Kentucky Court of Appeals - Unpublished
Premises Liability - Slip and Fall
Spears v. Schneider, 2015 WL 2153310 (Ky.App. May 8, 2015)

The plaintiff fell on the stairs leading from the sidewalk to the front door of the defendant store. The door was located at the corner of Eleventh and Ann Streets. There are four steps that are semicircular in shape. The public sidewalk on Eleventh is level with the stairs, but the sidewalk on Ann slopes such that the height of the lowest step changes gradually in order to meet the sidewalk. These stairs have been in place since 1958. There was a handrail on one side of the stairs. As plaintiff was leaving the store she rolled her ankle on the bottom stair. The plaintiff argued that the stairs themselves were a distraction and invoked the then recent case of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). The Court of Appeals affirmed the summary judgment dismissing the claims. Prior Opinion. Following the rendition of Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), the Supreme Court remanded the case back to the Court of Appeals to consider the new precedent.

The Court first observed that under Easter Seals the focus shifts from duty to breach of duty, but also notes that summary judgment is appropriate on that issue where reasonable minds cannot differ. The Court observed that the stairs in question were well-maintained, well-lit and a handrail was offered. The Court observed that it is difficult to conceive of anything the premises owner could have done differently. One judge dissented, arguing that there was a factual issue remaining, but does not identify what the issue is.

Kentucky Court of Appeals - Unpublished
Premises Liability - Recreational Use Statute
Bryant v. Jefferson Mall Company, L.P., 2015 WL 2153209 (Ky.App. May 8, 2015)

Plaintiff in this case fell in a puddle of water that had collected on the floor of a mall. The mall opens its public area at 9:00 a.m., and allows the public to use the area to exercise until the shops open at 10:00 a.m. No fees are charged for this use. She fell at about 9:55 a.m. while using the mall to exercise.

A landowner's liability is limited by KRS 411.190 where the property is available to the public to use at no charge. Plaintiff argued that mall walking was not an enumerated type of recreational use as defined in the statute, but the Court noted that the enumerated activities were illustrative and mall walking was similar to enumerated forms of exercise such as swimming, hiking, bicycling, etc. The Plaintiff further argued that the statute did not apply to an enclosed commercial facility, but the Court gave a broad construction to the definition of land in order to facilitate the purpose of the statute.

Sixth Circuit Court of Appeals
Insurance - Extracontractual Claims - Reverse Bad Faith
State Auto Property and Cas. Ins. Co. v. Hargis, ___ F.3d ___, 2015 WL 2081922 (6th Cir. May 6, 2015)

Hargis was a State Auto insured when her insured home was destroyed by fire. It was determined that the fire was intentionally set. Hargis claimed $866,000.00 and State Auto paid about half of that before filing an action to declare the policy void. Hargiss removed the case to federal court and filed a counterclaim alleging violations of the Consumer Protection Act and the Unfair Claims Settlement Practices Act. Subsequently, Hargis was indicted, admitted that she had solicited a friend to burn her house down for the insurance money, and plead guilty. The Court ordered restitution of $672,497.80.

State Auto argued that Kentucky would adopt the tort of "reverse bad faith" where a claimant acts maliciously or fraudulently. The Court rejected the claim. While the concern about the increased power these claims give to claimants and the abuse of these claims by some plaintiffs and their lawyers is significant, the problem is that there is no theoretical basis for a "bad faith" claim against an insured. The tool most likely to breed success in the fight against the extortion and fraud underlying extracontractual claims is the tort of abuse of process, as most of these claims are brought for the sole purpose of extorting more money that the claimant was properly entitled. However, such a claim would likely have to be directed against the attorney since most claimants simply do what they are advised to do, and most insurers are reluctant to go this far. This certainly could backfire so the reluctance may well be justified, and as long as the costs can be passed on to the public perhaps reluctance is the best plan.

Kentucky Court of Appeals - Unpublished
Premises Liability - Conduct of Third Persons
Collins v. Newport on the Levee, LLC, 2015 WL 1969409 (Ky.App. May 1, 2015)

Collins was eating at a restaurant located in Newport on the Levee when his child became ill. He picked him up and left the restaurant, entering into the common area. Just after turning a corner to his right he felt something under his feet and fell. After the fall he saw two teenagers scurry to their feet and he believed he had tripped over them. The entertainment center had retained a third party company to handle security, who had between two and nine security guards on the premises at any given time. Among their duties was to monitor the premises for loitering. No injuries had previously been reported that were attributable to loitering. No one had observed patrons sitting or lying on the floor and there had been no complaints of inadequate seating. The trial Court granted summary judgment on two grounds, lack of negligence and the open and obvious rule.

The Court affirmed, but noted there was no need to resort to the open and obvious rule. Rather, the Court noted, claims arising out of the conduct of third persons were governed by Restatement (Second) of Torts section 344 (1965). The panel upheld the summary judgment because there was no proof that any condition created by loitering teenagers was known to the defendant in sufficient time to prevent the fall.