COMMONWEALTH OF KENTUCKY COMPENDIUM … OF KENTUCKY COMPENDIUM OF LAW ... by serving the attorney...
Transcript of COMMONWEALTH OF KENTUCKY COMPENDIUM … OF KENTUCKY COMPENDIUM OF LAW ... by serving the attorney...
Updated 2012
COMMONWEALTH OF KENTUCKY
COMPENDIUM OF LAW
Prepared by Melissa Norman Bork
Bingham Greenebaum Doll LLP 3500 National City Tower
101 South Fifth Street Louisville, KY 40202
(502) 589-4200 www.bgdlegal.com
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PRE-SUIT AND INITIAL CONSIDERATIONS
Pre-Suit Notice Requirements/Prerequisites to Suit
A) Libel. To recover punitive damages in a libel action against a newspaper, radio or
television broadcasting station, the plaintiff must make a sufficient demand for correction
prior to commencement of the action. KY. REV. STAT. ANN. § 411.061.
B) Roads. A plaintiff must give notice within ninety (90) days of injury prior to filing suit
against any city in Kentucky for injury resulting from a defect in the condition of a
roadway or bridge. KY. REV. STAT. ANN. § 411.110.
C) Aircraft nuisance. Before suit may be brought against a governmental unit for damages,
noise abatement or otherwise, arising from the operation of aircraft into or out of an
airport, written notice must be given to the governmental unit “within seven (7) days of
the time within which each such operation occurred.” KY. REV. STAT. ANN. § 411.115.
Relationship to the Federal Rules of Civil Procedure
The Kentucky Rules of Civil Procedure are patterned after the Federal Rules. Although there are
differences, the Rules are substantially similar.
Description of the Organization of the State Court System
A) Judicial selection. Judges in Kentucky are elected by districts in non-partisan elections.
Kentucky is divided into seven appellate districts, each of which elects one justice to the
Supreme Court and two judges to the Court of Appeals, who each serve eight (8) year
terms. Circuit and District Court districts vary in size depending upon population and
caseload. Some districts encompass several counties and have only one judge, while
others include only one county and have several judges. Circuit Court judges also serve
eight (8) year terms. District Court judges serve for four (4) years. KY. CONST. §§ 109-
13, 115-17, 119. See also Kentucky Court of Justice, available at
http://courts.ky.gov/courts/ (last visited July 10, 2012).
B) Structure. Kentucky has a four-tiered court system.
1) District Court. The District Court is a trial court of limited jurisdiction. Juvenile
matters, city and county ordinances, misdemeanors, traffic offenses, probate of
wills, arraignments, felony probable cause hearings, small claims involving
$2,000 or less, and civil cases involving $5,000 or less are all District Court
matters, as well as voluntary and involuntary mental commitments and cases
relating to domestic violence and abuse. Appeals from District Court are made to
Circuit Court. KY. REV. STAT. ANN. § 24A.010, et seq.; see also Kentucky Court
of Justice, available at http://courts.ky.gov/district court (last visited July 10,
2012).
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2) Circuit Court. The Circuit Court is the trial court of general jurisdiction and has
authority to try all cases for which jurisdiction has not been expressly vested in a
different court. The Circuit Court presides over cases involving capital offenses,
felonies, land disputes, contested probates of wills, and general civil litigation in
disputes involving more than $5,000. Circuit Courts have the power to issue
injunctions, writs of prohibition, writs of mandamus and hear appeals from
district courts and administrative agencies. KY. REV. STAT. ANN. § 23A.010, et
seq.; see also Kentucky Court of Justice, available at http://courts.ky.gov/circuit
court (last visited July 10, 2012).
a) The Family Court is a division of Circuit Court which retains primary
jurisdiction in domestic matters. Family Court shares jurisdiction with
District Court over proceedings involving domestic violence and abuse;
the Uniform Act on Paternity and the Uniform Interstate Family Support
Act; dependency, neglect, and abuse; and, juvenile status offenses. Id.
3) Court of Appeals. The Court of Appeals hears cases on appeal from a lower
court and may review directly decisions of administrative agencies of the
Commonwealth. KY. CONST. § 111(2). Original proceedings (i.e., writs of
prohibition or mandamus) against a judge or agency whose decisions may be
reviewed as a matter of right may also be prosecuted at the Court of Appeals. KY.
R. CIV. P. 76.36.
4) Supreme Court. The Kentucky Supreme Court is comprised of a Chief Justice
and six Justices. KY. CONST. § 110. It is the Commonwealth’s court of last resort
and the final interpreter of state law. The Supreme Court normally assumes
appellate jurisdiction only by grant of discretionary review, except for cases
involving the death penalty, life imprisonment or imprisonment for twenty (20)
years which are heard as a matter of right. KY. CONST. § 109; see also Kentucky
Court of Justice, http://courts.ky.gov/courts/ (last visited July 10, 2012).
C) Alternative dispute resolution (“ADR”). Kentucky does not have a comprehensive
state-wide statute for ADR. However, KY. R. CIV. P. 16(1)(f) provides that, at the pretrial
conference, the court may require the parties to “consider … such other matters as may
aid in the disposition of the action.” This includes ordering the parties to engage in
mediation. See Ky. Farm Bureau Mut. Ins. Co. v. Wright, 136 S.W.3d 455, 459 (Ky.
2004). The court may require that each party have an agent present with the full
authority to settle the action. Even though the court can require that the parties engage in
mediation, it cannot require the parties to actually settle. See id. Many counties have
adopted the Model Mediation Rules, Kentucky Rules of Court (State) 379-80 (2008).
Other counties have their own rules and some have no rules at all. Kentucky has also
adopted the Uniform Arbitration Act. KY. REV. STAT. ANN. §§ 417.045-.240. Kentucky
will enforce arbitration provisions in written agreements, except agreements between
employers and employees, and insurance contracts. KY. REV. STAT. ANN. § 417.050.
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Service of Summons
A) Service of summons is governed by KY. R. CIV. P. 4.01 which sets forth the methods for
service upon a: (1) person; (2) public corporation; and (3) private corporation. A civil
summons and complaint or other initiating document may be served by registered mail,
certified mail return receipt requested with instructions to deliver to the addressee only,
or by any peace officer or other person authorized by law to deliver such summons.
Proof of service shall be evidence by the return mail receipt noting the time, place and
manner of service, or return endorsed by authorized service agent noting the time and
manner of service.
B) Person. A person within the state may be served by personal delivery, or by registered or
certified mail with return receipt requested, mailed by the court clerk for delivery to the
addressee only. Service upon an unmarried infant or person of unsound mind shall be
made by delivering to either of the person’s parents, if within the state, or, if none, to the
person within the state having control of such individual. Service is complete only upon
delivery. KY. R. CIV. P. 4.04(2)-(3).
C) Partnership. A partnership or unincorporated association shall be served by delivering
to a partner or managing agent, or other agent authorized by appointment or law to
receive service. KY. R. CIV. P. 4.01(4).
D) Corporation. A corporation may be served by delivery to an officer or managing agent
or chief agent in the county wherein the action is brought, or any other agent of the
corporation authorized by law to receive service. KY. R. CIV. P. 4.04(5). Foreign and
domestic corporations conducting business in Kentucky are required by KY. REV. STAT.
ANN. § 14A.4-010 to have a registered agent for service of process. If serving a
corporation by registered mail, the envelope must be addressed to an appropriate officer
and not merely to the name of the corporation, to ensure that a responsible party receives
the summons. Service on a nonresident individual who transacts business through an
office or agency within the state shall be made by serving the person in charge thereof.
KY. R. CIV. P. 4.04(9).
E) Commonwealth. Service upon the Commonwealth or any agency thereof shall be made
by serving the attorney general or any assistant attorney general. KY. R. CIV. P. 4.04(6).
F) Counties. Service upon a county shall be made by serving the county judge or, if he or
she is absent, the county attorney. Service upon a city shall be made by serving the chief
executive officer or an official attorney thereof. Service upon a public board which is not
a state agency shall be made by service of a member thereof. KY. R. CIV. P. 4.04(7).
G) Individuals outside of state. Service upon an individual outside the state shall be made
either by certified mail or by personal delivery by a person over eighteen (18) years of
age. Such service, without an appearance, shall not authorize a personal judgment, but
the individual summoned shall otherwise be considered to be before the court. KY. R.
CIV. P. 4.04(8).
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H) Long-arm statute. Kentucky’s long-arm statute, KY. REV. STAT. ANN. § 454.210,
allows service of process in actions against a non-resident arising out of:
1) the transaction of business in the state;
2) supplying goods or services in the state;
3) causing injury in the state;
4) breach of warranty for goods used or consumed or services rendered in the state;
5) an interest in real property in the state;
6) contracting to insure any person, property or risk in the state;
7) committing sexual intercourse in the state which causes the birth of a child; or
8) making telephone solicitations in the state.
Service in such cases shall be made upon the person if within the state or, if not, upon the
Secretary of State who is deemed that person’s statutory agent. In such cases, the
Secretary of State shall mail by certified mail two (2) copies of the summons and
complaint to the address listed on the complaint and summons and shall make a return to
the court. Summons shall be deemed served on the return to the Secretary of State. KY.
REV. STAT. ANN. § 454.210(3)(b).
I) Waiver. A defendant can consent to receive service by a method other than those
prescribed by the rules, or can waive service of process altogether. PHILLIPS & KRAMER,
KENTUCKY PRACTICE, vol. 6, 23 (6th ed. 2005) (citing WRIGHT & MILLER, FEDERAL
PRACTICE & PROCEDURE (2d ed.), Civil § 1062).
Statutes of Limitations
A) Construction. An action arising out of any deficiency in the construction of or
improvement to real property, or any property damage or personal injury arising
therefrom must be brought within seven (7) years of substantial completion. KY. REV.
