Opinion
NO. 2014-CA-001726-MR
02-12-2016
MELISSA CZAJA, BY AND THROUGH HER PERSONAL REPRESENTATIVE AND EXECUTRIX, DEBRA BELCHER APPELLANT v. DANNY FACKLER; MARY WILSON; MITZI BURKHEAD; DEBBIE SHAFT; LAURA WORMAN; DONNA BULLOCK; AND SOUTHERN HEALTH PARTNERS, INC. APPELLEES
BRIEF FOR APPELLANT: D. Chad McCoy Bardstown, Kentucky BRIEF FOR APPELLEE: DANNY FACKLER, MARY WILSON, MITZI BURKHEAD, DEBBIE SHAFT, LAURA WORMAN Jeffrey C. Mando Covington, Kentucky BRIEF FOR APPELLEE: DONNA BULLOCK AND SOUTHERN HEALTH PARTNERS, INC. M. Jane Brannon Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 10-CI-01344 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING BEFORE: COMBS, J. LAMBERT, AND VANMETER, JUDGES. COMBS, JUDGE: The Estate of Melissa Czaja appeals from two dispositions of the Bullitt Circuit Court. The first is an order which granted partial summary judgment and the other is a jury verdict in favor of the remaining defendants. After reviewing the record and the law, we affirm in part, vacate in part, and remand.
On July 26, 2010, Bullitt County law enforcement officials discovered that Czaja had an outstanding warrant in Jefferson County. She owed thirty-four dollars on an unpaid traffic violation. As a result, the police arrested Czaja, transported her to Bullitt County Detention Center, and booked her in.
Czaja's cousin soon arrived at the jail in order to pay her fine. However, he had thirty-five dollars, and the jail would only accept exact change. Czaja's cousin left in order to obtain change.
There is some dispute about what happened during the interval that Czaja's cousin was gone. The parties agree that Czaja and detention officer Laura Worman engaged in a minor altercation, but each claimed that the other was the aggressor. Neither Czaja nor Worman sustained injuries. Nonetheless, Worman issued Czaja a citation for assault and moved her to the jail's Special Needs Unit, which is solitary confinement. Worman intended for Czaja to remain there for five to seven days. However, Czaja was not released from the solitary unit after serving her seven days.
There is further dispute regarding the details of what transpired during Czaja's time in the solitary unit. Several inmates testified that after five or six days, Czaja began complaining of being sick. They related that she did not eat and that she vomited excessively. The women said that both they and Czaja asked detention officers to seek medical help. The detention officers deny that the requests ever occurred. What is certain, however, is that on the night of August 2, 2010 - after Czaja should have been released, detention officer Mary Wilson e-mailed Nurse Donna Bullock that Czaja was ill. Bullock is a Licensed Practical Nurse (LPN) who was employed by Southern Health Partners, the healthcare provider contracted by the detention center.
The e-mail indicated that Czaja had not eaten, that she was vomiting, and that her eyes were yellow. At the midnight shift change, Wilson informed Debbie Shaft, the next shift detention officer, that Czaja was ill. Nurse Bullock's shift began at six in the morning. She either had not read or had not responded to Wilson's e-mail when detention officer Mitzi Burkhead found Czaja nearly unresponsive in her cell. Burkhead later testified that Czaja appeared to have urinated on herself and that what appeared to be bloody vomit was on the floor.
At that time, Bullock at last responded. She took Czaja's blood pressure and pulse and measured her oxygen level. Bullock then had Czaja moved to an observation cell. Czaja was placed on a mat on the floor. Bullock called the physician whom Southern Health Partners had assigned to the jail for consultation. Sixty-two minutes after placing Czaja in the observation cell, Bullock asked the jail staff to transport Czaja to the hospital. Although Czaja had not spoken or moved from the floor during that hour, the staff transported her in the jail van instead of calling for an ambulance. Despite her wholly helpless condition, the staff placed her in shackles - following policy dictates for the first time with respect to their handling of Czaja.
