Updated 2012

COMMONWEALTH OF KENTUCKY

COMPENDIUM OF LAW

Prepared by Melissa Norman Bork

Bingham Greenebaum Doll LLP 3500 National City Tower

101 South Fifth Street Louisville, KY 40202

(502) 589-4200 www.bgdlegal.com

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PRE-SUIT AND INITIAL CONSIDERATIONS

Pre-Suit Notice Requirements/Prerequisites to Suit

A) Libel. To recover punitive damages in a libel action against a newspaper, radio or

television broadcasting station, the plaintiff must make a sufficient demand for correction

prior to commencement of the action. KY. REV. STAT. ANN. § 411.061.

B) Roads. A plaintiff must give notice within ninety (90) days of injury prior to filing suit

against any city in Kentucky for injury resulting from a defect in the condition of a

roadway or bridge. KY. REV. STAT. ANN. § 411.110.

C) Aircraft nuisance. Before suit may be brought against a governmental unit for damages,

noise abatement or otherwise, arising from the operation of aircraft into or out of an

airport, written notice must be given to the governmental unit “within seven (7) days of

the time within which each such operation occurred.” KY. REV. STAT. ANN. § 411.115.

Relationship to the Federal Rules of Civil Procedure

The Kentucky Rules of Civil Procedure are patterned after the Federal Rules. Although there are

differences, the Rules are substantially similar.

Description of the Organization of the State Court System

A) Judicial selection. Judges in Kentucky are elected by districts in non-partisan elections.

Kentucky is divided into seven appellate districts, each of which elects one justice to the

Supreme Court and two judges to the Court of Appeals, who each serve eight (8) year

terms. Circuit and District Court districts vary in size depending upon population and

caseload. Some districts encompass several counties and have only one judge, while

others include only one county and have several judges. Circuit Court judges also serve

eight (8) year terms. District Court judges serve for four (4) years. KY. CONST. §§ 109-

13, 115-17, 119. See also Kentucky Court of Justice, available at

http://courts.ky.gov/courts/ (last visited July 10, 2012).

B) Structure. Kentucky has a four-tiered court system.

1) District Court. The District Court is a trial court of limited jurisdiction. Juvenile

matters, city and county ordinances, misdemeanors, traffic offenses, probate of

wills, arraignments, felony probable cause hearings, small claims involving

$2,000 or less, and civil cases involving $5,000 or less are all District Court

matters, as well as voluntary and involuntary mental commitments and cases

relating to domestic violence and abuse. Appeals from District Court are made to

Circuit Court. KY. REV. STAT. ANN. § 24A.010, et seq.; see also Kentucky Court

of Justice, available at http://courts.ky.gov/district court (last visited July 10,

2012).

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2) Circuit Court. The Circuit Court is the trial court of general jurisdiction and has

authority to try all cases for which jurisdiction has not been expressly vested in a

different court. The Circuit Court presides over cases involving capital offenses,

felonies, land disputes, contested probates of wills, and general civil litigation in

disputes involving more than $5,000. Circuit Courts have the power to issue

injunctions, writs of prohibition, writs of mandamus and hear appeals from

district courts and administrative agencies. KY. REV. STAT. ANN. § 23A.010, et

seq.; see also Kentucky Court of Justice, available at http://courts.ky.gov/circuit

court (last visited July 10, 2012).

a) The Family Court is a division of Circuit Court which retains primary

jurisdiction in domestic matters. Family Court shares jurisdiction with

District Court over proceedings involving domestic violence and abuse;

the Uniform Act on Paternity and the Uniform Interstate Family Support

Act; dependency, neglect, and abuse; and, juvenile status offenses. Id.

3) Court of Appeals. The Court of Appeals hears cases on appeal from a lower

court and may review directly decisions of administrative agencies of the

Commonwealth. KY. CONST. § 111(2). Original proceedings (i.e., writs of

prohibition or mandamus) against a judge or agency whose decisions may be

reviewed as a matter of right may also be prosecuted at the Court of Appeals. KY.

R. CIV. P. 76.36.

4) Supreme Court. The Kentucky Supreme Court is comprised of a Chief Justice

and six Justices. KY. CONST. § 110. It is the Commonwealth’s court of last resort

and the final interpreter of state law. The Supreme Court normally assumes

appellate jurisdiction only by grant of discretionary review, except for cases

involving the death penalty, life imprisonment or imprisonment for twenty (20)

years which are heard as a matter of right. KY. CONST. § 109; see also Kentucky

Court of Justice, http://courts.ky.gov/courts/ (last visited July 10, 2012).

C) Alternative dispute resolution (“ADR”). Kentucky does not have a comprehensive

state-wide statute for ADR. However, KY. R. CIV. P. 16(1)(f) provides that, at the pretrial

conference, the court may require the parties to “consider … such other matters as may

aid in the disposition of the action.” This includes ordering the parties to engage in

mediation. See Ky. Farm Bureau Mut. Ins. Co. v. Wright, 136 S.W.3d 455, 459 (Ky.

2004). The court may require that each party have an agent present with the full

authority to settle the action. Even though the court can require that the parties engage in

mediation, it cannot require the parties to actually settle. See id. Many counties have

adopted the Model Mediation Rules, Kentucky Rules of Court (State) 379-80 (2008).

Other counties have their own rules and some have no rules at all. Kentucky has also

adopted the Uniform Arbitration Act. KY. REV. STAT. ANN. §§ 417.045-.240. Kentucky

will enforce arbitration provisions in written agreements, except agreements between

employers and employees, and insurance contracts. KY. REV. STAT. ANN. § 417.050.

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Service of Summons

A) Service of summons is governed by KY. R. CIV. P. 4.01 which sets forth the methods for

service upon a: (1) person; (2) public corporation; and (3) private corporation. A civil

summons and complaint or other initiating document may be served by registered mail,

certified mail return receipt requested with instructions to deliver to the addressee only,

or by any peace officer or other person authorized by law to deliver such summons.

Proof of service shall be evidence by the return mail receipt noting the time, place and

manner of service, or return endorsed by authorized service agent noting the time and

manner of service.

B) Person. A person within the state may be served by personal delivery, or by registered or

certified mail with return receipt requested, mailed by the court clerk for delivery to the

addressee only. Service upon an unmarried infant or person of unsound mind shall be

made by delivering to either of the person’s parents, if within the state, or, if none, to the

person within the state having control of such individual. Service is complete only upon

delivery. KY. R. CIV. P. 4.04(2)-(3).

C) Partnership. A partnership or unincorporated association shall be served by delivering

to a partner or managing agent, or other agent authorized by appointment or law to

receive service. KY. R. CIV. P. 4.01(4).

D) Corporation. A corporation may be served by delivery to an officer or managing agent

or chief agent in the county wherein the action is brought, or any other agent of the

corporation authorized by law to receive service. KY. R. CIV. P. 4.04(5). Foreign and

domestic corporations conducting business in Kentucky are required by KY. REV. STAT.

ANN. § 14A.4-010 to have a registered agent for service of process. If serving a

corporation by registered mail, the envelope must be addressed to an appropriate officer

and not merely to the name of the corporation, to ensure that a responsible party receives

the summons. Service on a nonresident individual who transacts business through an

office or agency within the state shall be made by serving the person in charge thereof.

KY. R. CIV. P. 4.04(9).

E) Commonwealth. Service upon the Commonwealth or any agency thereof shall be made

by serving the attorney general or any assistant attorney general. KY. R. CIV. P. 4.04(6).

F) Counties. Service upon a county shall be made by serving the county judge or, if he or

she is absent, the county attorney. Service upon a city shall be made by serving the chief

executive officer or an official attorney thereof. Service upon a public board which is not

a state agency shall be made by service of a member thereof. KY. R. CIV. P. 4.04(7).

G) Individuals outside of state. Service upon an individual outside the state shall be made

either by certified mail or by personal delivery by a person over eighteen (18) years of

age. Such service, without an appearance, shall not authorize a personal judgment, but

the individual summoned shall otherwise be considered to be before the court. KY. R.

CIV. P. 4.04(8).

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H) Long-arm statute. Kentucky’s long-arm statute, KY. REV. STAT. ANN. § 454.210,

allows service of process in actions against a non-resident arising out of:

1) the transaction of business in the state;

2) supplying goods or services in the state;

3) causing injury in the state;

4) breach of warranty for goods used or consumed or services rendered in the state;

5) an interest in real property in the state;

6) contracting to insure any person, property or risk in the state;

7) committing sexual intercourse in the state which causes the birth of a child; or

8) making telephone solicitations in the state.

Service in such cases shall be made upon the person if within the state or, if not, upon the

Secretary of State who is deemed that person’s statutory agent. In such cases, the

Secretary of State shall mail by certified mail two (2) copies of the summons and

complaint to the address listed on the complaint and summons and shall make a return to

the court. Summons shall be deemed served on the return to the Secretary of State. KY.

REV. STAT. ANN. § 454.210(3)(b).

I) Waiver. A defendant can consent to receive service by a method other than those

prescribed by the rules, or can waive service of process altogether. PHILLIPS & KRAMER,

KENTUCKY PRACTICE, vol. 6, 23 (6th ed. 2005) (citing WRIGHT & MILLER, FEDERAL

PRACTICE & PROCEDURE (2d ed.), Civil § 1062).

Statutes of Limitations

A) Construction. An action arising out of any deficiency in the construction of or

improvement to real property, or any property damage or personal injury arising

therefrom must be brought within seven (7) years of substantial completion. KY. REV.