STAT. ANN. § 413.135(1). An injury occurring during the seventh year, must be brought
within one (1) year from the date of the injury (irrespective of the date of death), but in
no event more than eight (8) years after substantial completion. KY. REV. STAT. ANN. §
413.135(2). A construction claim arising from a contract executed and administered by
the Transportation Cabinet must be filed in Franklin Circuit Court within one (1) year the
issuance of a final pay estimate by the state or receipt of a final adverse decision from the
Commonwealth, whichever occurs later. KY. REV. STAT. ANN. § 45A.260(1). Any other
construction claim involving the state shall “be commenced in Franklin Circuit Court
within one (1) year from the date of completion specified in the contract.” KY. REV.
STAT. ANN. § 45A.260(2).
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B) Contract. An action on an oral contract must be brought within five (5) years of the
accrual of the cause of action. KY. REV. STAT. ANN. § 413.120(1). An action on a
written contract not involving a sale of goods must be brought within fifteen (15) years of
accrual. KY. REV. STAT. ANN. § 413.090(2). The limitations period may be reasonably
shortened by written agreement. See Schultz v. Cooper, 134 S.W.3d 618, 619 (Ky. App.
2003). An action for breach of contract involving the sale of goods is governed by
Kentucky’s Uniform Commercial Code, and must be brought within four (4) years of
accrual. KY. REV. STAT. ANN. § 355.2-725(1). A cause of action accrues when the
breach occurs, regardless of a party’s knowledge or lack of knowledge of the breach.
KY. REV. STAT. ANN. § 355.2-725(2). Parties to a contract for the sale of goods may
decrease the period of limitation to as little as one (1) year but may not extend it past four
(4) years. KY. REV. STAT. ANN. § 355.2-725(1).
C) Employment. An action for civil rights violations brought under the Kentucky Civil
Rights Act, KY. REV. STAT. ANN. § 344, must be brought within five (5) years. KY. REV.
STAT. ANN. § 413.120. An action for wage discrimination based on sex must be brought
within six (6) months of the occurrence. KY. REV. STAT. ANN. § 337.430. An action for
recovery of unpaid unemployment compensation contribution, interest or penalties must
be brought within ten (10) years from the due date. KY. REV. STAT. ANN. § 341.300(4).
D) Workers’ compensation. Notice of a work-related injury must be been given to the
employer “as soon as practicable” after its happening and an action for workers
compensation benefits must be brought within two (2) years of the date of the injury, or
in case of death, within two (2) years after the death. KY. REV. STAT. ANN. § 342.185(1).
To receive benefits for work-related exposure to the human immunodeficiency virus
notice must be given and a claim filed within five (5) years of the injurious exposure.
KY. REV. STAT. ANN. § 342.185(2). A claim for benefits resulting from occupational
disease must be made within three (3) years of the last injurious exposure or the
employee’s first discovery of the injury, whichever is later. If benefits resulting from
death are claimed, the claim must be made within three (3) years of death. KY. REV.
STAT. ANN. § 342.316(4)(a).
E) Fraud. An action for relief or damages on the ground of fraud or mistake must be
brought within five (5) years of accrual. KY. REV. STAT. ANN. § 413.120(12).
F) Governmental entities. Pursuant to KY. CONST. § 231, the Commonwealth, its agencies
and political subdivisions are immune from suit unless such immunity has been expressly
waived by the legislature. See also Ky. Ctr. for the Arts Corp. v. Berns, 801 S.W.2d 327,
330 (Ky. 1990). Unless otherwise permitted, suits against the Commonwealth or its
divisions or agencies must be filed with the Board of Claims within one (1) year of
accrual. KY. REV. STAT. ANN. § 44.110(1). Property damage claims accrue at the time of
the alleged negligent act. KY. REV. STAT. ANN. § 44.110(2). Personal injury claims
accrue at the time the injury is first discovered or in the exercise of reasonable care
should have been discovered; however, no action for personal injury shall be commenced
beyond two (2) years from the date the alleged negligent act occurred. KY. REV. STAT.
ANN. § 44.110(3). The same rule applies for medical malpractice, except that the action
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must be commenced within three (3) years of the alleged act or omission. KY. REV.
STAT. ANN. § 44.110(4).
G) Personal injury. An action for personal injuries arising out of an automobile accident
must be brought within two (2) years. KY. REV. STAT. ANN. § 304.39-230. An action for
personal injuries against the builder of a home or other improvements must be brought
within five (5) years of the time of original occupancy. KY. REV. STAT. ANN. §
413.120(14). Otherwise, an action for personal injury must be brought within one (1)
year after the cause of action accrued. KY. REV. STAT. ANN. § 413.140(1)(a).
H) Indemnity. An action for common law indemnity must be brought within five (5) years.
KY. REV. STAT. ANN. § 413.120(7); Degener v. Hall Contracting Corp., 27 S.W.3d 775,
782 (Ky. 2000).
I) Contribution. An action for contribution must be brought within five (5) years of
accrual. KY. REV. STAT. ANN. § 413.120(2). See also Baker v. Richeson, 440 S.W.2d
272, 274-75 (Ky. 1969). Limitation begins running, not at the time of commission of the
tort, but at the time the right of action for contribution accrues, ordinarily by payment.
Roehrig v. City of Louisville, 454 S.W.2d 703, 704 (Ky. 1970).
J) Professional liability. An action for malpractice must be brought within one (1) year.
KY. REV. STAT. ANN. § 413.140(1)(e). “The cause of action shall be deemed to accrue at
the time the injury is first discovered or in the exercise of reasonable care should have
been discovered.” KY. REV. STAT. ANN. §§ 413.140(2), 413.245.
K) Property damage. An action for property damage must be filed within two (2) years of
accrual. KY. REV. STAT. ANN. § 413.125.
L) Wrongful death. An action for wrongful death must be brought within one (1) year
from the death. KY. REV. STAT. ANN. § 411.135(2).
M) General. An action created by statute for which no other time is fixed must be brought
within five (5) years after the cause of action accrued. KY. REV. STAT. ANN. §
413.120(2). The statute of limitations for personal injuries not arising from contract and
not otherwise set by statute is also five (5) years. KY. REV. STAT. ANN. § 413.120(7).
“An action for relief, not provided for by statute, can only be commenced within ten (10)
years after the cause of action accrued.” KY. REV. STAT. ANN. § 413.160.
N) Tolling for minors or those with disabilities. If a person is a minor or of unsound mind
at the time a cause of action accrues, the statute of limitations for most actions will be
tolled and may be brought within the same number of years after the age of majority,
removal of the disability or death of the person, whichever happens first, of the time
allowed for any other person. KY. REV. STAT. ANN. § 413.170(1). The tolling does not
apply to someone coming under a disability after the cause of action accrued. See
Alexander v. Commonwealth, 708 S.W.2d 102 (Ky. App. 1986).
O) Other tolling. If claim accrues against a resident during a time when he or she is
legitimately absent from the state (such as for military service), the limitations period
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shall be computed from the time he or she returns to the state. KY. REV. STAT. ANN. §
413.190(1)-(2).
P) Survival. If a person dies before the expiration of the time limited for the
commencement of a cause of action, the action may be brought by his personal
representative within one (1) year of the qualification of the representative, or in no event
longer than two (2) years from the date of death. KY. REV. STAT. ANN. § 413.180(1)-(2).
Statute of Repose
Statutes of repose which extinguish the right to bring a suit before the cause arises are
unconstitutional in violation of KY. CONST. § 59. Tabler v. Wallace, 704 S.W.2d 179 (Ky.
1985).
Venue Rules
A) With consent of the parties, the court may order any civil action from one Circuit Court
to another. KY. REV. STAT. ANN. § 452.010(1). One party to a civil action triable by a
jury may have a change of venue to a different Circuit Court when it appears that,
because of the circumstances or nature of the case, he cannot have a fair and impartial
trial in that county. KY. REV. STAT. ANN. § 452.010(2). Notice must be given to the
nonmoving party within ten (10) days. KY. REV. STAT. ANN. § 452.020. Where the
judge determines that another venue would be more convenient, venue shall be changed,
but the action shall not be dismissed. KY. REV. STAT. ANN. § 452.105; see Dollar Gen.
Stores, Ltd. v. Smith, 237 S.W.3d 162 (Ky. 2007). A change of venue shall be made to
the adjoining county most convenient to the parties. KY. REV. STAT. ANN. § 452.050. A
party may not have more than one change of venue in an action. KY. REV. STAT. ANN. §
452.040. The same venue rules apply to actions brought in District Court, except that
venue is changed to a District Court of another county. KY. REV. STAT. ANN. § 452.700.
B) Specific actions. For rules regarding where certain actions must originally be brought,
see KY. REV. STAT. ANN. §§ 452.400-.505.
NEGLIGENCE
Comparative Fault/Contributory Negligence
A) Pure comparative fault. Kentucky is a pure comparative fault state. In all tort actions
(including products liability actions) involving fault of more than one party, including the
plaintiff, third-party defendants, and persons who have settled, the jury is instructed to
allocate fault among the parties. KY. REV. STAT. ANN. § 411.182(1). In apportioning
fault, the jury is first instructed to determine damages without regard to fault and then to
allocate fault considering both the nature of the conduct and the extent of the causal
connection between each parties’ conduct and the damages claimed. KY. REV. STAT.
ANN. § 411.182(1)(a), (2). In Kentucky, a plaintiff can recover regardless of his own
percentage of fault. Hilen v. Hays, 673 S.W.2d 713, 719 (Ky. 1984).
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B) Apportionment. Only those parties who were either a party to an action, formerly a
party to an action, or previously released from liability can be apportioned fault. Bass v.
