The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
Almost a quarter of a century has passed since the Supreme Court of Kentucky an- nounced in Steelvest, Inc. v. Scansteel Serv- ice Center, Inc. 1 that it would not apply the f ederal standard for summary judgment, despite the existence of what was then vir- tually identical language in Kentucky's CR 56 and federal rule 56. In Steelvest, the Court decided that federal case law had taken summary judgment practice in a di- rection the Court perceived as inconsistent with Kentucky cases, most notably what it called the "benchmark case of Paintsville Hospital v. Rose." 2 This article will revisit the federal and state standards compared by the Kentucky Supreme Court in Steelvest and consider, under more recent Kentucky practice, whether those articulated standards necessarily lead to different results in cases decided today. STEELVEST'S COMPARISON The Kentucky Supreme Court in Steelvest undertook the same type of comparison of federal and state practice to which this issue of the Bench & Bar is devoted, under the Court's heading: "SUMMARY JUDG- MENT PRACTICE IN KENTUCKY COURTS AND FEDERAL COURTS – A COMPARISON." 3 The Steelvest Court noted three differences be- tween the Kentucky standard and the federal standard: First, the Court said, the federal standard did "not necessarily require the movant to produce evidence showing the absence of a gen- uine issue of material fact," but Kentucky cases did. Second, the federal standard for summary judgment was the same as the standard for a directed verdict; whereas, in Kentucky, the standard for summary judg- ment was described as "a more delicate matter." Third, in Kentucky, the movant had to show that it would be "impossible" for the responding party to prevail. While pointing out what it called these "obvious differences," the Kentucky Supreme Court also noted: When comparing our summary judg- ment practice in Kentucky courts under our past decisions, including the holding in Paintsville Hospital, with the new summary judgment standards announced in the 1986 tril- ogy 4 of United States Supreme Court cases, we find some similarities…. The specific example supplied by the Court was that "under both the Kentucky and federal approach, a party opposing a properly supported summary judgment m otion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." 5 Ultimately, however, the Kentucky Supreme C ourt in 1991 chose "to follow the standard for summary judgment announced in Paintsville Hospital… instead of adopting a more relaxed standard of summary judgment" in the 1986 federal trilogy. In doing so, the Court described the standard of Paintsville Hospital this way: The benchmark case of Paintsville Hospital v. Rose, supra, specifically held that the proper function of sum- mary judgment is to terminate litiga- tion when, as a matter of law, it appears that it would be impossible for the respondent to produce evi- dence at the trial warranting a judg- ment in his favor. We further declared that such a judgment is only proper where the movant shows that the adverse party could not pre- vail under any circumstances. Finally, in that opinion, we recognize that summary judgment is not a substitute for trial nor is it the functional equivalent of a motion for directed verdict. 6 It was this Paintsville Hospital standard that the Steelvest Court said it was choosing over what it perceived to be a "more relaxed" federal standard. Any considera- tion of modern summary judgment practice, accordingly, must also reconsider Paintsville Hospital. PAINTSVILLE HOSPITAL REVISITED Within a year of deciding Steelvest, the Kentucky Supreme Court expounded on the Paintsville Hospital language and stated: We accept that 'impossible' is used in a practical sense, not in an absolute sense. 7 In recent years, citation of Paintsville Hospital by the Kentucky Supreme Court frequently has been accompanied by this same qualifying language from Perkins. 8 The Court of Appeals has also frequently emphasized that "impossible" is not used in the "absolute sense" in the summary judgment context. 9 MODERN SUMMARY JUDGMENT PRACTICE Despite the declared intention of Kentucky nearly 25 years ago to follow a dif- ferent summary judgment path, re- cent cases confirm that summary judgment remains a viable option in appropriate cases in the state courts of Kentucky, and sometimes based on the same analysis employed in the 1986 federal trilogy discussed above. Significant examples follow. In Brewster v. Colgate-Palmolive Company, 10 the Kentucky Supreme Court affirmed summary judgment dismissing a claim where the respon- dent could not prove that the prem- ise owners knew or should have known that the premises contained as- bestos. It did so over a dissent that argued a jury possibly could have inferred that the premise owner should have known that the premises had contained asbestos. Never- theless, the Kentucky Supreme Court, ap- plying Kentucky law, affirmed the appropri- ateness of summary judgment. Although it did not cite to the federal trilogy, the case is similar to one of the three, Celetox, where summary judgment was entered against a plaintiff who could not prove an essential element of her case, to wit: that plaintiff's decedent had been exposed to asbestos from a product manufactured by the defen- dant. Wymer v. JH Properties, Inc. 11 and Fort Mitchell Country Club v. LaMarre 12 are addi- tional examples of cases in which summary judgment was affirmed where plaintiff had not produced evidence of a necessary ele- ment of her case, again in keeping with (but, of course, not citing) Celetox. 28 B&B; • 7.15 K E N T U C K Y C I V I L P R O C E D U R E : A R U L E S C O M P A R I S O N DOES KENTUCKY SUMMARY JUDGMENT PRACTICE REALLY DIFFER FROM FEDERAL PRACTICE? By: Jonathan R. Oliver & Richard C. Roberts Summary Judgement Practice in Kentucky Courts and Federal Courts - A Comparison