STAT. ANN. § 413.135(1). An injury occurring during the seventh year, must be brought

within one (1) year from the date of the injury (irrespective of the date of death), but in

no event more than eight (8) years after substantial completion. KY. REV. STAT. ANN. §

413.135(2). A construction claim arising from a contract executed and administered by

the Transportation Cabinet must be filed in Franklin Circuit Court within one (1) year the

issuance of a final pay estimate by the state or receipt of a final adverse decision from the

Commonwealth, whichever occurs later. KY. REV. STAT. ANN. § 45A.260(1). Any other

construction claim involving the state shall “be commenced in Franklin Circuit Court

within one (1) year from the date of completion specified in the contract.” KY. REV.

STAT. ANN. § 45A.260(2).

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B) Contract. An action on an oral contract must be brought within five (5) years of the

accrual of the cause of action. KY. REV. STAT. ANN. § 413.120(1). An action on a

written contract not involving a sale of goods must be brought within fifteen (15) years of

accrual. KY. REV. STAT. ANN. § 413.090(2). The limitations period may be reasonably

shortened by written agreement. See Schultz v. Cooper, 134 S.W.3d 618, 619 (Ky. App.

2003). An action for breach of contract involving the sale of goods is governed by

Kentucky’s Uniform Commercial Code, and must be brought within four (4) years of

accrual. KY. REV. STAT. ANN. § 355.2-725(1). A cause of action accrues when the

breach occurs, regardless of a party’s knowledge or lack of knowledge of the breach.

KY. REV. STAT. ANN. § 355.2-725(2). Parties to a contract for the sale of goods may

decrease the period of limitation to as little as one (1) year but may not extend it past four

(4) years. KY. REV. STAT. ANN. § 355.2-725(1).

C) Employment. An action for civil rights violations brought under the Kentucky Civil

Rights Act, KY. REV. STAT. ANN. § 344, must be brought within five (5) years. KY. REV.

STAT. ANN. § 413.120. An action for wage discrimination based on sex must be brought

within six (6) months of the occurrence. KY. REV. STAT. ANN. § 337.430. An action for

recovery of unpaid unemployment compensation contribution, interest or penalties must

be brought within ten (10) years from the due date. KY. REV. STAT. ANN. § 341.300(4).

D) Workers’ compensation. Notice of a work-related injury must be been given to the

employer “as soon as practicable” after its happening and an action for workers

compensation benefits must be brought within two (2) years of the date of the injury, or

in case of death, within two (2) years after the death. KY. REV. STAT. ANN. § 342.185(1).

To receive benefits for work-related exposure to the human immunodeficiency virus

notice must be given and a claim filed within five (5) years of the injurious exposure.

KY. REV. STAT. ANN. § 342.185(2). A claim for benefits resulting from occupational

disease must be made within three (3) years of the last injurious exposure or the

employee’s first discovery of the injury, whichever is later. If benefits resulting from

death are claimed, the claim must be made within three (3) years of death. KY. REV.

STAT. ANN. § 342.316(4)(a).

E) Fraud. An action for relief or damages on the ground of fraud or mistake must be

brought within five (5) years of accrual. KY. REV. STAT. ANN. § 413.120(12).

F) Governmental entities. Pursuant to KY. CONST. § 231, the Commonwealth, its agencies

and political subdivisions are immune from suit unless such immunity has been expressly

waived by the legislature. See also Ky. Ctr. for the Arts Corp. v. Berns, 801 S.W.2d 327,

330 (Ky. 1990). Unless otherwise permitted, suits against the Commonwealth or its

divisions or agencies must be filed with the Board of Claims within one (1) year of

accrual. KY. REV. STAT. ANN. § 44.110(1). Property damage claims accrue at the time of

the alleged negligent act. KY. REV. STAT. ANN. § 44.110(2). Personal injury claims

accrue at the time the injury is first discovered or in the exercise of reasonable care

should have been discovered; however, no action for personal injury shall be commenced

beyond two (2) years from the date the alleged negligent act occurred. KY. REV. STAT.

ANN. § 44.110(3). The same rule applies for medical malpractice, except that the action

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must be commenced within three (3) years of the alleged act or omission. KY. REV.

STAT. ANN. § 44.110(4).

G) Personal injury. An action for personal injuries arising out of an automobile accident

must be brought within two (2) years. KY. REV. STAT. ANN. § 304.39-230. An action for

personal injuries against the builder of a home or other improvements must be brought

within five (5) years of the time of original occupancy. KY. REV. STAT. ANN. §

413.120(14). Otherwise, an action for personal injury must be brought within one (1)

year after the cause of action accrued. KY. REV. STAT. ANN. § 413.140(1)(a).

H) Indemnity. An action for common law indemnity must be brought within five (5) years.

KY. REV. STAT. ANN. § 413.120(7); Degener v. Hall Contracting Corp., 27 S.W.3d 775,

782 (Ky. 2000).

I) Contribution. An action for contribution must be brought within five (5) years of

accrual. KY. REV. STAT. ANN. § 413.120(2). See also Baker v. Richeson, 440 S.W.2d

272, 274-75 (Ky. 1969). Limitation begins running, not at the time of commission of the

tort, but at the time the right of action for contribution accrues, ordinarily by payment.

Roehrig v. City of Louisville, 454 S.W.2d 703, 704 (Ky. 1970).

J) Professional liability. An action for malpractice must be brought within one (1) year.

KY. REV. STAT. ANN. § 413.140(1)(e). “The cause of action shall be deemed to accrue at

the time the injury is first discovered or in the exercise of reasonable care should have

been discovered.” KY. REV. STAT. ANN. §§ 413.140(2), 413.245.

K) Property damage. An action for property damage must be filed within two (2) years of

accrual. KY. REV. STAT. ANN. § 413.125.

L) Wrongful death. An action for wrongful death must be brought within one (1) year

from the death. KY. REV. STAT. ANN. § 411.135(2).

M) General. An action created by statute for which no other time is fixed must be brought

within five (5) years after the cause of action accrued. KY. REV. STAT. ANN. §

413.120(2). The statute of limitations for personal injuries not arising from contract and

not otherwise set by statute is also five (5) years. KY. REV. STAT. ANN. § 413.120(7).

“An action for relief, not provided for by statute, can only be commenced within ten (10)

years after the cause of action accrued.” KY. REV. STAT. ANN. § 413.160.

N) Tolling for minors or those with disabilities. If a person is a minor or of unsound mind

at the time a cause of action accrues, the statute of limitations for most actions will be

tolled and may be brought within the same number of years after the age of majority,

removal of the disability or death of the person, whichever happens first, of the time

allowed for any other person. KY. REV. STAT. ANN. § 413.170(1). The tolling does not

apply to someone coming under a disability after the cause of action accrued. See

Alexander v. Commonwealth, 708 S.W.2d 102 (Ky. App. 1986).

O) Other tolling. If claim accrues against a resident during a time when he or she is

legitimately absent from the state (such as for military service), the limitations period

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shall be computed from the time he or she returns to the state. KY. REV. STAT. ANN. §

413.190(1)-(2).

P) Survival. If a person dies before the expiration of the time limited for the

commencement of a cause of action, the action may be brought by his personal

representative within one (1) year of the qualification of the representative, or in no event

longer than two (2) years from the date of death. KY. REV. STAT. ANN. § 413.180(1)-(2).

Statute of Repose

Statutes of repose which extinguish the right to bring a suit before the cause arises are

unconstitutional in violation of KY. CONST. § 59. Tabler v. Wallace, 704 S.W.2d 179 (Ky.

1985).

Venue Rules

A) With consent of the parties, the court may order any civil action from one Circuit Court

to another. KY. REV. STAT. ANN. § 452.010(1). One party to a civil action triable by a

jury may have a change of venue to a different Circuit Court when it appears that,

because of the circumstances or nature of the case, he cannot have a fair and impartial

trial in that county. KY. REV. STAT. ANN. § 452.010(2). Notice must be given to the

nonmoving party within ten (10) days. KY. REV. STAT. ANN. § 452.020. Where the

judge determines that another venue would be more convenient, venue shall be changed,

but the action shall not be dismissed. KY. REV. STAT. ANN. § 452.105; see Dollar Gen.

Stores, Ltd. v. Smith, 237 S.W.3d 162 (Ky. 2007). A change of venue shall be made to

the adjoining county most convenient to the parties. KY. REV. STAT. ANN. § 452.050. A

party may not have more than one change of venue in an action. KY. REV. STAT. ANN. §

452.040. The same venue rules apply to actions brought in District Court, except that

venue is changed to a District Court of another county. KY. REV. STAT. ANN. § 452.700.

B) Specific actions. For rules regarding where certain actions must originally be brought,

see KY. REV. STAT. ANN. §§ 452.400-.505.

NEGLIGENCE

Comparative Fault/Contributory Negligence

A) Pure comparative fault. Kentucky is a pure comparative fault state. In all tort actions

(including products liability actions) involving fault of more than one party, including the

plaintiff, third-party defendants, and persons who have settled, the jury is instructed to

allocate fault among the parties. KY. REV. STAT. ANN. § 411.182(1). In apportioning

fault, the jury is first instructed to determine damages without regard to fault and then to

allocate fault considering both the nature of the conduct and the extent of the causal

connection between each parties’ conduct and the damages claimed. KY. REV. STAT.

ANN. § 411.182(1)(a), (2). In Kentucky, a plaintiff can recover regardless of his own

percentage of fault. Hilen v. Hays, 673 S.W.2d 713, 719 (Ky. 1984).

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B) Apportionment. Only those parties who were either a party to an action, formerly a

party to an action, or previously released from liability can be apportioned fault. Bass v.

