United States District Court, W.D. Kentucky, Louisville Division
JANICE COLSTON, Executrix of the Estate of Tommie Haugabook PLAINTIFF
REGENCY NURSING, LLC DEFENDANT
MEMORANDUM OPINION & ORDER
N. Stivers, Judge.
matter is before the Court upon Defendant's Motion for
Partial Judgment on the Pleadings (DN 16). For the reasons
discussed below, the motion is GRANTED IN
PART and DENIED IN PART.
a wrongful death and survival action. Plaintiff Janice
Colston (“Colston”), as executrix of the estate
of Tommie Haugabook (“Haugabook”), filed suit
against Defendant Regency Nursing, LLC
(“Regency”) in Jefferson Circuit Court alleging
that Regency failed to provide adequate care to Haugabook
while she resided at a facility operated by Regency,
resulting in her injury and death. (Notice of Removal, Ex. A,
at 2, DN 1-2 [hereinafter Compl.]). In addition to
traditional negligence claims, Colston alleges that
Regency's conduct amounts to negligence per se.
Specifically, Colston alleges:
Violation(s) of KRS 209.006 et seq. and the regulations
promulgated thereunder, by abuse, neglect, and/or
exploitation of Tommie Haugabook.
Violation(s) of the statutory standards and requirements
governing licensing and operation of long-term care
facilities as set forth by the Cabinet for Health and Family
Services pursuant to provisions of KRS Chapter 216 and the
regulations promulgated thereunder, as well as the applicable
federal laws and regulations governing the certification of
long-term care facilities under Titles XVIII or XIX of the
Social Security Act.
(Compl. ¶ 19(a), (e)). Colston also asserts separate
claims against Regency for alleged violations of KRS 216.515.
(Compl. ¶¶ 29-33).
removed the action to this Court under 28 U.S.C. §
1441(a). (Notice of Removal 2, DN 1). