OCTOBER 19, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:50)
PUBLISHED (COA).
SIMMONS V. COM.TC properly denied Defendant's motion to suppress alleging that she was illegally detained after the initial traffic stop was concluded. “[T]he legality of a continued detention following a stop for a traffic violation is a question of reasonableness.” Garcia v. Commonwealth, 185 S.W.3d 658, 667 (Ky. App. 2006). Given the totality of the circumstances, the officer’s continued questioning and ultimate detention of Simmons after she was given the traffic citation was not unreasonable. Simmons consent to a search of her vehicle was not the product of coercion or duress. It is well established that a statement by an officer that he will get a search warrant if consent is not given does not negate the voluntariness of the consent, unless the statement was baseless or deceptive, that is, unless the officer could not, in fact, have gotten a warrant. Neither does the fact that the officer asked several times before Simmons gave consent negate the voluntariness of the consent. Finally, Simmons was not unrepresented at any critical stage of the proceedings.
Digested by Scott C. Byrd
Olgin and Byrd
The Uninsured Employers' Fund (UEF) appealed from TC’s order denying its motion to set aside an order determining that deceased worker was father of child. The UEF argued that TC’s order was void ab initio because that court lacked jurisdiction; that it was a necessary party to this action; and that TC erred when it did not provide relief under CR 60.03.
FACTS:
Because Worker’s employer did not have worker’s compensation insurance when Worker died due to a work-related injury, UEF was joined as a party to worker’s compensation claim filed by Estate. During course of discovery in worker’s compensation claim, the parties determined that Worker might have fathered a child before coming to the U.S. from Mexico. Neither the child nor child’s Mother had ever resided in the U.S. After Administrative Law Judge refused to make paternity determination, Estate filed Complaint for Determination of Paternity in Family Court. UEF was not named as a party but was copied on Complaint. UEF did not move to intervene or otherwise respond to the complaint. Family Court entered Agreed Order of Paternity. A few months later, UEF filed Motion to Set Aside Paternity Order under CR 60.02. TC denied the Motion and UEF brought this appeal.
ARGUMENTS AND ANALYSIS:
UEF first argued that TC lacked jurisdiction to determine paternity on several different grounds. In order to file complaint under KRS 406.021, the complaint must have been filed by County Attorney or
CHFS. As Estate filed the complaint, the complaint could not have been properly before the court under this statute. CA agreed. UEF also asserted that KRS Chapter 406, which is said to apply to all cases of birth out of wedlock, did not provide jurisdiction to TC to determine paternity, as the birth must have occurred in the state or the mother must have met certain residency requirements. As neither of these terms was met, UEF claimed that TC did not have jurisdiction to decide paternity under KRS Chapter 406. CA again agreed. However, CA found that Section 112 of the Constitution and KRS 23A.100 and 23A.110, when construed together, give the family court jurisdiction beyond KRS Chapter 406 proceedings, including declaratory judgment actions. Furthermore, though the complaint was styled as a determination of paternity, it was appropriate to treat the complaint as a declaratory judgment, as a pleading should be judged according to its substance and not its form.
UEF next argued that Estate fatally erred by failing to join it as a necessary party in the paternity action, because it had an interest that would be affected by the declaration of paternity, as it may be required to pay income benefits to any children of Worker. CA found that UEF did have an interest in the declaration of paternity, but that UEF should have attempted to intervene in the action, as only parties can complain that a necessary party was not joined.
Lastly, UEF argued for relief under CR 60.03, which provides for equitable relief through independent actions. In order to receive this relief, UEF should have demonstrated that there was no other available or adequate remedy; that it did not create or affect the situation for which it requests equitable relief through its own fault or neglect; and that there was a recognized ground for the relief, such as fraud, accident or mistake. CA found that UEF did not and could not have demonstrated any of these things, as the fact that it had the opportunity to intervene in the action affected each one.
Digested by Michelle
Eisenmenger Mapes
Diana L. Skaggs +
Associates
Lee appeals TC's entry of summary judgment for Farmers RECC in her wrongful death action stemming from an accident in which her husband's low flying plane struck an unmarked power line 1/4-inch in diameter and stretching 870 feet across the channel of Nolin Lake at a height of 85 feet. FRECC argued that it was under no statutory or common duty to mark this particular power line, and the TC agreed.
On appeal, Lee continued to argue that, at a minimum, FRECC had a common law duty to mark the power line considering that the supporting structures on either side of the lake were concealed by trees and vegetation, that FRECC knew that aircraft frequently flew at a low height over the lake, and the fact that there had been a prior accident involving another unmarked line over Nolin Lake. Thus, Lee maintained that her husband's accident was foreseeable to FRECC. In response, FRECC maintained its position on a lack of duty and contended that the decedent's violation of FAA regulations was the proximate cause of his death.
On review, the COA began by noting that in Kentucky a person only owes a duty to exercise ordinary care in those situations where an injury is foreseeable, and that foreseeability is to be determined by reviewing the facts as they reasonably appeared to the party being charged with negligence, not as they appear in hindsight. To demonstrate foreseeability, the claiming party need not demonstrate that the defendant should have been able to anticipate the precise injury sustained or the manner in which it was sustained. Rather, the party only needs to show that an injury of some kind to some person could have been foreseen under the circumstances.