Williams, 839 S.W.2d 559, 563-64 (Ky. App. 1992). Courts have refused to extend

apportionment of fault to non-settling non-parties or so called “empty chairs.” Baker v

Ruth Webb, 883 S.W.2d 898, 899 (Ky. App. 1994); Bass, 839 S.W.2d at 863-64. A

settlement of a workers’ compensation claim between an employer and employee

constitutes a settlement for apportionment purposes. Therefore, so long as there is

evidence to support it, fault may be apportioned to a settling employer. Owens Corning

Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 481 (Ky. 2001). However, being named as a

party does not automatically entitle apportionment to that person. For fault to be

assigned to a tortfeasor, there must be sufficient evidence that a defendant’s conduct

legally caused the plaintiff's injury. Garlock Sealing Tech., LLC v. Dexter, 2008 WL

3159479 *4 (Ky. App. Aug. 8, 2008).

Exclusive Remedy – Workers’ Compensation Protections

A) Exclusivity. The Kentucky Workers’ Compensation Act provides the exclusive remedy

for an employee who sustains a work-related injury against his or her employer if the

employer has secured payment of compensation as required by the Act. KY. REV. STAT.

ANN. § 342.690(1). Courts recognize that the exclusive remedy provision essentially

“grants immunity for liability arising from common law and statutory claims.” Ky.

Emp’rs Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007).

B) Third parties. The statute also limits an employer’s liability to any third party who has

paid damages to the injured employee to the amount the employer could be directly liable

to the employee. KY. REV. STAT. ANN. § 342.690(1).

C) Scope. The exclusive remedy provision extends to an employer’s workers’ compensation

insurance carrier and all employees, officers and directors of both the carrier and the

employer. KY. REV. STAT. ANN. § 342.690(1). However, an employee’s exemption from

liability does not extend to damages from injury or death “proximately caused by the

willful and unprovoked physical aggression” of the employee, officer or director. Id.

D) “Employer.” The term “employer” under the Act also encompasses contractors,

regardless of whether a subcontractor has compensated the injured employee. KY. REV.

STAT. ANN. § 342.690(1). A person will be deemed a contractor under the Act if that

person “contracts with another . . . to have work performed of a kind which is a regular or

recurrent part of the business of such person.” KY. REV. STAT. ANN. § 342.610(2)(b).

Therefore, a property owner who contracts for work to be performed on its premises

which is of a kind that is a regular or recurrent part of its business, is a statutory employer

under the Act and is entitled to the benefit of the exclusive remedy provision. Daniels v.

Louisville Gas & Elec. Co., 933 S.W.2d 821, 823 (Ky. App. 1996). The purpose of this

provision is “[t]o discourage owners and contractors from hiring financially irresponsible

subcontractors . . .” to escape workers’ compensation liability. Elkhorn-Hazard Coal

Land Corp. v. Taylor, 539 S.W.2d 101, 103 (Ky. 1976).

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E) Protection. The protection provided by the Act is extensive. Not only does it shield the

employer and its insurer for damages arising out of a work-related injury to a covered

employee, but it also “bars an employee’s tort action for separate damages due to the

untimely payment of the [workers’ compensation] benefits.” Ky. Emp’rs Mut. Ins. v.

Coleman, 236 S.W.3d 9, 14 (quoting Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 341

(Ky. 1986)). Courts have no jurisdiction to provide an initial decision on any claims

regarding injuries covered under the Act, including tortious claims of bad faith and

mishandling of the workers’ compensation claim itself. Coleman, 236 S.W.3d at 14.

These claims are properly resolved only by a Workers’ Compensation Board. Id.

F) Jurisdictional. The exclusive remedy provision of the Act is jurisdictional and a trial

court lacks subject matter jurisdiction to consider cases in which the employer is entitled

to the protection of the exclusive liability provision. Shamrock Coal Co. v. Maricle, 5

S.W.3d 130, 133 (Ky. 1999).

Indemnification

A) Common law indemnity is a right available to parties who are exposed to liability due to

the wrongful acts of another party with whom they are not in pari delicto. Degener v.

Hall Contr. Corp., 27 S.W.3d 775, 780 (Ky. 2000). Pari delicto is defined as two or

more joint tortfeasors who are guilty of concurrent negligence of substantially the same

character which converges to cause the plaintiff’s damages. Id. at 778. Indemnification

does not allow a party to recover from another concurrently negligent party. Instead, it

allows a party who is secondarily or constructively liable to recover from the party who is

primarily liable for a plaintiff’s injuries due to negligence. V.V. Cooke Chevrolet, Inc. v.

Metro. Trust Co, 451 S.W.2d 428, 430 (Ky. 1970).

B) Application. The right to indemnity applies in two classes of cases. The first occurs

“[w]here the party claiming indemnity has not been guilty of any fault, except

technically, or constructively, as where an innocent master was held [responsible] for the

tort of his servant.” Degener, 27 S.W.3d at 780 (quoting Louisville Ry. Co. v. Louisville

Taxicab & Transfer Co., 77 S.W.2d 36, 39 (Ky. 1934)). The second class of indemnity

cases occur “where both parties have been in fault, but not in the same fault, towards the

party injured, and the fault of the party from whom indemnity is claimed was the primary

and efficient cause of the injury.” Id. The seminal Kentucky decision on common law

indemnity is Brown Hotel Co. v. Pittsburg Fuel Co., where a hotel company, found liable

for a pedestrian’s injuries due to an unsecured manhole, was determined to be entitled to

indemnity from the fuel company whose employee left the manhole unsecured. 224

S.W.2d 165 (Ky. 1949).

C) Relationship with comparative fault. The Kentucky Supreme Court has determined

that the common law right to indemnity remains intact, despite the enactment of

Kentucky’s comparative fault statue, KY. REV. STAT. ANN. § 411.182; Degener, 27

S.W.3d at 781.

D) Asserting claim. Under Kentucky law, a party seeking indemnification does not have to

wait until after it is determined to be liable for damages. Instead, it may assert the

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indemnification claim in the original tort action. Degener, 27 S.W.3d at 780 (citing

Robert F. Simmons Constr. Co. v. Am. States Ins. Co., 426 S.W.2d 441, 443-44 (Ky.

1968)).

E) Express provisions. Express contractual indemnity provisions are also valid and

generally enforceable. Agreements to indemnify against an indemnitee’s own negligence

are valid and not void for public policy. Fosson v. Ashland Oil & Refining Co., 309

S.W.2d 176, 177 (Ky. 1958). However, there is a strong presumption against such an

intention and where there is doubt as to the meaning of an indemnity clause, it will be

construed against indemnification for one’s own negligence. Id. In addition, pre-injury

indemnification provisions used to defend against the indemnitee’s own negligence are

void against public policy “when agreed to by a party in a clearly inferior bargaining

position.” Speedway SuperAmerica, LLC v. Erwin, 250 S.W.3d 339, 344 (Ky. App.

2008).

Joint and Several Liability

Joint liability applies when two or more joint tortfeasors both contribute to a single, indivisible

injury through their concurrent negligence of substantially the same character, and each

defendant is determined to be fully liable for the injury. Several liability occurs when the

defendants are only liable for their respective obligations and not the entire injury. At common

law, each joint tortfeasor was both joint and severally liable, meaning they were entirely

responsible for a plaintiff’s single, indivisible injury. However, joint and several liability in

Kentucky was abolished with the enactment of Kentucky’s comparative fault statute, KY. REV.

STAT. ANN. § 411.182. Dix & Assocs. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27-28

(Ky. 1990). Therefore, liability among joint tortfeasors in negligence cases in Kentucky “is no

longer joint and several but is several only.” Id. at 27. The extent of a defendant’s liability is

limited to the degree of fault apportioned by the jury. Stratton v. Parker, 793 S.W.2d 817, 820

(Ky. 1990).

Strict Liability

A) In determining whether a defendant is liable for a negligent tort, the law examines the

conduct of the defendant. However, in determining whether a defendant is strictly liable

for a plaintiff’s injury, the law examines the activity in which the defendant has chosen to

engage, or that product the defendant has chosen to sell to the public. If the activity or

the product is particularly dangerous, the law may impose liability on the defendant

without regard to the defendant’s degree of care. Put another way, “’[s]trict liability’ is a

judicial doctrine which relieves a plaintiff from proving specific acts of negligence and

protects him from certain defenses.” Carmical v. Bullock, 251 S.W.3d 324, 326 (Ky.

App. 2007).

B) Animals. Under Kentucky law, owners of certain types of animals are held strictly liable

for injuries or damages caused by these animals. Dog owners are held responsible for

any damage to a person, livestock or other property committed by their dog. KY. REV.

STAT. ANN. § 258.235(4). If cattle enter into neighboring land that has been fenced, the

11

owners are strictly liable for any property damage the cattle cause. KY. REV. STAT. ANN.

§ 256.080.

C) Products liability. A plaintiff may bring a products liability action under theories of

strict liability, negligence or breach of warranty. Williams v. Fulmer, 695 S.W.2d 411,

413 (Ky. 1985). Both statutory and common law govern product liability actions. KY.

REV. STAT. ANN. § 411.300, et seq. In terms of products liability, strict liability will only

be imposed if the product sold is “in a defective condition unreasonably dangerous to the

user or consumer or to his property.” Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50,

54-55 (Ky. App. 1999). The defect can be an error in the manufacture of a product, or

properly made product, manufactured according to an unreasonably dangerous design.

Id. The Products Liability Act also does not preclude the jury from considering the

comparative fault of all parties. Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d

467, 474 (Ky. 2001).

1) Proving defect. Liability for products liability is not without fault, and a plaintiff

must prove the existence of the defect to recover. However, a manufacturer is

presumed to know the qualities and characteristics, and the actual condition, of his

product at the time he sells it, and the question for the fact finder is whether the

product creates “such a risk” of injury that an “ordinarily prudent” manufacturer

would not have put it on the market. Nichols v. Union Underwear Co. Inc., 602

S.W.2d 429, 433 (Ky. 1980). Considerations such as “feasibility of making a

safer product, patency of the danger, warnings and instructions, subsequent

maintenance and repair, misuse, and the products’ inherently unsafe

characteristics,” are to be considered in determining whether the product was in

“a defective condition, unreasonably dangerous,” and if determined to be a

substantial factor or intervening cause, any one of these factors may be decisive.

Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780-81 (Ky. 1984).

3) The Act creates a statutory presumption that a product is not defective “if the

injury, death or property damage occurred either more than five (5) years after the

date of sale to the first consumer or more than eight (8) years after the date of

manufacture” and “if the design, methods of manufacture, and testing conformed

to the generally recognized and prevailing standards or the state of the art in

existence at the time the design was prepared, and the product was

manufactured.” KY. REV. STAT. ANN. § 411.310(1), (2). The presumption may

be rebutted by evidence that product was defective, and there is no requirement

that the plaintiff introduce evidence that design did not conform to prevailing state

of the art. Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299-300 (Ky.

App. 1997).

4) Wholesalers and retailers. One who sells a product manufactured by another in

its original condition shall have no liability for injury caused by the product

absent breach of an express warranty or evidence that the seller knew or should

have known of the product’s defective, unreasonably dangerous condition at the

time of sale. KY. REV. STAT. ANN. § 411.340.

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D) Learned intermediaries. The “Learned Intermediary” doctrine essentially holds that a

drug manufacturer is not under an obligation to directly warn the ultimate consumer

about the potential risks involved in the use of a prescription drug. Larkin v. Pfizer, Inc.,

153 S.W.3d 758 (Ky. 2004). Given the fact that the drug must be prescribed by a

physician or health care provider to reach a consumer, the manufacturer’s only obligation

is to warn the health care provider, and not the patient, of potential dangers. Id. The drug

manufacturer has a duty to warn the “learned intermediary,” usually the prescribing

physician or health care provider, and not the third-party consumer. Pharmacists are

considered retailers under the Kentucky Products Liability Act and not learned

intermediaries. Therefore, they may be held liable if they knew or should have known of

the defect in the product at the time of sale, but they are not subject to further liability as

health care providers. Smith v. Wyeth Inc., 488 F. Supp. 2d 625, 630 (W.D. Ky. 2007).

Willful and Wanton Conduct

A) In Kentucky, willful or wanton conduct is a form of gross negligence. The term

“willful,” is somewhat misleading, because willful conduct need not be intentional, the

legal analysis hinges on the outrageousness of the conduct, not the state of mind of the

actor. Louisville & N.R. Co. v. George, 129 S.W.2d 986, 989 (Ky. App. 1939). It is not

necessary to show ill will toward the person injured, but merely an indifference to the

consequences of one’s actions. Id.

B) Heightened degree of negligence. In negligence cases, willful, wanton, or reckless

conduct is treated as a heightened degree of negligence that authorizes the imposition of

punitive damages. Courts have noted that “negligence when gross has the same character

of outrage justifying punitive damages as does willful and malicious misconduct.”

Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 389 (Ky. 1985). To justify

punitive damages, “there must first be a finding of failure to exercise reasonable care, and

then an additional finding that this negligence was accompanied by wanton or reckless

disregard for the lives, safety, or property of others.” Id. at 389-90.

DISCOVERY

Electronic Discovery Rules

Electronic discovery relates to the discovery of electronically stored information. Kentucky does

not currently have a specific rule or rules governing electronic discovery. However, pursuant to

KY. R. CIV. P. 26.01(2), parties propounding or responding to interrogatories, requests for

production, or requests for admissions are encouraged to serve discovery requests in an

electronic format, in any commercially available word processing software system.

Expert Witnesses

A) Forms of disclosure and reports required. KY. R. CIV. P. 26.02(4) separates experts

into two categories: experts a party expects to call as witnesses at trial, and experts who

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have been specially employed or retained in anticipation of litigation, but who are not

expected to serve as witnesses at trial.

1) Testifying experts. With respect to testifying experts, a party may, through

proper interrogatories, obtain discovery without a court order and without any

special showing. KY. R. CIV. P. 26.02(4)(a). In response to proper

interrogatories, a party is required to identify all testifying experts, state the

subject matter on which he or she will testify, provide the substance of the facts

and opinions to which the expert will testify and give a summary for the grounds

for each of the expert’s opinions. Id. In addition, depositions of an opposing

party’s experts may be taken, subject to restrictions based on scope of discovery,

without a court order as a matter of right. Id.

2) Consulting experts. With respect to consulting experts, discovery may be had

concerning facts known or opinions held by non-testifying experts only upon a

showing of “exceptional circumstances under which it is impractical for the party

seeking discovery to obtain facts or opinions on the subject by other means.” KY.

R. CIV. P. 26.02(4)(b). The physical condition of evidence that is the subject of

expert testimony and the expense in deposing are factors considered when

determining exceptional circumstances. Big Sandy Wholesale, Inc. v. Conley, 639

S.W.2d 778, 780 (Ky. 1982).

B) Discovery of expert work product. While a testifying expert is required to disclose the

basis of his or her opinions when served with proper interrogatories, an opposing party

may not admit the reports and opinions of experts whom a party does not intend to call at

trial. This rule strengthens the protection given to non-testifying expert opinions and

reports obtained prior to trial, even when those reports may be incomplete or unfavorable.

KY. R. CIV. P. 26.02(4)(a).

C) Rebuttal witnesses. As a general rule, “the scope and duration of cross-examination

rests in the sound discretion of the trial court in both civil and criminal cases.” Morrow

v. Stivers, 836 S.W.2d 424, 428 (Ky. App. 1992). Therefore, it is for the trial court to

determine whether to allow rebuttal testimony and, if so, its scope. While the identity of

rebuttal witnesses, including experts is required to be disclosed in accordance with the

rules of discovery, there is no authority that requires a party disclose what the anticipated

rebuttal testimony will be. Meek v. Vasconez, 2006 WL 1652736 *4 (Ky. App. June 16,

2006). “Rebuttal evidence is not confined to proving or disproving facts testified to by

the witnesses on the other side, but that is nonetheless rebuttal evidence which tends to

counteract or overcome the legal effect of the evidence for the other side.” Ajax Coal Co.

v. Collins, 269 Ky. 222, 106 S.W.2d 617, 618 (1937).

1) Preserving appeals record. When rebuttal testimony is excluded, the party

seeking its introduction must, at a minimum, make an avowal as to what that

testimony would be for the error of its exclusion to be considered on appeal.

Houser v. Coursey, 221 S.W.2d 432, 434 (Ky. 1949).

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Non-Party Discovery

A) Subpoenas. KY. R. CIV. P. 45.01 governs the use of subpoenas.

1) KY. R. CIV. P. 45.01 provides that a subpoena shall be issued by a clerk or other

authorized officer, and shall command each person to whom it is directed to

attend and give testimony at a given time and place, or to produce documentary or

other tangible evidence. A subpoena shall state the court from which it is issued,

the title of the action, the court in which the action is pending, its civil action

number, and the name, address, telephone number and e-mail address of the

attorney or pro-se party causing the subpoena to be issued. Id. Subpoenas shall

only be used to command the attendance of a witness, and production of

documentary or tangible evidence at a deposition, hearing or trial. Documents

may, however, be produced without a deposition upon order of the court, or

agreement by the parties. Id. A subpoena can be quashed or modified by the

court upon motion at or before the time indicated for compliance if it is

unreasonable and oppressive, or the requesting party may be required to advance

the reasonable cost of producing the document, papers, or tangible things

requested. KY. R. CIV. P. 45.02.

2) Service. A subpoena may be served by any person over eighteen years of age or

any officer authorized to serve a summons including: service by sheriff, person

empowered to be sheriff, or person appointed by the court. (KY. REV. STAT. ANN.

§§ 454.140, 70.050, 454.145). Service shall be made by delivering or offering to

deliver a copy to the individual to whom it is directed. The affidavit thereon must

be endorsed by the individual serving the subpoena and shall act as proof of

service. KY. R. CIV. P. 45.03.

3) Location. A resident of a state may only be required to attend an examination in

the county where he or she resides, is employed, or transacts his or her business in

person, or at any such other convenient place as is fixed by the court. KY. R. CIV.

P. 45.04(3). A person commanded to produce documents or tangible things, or to

permit the inspection of premises, need not appear in person at the place of

production or inspection unless commanded to appear for a deposition, hearing, or

trial. Id.

4) Contempt. Disobedience or a refusal to be sworn or to answer as a witness under

a subpoena is punishable as contempt. KY. R. CIV. P. 45.06.

B) Respondents and time frames for responses. A person to whom a subpoena is directed

may, within ten (10) days after service or within a time frame specified in the subpoena,

serve written objection to the inspection or copying of materials. If such an objection is

made, the party serving the subpoena shall not be permitted to inspect or copy requested

materials without a court order. KY. R. CIV. P. 45.04(2). The civil rules also authorize an

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independent action against a non-party for production of documents and things and

permission to enter upon land. KY. R. CIV. P. 34.03.

Privileges

A) Attorney-client privilege. The attorney-client privilege is an evidentiary privilege

governed by KY. R. EVID. 503.

1) Applicability. The attorney-client privilege applies to confidential

communications made for the purpose of securing legal advice (1) “between the

client and representative of the client and the client’s lawyer or a representative of

the lawyer;” (2) “between a lawyer and a representative of the lawyer;” (3) “by

the client or a representative of the client or the client’s lawyer or a representative

of the lawyer representing another party in a pending action and concerning a

matter of common interest therein;” (4) “between representatives of the client or

between the client and a representative of the client;” or (5) “among lawyers and

their representatives representing the same client.” KY. R. EVID. 503. Attorney-

client privilege can be waived by voluntary disclosure or consent to disclose any

significant portion of the privileged matter. KY. R. EVID. 509.