When Czaja arrived at the hospital, she was still unresponsive, her blood glucose level had dropped to 24. She never gained consciousness, and ten days later, on August 10, 2010, Czaja died from a hypoglycemic brain injury caused by acute liver failure. To reiterate, she had owed thirty-four dollars on the unpaid ticket; she was thirty-four years of age at her death.
On September 17, 2010, Czaja's Estate, through her Executix, Debra Belcher, filed a complaint against Bullitt County Jailer, Danny Fackler; detention center guards Laura Worman, Debbie Shaft, Mary Wilson, and Mitzi Burkhead; Southern Health Partners; and Donna Bullock, the nurse. The complaint alleged: negligence; violations of the Kentucky Constitution, statutes, and common law; personal injury and wrongful death; outrage; false imprisonment; and malicious prosecution.
On August 1, 2013, the defendants filed a motion for summary judgment. On January 30, 2014, the trial court entered an order granting summary judgment to Fackler, Wilson, Burkhead, and Shaft on the grounds of qualified official immunity. It granted Worman's motion for summary judgment on the claim of malicious prosecution but denied her motion relating to the false imprisonment, negligence, and assault claims. The court granted summary judgment to Southern Health Partners and Bullock on the constitutional claims, but it left the other claims against them intact.
A jury trial was conducted on the claims against Worman for assault, false imprisonment, and negligence; against Bullock for negligence; and against Southern Health Partners for negligence. At the beginning of the trial, Czaja dropped her claims for damages based on wrongful death. The jury, therefore, considered the pain and suffering claims. The trial lasted one week, and on June 12, 2014, the jury found in favor of Worman, Bullock, and Southern Health Partners on all claims.
Belcher now appeals from the judgment and from the prior summary judgment.
We first address the order of summary judgment entered prior to the jury trial. The trial court dismissed the claims against the detention center defendants on the basis of qualified official immunity. Belcher argues that the trial court's findings were erroneous, and we agree.
Summary judgment is a device utilized by the courts to expedite litigation. Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006). It is a "delicate matter" because it "takes the case away from the trier of fact before the evidence is actually heard." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky. 1991). The movant must prove that no genuine issue of material fact exists and "should not succeed unless his right to judgment is shown with such clarity that there is no room left for controversy." Id.
The trial court must view the evidence in favor of the non-moving party. City of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). In order to overcome a motion for summary judgment, the non-moving party must present "at least some affirmative evidence showing the existence of a genuine issue of material fact." Id. See also Kentucky Rule[s] of Civil Procedure (CR) 56.03. On appeal, our standard of review is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Because summary judgments do not involve fact-finding, our review is de novo. Pinkston v. Audubon Area Cmty. Servs., Inc., 210 S.W.2d 188, 189 (Ky. App. 2006).
The doctrine of immunity is "a bedrock component" of our law. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009). Sovereign immunity shields the state, "legislators, prosecutors, judges, and others doing the essential work of the state" from litigation. Autry v. Western Kentucky Univ., 219 S.W.3d 713, 717 (Ky. 2007). Detention centers are governmental entities which enjoy sovereign immunity. Bryant v. Pulaski County Det. Ctr., 330 S.W.3d 461 (Ky. 2011).
When employees of such agencies are sued in their individual capacities, they are entitiled to qualified official immunity. Bolin v. Davis, 283 S.W.3d 752, 757 (Ky. App. 2008). Qualified official immunity applies to:
(1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's authority. [Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). (Internal citations omitted)].Acts which are not discretionary are deemed to be ministerial and are not protected by qualified official immunity. Faulkner v. Greenwald, 358 S.W.3d 1, 3 (Ky. App. 2011). A ministerial duty is one that requires "obedience to the orders of others, or when [a] duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Yanero, supra. Written policies create ministerial acts. See Gaither v. Justice & Pub. Safety Cabinet, 447 S.W.3d 628, 635 (Ky. 2014). We review questions of immunity de novo. Coleman v. Smith, 405 S.W.3d 487, 493 (Ky. App. 2012).
