Pain and Suffering Redux

April 27, 2006

The Court of Appeals just issued Gibson v. Morely, unpublished, which dealt with the award of medicals and lost wages but no award for pain and suffering, ala Miller v. Swift. This case involved a “Grade I open lateral tibial plateau fracture, which is a crack through the shin bone that enters the knee joint.” Gibson “required surgery immediately after the accident and spent three days in the hospital receiving physical therapy and treatment for pain and discomfort.” The jury did not award any pain and suffering. Gibson’s motion for new trial was denied.

The Court of Appeals affirmed, ruling that the judge’s decision was not “clearly erroneous”, because it was supported by substantial evidence. This included, among others, statements by Gibson herself, which included admitting she did not receive any pain medication until her leg was operated on by the doctor, and that she did not have any pain unless she moved her leg. She also returned to work a week after the accident.

Comment: This case appears to resolve the questions I posed in my earlier post on this exact issue; titled Pain and Suffering. There I asked whether cases without preexisting injuries involving objective injuries would compel a different result. This case answers all those questions in the negative. Again, the proper analysis is not on the injury suffered or the jury’s actions, but on evidence supporting the “judges decision” that a new trial is not warranted. However, I question whether this evidence supports a conclusion that Gibson did not suffer “any” pain. At best, it would seem to support a claim that “some” pain was experienced, even if it was less than what she claimed. Obviously, even a case with an objective injury does not render a Miller v. Swift result moot.

The Court of Appeals just published Hugenburg v. West American Ins. Co., 2004-CA-001472-MR, a case with an excellent discussion of the tort “negligent supervision.” The case arose after “Mikael”, a 15 year old, got drunk and wrecked a car injuring one of the passengers, Brad Fritz. Fritz’s parents sued Mikael’s parents, claiming negligent supervision of their son on the night of the accident. The trial court granted the Hugenburg’s summary judgment on this claim.

The Hugenburg Court discussed the tort at length. “The essence of a negligent supervision claim is that the parent’s failure to exercise due care made it possible and probable that the child would injure another.” “Kentucky’s highest court has cited, with approval, the following description of a parent’s duty to supervise or control the minor child:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control. (emphasis added).

“The existence of a parent’s duty to control a minor child largely turns on the foreseeability of the child’s injurious conduct.” “A duty to control the child may also arise where the child previously committed a very similar act and there are circumstances making it foreseeable that the child might later commit the specific act at issue.” “Parents are not required to be prescient, however.” “When determining whether a child’s injurious conduct was foreseeable, the trial court should consider only those facts that the parents knew, or should have known, about before the incident at issue.”

The Hugenburg Court found that “knowledge of one driving lesson with his mother, two isolated incidents of drinking, and one incident of being in an unsupervised house with peers who may have intended to drink were insufficient to render Mikael’s conduct foreseeable.” The Hugenburg Court specifically disagreed with the Fritz’s contention that separate violations of the two “would inevitably and eventually combine, causing injury to someone.”

The Hugenburg Court also found that the Fritz’s had failed to present evidence of “actual ability to control of Mikael.” “The duty to control one’s child and prevent injurious behavior depends, in part, on the actual, physical ability to do so.” “It is not negligence per se for parents to fail to monitor their teenager twenty-four hours a day when the parents are not aware of, and have no reason to be aware of, any particular risk necessitating such intensive monitoring.” The mere fact that parents do not have the ability to exercise control is not, in and of itself, proof that the parents violated a duty…”

Comment: The opinion is important because it clears up many of the myths and misunderstandings of the tort, “negligent supervision.” Its name implies that one need only fail to supervise another who causes harm. This is not the tort at all. The tort requires two elements to be present. In this case, parents must have knowledge or facts imparting knowledge of the likelihood of injury (foreseeability) before a duty will attach. Even then, the parents must have the opportunity to control their child at that time. The mere failure to supervise their child does not establish liability on its own. This is a very well thought out and reasoned opinion applied to the facts in this case. Hopefully, this opinion will clear confusion on this tort and dispose of “catch all” claims of “negligent supervision” in cases involving minors.

Supreme Court recently published Foster v. Kentucky Farm Bureau, 2004-SC-0461-DG, which finally laid to rest the question of whether an insurer’s failure to pay no fault benefits would support a separate claim for bad faith. The Court held that the, “MVRA is a comprehensive act which not only relates to certain tort remedies, but also establishes the terms under which insurers pay no-fault benefits, and provides for the penalties to which insurers are subjected if they fail to properly pay no-fault benefits.” The Foster Court affirmed the trial court’s decision to dismiss the punitive damages claim under the Unfair Claims Settlement Practices Act. The Court also affirmed the trial court on its decision to send the question of “reasonableness” of withholding payment to the jury as a question of fact.

