United States District Court,

S.D. New York.

Frank MENLO, Plaintiff,

v.

FRIENDS OF TZEIREI CHABAD IN ISRAEL, INC., also known as “Friends of Tzeirei Chabad”, “Tzeirei Chabad of Israel”, “Friends of Tzeirei Chabad in Israel”, “Chabad Friends for Israel Foundation”, and “Friends of Tzeirei Chabad of Israel, Inc.”, Defendant.

 

No. 11 Civ.1978(JPO).

April 5, 2013.

 

MEMORANDUM AND ORDER

J. PAUL OETKEN, District Judge.

*1 On November 21, 2012, the Court issued an opinion granting summary judgment to Plaintiff (“Menlo II” ). Defendant has requested reconsideration of that ruling. Plaintiff has filed a motion to amend the judgment. For the reasons that follow, Defendant’s motion for reconsideration is denied and Plaintiff’s motion to amend the judgment is granted.

 

I. Motion for Reconsideration

 

A. Legal Standard

 

“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” Drapkin v. Mafco Consol. Group, Inc ., 818 F.Supp.2d 678, 695 (S.D.N.Y.2011) (quotation marks and citation omitted). Accordingly, “[t]he threshold for prevailing on a motion for reconsideration is high.” Nakshin v. Holder, 360 F. App’x 192, 193 (2d Cir.2010); see Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995) (“The standard for granting such a motion is strict.”). “Generally, motions for reconsideration are not granted unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Cioce v. County of Westchester, 128 Fed. App’x 181, 185 (2d Cir.2005).

 

“[On a Local Rule 6.3 motion,] a party may not advance new facts, issues, or arguments, not previously presented to the Court.” Polsby v. St. Martin’s Press, No. 97 Civ. 690, 2000 WL 98057, at * 1 (S.D.N.Y. Jan. 18, 2000); accord Hayles v. Advanced Travel Mgmt. Corp., 01 Civ. 0017, 2004 WL 117597, at * 1 (S.D.N.Y. Jan. 26, 2004) (“A movant may not … advance new facts, issues or arguments not previously presented to the Court, or reargue those issues already considered.” (quotation marks omitted)). As Judge Sweet has observed, “Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court.”   Dellefave v. Access Temporaries, Inc., 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001).

 

B. Application of Law to Facts

Defendant asks the Court to reconsider Menlo II on several grounds: (1) “an erroneous ruling of law as to the authenticity of plaintiff’s Exhibit # 4 (the purported Aharonov Letter)”; (2) “the necessity of additional testimony to establish the oral agreement precludes summary judgment” because “the absence of a simultaneously executed promissory note specifying the critical terms of the purported loan is fatal to a summary judgment disposition” (emphasis in original); and (3) inadequacy of the evidence in support of summary judgment.

 

All of these arguments were presented to and rejected by the Court in its earlier rulings in this case. It is, of course, well settled that motions for reconsideration are not meant to afford a mere second bite at the proverbial apple. See Norton v. Town of Islip, No. 04 Civ. 3079, 2013 WL 84896, at *3 (E.D.N.Y. Jan. 7, 2013). For that reason alone, Defendant’s motion fails.

 

*2 In any event, these arguments do not succeed on the merits.

 

Defendant’s insistence that the Court erred in refusing to strike the Aharonov Letter from the record was denied in the Court’s first summary judgment ruling in this case. See Menlo v. Friends of Tzeirei Chabad in Israel, Inc., No. 11 Civ.1978, 2012 WL 137504, at *4 (S.D.N.Y. Jan. 17, 2012). The Court reaffirms that ruling and rejects Defendant’s argument, which is meritless.

