Center for America

State Tort Law Profile

State List

 

Kentucky

Last Updated 08/25/2009

Analysis prepared for the Center for America by by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

Abolished

Ky. Rev. Stat. Ann. § 411.182(3); Prudential Life Ins. Co. v. Moody, 696 S.W.2d 503 (Ky. 1985).

 

Non-Economic Damages

Abolished

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

No, except for settling parties

Ky. Rev. Stat. Ann. § 411.182(1)(b); Baker v. Webb, 883 S.W.2d 898 (Ky. Ct. App. 1994) (“the thrust of KRS 411.182, considered in its entirety, limits allocation of fault to those who actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement.”).

 

Market Share Liability

No

Farmer v. City of Newport, 748 S.W.2d 162 (Ky. App. 1988).

Defenses

Comparative Negligence

Yes, pure comparative negligence

Ky. Rev. Stat. Ann. § 411.182; Owens Corning Fiberglass Corp. v. Parrish, 58 S.W.3d 467 (Ky. 2001).

Assumption of Risk

No

Parker v. Redden, 421 S.W.2d 586 (Ky. 1967).

 

Product Misuse

Considered as part of comparative negligence

Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 475 (Ky. 2001).

Compliance With
Government Standards

No

Compliance with government standards is admissible, but not conclusive as to liability.

Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66 (Ky. 1973); see also Morales v. American Honda Motor Co., 151 F.3d 500 (6th Cir. 1998) (applying Kentucky law).

 

Statute of Repose

Rebuttal presumption

In any product liability action, it shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the subject product was not defective if the injury, death or property damage occurred either more than 5 years after the date of sale to the first consumer or more than 8 years after the date of manufacture.

Ky. Rev. Stat. Ann. § 411.310.

A 7-year statute of repose for claims involving improvements to real property, Ky. Rev. Stat. Ann. § 413.135, was declared unconstitutional in Perkins v. Northeastern Log Homes, 808 S.W.2d 809 (Ky. 1991).

 

Government Contractor Defense

Undecided

A federal appellate court has applied the defense.  See Tate v. Boeing Helicopters, 140 F.3d 654 (6th Cir. 1998).

 

McLawsuits Permitted?  Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

Ky. Rev. Stat. Ann. § 411.600-640.

Compensatory Damages

Is there a statutory limit on economic damages?

No

Is there a statutory limit on non-economic damages?

No

Is recovery for medical monitoring permitted without physical injury?

No

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

Punitive Damages

Is there a statutory limit?

No

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

Does the state receive a portion of the punitive damage award?

No

What standard is used?

Clear and convincing evidence

Ky. Rev. Stat. Ann. § 411.184(2); But see Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998) (overturning punitive damage reform statute setting liability standard).

 

Procedures

Venue

 

Conducive to Abuse - 
Does the statute permit forum shopping?

Unreported

Kentucky’s venue statute applicable to corporations in personal injury and contract actions provides that, generally, “an action against a corporation which has an office or place of business in this state, or a chief officer or agent residing in this state, must be brought in the county in which such office or place of business is situated or in which such officer or agent resides; or, if it be upon a contract, in the above-named county, or in the county in which the contract is made or to be performed; or, if it be for a tort, in the first named county, or the county in which the tort is committed.”

Ky. Rev. Stat. Ann. § 452.450.

 

Class Actions

Is there a right to an immediate appeal of class certification?

No

Garrard County Bd. of Educ. v. Jackson, 12 S.W.3d 686 (Ky. 2000) (holding that defendant did not demonstrate that an erroneous class certification would prejudice defendant in a manner which the court could not address on appeal); Bellarmine College v. Hornung, 662 S.W.2d 847 (Ky. Ct. App. 1983) (order certifying and designating class representative was interlocutory and not appealable).

 

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

Yes

The total amount of the supersedeas bonds that are required collectively of all appellants in a civil action may not exceed $100 million. 

Ky. Rev. Stat. Ann. § 411.187.

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes

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

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

No

Actual deception is not required.

Telcom Directories, Inc. v. Commonwealth ex rel. Cowan, 833 S.W.2d 848 (Ky. Ct. App. 1991).

What is the level of scienter (intent) required of a defendant?

Not addressed

Are class actions permitted?

Yes

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual damages and equitable relief.

Ky. Rev. Stat. Ann. § 367.220(1).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Court may award punitive damages "where appropriate"

Ky. Rev. Stat. Ann. § 367.220(1).

Does every prevailing plaintiff receive attorneys' fees and costs?

No, it is within the judge's discretion

Ky. Rev. Stat. Ann. § 367.220(3).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

This Act “shall not apply to activities authorized or approved under any federal or state statute or regulation.”

Ky. Rev. Stat. Ann. § 367.176(2).

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Ky. Rev. Stat. Ann. §  29A.090.

Are the grounds for obtaining an excuse from service closely defined?

No

A court may excuse a person from jury service upon a showing of “undue hardship, extreme inconvenience, or public necessity.”

Ky. Rev. Stat. Ann. § 29A.100(1). 

 

May jurors automatically postpone and reschedule service?

No

The judge may excuse a juror entirely, reduce the number of days or service, or postpone the juror's service for a period not to exceed two years.  The juror must provide a reason for the excuse.

Ky. Rev. Stat. Ann. § 29A.100(3).

 

Is a juror's employment and leave time adequately protected during service?

Yes

Prohibits an employer from depriving an employee of his or her employment, or threatening or otherwise coercing an employee because the employee is called for jury service.    An employee who is wrongfully discharged may bring a civil action against an employer for lost wages and reinstatement. 

Ky. Rev. Stat. Ann. § 29A.160.

 

Is there a limit on the frequency of jury service?

Yes

Citizens may not be required to serve as (i) a trial juror for more than 30 court days, or (ii) serve on more than 1 grand jury, or (iii) serve as both a grand juror and trial juror during any 2-year period.

Ky. Rev. Stat. Ann. § 29A.130.

 

Is the length of service limited to no more than one day or one trial?

No

By law, a person summoned to jury duty is required to be available for up to 30 court days.  Ky. Rev. Stat. Ann. § 29A.130.  However, according to Kentucky’s Juror Handbook, entitled You the Jury, available at  <http://courts.ky.gov/stateprograms/juryduty.htm>, once a jury begins hearing a case, it will remain seated for the duration of the case.  In metropolitan areas, it could be as little as two  weeks.  In some rural areas, the handbook warns, a person may be asked to serve as many as 150 days.  The exact length of service will be determined by the judge. 

 

Juror per diem

$12.50

Ky. Rev. Stat. Ann. § 29A.170.

 

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

No

Contempt of court with no set penalty.

Ky. Rev. Stat. Ann. §§ 29A.070(5); 29A.150(1), (2).

Problem Jurisdictions

Eastern Kentucky, such as Pike County

 

Named as a jurisdiction on the "watch list" in the American Tort Reform Association's Judicial Hellholes report.

 

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com Original material © 2009 Center for America.