Bench & Bar

JUL 2015

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

Contents of this Issue

Navigation

Page 30 of 64

The second case in the federal trilogy is An- derson and its influence may also be seen in the Kentucky case of Welch v. American Publishing Co. of Kentucky. 13 Both cases in- volved a defamation claim by a public fig- ure in which plaintiff must prove malice of defendant by "clear and convincing evi- dence." Because malice is a state of mind and is rarely admitted, malice usually is in- ferred from circumstantial evidence. This suggests that the fact finder, usu- ally a jury, would have wide lati- tude in deciding whether defen- dant had acted maliciously. Never- theless, under the holdings of both Anderson and Welch, there must indeed be clear and convinc- ing evidence of record to defeat summary judgment. In Anderson, the United States District Court had considered al- legedly defamatory statements, found no clear and convincing evi- dence of malice, and accordingly granted summary judgment to defendants. The United States Court of Ap- peals reversed dismissal of several counts. The United States Supreme Court reversed and remanded the Court of Appeals' deci- sion because the Court of Appeals had not used the "clear and convincing" standard to evaluate the evidence at the summary judgment stage. Similarly, Welch affirmed summary judg- ment for a state court defendant and ap- proved use of the "clear and convincing" standard when deciding summary judg- ment in a defamation case. Three justices dissented in Welch because they believed that circumstantial evidence, especially a defendant's evasiveness during his deposi- tion, supported an inference of actual mal- ice. Both the majority and the dissent cited Steelvest, but with the majority emphasiz- ing the continued viability of CR 56: Steelvest did not repeal CR 56. See CR 56.03 (summary judgment shall be granted if "there is no genuine issue as to any material fact."…. The inquiry should be whether, from evi- dence of record, facts exist which would make it possible for the non- moving party to prevail. In the analy- sis, the focus should be on what is of record rather than what might be presented at trial. 14 Thus the state court in Welch reached the same result as the federal court in Ander- son, both recognizing that even in cases with mostly circumstantial proof, that proof must exist in "clear and convincing" form to survive summary judgment. After stating explicitly in 1999 in Welch that Steelvest had not repealed CR 56, the Ken- tucky Supreme Court made the same point again in 2001: A well-supported motion for summary judgment can terminate litigation…. It should be noted that this Court in Welch… clarified the situation by stating Steelvest did not repeal CR 56. 15 In Wymer, plaintiff was injured working at a hospital, and she was treated for her injury at that hospital. She averred negligent treatment by the hospital and its employ- ees. Later, her employment was terminat- ed. She sued the hospital and its employ- ees for negligence, and she sued the hospi- tal for wrongful discharge. The Kentucky Supreme Court held that plaintiff's right to receive workers' compensation had not pre-empted her negligence claims. The Kentucky Supreme Court held also that the plaintiff's claim that she was fired because she filed a workers' compensation claim should be dismissed because "no evidence in the record" supported that argument. Thus not only must the movant produce evidence, according to Steelvest, to support a motion for summary judgment, Wymer and Welch put a burden on the respondent to put evidence in the record to oppose it, evidence that actually shows the responding party might prevail if the case goes to trial. To the same effect is Fort Mitchell Country Club, supra, a dram shop case in which the Kentucky Supreme Court affirmed summary judgment for defendants when plaintiffs presented no evidence that defendants knew or should have known that a specific plaintiff had been intoxicat- ed. A tendency to deny motions for summary judgment seemed to follow Steelvest, partly because of the strong language in the decision and perhaps also because only in unusual instances, such as those involv- ing sovereign immunity or qualified immu- nity, can a refusal to grant summary judg- ment be appealed. 16 Add to this the "im- possible" and "delicate matter" language of Steelvest, and trial judges seemed at first easily persuaded that summary judgment should not be granted. But, as more recent cases demonstrate, the Supreme Court has, in its own words, "clarified the situation" considerably. It still cites Steelvest and Paintsville Hospital as the standard that still governs summary judgment practice in Kentucky. It has even announced its "recommitment to a very stringent standard for summary judgment in Steelvest and the rejec- tion of the much more lenient federal standard…." 17 But it has also affirmed, repeatedly and recently, that CR 56 has not been repealed in Kentucky and continues to serve a valuable purpose. "It is important to emphasize that summary judgment re- mains a viable concept…." 18 Summary judgment procedure au- thorized by CR 56.01 et seq. is in- tended to expedite the disposition of cases and if the grounds provided by the rule are established, it is the responsibility of the trial judge to render an appropriate decision. 19 Another clear recent example of the contin- uing viability of CR 56 is a case decided by the Kentucky Supreme Court just last year. In Dean v. Commonwealth Bank & Trust Co., 20 the issue was whether a law firm "could have reasonably discovered the kit- ed checks" in its checking accounts, from which its bookkeeper was embezzling. 21 The law firm contended "that reasonable- ness is always a factual question for the jury" that precludes summary judgment. The Supreme Court disagreed. While reasonableness, like all factual questions, is ordinarily determined by the finder of fact, merely raising the question is not by itself sufficient to present it to the fact finder. The reasonableness of an act or omission is required to go to the jury only where there is a "factual dispute regarding the reasonableness." … But if "reasonable minds cannot differ," then the matter need not be submitted to a jury. 22 The purpose of summary judgment is per- haps most forcefully stated in Blankenship, et al. v. Collier. 23 Blankenship affirmed sum- mary judgment in a medical negligence ac- tion when the plaintiff lacked expert proof necessary to establish the necessary stan- dard-of-care element. The Court ruled that where a sufficient amount of time had ex- pired and the plaintiff had still failed to in- troduce evidence sufficient to establish the 29 B&B; • 7.15 ...focus should be on what is of record rather than what might be presented at trial.

Articles in this issue

Archives of this issue

view archives of Bench & Bar - JUL 2015