 

Defendant’s next argument, that the absence of a simultaneously executed promissory note prevents summary judgment, relies on two entirely inapposite cases. The first case, Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77 (2d Cir.2004), dealt with a suit by a shipper’s subrogee under the Carmack Amendment against a carrier for theft of a shipment of cigarettes, which was transported from the United States and stolen shortly after being deposited in a bonded warehouse pending inspection and release by Canadian customs authorities. The plaintiff “sought to carry its burden of showing that there was no genuine issue of fact to be tried as to the contents and quality of the stolen cargo principally by proffering” a detailed bill of lading and an affidavit. Id. at 84. The Second Circuit ultimately found a genuine dispute of fact, since there was some evidence that the cargo had been sealed and “where the contents of a shipment are not visible or open for inspection … a clean bill of lading is not sufficient to establish delivery of the goods in good condition.” Id. at 83. The second case, Vacold LLC v. Cerami, 545 F.3d 114 (2d Cir.2008), affirmed a grant of summary judgment because it concluded that a “preliminary agreement” between the parties gave rise to binding obligations under New York law. Id. at 123–24. Neither of these cases could plausibly be said to stand for Defendant’s asserted proposition that a written agreement “is necessary to establish as a matter of law” that an enforceable oral contract existed between two parties.

 

Indeed, settled principles of contract law refute that proposition. To start with the basic rule, to prevail on a summary judgment motion alleging breach of an contract, a plaintiff must establish that “any reasonable jury would … find all the necessary elements of a breach of contract claim … (1) the existence of a contract; (2) due performance of the contract by the plaintiff; (3) breach of contract by the defendant; and, (4) damages resulting from the breach.” Arias–Zeballos v. Tan, No. 06 Civ. 1268, 2008 WL 833225, at *6 (S.D.N.Y. Mar. 28, 2008) (citation omitted).

 

Oral contracts that were not memorialized in a writing are no exception. To the contrary, courts have repeatedly held that they may recognize the existence of binding obligations created by purely oral contracts when ruling on Rule 12(b)(6) and Rule 56 motions. See, e.g., Probulk Carriers Ltd. v. Peraco Chartering USA LLC, No. 11 Civ. 5686, 2012 WL 3095319, at *7 (S.D.N.Y. July 20, 2012); Micromat Co., Inc. v. Catskill Mountain Brewing Co., Inc., No. 10 Civ. 508, 2012 WL 1898846, at *5 (N.D.N.Y. May 23, 2012); Friedman v. Schwartz, No. 08 Civ. 2801, 2011 WL 6329853, at *4 (E.D.N.Y. Dec. 16, 2011); Dehua Lin v. Brennan, No. 07 Civ. 1658, 2011 WL 5570779, at *5 (D.Conn. Nov. 15, 2011). As the Second Circuit has explained, “[u]nder New York law, parties are free to enter into a binding contract without memorializing their agreement in a fully executed document…. In any given case it is the intent of the parties that will determine the time of contract formation.” Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.1985). Therefore, “[a]n oral agreement is ‘binding except where the parties have explicitly made reference to an intention to be bound only by an executed written document.’ “ IBS Ketel, Ltd. v. Korea Telecom Am., Inc., No. 98 Civ. 4856, 2000 WL 821013, at *3 (S.D.N.Y. June 22, 2000) (quoting DiMario v. Coppola, 10 F.Supp.2d 213, 220 (E.D.N.Y.1998)). Intent is discerned from the totality of the circumstances. See R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir.1984). For an oral agreement to be enforced, it must be “sufficiently definite and explicit so [that the parties’] intention may be ascertained to a reasonable degree of certainty.” Cleveland Wrecking Co. v. Hercules Const. Corp., 23 F.Supp.2d 287, 292 (E.D.N.Y.1998), aff’d sub nom. Cleveland Wrecking Co. v. Hercules Const. Corp., 198 F.3d 233 (2d Cir.1999) (quotation marks and citations omitted). “In the context of a contractual dispute, summary judgment may be granted where the contract conveys a definite and precise meaning absent any ambiguity….” Id.

 

*3 Oral contracts, however, are different in at least one salient respect: “Where an alleged contract is oral, plaintiff has a particularly heavy burden to establish objective signs of the parties’ intent to be bound.” Oscar Productions, Inc. v. Zacharius, 893 F.Supp. 250, 255 (S.D.N.Y.1995) (citation omitted). “The burden is heavier in oral agreements because a primary concern for courts in such disputes is to avoid trapping parties in surprise contractual obligations that they never intended.” Id. (internal quotation marks and citations omitted). Accordingly, to prove the existence of an oral contract, there must be “overall agreement … to enter into a binding contract.” Id. (quotation marks and citations omitted).

