Kentucky

Attorney Discipline - December 2010

Posted on March 27, 2011
A. Steven Wayne Sebastian v. Kentucky Bar Association 2010-SC-000671-KB December 16, 2010 Opinion of the Court. All sitting; all concur. Supreme Court restored attorney to the practice of law. B. Susan O. Phillips v. Kentucky Bar Association 2010-SC-000672-KB December 16, 2010 Opinion of the Court...

SCOKY MONTHLY CASE SUMMARY REPORT: 2011 - January

Posted on March 27, 2011
The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar. Every effort is made to present accurate information, including status of the case, as of the date of posting. The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites...

COA 2011 Minutes for March 18, 2011 -- Nos. 224 - 262

Posted on March 27, 2011
COA 2011 Minutes for March 18, 2011 -- Nos. 224 - 262 Click on the above link for the full text of minutes with link to full text of each decision. Link to AOC Page with current minutes and archived minutes links Total number of decisions: 27 decisions this week Published Decisions:2 published (266; 267) PUBLISHED DECISIONS (with link to full text at AOC): 266...

Std of Review: Leave to amend by trial judge

Posted on March 27, 2011
From Perry v. National City Bank, COA, NPO, 3/18/2011 Leave to amend must be freely given when justice so requires. CR3 15.01. However, a court has broad discretion in granting or denying leave to amend, and may base its denial of leave to amend upon the ?futility of the amendment itself...

To access this complete feed in the blog feed reader login or register for free.

Cause of Action: Premises Liability, open and obvious danger, and Kentucky River Medical Center v. McIntosh

Posted on March 27, 2011
The Kentucky River Medical Center v. McIntosh decision by the Supreme Court made a significant change to the 'open and obvious' standard for slip and fall cases which had become almost an automatic summary judgment dismissal of the claims. I am including the following decision, since it is a review on appeal of a case decided by summary judgment at the trial level applying the "old" standard and how the appellate court reversed and remanded same: From Embry v...

Stds of Review: Appellate Review of Directed Verdict granted at trial

Posted on March 27, 2011
From Morgan v. Lanham, COA, NPO 3/18/2011 In Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 215-16 (Ky. App. 2009):As to directed verdicts, this Court stated the appropriate standard of review : When a directed verdict is appealed, the standard of review on appeal consists of two prongs...

COA 2011 Minutes for March 4, 2011 -- Nos. 202 - 223

Posted on March 26, 2011
COA 2011 Minutes for March 4, 2011 -- Nos. 202 - 223 Click on the above link for the full text of minutes with link to full text of each decision. Link to AOC Page with current minutes and archived minutes links Total number of decisions: 21 Published Decisions: 5 (202; 203; 204; 205; 216) PUBLISHED DECISIONS (with link to full text at AOC): 202...

COA 2011 Minutes for March 11, 2011 -- Nos. 224 - 262

Posted on March 26, 2011
COA 2011 Minutes for March 11, 2011 -- Nos. 224 - 262 Click on the above link for the full text of minutes with link to full text of each decision. Link to AOC Page with current minutes and archived minutes links Total number of decisions: 39 cases Published Decisions:7 published (225,226, 231, 235, 246, 251, 252) PUBLISHED DECISIONS (with link to full text at AOC): 225...

STD OF REVIEW: Appellate review of inadequate or inconsistent damages

Posted on March 26, 2011
From CUMMINGS (CALVIN) VS. STEELE (BURNICE W.), ET AL., NPO, COA 3/11/2011 The decision of whether to grant a motion for a new trial based upon inadequate or inconsistent damages ??. . . . is a discretionary function assigned to the trial judge who has heard the witnesses first-hand and viewed their demeanor and who has observed the jury throughout the trial?...

Rules: Statutory interpretation

Posted on March 26, 2011
From Pena v. Green Tree Servicing, LLC, NPO, COA 3/11/2011 ?The seminal duty of a court in construing a statute is to effectuate the intent of the legislature.? Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (citing Commonwealth v. Harrelson, 14 S...

Defenses: Qualified official immunity (sovereign immunity)

Posted on March 26, 2011
From Faulkner v. Greenwald, COA, Published 3/11/2011 Summary judgment is proper when ?the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law...

Causes of Action: Premises Liability, slip and fall in motel bathtub; Business invitee

Posted on March 26, 2011
From Jones v. Lil Abner Motel, COA, Published 3/11/2011 The parties agree that as a guest in the motel, Appellant was a business invitee. See generally Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003) (discussing business invitees in ?slip and fall? cases)...

EVIDENCE: Collateral source rule in FELA case

Posted on March 26, 2011
From Leighton v. CSX, COA, Published 3/11/2011 Kentucky?s Supreme Court recently explained the collateral source rule as follows. It is improper to reduce a plaintiff's damages by payments for medical treatment under a health insurance policy if the premiums were paid by the plaintiff or a third party other than the tortfeasor...

Cause of Action: Duty owed to invitee (with McIntosh)

Posted on March 24, 2011
From Rucinski v. Cinemark, COA, Nonpublished 3/4/2011 The parties agree that Rucinski was an invitee of Cinemark. An invitee is one who ?enters upon the premises at the express or implied invitation of the owner or occupant . . . in connection with business of the owner or occupant...

Causes of Action: Negligence

Posted on March 24, 2011
From Rucinski v. Cinemark, COA, Nonpublished 3/4/2011 Three elements constitute actionable negligence: 1) that the defendant owed a duty to the plaintiff; 2) that the defendant breached that duty; and 3) that the breach caused an injury to the plaintiff...

