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Nathan v. St. Luke Hospitals12/17/2004
hed that " he concept of liability for negligence expresses a universal duty owed by all to all." Gas Service Co., Inc. v. City of London, Ky., 687 S.W.2d 144, 148 (1985). "The rule is that every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Grayson Fraternal Order of Eagles v. Claywell, Ky., 736 S.W.2d 328, 332 (1987). However, " n any negligence case, it is necessary to show that the defendant failed to discharge a legal duty or conform his conduct to the standard required." Mitchell v. Hadl, Ky., 816 S.W.2d 183, 185 (1991); Seigle v. Jasper, Ky. App., 867 S.W.2d 476, 483 (1993).
While St. Luke owed a duty to Nathan to exercise ordinary care in selecting a mode of transporting him to Falmouth, Nathan has failed to identify any acts or omissions by St. Luke which involve a breach of that duty. For example, Nathan has failed to present any affirmative evidence that St. Luke knew or should have known that Diamond Cab Co. was an unsafe means for transporting Nathan to Falmouth, that Diamond Cab Co. was in fact an unsafe means of transportation, or even that a safer means of transportation was an available option.
There are no genuine issues of material fact concerning the issue of whether St. Luke was negligent in selecting Diamond Cab Co. to transport Nathan to Falmouth. St. Luke did not breach any duty it owed to Nathan by selecting Diamond Cab Co. as the method of transporting him to Falmouth, and St. Luke was entitled to summary judgment as a matter of law under this theory of liability.
For the foregoing reasons, the judgment of the Pendleton Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS. SCHRODER, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
SCHRODER, JUDGE, CONCURRING IN PART AND DISSENTING IN PART.
I agree with the Majority when it ruled the two-year statute of limitations applies. I would reverse and remand to the trial court. The statute of limitations was an affirmative defense and the trial court never granted summary judgment on the merits. As an appellate court, we cannot grant summary judgment but must remand the matter to the circuit court where it may consider a motion for summary judgment on the merits.
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