 

Applying these familiar rules of law in Menlo II, and looking to a complete evidentiary record, the Court concluded that no reasonable juror could support Defendant’s position at trial. It is beyond cavil that the parties formed an oral contract with concrete and definite terms, that Plaintiff performed the contract, that Defendant breached it, and that Plaintiff thereby sustained damages.FN1 There is no evidence that the parties intended only to be bound by any writings that resulted from their discussions. Nor has Defendant adduced any evidence that could reasonably explain the undisputed facts in a manner that does not result in contract liability.

 

FN1. With respect to contract formation, to the extent the deal might be described as a “preliminary agreement,” it was of a sort that the Second Circuit deems capable of creating binding obligations. See, e.g., McElroy v. Gemark Alloy Ref. Corp., 592 F.Supp.2d 508, 517 (S.D.N.Y.2008) (“Type I preliminary agreements reflect a meeting of the minds on all the issues perceived to require negotiation, thereby binding both sides to their ultimate contractual objective.”)

 

Accordingly, as the Court explained after a careful survey of the evidence in Menlo II:

 

Taking all of this material together, Defendant’s theory is essentially that the picture the evidence paints—of a $950,000 loan, not a contribution—is actually the result of a complex set of coincidences, intentional falsehoods, and miscommunications between Defendant and its own agents. This is the stuff of conjecture and speculation, not genuine factual dispute. Presented with the evidence before this Court, no reasonable juror could find in Defendant’s favor.

 

2012 WL 5927376, at * 10. The Court reaffirms that conclusion and thus rejects Defendant’s third argument for reconsideration, which boils down to little more than an assertion that the Court improperly assessed the evidence in support of summary judgment. Indeed, given that Defendant presented virtually no affirmative evidence for its position, but instead relied only on arguments presented by counsel, the case for summary judgment is particularly strong.

 

II. Motion to Amend the Judgment

Plaintiff has moved for an amendment to the judgment, which did not specify damages and did not address the matter of prejudgment interest calculations. As damages for the claims on which the Court granted summary judgment, Plaintiff is entitled to $950,000.

 

Plaintiff is also entitled to prejudgment interest, an award governed by the applicable state law. See New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599, 602–03 (2d Cir.2003) (“With regard to preverdict interest determinations … New York law does not permit the trial court to exercise any discretion where a party is entitled to such interest as a matter of right…. New York law provides that a ‘prevailing party’ is entitled to preverdict interest as a matter of right on most types of claims, including contract claims.” (citations omitted)); see also Cappiello v. ICD Publications, 868 F.Supp.2d 55, 59–60 (E.D .N.Y.2012) (“The Second Circuit has expressly held that where, as here, the court’s jurisdiction is premised on diversity, an award of prejudgment interest is governed by state law, whereas an award of post judgment interest is governed by ‘the federal post judgment interest rate provided for in 28 U.S.C. § 1961.’ ”) (quoting FCS Advisors, Inc. v. Fair Fin. Co., Inc., 605 F.3d 144, 147 (2d Cir.2010)). New York law provides that “[i]nterest shall be recovered upon a sum awarded because of a breach of performance of a contract….” N.Y. C.P.L.R. § 5001(a) (McKinney 2007). “Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred.” Id . at § 5001(b). This interest “shall be at the rate of nine per centum per annum, except where otherwise provided by statute.” N.Y. C.P.L.R. § 5004 (McKinney).

 

*4 Plaintiff argues that this award of interest should run from April 19, 2010 to November 21, 2012. On April 19, 2010, Plaintiff transferred to Defendant the $950,000 at the heart of this case. Defendant owed Menlo repayment by June 5, 2010. When Defendant failed to repay those funds on June 5, 2010, Defendant breached the oral contract. June 5, 2010 is thus the “earliest ascertainable date the cause of action existed” and the date that marks accrual of interest. Thus, Plaintiff is entitled to $950,000, plus interest from June 5, 2010 to November 21, 2012.

 

III. Conclusion

For the foregoing reasons, Defendant’s motion for reconsideration is DENIED and Plaintiff’s motion to amend the judgment is GRANTED. The Clerk of Court is directed to enter judgment in favor of Plaintiff in the amount of $950,000 in damages, plus interest at a rate of 9% from June 5, 2010 to November 21, 2012.

 

The Clerk of Court is directed to close the motions at Dkt. Nos. 63 and 67.

Court of Appeals of Kentucky.

