Kentucky Court Report - SCOKY & COAKY

Defenses: Res Judicata and Collateral Estoppel

PRICE V. YELLOW CAB CO. OF LOUISVILLE
COA, PUBLISHED
JAN. 20, 2012

Res judicata is an affirmative defense that bars repetitious suits involving the same cause of action. Yeoman v. Commonwealth, Health Policy Board, 983 S.W.2d 459, 464 (Ky. 1998). The Supreme Court of Kentucky defined this doctrine in City of Louisville v. Louisville Professional Firefighters Ass’n, Local Union No. 345, IAFF, AFL-CIO, 813 S.W.2d 804, 806 (Ky. 1991), as follows: “Under the doctrine of res judicata or ‘claim preclusion,’ a judgment on the merits in a prior suit involving the same parties or their privies bars a subsequent suit based upon the same cause of action.” The City of Louisville Court then cited to Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970), in which the former Court of Appeals addressed the elements of res judicata:

The general rule for determining the question of res judicata as between parties in actions embraces several conditions. First, there must be identity of the parties. Second, there must be identity of the two causes of action. Third, the action must be decided on its merits. In short, the rule of res judicata does not act as a bar if there are different issues or the questions of law presented are different.

City of Louisville, 813 S.W.2d at 806. In City of Covington v. Board of Trustees of Policemen's and Firefighters' Retirement Fund of City of Covington, 903 S.W.2d 517, 521 (Ky. 1995), the Supreme Court addressed the doctrine of collateral estoppel:

Collateral estoppel is closely related to the doctrine of res judicata. The latter may be used to preclude entire claims that were brought or should have been brought in a prior action, while the doctrine of collateral estoppel only applies to issues actually litigated. Offensive collateral estoppel refers to the successful assertion by a party seeking affirmative relief that a party to a prior adjudication who was unsuccessful on a particular issue in that adjudication is barred from relitigating the issue in a subsequent proceeding. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4, 99 S.Ct. 645, 649 n. 4, 58 L.Ed.2d 552 (1979). Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the other plaintiff had previously litigated and lost against another defendant. Id.

Defenses: COA in NPO decision addresses immunity issue re bullying charges and supervision of students

FLORENCE V. L.P.
COA NPO
JAN. 20, 2012

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

There are two cases that Jane Doe relies on to show that the supervision of students is ministerial. Those are Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), and Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145 (Ky. 2003). We find these two cases distinguishable, for the same reasons the Kentucky Supreme Court did in Turner, supra.

Although we consider [Appellant’s] conduct in this case to be discretionary, we recognize the apparent incongruity with our precedent regarding a supervisory duty in the public school setting, as “we have held that a claim of negligent supervision may go to a ministerial act or function in the public school setting.” However, Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)[,] and Williams [v. Kentucky Dept. of Educ.], 113 S.W.3d 145 [(Ky. 2003)]-the cases relied upon in enunciating the public school distinction-have quite different facts from those before us.
In Yanero, this Court deemed “enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice” to be ministerial. Unlike the teacher’s decision-making in this case, a helmet requirement constitutes “an essentially objective and binary directive.” As a result, “[t]here is no substantial compliance with such an order and it cannot be a matter of degree: its enforcement was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” You do it or you don’t-and unlike here, there is no factual determination required for its application.

Admittedly, [in Williams] we have also “rejected the notion that the failure of teachers ... to supervise their students in the face of known and recognized misbehavior was a discretionary act.” This decision stemmed from the requirement in KRS 161.180(1) that teachers must “hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.” The dispute in this case, though, concerns the means of supervision rather than a failure to supervise students who were drinking and driving to and from a school- sponsored function as occurred in Williams.
Turner at 876-877(citations omitted). In the case at hand, the appellants’ supervision of the students required more discretionary actions than requiring a student to wear a helmet during batting practice, as in Yanero. Further, the appellants did not fail to supervise and discipline students, as was the case in Williams. As is clear from the evidence of record consisting of depositions, e-mails exchanged by Mother to the school staff, and transcripts of telephone calls, the appellants all took action when notified by Mother of her belief that her daughter was being bullied and harassed. Florence acted by meeting with teachers to see if they knew about the harassment and to direct them to monitor Doe and Student 1. She also directly asked Doe if there was anything Doe needed to tell her about the incidents or if Doe would like her to follow up later. Florence gave Doe an administrative pass that would allow her to leave class anytime she felt uncomfortable or anxious and had Student 1’s schedule changed so he and Doe would not be in the same class. Florence also called and e- mailed Mother in order to keep her informed and to gather more information.

