- KENTUCKY STATE APPELLATE DECISIONS
FOR JUNE 30 - JULY 5,
2003
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- Kentucky SUPREME COURT Decisions
PUBLISHED -
None
- Kentucky SUPREME COURT Decisions
NOT TO BE PUBLISHED - None
Kentucky COURT OF APPEALS Decisions
PUBLISHED - July 3, 2003
2002-CA-000519.pdf
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Date: 7/2/2003
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Hunter
v. Hunter
Divorce, Disposition of Nonmarital Property
CA
affirmed TC's assignment of the remainder interest in certain
real property to husband as his nonmarital property acquired
through gift from his parents while the couple was married.
"Under KRS 403.190, the trial court’s division
of property involves a three-step process: (1) characterizing
each item of property as marital or nonmarital; (2) assigning
each party’s nonmarital property to that party; and (3)
equitably dividing the marital property between the parties.
See Travis v. Travis, Ky., 59 S.W.3d 904, 909 (2001).
Property acquired by either spouse subsequent to the marriage
is presumed to be marital property, except for certain
enumerated types including property acquired by gift. KRS
403.190(2). The party claiming property acquired after the
marriage as his/her nonmarital property through the gift
exception bears the burden of proof on that issue. Travis,
59 S.W.3d at 912; Adams v. Adams, Ky. App., 565 S.W.2d
169 (1978). "
"Whether title is held individually or in some form
of co-ownership, such as joint tenancy, tenancy in common, or
tenancy by the entirety is not determinative in classifying
property as marital or nonmarital. KRS 403.190(3). Factors
relevant to determining whether particular property was a gift
include the source of the money used to purchase the item, the
intent of the donor, and the status of the marriage at the
time of the transfer. See, e.g., O’Neill v. O’Neill,
Ky. App., 600 S.W.2d 493 (1980). However, the intent of the
purported donor is considered the primary factor in
determining whether a transfer of property is a gift. See,
e.g., Underwood v. Underwood, Ky. App., 836 S.W.2d 439,
442 (1992), overruled in part on other grounds by Neidlinger
v. Neidlinger, Ky., 52 S.W.3d 513 (2001); Clark v. Clark,
Ky. App., 782 S.W.2d 56, 63 (1990). Whether property is
considered a gift for purposes of a divorce proceeding is a
factual issue subject to the clearly erroneous standard of
review. See, e.g., Ghali v. Ghali, Ky. App., 596 S.W.2d 31
(1980); Adams, supra."
CA and TC relied on Angel v. Angel, Ky. App., 562
S.W.2d 661 (1978). "In Angel, the court held that a tract
of land conveyed to the divorcing parties by the brother of
the wife without any consideration was a gift that should have
been treated as the wife’s nonmarital property under KRS
403.190." |
2002-CA-001136.pdf
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Date: 7/2/2003 |
Com.
v. Straton
Sovereign Immunity, Discretionary Acts, Board of
Claims
Dejuan Stratton, administrator of
the estate of Sabrina Felts, sued the Cabinet for Families
and Children, after his daughter (Sabrina) died from a
severe head injury while living with her mother and mother's
boyfriend. The boyfriend was convicted of murdering the
child. Before the child died, her maternal grandmother
complained to Child Protective Services (a division of the
Cabinet for Families) that the child showed signs of abuse.
CPS investigated and the child showed injuries; the mother
explained that the injuries were due to the child's falling.
The abuse was sustained and a caseworker filed a petition in
Jefferson Family Court . The child went to live with her
father, but then went back to the home of the mother and
boyfriend. A caseworker then went for a home visit on May
17, 1994. Injuries were observed on Sabrina's face and the
mother explained that it was due to her falling. On May 21,
1994, Sabrina died.
Stratton sued the Cabinet in the Board of Claims pursuant
to KRS 44.070-.165, alleging the Cabinet's negligence
contributed to the death of Sabrina. The Board concluded
that the Cabinet was entitled to sovereign immunity and that
such immunity had not been waived under the Board of Claims
Act. KRS 44.073(13). Stratton sought judicial review of the
Board's decision in Franklin Circuit Court. KRS 44.140. The
Circuit Court held that the Cabinet's immunity had been
waived under the Board of Claims Act. The appeal to the
Court of Appeals followed.
