ISSUE OF FIRST IMPRESSION

TO BE PUBLISHED

LouisvilleLaw.Commentary.  This case is a tad complicated as to exactly what happened (or at least it is to me) and has a lot of unanswered questions, but it is a good decision summarizing the collateral source rule and other concepts.

Michael Maggard claimed he injured his back when he moved to catch a patient while responding to a call at Conagra Foods and moving one of Conagra's employees.   The stretcher partially dropped but did not fall.  He eventually lumbar disc surgery and had to work on restricted duty.  The trial court granted summary judgment to Conagra Foods dismissing Maggard's claims. 

The COA extended the firefighter's rule to cover EMTs.   This case was suitable for application of the Firefighter’s Rule finding it particularly apt under the facts of this case. An employer or premises owner should not be deterred from calling for medical assistance for fear that they may be held liable for any injury occurring in the process of transporting the patient. In Kentucky, the Firefighter’s Rule has been applied to other professionals besides firefighters. 

The court determined that Maggard put forth no evidence to show that Conagra Foods owed a duty to assist Maggard or that there was any deviation from the standard of care owed to him, or that Maggard was injured as a direct result of any failure on the part of Conagra Foods to perform.   The existence of a duty is a question of law for the court because it is essentially a policy determination. Ostendorf v. Clark Equipment Co., 122 S.W.3d 530, 533 (Ky. 2003).

In addition, the court found that Conagra Foods was protected by the public policy considerations of the Firefighter’s Rule adopted in Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964).   The Firefighter’s Rule was stated in  that case as follows:  "as a general rule the owner or occupant is not liable for having negligently created  the condition necessitating the fireman’s  presence (that is, the fire itself), but may  be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct and, in some jurisdictions, for  statutory violations “creating undue risks of injury beyond those inevitably involved in fire fighting.”   Because public policy requires firefighters to assume the ordinary risks of their employment to the extent necessary to serve the public purpose of fire control, the Firefighter’s Rule acts as a defense for the owners or occupiers of the property the firefighter is employed to protect. 

ISSUE OF FIRST IMPRESSION INVOLVED

CA vacates and remands TC (Jeff. Cir. Ct., Hon. Ann O'Malley Shake presiding) entry of SJ dismissing negligence claim against Louisville Gas & Electric.

Appellant's 10-year-old son was killed while crossing a dark and unlighted section of Preston Highway. Appellant sued LG&E alleging the nearby street light was not working. In discovery, LG&E admitted that it relied solely on reports from the public as to which lights are in need of repair, and it had not received a report on this streetlight.

On and issue of first impression, the TC ruled that under common law the power company's duty of repair and maintenance pertains only to electricity as a dangerous instrumentality and therefore LG&E had no legal duty to repair and maintain the street light. Appellant argued the Restatement view that once LG&E undertook to light the street, it assumed the continuing duty to repair and maintain the lighting.

CA holds that the Restatement approach of balancing the competing interests in imposing a common law duty is the best approach for Kentucky. In this case, local government had entered into a maintenance agreement with LG&E; the light was near a public school and residential area; LG&E undertook, for consideration, to provide the light; and it was reasonably foreseeable that the lack of lighting might result in tragedy.

Held the creditor had complied with Kentucky's garnishment statutes, and the debtor's bankruptcy did not prevent the creditor from prosecuting the employers for failing to comply with the garnishment statutes.

Appellant entered into an Assurance of Voluntary Compliance ("AVC") with the Attorney General's Consumer Protection Division pursuant to KRS 367.230. This statute provides for these AVCs as a method of enforcement of the state Consumer Protection Act (KRS 367.170, "the Act). Prior to entering the AVC, Appellant was engaged in the Commonwealth in the promotion and sale of shares in litigation relating to a Texas oilfield. The stated purpose of the agreement was "to resolve existing question relating to violations" of the Act. Per the terms of the AVC, the Appellant agreed to "immediately cease and desist from advertising, soliciting, and accepting money from any person for the assignment pf any interest in the litigation." The Appellant filed suit to force a hearing on the merits of the AG's allegations. The trial court refused to order such a hearing. This appeal followed.

In affirming in favor of the Attorney General's office (who did not file a brief), the Court if Appeals held the AVC was a contract freely entered into by the Appellant. This AVC contained no provision for a hearing, and the AG's office was under no duty to provide one under the terms of the AVC. As such, the COA noted, the Appellant, who had been represented by counsel throughout the AVC negotiation process, could have insisted on a hearing as part of the terms of the AVC. Alternatively the OCA stated, the Appellant could have refused to sign the AVC and/or sought a judicial declaration of her rights.

Another Miller v. Swift case.  Held damages for pain and suffering need not necessarily accompany damages for medical expenses.  COA agreed with the trial court that there was sufficient evidence to support the jury's verdict in affirming the judgment.

LouisvilleLaw.Commentary.
Here the plaintiff claimed pain to his shoulder and neck, was treated at the ER, had an MRI, and eventually cervical surgery for a bulging disk.  There were differing expert opinions at trial as to the severity of the condition, whether it was a pre-existing condition, and whether it had been caused or exacerbated by the accident.  There was also factual evidence presented at to other causes of the injury, to wit: accidents and injuries before and after the subject MVA which could have caused or exacerbated the condition.  