Williams, 839 S.W.2d 559, 563-64 (Ky. App. 1992). Courts have refused to extend
apportionment of fault to non-settling non-parties or so called “empty chairs.” Baker v
Ruth Webb, 883 S.W.2d 898, 899 (Ky. App. 1994); Bass, 839 S.W.2d at 863-64. A
settlement of a workers’ compensation claim between an employer and employee
constitutes a settlement for apportionment purposes. Therefore, so long as there is
evidence to support it, fault may be apportioned to a settling employer. Owens Corning
Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 481 (Ky. 2001). However, being named as a
party does not automatically entitle apportionment to that person. For fault to be
assigned to a tortfeasor, there must be sufficient evidence that a defendant’s conduct
legally caused the plaintiff's injury. Garlock Sealing Tech., LLC v. Dexter, 2008 WL
3159479 *4 (Ky. App. Aug. 8, 2008).
Exclusive Remedy – Workers’ Compensation Protections
A) Exclusivity. The Kentucky Workers’ Compensation Act provides the exclusive remedy
for an employee who sustains a work-related injury against his or her employer if the
employer has secured payment of compensation as required by the Act. KY. REV. STAT.
ANN. § 342.690(1). Courts recognize that the exclusive remedy provision essentially
“grants immunity for liability arising from common law and statutory claims.” Ky.
Emp’rs Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007).
B) Third parties. The statute also limits an employer’s liability to any third party who has
paid damages to the injured employee to the amount the employer could be directly liable
to the employee. KY. REV. STAT. ANN. § 342.690(1).
C) Scope. The exclusive remedy provision extends to an employer’s workers’ compensation
insurance carrier and all employees, officers and directors of both the carrier and the
employer. KY. REV. STAT. ANN. § 342.690(1). However, an employee’s exemption from
liability does not extend to damages from injury or death “proximately caused by the
willful and unprovoked physical aggression” of the employee, officer or director. Id.
D) “Employer.” The term “employer” under the Act also encompasses contractors,
regardless of whether a subcontractor has compensated the injured employee. KY. REV.
STAT. ANN. § 342.690(1). A person will be deemed a contractor under the Act if that
person “contracts with another . . . to have work performed of a kind which is a regular or
recurrent part of the business of such person.” KY. REV. STAT. ANN. § 342.610(2)(b).
Therefore, a property owner who contracts for work to be performed on its premises
which is of a kind that is a regular or recurrent part of its business, is a statutory employer
under the Act and is entitled to the benefit of the exclusive remedy provision. Daniels v.
Louisville Gas & Elec. Co., 933 S.W.2d 821, 823 (Ky. App. 1996). The purpose of this
provision is “[t]o discourage owners and contractors from hiring financially irresponsible
subcontractors . . .” to escape workers’ compensation liability. Elkhorn-Hazard Coal
Land Corp. v. Taylor, 539 S.W.2d 101, 103 (Ky. 1976).
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E) Protection. The protection provided by the Act is extensive. Not only does it shield the
employer and its insurer for damages arising out of a work-related injury to a covered
employee, but it also “bars an employee’s tort action for separate damages due to the
untimely payment of the [workers’ compensation] benefits.” Ky. Emp’rs Mut. Ins. v.
Coleman, 236 S.W.3d 9, 14 (quoting Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 341
(Ky. 1986)). Courts have no jurisdiction to provide an initial decision on any claims
regarding injuries covered under the Act, including tortious claims of bad faith and
mishandling of the workers’ compensation claim itself. Coleman, 236 S.W.3d at 14.
These claims are properly resolved only by a Workers’ Compensation Board. Id.
F) Jurisdictional. The exclusive remedy provision of the Act is jurisdictional and a trial
court lacks subject matter jurisdiction to consider cases in which the employer is entitled
to the protection of the exclusive liability provision. Shamrock Coal Co. v. Maricle, 5
S.W.3d 130, 133 (Ky. 1999).
Indemnification
A) Common law indemnity is a right available to parties who are exposed to liability due to
the wrongful acts of another party with whom they are not in pari delicto. Degener v.
Hall Contr. Corp., 27 S.W.3d 775, 780 (Ky. 2000). Pari delicto is defined as two or
more joint tortfeasors who are guilty of concurrent negligence of substantially the same
character which converges to cause the plaintiff’s damages. Id. at 778. Indemnification
does not allow a party to recover from another concurrently negligent party. Instead, it
allows a party who is secondarily or constructively liable to recover from the party who is
primarily liable for a plaintiff’s injuries due to negligence. V.V. Cooke Chevrolet, Inc. v.
Metro. Trust Co, 451 S.W.2d 428, 430 (Ky. 1970).
B) Application. The right to indemnity applies in two classes of cases. The first occurs
“[w]here the party claiming indemnity has not been guilty of any fault, except
technically, or constructively, as where an innocent master was held [responsible] for the
tort of his servant.” Degener, 27 S.W.3d at 780 (quoting Louisville Ry. Co. v. Louisville
Taxicab & Transfer Co., 77 S.W.2d 36, 39 (Ky. 1934)). The second class of indemnity
cases occur “where both parties have been in fault, but not in the same fault, towards the
party injured, and the fault of the party from whom indemnity is claimed was the primary
and efficient cause of the injury.” Id. The seminal Kentucky decision on common law
indemnity is Brown Hotel Co. v. Pittsburg Fuel Co., where a hotel company, found liable
for a pedestrian’s injuries due to an unsecured manhole, was determined to be entitled to
indemnity from the fuel company whose employee left the manhole unsecured. 224
S.W.2d 165 (Ky. 1949).
C) Relationship with comparative fault. The Kentucky Supreme Court has determined
that the common law right to indemnity remains intact, despite the enactment of
Kentucky’s comparative fault statue, KY. REV. STAT. ANN. § 411.182; Degener, 27
S.W.3d at 781.
D) Asserting claim. Under Kentucky law, a party seeking indemnification does not have to
wait until after it is determined to be liable for damages. Instead, it may assert the
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indemnification claim in the original tort action. Degener, 27 S.W.3d at 780 (citing
Robert F. Simmons Constr. Co. v. Am. States Ins. Co., 426 S.W.2d 441, 443-44 (Ky.
1968)).
E) Express provisions. Express contractual indemnity provisions are also valid and
generally enforceable. Agreements to indemnify against an indemnitee’s own negligence
are valid and not void for public policy. Fosson v. Ashland Oil & Refining Co., 309
S.W.2d 176, 177 (Ky. 1958). However, there is a strong presumption against such an
intention and where there is doubt as to the meaning of an indemnity clause, it will be
construed against indemnification for one’s own negligence. Id. In addition, pre-injury
indemnification provisions used to defend against the indemnitee’s own negligence are
void against public policy “when agreed to by a party in a clearly inferior bargaining
position.” Speedway SuperAmerica, LLC v. Erwin, 250 S.W.3d 339, 344 (Ky. App.
2008).
Joint and Several Liability
Joint liability applies when two or more joint tortfeasors both contribute to a single, indivisible
injury through their concurrent negligence of substantially the same character, and each
defendant is determined to be fully liable for the injury. Several liability occurs when the
defendants are only liable for their respective obligations and not the entire injury. At common
law, each joint tortfeasor was both joint and severally liable, meaning they were entirely
responsible for a plaintiff’s single, indivisible injury. However, joint and several liability in
Kentucky was abolished with the enactment of Kentucky’s comparative fault statute, KY. REV.
STAT. ANN. § 411.182. Dix & Assocs. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27-28
(Ky. 1990). Therefore, liability among joint tortfeasors in negligence cases in Kentucky “is no
longer joint and several but is several only.” Id. at 27. The extent of a defendant’s liability is
limited to the degree of fault apportioned by the jury. Stratton v. Parker, 793 S.W.2d 817, 820
(Ky. 1990).
Strict Liability
A) In determining whether a defendant is liable for a negligent tort, the law examines the
conduct of the defendant. However, in determining whether a defendant is strictly liable
for a plaintiff’s injury, the law examines the activity in which the defendant has chosen to
engage, or that product the defendant has chosen to sell to the public. If the activity or
the product is particularly dangerous, the law may impose liability on the defendant
without regard to the defendant’s degree of care. Put another way, “’[s]trict liability’ is a
judicial doctrine which relieves a plaintiff from proving specific acts of negligence and
protects him from certain defenses.” Carmical v. Bullock, 251 S.W.3d 324, 326 (Ky.
App. 2007).
B) Animals. Under Kentucky law, owners of certain types of animals are held strictly liable
for injuries or damages caused by these animals. Dog owners are held responsible for
any damage to a person, livestock or other property committed by their dog. KY. REV.
STAT. ANN. § 258.235(4). If cattle enter into neighboring land that has been fenced, the
11
owners are strictly liable for any property damage the cattle cause. KY. REV. STAT. ANN.
§ 256.080.
C) Products liability. A plaintiff may bring a products liability action under theories of
strict liability, negligence or breach of warranty. Williams v. Fulmer, 695 S.W.2d 411,
413 (Ky. 1985). Both statutory and common law govern product liability actions. KY.
REV. STAT. ANN. § 411.300, et seq. In terms of products liability, strict liability will only
be imposed if the product sold is “in a defective condition unreasonably dangerous to the
user or consumer or to his property.” Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50,
54-55 (Ky. App. 1999). The defect can be an error in the manufacture of a product, or
properly made product, manufactured according to an unreasonably dangerous design.
Id. The Products Liability Act also does not preclude the jury from considering the
comparative fault of all parties. Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d
467, 474 (Ky. 2001).