2) “Representative of the client.” KY. R. EVID. 503(a)(2) extends the attorney

client privilege to representative(s) of the client, which includes any person

having authority to obtain the legal services or to act on the legal advice, as well

as any employee who makes or receives confidential communication: (i) in the

course and scope of employment; (ii) concerning the subject matter of

employment; (iii) to effectuate legal representation of the client; and (iv) while

aware that they are being questioned so that the corporation could obtain legal

advice. Lexington Pub. Library v. Clark, 90 S.W.3d 53 (Ky. 2002); Upjohn v.

U.S., 449 U.S. 383 (1981).

3) Exceptions. Whether a communication or statement is privileged depends on the

facts and circumstances under which the communication was made. Lexington

Pub. Library, 90 S.W.3d at 80. If a statement or communication takes place

between or among any of the four classes of individuals listed in KY. R. EVID.

503, the statement or communication will be absolutely protected, unless it falls

into one of five exceptions involving, fraud, claimants through the same deceased

client, a breach of duty by a lawyer or client, documents attested by a lawyer, or

communications between joint clients. KY. R. EVID. 503(d)(1)-(5); St. Luke

Hosps. Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005).

B) Attorney work product. Under the attorney “work product doctrine,” documents and

tangible things prepared in anticipation of litigation or for trial by or for a party or a

party’s representative may be discovered only upon showing a substantial need for the

materials, and that the party seeking discovery is unable without undue hardship to obtain

a substantial equivalent of the materials by other means. KY. R. CIV. P. 26.02(3);

Hickman v. Taylor, 329 U.S. 495 (1947). In addition, “mental impressions, conclusions,

16

opinions, or legal theories” are distinguished from regular work product and are protected

by an absolute privilege. KY. R. CIV. P. 26.02(3)(a); Haney v. Yates, 40 S.W.3d 352, 356

(Ky. 2001); Duffy v. Wilson, 289 S.W.3d 555 (Ky. 2009). The doctrine also extends to

depositions of counsel who may be deposed only in “extraordinary circumstance.”

McMurry v. Eckert, 833 S.W.2d 828, 830 (Ky. 1992). However, party or person may

obtain a statement previously made by that party or person, without the required showing.

KY. R. CIV. P. 26.02(3)(b). The work product privilege is waived by voluntary disclosure

to an adverse party. Transit Auth. of River City v. Vinson, 703 S.W.2d 482 (Ky. Ct. App.

1985).

C) Self-critical analysis. The self-critical analysis privilege protects individuals and entities

from “divulging the results of candid assessments of their compliance with laws and

regulations, to the extent that the assessments are internal, the results were intended from

the outset to be confidential, and the information is of a type that would be curtailed if it

were forced to be disclosed.” BLACK’S LAW DICTIONARY, 1237 (8th ed. 2004). The

privilege is not recognized in the Kentucky Rules of Evidence and the Supreme Court

expressly refused to judicially adopt it. Univ. of Ky. v. Courier-Journal, 830 S.W.2d 373,

378 (Ky. 1991).

D) Other privileges. KY. R. EVID. 504-58 governs other forms of privileged information.

These privileges are:

1) Husband-wife privilege (KY. R. EVID. 504);

2) Religious privilege (KY. R. EVID. 505);

3) Counselor-client privilege (KY. R. EVID. 506);

4) Psychotherapists-patients privilege (KY. R. EVID. 507); and

5) Identity of informers (KY. R. EVID. 508).

E) Waiver. A privilege may be waived if the person holding the privilege voluntarily

discloses or consents to disclosure of any significant part of the privileged matter. KY. R.

EVID. 509. There is no waiver where the disclosure was compelled erroneously or made

without opportunity to claim privilege. KY. R. EVID. 510. To the extent possible, claims

of privilege shall not be disclosed to the jury and when required the party claiming

privilege is entitled to an instruction that the jury shall draw no adverse inference from

the claim. KY. R. EVID. 511.

Requests to Admit

A) KY. R. CIV. P. 36.01(1) allows a party to request an opposing party to admit or deny the

truthfulness of any statements or opinions of fact, the application of law to fact and the

genuineness of any documents. An answering party has thirty (30) days after being

served with the request to admit, deny, or object to each request. KY. R. CIV. P. 36.01(2).

An answering party may not give lack of information or knowledge as a reason for failing

to admit unless the party states that based upon a reasonable investigation, and the

information known or readily obtainable is insufficient to enable the party to either admit

or deny the request. KY. R. CIV. P. 37.01(2). An answering party also may not, on that

basis alone, object that the matter requested to be admitted presents a genuine issue for

17

trial, but may deny the matter or set forth the reasons why he or she cannot admit. Id.

Failure to timely answer or object to the request results in the matter being deemed

admitted. Id. In addition, if a court determines that an answer does not comply with the

requirements of the rule, the court may also deem the matter admitted. Commonwealth

Dept. of Hwys. v. Compton, 387 S.W.2d 314 (Ky. 1964). KY. R. CIV. P. 37.03 allows a

requesting party to recover costs, including attorney fees, expended in proving the truth

of any matter requested to be admitted under KY. R. CIV. P. 36.01.

B) Procedural requirements. Requests for admission may be served upon any other party

at the commencement of an action or later. The request shall separately set forth each

matter sought to be admitted. KY. R. CIV. P. 36.01(2). A party is limited to 30 requests,

but may petition the court to permit more. KY. R. CIV. P. 33.01(3). An answering party’s

objections and responses must be served within thirty (30) days of service of the requests,

except that a defendant shall have forty five (45) days to answer or object to requests

served with the summons and complaint. KY. R. CIV. P. 36.01(2).

Unique State Issues

A) Kentucky’s Rules of Civil Procedure are based upon the Federal Rules. West v.

Goldstein, 830 S.W.2d 379 (Ky. 1992). Kentucky courts often look to federal court

decisions in interpreting the rules. Hoffman v. Dow Chem. Co., 413 S.W.2d 332 (Ky.

1967). Thus, while Kentucky has not adopted specific rules regarding the discovery of

electronic documents, for example, a practitioner can and should seek guidance from the

Federal Rules of Civil Procedure.

B) In Kentucky, the vast majority of judicial circuits have adopted Local Rules of Court

which should be consulted when practicing in those areas. The Local Rules for each

county may be found at: http://apps.kycourts.net/localrules/localrules.aspx.

EVIDENCE, PROOFS & TRIAL ISSUES

Relationship to the Federal Rules of Evidence

Kentucky has codified the Kentucky Rules of Evidence (“KRE”) which substantially follow

many, but not all, of the Federal Rules of Evidence.

Expert Testimony

A) Daubert. Kentucky amended KY. R. EVID. 702 in 2007 to codify the expert qualification

standards established in Daubert v. Merroll Dow Pharm., 509 U.S. 579 (1993). The

Kentucky Supreme Court had previously adopted the Daubert approach. See, e.g.,

Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000). The KY. R.

EVID. 702 amendment brings Kentucky’s rule in line with FED. R. EVID. 702.

B) Standard. The Kentucky Supreme Court requires “the balancing of probativeness

against prejudice required by KY. R. EVID. 403” as part of expert testimony analysis.

Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). Such decisions are

reviewed under an abuse of discretion standard. Goodyear Tire, 11 S.W.3d at 577-78.

18

C) Scientific and expert knowledge. The Kentucky Supreme Court in Goodyear Tire Co.,

described the standards for admissibility of testimony based on scientific and expert

knowledge. Goodyear Tire, 11 S.W.3d at 578-79. These include, but are not limited to,

four factors:

1) whether the expert’s theory or technique can be and has been tested,

2) whether the theory or technique has been subjected to peer review and

publication,

3) whether there is a high known or potential rate of error and whether there are

standard’s controlling the technique’s operation, and

4) whether it is generally accepted within the relevant scientific community.

Id.

Accident Reconstruction

Accident reconstruction is the process of showing how an accident took place. It applies

mathematical equations, computer modeling and simulations to describe the events of the

accident.

A) Accident reconstruction is typically done by expert witnesses. The accident

reconstructionist qualifies as an expert witness by his knowledge, skill, experience,

training, or education. KY. R. EVID. 702.

B) Qualifications. These experts are often trained in accident reconstruction and,

employing their special knowledge, testify to assist the trier of fact in understanding the

evidence or in determining a fact of consequence. Boggess v. Commonwealth, 2003 WL

1193266, at *7 (Ky. Jan. 23, 2003). A witness may also become qualified as an expert in

accident reconstruction through actual experience or long observation. Gentry v. Gen.

Motors Corp., 839 S.W.2d 576, 578 (Ky. App. 1992). The trial court has discretion in

deciding whether a witness is qualified and the limits of his expertise.

C) Photographs. Accident reconstructionists often draw conclusions based on photographs.

An expert may base his analysis on photographs alone, without performing a formal

accident reconstruction, provided the expert meets the minimum threshold of KY. R.

EVID. 702. Coulthard v. Commonwealth, 230 S.W.3d 572, 582 (Ky. 2007).

Appeal

An appeal is the process for requesting a change to a lower court’s decision. The Kentucky

Constitution allows parties in civil cases one appeal as a matter of right. KY. CONST. § 115.

Thus, for cases originating in District Court, the appeal would be to Circuit Court. For cases

originating in Circuit Court, the appeal would be to the Court of Appeals. There are generally no

direct appeals as a matter of right to the Kentucky Supreme Court in civil cases (but see below

regarding writ relief in the nature of mandamus or prohibition).