Public officials are presumed to have performed their duties in good faith. Rowan County, supra; Koscot Interplanetary, Inc. v. Commonwealth, by Allphin, 649 S.W.2d 201, 202 (Ky. 1983). Although Doe’s brief suggests bad faith on the part of the appellants, the record of appellants’ conduct from the first incident brought to their attention in mid-January until Mother removed Doe from Crawford in mid-April contains not an instance of disrespectful or unconcerned conduct toward Doe or her mother. On the contrary, what is notable in review of the e-mail and recorded conversations between the appellants and Mother and between the appellants and other school personnel is the respectful, concerned tone which the appellants maintained even as the tone of Mother increasingly reflected her escalating frustration due to her perceptions of Doe’s victimization. However, a concerned parent’s conclusion that her child is being victimized does not make it so. What is legally significant is that her concerns were heard and the appellants took steps to determine whether Doe was being bullied and to stop or prevent any bullying.
In discussing the conduct of school officials following the carnage at the hands of Michael Carneal, the James Court stated:

Any of the conduct engaged in by the teachers, administrators and Board members can be properly classified as discretionary as they personify the type of acts which are intended to receive protection. Without such protection, the ability of those entrusted with the education of our children to perform the varied functions fundamental to their employment would be hindered. The conduct exhibited by the school appellees inherently required conscious evaluation of alternatives, personal reflection and significant judgment. By definition, their actions were discretionary. In this circumstance, their judgment may arguably be questionable, particularly with the benefit of hindsight, but applying such an unrealistic standard is not only unjust, it’s unauthorized.

James, at 909-10. In this case, there is no allegation that known rights were violated or
that malice and/or corruption were responsible for the conduct of the school personnel. Consequently, neither the appellants’ actions nor any inaction resulted from bad faith. The Kentucky Supreme Court has stated, [i]t is imperative that teachers maintain the discretion to teach, supervise, and appropriately discipline children in the classroom. To do this, they must have appropriate leeway to do so, to investigate complaints by parents, or others, as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action, which may, at times, involve reporting the conduct of a child to the appropriate authorities. In fact, protection of the discretionary powers of our public officials and employees, exercised in good faith, is the very foundation of our doctrine of “qualified official immunity.”

Turner at 876. Based on the foregoing, we find that the trial court incorrectly denied
summary judgment for the appellants. We therefore reverse and remand this case with instructions to grant the appellants’ motions for summary judgment due to qualified official immunity.

Defenses: Workers Compensation Exclusive Remedy and Up the Ladder

From Kenney v. Cemex, Inc., COA, NPO, 3/25/2011

In its motion for summary judgment, Cemex argued that Kenney was barred from bringing any tort claim against it because he received workers’ compensation benefits from HS Construction’s insurance carrier. Cemex relied on the exclusivity provision of the Kentucky Workers’ Compensation Act, KRS 342.690(1). In relevant part, the exclusivity provision states:
If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. For purposes of this section, the term “employer” shall include a “contractor” covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact secured the payment of compensation.

“The statute makes it plain that if [a company] is a contractor, it has no liability in tort to an injured employee of a subcontractor.” Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 461 (Ky. 1986). This is referred to as “up-the-ladder” immunity. If a company meets the definition of “contractor” provided in the workers’ compensation statutes, then it is deemed to be an “up-the- ladder” employer of its subcontractors’ employees and, like any employer, is entitled to immunity from its employees’ tort actions. The statutes define a “contractor” as a “person who contracts with another . . . [t]o have work performed of a kind which is a regular or recurrent part of the work of the [person’s] trade, business, occupation, or profession.” KRS 342.610(2)(b).

