Nichols v. Hazelip
374 S.W.3d 333
Ky. Ct. App.2012Background
- On Aug 2, 2008, Nichols and his girlfriend Gaines golfed at the Charlie Vettner Golf Course in Louisville, Kentucky.
- A group behind them, including Gregson and Hazelip, hit a ball landing near Nichols and Gaines; Nichols warned them not to hit another ball.
- At the 17th green near the 18th tee, a physical altercation occurred; Gregson and Hazelip intervened as disputes arose.
- Gregson testified Nichols approached with intent to swing a golf club; Nichols swung at Gregson, who stumbled back and fell; Hazelip pulled Nichols off.
- Nichols and Gaines reported the incident; Nichols sued Gregson and Hazelip for assault; Gregson counterclaimed for assault; the jury found Nichols initial aggressor, Gregson won the counterclaim, and awarded $50,000 in compensatory damages and $200 in punitive damages.
- Nichols appeals, challenging the denial of a directed verdict on Gregson’s counterclaim, the excessiveness of damages, and several trial rulings; the Jefferson Circuit Court’s judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gregson’s counterclaim supported damages for mental suffering without physical injury | Gregson’s damages require physical injury or contact | Assault supports mental suffering damages without physical injury | Yes; damages were permissible under assault law |
| Whether evidence shows Gregson as initial aggressor | Evidence shows Nichols acted first | Conflicting testimony; jury resolved credibility; Nichols not initial aggressor | No reversible error; jury resolved credibility issues |
| Whether jury award for Gregson was excessive | Award inflated by other costs (attorney fees) | Award within instructed cap and supported by fear of harm | Affirmed; not clearly erroneous |
| Whether co-defendants received improper peremptory challenges | Two defendants not antagonistic; over-lengthy challenges | Trial court properly found antagonistic interests | No abuse of discretion |
| Whether excluding Nichols’ shoulder-damages was reversible error | Shoulder injury damages should have been submitted | Jury found Nichols aggressor; error harmless; no prejudice | Harmless error; affirmed |
Key Cases Cited
- Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (directed verdict standard; fair inferences from evidence for non-movant)
- Brown v. Crawford, 177 S.W.2d 1 (Ky. 1943) (mental suffering may be recovered for assault; no physical contact required in some cases)
- Banks v. Fritsch, 39 S.W.3d 474 (Ky. App. 2001) (assault requires threat of unwanted touching)
- Gibbs v. Wickersham, 133 S.W.3d 494 (Ky. App. 2004) (jury credibility resolutions on conflicting evidence)
- Burgess v. Taylor, 44 S.W.3d 806 (Ky. App. 2001) (new trial standard; passion or prejudice in damages analysis)
- Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003) (antagonistic interests for CR 47.03 peremptory challenges)
- Gersh v. Bowman, 239 S.W.3d 567 (Ky. App. 2007) (appellate review of trial court’s excessiveness determination)