A) Notice of appeal. Notice of appeal must be filed within thirty (30) days after the date of

notation of service of the judgment or order. KY. R. CIV. P. 73.02. A cross-notice of

19

appeal is due within ten (10) days of the date the notice of appeal is due. KY. R. CIV.

P. 74.01.

B) Discretionary review. The Kentucky Supreme Court may grant discretionary review of

decisions from the Court of Appeals. KY. R. CIV. P. 76.32. It will only do so for certain,

unspecified, “special reasons.” Discretionary review may also be granted by the Court of

Appeals from appellate decisions of the Circuit Court.

C) Transfer of appeal. A party may file a motion in the Kentucky Supreme Court for

transfer of the appeal to that court. KY. R. CIV. P. 74.02. Such motion must be served

within ten (10) days after the notice of appeal to the Court of Appeals has been filed. Id.

An appeal is transferred directly to the Kentucky Supreme Court upon a showing that the

case is of “great and immediate public importance,” but is rarely granted in civil cases.

Id.

D) Mandamus. Writ relief in the nature of mandamus or prohibition may be sought in an

original action in the Court of Appeals. KY. R. CIV. P. 76.36. An appeal as a matter of

right from the Court of Appeals is available at the Kentucky Supreme Court. Id.

Collateral Source Rule

Under the collateral source rule, payments made to or benefits conferred on the injured from

other sources do not diminish the tortfeasor’s liability, even if they cover all or part of the

damages for which the tortfeasor is liable. 22 Am. Jur. 2d § 409 (2012).

A) Kentucky has long followed the collateral source rule. Louisville & Nashville R.R. Co. v.

Carothers, 65 S.W. 833, 834 (Ky. 1901). Courts employ the collateral source rule to

prevent the defendant from seeking a reduction in damages because the plaintiff’s

insurance partly or completely indemnifies him for the loss.

B) Double compensation. To the extent the defendant is required to pay the total amount,

the plaintiff may receive double compensation. However, a benefit that is directed to the

injured party “should not be shifted so as to become a windfall for the tortfeasor.”

Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 683 (Ky. 2005).

C) Effect. The evidentiary effect of this doctrine is that “evidence of collateral benefits is

not generally material.” McCormack Baron & Assoc. v. Trudeaux, 885 S.W.2d 708, 711

(Ky. App. 1994).

D) Constitutionality. A legislative attempt to alter the collateral source doctrine was held

unconstitutional. O’Bryan v. Hedgespeth, 892 S.W.2d 571, 576-77 (Ky. 1995)

Convictions

A) Evidence of prior convictions may be introduced under narrowly proscribed limits

provided in the Kentucky Rules of Evidence, some of which differ from their federal

counterparts. All evidence of prior convictions is also subject to the KY. R. EVID. 403

balancing test.

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B) When permissible to introduce. KY. R. EVID. 404(b), although mostly applied in

criminal prosecutions, permits introduction of “other crimes” to show “proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”

C) Impeachment. KY. R. EVID. 609, used for witness impeachment, permits introduction of

evidence that a witness has been convicted of a crime if the crime was punishable by

death or imprisonment for one (1) year or more. Such evidence is generally not

admissible if more than ten (10) years has passed since the date of conviction.

D) KY. R. EVID. 803(22) permits evidence of a final judgment of conviction for a crime

punishable by death or imprisonment (but not merely by fine), “entered after a trial or

upon a plea of guilty (but not upon a plea of nolo contendere) . . . to prove any fact

essential to sustain the judgment . . . .” This rule also covers convictions based on an

Alford plea. Pettiway v. Commonwealth, 860 S.W.2d 766, 769 (Ky. 1993). The rule is

not intended to introduce convictions for impeachment under KY. R. EVID. 609. Rather it

allows admission where the offering party seeks to establish that a fact necessary to

sustain the conviction is also required for recovery in a subsequent civil case, such as a

conviction for arson in a subsequent suit for insurance coverage on the same property or a

conviction for drunk driving in a subsequent personal injury suit arising out of the same

transaction.

Day in the Life Videos

A “Day in the Life” video depicts the life of the victim, the graphic nature of the victim’s injuries

and the daily struggles he or she encounters. It also demonstrates the necessity for the cost of

medical care.

A) Demonstrative evidence. The videos are demonstrative evidence used to aid the jury in

understanding a witness’ testimony. Videos are governed by the same rules which apply

to admissibility of photographs. Fields v. Commonwealth, 12 S.W.3d 275, 279 (Ky.

2000) (court added that “videotaping of a crime scene, like a crime scene photograph, is

admissible even though gruesome”).

B) Prejudice. KY. R. EVID. 403 provides for the exclusion of evidence that is deemed more

prejudicial than probative. Objection is often made to demonstrative evidence such as

day in the life videos on the grounds that they are unfairly prejudicial by arousing jury’s

emotions, evoking a sense of horror, or appealing to an instinct to punish.

Dead Man’s Statute

Kentucky’s “Dead Man’s Statute,” KY. REV. STAT. ANN. § 421.210, was repealed in 1992, upon

enactment of the Kentucky Rules of Evidence. The previous testimonial prohibitions against

such testimony do not now apply, although certain testimonial privileges may survive a

declarant’s death. KY. R. EVID. 503(c), 506(c).

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Medical Bills

Medical bills are generally admissible as evidence towards a claim for damages. Evidence that

the medical bills were paid partially or in full by an insurance company, or other collateral

source, is inadmissible. See supra “Collateral Source Rule” section.

A) Burden. A plaintiff must show that injuries resulting from the defendant’s actions

required medical expenses and the charges for treatment were reasonable.

B) Presumption. There is a presumption that any medical bill submitted is reasonable. A

medical bill which plaintiff incurred at a hospital is considered sufficient proof of

plaintiff’s medical expenses at such hospital. Daugherty v. Daugherty, 609 S.W.2d 127,

128 (Ky. 1980).

C) Business records. KY. R. EVID. 803(6), the business records hearsay exception, governs

the admissibility of medical records. Matthews v. Commonwealth, 163 S.W.3d 11, 26

(Ky. 2005) (outlining the various methods, in addition to live witness testimony which

may be used to authenticate such records). A summary of medical bills may also be

introduced, subject to KY. R. EVID. 1006. Walls v. Robinson, 2007 WL 4355475 at *3-n.

5 (Ky. App. Dec. 14, 2007).

Offers of Judgment

A) An offer of judgment is a method of settlement where the defendant makes an offer of

judgment at anytime more than ten (10) days before the trial. KY. R. CIV. P. 68. If the

offer is accepted within ten (10) days after the service of the offer, the court must enter

the judgment accordingly. Id. If the offer is not accepted within the ten (10) days, the

offer is no longer valid, and if the judgment obtained by the plaintiff at trial is not more

favorable than the offer, the plaintiff must pay defendant’s costs incurred after the

making of the offer. Id.

B) Revocation. KY. R. CIV. P. 68 does not address revocation or withdrawal of the offer

before the ten (10) day window closes. While the defendant is not obligated to make the

offer, once having made it, he may not revoke until the ten (10) day period expires.

Smith v. Ky. State Fair Bd., 816 S.W.2d 911, 913 (Ky. App. 1991).

C) Effect of acceptance. A defendant may not revoke an offer of judgment after timely

acceptance by the plaintiff. Pennyrile Citizens Bank & Trust Co. v. Scent, 676 S.W.2d

798, 799 (Ky. App. 1984).

D) Satisfaction of claims. An offer of judgment will moot a plaintiff’s claim where the

offer of judgment would fully satisfy the claim. In class action cases, once a class is

certified, the mooting of the plaintiff’s claim does not moot the action, but if the

plaintiff’s claim becomes moot before certification the action will be dismissed. Tallon

v. Lloyd & McDaniel, 497 F. Supp. 2d 847, 852 (W.D. Ky. 2007).

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Offer of Proof

A) When the judge sustains an objection, the proponent of the question may make an offer of

proof. An offer of proof is an explanation of what the evidence would have shown had it

been allowed by the judge. KY. R. EVID. 103(a)(2).

B) An offer of proof permits the trial judge to reconsider the claim for admissibility. It also

preserves the issue for appeal by including the expected answer or excluded evidence in

the trial record.

Prior Accidents

A) KY. R. EVID. 404(b) permits introduction of “other acts,” not to show mere propensity or

bad character, but to show “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

B) The Kentucky Supreme Court recently applied KY. R. EVID. 404(b) in a bad faith

insurance claim, holding that admissibility of evidence of the insurer’s alleged earlier bad

faith was subject to a three part test: (i) “Is it relevant?;” (ii) “Does it have probative

value?;” and (iii) “Is the probative value outweighed by its prejudicial effect?” Ky.

Farmers Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 819-20 (Ky. 2005). The Court

concluded that the evidence of earlier acts was too dissimilar to permit its introduction.

Id. The Court explained that the “prior bad act must have been so strikingly similar to the

present act as to constitute a signature crime,” but adding that “strikingly similar ‘does

not necessarily mean’ identical.” Id. at 819; see also Harris v. Thompson, 497 S.W.2d

422, 429 (Ky. 1973) (holding that evidence of the occurrence of other accidents under

substantially similar circumstances is admissible when relevant to certain limited issues,

such as the existence of a dangerous condition or a party’s notice of such a condition).

Seat Belt and Helmet Use Admissibility

A) Seat belts. Under Kentucky law, failure of any person to wear a seatbelt is not

considered evidence of negligence per se. KY. REV. STAT. ANN. § 189.125.

1) Comparative fault. Negligent failure to wear a seat belt may constitute a basis

for assessing comparative fault provided the lack of seat belt restraint played a

part in causing or enhancing claimant’s injuries. Wemyss v. Coleman, 729

S.W.2d 174, 177-78 (Ky. 1987).