Accordingly, the dispositive issue in this matter, and the focus of Kenney’s disagreement with Cemex, is whether the repairs Kenney was assigned to perform on the splitter gate at the 526 Ball Mill qualified as work that is a “regular” and “recurrent” part of Cemex’s business, per KRS 342.610(2)(b).
Kentucky jurisprudence further defines these terms. In General Elec. Co. v. Cain, 236 S.W.3d 579 (Ky. 2007), our Supreme Court held that, as used in the statute, “regular” and “recurrent” workis work that is customary, usual, or normal to the particular business (including work assumed by contract or required by law) or work that the business repeats with some degree of regularity, and it is of a kind that the business or similar businesses would normally perform or be expected to perform with employees.” Id. at 588.

The Court also stated that “‘regular’ means that the type of work performed is a ‘customary, usual or normal’ part of the premises owner’s ‘trade, business, occupation, or profession,’ including work assumed by contract or required by law.” Cain, 236 S.W.3d at 586-7. “Recurrent” means that the work is repeated, though not “with the preciseness of a clock.” Id. (quoting Daniels v. Louisville Gas and Elec. Co., 933 S.W.2d 821, 824 (Ky. App. 1996)).

The Sixth Circuit has held that work being done “periodically,” as an “ordinary part of plant maintenance,” is regular or recurrent. Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1257 (6th Cir. 1987). In Daniels, a panel of this Court held that emissions testing was a regular or recurrent part of a contractor’s business on the basis of its manager’s affidavit stating that testing had occurred on fourteen occasions in 28 years. Daniels, 933 S.W.2d at 824.

Appeals of Administrative Rulings: Timely filing required (limitation of actions)

 

From Gallien v. Kentucky Board of Medical Licensure, COA, Published, 3/25/2011

In this case, the Order of Suspension was mailed to Appellant on April 25, 2007. However, she did not file her petition for judicial review until August 18, 2008 – nearly 18 months later. This delay is fatal to Appellant’s appeal. Our precedent holds that “[w]here an appeal is filed in the circuit court by grant of a statute, as in this case, the parties must strictly comply with the dictates of that statute.” Spencer County Preservation, Inc. v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky. App. 2007). This is because “[a]n appeal from an administrative decision is a matter of legislative grace and not a right, and thus the failure to strictly follow statutory guidelines for the appeal is fatal.” Id.; see also Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978); Ky. Unemployment Ins. Comm’n v. Providian Agency Group, Inc., 981 S.W.2d 138, 139-40 (Ky. App. 1998); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). The circuit court concluded that it lacked jurisdiction to consider Appellant’s petition for judicial review because the petition had not been timely filed within the statutory 30-day period; thus, dismissal was merited. This conclusion was the correct one.

 

 

Defenses: Qualified official immunity (sovereign immunity)

From Faulkner v. Greenwald, COA, Published 3/11/2011

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR2 56.03. With regard to qualified official immunity, “[s]ummary judgments play an especially important role”, as the defense renders one immune not just from liability, but also from suit itself. Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). The material facts in this case are not in dispute. We must decide, as a matter of law, whether Greenwald was properly held to possess qualified official immunity and consequently entitled to judgment as a matter of law. See Sloas, 201 S.W.3d at 475.

Sovereign immunity has been defined as “an inherent attribute of a sovereign state that precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity.” Yanero v. Davis, 65 S.W.3d 510, 517 (Ky. 2001). Sovereign immunity, in Kentucky, derives from section 231 of the Constitution of Kentucky. This immunity has been extended to public officials who are sued in their official capacities. Yanero, supra, at 519.

A board of education is an agency of state government, and as such is possessed of governmental immunity. Schwindel v. Meade County, 113 S.W.3d 159, 168 (Ky. 2003). “[I]t can be sued for damages for the tortious performance of a proprietary function but not a governmental function.” Id. A governmental function is one that is integral to state government whereas a proprietary function is one that is engaged in for profit. Id. It has been held that interscholastic athletics is a governmental function and that “[t]he receipt of income from admission fees and sales of refreshments . . . [does] not convert [an] interscholastic athletic event into a proprietary function. Id. (citations omitted). Accordingly, it appears as though JCBE was properly granted summary judgment as a matter of law. However, Faulkner’s appeal does not challenge the appropriateness of summary judgment in favor of JCBE, but rather the appropriateness of summary judgment in favor of Greenwald, the athletic director.