The COA also attached little import to a treating neurologist who testified the plaintiff was in pain during examination but qualified it with pain being a subjective complaint.  In addition, the medical bills awarded to the plaintiff only covered the ER and the MRI but not the subsequent surgery.

This decision was not the result of any casual application of Miller v. Swift by either the trial judge or the judges on the Court of Appeals.  The holding is Miller v. Swift is simply that medical expenses do not automatically qualify for pain and suffering.  The defense usually sets the stage for a zero pain and suffering verdict by alleging insignificant impact from this accident, pre-existing condition, superceding causes, etc.  However, I was a bit surprised by the discounting of the treating neurologists opinion as to pain.

Held no error to allow defendant hospital to use a power point presentation and a hospital bed as demonstrative evidence.  This, plus use of blackboards and other visual aids, are within the trial judge's discretion.  See Meglemry v. Bruner, 344 S.W.2d 808, 809 ( Ky. 1961), overruled in part by Nolan v. Spears, 432 S.W.2d 425 ( Ky. 1968).

Dad appealed from TC’s order of imprisonment, which revoked his pretrial diversion and sentenced him, pursuant to his guilty plea, to one year in prison for the offense of flagrant nonsupport.  CA held that by pleading guilty, Dad waived his right to trial and his right to have the Commonwealth prove he had the ability to reasonably provide child support. Thus, once Dad pled guilty to the charge, all that was required of the Commonwealth to prove was that he had not complied with the pretrial diversion agreement.  Dad further contested the constitutional validity of the plea  When a case is resolved by a plea of guilty, the guilty plea must represent a voluntary and intelligent choice among the alternative courses of action open to a defendant.  Dad argued that his guilty plea could not have been voluntary because he did not understand the law in relation to the facts.  CA found that the trial judge very carefully asked the questions to Dad.  Further, Dad’s attorney stated to TC that Dad understood the nature of the charges against him.  CA thus concluded that TC properly determined that Dad’s plea of guilty was knowingly, intelligently, and voluntarily entered.  TC’s order of imprisonment affirmed.

CONCURRING DISSENT

Date: 2/11/2005
NOT TO BE PUBLISHED

Dad, appearing pro se, appealed TC’s orders finding him in contempt, declining to find Mom in contempt, and challenging a wage assignment order.  As to first and last claims, CA held that neither was properly before the court.  Dad failed to file exceptions to DRC recommendations or otherwise challenge TC’s finding of contempt, and failed to challenge the child support order in his initial appeal of same to CA.  Further, the record supported TC’s refusal to hold Mom in contempt.  TC affirmed.   

Dad appealed TC’s order denying his motion seeking to modify child custody, claiming TC made erroneous findings of fact and abused its discretion in faling to grant the requested modification.

Per North Carolina order, Mom had “primary physical and legal custody” of son with Dad being entitled to liberal visitation.  Mom’s husband, a member of the military, received orders for a tour of duty to Germany , and Mom intended to accompany him with the parties’ son.  Dad thus made a motion for modification of custody, claiming that Mom’s infidelity and habit of frequenting bars while her husband was in Iraq created an environment that seriously endangered the son’s physical, mental, moral or emotional health.  However, TC found that testimony reqarding these allegations was conflictual and largely hearsay. 

CA held that review of the entire record clearly showed that substantial evidence supported TC’s findings, because few if any statements made against Mom were not either recanted by their makers or contradicted by other evidence.  TC’s order affirmed.

COA affirmed award of minor children to the mother's half-brother and his wife after concluding mother was unfit and in best interests of the children that they have permanent custody.

Mr. appeals award of maintenance and property division to Mrs.  TC awarded Mrs. A division of the property based upon the value of the property when the parties started living together NOT when they were married.  CA remanded to TC to calculate division based upon when they married.  No KY law or case that allows the girlfriend to get equity in the boyfriend’s property absent a written agreement.

As to Maintenance, CA stated the Mr. made no showing that Mrs. has sufficient resources to support herself without maintenance and there was uncontroverted evidence that Mrs. was unable to work.

Jefferson Family Court

NOT TO BE PUBLISHED

CA affirms Judge Weber’s ruling in Jefferson Family Court regarding maintenance to Mrs.  Court orig, ordered Mr. to pay $500/month for 5 years as maintenance.  Mrs. filed a CR 59 motion to increase the award to $1,000/month for the next 2 years and then increase it again for the next three because of Mr.’s increased earnings after his surgical fellowship.  TC did not change the award for the next two years (because of Mr.’s inability to pay) but left the door open to amend it under KRS 403.250.

Mr. argues that it was improper for the TC to change the orig. 5 year award into one of permanent maintenance.  After a great deal of black letter law on maintenance, CA opined that the TC did not extend the award—it only would allow for an adjustment for the remaining three years.

KRS 355.9-504(3) only requires the debtor be notified of the time and place of any public sale following bank repossession of car.

TC holds that Coots adversely possessed strip of land.based on fact that although strip dedicated to public, it was never formally accepted by county and road was never constructed thereon.