The Mass Tort Litigation Blog has been reporting on the United States Supreme Court’s decision in Exxon v. Baker, the decision which reconsidered the punitive damages in the case arising out of the Exxon Valdez disaster. I’d recommend you read Professor Lahav’s wonderful musings in What’s So Weird About the Exxon Decision and Professor Stier’s background article SCOTUS Reduces Exxon Oil Spill Punitive Damages to Match Compensatory Damages for the ruling and its implication for future punitive damages recovery.

The Kentucky Supreme Court has published Kemper v. Gordon, involving the question of whether Kentucky would adopt the Lost of Diminished Chance Doctrine, or to put it, allow recovery by plaintiff’s whose death is not the result of the negligence, but who may have suffered a diminished chance of survival due to the negligence.  The Maryland Injury Lawyer Blog actually has a good post on the court’s opinion, although the author, Ron Miller disagrees with it.  You can read the entire post here.

While I certainly agree that the results are tragic, I must confess my agreement with the majority in this 5-2 decision.  I agree that the determinations regarding minute percentages between a diminished life is not something Kentucky court’s should be willing to enter.  Frankly, I doubt science, especially medical science, can even begin to offer a scientific basis for such a determination and instead will rely, as the majority fears, on medical experts, whose basis appears to be nothing but lay opinion guised as medical fact.

That being said, the case actually reversed a jury verdict in favor of Dr. Kemper.  According to the majority it was error for the trial court to exclude evidence that an expert in the case, Dr. John, had given different medical testimony in a previous case.  It ruled that the exclusion of other experts was proper due to a lack of disclosure.

While I certainly sympathize with the family, it should be noted that they did settle with two other doctor’s, who it would appear, based on the evidence, had far more chance of being responsible.  Having looked at the record, at least from the opinion, I think it will be difficult for a jury to find Dr. Kemper liable and I don’t think potential plaintiff’s should be able to get around this difficulty by claiming loss of diminished chance.  However, the introduction of the impeachment evidence at a new trial may change my opinion and this result.

The Court of Appeals published Fetchko v. Morgan and Edmonds, a case resulting from a dog named bandit.  Bandit bit a small child and animal control was called.  The next day Fetchko went to pick up the dog.  On the way he met Kay Morgan, the mother of Edmonds, the dog’s owner.  Ms. Morgan was walking towards Fetchko’s truck with one dog on a leash and bandit running free.  Morgan told Fetchko that the dog, bandit, was the one who attacked the child earlier.  Fetchko, who was not at the address yet, apparently didn’t understand what Morgan meant.  He exited his truck and was attacked by bandit. He sued Morgan and the dog’s owner Edmonds.

The Jefferson Circuit Court granted summary judgment against Fetchko, claiming Fetchko assumed the risk of being bitten by dogs in his position as an animal control officer.  Fetchko appealed, claiming that the court erred in finding he assumed the risk, Morgan cross-appealed claiming she was not an owner of the dog, and Edmonds cross-appealed claiming the firefighters rule should be extended to this case to protect her from liabiity.

First, the Court of Appeals found that Morgan qualified as the owner of the dog under the statutory definition.  Second, the case relied upon by the circuit court that Fetchko assumed the risk was distinguishable from the present facts.  The case, Jordan v. Lusby, dealt with a dog groomer who had taken custody of the dog when she was bitten.  Here there was no such custody taken.  Finally, the court did not extend the firefighters rule finding that even if the firefighter’s rule applied Fetchko never made it to the location where the dog was to engage in the “specific risk” of taking custody of the dog, which is a requirement.  The court reversed the summary judgment.

Editor’s Comment:

Am I the only one who sees the irony in allowing an animal control officer, whose job it is to take custody of dangerous animals, to recover for injuries sustained while in the performance of that duty, merely because he encountered the dog on the street and not at the location listed on the report?  It’s slightly absurd to think that Fetchko did not know the dog he was encountering was dangerous, after Morgan told him specifically “that the unleashed dog was the dog that had bitten her grandchild the previous evening.”  Fetchko’s claims he did not know it was the dog he was to retrieve are questionable and mostly irrelevant since he was on notice that the dog was dangerous, yet he failed to take precautions to protect himself.  (At this time bandit is unleashed and Fetchko knows from Morgan that the dog bit a small child).

Furthermore, the reliance by the court on Jordan is likewise misplaced.  Jordan dealt with the issue of ownership, not risk.  Because the dog groomer had taken custody of the dog, she was found to meet the statutory definition of “owner.”  Jordan held that “owners” couldn’t recover for injuries sustained by other “owner’s” dogs.  Here Fetchko assumed the risk of being bitten because he knew the dog to be dangerous, because Morgan told him so.  Yet, he chose to exit his truck and encounter the dog anyway.

I can’t wait to see people’s reactions when this case hits the papers.