The trial court granted summary judgment in favor of Greenwald by application of the qualified official immunity doctrine. To determine when public employees are subject to immunity, courts have identified two classes of acts, discretionary and ministerial, as pivotal. See, e.g., Yanero, 65 S.W.3d 510. Public employees are afforded immunity for their discretionary acts performed in good faith and within the scope of their authority. Id. at 522. On the other hand, employees are not immune from suit for the negligent performance of a ministerial act. Id.

* * *

The distinction between discretionary and ministerial acts has been defined in Kentucky law as follows:
[d]iscretionary or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed.
Collins v. Commonwealth of Ky. Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 125 (Ky. 1999)(citations omitted).
A ministerial act, on the other hand, is one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. That a necessity may exist for the ascertainment of . . . facts does not operate to convert the act into one discretionary in nature.
Sloas, 201 S.W.3d at 478 (citations omitted). “However, an act is not necessarily taken out of the class styled “ministerial” because the officer performing it is vested with a discretion respecting the means of method to be employed.” Collins, 10 S.W.3d at 125-26.

 

Causes of Action: Defamation Elements; and Defense of Qualified Privilege Defense (employment)

From Harstad v. Whiteman, COA, Published 3/4/2011:

The essential elements of defamation are: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Restatement (Second) of Torts § 558 10 (1977). When the communication concerns untrue allegations of criminal behavior or unfitness to perform a job, the communication is libelous per se or slanderous per se, and proof of context indicating malice is not required. “Although the law presumes malice where publications are slanderous per se, yet where the publication is made under circumstance disclosing qualified privileges, it is relieved of that presumption and the burden is on the plaintiff to prove actual malice.” Weinstein v. Rhorer, 240 Ky. 679, 42 S.W.2d 892, 895 (1931); see also Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981) (setting out elements of defamation).

The basis of the circuit court’s summary judgment was that all the allegedly defamatory statements were subject to a qualified privilege. Citing Landrum v. 2 According to the two complaints in the respective lawsuits, nine (9) of these statements were uttered by Whiteman, Thacker or unknown defendants and two (2) were uttered by Verna Lowe. All of the statements were made by Asbury employees in the course of investigating complaints from students and others about Harstad and his role as an Asbury professor.
Braun, 978 S.W.2d 756 (Ky. App. 1998), the circuit court determined that the “statements that Harstad alleges are defamatory were made within the context of the employment relationship and are qualifiedly privileged.” We agree.

“The determination of the existence of privilege is a matter of law.” Columbia Sussex, 627 S.W.2d at 276.3    Once a privilege has been placed in issue, “it thereupon falls upon plaintiff to defeat this defense by a showing that either there was no privilege under the circumstances or that it had been abused.” Id. If the plaintiff fails to adduce such evidence sufficient to create a genuine issue of fact, qualified privilege remains purely a question of law under the summary judgment standard. Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 68 (Ky. App. 2006) (“Although the jury normally determines whether a privilege was abused, a motion for summary judgment is appropriate when the record shows no facts which would lead to the conclusion that the Appellees acted with malice.”). The circuit court’s summary judgment in this case recognizes these concepts and this analytical procedure.

Defenses: Sudden Emergency (Instruction)

From  McAlpin v. Davis Construction Inc., COA, Published, 2/11/2011

The sudden emergency doctrine is generally defined as follows:

[W]hen an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.
Henson v. Klein, 319 S.W.3d 413, 418 (Ky. 2010) (citing 57A Am. Jur. 2d Negligence § 198 (2004)). Such an instruction is warranted when an actor is under specific duties prescribed by statute, and the ability to conform to those duties is affected by “the presence of a sudden and unexpected peril.” Henson, 319 S.W.3d at 421. The sudden emergency qualification has been approved in Kentucky for use in automobile collision cases. Regenstreif v. Phelps, 142 S.W.3d 1, 4-5 (Ky. 2004) (citation omitted).
The rule is well settled that “[e]ach party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957) (citations omitted). Whether Hurley was confronted with a sudden emergency is a question of fact for the jury, and if the evidence supports such a finding, the jury will be given a sudden emergency instruction. Brown v. Todd, 425 S.W.2d 737, 739-40 (Ky. 1968).

UM and UIM benefits relationship to defendant covered by exclusive remedy of workers compensation act

UM and UIM benefits are not available as a result of injuries caused by worker covered under exclusive remedy provisions of workers compensation statute.