The Estate through Belcher alleges that Feckler, Worman, Wilson, Shaft, and Burkhead were not sheltered by qualified official immunity because they failed to comply with the policies and procedures of the detention center. As a result, Czaja suffered from a grave illness which ultimately caused her death. The violations that Belcher alleged are:
1. failure of the guards to check on Czaja every twenty minutes during her time in SNU;
2. failure of the guards and jailer to review her segregation;
3. failure of the guards to monitor and log her food intake;
4. failure of the guards to provide a medical request form or notify the nurse when alerted to signs that Czaja was ill; and
5. failure of the guards to call EMS when they realized she needed to be taken to the hospital.
The General Assembly has provided that the Department of Corrections must provide for the health, safety, and sanitary conditions of prisoners. Among its enumerated duties, the Department of Corrections must:
[P]romulgate administrative regulations for the character of food and diet of the prisoners; the preservation of the health of the prisoners ; the daily cleansing of the penitentiary; the cleanliness of the persons of the prisoners; the general sanitary government of the penitentiary and prisons; the character of the labor; the quantity of food and clothing; and the length of time during which the prisoners shall be employed daily.Kentucky Revised Statute[s] (KRS) 197.020(1)(b). (Emphasis added).
In order to comply with this statutory mandate, the Department has promulgated Kentucky Administrative Regulation (KAR) 501 KAR 3, which governs the functioning of local jails. 501 KAR 3:020, § 1.1 requires jails to "develop and maintain . . . a policy and procedures manual." It must be made available to the jail employees, and they " shall sign documentation attesting that they have read and will comply " with the manual. 501 KAR 3:020, §1.2. (Emphases added).
Pertinent to this appeal, the written policies and procedures must include provisions on jail security, which include surveillance checks and response to emergency situations. 501 KAR 3:060 § 3(g) and (h). Additionally, the manual must include guidelines for medical care, including the directive that "[e]mergency medical, vision, and dental care shall be available to all prisoners commensurate with the level of care available to the community." 501 KAR 3.090 § 1.13. The Bullitt County Detention Center is no exception to the rule; it has a manual which comports with the regulations. Therefore, its negligent performance of -- or failure to perform -- procedures in the manual are not shielded by qualified official immunity.
First, the Estate alleges that detention officers should have checked on Czaja every twenty minutes while she was in segregated confinement. The Estate refers us to Policy V-300, which governs administrative segregation - (solitary confinement). Procedure 3 within the policy provides that under increased surveillance, "[c]hecks shall be conducted every 20 minutes." However, the policy also provides that "[d]epending on the reason for separation, inmates in administrative segregation may require increased surveillance." (Emphasis added). Pursuant to that policy, the Estate has not provided a reason that would have required increased surveillance. Therefore, the frequency of checks was left to the officers' discretion. Thus, qualified immunity does apply to this particular allegation.
The Estate next alleges that the jailer was required to review daily her placement in segregation. It reasons that if a proper review had been conducted, the jailer would have seen that Czaja had served seven days in segregation and would have released her to the general population when she fell ill, making aid more readily available or likely. Inmates and detention officers could have easily observed that she was not eating, was vomiting, and was slipping into unconsciousness, alerting them to respond to her needs. The doctors who testified all agreed that if Czaja's low glucose level had been detected earlier, her illness would have been easily reversible by a remedy as simple as a glass of orange juice.
We again look to policy V-300 of the detention center. Procedure 6 provides that "[w]hen an inmate is assigned to administrative segregation, his/her status shall be reviewed at least every day for the first week and at least every day thereafter to determine if return to normal detention is possible." (Emphases added). It then provides that the review shall be conducted by the jailer. The procedure is written in mandatory language, leaving no room for discretion.
Jailer Feckler testified that he did not review Czaja's status at all. He told the jury that he was unaware that Czaja was an inmate until she was taken to the hospital. Additionally, the detention officers consistently testified that the officer who committed an inmate to segregation was also the one to release that inmate. Worman testified that she never entered into the mandatory daily review. Indeed, she suggested that she might have forgotten about Czaja's confinement. Because conducting a review is mandatory and, therefore, ministerial, Feckler and Worman are not entitled to assert qualified official immunity. There is a question of fact as to whether their failure to review Czaja's status was a factor in her pain and suffering. It is an issue for the jury to decide. Summary judgment was improperly entered on this claim.