B) Helmets. Protective headgear is required for persons under twenty-one driving or riding

as a passenger on a motorcycle, persons with a motorcycle instruction permit, or who

have held a valid motorcycle license for less than one year. KY. REV. STAT. ANN.

§ 189.285.

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Spoliation

Spoliation is withholding or destruction of relevant evidence. However, no missing evidence

instruction is justified without a showing that the failure to preserve the missing evidence was

intentional. Coulthard v. Commonwealth, 230 S.W.3d 572, 581 (Ky. 2007).

Subsequent Remedial Measures

A) Subsequent remedial measures are changes, repairs, or precautions taken after an injury

which, if taken previously, would have made the injury less likely to occur. KY. R. EVID.

407. Evidence of subsequent remedial measures is inadmissible “to prove negligence,

culpable conduct, a defect in a product, a defect in a product’s design, or a need for a

warning or instruction.” Id.

B) When admissible. Subsequent remedial measures may be admissible when offered to

prove ownership, control, or feasibility of precautionary measures, when those matters

are controverted. Id.

C) Products liability. Kentucky amended KY. R. EVID. 407 in 2006 to bring Kentucky’s

rule in line with FED. R. EVID. 407, so that use of subsequent remedial measures is now

generally barred in products liability cases.

Use of Photographs

A) As a general rule, relevant photographs are admissible as evidence and do not become

inadmissible simply because they are gruesome or depict a heinous crime. Ratliff v.

Commonwealth, 194 S.W.3d 258, 271 (Ky. 2006). However, especially gruesome

photographs may become inadmissible when their “depictions go far beyond

demonstrating proof of a contested, relevant fact.” Id.

B) Requirements. A “trial judge has broad discretion in determining the admissibility of

photographic evidence.” Chestnut v. Commonwealth, 250 S.W.3d 288, 302 (Ky. 2008).

Before being admitted, the photographs must be duly verified as authentic, faithful

representations of the subjects at the time in question and must pass a KY. R. EVID. 403

balancing test to ensure any prejudicial effect would not outweigh their probative value.

See Holland v. Commonwealth, 703 S.W.2d 876, 879 (Ky. 1985) (photographs of

victim’s mutilated body inadmissible because they were “inflammatory and without

significant probative value” that went far beyond “proof of a contested relevant fact”);

Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 253 (Ky. 1995) (no abuse of discretion to

exclude photographs of decedent when such were cumulative to expert testimony and

medical records), overruled on other grounds by Martin v. Ohio Cnty. Hosp. Corp., 295

S.W.3d 104, 111 (Ky. 2009).

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DAMAGES

Caps on Damages

Statutory caps on damages limit the amount of recovery available in a cause of action. Under the

Kentucky Constitution, the General Assembly may not cap damages recoverable for injuries

resulting in death, or for injuries to people or property. KY. CONST. § 54. As such, under

Kentucky law, there is no cap on the amount of recoverable damages. Moreover, there is no

“legal yardstick” for measuring damages and an award will be upheld as long as it is not found to

be excessive (i.e., awarded under the influence of passion or prejudice). Caudill v. Honeycutt,

437 S.W.2d 171, 173 (Ky. 1968); Burgess v. Taylor, 44 S.W.3d 806, 813 (Ky. App. 2001). As a

general rule, a plaintiff is not permitted to recover twice for the same elements of loss.

Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 918 (Ky. 1998). The collateral source

rule, however, is an exception to the rule against double recovery. Under the collateral source

rule, damages recoverable are not diminished by the fact that the injured party has been wholly

or partly indemnified by insurance, if the wrongdoer did not help procure the insurance. Id.

Calculation of Damages

A) The goal of compensatory damages is to make the injured party whole to the extent it is

possible to measure the injury in terms of money. Ky. Cent. Ins. Co. v. Schneider, 15

S.W.3d 373, 374 (Ky. 2000). In Kentucky, a plaintiff may only recover compensatory

damages for:

1) medical expenses;

2) the value of time lost;

3) fair compensation for physical and mental suffering; and

4) permanent reduction of earning power.

Id.

B) To warrant a particular assessment of damages, the proponent must show facts that allow

the damages to be measured and calculated with reasonable certainty. Ky. W. Va. Gas

Co. v. Frazier, 195 S.W.2d 271, 273 (Ky. 1946). A plaintiff may not recover uncertain,

contingent, and speculative damages. Spencer v. Woods, 282 S.W.2d 851, 853 (Ky.

1955).

Available Items of Personal Injury Damages

A) Past medical bills. An injured party may recover necessary and reasonable expenses for

medical services. Langnehs v. Parmelee, 427 S.W.2d 223, 224 (Ky. 1967).

B) Future medical bills. An injured party may recover future medical expenses caused by

a tort, as long as the party shows some present physical injury to support a cause of

action. Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 849, 856 (Ky. 2002).

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C) Hedonic damages. Hedonic damages are not a unique item of damages. An injured

party may only recover for loss of enjoyment of life or lifestyle to the extent such

damages are subsumed within other recoverable categories. Adams v. Miller, 908 S.W.

2d 112, 116 (Ky. 1995), abrogated on other grounds by Giuliani v. Guiler, 951 S.W.2d

318, 319 (Ky. 1997).

D) Increased risk of harm. Damages for increased risk of future harm are not a unique

item of damages. Instead, increased risk of harm is a factor that the jury should consider

when calculating compensation for future physical pain and mental suffering, future

impairment of earning power, and future medical expenses. Capital Holding Corp. v.

Bailey, 873 S.W.2d 187, 194-95 (Ky. 1994).

E) Disfigurement. A plaintiff may not recover for disfigurement, but a plaintiff may

recover for past and future pain and suffering if the evidence warrants it. Elmore v.

Speicher, 481 S.W.2d 673, 674 (Ky. 1972).

F) Disability. A damage award may compensate a plaintiff for pain and suffering resulting

from a permanent or temporary disability. Coe v. Adwell, 244 S.W.2d 737, 739 (Ky.

1951). “For a permanent injury, the measure of damages is a sum reasonably sufficient

to compensate the plaintiff for his physical and mental suffering, and the permanent

reduction of the power to earn money.” Louisville & N.R. Co. v. Minnix, 202 Ky. App.

472, 260 S.W. 15, 16 (Ky. App. 1924).

G) Past Pain and suffering. Damages should include fair compensation for any physical or

mental suffering caused by the injury. Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373,

374 (Ky. 1995). There is no set rule for computing damages for pain and suffering. The

general rule is that the damages must be reasonable, free from sentiment and free from

punishment so as not to amount to punitive damages. Noel v. Creary, 385 S.W.2d 951,

953 (Ky. 1965).

H) Future pain and suffering. The probability of future pain and suffering may be

considered when calculating damages if the evidence shows that future pain and suffering

may stem from the injury. Nussbaum v. Caskey, 235 Ky. 640, 32 S.W.2d 18, 19 (Ky.

App. 1930).

I) Loss of society or consortium. A tort victim’s spouse may recover for loss of

consortium. Schulz v. Chadwell, 558 S.W.2d 183, 188 (Ky. Ct. App. 1977). A cause of

action for loss of consortium “is limited to loss of society, companionship, conjugal

affections, and physical assistance,” and does not include loss of financial support.

Kotsiris v. Ling, 451 S.W.2d 411, 412 (Ky. 1970). Loss of consortium, however, may

include the loss of household services from the spouse. Schulz, 558 S.W.2d at 188.

J) Lost income, wages, and earning power. An injured party may recover for the value of

time lost and any permanent reduction in earning power. Schneider, 15 S.W.3d at 374.

To recover for lost future earnings, the plaintiff must prove his or her earning power has

been reduced by the injury and recovery is limited to the amount by which it has been

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reduced. Jones v. Stern, 168 S.W.3d 419, 423-24 (Ky. App. 2005). A party does not

need to prove lost wages or profits with absolute certainty, but only with reasonable

certainty. Mere uncertainty as to the amount will not preclude recovery. Kellerman v.

Dedman, 411 S.W.2d 315, 316 (Ky. 1967).

Lost Chance Doctrine

The lost chance doctrine allows a plaintiff to recover for an injury in a medical malpractice case

if the defendant’s conduct ruined the plaintiff’s last chance to recover or survive the underlying

injury. The Kentucky Supreme Court, however, has refused to recognize the doctrine under

Kentucky law as it is a significant departure from the traditional law of causation. Kemper v.

Gordon, 272 S.W.3d 146, 152 (Ky. 2008).

Mitigation

A) Under Kentucky law, an injured party must exercise reasonable care to mitigate his or her

damages. Wimsatt v. Haydon Oil Co., 414 S.W.2d 908, 912 (Ky. 1967).

B) Treatment. For example, an injured party must use ordinary care and reasonable

diligence to secure appropriate treatment for the injury. Brown Hotel Co. v. Marx, 411

S.W.2d 911, 915 (Ky. 1967).

C) Amount of damages. The failure to mitigate damages, however, is relevant only to the

amount of damages, not to fault. Geyer v. Mankin, 984 S.W.2d 104, 108 (Ky. App.

1998).

Punitive Damages

A) Standard. “‘Punitive damages’ includes exemplary damages and means damages, other

than compensatory and nominal damages, awarded against a person to punish and to

discourage him and others from similar conduct in the future.” KY. REV. STAT. ANN. §

411.184(1)(f). In civil actions, whether and for what amount punitive damages are to be

awarded is a determination to be made by the trier of fact concurrently with all other

issues presented at trial. KY. REV. STAT. ANN. § 411.186(1). Punitive damages may be

awarded only upon clear and convincing proof that the defendant acted towards the

plaintiff with oppression, fraud, or conduct which amounts to gross negligence or

reckless disregard for the life and safety of others. KY. REV. STAT. ANN. § 411.184(1),

(2); Sufix, U.S.A., Inc. v. Cook, 128 S.W.3d 838, 840 (Ky. App. 2004). Punitive damages

are not recoverable on a claim of breach of contract or in an action “against a principal or

employer for the act of an agent or employee unless such principal or employer

authorized or ratified or should have anticipated the conduct in question.” KY. REV.