The COA then goes through an analysis of the body of case law cited by both sides from other jurisdictions on whether FRECC could be held liable when it was under no statutory duty to mark this power line, which even Lee conceded. Upon comparing the facts of the particular cases to the present one, the COA noted that rendering a foreseeability determination under these case facts was an "arduous task," even suggesting that submitting the question of foreseeability to a jury much like these other jurisdictions when presented with conflicting evidence would be reasonable in this instance. The COA nevertheless noted that it was bound by Kentucky precedent that deems foreseeability as it relates to duty to be a pure question of law for the court's determination. As such, the COA concluded that the nature of Lee's injury was a foreseeable result of FRECC having failed to mark the subject power line given the lack of visibility of both the line itself and supporting structures on either side. The COA of course noted that it would be for a jury to determine whether FRECC breached its deemed duty and whether this breach was the proximate cause of the accident as compared to FRECC's argument that Lee's violation of a FAA regulation setting minimum flight altitudes was the actual cause of the accident and his death.
James
R. Chadword Kessinger
Schiller, Osbourn, Barnes &
Maloney
CA affirms jury verdict for defense in this trampoline injury case.
Seven-year-old Katie visited her grandparents in Louisville. She left their home to walk down the street to meet a neighbor. En route and unsupervised by anyone, Katie met an unknown neighbor girl and began jumping with her on her family's trampoline. Katie suffered a significant leg break requiring surgeries and resulting in differing leg lengths.
CA upholds denial of directed verdict for plaintiff on liability because there was sufficient evidence on the issue, including Katie's grandparents' supervision, to present a question for the jury. Denial of directed verdict for plaintiff on her contributory fault is moot because the jury found in her favor on this question. Finally, the denial of a jury instruction on spoliation of evidence (destruction of the trampoline) was not improper as the destruction was considered a subsequent remedial measure.
Digested by John
Hamlet
Sitlinger, McGlincy,
Theiler & Karem
NOT PUBLISHED (COA)
2005-CA-000085BAKER V. COM.
EMPLOYMENT LAW: DOUBLE DIPPING RETIREMENT AND HEALTH INS. PREMIUMS
2005-CA-001588
NOT TO BE PUBLISHED: 412
DATE RENDERED: 10/19/2007
AT & T CORP. V. FOWLER
EMPLOYMENT LAW: COMMISSIONS AND CHARGEBACKS
2006-CA-000402
NOT TO BE PUBLISHED: 113
DATE RENDERED: 10/19/2007
THACKER V. COM.
CRIMINAL: PROSECUTORIAL MISCONDUCT
2006-CA-000626
NOT TO BE PUBLISHED: 110
DATE RENDERED: 10/19/2007
CARNEY V. CARNEY
FAMILY LAW: CR 54.02(1); FINAL JUDGMENT ON LESS THAN ALL CLAIMS
2006-CA-001003
NOT TO BE PUBLISHED: 90
DATE RENDERED: 10/19/2007
DYER V. COM.
CRIMINAL: VOLUNTARINESS OF GUILTY PLEA
2006-CA-001197
NOT TO BE PUBLISHED: 100
DATE RENDERED: 10/19/2007
FITZPATRICK V. COM.
CRIMINAL: KNOCK AND TALK
2006-CA-001520
NOT TO BE PUBLISHED: 137
DATE RENDERED: 10/19/2007
WATTERS V. COM.
CRIMINAL: JRP 603 DISCOVERY;
2006-CA-001553
NOT TO BE PUBLISHED: 105
DATE RENDERED: 10/19/2007
ROGERS V. COM.
CRIMINAL: 11.42 FAILURE TO INVESTIGATE
2006-CA-001607
NOT TO BE PUBLISHED: 95
DATE RENDERED: 10/19/2007
WHITTENBERG CONSTRUCTION CO. V. UNIVERSITY OF
KENTUCKY
CIVIL: SOVEREIGN IMMUNITY DEFENSE APPLICABLE TO UK
2006-CA-002028
NOT TO BE PUBLISHED: 97
DATE RENDERED: 10/19/2007
CAMPBELL V. COM.
CRIMINAL: 60.02 AND 11.42
2006-CA-002201
NOT TO BE PUBLISHED: 84
DATE RENDERED: 10/19/2007
JOHNSON V. COM.
CRIMINAL: COLLATERAL CHALLENGES TO CONVICTION DISFAVORED
2006-CA-002622
NOT TO BE PUBLISHED: 66
DATE RENDERED: 10/19/2007
COLLINS V. SANTIAGO
FAMILY LAW: IMMIGRATION ISSUES
2007-CA-000391
NOT TO BE PUBLISHED: 75
DATE RENDERED: 10/19/2007
JONES V. ELAM (NOW MOORE)
FAMILY LAW: PUTATIVE DAD SOUGHT REFUND OF BACK CHILD SUPPORT WHEN DNA TEST
SHOWED HE WAS NOT THE BIOLOGICAL DAD
2007-CA-000541
NOT TO BE PUBLISHED: 75
DATE RENDERED: 10/19/2007
PERKINS V. LYNCH
ELECTION CONTEST
2007-CA-000639
NOT TO BE PUBLISHED: 105
DATE RENDERED: 10/19/2007
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