The Estate also alleges that the detention officers acted negligently by not monitoring or recording her food intake. This factor is significant because failure to eat causes the body's glucose level to fall, and Czaja's fell to a fatal level. Bullitt County Detention Center policy VI-100 provides that "[i]t is the affirmative duty of every detention officer to maintain regular surveillance of the inmates and their activities to ensure the safety . . . of the inmates." Procedure 2 provides that when conducting surveillance, officers " shall observe inmate's behavior and appearance for unusual or questionable situations and events." (Emphasis added.) It provides several examples, specifically including not eating. Procedure 3 charges that such observations be recorded in the Daily Log. Procedure 12 of Policy IX-100 also requires detention officers to document if, when, and how often an inmate rejects food.
The detention officers all testified that they did not know if Czaja had been eating her meals, and there was no documentation of any observations. The current jailer (chief deputy jailer at the time of Czaja's incarceration) testified that, in spite of the published procedure, it simply was not the practice at the detention center to monitor the inmates' food intake. She said that they only monitored food consumption in cases of hunger strikes or severe depression.
There is no question that the guards failed to perform a ministerial duty when they did not observe and record Czaja's food intake. Mandatory record keeping is a ministerial function. Ashby v. City of Louisville, 841 S.W.2d 184, 189 (Ky. App. 1992). Therefore, it is appropriate for a jury to determine whether that failure was a factor in Czaja's pain and suffering. The award of summary judgment was erroneous with respect to this issue.
The Estate also alleges that Czaja was denied the opportunity to notify nurse Bullock that she was ill. Czaja had witnesses who testified that as early as three days before she was taken to the hospital, she began telling the guards that she was sick and that she asked for help. Additionally, a witness who had been in a nearby cell testified that she herself requested medical help for Czaja multiple times during those three days because Czaja had vomited throughout the night.
Policy VIII-100 of the detention center is clear that "inmates shall be entitled to health care comparable to that available to citizens in the surrounding community . . . No officer or other employee shall ever summarily or arbitrarily deny an inmate's request for medical services." Procedure 3 of policy VIII-300 provides that "[medical request] slips shall be provided by the detention officer upon request." (Emphasis added.) The Estate has presented evidence to show that Czaja was denied the very care clearly mandated by policy and regulations. Because the duty to provide health care is ministerial, a question of fact exists for a jury to determine whether Czaja or someone else requested care for her; and, if so, whether the breach of that duty contributed to her pain and suffering. Therefore, it was error to reward summary judgment in respect to this claim.
Finally, the Estate asserts that the jail staff had a ministerial duty to call EMS at the time that they realized the seriousness of Czaja's condition. We reiterate that she lay on the floor of a holding cell for one hour before she was transported to the hospital by van. EMS presumably would have arrived sooner and would have provided medical care en route to the hospital.
Policy VIII-400 of the detention center guarantees the availability of emergency medical services at all times to inmates. In order to provide the services, "[a]ll officers are trained to respond to medical emergencies since an inmate's life may depend on appropriate first aid." Reciting 501 KAR 3.090, § 1.13, the policy sets forth that "[e]mergency medical . . . care shall be available to all inmates commensurate with the level of such care available to the community."
The first procedure within VIII-400 defines the conditions which are defined to be emergencies. They include; (b) unconsciousness or seizure; (i) health or life threatening situations; and (j) drug or alcohol withdrawal. Procedure 2 instructs the detention officer to call the facility medical officer and EMS when one of the conditions listed as emergencies, per se, has occurred. These are ministerial duties.
At trial, there was conflicting evidence presented in respect to Czaja's condition on the morning of August 3. Bullock testified that Czaja was able to speak, but Burkhead testified that she was nearly nonresponsive and only mumbled. Burkhead testified that Czaja had urinated on herself and vomited on the floor, but Bullock testified to the contrary. Bullock testified that Czaja told her that she was withdrawing from narcotics. She claims that she proceeded with treatment of Czaja as a withdrawal case. Bullock also testified that she did not consider withdrawal to be an emergency -- despite the published procedure to the contrary. Bullock gave both inconsistent as well as contradictory testimony in depositions and at trial.
