This weeks Ky. Ct. of Appeals decisions posted on LawReader.com

One sentence review of 25 decisions handed down by Ky. Court of Appeals at 2 PM on August 4, 2006. Join LawReader at www.lawreader.com and access the full text and full synopsis of each case. Only $34.99 a month.

1 the Commonwealth failed to present sufficient direct evidence demonstrating the .22 caliber rifle was capable of expelling “a projectile by the action of an explosive� as required under KRS 527.040 and KRS 527.010(4).
2 TO BE PUBLISHED: Paducah School shooter entitled to retrospective competency hearing: we vacate the June 30, 2004, order of the McCracken Circuit Court and remand this case for the court to determine whether a retrospective competency hearing is permissible and, if so, to conduct such a hearing.
3 Physician failed to raise defamation issue in timely manner:  
The record reveals a claim of defamation was never raised in the pleadings before the circuit court. “The Court of Appeals is without authority to review issues not raised in or decided by the trial court
4 TO BE PUBLISHED: the trial court’s denial of Barger’s suppression motion was proper as the totality of the circumstances supported the police officer’s reasonable and articulable suspicion of criminal activity thereby justifying the investigatory stop. See Dissent by Judge Buckingham
5 A domestic judgment of a court of general jurisdiction is presumed regular and valid unless the record affirmatively shows the contrary.
6 “the intention of the donor may not only be ‘expressed in words, actions, or a combination thereof,’ but ‘may be inferred from the surrounding facts and circumstances, including the relationship of the parties [,]’ as well as ‘the conduct of the parties [.]
7 TO BE PUBLISHED: KRS 533.250, which established pretrial diversion in 1998, does not apply retroactively
8 A (civil defendant is not liable when the original negligence is remote and only furnishes the occasion of the injury.
9 The DRC failed to find whether Karen was unable to support herself through appropriate employment. However, we can reasonably infer from the DRC’s findings that he found that Karen was unable to do the same at the time of the final hearing.
10 Appellant accepted the fellowship in Chicago knowing he would earn less money, so he was voluntarily underemployed as defined by KRS 403.212(2)(d).
11 appellant’s sentence was not an unlawful double enhancement
12 Probation properly revoked for overuse of prescription medication
13 The court erred by not make a specific finding as to the marital or nonmarital nature of this property – bed to be returned to husband as it was premarital property.
14 Tenant wearing pajamas with footies who slipped on ice entitled to present her claim for slip and fall against Landlord.  -  A landlord owes its tenants a duty of care to maintain all common areas under the landlord’s control in a safe condition
15 To determine whether the relationship constitutes an employer and independent contractor relationship, the most important factor is whether the employer retains the right to supervise and control the work.
16 the court has discretion to fix the beginning of  child support obligation payments
17 Absent probable cause and the existence of exigent circumstances, the police may not conduct warrantless entries into a suspect’s home to make a felony arrest – Exigent circumstances found here.
18 when appellant voluntarily dismissed his underlying personal injury claim against the alleged tortfeasor, he lost any right to have State Farm settle his bad faith claim.
19 damages were too speculative to justify a claim.
20 the circuit court properly denied his RCr 11.42 motion
21 Worker’s disability benefits denied as his psychological injury did not result from a physical trauma
22 ALJ had the prerogative of electing to rely on that evidence. We cannot substitute our judgment for that of the ALJ.
23 there is substantial evidence to support a finding in favor of Marcum. Consequently, the court’s determination of the child’s best interests was fully within the circuit court’s broad discretionary power.
24 the Administrative Law Judge’s (ALJ) decision denying Bullock’s claim for permanent partial disability benefits (PPD) and future medical benefits was correct.
25 Both parties in a workers’ compensation claim settlement can reopen the claim if they adhere to the statutory requirements discussed in the preceding paragraphs

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