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Civil Litigation Blog

SCOKY Retreats Further From Open And Obvious Hazard Doctrine In Premises Cases

In its recently published 4-3 opinion in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), the Kentucky Supreme Court expanded on its prior decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), limiting the “open and obvious hazard doctrine,” and held that a personal injury claim brought ... Read More...
Posted in: Civil Litigation,Civil Procedure   | April 9, 2014

Three-Day Mail Rule Under Kentucky and Federal Civil Rules

Confusion sometimes arises about when a litigant is entitled to the extra three days to act or respond under Kentucky CR 6.05 and its federal counterpart, FRCP 6(d), when another party serves the litigant by mail or e-mail. First, Kentucky’s amended Rule 6.05 (effective Jan. 1, 2014), provides that the extra three days that are afforded to a party when served by regular mail also apply when service is by e-mail or fax, even though such service is usually effectuated instantaneously. Read More...
Posted in: Civil Procedure   | March 25, 2014

Recent SCOKY Decision Suggests Kentucky Lawyers Should Be Cautious In Citing Unpublished Opinions

In a 2013 decision arising out of a probation revocation, the Kentucky Supreme Court, in an opinion by Justice Venters, commented on the fact that both parties had cited unpublished opinions that did not appear to meet the criteria of CR 76.28(4)(c). The Court stated that “as a general rule” the Court is not “greatly influenced by unpublished” appellate decisions. Read More...
Posted in: Civil Procedure   | March 4, 2014

Does The Federal Twombly/Iqbal Pleading Standard Apply To Affirmative Defenses In Federal Courts?

Our post last week discussed whether heightened federal pleading standards for stating a claim for relief apply in Kentucky state courts. Today's post deals with the issue whether those standards apply to affirmative defenses in federal court. Read More...
Posted in: Civil Procedure   | February 10, 2014

Have Kentucky Courts Adopted The Twombly/Iqbal Standard For Pleading A Claim For Relief?

Kentucky state courts have not yet formally adopted in a published opinion the federal pleading standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), to claims for relief. Those pleading standards are more rigorous than the traditional "notice pleading" standard that had long been followed in the federal courts prior to Twombly and Iqbal. Read More...
Posted in: Civil Procedure   | February 5, 2014

Recent COAKY Decision Discusses Award of Witness’s “Per Diem” Expense or “Allowance” as Recoverable Cost (including for Expert)

In a recent decision by the Kentucky Court of Appeals that was designated for publication but is now pending on a petition for rehearing, the Kentucky Court of Appeals discussed a seldom used and infrequently cited statute that provides for an award to the prevailing party's of an "allowance" for trial witnesses, including both parties and experts, as a recoverable cost. Read More...
Posted in: Civil Procedure   | December 26, 2013

SCOKY Issues Rules for eFiling Pilot Project in Franklin Circuit Court, effective 12/15/13

In Order 2013-16 (issued November 12, 2013), the Kentucky Supreme Court adopted rules of practice and procedures for the forthcoming electronic filing ("eFiling") system to be utilized in the Franklin Circuit Court (FCC) beginning December 15, 2013. Read More...
Posted in: Civil Procedure   | November 22, 2013

SCOKY Amends CR 23 to Direct Some Residual Class Action Proceeds to Legal Aid for Low-Income Kentuckians

In Order 2013-14 (eff. 1/1/2014), the Kentucky Supreme Court adopted a new section of Civil Rule 23 governing class actions providing that not less than 25% of any residual funds remaining after payment of claims to class members be paid to the Kentucky IOLTA Fund for distribution to legal aid programs for low-income Kentuckians. Read More...
Posted in: Civil Procedure   | October 30, 2013

SCOKY Amends Several Civil Rules, Including Providing Litigants the Option to Require Electronic Service

The Kentucky Supreme Court recently issued an order amending several of the Kentucky Rules of Civil Procedure effective January 1, 2014. The amended Civil Rules are as follows: CR 4.01(1)(b) and (c): The amendment provides that upon the filing of a civil action (or upon the issuance of a new summons in a pending civil ... Read More...
Posted in: Civil Procedure   | October 18, 2013

COAKY Rules That Attorney Lien Statute Does Not Apply In Dissolution Cases

In the recent case of Ruby v. Scherzer, the Kentucky Court of Appeals held that the attorney lien statute, KRS 376.460, does not apply in marriage dissolution cases so as to give an attorney a right to place a lien for attorney's fees on non-marital property that is assigned to his or her client or on marital property that is awarded to the client. Read More...
Posted in: Civil Procedure   | October 4, 2013

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About the Authors

David Kramer is a Partner at DBL Law and is Chair of the firm's Civil Litigation Section. He is the principal author of Thomson/West's two-volume treatise on the Kentucky Rules of Civil Procedure. The treatise, which is updated annually, is widely regarded as the leading reference on the Kentucky civil rules.

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