In March of 2010, the Kentucky Court of Appeals heard a case that involved a personal injury matter with reference to carbon monoxide. (See Salsman v. Sears, Roebuck and Company, 2010 WL 918068 (Ky.App.) In Salsman, the Salsman family in 1997 had a Kenmore Series 90 gas fired furnace installed in their basement and was installed by Crain heating & Air conditioning who had subcontracted the job from Sears. Id. The installation was inspected by Defendant Richard Howlett, an inspector with the Louisville-Jefferson County Metro Government Department of Inspection on or about April 8, 1997. Id.
At some point after, the entire Salsman family started to get sick. One of the family members in 2003, was placed on Social Security and considered disabled due to destructive apnea, chronic obstructive pulmonary disease and coronary artery disease. Id. None of the Plaintiffs ever suspected it was the furnace. Id.
In January of 2007, the furnace stopped working and the repair person told the Plaintiffs to get a state agency official to check it out because it did not appear to be installed correctly. At the end of January 2007, the furnace was inspected by the Commonwealth of Kentucky Environmental and Public Protection Cabinet, Office of Housing, Buildings and Construction. Id. The inspection revealed that the furnace had not been properly installed and that carbon monoxide gas had been leaking into the home for nearly 10 years. Id. On January 10, 2008, within 1 year of finding out about the carbon monoxide, the Plaintiffs hired a Louisville personal injury lawyer to assist them with their personal injury case. The Defendants filed motions to dismiss because they claimed that a one year statute of limitations applied from when they became sick and that pursuant to the Yanero case, that Howlett and the Metro Government were entitled to immunity. Id. The case at hand was another Louisville personal injury case that needed to be handled by a Louisville personal injury lawyer.
Plaintiffs in this personal injury case, claimed that the inspector, Mr. Howlett was not entitled to immunity because his acts were ministerial in nature and even if they were not, he did not exercise his duties in “good faith” and thus was liable for his actions. Id. The Plaintiffs also alleged the “discovery rule.” The discovery rule is that “a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” (cites omitted). Id. The trial court granted summary judgment and dismissed the case. The Plaintiffs appealed and this appellate court reversed for the following reasons.
This Appellate Court held that the “discovery rule” did apply and that the Plaintiffs could not know about what was causing them their illnesses until the furnace was inspected and then they did file within the one year statute of limitations. The question as to whether or not the Plaintiffs should have known or investigated the possibility that the furnace was the cause of their illnesses beforehand and whether they were put on notice before hand are questions of fact that should generally be answered by a jury. (cites omitted). Id.
As to the second issue of ‘immunity,’ this Appellate Court held that the lower trial court did not allow for enough discovery on this issue. Id. The actions of inspecting the subject furnace needed to be determined as whether they were ministerial (ie. absolute, certain and imperative, involving merely execution) or was it discretionary. Id. The Plaintiffs argued that within the Kentucky Building Code the building official had to act in “good faith” as the statute stated and that he could not have acted in good faith when it was clear that the furnace was clearly improperly installed. Id. So both sets of personal injury lawyers needed to go back and do more discovery on this qualified immunity issue. Under Yanero, “qualified official immunity applies to the negligent performance by a public officer or employee of 1) discretionary acts or functions (ie., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment); 2) in good faith; and 3) within the scope of the employee’s authority.” (cites omitted) in order to overcome a claim of qualified immunity, a plaintiff essentially has to establish “bad faith’ on the part of the defendant in question.” (cites omitted). Id.
If you have been the subject of a Louisville personal injury case, please call and speak to a Louisville personal injury lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.
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