There are clearly numerous questions of fact for a jury. If Czaja had exhibited symptoms which were emergencies per se as defined by written policy (i.e., being nonresponsive or in a health or life-threatening situation), Wilson should have called Bullock directly rather than relying upon e-mail. Shaft should have provided emergency care. If Bullock and the guards were proceeding as if Czaja were going through withdrawal, EMS should have been called. If she was not responsive, EMS should have been called. The jury must also weigh whether Czaja received emergency care commensurate with the level of care available to members of the community outside the jail. We note that "[t]he administration of medical care is a ministerial function by employees, including doctors." Gould v. O'Bannon, 770 S.W.2d 220, 222 (Ky. 1989). Therefore, it was clear error for the trial court to grant summary judgment regarding the jail staff's treatment of Czaja.
The Estate next argues that the court erred in its instruction to the jury as to the claims that went to trial. The Estate acknowledges that it did not object to the instructions at trial, but it notes that it had tendered instructions which reflect the current argument. CR 61.02 permits our review of unpreserved error if it is "[a] palpable error which affects the substantial rights of a party." The rule is intended to correct errors committed by the court -- not by counsel or parties. Childers Oil Co. v. Adkins, 256 S.W.3d 19, 26 (Ky. 2008) (citing Cobb v. Hoskins, 554 S.W.2d 886 (Ky. App. 1977)). "The duty to give proper instructions lies clearly in the hands of the trial court." Id. at 27. Relevant to this case, Childers provides "'the refusal of the trial court to accept the plaintiff's tendered instruction, coupled with its own erroneous [instruction], resulted in a manifest injustice."' Id at 26. Therefore, it is appropriate for us to examine the Estate's argument concerning the jury instructions.
As the appellees correctly assert, Kentucky follows a "bare bones" approach to jury instructions.:
"[t]hey should not contain an abundance of detail, but should provide only the "bare bones" of the question for jury determination. This skeleton may then be fleshed out by counsel on closing argument." [Meyers v. Chapman Printing Co., 840 S.W.2d 814, 824 (Ky. 1992)].However, instructions may not misstate the law; they must include all the bones. Sargent v. Shaffer, 467 S.W.3d 198, 209 (Ky. 2015).
The Estate argued to the jury that the negligence of Worman, Bullock, and Southern Health Partners caused compensable pain and suffering to Czaja. However, the jury instructions asked the jury to find: "a) [that Defendant] failed to comply with [an enumerated] duty; AND (b) that such failure was a substantial factor in causing Melissa Czaja's death." (Emphasis in original). The instruction did not allow the jury to consider the actual pain and suffering of which the Estate complained.
Southern Health Partners and Bullock allege that the Estate did not present allegations of pain and suffering in its tendered jury instructions or in its closing arguments. However, we have carefully examined the record -- both the documents and the trial recording. The Estate's tendered instructions asked the jury to find whether the negligence led to Czaja's injuries and death. Additionally, the closing arguments focused on the pain and suffering that she endured in her cell in segregation -- as well as during the time that she was on life support.
It is settled law that erroneous jury instructions constitute a manifest injustice. Childers Oil Co. v. Adkins, 256 S.W.3d at 27. Accordingly, we must vacate and remand for a new trial.
The Estate's remaining arguments are rendered moot because we are ordering a new trial - with the exception of one. During deliberations, the jury asked the court if Czaja's daughters would be the beneficiaries of any damages recovered by the Estate. The court responded by instructing the jury only to consider the evidence which had been presented. The Estate contends that the court's answer was erroneous.
We do not agree that the court erred. The identity of Czaja's beneficiaries is irrelevant for the purposes of determining whether the defendants negligently harmed Czaja. The predecessor to our Supreme Court has held that it was not appropriate to inform the jury of a decedent's seven children who were his beneficiaries; it indicated that doing so actually could prejudice the defendants by appealing to the jurors' sympathy. Freeman v. Oliver M. Elam, Jr. Co., 372 S.W.2d 796, 798 (Ky. 1963). Therefore, the trial court's answer to the jury was wholly proper.