The Court of Appeals held that the Cabinet was entitled
to sovereign immunity, reversing the Circuit Court. First
the appellate court stepped into the shoes of the trial
court and reviewed the Board of Claims decision for
arbitrariness. KRS 44.150. Arbitrariness has many facets,
but relevant to this appeal is a question of law - whether
the Board of Claims correctly determined that the Cabinet's
immunity was preserved under KRS 44.073. The issue for
determination was whether the acts of the Cabinet were
ministerial or discretionary. If they were ministerial, then
the Cabinet is not entitled to sovereign immunity. Collins
v. Commonwealth of KY, 10 S.W.3d 122 (1999). If
discretionary, then the Cabinet is entitled to immunity. In
holding that the actions of the Cabinet were discretionary,
and as such, that the Cabinet was entitled to immunity, the
Court of Appeals held that 905 KAR 1:330 section 7 vested
the Cabinet with discretion in not only the means of
conducting the interviews with parent and child, but also
whether to conduct the interviews in the first
instance.
Jeri Barkley |
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Kentucky COURT OF APPEALS Decisions
NOT TO BE PUBLISHED - July 3, 2003
2001-CA-000657.pdf
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Date: 7/2/2003
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Hodges
v. Gibbs
Divorce, Child Support, Interest
CA affirmed $34,000 plus in back child support and
interest. The trial court did not abuse its discretion in
requiring interest and that it was not inequitable to have
done so. Also rejected contention that interest should not
have been allowed because none of the prior orders
establishing a lump-sum arrearage amount imposed interest.
"[T]he fact that a
judgment or decree is silent as to interest will not prevent
the recovery of interest thereon." Commonwealth, Dept.
of Highways v. Young, Ky., 380 S.W.2d 239, 240 (1964),
quoting 47 C.J.S. Interest § 21, p. 34. See also Courtenay
v. Wilhoit, Ky. App., 655 S.W.2d 41, 42 (1983). In short,
interest at 12% per annum pursuant to KRS4 360.040 would run
on the past due payment from its due date until paid. |
2001-CA-001630.pdf
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Date: 7/2/2003
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Humphress
v. Humphress
Divorce, Property Division and Valuation
CA affirmed trial court's findings on marital property
and valuations. Parties had submitted their own
valuations, husband did not supplement his valuations which
had been submitted by counsel who had withdrawn. 50/50
split not required. Contrary to husband's assertion,
court can not take into consideration the value of wife's
teacher retirement funds into account when dividing property
since KRS 161.700(2) prohibits. |
2001-CA-001679.pdf
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Date: 7/2/2003
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Helton
v. Com.
Criminal
CA affirmed Circuit Court's denial of pro se
Defendant's motions to modify sentence pursuant to CR 60.02. |
2001-CA-001730.pdf
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Date: 7/2/2003
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Williams
v. Com.
Criminal
CA affirmed Defendant's conviction and 5 year
sentence for Obtaining a Controlled Substance by Fraud.
Prosecutor's alleged violation of discovery order not
prejudicial to defense; introduction of information
contained in KASPER report was harmless error; KRS
218A.140(1)(a) not facially overbroad after applying
limiting construction; statute not void for vagueness; no
abuse of discretion by Trial Court by denying Motion for New
Trial and/or JNOV; no entitlement to directed verdict; no
palpable error in Trial Court's failure to admonish jury
during breaks; Motion to Dismiss properly denied. |
2001-CA-002471.pdf
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Date: 7/2/2003
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Dodd
& Dodd Attys, PLC v. Burkett
Wills and Estates
Grandfather
and grandmother die, leaving most of their estates to a
caretaker. Their son brings an action to contest those
wills and to determine the validity of an earlier will
leaving the estates equally to himself and to his two
children. Neither dad nor caretaker joins the two
adult children as parties and they move to intervene.
