see what the Court [erroneously] treated as an open and obvious condition. This panel distinguished the McIntosh case and held that there was nothing offered to justify a finding that the possessor should have anticipated a fall. There was no distraction other than talking to a friend, and had she been apyaing attention she would not ahve encountered the condition at all.

One of the more troubling aspects of the McIntosh opinion shows itself in the Court's opinion as well. As it has done on prior occasions, the Court has a tendency to confuse duty and comparative fault. Duty in some cases may be defined by what an ordinarily prudent person would do, but it is never defined by what a particular plaintiff did. We can expect this issue to continue to be conflated with plaintiff fault unless the cases currently before the Court make a serious effort to clean up the McIntosh opinion.

Kentucky Court of Appeals - Unpublished
Product Liability - Duty to Warn
McCarthy v. Ritescreen Company, Inc., 2013 WL 2660783 (Ky.App. June 14, 2013)

This case, while unpublished, demonstrates the triumph of reason over nonsense. The defendant is a manufacturer of window screens. A grandmother allowed a two year old to fall through a fourth story window. The window was open, and a screen was in place. The plaintiff argued that the screen should have had upon it a warning that it would not prevent a fall. The Court held that the alleged danger was not a latent danger, and there is no duty to warn of obvious risks. The Court also held that there was no duty to design an insect screen that would prevent such a fall.

Kentucky Court of Appeals - Unpublished
Employment - Public Whistleblower
White v. Southern Health Partners, Inc., 2013 WL 2659897 (Ky.App. June 14, 2013)

In this case two employees of a private company sought to recover damages arising from their termination under the Kentucky Whistleblower Act. The employer contracted with the county to provide medical services to inmates, and they alleged that they were terminated because they reported irregularities. While the applicable definition limits the act's scope to employees of the Commonwealth or its political subdivisions, the former employees argued that they were under the control of the county and therefore were employees. The statute was held to cover the employees of non-state employees where the state has the power to control and direct the material details in Cabinet for Families & Children v. Cummings, 163 S.W.3d 425 (Ky. 2005). In Cummings, the employee was a university professor who was working on a study commissioned by the state, and allegedly the state had a good deal of control over the day to day operation of the study.

In this case, there was no evidence that the county exercised control over the day to day operations or the health care provided. The county did retain the right to require the employer to remove employees, but the Court observed that this related to security as opposed to control the medical care to be provided. Further there was no evidence that the county had anything to do with the employees' termination. Accordingly, the Court held that a whistleblower action could not be brought. It will be interesting to see if the Supreme Court takes this case on and further clarifies its intention in Cummings.

The Court also rejected the idea that the plaintiffs' employer was an employer within the meaning of the Act. The Court rejected the argument that a contractor with the state was, by virtue of such a contract, transformed into a political subdivision of the state. Such a suit needed to be brought against the state itself.

Kentucky Court of Appeals
Immunity - Schools - Premises Liability
Mucker v. Brown, ___ S.W.3d ___, 2013 WL 2450491 (Ky.App. June 7, 2013), motion for discretionary review filed July 8, 2013 (2013-SC-443-D)

The plaintiff in this case slipped on natural accumulations on school property, and she brought suit against the school's plant operator in her individual capacity. The plant operator manual created a duty to keep the sidewalks clear of ice and snow as necessary. The plaintiff was a site director at the YMCA Child Enrichment Program, and its operation began at 7:00 a.m.

The natural accumulation in question was the product of freezing temperatures the prior night. The plant operator was aware of the ice, but attended to other duties before removing the ice and treating the sidewalks (there was some indication the operator was in the teacher's lounge prior to beginning the ice clearing). The defendant argued that while her duty to clear the ice was mandatory, she retained discretion as to when it was to be done, and in determining the order her morning tasks were performed. This argument was rejected, because in the Court's view she had a mandatory duty to perform these tasks before the time persons were reasonably anticipated to be at the school.