In summary, we hold that the order granting summary judgment was erroneous. Additionally, the jury instructions on the portion of the case that proceeded to trial were fatally flawed. Therefore, we vacate and remand for additional proceedings as required by this opinion.
J. LAMBERT, JUDGE, CONCURS
VANMETER, JUDGE, CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION.
VANMETER, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: While I concur with the portion of the majority opinion which reverses the Bullitt Circuit Court's summary judgment with respect to certain of the Appellees, I respectfully dissent from so much of the majority opinion as vacates the judgment as to Deputy Jailer Worman, Southern Health Partners and Nurse Bullock following the jury trial. The majority opinion reverses the verdict under palpable error review for the trial court's failure to instruct the jury correctly on Appellant's theory of the case, which changed on the first day of trial. Appellant admittedly never objected to the jury instructions. Two well-recognized rules dictate that the jury verdict should not be set aside on this basis.
First, CR 51(3) states "[n]o party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection." The Kentucky Supreme Court has noted that "[t]he underlying purpose of [this rule] is to 'obtain the best possible trial at the trial court level' by 'giv[ing] the trial judge an opportunity to correct any errors before instructing the jury.'" Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 162 (Ky. 2004) (citations and footnotes omitted).
Secondly, CR 61.02 states that "[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." We are therefore required to apply a palpable error standard of review. In Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009), the Kentucky Supreme Court discussed the identically worded palpable error rule of RCr 10.26, and stated
Kentucky Rules of Criminal Procedure.
Since RCr 10.26 and CR 61.02 are identically worded, no good reason seems to exist for not applying case law interpreting RCr 10.26 to a civil case.
an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is "palpable," we have explained, only if it is clear or plain under current law, Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006), and in general a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.2005). But see United States v. Olano, 507 U.S. at 735, 113 S.Ct. 1770 (discussing the federal "plain error" standard and noting, without deciding, that there may be forfeited errors so fundamental that they "can be corrected regardless of their effect on the outcome."). An unpreserved error that
is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006).283 S.W.3d at 668.
Under the clear holding of Jones, palpable error relief is not available unless three conditions are present. The error must have (1) been clear or plain under existing law, (2) been more likely than ordinary error to have affected the judgment, and (3) so seriously affected the fairness, integrity or public reputation of the proceeding to have been jurisdictionally intolerable.
In this case, the error asserted by Appellant does not appear to be clear or plain. Both parties tendered proposed jury instructions under Appellant's original theory of the case. The jury instructions clearly set forth a cause of action against the Deputy Jailer Worman, Nurse Bullock and Southern Health Partners for negligently administering to Czaja. Appellant's theory on appeal is that because the instructions were insufficiently limited to pre-death pain and suffering, her theory of the case was not adequately set forth. In my view, Appellant's own jury instructions suffer from the same failing as the trial court's tendered instruction, with an offending "and." In other words, the Appellant failed to tender proper jury instructions and to object to the trial court's instruction. Error, if any, was not a palpable error which is correctable on appeal.
Childers Oil Co. v. Adkins, 256 S.W.3d 19. 26-27 (Ky. 2008), cited in the majority opinion, does not set forth settled law that "erroneous jury instructions constitute a manifest injustice." If that were true, then CR 51(3) is meaningless, and the Kentucky Supreme Court should repeal it. Properly read, Childers was decided on a narrower basis that the Kentucky Civil Rights Act, KRS 344.450, at issue therein, had been held not to allow punitive damages, and the trial court's giving of an instruction allowing punitive damages was palpable error. --------
I would affirm the Bullitt Circuit Court's judgment which was the result of the jury's verdict. BRIEF FOR APPELLANT: D. Chad McCoy
Bardstown, Kentucky BRIEF FOR APPELLEE:
DANNY FACKLER,
MARY WILSON,
MITZI BURKHEAD,
DEBBIE SHAFT,
LAURA WORMAN Jeffrey C. Mando
Covington, Kentucky BRIEF FOR APPELLEE:
DONNA BULLOCK AND
SOUTHERN HEALTH PARTNERS,
INC. M. Jane Brannon
Lexington, Kentucky