The Circuit Court denies that petition under CR 60.02, but
the Court of Appeals reverses, noting the standard for
intervention under CR 24 and the special rule of KRS 394.280
permitting attack of a final settlement of an estate that
did not include all parties. The Court of Appeals does
not consider the merits but remands with instructions that
the Circuit Court allow the intervention. The Court of
Appeals also briefly addresses the effect of an attorney's contingency
agreement in a will contest case. |
2001-CA-002474.pdf
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Date: 7/2/2003
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Frank
v. Big Rivers Electric Co.
Easements
CA affirmed condemnation of permanent power line
easement for Big Rivers over 233 acres of private property
with right of ingress and egress over rest of property where
reasonably necessary for the purpose of maintaining and
operating its easement. |
2001-CA-002649.pdf
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Date: 7/2/2003
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Miller
v. Farris
Appeals, Finality
CA dismissed appeal since lower court judgmentjudgment
from which this appeal is taken neither determines all the
rights of all the parties nor contains the necessary
language to make it appealable under CR 54.02. |
2001-CA-002696.pdf
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Date: 7/2/2003
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Baker
v. Boone County Police Retirement Board
Retirement Benefits
Objections to commissioner's award of back pay waived
since failed to file objections within 10 days since CR
53.06 is not limited to DRC reports. Back pay award
does not include overtime pay. Appellant not entitled to
prejudgment interest against government. |
2002-CA-000031.pdf
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Date: 7/2/2003
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Seiber
v. Bailey
Civil Procedure, Continuance
CA held trial court did not abuse discretion in
denying continuance on hearing for permanent
injunction. Hearing had already been continued
previously for appellant to retain new counsel, and
appellant had retained new counsel just two days prior to
the rescheduled hearing. |
2002-CA-000052.pdf
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Date: 7/2/2003
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Friar
v. Com.
Criminal
CA affirmed Defendant's convictions for 1st Degree
Rape and Resisting Arrest. Circuit Court had subject matter
jurisdiction after transfer from juvenile court; statements
were properly introduced under the excited utterance
exception to the hearsay rule; argument that victim
improperly testified about psychological effects of rape not
properly preserved for review; presumption of innocence
instruction was proper. |
2002-CA-000111.pdf
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Date: 7/2/2003
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Bowman
v. Com.
Criminal
CA reversed in part and affirmed in part Circuit
Court's denial of pro se Defendant's RCr 11.42 motions. CA
affirmed denial of 11.42 motion for escape conviction. CA
reversed denial of 11.42 motion for theft and possession
conviction and remanded for Circuit Court to appoint counsel
and conduct evidentiary hearing. |
2002-CA-000148.pdf
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Date: 7/2/2003
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Redwine
v. City Hopkinsville
Dismissal, Malicious Prosecution, Defamation,
CA reversed TC's dismissal of cause of action as
premature. Here police arrested fiance, and the
CA addressed legal standards for probable cause, etc.
However, an arrest in the absence of probable cause
may be found to be malicious prosecution. Smith v. Stokes,
Ky. App., 54 S.W.3d 565, 567 (2001). CA reversed the trial
court’s finding that probable cause existed for fiance's
arrest.
Regarding the defamatin and
slander cause of action, the CA stated proceedings in a
court of law are absolutely privileged, such that libel and
slander charges cannot be made based on such proceedings. Seebree
v. Thompson, Ky., 103 S.W. 374, 376. However, the
dismissal was premature as there was other evidence upon
which the claim could have been based upon independent of
the proceedings, eg., police scanner communications, etc. |
2002-CA-000155.pdf
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Date: 7/2/2003
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Cole
v. The Huntington Nat'l Bank
Contracts, Fraud, Summary Judgment
Where loan agreement between purchaser of car and
financing institution states there are 72 payments to be
made as opposed to the 60 agreed upon payments, summary
judgment is proper in favor of financing institution where
purchaser signed loan agreement, 72 payments was clearly
typed on agreement and there was nothing in the record which
would even remotely indicate that either the financing
institution or the dealership utilized some form of
trickery, fraud or deceit in obtaining the purchaser's
signature on the agreement. |
2002-CA-000236.pdf
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Date: 7/2/2003
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Sadler
v. Com.
Criminal
CA reversed in part and affirmed in part Circuit Court's
denial of pro se Defendant's RCr 11.42 motions. CA affirmed
denial of 11.42 motion for escape conviction. CA reversed
denial of 11.42 motion for theft and possession conviction
and remanded for Circuit Court to appoint counsel and
conduct evidentiary hearing.
