FRANKFORT, Ky. (Legal Newsline) - The Kentucky Supreme Court has reversed a decision by its state appeals court in a lawsuit over a woman’s fall in a depressed area of pavement in a Speedway parking lot.

The state’s high court, in a ruling published March 23, said the appeals court read and applied past Supreme Court decisions too narrowly.

As described by Deputy Chief Justice Lisabeth T. Hughes, who authored the majority’s 42-page opinion, the case has had a long procedural history, including two attempted removals to federal court, two trips to the state appeals court and now a second visit to the high court.

However, the case began as a “fairly straightforward” personal injury lawsuit arising out of a Feb. 1, 2007 trip-and-fall at a Speedway SuperAmerica filling station in Manchester, Kentucky.

In a 2010 bench trial, the Clay Circuit Court found for the plaintiffs, Teresa Grubb and husband Randy Grubb, and against Speedway SuperAmerica LLC, the store’s owner and Roxanne Smith, the store’s manager at the time of the accident.

The trial court awarded the Grubbs about $200,000 in damages, including an award of $175,000 to Teresa Grubbs for pain and suffering.

The appeals court reversed and remanded for entry of a defense judgment, invoking the common law’s “open and obvious” doctrine. Basically, the area at issue was in plain view and the risk it posed to pedestrians was apparent, the court said.

The Supreme Court granted the Grubbs’ motion for discretionary review, and remanded to the appeals court for reconsideration in light of recent precedents.

On remand, the appeals court found its prior ruling consistent with the Supreme Court’s recent rulings and stood by its original decision that the Grubbs’ claims failed in their entirety.

The Supreme Court again granted the Grubbs’ motion for discretionary review.

The high court, in its opinion last month, sided with the Grubbs and reversed the panel’s ruling. In its reversal, the Supreme Court also reopened certain issues the panel’s ruling rendered moot.

“Ordinarily, we would remand the matter to the Court of Appeals for its consideration in the first instance of those now resurrected issues,” Hughes explained.

“Given the long delays the parties have already endured and the fact that those issues have been briefed by the parties, however, we depart from our usual practice and address additional issues concerning the liability of store manager Roxanne Smith, the comparative fault of Teresa Grubb, and the trial judge’s denial of a post-judgment motion to recuse.”

The majority concluded the trial court erred by failing to consider whether Grubb shared responsibility for the accident and by failing to find that she did.

“... as Teresa herself testified, it presents the utterly mundane circumstance of a person who, engaged in a conversation with a friend, fails to watch where she is going and trips on an obvious flaw in the pavement,” Hughes wrote, noting the trial court’s failure to address Grubb’s responsibility for her injuries was a “substantial error.”

The high court, in its ruling, also concluded that the trial court erred in finding Smith jointly and severally liable with Speedway on the Grubbs’ claims.

“... even assuming that circumstances might exist in which a store manager could be deemed liable to a business invitee for the manager’s failure to perform employment duties pertaining to the business premises, the store manager here, Smith, did not have sufficient control over Speedway’s premises to incur that sort of liability,” Hughes wrote.

The Supreme Court also affirmed the trial court’s denial of the recusal motion filed by Speedway and Smith.

The recusal motion, which also called for a new trial, was premised on allegations aired in the course of a criminal trial in the U.S. District Court for the Eastern District of Kentucky.

According to the defendants, those allegations linked Judge Oscar House and the Grubbs’ attorney, Yancey White, to a Clay County, Kentucky, vote-buying conspiracy.

The defendants argued the suggested relationship between House and White “calls into question” the rulings they, and other parties in similar situations, received.

But House, in his order denying a new trial and recusal, said no reasonable person would question his impartiality based only on “unsupported allegations mentioned for an entirely different purpose in the course of an unrelated federal trial.”

The Supreme Court agreed.

“A reasonable person would want more than innuendo and unsupported allegations to conclude that a judge’s impartiality had been impugned,” Hughes wrote, but added that a judge’s duty to avoid the appearance of impropriety is a “continuing one.”

She noted, “The question can be revisited on remand in this case if, in the several years since the question first arose, additional concerns have come to Speedway’s notice.” 

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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