State Farm Mutual Automobile Insurance Company v. Carlene Slusher, Administratrix of the Estate of Donald Slusher
2009-SC-000513-DG     November 18, 2010
Opinion of the Court by Justice Venters.  All sitting; all concur.  Held – If, because of the exclusive remedy provisions of Kentucky’s Workers’ Compensation Act, a worker injured in a work-related motor vehicle accident caused by a co-worker, is not legally entitled to collect any further amounts from either his employer or the co-employee, he may not collect either UM or UIM benefits under an insurance policy which provides that to collect under those provisions the insured must be "legally entitled to collect" from the tortfeaser.

Defenses: Statute of limitations and relation back of amended pleadings

Generally speaking, “[a] new party cannot be brought into a lawsuit by amended complaint when the statute of limitations governing the claim against that party has already expired.” Combs v. Albert Kahn & Associates, Inc., 183 S.W.3d 190, 194 (Ky. App. 2006) (internal footnote omitted). Because Phillips alleges negligence, the applicable statute of limitations is one year pursuant to KRS 413.140(1)(a). In this case, Phillips’ cause of action accrued at the time of the alleged injury, April 9, 2008. She filed her original complaint on April 8, 2009, naming only LFUCG as a defendant. On May 28, 2009, Phillips filed her amended complaint adding a state law negligence claim against Bodkin and Kirby. Unless Phillips’ claims against Bodkin and Kirby relate back under CR 15.03, they are time-barred.

An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03. party relates back.

FROM:

PHILLIPS (LAURA)
VS.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-001613-MR old link which has error in it to coa decision
2009-CA-002101-MR corrected link to coa decision (has an "(" in link)
TO BE PUBLISHED
FAYETTE
12/29/2010

Defenses: Blackout Defense

Mahanes argues the “blackout” defense instruction was erroneously tailored to Shugars rather than worded in terms of the ordinary person. Shugars responds that the court’s instruction is nearly verbatim to the version appearing in John S. Palmore, Kentucky Instructions to Juries § 16.60 (4th Ed., 1989), and was therefore appropriate.

Under the “blackout” defense,

where the driver of a motor vehicle suddenly becomes physically or mentally incapacitated without warning, he is not liable for injury resulting from the operation of the vehicle while so incapacitated. However, once a prima facie case of negligence has been made against the defendant he must demonstrate that the sudden illness or incapacity could not have been anticipated or foreseen.

Rogers, 748 S.W.2d at 673, (citing Lutzkovitz v. Murray, Del., 339 A.2d 64, 93 A.L.R.3d 321 (1975)). The evidence elicited at trial supported the giving of an instruction on the “blackout” defense. The issue on appeal is whether the instruction given by the court was an accurate statement of the defense.

Mahanes bases his argument on a single reference to the phrase “ordinary and reasonable person” in Rogers, which states:

[t]he defense is unavailable where the defendant was put on notice of facts sufficient to cause an ordinary and reasonable person to anticipate that his or her driving might likely lead to the injury of others. The defense is neither available if at the time of the accident the incapacitated driver was violating a statutory duty such as to refrain from driving while intoxicated, or to drive within the posted speed limit.

Rogers does not set forth a sample instruction.

The court instructed the jury as follows:
Do you find from the evidence that Michael Shugars suddenly became incapacitated immediately before the accident, that such incapacity was not reasonably foreseeable by him, and that the accident was a result of such incapacity?
By comparison, Palmore’s sample version of the “blackout” defense instruction, which references Rogers, reads:
Even though you might otherwise find for P under Instruction ___, if you are satisfied from the evidence that immediately before the accident D suddenly became incapacitated, that such incapacity was not reasonably foreseeable by him, and that the accident resulted from it, you will find for D.

The instruction given by the court was consistent with Palmore’s suggested language. Moreover, we note that the comment to Palmore’s sample instruction does not reference the ordinary and reasonable person standard. Mahanes has not cited any case wherein an approved “blackout” defense instruction uses the phrase “ordinary and reasonable person” and our search of caselaw has not revealed such an instruction. Therefore, discerning no error, we affirm the court’s “blackout” defense instruction as given.

FROM: MAHANES (DONALD LEE) VS. SHUGARS (MICHAEL R.), ET AL.
NOT TO BE PUBLISHED 1/7/2011
2009-CA-002047-MR