1) Proving defect. Liability for products liability is not without fault, and a plaintiff
must prove the existence of the defect to recover. However, a manufacturer is
presumed to know the qualities and characteristics, and the actual condition, of his
product at the time he sells it, and the question for the fact finder is whether the
product creates “such a risk” of injury that an “ordinarily prudent” manufacturer
would not have put it on the market. Nichols v. Union Underwear Co. Inc., 602
S.W.2d 429, 433 (Ky. 1980). Considerations such as “feasibility of making a
safer product, patency of the danger, warnings and instructions, subsequent
maintenance and repair, misuse, and the products’ inherently unsafe
characteristics,” are to be considered in determining whether the product was in
“a defective condition, unreasonably dangerous,” and if determined to be a
substantial factor or intervening cause, any one of these factors may be decisive.
Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780-81 (Ky. 1984).
3) The Act creates a statutory presumption that a product is not defective “if the
injury, death or property damage occurred either more than five (5) years after the
date of sale to the first consumer or more than eight (8) years after the date of
manufacture” and “if the design, methods of manufacture, and testing conformed
to the generally recognized and prevailing standards or the state of the art in
existence at the time the design was prepared, and the product was
manufactured.” KY. REV. STAT. ANN. § 411.310(1), (2). The presumption may
be rebutted by evidence that product was defective, and there is no requirement
that the plaintiff introduce evidence that design did not conform to prevailing state
of the art. Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299-300 (Ky.
App. 1997).
4) Wholesalers and retailers. One who sells a product manufactured by another in
its original condition shall have no liability for injury caused by the product
absent breach of an express warranty or evidence that the seller knew or should
have known of the product’s defective, unreasonably dangerous condition at the
time of sale. KY. REV. STAT. ANN. § 411.340.
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D) Learned intermediaries. The “Learned Intermediary” doctrine essentially holds that a
drug manufacturer is not under an obligation to directly warn the ultimate consumer
about the potential risks involved in the use of a prescription drug. Larkin v. Pfizer, Inc.,
153 S.W.3d 758 (Ky. 2004). Given the fact that the drug must be prescribed by a
physician or health care provider to reach a consumer, the manufacturer’s only obligation
is to warn the health care provider, and not the patient, of potential dangers. Id. The drug
manufacturer has a duty to warn the “learned intermediary,” usually the prescribing
physician or health care provider, and not the third-party consumer. Pharmacists are
considered retailers under the Kentucky Products Liability Act and not learned
intermediaries. Therefore, they may be held liable if they knew or should have known of
the defect in the product at the time of sale, but they are not subject to further liability as
health care providers. Smith v. Wyeth Inc., 488 F. Supp. 2d 625, 630 (W.D. Ky. 2007).
Willful and Wanton Conduct
A) In Kentucky, willful or wanton conduct is a form of gross negligence. The term
“willful,” is somewhat misleading, because willful conduct need not be intentional, the
legal analysis hinges on the outrageousness of the conduct, not the state of mind of the
actor. Louisville & N.R. Co. v. George, 129 S.W.2d 986, 989 (Ky. App. 1939). It is not
necessary to show ill will toward the person injured, but merely an indifference to the
consequences of one’s actions. Id.
B) Heightened degree of negligence. In negligence cases, willful, wanton, or reckless
conduct is treated as a heightened degree of negligence that authorizes the imposition of
punitive damages. Courts have noted that “negligence when gross has the same character
of outrage justifying punitive damages as does willful and malicious misconduct.”
Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 389 (Ky. 1985). To justify
punitive damages, “there must first be a finding of failure to exercise reasonable care, and
then an additional finding that this negligence was accompanied by wanton or reckless
disregard for the lives, safety, or property of others.” Id. at 389-90.
DISCOVERY
Electronic Discovery Rules
Electronic discovery relates to the discovery of electronically stored information. Kentucky does
not currently have a specific rule or rules governing electronic discovery. However, pursuant to
KY. R. CIV. P. 26.01(2), parties propounding or responding to interrogatories, requests for
production, or requests for admissions are encouraged to serve discovery requests in an
electronic format, in any commercially available word processing software system.
Expert Witnesses
A) Forms of disclosure and reports required. KY. R. CIV. P. 26.02(4) separates experts
into two categories: experts a party expects to call as witnesses at trial, and experts who
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have been specially employed or retained in anticipation of litigation, but who are not
expected to serve as witnesses at trial.
1) Testifying experts. With respect to testifying experts, a party may, through
proper interrogatories, obtain discovery without a court order and without any
special showing. KY. R. CIV. P. 26.02(4)(a). In response to proper
interrogatories, a party is required to identify all testifying experts, state the
subject matter on which he or she will testify, provide the substance of the facts
and opinions to which the expert will testify and give a summary for the grounds
for each of the expert’s opinions. Id. In addition, depositions of an opposing
party’s experts may be taken, subject to restrictions based on scope of discovery,
without a court order as a matter of right. Id.
2) Consulting experts. With respect to consulting experts, discovery may be had
concerning facts known or opinions held by non-testifying experts only upon a
showing of “exceptional circumstances under which it is impractical for the party
seeking discovery to obtain facts or opinions on the subject by other means.” KY.
R. CIV. P. 26.02(4)(b). The physical condition of evidence that is the subject of
expert testimony and the expense in deposing are factors considered when
determining exceptional circumstances. Big Sandy Wholesale, Inc. v. Conley, 639
S.W.2d 778, 780 (Ky. 1982).
B) Discovery of expert work product. While a testifying expert is required to disclose the
basis of his or her opinions when served with proper interrogatories, an opposing party
may not admit the reports and opinions of experts whom a party does not intend to call at
trial. This rule strengthens the protection given to non-testifying expert opinions and
reports obtained prior to trial, even when those reports may be incomplete or unfavorable.
KY. R. CIV. P. 26.02(4)(a).
C) Rebuttal witnesses. As a general rule, “the scope and duration of cross-examination
rests in the sound discretion of the trial court in both civil and criminal cases.” Morrow
v. Stivers, 836 S.W.2d 424, 428 (Ky. App. 1992). Therefore, it is for the trial court to
determine whether to allow rebuttal testimony and, if so, its scope. While the identity of
rebuttal witnesses, including experts is required to be disclosed in accordance with the
rules of discovery, there is no authority that requires a party disclose what the anticipated
rebuttal testimony will be. Meek v. Vasconez, 2006 WL 1652736 *4 (Ky. App. June 16,
2006). “Rebuttal evidence is not confined to proving or disproving facts testified to by
the witnesses on the other side, but that is nonetheless rebuttal evidence which tends to
counteract or overcome the legal effect of the evidence for the other side.” Ajax Coal Co.
v. Collins, 269 Ky. 222, 106 S.W.2d 617, 618 (1937).
1) Preserving appeals record. When rebuttal testimony is excluded, the party
seeking its introduction must, at a minimum, make an avowal as to what that
testimony would be for the error of its exclusion to be considered on appeal.
Houser v. Coursey, 221 S.W.2d 432, 434 (Ky. 1949).
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Non-Party Discovery
A) Subpoenas. KY. R. CIV. P. 45.01 governs the use of subpoenas.
1) KY. R. CIV. P. 45.01 provides that a subpoena shall be issued by a clerk or other
authorized officer, and shall command each person to whom it is directed to
attend and give testimony at a given time and place, or to produce documentary or
other tangible evidence. A subpoena shall state the court from which it is issued,
the title of the action, the court in which the action is pending, its civil action
number, and the name, address, telephone number and e-mail address of the
attorney or pro-se party causing the subpoena to be issued. Id. Subpoenas shall
only be used to command the attendance of a witness, and production of
documentary or tangible evidence at a deposition, hearing or trial. Documents
may, however, be produced without a deposition upon order of the court, or
agreement by the parties. Id. A subpoena can be quashed or modified by the
court upon motion at or before the time indicated for compliance if it is
unreasonable and oppressive, or the requesting party may be required to advance
the reasonable cost of producing the document, papers, or tangible things
requested. KY. R. CIV. P. 45.02.
2) Service. A subpoena may be served by any person over eighteen years of age or
any officer authorized to serve a summons including: service by sheriff, person
empowered to be sheriff, or person appointed by the court. (KY. REV. STAT. ANN.
§§ 454.140, 70.050, 454.145). Service shall be made by delivering or offering to
deliver a copy to the individual to whom it is directed. The affidavit thereon must
be endorsed by the individual serving the subpoena and shall act as proof of
service. KY. R. CIV. P. 45.03.
3) Location. A resident of a state may only be required to attend an examination in
the county where he or she resides, is employed, or transacts his or her business in
person, or at any such other convenient place as is fixed by the court. KY. R. CIV.
P. 45.04(3). A person commanded to produce documents or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless commanded to appear for a deposition, hearing, or
trial. Id.
4) Contempt. Disobedience or a refusal to be sworn or to answer as a witness under
a subpoena is punishable as contempt. KY. R. CIV. P. 45.06.
B) Respondents and time frames for responses. A person to whom a subpoena is directed
may, within ten (10) days after service or within a time frame specified in the subpoena,
serve written objection to the inspection or copying of materials. If such an objection is
made, the party serving the subpoena shall not be permitted to inspect or copy requested
materials without a court order. KY. R. CIV. P. 45.04(2). The civil rules also authorize an
15
independent action against a non-party for production of documents and things and
permission to enter upon land. KY. R. CIV. P. 34.03.
Privileges
A) Attorney-client privilege. The attorney-client privilege is an evidentiary privilege
governed by KY. R. EVID. 503.
1) Applicability. The attorney-client privilege applies to confidential
communications made for the purpose of securing legal advice (1) “between the
client and representative of the client and the client’s lawyer or a representative of
the lawyer;” (2) “between a lawyer and a representative of the lawyer;” (3) “by
the client or a representative of the client or the client’s lawyer or a representative
of the lawyer representing another party in a pending action and concerning a
matter of common interest therein;” (4) “between representatives of the client or
between the client and a representative of the client;” or (5) “among lawyers and
their representatives representing the same client.” KY. R. EVID. 503. Attorney-
client privilege can be waived by voluntary disclosure or consent to disclose any
significant portion of the privileged matter. KY. R. EVID. 509.