Kim CARROLL, Appellant

v.

Reuben J. WRIGHT; Matthew Keeton d/b/a Matthew Keeton Trucking; and Anthem Health Plans of Kentucky, Inc., Appellees.

 

No. 2012–CA–000787–MR.

April 5, 2013.

 

Appeal from Elliott Circuit Court, Action No. 06–CI–00027; Rebecca K. Phillips, Judge.

William H. Wilhoit, Grayson, KY, for Appellant.

 

John G. McNeill, Elizabeth Deener, Lexington, KY, for Appellees Reuben J. Wright and Matthew Keeton d/b/a Matthew Keeton Trucking.

 

Before ACREE, Chief Judge; COMBS and STUMBO, Judges.

 

OPINION

STUMBO, Judge.

*1 Kim Carroll appeals from a Judgment of the Elliott Circuit Court reflecting a jury verdict in favor of Reuben J. Wright, Matthew Keeton d/b/a Matthew Keeton Trucking in Carroll’s action alleging negligence resulting in a motor vehicle accident. Carroll contends that the trial court improperly failed to render a Directed Verdict in her favor, erred in failing to instruct the jury of the specific duty to drive in the right lane, and erred in allowing the Appellees to argue their driver faced an “unforeseeable situation” and did “the best he could” under the situation. For the reasons stated below, we reverse the Trial Verdict and Judgment, and remand the matter to the Elliott Circuit Court on the issue of damages.

 

Reuben J. Wright was an employee of Keeton Trucking. On the afternoon of September 27, 2005, Carroll was driving north on a two-lane roadway in Elliott County. Wright, who was driving a tractor-trailer owned by Keeton Trucking, was heading south. Wright approached a curve to the right, past which was an intersection. At the intersection, which apparently could not be seen before the curve, one southbound vehicle was stopped as the driver was waiting to turn left. A second driver in another vehicle had stopped behind that vehicle. When Wright rounded the curve and saw the two vehicles stopped at the intersection, he slammed on his brakes and steered to the right to avoid hitting the stopped vehicles. The brakes on Wright’s vehicle locked, leaving one hundred feet of skid marks. Although he avoided a collision with the vehicles in the southbound lane, his trailer swung into the northbound lane where it struck Carroll’s northbound vehicle. Carroll sustained serious injuries to her legs in the accident.

 

Carroll filed the instant action against Wright and Keeton Trucking alleging the negligent maintenance and operation of the truck proximately caused the accident and resultant injuries. A jury trial was conducted on December 4, 2007, at the conclusion of which the jury was instructed on the “sudden emergency doctrine”.FN1 The jury then returned a verdict in favor of Wright and Keeton Trucking.

 

Carroll appealed to a panel of this Court, where she argued that the sudden emergency doctrine was not applicable to the facts.FN2 Wright and Keeton Trucking (hereinafter referred to collectively as “Wright”) argued that the issue was not preserved because, although Carroll moved for a directed verdict, she failed to make any post-verdict motions to set aside the verdict, for a new trial or for a judgment notwithstanding the verdict.

 

In an Opinion rendered on February 20, 2009, a panel of this Court concluded that 1) Carroll was not entitled to a Directed Verdict, and 2) the trial court’s application of the sudden emergency doctrine was improper because the purported sudden emergency herein, i.e., cars stopped at an intersection, was not an emergency which Wright could not have anticipated. The Judgment was reversed and the matter remanded.

 

*2 A second trial was conducted beginning on October 18, 2011, where Wright argued that the accident was created by an unforeseen circumstance during which he did the best he could to avoid striking the vehicles stopped at the intersection. At the conclusion of the trial, the court denied Carroll’s request for an instruction that Wright had a duty to drive in the right lane. The jury returned a verdict in favor of Wright upon concluding that he did not fail to comply with the duty to keep his tractor-trailer under reasonable control, operate it at a reasonable speed not exceeding 55 miles per hour, keep a lookout ahead, obey traffic control devices and exercise ordinary care to avoid a collision. This appeal followed.

