Note:  Good discussion of business owner's liability for criminal acts and injuries to patrons of business.

NOT TO BE PUBLISHED

NOT TO BE PUBLISHED

Commentary.  This decision contrasts with another CA decision just out weeks earlier addressing the bacterial dangers of raw oysters and duty to warn.

In Edwards v. Hop Sin, Inc. 2002-CA-001482.pdf, a panel consisting of BARBER, COMBS, AND KNOPF sent a dismissal back to the trial court stating a jury question had been presented regarding a duty to warn of the dangers of oysters in a products liability action - warning of defects or unreasonable risks of harm that could have been reduced or avoided by the provision of reasonable instructions or warnings. Although Hop Sin decision noted that marketing raw oysters is not an unreasonable risk in spite of the bacterium, the CA noted further that "Although a reasonable consumer is probably aware that raw seafood poses a certain risk of mild illness, the ordinary consumer was not in 1998 and probably still is not aware of this much graver risk."   However, the Hop Sin panel, amended their decision on September 19, 2003.  Unfortunately, the changes from decision to decision are not memorialized on-line so there is no way of following the court's changes in attitude.  However, I suspect it had something to do with those paragraphs indicating the eatery need not warn against every conceivable risk but only those latent risks sufficiently likely and sufficiently serious to demand attention and  a products liability limitation of a retailer's liability (versus manufacturer) who sells the product without any changes per KRS 411.340.

In the Hooters' case, the appellate judges were Emberton, Knopf, and Schroder, and the expert testimony was scrutinized - 

"It is Hooters' position that the mere allegations of causation arising out of the circumstantial evidence in this case (that the decedent contracted Hepatitis B following ingestion of the oysters at Hooters) are not sufficient to establish causation in this case. Hooters maintains that expert medical testimony would be necessary to prove that the decedent's consumption of oysters caused his Hepatitis B. We agree.
Circumstantial evidence is sufficient to prove reasonable probability or proximate cause where the evidence reasonably establishes a causal connection between the alleged negligence and the injury. Johnson v. Vaughn, Ky., 370 S.W.2d 591, 597 (1963). Expert medical testimony is necessary when common knowledge or experience of laymen is not extensive enough to infer negligence from the facts. Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965); Baylis v. Lourdes Hospital, Inc., Ky., 805 S.W.2d 122 (1991)."

The causal connection of Hepatitis B with the ingestion of Hooter's oysters was not shown in the form of a medical opinion other than temporal proximity and circumstances.

In Schmitt v. Mann, [291 Ky. 80, 163 S.W.2d 281, 283 (1942)] the former Court of Appeals discussed the scope of judicial immunity as it relates to allegations made in a complaint:  "The prevailing rule and the one recognized in this jurisdiction is that statements in pleadings filed in judicial proceedings are absolutely privileged when material, pertinent, and relevant to the subject under inquiry, though it is claimed that they are false and alleged with malice (Citations omitted)."

Shortly after Osborne's resignation, the parties negotiated the refund of 1/2 of Osborne's $200,000 flat fee (to be paid to Neil Williams' new defense counsel) in exchange for a release of all claims against Osborne.  Almost year later, the Williamses reneged, suing Osborne and his firms for breach of contract, negligence, negligent misrepresentation, fraud and breach of fiduciary duty. The TC granted directed verdicts at the close of Osborne's proof on all claims but Neil's malpractice claim, the jury ultimately finding no liability on that claim. The Williamses appeal the directed verdicts on Don's contract and negligence claims and Neil's contract claims.

After a brief discussion of the TC's jurisdiction to grant directed verdicts AFTER having once denied them ("It is the general rule that a court retains power to reconsider its rulings until the final adjudication disposing of the case."), the CA affirmed the dismissal of Don's contract and negligence claims for lack of privity and lack of attorney-client relationship.  Further, the CA found that Neil Williams apparent desperate need for the $100,000 refund in order to pay new counsel did not amount to duress sufficient to void the release. Osborne's cross appeal of TC's failure to grant summary judgment prior to trial was denied as harmless error, if any.