Kentucky Supreme Court decisions

For at least the third time in recent years, John Oliver’s HBO show This Week Tonight has tackled an issue litigated by Garmer & Prather. In 2019, attorneys at our firm convinced the Kentucky Supreme Court to overturn a seven-decades-old law that gave police officers total immunity when an innocent bystander was killed by a police chase, regardless of whether it was reasonable to conduct a high-speed pursuit given the crime or the conditions, as long as the officer did not directly hit the victim. Now, Kentucky juries can determine whether law enforcement shares in the fault based on all of the circumstances involved. The opinion was Gonzalez v. Johnson, 581 S.W.3d 529 (Ky. 2019).

Police pursuits are incredibly dangerous, killing thousands of Americans every year, and more than 10 deaths each week are innocent bystanders who were not involved in the pursuit. Oftentimes these pursuits are initiated for things as trivial as minor traffic violations or, as in our Gonzalez case, nonviolent drug offenses when the suspect would be easy to find later. John Oliver shone a light on these practices and the failure to fairly weigh risks versus benefits when law enforcement initiates or continues the pursuit.

We recommend everybody watch this important segment. Mr. Oliver even includes footage of criminologist Geoff Alpert, a leading expert on police pursuits and one of our consultants in putting together the Gonzalez case.

There has been a major change in the law of damages in Kentucky for children (or others) who die as a result of negligence, and the change doesn’t help the injured person.

In Kentucky wrongful death cases, the estate of the person who died may recover damages for funeral expenses and the destruction of the dead person’s ability to earn money. W. L. Harper Co. v. Slusher, 469 S.W.2d 955 (Ky. 1971). The estate may also recover damages that the deceased person incurred before he or she died, such as pain and suffering and medical expenses. KRS 411.133. In many cases, though, especially when a death occurred suddenly, the bulk of the damages available to an estate is the loss of the ability to earn money.

Some juries have been hesitant to award damages for destruction of earning capacity when a child dies before he or she has started working. Until last Thursday, the law in Kentucky was that unless the child had some pre-existing condition that would have prevented him or her from earning money as an adult, the jury was required to award damages for destruction of earning power. In other words, as long as the child was a relatively healthy person before he or she was injured, if a jury determined a defendant was negligent and caused the child’s death but awarded $0 for destruction of earning capacity, it was an inconsistent verdict. Either the court had to order the jury to continue deliberations and determine a fair award, or the plaintiff was entitled to a new trial on the issue of damages only. That is, once liability was established in the first trial, all the jury could do in the second trial was award additional damages for destruction of earning capacity.

Articles Posted in Kentucky Supreme Court decisions

Kentucky Supreme Court reverses longstanding law protecting victims of wrongful death