 

Carroll first argues that the trial court erred in failing to sustain her Motion for a Directed Verdict. She notes that it is undisputed that Wright was operating the tractor-trailer and that it crossed the center line, proximately resulting in her injuries. She directs our attention to a wealth of case law holding that a motorist’s presence on the wrong side of the road at the time of a collision constitutes prima facie evidence of negligence, see e.g., Mulberry v. Howard, 457 S.W.2d 827, 829 (Ky.1970), and that court’s have “no hesitancy” directing a verdict in favor of the plaintiff under these circumstances. Davis v. Kunkle, 302 Ky. 258, 194 S.W.2d 513 (1946). The focus of her argument on this issue is that Wright had statutory and common law duties to operate the tractor-trailer in his lane and in a prudent and safe manner, that the uncontradicted evidence—including Wright’s own testimony—was that he lost control of the trailer and slid into oncoming traffic, and that she was entitled to a directed verdict as to liability. In response, Wright maintains that “no evidence was presented that the tractor-trailer was steered to the left and into Appellant’s line of travel” (emphasis added) and that when all reasonable inferences are drawn from the evidence in his favor, the trial court properly overruled Carroll’s motion for a directed verdict.

 

In adjudicating the first appeal in this matter, the prior panel of this Court determined that Carroll was not entitled to a directed verdict upon concluding that the question of whether Wright was negligent in causing the accident was a jury question. This ruling would usually be considered “the law of the case”, but not in this instance. “The law of the case doctrine is ‘an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been.’ “ Brooks v. Lexington–Fayette Urban County Housing Authority, 244 S.W.3d 747, 751 (Ky.App.2007), quoting Union Light, Heat & Power Co. v. Blackwell’s Adm’r, 291 S.W.2d 539, 542 (Ky.1956).

 

The law of the case doctrine applies to a particular and unique nexus of facts and law. Inman v. Inman, 648 S.W.2d 847 (Ky.1982). Inman held that, “if, on a retrial after remand, there was no change in the issues or evidence, on a new appeal the questions are limited to whether the trial court properly construed and applied … [the law].” Id. at 849. The corollary to this holding is that a change in the evidence on retrial does not implicate the law of the case doctrine in subsequent appeals. That is to say, when either “the issues or evidence” are different on retrial, a subsequent appellate tribunal is not constrained by the law of the case doctrine. Id. See also, Louisville N.R. Co. v. Cecil, 155 Ky. 170, 159 S.W. 689 (1913).

 

*3 In the first trial, Wright testified as to whether the brakes on the tractor-trailer were functioning properly, whether they needed adjustment and if so, how often, and other matters related to the vehicles braking system. He did not testify that he lost control of the tractor-trailer or caused the accident. In the second trial, however, Wright acknowledged that he had a duty to keep control of his vehicle and operate it in a safe manner, that he lost control of the trailer, that the trailer slid into oncoming traffic causing the accident, and that there was nothing Carroll could have done to avoid the accident. Because additional testimony was adduced at the second trial, and as that testimony was directly relevant to causation and liability, we are not constrained by the law of the case doctrine in this circumstance.FN3

 

Carroll points us to Paducah Area Public Library v. Terry, 655 S.W.2d 19 (Ky.App.1983), wherein a “bookmobile” successfully avoided a car stopped in the roadway by swerving off the road. However, after returning to the pavement, the vehicle crossed the center line causing a collision and resultant personal injury. The Kentucky Supreme Court stated therein that,

 

We find no error in directing a verdict on the question of liability. When a vehicle is struck in its own traffic lane, the vehicle in the wrong or improper lane is presumptively at fault. There are situations where one’s presence in the wrong lane can be excused as a matter of law but they are rare, indeed. There are also situations where one’s negligence in being in the wrong lane may be weighed by the jury under a “sudden emergency” instruction, but this succor to a defendant does not exist where his presence in the wrong lane is brought about by his own negligence, or where the situation causing his departure from the correct lane could reasonably have been anticipated.

 

Paducah Area Public Library, 655 S.W.2d at 22.

