CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
SUPREME COURT - Jan. 19, 2006
COURT OF APPEALS - Jan. 203, 2006
PUBLISHED:
STRATTON V. KENTUCKY CABINET FOR FAMILIES AND CHILDREN
FAMILY LAW - GOVERNMENTAL IMMUNITY-DEATH OF ABUSED CHILD NOT IN CUSTODY
TORTS - Governmental Immunity
2003-SC-000580-DG.pdf
Published Affirming Scott, J. Date: 1/19/2006
Investigation by social workers into alleged abuse are “simply discretionary, and therefore, there was no waiver of immunity”, affirming the Court of Appeals which upheld the Board of Claims’ dismissal of an action taken by the estate of the deceased minor child who had been murdered by her mother’s live-in boyfriend. The Franklin Circuit Court of Appeals found that the duties of the Cabinet were ministerial and that governmental immunity was waived and the Court of Appeals reversed that decision. Administrative regulations do outline the types of individuals to be interviewed when an allegation of child abuse is made. Several allegations of abuse had been made concerning this child and at one point the child was removed from her mother’s custody. Even at the time of the removal, however, no evidence of the actual abuser was found. The mother cooperated with the Cabinet’s requirements and custody was returned to her. After the return, more allegations of abuse were made to the Cabinet but these allegations included information from the child that her injuries were the results of accidents; when the regular case worker did visit two day after the last report, on a regularly scheduled visit, he limited his interviews to the child and her natural mother, both of whom claimed the injuries were accidentally inflicted by a neighbor child during play. The social worker’s visit was on May 17, 1994, and the child was murdered four days later. The very first physical abuse, resulting in the temporary removal from the mother, was February 11, 1994. The Court of Appeals opinion explains that the first decision is to determine whether investigation of child abuse is ministerial (applying routine duties) in which the agency has no discretion or discretionary (involving policy-making decisions and significant judgment). Discretionary acts cannot be a basis for recovery under the Board of Claims Act. Which witnesses to interview, which witnesses to believe, interpreting the information received, etcetera, are acts of Cabinet social workers which require significant judgment and discretion. The Franklin Court of Appeals had relied on the case of Collins v Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122 (Ky. 1999). The Supreme Court distinguished Collins which concerned the death of a child who drowned in a flooded drainage culvert because the culvert was too small to handle the expected rain run-off and found the negligent performance of Natural Resources actionable under the Board of Claims Act; the majority in that case said that the inspection of drainage culverts to see if they conform to regulations would only require mathematical engineering calculations and no statutory interpretation, discretionary judgment or policy-making decisions.
BAKER V. JONES
Government - Open Records Statute (Inadvertent Disclosure, Waiver of exemption)
2004-CA-002126
Published
Affirming (Vanmeter, Presiding Judge)
Date: 1/20/2006
This appeal dealt with an Open Records Request for emails, memos, and other documents pertaining to the legal bills of attorney Steven Catron to the City of Bowling Green which was identified in a local newspaper article. When part of the request was denied based upon the vagueness of the request and the confidentiality of the emails drafted between members of the council etc., Baker filed suit. COA held records of a public agency which are preliminary in nature are not required to be disclosed under the Kentucky Open Records Act, and the inadvertent or unauthorized disclosure of emails to a local newspaper reporter did not constitute a waiver of the disclosure exemption. Affirmed the judgment of the Warren Circuit Court.
NOT PUBLISHED:
The opposing party claimed some two years after the fact that she had not received a copy of the judgment, though the Court's docket and distribution list showed it did go to her counsel. She sought to have the Court re-enter the judgment under CR 60.02. The CAs held that rule would not apply in this case, especially since (1) appellant had waited over two years to bring the matter up (CR 60.02 provides for a one-year limitation); and (2) that her attorney did find a copy of the judgment in some old papers of one of his paralegals sometime after receiving a note from the Court that final judgment had been entered. The CAs focused a bit on the differences between using 60.02(a) and (f) (mistake v. extraordinary & compelling equities).
WHEELER V. EVANS
PROPERTY - Real Property (Boundary dispute, encroachment, estoppel)
2004-CA-001272
Not Published
Date: 1/20/2006
Wheelers claimed Evan’s successor’s in interest where encroaching. TC found against Wheelers. Wheelers appealed. COA finds that Wheelers joined in deed that granted land to Evan’s and, thus, argument is precluded by estoppel.
BURTON V. OUR LADY OF BELLEFONTE HOSPITAL
TORTS - PREMISES LIABILITY -
2004-CA-002368
Not Published
Date: 1/20/2006
CA reverses and remands dismissal of slip-and-fall claim against hospital.
Appellant was driven to hospital by daughter, who parked in a marked no parking area near a driveway leading to the ER. There was snow and ice on the ground. Appellant exited the vehicle, slipped, a fell over a 13" section of retaining wall, falling to the ground on the other side 4' below. He suffered a broken neck and other serious injuries. Appellant sued alleging: 1) negligent removal of snow and ice; 2) negligent design of the driveway; and 3) failure to install a railing on the retaining wall. The TC tersely dismissed on SJ holding it "indisputable that [the hospital] owed no duty to [the appellant] to insure the safety of the no-parking zone as regards pedestrians or inclement weather."
CA reverses and remands, holding that the record showed that invitees regularly parked in the no parking zone and the hospital was aware of it and could reasonably foresee this happening. Also, TC failed to address the negligent design/construction and failure to install railing claims sufficiently.
Thanks to John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Stephen Keller, Paul C. O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's CIVIL appellate decisions.
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