2) “Representative of the client.” KY. R. EVID. 503(a)(2) extends the attorney
client privilege to representative(s) of the client, which includes any person
having authority to obtain the legal services or to act on the legal advice, as well
as any employee who makes or receives confidential communication: (i) in the
course and scope of employment; (ii) concerning the subject matter of
employment; (iii) to effectuate legal representation of the client; and (iv) while
aware that they are being questioned so that the corporation could obtain legal
advice. Lexington Pub. Library v. Clark, 90 S.W.3d 53 (Ky. 2002); Upjohn v.
U.S., 449 U.S. 383 (1981).
3) Exceptions. Whether a communication or statement is privileged depends on the
facts and circumstances under which the communication was made. Lexington
Pub. Library, 90 S.W.3d at 80. If a statement or communication takes place
between or among any of the four classes of individuals listed in KY. R. EVID.
503, the statement or communication will be absolutely protected, unless it falls
into one of five exceptions involving, fraud, claimants through the same deceased
client, a breach of duty by a lawyer or client, documents attested by a lawyer, or
communications between joint clients. KY. R. EVID. 503(d)(1)-(5); St. Luke
Hosps. Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005).
B) Attorney work product. Under the attorney “work product doctrine,” documents and
tangible things prepared in anticipation of litigation or for trial by or for a party or a
party’s representative may be discovered only upon showing a substantial need for the
materials, and that the party seeking discovery is unable without undue hardship to obtain
a substantial equivalent of the materials by other means. KY. R. CIV. P. 26.02(3);
Hickman v. Taylor, 329 U.S. 495 (1947). In addition, “mental impressions, conclusions,
16
opinions, or legal theories” are distinguished from regular work product and are protected
by an absolute privilege. KY. R. CIV. P. 26.02(3)(a); Haney v. Yates, 40 S.W.3d 352, 356
(Ky. 2001); Duffy v. Wilson, 289 S.W.3d 555 (Ky. 2009). The doctrine also extends to
depositions of counsel who may be deposed only in “extraordinary circumstance.”
McMurry v. Eckert, 833 S.W.2d 828, 830 (Ky. 1992). However, party or person may
obtain a statement previously made by that party or person, without the required showing.
KY. R. CIV. P. 26.02(3)(b). The work product privilege is waived by voluntary disclosure
to an adverse party. Transit Auth. of River City v. Vinson, 703 S.W.2d 482 (Ky. Ct. App.
1985).
C) Self-critical analysis. The self-critical analysis privilege protects individuals and entities
from “divulging the results of candid assessments of their compliance with laws and
regulations, to the extent that the assessments are internal, the results were intended from
the outset to be confidential, and the information is of a type that would be curtailed if it
were forced to be disclosed.” BLACK’S LAW DICTIONARY, 1237 (8th ed. 2004). The
privilege is not recognized in the Kentucky Rules of Evidence and the Supreme Court
expressly refused to judicially adopt it. Univ. of Ky. v. Courier-Journal, 830 S.W.2d 373,
378 (Ky. 1991).
D) Other privileges. KY. R. EVID. 504-58 governs other forms of privileged information.
These privileges are:
1) Husband-wife privilege (KY. R. EVID. 504);
2) Religious privilege (KY. R. EVID. 505);
3) Counselor-client privilege (KY. R. EVID. 506);
4) Psychotherapists-patients privilege (KY. R. EVID. 507); and
5) Identity of informers (KY. R. EVID. 508).
E) Waiver. A privilege may be waived if the person holding the privilege voluntarily
discloses or consents to disclosure of any significant part of the privileged matter. KY. R.
EVID. 509. There is no waiver where the disclosure was compelled erroneously or made
without opportunity to claim privilege. KY. R. EVID. 510. To the extent possible, claims
of privilege shall not be disclosed to the jury and when required the party claiming
privilege is entitled to an instruction that the jury shall draw no adverse inference from
the claim. KY. R. EVID. 511.
Requests to Admit
A) KY. R. CIV. P. 36.01(1) allows a party to request an opposing party to admit or deny the
truthfulness of any statements or opinions of fact, the application of law to fact and the
genuineness of any documents. An answering party has thirty (30) days after being
served with the request to admit, deny, or object to each request. KY. R. CIV. P. 36.01(2).
An answering party may not give lack of information or knowledge as a reason for failing
to admit unless the party states that based upon a reasonable investigation, and the
information known or readily obtainable is insufficient to enable the party to either admit
or deny the request. KY. R. CIV. P. 37.01(2). An answering party also may not, on that
basis alone, object that the matter requested to be admitted presents a genuine issue for
17
trial, but may deny the matter or set forth the reasons why he or she cannot admit. Id.
Failure to timely answer or object to the request results in the matter being deemed
admitted. Id. In addition, if a court determines that an answer does not comply with the
requirements of the rule, the court may also deem the matter admitted. Commonwealth
Dept. of Hwys. v. Compton, 387 S.W.2d 314 (Ky. 1964). KY. R. CIV. P. 37.03 allows a
requesting party to recover costs, including attorney fees, expended in proving the truth
of any matter requested to be admitted under KY. R. CIV. P. 36.01.
B) Procedural requirements. Requests for admission may be served upon any other party
at the commencement of an action or later. The request shall separately set forth each
matter sought to be admitted. KY. R. CIV. P. 36.01(2). A party is limited to 30 requests,
but may petition the court to permit more. KY. R. CIV. P. 33.01(3). An answering party’s
objections and responses must be served within thirty (30) days of service of the requests,
except that a defendant shall have forty five (45) days to answer or object to requests
served with the summons and complaint. KY. R. CIV. P. 36.01(2).
Unique State Issues
A) Kentucky’s Rules of Civil Procedure are based upon the Federal Rules. West v.
Goldstein, 830 S.W.2d 379 (Ky. 1992). Kentucky courts often look to federal court
decisions in interpreting the rules. Hoffman v. Dow Chem. Co., 413 S.W.2d 332 (Ky.
1967). Thus, while Kentucky has not adopted specific rules regarding the discovery of
electronic documents, for example, a practitioner can and should seek guidance from the
Federal Rules of Civil Procedure.
B) In Kentucky, the vast majority of judicial circuits have adopted Local Rules of Court
which should be consulted when practicing in those areas. The Local Rules for each
county may be found at: http://apps.kycourts.net/localrules/localrules.aspx.
EVIDENCE, PROOFS & TRIAL ISSUES
Relationship to the Federal Rules of Evidence
Kentucky has codified the Kentucky Rules of Evidence (“KRE”) which substantially follow
many, but not all, of the Federal Rules of Evidence.
Expert Testimony
A) Daubert. Kentucky amended KY. R. EVID. 702 in 2007 to codify the expert qualification
standards established in Daubert v. Merroll Dow Pharm., 509 U.S. 579 (1993). The
Kentucky Supreme Court had previously adopted the Daubert approach. See, e.g.,
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000). The KY. R.
EVID. 702 amendment brings Kentucky’s rule in line with FED. R. EVID. 702.
B) Standard. The Kentucky Supreme Court requires “the balancing of probativeness
against prejudice required by KY. R. EVID. 403” as part of expert testimony analysis.
Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). Such decisions are
reviewed under an abuse of discretion standard. Goodyear Tire, 11 S.W.3d at 577-78.
18
C) Scientific and expert knowledge. The Kentucky Supreme Court in Goodyear Tire Co.,
described the standards for admissibility of testimony based on scientific and expert
knowledge. Goodyear Tire, 11 S.W.3d at 578-79. These include, but are not limited to,
four factors:
1) whether the expert’s theory or technique can be and has been tested,
2) whether the theory or technique has been subjected to peer review and
publication,
3) whether there is a high known or potential rate of error and whether there are
standard’s controlling the technique’s operation, and
4) whether it is generally accepted within the relevant scientific community.
Id.
Accident Reconstruction
Accident reconstruction is the process of showing how an accident took place. It applies
mathematical equations, computer modeling and simulations to describe the events of the
accident.
A) Accident reconstruction is typically done by expert witnesses. The accident
reconstructionist qualifies as an expert witness by his knowledge, skill, experience,
training, or education. KY. R. EVID. 702.
B) Qualifications. These experts are often trained in accident reconstruction and,
employing their special knowledge, testify to assist the trier of fact in understanding the
evidence or in determining a fact of consequence. Boggess v. Commonwealth, 2003 WL
1193266, at *7 (Ky. Jan. 23, 2003). A witness may also become qualified as an expert in
accident reconstruction through actual experience or long observation. Gentry v. Gen.
Motors Corp., 839 S.W.2d 576, 578 (Ky. App. 1992). The trial court has discretion in
deciding whether a witness is qualified and the limits of his expertise.
C) Photographs. Accident reconstructionists often draw conclusions based on photographs.
An expert may base his analysis on photographs alone, without performing a formal
accident reconstruction, provided the expert meets the minimum threshold of KY. R.
EVID. 702. Coulthard v. Commonwealth, 230 S.W.3d 572, 582 (Ky. 2007).
Appeal
An appeal is the process for requesting a change to a lower court’s decision. The Kentucky
Constitution allows parties in civil cases one appeal as a matter of right. KY. CONST. § 115.
Thus, for cases originating in District Court, the appeal would be to Circuit Court. For cases
originating in Circuit Court, the appeal would be to the Court of Appeals. There are generally no
direct appeals as a matter of right to the Kentucky Supreme Court in civil cases (but see below
regarding writ relief in the nature of mandamus or prohibition).
