We are proud of the results that we obtain for our clients. Here are some of the results that we have obtained recently. Click on the headline to view the complete summary or to ask a question about the case.
Pete Sewell recently won at the Court of Appeals and Kentucky Supreme Court when summary judgment for affirmed for his client. Pete’s client was a local park owner, and his defense centered around the immunity provided by Kentucky’s Recreational use Statute. The stated purpose of the Kentucky statute is to encourage owners of land to make land and water areas available to the public for recreational use at no charge by limiting their potential liability to persons entering onto the land for such purposes. The statute expressly excludes tort immunity from liability arising from the landowner’s willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.
In this case a husband and wife accessed Floyds Fork in Jefferson County, Kentucky for purposes of a kayaking trip via one of four inter-connected parks that make up the Parklands. While on a remote section of Floyds Fork, the man suffered a medical emergency and subsequently died. Because of a lack of access there was a delay in emergency medical personnel reaching the couple. His estate and widow brought suit against the park alleging among other things that the park had acted with willful disregard by failing to train its staff in how to handle medical emergencies and in failing to have a plan to facilitate prompt rescue of park patrons who became disabled. Arguments made by the claimants and rejected by the Court of Appeals included that the Recreational Use Statute was unconstitutional, that it didn’t apply since the alleged dangerous condition was not premises-based, and that the statute was inapplicable since the man was stricken while on a state-owned waterway as opposed to land owned or managed by the park. The Kentucky Supreme Court declined to review this decision on a motion for discretionary review. In doing so it did not alter the Court of Appeal’s designation that its opinion be published. Accordingly, this opinion can now be cited as precedent by landowners to protect them from creative pleadings and legal theories asserted by persons who come on to their land for recreational use at no charge and are injured.
Charles Walker recently obtained summary judgment for a road contractor in a severe automobile accident case in Eastern Kentucky. He defended a subcontractor alleged to have improperly installed road signs in a confusing manner, which was alleged to have caused the Plaintiff to have traveled down the wrong way of a highway. Plaintiff was then involved in a head on collision which caused severe property damage and a meaningful injury. Charlie was able to establish that the subcontractor’s work was completed, that the area was no longer an active construction zone, and that the Plaintiff’s confusion was a result of her lack of familiarity with the road.
Joe Hummel recently obtain a victory at the Court of Appeals when a directed verdict on a negligent hiring claim was upheld. He represented a contractor whose employee was accused of stealing from the home of a customer while work was being done. Plaintiff alleged that the employee was negligently hired and that the contractor should have know that such behavior was foreseeable. After vigorously defending the claim through trial, Joe’s client was granted a directed verdict when the Plaintiff failed to produce any proof that the contractor had actual knowledge of any propensities in the employee. This is not an uncommon result for Joe and others at the firm (as negligent hiring claims arise in trucking, construction, dram shop, and other complicated liability scenarios) to neutralize negligent credentialing claims such as this either before or during trial.
Peter Sewell and Erin Farnham prevailed on a motion for partial summary judgment filed on behalf of a non-profit organization and its representatives under the Indiana Anti-SLAPP (Strategic Lawsuits Against Public Participation) Act, IC. 34-7-7-1, et al. This ruling resulted in a dismissal of defamation claims against the non-profit and its representatives. The court found that the statements made by the non-profit and its representatives were lawful statements made in good faith with a reasonable basis in law and fact concerning a matter of public interest and in furtherance of the right to free speech. Under the statute, a defendant who prevails on such a dispositive motion is entitled to an award of attorney’s fees and expenses for defending the defamation claim. The Judge reserved ruling on the amount of attorney’s fees and litigation expenses to be awarded to the non-profit until the conclusion of the case.
Erin Farnham recently defended a commercial office building owner in a slip and fall claim in a Kentucky state court. The property owner contracted with a management firm to oversee the day to day operations of the building. The property management firm contracted with a carpet cleaning company and a janitorial services company. A tenant slipped in the building, and alleged that he slipped on a tile floor after it had been mopped by the janitorial service. The tenant also claimed that the carpet cleaning company had cleaned the carpet leading to the tile floor shortly before the fall, and that moisture left ont he carpet as a result of the carpet cleaning process contributed to his fall.
Erin argued that the property owner did not contribute to the fall, and that it could not be held vicariously liable for the actions or omissions of independent contractors such as the property manager, carpet cleaning company, or the janitorial service. The trial court agreed, and granted our motion for summary judgment. The case went to trial against the other two defendants and the jury returned a verdict in favor of the Plaintiff.
Pete Sewell and Charlie Walker recently secured a unanimous defense verdict in favor of a conveyor manufacturer in a 2-week trial in Gallatin County, Kentucky. The suit was brought by the Estate of a mine worker who fell off a conveyor at a local mine, and who later died from his injuries. The Estate was asking for more than $7 million in medical bills, pain and suffering, and other damages. We were able to demonstrate that the conveyor involved in the accident was not defective or unreasonably dangerous, and that the cause of the accident was the failure of a the mine worker to follow federally-mandated safety regulations while working on the conveyor, and the failure of the mine to enforce those regulations. Additionally, we were able to convince the Court to allow a 5-foot replica section of the conveyor to be placed in the courtroom for the duration of the trial, so that witnesses could refer to the replica during their testimony. The replica was invaluable in convincing the jury that, if the mine worker has followed his federally-mandated safety training, the accident never would have happened.