Both Michael Stevens at Kentucky Law Blog and Ben Cowgill of have reported their thoughts on podcasting with recent examples. I share their enthusiasm for this new media and agree it is time for Kentucky Courts to take advantage of it. Click on the headline to read the entire post.

From Kentucky Law Blog:

Tech: “Podcasting enters classroom” [U/L News]

If our state educational system can podcast in the schools, then what about Kentucky’s Supreme Court and Court of Appeals podcasting and saving the mp3s of oral arguments?

Here is a story on schools and podcasting.

Podcasting enters classroom

iPod users can download the latest music, popular television shows — and now, their professor’s most recent lecture. One of the most popular entertainment gadgets also is one of the newest educational tools…


In praise of law-related podcasts: this is not your teenager’s iPod

While riding the Blue Line into downtown Chicago this morning, I listened to the March 28 oral argument to the United States Supreme Court in Hamdan v. Rumsfeld, the case that questions the legality of the Guantanamo military commissions.

How was that possible? It was possible because the Georgetown University Law Center recorded the argument and uploaded the audio file onto iTunes as a new installment of the Law Center’s podcast…

Michael, from the looks of Ben’s post it appears that at least someone is listening to you!

Diana Skaggs has started LouisvilleDivorce a blog dedicated to divorce and family law issues. You will find posts, resources, and links dedicated to that topic. Diana is a Louisville lawyer with 23 years experience in this area. I encourage you to take a look at her blog. I anticipate this will become yet another excellent resource for Kentucky lawyers, especially, those practicing in family law. I have added a link to her page in the sidebar.

Unpublished opinions

April 21, 2006

In conjunction with my earlier post mentioning my disdain for the use of unpublished opinions, comes an article from the ABA Journal’s E-report noting that the United States Supreme Court has passed a rule change to allow citation to unpublished opinions in all circuits after January 1, 2007. It remains to be seen how much weight the various circuits will give to these opinions, which have been described as “junk law.”

Evidence of Bias

April 21, 2006

The Supreme Court recently published Baker v. Kammerer, which discussed whether it was an abuse of discretion to prohibit questioning of a rebuttal witness, concerning her employment with defendant’s insurance company. Kammerer indicated that he had just received information that Baker intended on calling two witnesses. One of the witnesses had spoken to Hope Frost, the insurance adjuster employed by Kammerer’s insurance company. Later, Kammerer asked to call Frost to rebut testimony by these witnesses. At issue was whether Baker could elicit from Frost that she was employed by Kammerer’s insurance company as possible bias. The trial judge said no. The Court of Appeals did not find any abuse of discretion in his decision.

The Supreme Court noted that, “[t]he credibility of a witness’ relevant testimony is always at issue and the trial court may not exclude evidence that impeaches credibility even though such testimony would be inadmissible to prove a substantive issue in the case.” The Court ruled that “Given the fundamental importance of the ability to cross-examine as to bias and the trial court’s apparent failure to engage in any meaningful analysis under Rule 403 before prohibiting cross-examination as to Frost’s employment, we conclude that the trial court abused its discretion in this case.”

Justice Cooper, Scott and Wintersheimer dissented. Cooper pointed to Baker’s failure to truly identify the purpose of his questioning as bias. He also pointed to the record, which revealed an exchange between Baker’s counsel, Kammerer’s counsel and Frost where Kammerer’s attorney was identified as “your attorney.” (Inferring that Frost was biased towards Kammerer). Most importantly, he believed the trial court clearly conducted the KRE 403 analysis the majority found lacking in its decision.

Comment: This cases raises an interesting issue about when to call witnesses. Just because you “can” call a witness does not mean that you should. Frost’s rebuttal evidence was only slightly effective and even bolstered one witness. By calling Frost to rebut plaintiff’s witnesses, Kammerer surely put her possible bias as an employee of his insurance company at issue. While I agree with Cooper that the trial judge conducted the 403 analysis, (he clearly kept out mention of insurance as highly prejudicial), I think the rebuttal witness’ employment by the defendant’s insurance company, is probative and outweighs its prejudicial affect. This was best exemplified by the two questions the jury submitted after deliberations began; “Who is Hope Frost?” and “What’s her interest in this case?”

Apportionment Claim?