A) Notice of appeal. Notice of appeal must be filed within thirty (30) days after the date of
notation of service of the judgment or order. KY. R. CIV. P. 73.02. A cross-notice of
19
appeal is due within ten (10) days of the date the notice of appeal is due. KY. R. CIV.
P. 74.01.
B) Discretionary review. The Kentucky Supreme Court may grant discretionary review of
decisions from the Court of Appeals. KY. R. CIV. P. 76.32. It will only do so for certain,
unspecified, “special reasons.” Discretionary review may also be granted by the Court of
Appeals from appellate decisions of the Circuit Court.
C) Transfer of appeal. A party may file a motion in the Kentucky Supreme Court for
transfer of the appeal to that court. KY. R. CIV. P. 74.02. Such motion must be served
within ten (10) days after the notice of appeal to the Court of Appeals has been filed. Id.
An appeal is transferred directly to the Kentucky Supreme Court upon a showing that the
case is of “great and immediate public importance,” but is rarely granted in civil cases.
Id.
D) Mandamus. Writ relief in the nature of mandamus or prohibition may be sought in an
original action in the Court of Appeals. KY. R. CIV. P. 76.36. An appeal as a matter of
right from the Court of Appeals is available at the Kentucky Supreme Court. Id.
Collateral Source Rule
Under the collateral source rule, payments made to or benefits conferred on the injured from
other sources do not diminish the tortfeasor’s liability, even if they cover all or part of the
damages for which the tortfeasor is liable. 22 Am. Jur. 2d § 409 (2012).
A) Kentucky has long followed the collateral source rule. Louisville & Nashville R.R. Co. v.
Carothers, 65 S.W. 833, 834 (Ky. 1901). Courts employ the collateral source rule to
prevent the defendant from seeking a reduction in damages because the plaintiff’s
insurance partly or completely indemnifies him for the loss.
B) Double compensation. To the extent the defendant is required to pay the total amount,
the plaintiff may receive double compensation. However, a benefit that is directed to the
injured party “should not be shifted so as to become a windfall for the tortfeasor.”
Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 683 (Ky. 2005).
C) Effect. The evidentiary effect of this doctrine is that “evidence of collateral benefits is
not generally material.” McCormack Baron & Assoc. v. Trudeaux, 885 S.W.2d 708, 711
(Ky. App. 1994).
D) Constitutionality. A legislative attempt to alter the collateral source doctrine was held
unconstitutional. O’Bryan v. Hedgespeth, 892 S.W.2d 571, 576-77 (Ky. 1995)
Convictions
A) Evidence of prior convictions may be introduced under narrowly proscribed limits
provided in the Kentucky Rules of Evidence, some of which differ from their federal
counterparts. All evidence of prior convictions is also subject to the KY. R. EVID. 403
balancing test.
20
B) When permissible to introduce. KY. R. EVID. 404(b), although mostly applied in
criminal prosecutions, permits introduction of “other crimes” to show “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”
C) Impeachment. KY. R. EVID. 609, used for witness impeachment, permits introduction of
evidence that a witness has been convicted of a crime if the crime was punishable by
death or imprisonment for one (1) year or more. Such evidence is generally not
admissible if more than ten (10) years has passed since the date of conviction.
D) KY. R. EVID. 803(22) permits evidence of a final judgment of conviction for a crime
punishable by death or imprisonment (but not merely by fine), “entered after a trial or
upon a plea of guilty (but not upon a plea of nolo contendere) . . . to prove any fact
essential to sustain the judgment . . . .” This rule also covers convictions based on an
Alford plea. Pettiway v. Commonwealth, 860 S.W.2d 766, 769 (Ky. 1993). The rule is
not intended to introduce convictions for impeachment under KY. R. EVID. 609. Rather it
allows admission where the offering party seeks to establish that a fact necessary to
sustain the conviction is also required for recovery in a subsequent civil case, such as a
conviction for arson in a subsequent suit for insurance coverage on the same property or a
conviction for drunk driving in a subsequent personal injury suit arising out of the same
transaction.
Day in the Life Videos
A “Day in the Life” video depicts the life of the victim, the graphic nature of the victim’s injuries
and the daily struggles he or she encounters. It also demonstrates the necessity for the cost of
medical care.
A) Demonstrative evidence. The videos are demonstrative evidence used to aid the jury in
understanding a witness’ testimony. Videos are governed by the same rules which apply
to admissibility of photographs. Fields v. Commonwealth, 12 S.W.3d 275, 279 (Ky.
2000) (court added that “videotaping of a crime scene, like a crime scene photograph, is
admissible even though gruesome”).
B) Prejudice. KY. R. EVID. 403 provides for the exclusion of evidence that is deemed more
prejudicial than probative. Objection is often made to demonstrative evidence such as
day in the life videos on the grounds that they are unfairly prejudicial by arousing jury’s
emotions, evoking a sense of horror, or appealing to an instinct to punish.
Dead Man’s Statute
Kentucky’s “Dead Man’s Statute,” KY. REV. STAT. ANN. § 421.210, was repealed in 1992, upon
enactment of the Kentucky Rules of Evidence. The previous testimonial prohibitions against
such testimony do not now apply, although certain testimonial privileges may survive a
declarant’s death. KY. R. EVID. 503(c), 506(c).
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Medical Bills
Medical bills are generally admissible as evidence towards a claim for damages. Evidence that
the medical bills were paid partially or in full by an insurance company, or other collateral
source, is inadmissible. See supra “Collateral Source Rule” section.
A) Burden. A plaintiff must show that injuries resulting from the defendant’s actions
required medical expenses and the charges for treatment were reasonable.
B) Presumption. There is a presumption that any medical bill submitted is reasonable. A
medical bill which plaintiff incurred at a hospital is considered sufficient proof of
plaintiff’s medical expenses at such hospital. Daugherty v. Daugherty, 609 S.W.2d 127,
128 (Ky. 1980).
C) Business records. KY. R. EVID. 803(6), the business records hearsay exception, governs
the admissibility of medical records. Matthews v. Commonwealth, 163 S.W.3d 11, 26
(Ky. 2005) (outlining the various methods, in addition to live witness testimony which
may be used to authenticate such records). A summary of medical bills may also be
introduced, subject to KY. R. EVID. 1006. Walls v. Robinson, 2007 WL 4355475 at *3-n.
5 (Ky. App. Dec. 14, 2007).
Offers of Judgment
A) An offer of judgment is a method of settlement where the defendant makes an offer of
judgment at anytime more than ten (10) days before the trial. KY. R. CIV. P. 68. If the
offer is accepted within ten (10) days after the service of the offer, the court must enter
the judgment accordingly. Id. If the offer is not accepted within the ten (10) days, the
offer is no longer valid, and if the judgment obtained by the plaintiff at trial is not more
favorable than the offer, the plaintiff must pay defendant’s costs incurred after the
making of the offer. Id.
B) Revocation. KY. R. CIV. P. 68 does not address revocation or withdrawal of the offer
before the ten (10) day window closes. While the defendant is not obligated to make the
offer, once having made it, he may not revoke until the ten (10) day period expires.
Smith v. Ky. State Fair Bd., 816 S.W.2d 911, 913 (Ky. App. 1991).
C) Effect of acceptance. A defendant may not revoke an offer of judgment after timely
acceptance by the plaintiff. Pennyrile Citizens Bank & Trust Co. v. Scent, 676 S.W.2d
798, 799 (Ky. App. 1984).
D) Satisfaction of claims. An offer of judgment will moot a plaintiff’s claim where the
offer of judgment would fully satisfy the claim. In class action cases, once a class is
certified, the mooting of the plaintiff’s claim does not moot the action, but if the
plaintiff’s claim becomes moot before certification the action will be dismissed. Tallon
v. Lloyd & McDaniel, 497 F. Supp. 2d 847, 852 (W.D. Ky. 2007).
22
Offer of Proof
A) When the judge sustains an objection, the proponent of the question may make an offer of
proof. An offer of proof is an explanation of what the evidence would have shown had it
been allowed by the judge. KY. R. EVID. 103(a)(2).
B) An offer of proof permits the trial judge to reconsider the claim for admissibility. It also
preserves the issue for appeal by including the expected answer or excluded evidence in
the trial record.
Prior Accidents
A) KY. R. EVID. 404(b) permits introduction of “other acts,” not to show mere propensity or
bad character, but to show “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
B) The Kentucky Supreme Court recently applied KY. R. EVID. 404(b) in a bad faith
insurance claim, holding that admissibility of evidence of the insurer’s alleged earlier bad
faith was subject to a three part test: (i) “Is it relevant?;” (ii) “Does it have probative
value?;” and (iii) “Is the probative value outweighed by its prejudicial effect?” Ky.
Farmers Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 819-20 (Ky. 2005). The Court
concluded that the evidence of earlier acts was too dissimilar to permit its introduction.
Id. The Court explained that the “prior bad act must have been so strikingly similar to the
present act as to constitute a signature crime,” but adding that “strikingly similar ‘does
not necessarily mean’ identical.” Id. at 819; see also Harris v. Thompson, 497 S.W.2d
422, 429 (Ky. 1973) (holding that evidence of the occurrence of other accidents under
substantially similar circumstances is admissible when relevant to certain limited issues,
such as the existence of a dangerous condition or a party’s notice of such a condition).
Seat Belt and Helmet Use Admissibility
A) Seat belts. Under Kentucky law, failure of any person to wear a seatbelt is not
considered evidence of negligence per se. KY. REV. STAT. ANN. § 189.125.
1) Comparative fault. Negligent failure to wear a seat belt may constitute a basis
for assessing comparative fault provided the lack of seat belt restraint played a
part in causing or enhancing claimant’s injuries. Wemyss v. Coleman, 729
S.W.2d 174, 177-78 (Ky. 1987).