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2002-CA-000473.pdf
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Date: 7/2/2003
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Rutledge
v. Legrande's Auto Collision Center
Negligence, Slip and Fall
CA reversed SJ dismissing claims holding it was a jury
question to determine whether step where plaintiff fell
posed an unreasonable risk. CA noted that there was a
sign at the shop warning of the step, and the plaintiff
contended it was too dark to see the sign. Reversed SJ
which had concluded step was an open and obvious risk.
CA relied upon a 1915 New York decision - "In Hanley
v. James Butler, Inc.153 N.Y.S. 39 (N.Y. 1915), the
Appellate Division of the Supreme Court of New York
characterized a step connecting two rooms of a business and
obscured by a door, similar to the step in this case, as
likely faulty construction constituting a trap. Even
LeGrande’s, we note, thought this step enough of a latent
hazard to call for a warning. Reasonable minds, we believe,
could differ when assessing whether this step posed only the
ordinary, obvious risk of steps generally or a latent risk
requiring LeGrande’s to protect or warn its invitees.
Whether LeGrande’s breached its duty of care to Rutledge
is, therefore, a question for the jury." Case
remanded back to the Jefferson Circuit Court.
Comment: At first reading I
wondered where the CA was coming from but at the very end of
the decision they brought out that there was a factual
dispute on whether the plaintiff could have seen the
putatively open and obvious danger since it was dark plus
the warning sign by the establishment was an acknowledgement
of the risk of the step. No new ground here.
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2002-CA-000569.pdf
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Date: 7/2/2003
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Thomas
v. Com.
Criminal
CA affirmed Circuit Court's denial of pro se Defendant's
RCr 11.42 motion based upon ineffective assistance of
counsel following hearing. |
2002-CA-000610.pdf
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Date: 7/2/2003
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South
Ky Rural Elec Coop v. Dye
Workers Compensation - ALJ as
Factfinder - KRS 342.730(4)
Dye was injured in 1980 and settled his claim for that
injury in 1987. he sought reopening in 2000 based on
worsening of his condition. This was a lengthy (20
page) opinion with a detailed recitation and review of the
facts. The ALJ was affirmed on all findings of fact as being
supported by substantial evidence of record. The employer
also argued that Dye's benefits should end at age 65
pursuant to KRS 342.730(4), but retroactive application of
that portion of the statute to Dye's date of injury was
rejected. |
2002-CA-000639.pdf
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Date: 7/2/2003
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Lawrence
v. Lawrence
Divorce, Property, Tracing
CA affirmed TC's rulings that there was no equity in
business to divide and not awarding wife all of her
attorneys fees to be paid by husband. However, CA did
agree with the wife and held evidence did not support the
trial court’s finding that David had traced his nonmarital
assets into the purchase of the marital residence.
Consequently, the trial court should not have assigned the
residence to David without an offsetting award of other
marital property to Gina.
The CA did note that "[t]he concept
of "tracing" is not expressly created by statute,
but it is strongly implied. KRS 403.190(3) establishes a
presumption that all property acquired during the marriage
is marital property. The marital presumption, however,
isrebuttable and may be overcome by a showing that the
property was acquired by a method listed in KRS 403.190(2).
A party claiming that property acquired during the marriage
is other than marital property bears the burden of proof
[KRS 403.190(3), Brosick v. Brosick, Ky. App., 974
S.W.2d 498 (1998)]. In Chenault v. Chenault,Ky.,
799 S.W.2d 575 (1990), the Kentucky Supreme Court recognized
that tracing to a mathematical certainty is not always
possible, noting that: "[w]hile such precise
requirements for non-marital asset-tracing may be
appropriate for skilled business persons who maintain
comprehensive records of their financial affairs, such may
not be appropriate for persons of lesser business skill or
persons who are imprecise in their record-keeping
abilities." Id. [Terwilliger v. Terwilliger,
Ky., 64 S.W.3d 816, 821 (2002)] As a result, the
Chenault court held that testimony alone may be sufficient
to satisfy the tracing requirement. More recently, however,
the Court has held that while Chenault relaxed the more
draconian requirements for tracing, it did not do away with
the tracing requirements altogether. [Terwilliger v.