 

A motorist’s presence on the wrong side of the road at the time of a collision constitutes prima facie evidence of negligence. Mulberry, supra. Applying this principle to the facts before us, including the holding of Paducah Area Public Library that a vehicle in the wrong lane at the time of an accident is presumptively at fault, we must conclude that the presence of Wright’s vehicle in the wrong lane at the time of the accident demonstrates his presumptive fault. Uncontroverted testimonial and documentary evidence—notably including Wright’s direct testimony—demonstrates that he was driving in a manner which precluded his ability to safely brake; that he lost control of the trailer; that the trailer slid into the wrong lane; that Carroll was not at fault and could have done nothing to avoid the accident; FN4 and that the trailer’s presence in the wrong lane caused the accident. Additionally, Carroll, her husband and an expert witness each testified that Carroll received serious injuries in the accident, and this testimony was unrebutted.

 

*4 While testifying, Wright also acknowledged various duties shared by all drivers, including his duty to remain in control of his vehicle and the duty to stay in his lane. In addition, Wright had a specific statutory duty to stay in his lane—except to safely pass a vehicle—wherein the Legislature employed mandatory “shall” language. KRS 189.300(1) states that, “[t]he operator of any vehicle when upon a highway shall travel upon the right side of the highway[.]”

 

When presented with a motion for directed verdict, “the trial court must ‘draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and a verdict should not be directed unless the evidence is insufficient to sustain the verdict.’ “ Kroger Co. v. Willgruber, 920 S.W.2d 61, 64 (Ky.1996) (quoting Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky.1974)). We will review a trial court’s refusal to direct a verdict under a clear error standard. Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d 256 (Ky.App.2007). The question of whether to direct a verdict rests on a determination of whether the jury’s verdict can be supported with all evidence construed in favor of the prevailing party. Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461 (Ky.1990). An appellate court may reverse the denial of a directed verdict if it determines, after reviewing the evidence in favor of the prevailing party, that the verdict is “ ‘palpably or flagrantly’ against the evidence so as to ‘indicate that it was reached as a result of passion or prejudice.’ “ Id. at 461–62, quoting Nat’l Collegiate Athletic Ass’n v. Hornung, 754 S.W.2d 855, 860 (Ky.1988).

 

Given the uncontroverted testimony that Wright lost control of his trailer, that it slid into oncoming traffic causing an accident and the resultant injuries, and that in so doing he violated statutory and common law duties to stay in his lane and safely operate his vehicle, we must conclude that Carroll was entitled to a directed verdict and that the Elliott Circuit Court erred in failing to so rule.

 

For the foregoing reasons, we reverse the Judgment of the Elliott Circuit Court and remand the matter for retrial as to damages.

 

ALL CONCUR.

 

FN1. In Carroll’s first appeal, the panel of this Court noted that the Kentucky Supreme Court revived the doctrine of sudden emergency in Regenstreif v. Phelps, 142 S.W.3d 1 (Ky.2004), which it defined as follows:

 

The common-law doctrine of “sudden emergency” attempts to explain to a jury how to judge the allegedly negligent conduct of a person, plaintiff or defendant, who is suddenly confronted with an emergency situation that allows no time for deliberation. The sudden emergency doctrine does not excuse fault; it defines the conduct to be expected of a prudent person in an emergency situation. In Harris v. Thompson [497 S.W.2d 422 (Ky.1973) ], our predecessor court noted the purpose for including the sudden emergency qualification in instructions:

 

[W]hen a defendant is confronted with a condition he has had no reason to anticipate and has not brought on by his own fault, but which alters the duties he would otherwise have been bound to observe, then the effect of that circumstance upon these duties must be covered by the instructions.

 

Regenstreif, 142 S.W.3d at 4 (emphasis in original) (citations omitted).

 

FN2. Carroll v. Wright, 2009 WL 414064 (Ky.App.2009).

 

FN3. It also merits noting that even if the issues or evidence did not change when the matter was retried, a subsequent appellate tribunal is not constrained by the law of the case doctrine in circumstances where applying the doctrine would result in manifest injustice or would sustain palpable error. Union Light, Heat & Power Co. v. Blackwell’s Adm’r, 291 S.W.2d 539 (Ky.1956). See also Justice Stephenson’s dissent in Inman, supra, at 852 wherein he quoted Union Light in opining that “[i]n such a case it is deemed to be the duty of the court to admit its error rather than to sanction an unjust result and ‘deny to [the] litigants or ourselves the right and duty of correcting an error merely because of what we may be later convinced was merely ipse dixit in a prior ruling in the same case.’ “

 

FN4. The circuit court granted a directed verdict in favor of Carroll on the question of her comparative negligence.