April 20, 2006

The Court of Appeals recently released Perry v. Parks, unpublished, which is the latest on Kentucky’s apportionment statute. In Perry, Parks was involved in an accident with Smith. Perry was a passenger in Smith’s car. Perry brought suit against Parks. Parks filed a third party complaint against Smith for “indemnity or contribution or apportionment”. Perry then amended her complaint to name Smith.

The Morgan Circuit Court dismissed “all claims” against Smith, but explained that the judgment was not intended to preclude an apportionment instruction. At trial the jury was given an instruction permitting it to apportion fault between Parks and Smith. The jury exonerated Parks, placing fault for the accident on Smith.

One of the issues on appeal was whether the trial court should have dismissed Parks’ third party complaint against Smith, after determining that Parks “was not entitled to indemnity or contribution and that apportionment, the real relief that Parks sought, did not require and would not support a cause of action.” Although the Appeals Court did not agree with Perry’s contention that an apportionment instruction was error, it did agree that the Park’s complaint should not to have been dismissed.

Citing to KRS 411.182, Kentucky’s comparative fault statute, the Court said; “the statute contemplates a third-party action for apportionment against a third-party defendant who allegedly shares fault for the first-party plaintiff’s injury. The third-party defendant must be within the trial court’s jurisdiction and must not be immune from suit altogether. She need not, however, be subject to a claim for damages for the apportionment claim to lie.” (emphasis added). The Court noted that the third-party should not be dismissed, because the third party defendant may wish to contest the imputation of fault even if her own damages are not at stake. It found this particular dismissal to be harmless error.

Comment: This opinion bothers me for several reasons. First, it is another unpublished opinion on an issue that will have a subtle behind the scenes affect on tort practitioners in Kentucky. It makes no sense from a practical or procedural standpoint and is completely contradictory to the current handling of third party claims. Second, it appears to create a cause of action or claim for apportionment, which until now did not exist in Kentucky. You would think that such a move would at least warrant a published opinion.

KRS 411.182 clearly allows for allocation of fault in tort actions. However, it contemplates that this allocation will occur only to parties, including third party defendants. This allocation of fault is the result to be achieved. Unfortunately, CR 14, which governs third party practice, is the vehicle through which a third party claim is added. CR 14 requires the assertion of a claim against a nonparty who may be liable to the defendant for part of plaintiff’s damages. Historically, this has involved a third party claim for contribution or indemnity. With the advent of comparative fault a request for “apportionment” was added. This procedure accomplished the requirements of both KRS 411.182, which required a party, and CR 14, which required a claim.

This procedure was of course subject to dismissal, since a claim for contribution no longer exists and indemnity has been relegated to very few situations. Until now, the appropriate practice (in cases like Perry) was for the third-party defendant to move for summary judgment on the third-party’s plaintiff’s claim for contribution and indemnity or to enter into a nominal settlement and release. This would allow the third party defendant to be dismissed and yet still allow for apportionment.

This opinion, of course, throws that whole practice on its head. Now, there is a claim for apportionment, which cannot be dismissed or settled (at least without the third party plaintiff waiving his right to an apportionment against plaintiff). A third party defendant is now required to appear at trial and “contest the imputation of fault” whether he wants to or not. This is of course an absurd result to reach when the sole purpose is to have the nonparty added to comply with KRS 411.182.

While I agree that changes may need to be made to KRS 411.182, CR 14, or both to reconcile their language, I do not agree that there is such a thing as an “apportionment claim.” Nor do I believe this Court has explained how such a claim would even meets the requirements of CR 14 and third party practice. I certainly do not agree that an unpublished opinion is the means by which a new cause of action or procedure should be identified.

Auto Settlements CLE

April 19, 2006

The Kentucky Academy of Trial Attorneys (KATA) will be hosting a Seminar on “Auto Settlements: Maximizing the Value of Your Case Before Suit” in Louisville on May 12, 2006. The Seminar will be repeated in Lexington on May 19, 2006. Seminar information and pricing are available at For more information contact Ellen Sykes, Director of Education.

The Defense Research Institute Young Lawyer’s Section Annual Seminar will be held on June 15-16th in Miami Beach, Florida. The seminar is titled, “Getting Ready for Game Day: Advanced Litigation Skills for Taking Your Case Through Final Verdict”, and will be held at the Loews Miami Beach Hotel. The Seminar is designed as a fantastic networking and educational opportunity for defense trial lawyers and corporate counsel practicing 10 years or less.

For more information or to sign up, please visit the DRI’s website. You can download a copy of the seminar brochure, which features a discussion of the speakers and individual sessions.