News

In addition to the new members featured in the 2023 Fall/Winter issue of Common Defense, please welcome these new members to KDC:

• Harlee Havens, Stites & Harbinson, PLLC
• Taylor Marak, Sewell & Neal, PLC
• Samuel Harmon, Porter, Banks, Baldwin and Shaw
• Christopher Lewis, Freeman Mathis & Gary, LLP

During the 2023 Fall Seminar, participants were encouraged to create a hand-written greeting card to be distributed to children in hospitals across the nation through the organization Cardz for Kidz.   Members had a great time letting their creativity flow during breaks at the seminar and created 30 uplifting & thoughtful cards & bookmarks!  KDC also made a monetary donation to Cardz for Kidz to cover the postage and handling costs.   Thank you KDC for giving back to those around us!

   

KDC member Jeremiah Byrne, along with Griffin Terry Sumner and Andrew Palmer from Frost Todd Brown, just received a significant jury trial victory on behalf of Kentucky Utilities. FBT defended KU in the high-stakes litigation involving a 2018 wrongful death case. The trial, in which the Plaintiff asked the jury for a total award of $107 million, lasted eight days. The jury deliberated for just over three hours before returning a full defense verdict in favor of our client. You can find the full details in the link below. 

https://frostbrowntodd.com/trial-victory-fbt-earns-favorable-ruling-for-kentucky-utilities-in-wrongful-death-case/

Docket: 2021-SC-0411-DG

Opinion Date: February 16, 2023

Judge: Lambert

Areas of Law: Criminal Law

The Supreme Court affirmed in part and reversed in part the decision of the court of appeals concluding that Defendant's sentence must be vacated because the circuit court committed palpable error, holding relief was warranted but that the court improperly reversed Defendant's probation revocation.

Defendant pled guilty to two felonies and of being a persistent felony offender in the second degree and was sentenced to a twenty-two term of imprisonment. Defendant filed a motion to vacate, challenging the plea agreement and his conviction and sentence. The court of appeals concluded that the circuit court committed palpable error, warranting resentencing. The Supreme Court affirmed in part and reversed in part, holding (1) while the court of appeals erred by treating Defendant's appeal as a direct appeal, the court's conclusion that the circuit court committed reversible error was not erroneous; and (2) the court of appeals erred by reversing the circuit court's probation revocation order.

Oufafa v. Taxi, LLC

Docket: 2022-SC-0003-WC

Opinion Date: February 16, 2023

Judge: Michelle M. Keller

Areas of Law: Labor & Employment Law

In this workers' compensation case, the Supreme Court vacated the ALJ's determination that Defendant was correct to deny Plaintiff benefits on the ground that he was an independent contractor, not an employee, holding that this Court hereby adopts the economic realities test to safeguard the protection afforded by workers' compensation.

Plaintiff was working as a taxi driver for Defendant when he was shot in the shoulder and became permanently paralyzed from the waist down. Plaintiff sought workers' compensation to pay for his extensive medical care, but Defendant denied the claim due to Plaintiff's status as an independent contractor. An ALJ also determined that Plaintiff was an independent contractor. The Workers' Compensation Board reversed. The court of appeals reversed and reinstated the ALJ's opinion. The Supreme Court remanded the case back to the ALJ, holding that this Court's holding in Mouanda v. Jani-King International, 635 S.W.3d 635 (Ky. 2022) adopting the economic realities test is extended to the workers' compensation context.

Jefferson County Public Schools v. Tudor

Docket: 2022-SC-0024-DG

Opinion Date: February 16, 2023

Judge: Michelle M. Keller

Areas of Law: Personal Injury

The Supreme Court reversed the judgment of the court of appeals reversing the order of the circuit court granting summary judgment to Jefferson County Board of Education (BOE) and dismissing this lawsuit on immunity grounds, holding that the BOE was entitled to summary judgment on its immunity claim.

A Western High School student, through his mother and next friend, brought suit against the BOE and Brian Raho, the assistant principal at the high school, for assault and battery. The trial court granted summary judgment for the BOE and Raho, finding that the BOE was entitled to sovereign immunity and that Raho was entitled to qualified official immunity. The court of appeals reversed. The Supreme Court reversed the court of appeals' opinion to the extent that the court reversed the summary judgment to the BOE, holding that, while the trial court cited to the incorrect type of immunity, it correctly found that the BOE was immune from suit.

Cameron v. EMW Women's Surgical Center, P.S.C.

Docket: 2022-SC-0329-TG

Opinion Date: February 16, 2023

Judge: Lambert

Areas of Law: Civil Rights, Constitutional Law, Health Law

The Supreme Court affirmed the decision of the court of appeals dissolving the circuit court's temporary injunction against two statutes that effectively prohibit abortions in Kentucky except in limited circumstances where it is necessary to preserve the life of the mother, holding that the circuit court abused its discretion in granting the temporary injunction.

Plaintiffs, several abortion providers, filed for injunctive and declaratory relief against Ky. Rev. Stat. 311.772 and Ky. Rev. Stat. 311.7707-11, arguing that the bans contained in the statutes violated their patients' right to privacy under sections 1 and 2 of the Kentucky Constitution. The circuit court granted the temporary injunction. The court of appeals dissolved the temporary injunction against the bans. The Supreme Court affirmed, holding (1) Plaintiffs lacked third-party standing to challenge the statutes on behalf of their patients, but Plaintiffs did have first-party, constitutional standing to challenge one of the statutes on their own behalf; and (2) the court of appeals did not err in holding that the circuit court abused its discretion by granting the temporary injunction.