Standards of Review: Appellate review of jury instructions

Posted on March 24, 2011
From Harstad v. Whiteman, COA, Published 3/4/2011: ?Alleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review.? Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006). Kentucky follows the ?bare bones? rule of jury instructions and gives latitude for attorneys to flesh out the details in their arguments...

Standards of Review: Appellate review of trial judge's evidentiary rulings

Posted on March 24, 2011
From Harstad v. Whiteman, COA, Published 3/4/2011: ?[A]buse of discretion is the proper standard of review of a trial court?s evidentiary rulings.? Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000) (citations omitted). ?The test for abuse of discretion is whether the trial [court?s] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles...

Causes of Action: Tortious Interference with Employment Contract

Posted on March 24, 2011
From Harstad v. Whiteman, COA, Published 3/4/2011: Agents of a party to a contract who act within the scope of their employment cannot interfere with that party?s contract. See Carmichael-Lynch-Nolan Advertising Agency, Inc. v. Bennett & Associates, Inc...

Causes of Action: Defamation Elements; and Defense of Qualified Privilege Defense (employment)

Posted on March 24, 2011
From Harstad v. Whiteman, COA, Published 3/4/2011: The essential elements of defamation are: ?(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication...

SCOKY Oral Arguments for March 2011

Posted on March 13, 2011
SCOKY Oral Arguments for March 2011 Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). If the briefs have been filed at NKU at the time of this post, then they are linked here. If the briefs were not available on line, THEN Click here and enter the Supreme Court, Month, and year to pull of the results for the briefs filed in the month you need to search (or the link for those "accepted for oral argument...

COA 2011 Minutes for Feb. 18, 2011 (Nos. 139 - 181)

Posted on February 20, 2011
COA 2011 Minutes for Feb. 18, 2011 (Nos. 139 - 181) Click on the above link for the full text of minutes with link to full text of each decision. Link to AOC Page with current minutes and archived minutes links Total number of decisions: 43 Published Decisions: 4 (145; 146; 158; 160) PUBLISHED DECISIONS (with link to full text at AOC): 145...

Causes of Action: What is an accident in UM cases?

Posted on February 20, 2011
From Stamper v. Hyden, COA, Published, 2/18/2011 It appears that the facts of this case raise an issue of first impression in Kentucky: On a claim for UM benefits, whose point of view determines whether an accident occurred - the perspective of the insured-victim or the perspective of the uninsured motorist-tortfeasor? Our Court has previously noted that ?the legislative intent of KRS 304...

Causes of Action: Torts, Premises Liability in landlord tenant context

Posted on February 20, 2011
From Mallipali v. Broaddus, COA, NPO, 2/18/2011 The ge|eral rule is that the tenant takes the premises as he finds them and a landlord is not liable for injuries to the tenant or his property because of defects in the leased premises in the absence of a contract or warranty as to the condition of the premises or to repair same, and where the landlord is guilty of no fraud or wilful wrong...

Cause of Action: Social host liability for intoxicated guest?

Posted on February 20, 2011
From Wilkerson v. Williams, COA, NOT to be Published, 2/18/2011 The Kentucky Supreme Court rendered its opinion in Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005), which addressed whether a national fraternal organization had a duty to exercise reasonable care to control one of its local chapters so as to prevent the death of a minor who was killed in a car accident after consuming alcohol served on the premises of the local chapter...

Stds of Review: Jury instructions

Posted on February 20, 2011
From Stamper v. Hyden, COA, Published, 2/18/2011 The Kentucky Supreme Court has addressed appellate review of instructional error as follows: The rule is that generally an erroneous instruction is presumed to be prejudicial to appellant, and the burden is upon appellee to show affirmatively from the record that no prejudice resulted; and when the appellate court cannot determine from the record that the verdict was not influenced by the erroneous instruction, the judgment will be reversed...

Causes of Action: Uninsured motorist benefits (UM) damages

Posted on February 20, 2011
From Stamper v. Hyden, COA, Published, 2/18/2011 The Kentucky Supreme Court has stated, ?UM coverage is first party coverage, which means that it is a contractual obligation directly to the insured . . . .? Coots v. Allstate Ins. Co., 853 S.W.2d 895, 898 (Ky...

Stds of Review: Insurance Policy, Contract Interpretation

Posted on February 20, 2011
From Stamper v. Hyden, COA, Published, 2/18/2011 The interpretation of an insurance contract is generally reserved for the court as a matter of law. Stone v. Kentucky Farm Bureau Mut. Ins. Co., 34 S.W.3d 809, 810 (Ky. App. 2000). ?The words employed in insurance policies, if clear and unambiguous, should be given their plain and ordinary meaning...

Tort Report for: Jan. 2011 (Civil Pro., Torts, Defenses, Workers Comp)

Posted on February 19, 2011
I am trying something new. A Monthly Tort report of Kentucky SC and COA decisions. It is just a useful compilation of just the civil cases dealings with torts, insurance, defenses, equity, civil procedure, trials, workers compensation. No criminal law or family law cases, for example...

COA 2011 Minutes for Feb. 11, 2011 (Nos. 119 - 138)

Posted on February 16, 2011
COA 2011 Minutes for Feb. 11, 2011 (Nos. 119 - 138) Click on the above link for the full text of minutes with link to full text of each decision. Link to AOC Page with current minutes and archived minutes links Total number of decisions: 20 Published Decisions: 4 (120; 124; 128; 134) PUBLISHED DECISIONS (with link to full text at AOC): 120...

Defenses: Sudden Emergency (Instruction)

Posted on February 16, 2011
From McAlpin v. Davis Construction Inc., COA, Published, 2/11/2011 The sudden emergency doctrine is generally defined as follows: [W]hen an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.