Month after month, one of the questions bringing the most visitors to my website, www.RobertAbellLaw.com, is how long after an accident do I have to see a doctor? Here's a video that may help:
personal injury
March 15, 2017
June 26, 2013
Landlord Can Be Liable For Tenant's Injuries Caused By Leaky Roof, Kentucky Court of Appeals Rules
A landlord can be liable for a tenant's injuries caused by a leaky roof the Kentucky Court of Appeals ruled recently in Warren v. Winkle, No 2012-366 (May 24, 2013). The decision reversed a summary judgment granted the landlord by Judge Susan Schultz Gibson of the Jefferson Circuit Court.
Roslyn Warren rented a one-bedroom apartment from the Warrens in a seven-unit apartment complex. All seven units were in a one-story building and shared a common roof. Each unit had ceiling tiles suspended by wires hung from the rafters, which meant, as the court pointed out, "the area between the ceiling and roof ... consisted only of rafters and was not a space usable by tenants." The parties disputed whether Warren informed the Winkles that the roof appeared to be leaking because the ceiling tiles appeared to sag when it rained. In any event, part of the bedroom ceiling in Warren's unit collapsed while she was in bed and caused her serious injuries. She filed suit claiming that the Winkles had negligently failed to maintain the roof in reasonably safe condition causing moisture to accumulate between the roof and ceiling resulting in the collapse of the ceiling and her injuries. The circuit court granted summary judgment to the Winkles "holding that, as a matter of law, the Winkles had no duty to maintain the roof or the area between it and the ceiling."
The general rule in Kentucky is that a landlord is "not liable for to the tenant of his property because of defects in the leased premises," that the "tenant takes the premises for better or worse." But there is an exception where the property had multiple tenants and with regard to its common areas. As to such properties and their common areas, "the landlord must exercise ordinary care to keep common areas in a reasonably safe condition." "A landlord is presumed to have retained control over premises used in common by different tenants."
Warren claimed that her injuries were caused by the landlord's failure to maintain the roof. The Court of Appeals reviewed cases from other states and concluded that the "prevailing view is that a 'roof is necessary for all the tenants; and, no provision being made for a transfer of its possession to any tenant, the control over it remained in the owner.'" Accordingly, the Court held that "a landlord can be responsible for dangerous conditions in areas not demised to a tenant and that remain in the landlord's exclusive control. In this case, Warren did not have the right to use or enjoy the roof and had no responsibility to maintain it in a reasonably safe condition. Furthermore, the area between the roof and ceiling was not useable and was, in fact, merely a part of the roof structure."
The Court also rejected the landlord's argument that it could not be liable for the tenant's injuries under the "open and obvious doctrine", because the tenant had testified in deposition that she had noticed the ceiling sagging before it fell on her. The open and obvious doctrine does not preclude the landlord's liability, whose actions are subject to a reasonableness test the relevant factors including the landlord's actual or constructive notice of the defect, the landlord's opportunity to remedy it and the reasonableness of the tenant's actions as well. Davis v Coleman Management Co, 765 SW2d 37 (Ky App 1989).
Finally, the Court rejected the landlord's argument that it could be liable to the tenant only for the cost of repairs, noting that the tenant's action was for negligence not breach of contract or warranty.
The Court of Appeals' opinion was authored by Judge Kelly Thompson and joined by Judge Irv Maze and Judge Janet Stumbo.
| | |
| | |
January 03, 2013
Kentucky Abandons The Physical Impact Requirement for Recovery of Emotional Distress Damages
Kentucky law has long barred recovery of damages for emotional distress in personal injury suits in absence of physical impact or contact. The Kentucky Supreme Court abandoned this rule recently in Osborne v. Keeney, No. 2010-SC-397 (December 20, 2012), a legal malpractice case that involved an underlying personal injury suit arising when an airplane crashed into Brenda Osborne's home. An earlier post discussed how Kentucky uses the case-within-a-case approach in legal malpractice suits, Kentucky Legal Malpractice: The Case-Within-A-Case Approach.
A pilot, Quesenberry, experienced mechanical problems with his plane before taking off. But not long after take-off the engine lost power and the plane struck Osborne's home, slicing "through her chimney, inflict[ing] significant damage to the second story and set[ting] the house afire[.]" Osborne heard noise from the crash, ran outside to see her house afire; she was not struck by any crash debris and suffered no physical injury
Osborne had some preexisting anxiety and depression problems, which, according to her treating doctor, were exacerbated by the destruction of her home and personal property. She received treatment for what the Court described as an "extended period of time after the crash[.]" Part of her claim in her malpractice suit against her lawyer, Steven Keeney, was that she could have recovered from Quesenberry damages for the emotional distress she had suffered. Keep in mind that Osborne was not hit by any debris from the crash or physically injured due to the crash. This implicated the "physical impact" rule, long followed and long-derided in Kentucky.
The Court, after an extended discussion of precedent in Kentucky and other jurisdictions, abandoned the physical impact rule and announced the proof requirements as follows:
... the plaintiff must present evidence of the recognized elements of a common law negligence claim: (1) the defendant owed a duty of care to the plaintiff; (2) breach of that duty; (3) injury to the plaintiff, and (4) legal causation between the defendant's breach and the plaintiff's injury. ... to ensure plaintiffs' claims are genuine ... recover should be provided only for "severe" or "serious" emotional injury. A "serious" or "severe" emotional injury occurs where a reasonable person, normally constituted, would not be expected to endure the mental stress engendered by the circumstances of the case. Distress that does not significantly affect the plaintiffs' everyday life or require significant treatment will not suffice. And a plaintiff claiming emotional distress damages must present expert medical or scientific proof to support the claimed injury or impairment.
The Court's decision suggests a question that it does not address: must every plaintiff in every type of case present medical or scientific proof to support the claimed injury? Kentucky law has not previously imposed such a broad and burdensome rule.
Robert L. Abell
www.RobertAbellLaw.com
| | |
| | |
Categories
- AAJ
- America
- American Association for Justice
- arbitration
- attorneys fees
- bad faith insurance practices
- class action
- Clean Water Act
- consumer fraud
- consumer protection
- consumer safety
- corporate accountability
- criminal justice
- drugs
- equal pay
- evidence
- expert witness
- fair pay
- family safety
- FDA
- federal courts
- First Amendment
- Food and Drug Administration
- food safety
- Fourth Amendment
- free speech
- Hartford Life
- health insurance
- highway safety
- HIPAA
- hospitals
- insurance claims handling
- insurance coverage
- judicial campaign contributions
- judicial elections
- justice system
- lawsuit procedures
- lawyer advertising
- legal education
- legal malpractice
- medical insurance
- medical malpractice
- mine safety
- mining safety
- miscellaneous shenanigans
- nursing homes
- pay discrimination
- peanut butter
- personal injury
- predatory lending
- preemption
- product recall
- public safety
- right to bear arms
- search & seizure
- Second Amendment
- sentencing guidelines
- sex discrimination
- Sixth Circuit
- Supreme Court
- tort reform
- toxic substances
- unsafe products
- workplace safety
- wrongful death