STAT. ANN. § 411.184(3), (4).

B) Gross negligence. A finding of gross negligence necessary to support punitive damages

requires more than a lack of ordinary care. The defendant must have failed to exercise

even slight care so that his or her conduct amounts to a wanton and reckless disregard for

the rights of others. Peoples Bank of N. Ky., Inc. v. Crowe Chizek, 277 S.W.3d 255, 268

(Ky. App. 2008).

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C) Nominal damages. The absence of actual damages does not bar an award of punitive

damages. Mere nominal damages can support an award of punitive damages. Fowler v.

Mantooth, 683 S.W.2d 250, 252 (Ky. 1984).

D) Insurance. A party may obtain insurance against liability for punitive damages if the

punitive damages result from gross negligence, rather than an intentional act. If a

defendant has insurance, then the insurance company may be required to pay punitive

damages when they result from the defendant’s gross negligence. Cont’l Ins. Co. v.

Hancock, 507 S.W.2d 146, 151-52 (Ky. 1974). An insurer may choose to exclude

coverage for punitive damages. Hodgin v. Allstate Ins. Co., 935 S.W.2d 614, 615-16

(Ky. App. 1996).

E) Factors. Three factors determine whether punitive damages are unconstitutionally

excessive: (1) the degree of reprehensibility of the defendant’s conduct, (2) the disparity

between the harm or potential harm suffered by the plaintiffs and their actual conduct,

and (3) the difference between the plaintiff’s remedy and the remedies imposed or

authorized in other cases. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 906 (Ky.

2008). A punitive damages award will be upheld unless it was the product of “undue

passion or prejudice on the part of the jury.” United Parcel Serv. Co. v. Rickert, 996

S.W.2d 464, 470 (Ky. 1999).

Recovery of Pre- and Post-Judgment Interest

A) In the absence of a contractual provision, the award of interest is within the judicial

discretion of the trial court. Nucor Corp. v. Gen. Elec. Co., 812 S.W.2d 136, 143 (Ky.

1991). KY. REV. STAT. ANN. § 360.010 sets the legal pre-judgment interest rate at 8% per

annum. The rate may be lowered by the trial court in its discretion. Fields v. Fields, 58

S.W.3d 464, 467 (Ky. 2001).

B) Breach of contract. Interest for breach of a contract to pay a certain sum is recoverable

as consequential (general) damages from the time the amount is due. Nucor Corp., 812

S.W.2d at 136. Interest can be both prejudgment and post-judgment. When damages are

“liquidated,” prejudgment interest follows as a matter of course. Id. at 141, 144. When

the amount is “unliquidated,” the amount of prejudgment interest, if any, is a matter of

discretion for the trial court weighing the equitable considerations. Id. at 143-44; see also

Univ. of Louisville v. RAM Eng’g & Constr., Inc. 199 S.W.3d 746, 748 (Ky. App. 2005).

“[E]quity and justice demand that one who uses money or property of another . . . should

at least pay interest for its use in the absence of some agreement to the contrary. Curtis v.

Campbell, 336 S.W.2d 355, 361 (Ky. 1960) (citation omitted). “This principle applies

whether or not the amount owed to another is liquidated or unliquidated.” Id. (citing

Dalton v. Mullins, 293 S.W.2d 470 (Ky. 1956)).

C) Post-judgment interest. Post judgment interest in Kentucky accrues at the rate of 12%

compounded annually. KY. REV. STAT. ANN. § 360.040. A judgment can be for principal

and accrued interest. Id. A claim for unliquidated damages reduced to judgment may

bear less than 12% interest if the court rendering such judgment, after notice to all parties

and a hearing, is satisfied that the rate of interest should be less. Id.

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Recovery of Attorney’s Fees

A) Kentucky follows the “American Rule” on attorney’s fees and such fees are generally not

recoverable unless provided for by statute or contract. Cummings v. Covey, 229 S.W.3d

59, 61 (Ky. App. 2007). The trial court, however, possesses the equitable power to award

attorney’s fees in absence of any statutory or contractual provision in instances involving

bad faith or under the common fund doctrine where the litigant’s efforts have conferred a

benefit on another. See, e.g., Batson v. Clark, 980 S.W.2d 566, 577 (Ky. App. 1998); Ky.

State Bank v. AG Servs., Inc., 663 S.W.2d 754, 754-55 (Ky. App. 1984).

B) A determination of the amount of attorneys fees’ to be awarded “is within the sound

discretion of the trial judge.” King v. Grecco, 111 S.W.3d 877, 883 (Ky. App. 2002).

The amount of fees awarded must be reasonable and should consist of the product of

counsel’s reasonable hours, multiplied by a reasonable hourly rate. See Meyers v.

Chapman Printing Co., 840 S.W.2d 814, 826 (Ky. 1992). This will result in the

determination of the “lodestar” amount which can then “be adjusted to account for

special factors in the litigation,” such as the degree of success achieved. Id. Ultimately,

the fees awarded should be “reasonable in relation to the results obtained.” Hensley v.

Eckerhart, 461 U.S. 424, 440 (1983).

Settlements Involving Minors

A) Enforceability. When a minor executes a contract, including a settlement agreement, the

contract is enforceable, but the minor may choose to void the contract. Mitchell ex rel.

Fee v. Mitchell, 963 S.W.2d 222, 223 (Ky. App. 1998). Therefore, any settlement on

behalf of a minor without the approval of the court and appointment of a guardian is

subject to attack. Scott v. Montgomery Traders Bank & Trust Co., 956 S.W.2d 902, 904

(Ky. 1997).

B) Statutory guardians. KY. REV. STAT. ANN. § 387.280 allows a person having custody

of a minor to receive sums on behalf of the minor which do not exceed $10,000, upon

court approval of the settlement and satisfaction of the court “by affidavit or oral

testimony that the minor . . . is in the custody of the person to whom it is proposed to pay

the money and the latter, upon withdrawal of the money, shall be under obligation as

trustee to expend it, for the support, maintenance, or education of the minor. . . .”

However, only a statutory guardian has the authority to compromise and settle a minor’s

claim. Jones v. Cowan, 729 S.W.2d 188, 190 (Ky. App. 1987).

Taxation of Costs

A) Discretion. The trial court has sound discretion on whether to award costs, and this

decision will not be overturned absent an abuse of discretion. Giacalone v. Giacalone,

876 S.W.2d 616, 620-21 (Ky. App. 1994). However, KY. R. CIV. P. 54.04(1) provides

that costs shall be awarded to the prevailing party as a matter of course, unless otherwise

directed by the court.

B) Recoverable items. KY. R. CIV. P. 54.04(2) states that the items recoverable as costs

include

29

filing fees, fees incident to service of process and summoning of witnesses, jury fees,

warning order attorney, and guardian ad litem fees, costs of the originals of any

depositions (whether taken stenographically or by other than stenographic means), fees

for extraordinary services ordered to be paid by the court, and such other costs as are

ordinarily recoverable by the successful party.

An award of “all costs” does not include attorney’s fees. Dept. of Transp., Bureau of

Highways v. Knieriem, 707 S.W.2d 340, 341 (Ky. 1986).

Unique Damages Issues

A) Liquidated damages. Parties to a contract may agree to a set amount of damages to be

paid if a party breaches the contract. United Servs. Auto. Ass’n v. ADT Sec. Servs., Inc.,

241 S.W.3d 335, 340 (Ky. App. 2006). The provision will be enforced if it bears a

reasonable relationship to actual damages and does not constitute a penalty. Id.

B) Pain and suffering. Kentucky law does not require an award of pain and suffering in

every case in which medical expenses are awarded. Miller v. Swift, 42 S.W.3d 599, 602

(Ky. 2001). A trial court’s denial of a new trial for the jury’s failure to award pain and

suffering damages will not be disturbed unless clearly erroneous. Bayless v. Boyer, 180

S.W.3d 439, 444 (Ky. 2005).

C) Nominal damages. A court may award “nominal damages,” which are a “trivial sum of

money awarded to a litigant who has established a cause of action but has not established

that he is entitled to compensatory damages.” Cherry v. Augustus, 245 S.W.3d 766, 777

(Ky. App. 2006).

D) Economic damages. The use of economic expert testimony is an acceptable way of

proving wrongful death damages, but the jury retains the right to judge the weight of such

testimony “and under no circumstances may it be compelled to return a verdict dictated

by economic expert testimony.” Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667,

671 (Ky. 1992).

E) Expert testimony. Expert testimony is generally required to prove causation in a

negligence case, except where the negligence is so apparent that a layperson would have

no difficulty recognizing it. Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 681

(Ky. 2005).

This Compendium outline contains a brief overview of certain laws concerning various

litigation and legal topics. The compendium provides a simple synopsis of current law and

is not intended to explore lengthy analysis of legal issues. This compendium is provided for

general information and educational purposes only. It does not solicit, establish, or

continue an attorney-client relationship with any attorney or law firm identified as an

author, editor or contributor. The contents should not be construed as legal advice or

opinion. While every effort has been made to be accurate, the contents should not be relied

upon in any specific factual situation. These materials are not intended to provide legal

advice or to cover all laws or regulations that may be applicable to a specific factual

situation. If you have matters or questions to be resolved for which legal advice may be

30

indicated, you are encouraged to contact a lawyer authorized to practice law in the state for

which you are investigating and/or seeking legal advice.