B) Helmets. Protective headgear is required for persons under twenty-one driving or riding
as a passenger on a motorcycle, persons with a motorcycle instruction permit, or who
have held a valid motorcycle license for less than one year. KY. REV. STAT. ANN.
§ 189.285.
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Spoliation
Spoliation is withholding or destruction of relevant evidence. However, no missing evidence
instruction is justified without a showing that the failure to preserve the missing evidence was
intentional. Coulthard v. Commonwealth, 230 S.W.3d 572, 581 (Ky. 2007).
Subsequent Remedial Measures
A) Subsequent remedial measures are changes, repairs, or precautions taken after an injury
which, if taken previously, would have made the injury less likely to occur. KY. R. EVID.
407. Evidence of subsequent remedial measures is inadmissible “to prove negligence,
culpable conduct, a defect in a product, a defect in a product’s design, or a need for a
warning or instruction.” Id.
B) When admissible. Subsequent remedial measures may be admissible when offered to
prove ownership, control, or feasibility of precautionary measures, when those matters
are controverted. Id.
C) Products liability. Kentucky amended KY. R. EVID. 407 in 2006 to bring Kentucky’s
rule in line with FED. R. EVID. 407, so that use of subsequent remedial measures is now
generally barred in products liability cases.
Use of Photographs
A) As a general rule, relevant photographs are admissible as evidence and do not become
inadmissible simply because they are gruesome or depict a heinous crime. Ratliff v.
Commonwealth, 194 S.W.3d 258, 271 (Ky. 2006). However, especially gruesome
photographs may become inadmissible when their “depictions go far beyond
demonstrating proof of a contested, relevant fact.” Id.
B) Requirements. A “trial judge has broad discretion in determining the admissibility of
photographic evidence.” Chestnut v. Commonwealth, 250 S.W.3d 288, 302 (Ky. 2008).
Before being admitted, the photographs must be duly verified as authentic, faithful
representations of the subjects at the time in question and must pass a KY. R. EVID. 403
balancing test to ensure any prejudicial effect would not outweigh their probative value.
See Holland v. Commonwealth, 703 S.W.2d 876, 879 (Ky. 1985) (photographs of
victim’s mutilated body inadmissible because they were “inflammatory and without
significant probative value” that went far beyond “proof of a contested relevant fact”);
Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 253 (Ky. 1995) (no abuse of discretion to
exclude photographs of decedent when such were cumulative to expert testimony and
medical records), overruled on other grounds by Martin v. Ohio Cnty. Hosp. Corp., 295
S.W.3d 104, 111 (Ky. 2009).
24
DAMAGES
Caps on Damages
Statutory caps on damages limit the amount of recovery available in a cause of action. Under the
Kentucky Constitution, the General Assembly may not cap damages recoverable for injuries
resulting in death, or for injuries to people or property. KY. CONST. § 54. As such, under
Kentucky law, there is no cap on the amount of recoverable damages. Moreover, there is no
“legal yardstick” for measuring damages and an award will be upheld as long as it is not found to
be excessive (i.e., awarded under the influence of passion or prejudice). Caudill v. Honeycutt,
437 S.W.2d 171, 173 (Ky. 1968); Burgess v. Taylor, 44 S.W.3d 806, 813 (Ky. App. 2001). As a
general rule, a plaintiff is not permitted to recover twice for the same elements of loss.
Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 918 (Ky. 1998). The collateral source
rule, however, is an exception to the rule against double recovery. Under the collateral source
rule, damages recoverable are not diminished by the fact that the injured party has been wholly
or partly indemnified by insurance, if the wrongdoer did not help procure the insurance. Id.
Calculation of Damages
A) The goal of compensatory damages is to make the injured party whole to the extent it is
possible to measure the injury in terms of money. Ky. Cent. Ins. Co. v. Schneider, 15
S.W.3d 373, 374 (Ky. 2000). In Kentucky, a plaintiff may only recover compensatory
damages for:
1) medical expenses;
2) the value of time lost;
3) fair compensation for physical and mental suffering; and
4) permanent reduction of earning power.
Id.
B) To warrant a particular assessment of damages, the proponent must show facts that allow
the damages to be measured and calculated with reasonable certainty. Ky. W. Va. Gas
Co. v. Frazier, 195 S.W.2d 271, 273 (Ky. 1946). A plaintiff may not recover uncertain,
contingent, and speculative damages. Spencer v. Woods, 282 S.W.2d 851, 853 (Ky.
1955).
Available Items of Personal Injury Damages
A) Past medical bills. An injured party may recover necessary and reasonable expenses for
medical services. Langnehs v. Parmelee, 427 S.W.2d 223, 224 (Ky. 1967).
B) Future medical bills. An injured party may recover future medical expenses caused by
a tort, as long as the party shows some present physical injury to support a cause of
action. Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 849, 856 (Ky. 2002).
25
C) Hedonic damages. Hedonic damages are not a unique item of damages. An injured
party may only recover for loss of enjoyment of life or lifestyle to the extent such
damages are subsumed within other recoverable categories. Adams v. Miller, 908 S.W.
2d 112, 116 (Ky. 1995), abrogated on other grounds by Giuliani v. Guiler, 951 S.W.2d
318, 319 (Ky. 1997).
D) Increased risk of harm. Damages for increased risk of future harm are not a unique
item of damages. Instead, increased risk of harm is a factor that the jury should consider
when calculating compensation for future physical pain and mental suffering, future
impairment of earning power, and future medical expenses. Capital Holding Corp. v.
Bailey, 873 S.W.2d 187, 194-95 (Ky. 1994).
E) Disfigurement. A plaintiff may not recover for disfigurement, but a plaintiff may
recover for past and future pain and suffering if the evidence warrants it. Elmore v.
Speicher, 481 S.W.2d 673, 674 (Ky. 1972).
F) Disability. A damage award may compensate a plaintiff for pain and suffering resulting
from a permanent or temporary disability. Coe v. Adwell, 244 S.W.2d 737, 739 (Ky.
1951). “For a permanent injury, the measure of damages is a sum reasonably sufficient
to compensate the plaintiff for his physical and mental suffering, and the permanent
reduction of the power to earn money.” Louisville & N.R. Co. v. Minnix, 202 Ky. App.
472, 260 S.W. 15, 16 (Ky. App. 1924).
G) Past Pain and suffering. Damages should include fair compensation for any physical or
mental suffering caused by the injury. Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373,
374 (Ky. 1995). There is no set rule for computing damages for pain and suffering. The
general rule is that the damages must be reasonable, free from sentiment and free from
punishment so as not to amount to punitive damages. Noel v. Creary, 385 S.W.2d 951,
953 (Ky. 1965).
H) Future pain and suffering. The probability of future pain and suffering may be
considered when calculating damages if the evidence shows that future pain and suffering
may stem from the injury. Nussbaum v. Caskey, 235 Ky. 640, 32 S.W.2d 18, 19 (Ky.
App. 1930).
I) Loss of society or consortium. A tort victim’s spouse may recover for loss of
consortium. Schulz v. Chadwell, 558 S.W.2d 183, 188 (Ky. Ct. App. 1977). A cause of
action for loss of consortium “is limited to loss of society, companionship, conjugal
affections, and physical assistance,” and does not include loss of financial support.
Kotsiris v. Ling, 451 S.W.2d 411, 412 (Ky. 1970). Loss of consortium, however, may
include the loss of household services from the spouse. Schulz, 558 S.W.2d at 188.
J) Lost income, wages, and earning power. An injured party may recover for the value of
time lost and any permanent reduction in earning power. Schneider, 15 S.W.3d at 374.
To recover for lost future earnings, the plaintiff must prove his or her earning power has
been reduced by the injury and recovery is limited to the amount by which it has been
26
reduced. Jones v. Stern, 168 S.W.3d 419, 423-24 (Ky. App. 2005). A party does not
need to prove lost wages or profits with absolute certainty, but only with reasonable
certainty. Mere uncertainty as to the amount will not preclude recovery. Kellerman v.
Dedman, 411 S.W.2d 315, 316 (Ky. 1967).
Lost Chance Doctrine
The lost chance doctrine allows a plaintiff to recover for an injury in a medical malpractice case
if the defendant’s conduct ruined the plaintiff’s last chance to recover or survive the underlying
injury. The Kentucky Supreme Court, however, has refused to recognize the doctrine under
Kentucky law as it is a significant departure from the traditional law of causation. Kemper v.
Gordon, 272 S.W.3d 146, 152 (Ky. 2008).
Mitigation
A) Under Kentucky law, an injured party must exercise reasonable care to mitigate his or her
damages. Wimsatt v. Haydon Oil Co., 414 S.W.2d 908, 912 (Ky. 1967).
B) Treatment. For example, an injured party must use ordinary care and reasonable
diligence to secure appropriate treatment for the injury. Brown Hotel Co. v. Marx, 411
S.W.2d 911, 915 (Ky. 1967).
C) Amount of damages. The failure to mitigate damages, however, is relevant only to the
amount of damages, not to fault. Geyer v. Mankin, 984 S.W.2d 104, 108 (Ky. App.
1998).