Congratulations to KDC amicus writer Ryan Nafzinger of Phillips Parker Orberson & Arnett for the defense victory before the Kentucky Supreme Court in Walmart, Inc. v. Reeves, 2021-SC-0288-DG (Feb. 16, 2023).  The Kentucky Supreme Court's unanimous opinion explicitly limits the holding of Shelton to open and obvious cases.  Great work, everyone!

The underlying case involved negligent security claims for third-party criminal acts.  The case hinged on the question of foreseeability in the context of a premises owner’s duty to protect against criminal acts, and who decided that question.  A landowner typically has no duty to prevent third-party criminal acts that occur on its premises.  However, there is a duty when those third-party criminal acts are foreseeable.  In this case, Walmart had been successful in obtaining summary judgment following the assault of a Walmart patron in a store parking lot by a third party.  Walmart argued that because such an event was not foreseeable, Walmart had no duty to provide security or otherwise take measures to prevent the attack and thus, as a matter of law, could not be liable.  The Plaintiff, using a variety of crime statistics and prior incident reports, argued the opposite.  The trial court conducted an analysis of that evidence, determined the evidence was not sufficiently similar in character so as to make the assault foreseeable, and granted summary judgment in Walmart’s favor because of the lack of duty.  At the Court of Appeals, the Plaintiff argued (in the style of Shelton and McIntosh and their progeny) that the question of foreseeability was a question of fact for the jury to decide.  In other words, all premises owners have a general duty to protect against foreseeable criminal acts, and the question of whether the acts are foreseeable is a question for the jury to decide in determining whether the premises owner breached that duty.  The Court of Appeals sided with the Plaintiff and reversed summary judgment.  Fortunately, the Kentucky Supreme Court found otherwise.  The Kentucky Supreme Court explicitly limited the holdings in Shelton to open and obvious cases, and found that the question of foreseeability in the context of negligent security cases was a question of law for the trial court to decide.  Going forward, for a plaintiff to prevail on a claim for negligent security, the plaintiff must establish that the criminal act was foreseeable before the duty to prevent or protect against that act can be established.  This gives premises owners an achievable route for obtaining summary judgment in cases where the act was not foreseeable.  Most importantly, this is a question for the trial court to decide as a matter of law. 

 

Celebrate St. Patrick's Day with your KDC colleagues!!   

The KDC Spring Seminar will be held on Friday, March 17 at the historic Seelbach Hilton Hotel in downtown Louisville.     A full day's agenda is planned and CLE up to 6 hours!

Visit the Events page to register online or download the Agenda & Registration form here:  2023 Spring Agenda Registration Form2.doc

This was reprinted from Justia newsletter, January 5, 2023

Doe, a high-school student, suffers from a condition that makes her hypersensitive to the everyday sounds of eating food and chewing gum. Doe’s parents unsuccessfully requested that her school ban students from eating or chewing in her classes. They sued the Knox County Board of Education under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. While considering their preliminary injunction motion, the district court dismissed the suit, reasoning that Doe’s parents could obtain the requested relief in administrative proceedings under the Individuals with Disabilities Education Act (IDEA) and had failed to exhaust administrative remedies under 20 U.S.C. 1415(l).

The Sixth Circuit reversed and remanded. The IDEA provides relief only to students who need “specially designed instruction.” Because no ordinary English speaker would describe a ban on eating and chewing as “instruction,” her parents did not need to go through the IDEA’s review process to attempt to seek this ban under the ADA and Rehabilitation Act. However, Knox County offered significant justification for its policy allowing students to eat in class at the magnet school that Doe chose to attend—a school designed to operate like a college–which the district court must consider in the first instance.

https://law.justia.com/cases/federal/appellate-courts/ca6/22-5317/22-5317-2023-01-04.html

Kelsey Bryant of Hamm, Milby & Ridings PLLC in London, is a graduate of the University of Kentucky Rosenberg College of Law.    Ms. Bryant practices in many areas including insurance defense, general liability, and business and commercial liability.   She is sponsored by Jay Milby Ridings.

Kaitlyn Embry of Bell, Orr, Ayers & Moore PSC in Bowling Green, is a graduate of Belmont University College of Law.  Ms. Embry practices in many areas including civil litigation, insurance defense, and estate planning and administration.   She is sponsored by KDC Past-President Paul T. Lawless.

Darren Smith of Whitlow, Roberts, Houston & Straub in Paducah, is a graduate of the University of Kentucky Rosenberg College of Law.   Mr. Smith practices in the areas of auto, general liability, insurance coverage, and workers compensation.   He is sponsored by KDC President Jason Coltharp.

William Tyler Lloyd of Ward, Hocker & Thorton PLLC in Lexington, is a graduate of Northern Kentucky University Chase College of Law.    Mr. Lloyd practices in many areas including insurance coverage, construction, and employment.  He is sponsored by KDC Young Lawyers Committee Chairperson Whitney Williams. 

We are excited to announce DRI’s Free Membership Pilot Program for current KDC members! DRI is offering a free year of membership to new members and those whose membership lapsed more than five years ago. This limited program runs through August 31, 2022, so join today to start making the most of your free year of DRI membership!

Membership in DRI gives you instant connection to the largest association of civil defense attorneys in the nation. DRI provides both virtual and in-person networking and CLE options, including webinars and seminars, as well as resources such as its monthly publication and expert witness referral network. Make the most of your defense practice by scanning the QR code below with your smart phone camera app and joining DRI today!

For more information, email Kentucky’s DRI State Representative Ashley Brown at abrown@whtlaw.com.