Terwilliger, Ky., 64 S.W.3d 816, 821 (2002)] Where
the party claiming the non-marital interest is a skilled
business person with extensive record keeping experience,
the courts may be justified in requiring documentation to
trace non-marital assets into marital property.Id. The trial
court did not clearly err by accepting David’s testimony
regarding the source of the funds used to purchase the
Louisville residence. The more fundamental problem is that
David’s testimony did not adequately trace his non-marital
contribution to that purchase."
Comment: For those interested in a
musical rendition of the law of tracing from "Traces
of Love", click here which does raise questions
regarding adequacy of testimony and documentary evidence to
demonstrate contributions.
Faded
photographs
Covered now with lines and creases
Tickets torn in half,
Memories in bits and pieces
Traces of love long ago
That didn't work out right
Traces of love
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2002-CA-000768.pdf
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Date: 7/2/2003
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Shaqdeih
v. Signature Inn South
Negligence, Slip and Fall
CA affirmed summary judgment dismissing
plaintiff's claims for slip and fall on ice at hotel when
hotel had made no efforts to clear snow and ice from parking
lot. CA rejected three arguments of the plaintiff
regarding duty of care, application of 902 KAR 7:010(11),
and attempting to equate hotel/customer duty to that of a
landlord/tenant.
CA first noted a "long
line of Kentucky cases standing for the proposition that a
landowner has neither a duty to stay the elements nor a duty
to warn when conditions are clear and obvious. Standard Oil
Company v. Manis, Ky., 433 S.W.2d 856 (1968); see also,
Rogers v. Professional Golfers Ass’n, Ky. App., 28 S.W.3d
869 (2000); Corbin Motor Lodge v. Combs, Ky., 740 S.W.2d 944
(1987). The standard for slip-and-fall cases as set forth in
Standard Oil states that natural outdoor hazards which
are as obvious to an invitee as to the owner of the premises
do not constitute unreasonable risks to the former
which the landowner has a duty to remove or warn against. In
such a situation, the defendant owes no duty to the
plaintiff because there is no negligence on the part of the
defendant. See Corbin Motor Lodge, 740 S.W.2d at 946.
Appellant’s contention that
902 KAR 7:010 (11) imposes a duty upon innkeepers to keep
their parking lots and sidewalks clean and in good repair is
without value (but you must confess a little more
creative!).
The last argument rejected by
the CA was an attempt to compare the hotel's duties to a
landlord's duties over common areas of the tenancy.
The CA found there was no 'special relationship' with the
hotel.
Comment. The plaintiff
gets "A for Effort" in trying to extend the
administrative regulations and enumerate an additional duty
to the hotel and trying to compare the duty to maintain
common areas at an apartment complex to those common areas
at a hotel. However, the CA relied on In Re Dant
and Dant of Kentucky, 39 F.Supp. 753 (D.C. Ky. 1941) which
stated, "it is settled in Kentucky that to constitute a
tenancy of any kind, the tenant must get some definite
control and possession of the premises with the intention on
the part of the owner to dispossess himself of the premises
under consideration." Not so at a hotel even
should they promise to "keep the light on" as well
as the "ice on" too. |
2002-CA-000852.pdf
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Date: 7/2/2003
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Floyd
County Bd of Education v. Julian
Employment, Reinstatement, Review of Arbitrator's Award
CA affirmed TC's reinstatement of bus driver after
school board filed civil action after arbitration found hers
discharge from employment was not for just or proper cause
and thus awarded Julian reinstatement to her former position
with full seniority and benefits.
Comment. CA went into a decent
summary of the standard for reviewing an arbitrator's
award. Among other decisions, it was noted as
follows:
"In Taylor v. Fitz Coal Co., Inc.,
Ky., 618 S.W.2d 432 (1981), the Kentucky Supreme Court held
that the scope of review by a court of an arbitrator’s
award was similar to that stated by the U.S. Supreme Court
in Burchell v. March, 17 How. 344, 58 U.S. 344, 349, 15 L.Ed.
