Kentucky Court of Appeals - Unpublished
Premises Liability - Natural Accumulations
Hayden v. Up, Inc., 2014 WL 2795151 (Ky.App. May 30, 2014)

The plaintiff claimed injuries following a fall in a McDonald's parking lot. It had snowed and the parking lot had been cleared. A large mound of snow had been left near the parking spot he chose. The plaintiff saw the mound, described as in disarray, and thought it odd that it had been left in the parking area. When he stepped out of his vehicle he saw "slushy" stuff. He observed pieces of ice that had fallen from cars in the lot. As he walked to the door he stepped on a piece of ice six inches in diameter and two inches thick. The trial Court granted summary judgment, but the Court of Appeals, applying its reading of Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013), reversed. The Court held that it was for the jury to determine whether the piece of ice created a foreseeable risk of injury. As we predicted, the only thing between this new perversion of comparative fault and strict liability for falls is the imagination of the property owner, unless of course the Supreme Court walks the "Easter Seals" decision back.

Kentucky Court of Appeals - Unpublished
Employment - Public Whistleblower - Adverse Employment Action
White v. Sanitation District No. 1, 2014 WL 2795837 (Ky.App. May 30, 2014), motion for discretionary review filed June 30, 2014 (2014-SC-0003507-D)

This was an action brought under the whistleblower statute which protects public employees. KRS 61.102. The trial Court instructed the jury that the employee had to prove an adverse employment action, a common essential element of discrimination and retaliation cases under federal and state law. The Court of Appeals held this to be error, finding that the statute itself uses the term personnel action. The Court did not directly address the meaning of personnel action, but may be as broad as any conduct which "tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee". It remains less than clear just how this is different than an adverse employment action, particularly under the facts of this case.

Kentucky Court of Appeals - Unpublished
Procedure - Summary Judgment - Use of Affidavits
Paschal v. Landmark Community Newspapers of Kentucky, Inc., 2014 WL 2795859 (Ky.App. May 30, 2014)

In this employment case the employer filed a motion for summary judgment after the plaintiff responded to written discovery and testified by deposition. In support of her claims of sex discrimination/hostile environment and retaliation claims, she recited a number of alleged events in discovery. In response to the motion, the employee filed an affidavit describing additional facts which she asserted to be supportive of her claims. The Court held that since all instances of discriminatory conduct had been requested in the prior discovery, the addition of a new instance was contradictory and therefore could not be considered on the motion for summary judgment.

Kentucky Court of Appeals
Immunity - Placement of Traffic Controls
Estate of Megan Morris v. Smith, ___ S.W.3d ___, 2014 WL 1998726 (Ky.App. May 16, 2014), motion for discretionary review filed June 12, 2014 (2014-SC-000308-D)

While seven teenagers were riding in a car on a dark rainy night the driver failed to negotiate a curve in Graves County and Megan was killed. Her estate brought suit against Graves County, the Fiscal Court and several county officials alleging negligence in failing to provide warning at the curve. The defendants were granted summary judgment based on sovereign immunity, and on appeal, see prior opinion, reversed as to the officials in their individual capacities since the trial Court undertook no real analysis of the applicability of immunity to them. The Court also observed in that opinion that the implementation of the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD)by a local official would be ministerial. After additional discovery, the trial Court again granted summary judgment, finding that the decision on whether to place a sign at the curve was discretionary.

In this case, the proof suggested that the county officials had altogether failed to implement the MUTCD. Instead, traffic controls were installed at the request of a constituent, the public or when an official though appropriate. Thus, the Court found that the alleged liability was the failure to place a warning sign, not the failure to implement the MUTCD. The decision to place a warning sign was determined to be discretionary.

Kentucky Court of Appeals
Arbitration - Authority to Agree
Kindred Healthcare, Inc. v. Henson, ___ S.W.3d ___, 2014 WL 1998728 (Ky.App. May 16, 2014), motion for discretionary review filed July 15, 2014 (2014-SC-000395-D)

Plaintiff was admitted to a nursing home facility in Bowling Green and was accompanied by her son and his wife during the admission process. When asked to sign the admission papers, Plaintiff responded that she was too nervous and asked her son to do it for her. The son executed the documents, including the optional arbitration agreement. The Court agreed with the trail Court that the verbal direction to sign the documents did not include authority to agree to arbitration.

Kentucky Court of Appeals - Unpublished
Process - Malicious Prosecution - Cause of Proceedings
Lindle v. Fifth Third Bank, 2014 WL 1778407 (Ky.App. May 2, 2014)

Lindle asked a bank teller to examine a one hundred dollar bill that she thought might be a fake. After concluding that it was counterfeit, Lindle left with the bill. Once the bank realized that Lindle should not have been allowed to leave with a counterfeit bill, law enforcement was contacted and informed. Officer Gibson went to the bank to investigate, and was advised of the encounter. After concluding his investigation, Gibson obtained an arrest warrant for Lindle charging possession of a forged instrument and she was arrested. She was bound over but the grand jury returned no true cause. She sued the bank alleging malicious prosecution.

An essential element of a claim for malicious prosecution is that the judicial proceeding was instituted or continued at the defendant's instance, or said another was, was procured by the defendant. In the context of a public prosecutor, the Court applied Restatement (Second) of Torts § 653, comment g (1977), which provides that " When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this Section even though the information proves to be false and his belief was one that a reasonable man would not entertain." The Court found no liability on the part of the bank under this rule. The police officer testified that the bank did not request that criminal charges be preferred against Lindle, and that he had decided criminal charges were appropriate. This case provides helpful guidance to anyone who is required to interact with law enforcement and the only problem with the opinion is that it is designated not to be published.