Punitive Damages
A) Standard. “‘Punitive damages’ includes exemplary damages and means damages, other
than compensatory and nominal damages, awarded against a person to punish and to
discourage him and others from similar conduct in the future.” KY. REV. STAT. ANN. §
411.184(1)(f). In civil actions, whether and for what amount punitive damages are to be
awarded is a determination to be made by the trier of fact concurrently with all other
issues presented at trial. KY. REV. STAT. ANN. § 411.186(1). Punitive damages may be
awarded only upon clear and convincing proof that the defendant acted towards the
plaintiff with oppression, fraud, or conduct which amounts to gross negligence or
reckless disregard for the life and safety of others. KY. REV. STAT. ANN. § 411.184(1),
(2); Sufix, U.S.A., Inc. v. Cook, 128 S.W.3d 838, 840 (Ky. App. 2004). Punitive damages
are not recoverable on a claim of breach of contract or in an action “against a principal or
employer for the act of an agent or employee unless such principal or employer
authorized or ratified or should have anticipated the conduct in question.” KY. REV.
STAT. ANN. § 411.184(3), (4).
B) Gross negligence. A finding of gross negligence necessary to support punitive damages
requires more than a lack of ordinary care. The defendant must have failed to exercise
even slight care so that his or her conduct amounts to a wanton and reckless disregard for
the rights of others. Peoples Bank of N. Ky., Inc. v. Crowe Chizek, 277 S.W.3d 255, 268
(Ky. App. 2008).
27
C) Nominal damages. The absence of actual damages does not bar an award of punitive
damages. Mere nominal damages can support an award of punitive damages. Fowler v.
Mantooth, 683 S.W.2d 250, 252 (Ky. 1984).
D) Insurance. A party may obtain insurance against liability for punitive damages if the
punitive damages result from gross negligence, rather than an intentional act. If a
defendant has insurance, then the insurance company may be required to pay punitive
damages when they result from the defendant’s gross negligence. Cont’l Ins. Co. v.
Hancock, 507 S.W.2d 146, 151-52 (Ky. 1974). An insurer may choose to exclude
coverage for punitive damages. Hodgin v. Allstate Ins. Co., 935 S.W.2d 614, 615-16
(Ky. App. 1996).
E) Factors. Three factors determine whether punitive damages are unconstitutionally
excessive: (1) the degree of reprehensibility of the defendant’s conduct, (2) the disparity
between the harm or potential harm suffered by the plaintiffs and their actual conduct,
and (3) the difference between the plaintiff’s remedy and the remedies imposed or
authorized in other cases. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 906 (Ky.
2008). A punitive damages award will be upheld unless it was the product of “undue
passion or prejudice on the part of the jury.” United Parcel Serv. Co. v. Rickert, 996
S.W.2d 464, 470 (Ky. 1999).
Recovery of Pre- and Post-Judgment Interest
A) In the absence of a contractual provision, the award of interest is within the judicial
discretion of the trial court. Nucor Corp. v. Gen. Elec. Co., 812 S.W.2d 136, 143 (Ky.
1991). KY. REV. STAT. ANN. § 360.010 sets the legal pre-judgment interest rate at 8% per
annum. The rate may be lowered by the trial court in its discretion. Fields v. Fields, 58
S.W.3d 464, 467 (Ky. 2001).
B) Breach of contract. Interest for breach of a contract to pay a certain sum is recoverable
as consequential (general) damages from the time the amount is due. Nucor Corp., 812
S.W.2d at 136. Interest can be both prejudgment and post-judgment. When damages are
“liquidated,” prejudgment interest follows as a matter of course. Id. at 141, 144. When
the amount is “unliquidated,” the amount of prejudgment interest, if any, is a matter of
discretion for the trial court weighing the equitable considerations. Id. at 143-44; see also
Univ. of Louisville v. RAM Eng’g & Constr., Inc. 199 S.W.3d 746, 748 (Ky. App. 2005).
“[E]quity and justice demand that one who uses money or property of another . . . should
at least pay interest for its use in the absence of some agreement to the contrary. Curtis v.
Campbell, 336 S.W.2d 355, 361 (Ky. 1960) (citation omitted). “This principle applies
whether or not the amount owed to another is liquidated or unliquidated.” Id. (citing
Dalton v. Mullins, 293 S.W.2d 470 (Ky. 1956)).
C) Post-judgment interest. Post judgment interest in Kentucky accrues at the rate of 12%
compounded annually. KY. REV. STAT. ANN. § 360.040. A judgment can be for principal
and accrued interest. Id. A claim for unliquidated damages reduced to judgment may
bear less than 12% interest if the court rendering such judgment, after notice to all parties
and a hearing, is satisfied that the rate of interest should be less. Id.
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Recovery of Attorney’s Fees
A) Kentucky follows the “American Rule” on attorney’s fees and such fees are generally not
recoverable unless provided for by statute or contract. Cummings v. Covey, 229 S.W.3d
59, 61 (Ky. App. 2007). The trial court, however, possesses the equitable power to award
attorney’s fees in absence of any statutory or contractual provision in instances involving
bad faith or under the common fund doctrine where the litigant’s efforts have conferred a
benefit on another. See, e.g., Batson v. Clark, 980 S.W.2d 566, 577 (Ky. App. 1998); Ky.
State Bank v. AG Servs., Inc., 663 S.W.2d 754, 754-55 (Ky. App. 1984).
B) A determination of the amount of attorneys fees’ to be awarded “is within the sound
discretion of the trial judge.” King v. Grecco, 111 S.W.3d 877, 883 (Ky. App. 2002).
The amount of fees awarded must be reasonable and should consist of the product of
counsel’s reasonable hours, multiplied by a reasonable hourly rate. See Meyers v.
Chapman Printing Co., 840 S.W.2d 814, 826 (Ky. 1992). This will result in the
determination of the “lodestar” amount which can then “be adjusted to account for
special factors in the litigation,” such as the degree of success achieved. Id. Ultimately,
the fees awarded should be “reasonable in relation to the results obtained.” Hensley v.
Eckerhart, 461 U.S. 424, 440 (1983).
Settlements Involving Minors
A) Enforceability. When a minor executes a contract, including a settlement agreement, the
contract is enforceable, but the minor may choose to void the contract. Mitchell ex rel.
Fee v. Mitchell, 963 S.W.2d 222, 223 (Ky. App. 1998). Therefore, any settlement on
behalf of a minor without the approval of the court and appointment of a guardian is
subject to attack. Scott v. Montgomery Traders Bank & Trust Co., 956 S.W.2d 902, 904
(Ky. 1997).
B) Statutory guardians. KY. REV. STAT. ANN. § 387.280 allows a person having custody
of a minor to receive sums on behalf of the minor which do not exceed $10,000, upon
court approval of the settlement and satisfaction of the court “by affidavit or oral
testimony that the minor . . . is in the custody of the person to whom it is proposed to pay
the money and the latter, upon withdrawal of the money, shall be under obligation as
trustee to expend it, for the support, maintenance, or education of the minor. . . .”
However, only a statutory guardian has the authority to compromise and settle a minor’s
claim. Jones v. Cowan, 729 S.W.2d 188, 190 (Ky. App. 1987).
Taxation of Costs
A) Discretion. The trial court has sound discretion on whether to award costs, and this
decision will not be overturned absent an abuse of discretion. Giacalone v. Giacalone,
876 S.W.2d 616, 620-21 (Ky. App. 1994). However, KY. R. CIV. P. 54.04(1) provides
that costs shall be awarded to the prevailing party as a matter of course, unless otherwise
directed by the court.
B) Recoverable items. KY. R. CIV. P. 54.04(2) states that the items recoverable as costs
include
29
filing fees, fees incident to service of process and summoning of witnesses, jury fees,
warning order attorney, and guardian ad litem fees, costs of the originals of any
depositions (whether taken stenographically or by other than stenographic means), fees
for extraordinary services ordered to be paid by the court, and such other costs as are
ordinarily recoverable by the successful party.
An award of “all costs” does not include attorney’s fees. Dept. of Transp., Bureau of
Highways v. Knieriem, 707 S.W.2d 340, 341 (Ky. 1986).
Unique Damages Issues
A) Liquidated damages. Parties to a contract may agree to a set amount of damages to be
paid if a party breaches the contract. United Servs. Auto. Ass’n v. ADT Sec. Servs., Inc.,
241 S.W.3d 335, 340 (Ky. App. 2006). The provision will be enforced if it bears a
reasonable relationship to actual damages and does not constitute a penalty. Id.
B) Pain and suffering. Kentucky law does not require an award of pain and suffering in
every case in which medical expenses are awarded. Miller v. Swift, 42 S.W.3d 599, 602
(Ky. 2001). A trial court’s denial of a new trial for the jury’s failure to award pain and
suffering damages will not be disturbed unless clearly erroneous. Bayless v. Boyer, 180
S.W.3d 439, 444 (Ky. 2005).
C) Nominal damages. A court may award “nominal damages,” which are a “trivial sum of
money awarded to a litigant who has established a cause of action but has not established
that he is entitled to compensatory damages.” Cherry v. Augustus, 245 S.W.3d 766, 777
(Ky. App. 2006).
D) Economic damages. The use of economic expert testimony is an acceptable way of
proving wrongful death damages, but the jury retains the right to judge the weight of such
testimony “and under no circumstances may it be compelled to return a verdict dictated
by economic expert testimony.” Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667,
671 (Ky. 1992).
E) Expert testimony. Expert testimony is generally required to prove causation in a
negligence case, except where the negligence is so apparent that a layperson would have
no difficulty recognizing it. Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 681
(Ky. 2005).
This Compendium outline contains a brief overview of certain laws concerning various
litigation and legal topics. The compendium provides a simple synopsis of current law and
is not intended to explore lengthy analysis of legal issues. This compendium is provided for
general information and educational purposes only. It does not solicit, establish, or
continue an attorney-client relationship with any attorney or law firm identified as an
author, editor or contributor. The contents should not be construed as legal advice or
opinion. While every effort has been made to be accurate, the contents should not be relied
upon in any specific factual situation. These materials are not intended to provide legal
advice or to cover all laws or regulations that may be applicable to a specific factual
situation. If you have matters or questions to be resolved for which legal advice may be