96 (1855), as follows: 'If the award is within the
submission, and contains the honest decision of the
arbitrators, after a full and fair hearing of the parties, a
court of equity will not set it aside for error, either in
law or fact. A contrary course would be a substitution of
the judgment of the chancellor in place of the judges chosen
by the parties, and would make an award the commencement,
not the end, of litigation.' 618 S.W.2d at 433. The court
further reiterated the rule in the Smith case that the award
may be set aside if there was a 'gross mistake of law or
fact constituting evidence of misconduct amounting to fraud
or undue partiality. Id., quoting Smith, supra."
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2002-CA-001116.pdf
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Date: 7/2/2003
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Nally
and Hamilton Enterprises, Inc. v. Smith
Workers Compensation - Subsequent
Disabling Conditions
Smith, a mechanic, was injured in 1990 when a battery
blew up, splashing acid into his eyes while working for
Nally resulting in permanent vision impairment in both eyes
and a potential need for surgery due to scarring in the
right eye for which he received a PPD based on 20%
occupational disability in 1992. He continued working for
Nally, primarily as a truck driver and was involved in a
traumatic incident as a result of a dynamite explosion later
in 1992 without lost time or medical attention. In late 1993
he had a stroke while hunting and never returned to work. He
filed a second claim seeking benefits for
black lung, hearing loss, and the stroke, but the claim was
dismissed in 1995 for failure to sustain his burden of
proof. He suffered a heart attack in
1995 resulting in additional physical problems after which
he obtained an award of Social Security disability benefits
based on the stroke and heart attack. Smith moved to reopen
his 1990 injury claim on December 11, 2000 seeking PTD
benefits based on his worsened vision. Nally argued that the
stroke and heart attack were totally
disabling barring an award of PTD benefits for the
antecedent eye injury. Although giving
consideration that another condition [stroke/heart attack]
may have been disabling to Smith in and of itself, CALJ
Lowther found that Smith's almost total loss of vision in
the right eye, and the significant impairment of the entire
visual system, and his testimony regarding the limitations
it placed on his activities were sufficient to render him
permanently totally occupationally disabled and awarded PTD
benefits. The Board agreed and affirmed noting that,
although one condition [stroke/heart attack] took Smith out
of the work force, the other [vision] continued to worsen to
the point it would have caused him to be totally disabled,
and the former did not prohibit the latter from resulting in
a total occupational disability award. The Court of appeals
approved the Board's analysis based on Beth-Elkhorn Corp.
v. Dotson, Ky., 428 S.W.2d 32 (1968), explaining that
there is a clear distinction in the case law between nonwork-related
injuries that are "superimposed" on work-related
injuries and nonwork-related injuries that are
"simultaneous and concurrent" with a work-related
injury. The CALJ determined, based on substantial evidence,
that the eye condition alone deteriorated to cause a total
occupational disability. Therefore, the eye injury would
have been no less, with or without the stroke and heart
attack, and the award of PTD benefits due to the eye injury
was sustained.
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2002-CA-001169.pdf
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Date: 7/2/2003
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Perdue
Farms v. Mayes
Workers Compensation, - Statute of
Limitations (Hearing Loss)
Mayes, who was already experiencing problems with his
hearing, was hired by Perdue in 1995.
Despite having been evaluated for his hearing loss on prior
occasions and being told that he had a severe hearing loss
following testing in 1996 (9% AMA), he was never informed
that it might be due to his exposure to loud noises. It was
on March 6, 2000, when he went to see an otolaryngologist,
that Mayes was first told his severe hearing impairment
(13.6% AMA) was work-related. Mayes terminated his
employment in June, 2000 and sent a letter two weeks later
notifying Perdue of his intent to file a hearing loss claim
which he then filed in February, 2001. CALJ Lowther rejected
Perdue's statute of limitations defense on the grounds that
he could not be charged with knowledge of having suffered a
work-related injury prior to March 6, 2000 and awarded PPD
benefits based on the 13.6% AMA rating. The Board affirmed
the CALJ. The
clocking of the statute of limitations and the requirement
that a claimant provide due and timely notice begin once a
worker (1) discovers that a physically disabling injury has
been sustained, and (2) becomes aware that his injury is
caused by work. A claimant is not obligated to give notice,
nor does the statute of limitations in his case begin to run
until he is informed by a physician that his condition is
work-related.