Erin Farnham recently obtained a summary judgment in favor of a property owner in a trip and fall case. The Plaintiff alleged that he fell on a public sidewalk that adjoined our client’s property. The incident occurred during a local art fair, and the Plaintiff also sued a neighborhood association that he alleged was responsible for running the art fair. Erin argued that an adjoining property owner did not owe a legal duty to the public to maintain or repair a public sidewalk, and that a local ordinance only required a property owner to repair a public sidewalk that adjoined his property if he received a notice from the city that the sidewalk needed to be repaired. The city had not issued such a repair notice before the accident, so the ordinance did not impose a duty on the property owner to repair the public sidewalk. The trial court agreed and granted summary judgment to the property owner.
Peter Sewell presented oral argument to the Kentucky Supreme Court in a case that may determine the viability of the sudden emergency defense in a pure comparative fault system. Read the Court of Appeals decision here.
Cathy Sewell successfully represented an insurance carrier in a declaratory rights action in federal court. The carrier had issued a Commercial General Liability (CGL) policy to a company in the electronics industry. The insured hired an individual that had previously worked at a different electronics company. The former employer sued the employee for breach of his employment agreement and for disclosing proprietary information. The former employer also sued the insured for alleged interference with contract. The carrier filed a declaratory judgment action in federal court and argued that the CGL policy did to provide coverage. The District court agreed, and the Sixth Circuit affirmed the verdict. You can read the full opinion here.
Pete Sewell and Erin Farnham successfully defended a popular local pizza restaurant/pub at trial on a claim that the establishment negligently selected an independent contractor security service to patrol the premises. The security service used two security guards and a trained canine in its patrol of the restaurant. At or after the 2:00 AM closing time, security advised a patron that the restrooms were closed. The patron and her husband became angry, the husband got into an argument with security. The situation escalated when the husband and a friend broke the front glass window of the establishment and became involved in physical altercations in the parking lot with the two security guards. The trained canine became involved in the fight, which resulted in bite wounds to the husband. husband and his friend filed suit against the restaurant and claimed that the restaurant negligently selected the security contractor at issue. The husband claimed $50,000 in damages for pain and suffering but was only awarded pain and suffering damages in the amount of $3,000. The jury determined that the restaurant was 15% at fault for the incident, which left it responsible for $450.00 of the $3,000 verdict.
Pete Sewell successfully defended an independent farmer who manufactured and installed a manure auger in a chicken house operated by a commercial poultry producer. The plaintiff’s right foot was severely injured when he stepped into the auger while the safety guards were removed, and was later amputated. Relying on the testimony of a hired expert, the plaintiff argued that the auger should have been equipped with an interlock system that turned off the auger when the safety guards were removed. We were able to demonstrate that, contrary to the expert’s testimony, interlock systems are not a standard design element of manure augers, and that our client was simply following a design that had been provided to him by the commercial poultry producer. Additionally, we were able to demonstrate that the safety guards had been designed and installed by someone other than our client. The federal court dismissed our client following a motion for summary judgment.
Pete Sewell successfully defended a homeowners’ association and its president on a trespass claim brought by owners of a lot in local subdivision. Though the lot owners planned to construct a house on the lot, the lot was undeveloped at the time of the alleged trespass. Based on a misunderstanding, the homeowners’ association president advised an excavation company performing improvements on the golf course adjacent to the lot to cross the lot in order to access the golf course. When the excavation company crossed the undeveloped lot, some temporary muddy rutts were left behind on the property. The damage to the lot was repaired at no charge to the lot owners, and the property was returned to its original state. The lot owners sued the homeowners’ association, its president, the country club which owned the golf course and the excavation company for trespass. The court granted summary judgment to the homeowners association, its president and the country club on the trespass claim. The lot owners also alleged that the homeowners’ association and its president wrongfully rejected their building plans for the lot and were liable for tortious interference with their property rights. The court also granted summary judgment to the homeowners association and its president on that claim as the lot owners never properly submitted their building plans for approval.
Peter Sewell recently represented a roofing subcontractor in a lawsuit brought by a general contractor alleging deficiencies in the roof work. The construction project involved the renovation of an old factory into residential condominiums. Issues included whether the owner, architect and contractors properly evaluated the existing roof deck and roof systems, whether the old roof systems needed to be fully removed, whether the roof was suitable for use as a rooftop garden and whether the roof coating that was utilized was appropriate for the dual purpose of acting as a weathertight membrane and as a durable surface for foot traffic. Investigation and discovery established that the general contractor had received written and verbal warnings regarding the roof and its intended useage from another commercial roofing contractor. The letter and photos were not found in the general contractor’s project file. The letter and warnings were not shared with the project architect or the retained roofing subcontractor. This and other evidence allowed us to negotiate a favorable settlement for our client at mediation.
Erin Farnham defended a national sports organization in a personal injury claim in Jefferson County, Kentucky. The Plaintiff was struck in the head with a hit ball while pitching in a softball tournament. The Plaintiff alleged that the organization sponsored the tournament, and that it allowed the participants to use dangerous and defective equipment, i.e. the ball and bat, and that it should be held responsible for his injury. We demonstrated that the organization did not sponsor the tournament, and had nothing to do with selecting or approving the equipment used in the tournament. Our client was dismissed following a motion for summary judgment.