Note: This hearing loss claim was
practiced as a cumulative trauma (2 year SOL) rather than as
an occupational disease (3-5 year SOL) claim. TH
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2002-CA-001269.pdf
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Date: 7/2/2003
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Seaman
v. Musselman a/k/a "Indian Charlie"
Defamation, Limited Public Figure Exception
CA affirmed SJ dimissing defamation claims on articles
on horse racing published in "Indian Charlie"
addressing the limited public figure exception - no showing
of actual malice on a material issue and "fact vs.
opinion" issues. |
2002-CA-001341.pdf
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Date: 7/2/2003
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Com.
v. Babbitt
Board of Claims, Negligence, Vehicle Along Road
CA affirmed TC's decision which concluded Board of
Claims applied wrong law ion intervening cause of accident
vs. injuries in a single car accident addressing negligence
of driver, negligence of state in maintaining side of road,
and products liability of motor vehicle.
Apportionment of damages is required and board is bound by
prior findings of negligence on driver, manufacturer, and
state. |
2002-CA-001376.pdf
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Date: 7/2/2003
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Bolen
v. Com.
Criminal
CA affirmed in part and reversed in part Circuit Court's
denial of Defendant's RCr 11.42 motion. Counsel appointed
for sentencing following reversal by Supreme Court was
ineffective for failing to request jury resentencing hearing
during PFO phase.
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2002-CA-001478.pdf
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Date: 7/2/2003
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Eblen
v. Hargis
Property Valuation, Taxation
CA affirmed TC's dismissal of pro se appeal of property
valuation appeal for failure to properly serve state
officials. |
2002-CA-001766.pdf
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Date: 7/2/2003
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Brown
v. Paul
Medical Negligence
CA affirmed TC's denial of new trial motion by
plaintiffs who objected to defendant's presentation of video
to jury that was not in evidence ruling it was harmless
error. The video was a demonstration of cataract
surgery played to the plaintiff's as a surgical option and
played during opening statements; the transcript of
the video was in evidence but the video was never
admitted. Jury had been advised they could listen to
any evidence during deliberations, and asked to see the
cataract tape. Defendant's objected.
Comment. This case highlights the
risk taken when using props during the opening statement
which are not admitted, ruled inadmissible, or simply
forgotten. Decision contains references to
demonstrative aids and evidence at trial not fully
authenticated such as charts prepared by counsel.
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2002-CA-001816.pdf
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Date: 7/2/2003
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Chapman
v. Chapman
Family Law, Change of Custodian
CA affirmed TC's denial of father's motion to become
minor's primary custodian. Mother had a DVO against
her live-in boyfriend but had subsequently moved out of
county to protect her and child; case worker thought
mother's home was suitable for minor. |
2003-CA-000369.pdf
Size: 38 kb
Date: 7/2/2003
|
Wal-Mart
v. Williams
Workers Compensation - Notice - ALJ
as Factfinder
Williams filed a claim against
Wal-Mart for a low back injury which was defended, at least
in part, on the grounds that Williams failed to give due and
timely notice. The testimony and documents before the ALJ
were muddled as to what was said and done and when. However,
ALJ Steen, who personally posed questions to Williams at the
hearing, was persuaded that Williams was injured as alleged
and that she did give due and timely notice to Wal-Mart and
awarded PPD benefits. The
determination of whether notice is due and timely is a mixed
question of law and fact. Even if Williams's
testimony at the hearing was not exactly the same as it was
in her deposition, that fact was brought to the ALJ's
attention, and she chose to believe Williams. Further, the
requirement to give notice "as soon as practicable
after the happening thereof" leaves room for special
circumstances in which
immediate
notification is not "practicable." A lapse of time
does not necessarily indicate untimely notice. Whether or
not an explanation for lapse of time is excusable is also a
question of fact for the ALJ. The ALJ relied on
substantial evidence and was affirmed. Finally, WalMart's
attempt to challenge a period of TTD awarded by the ALJ was
barred by not having been raised before the Board. |
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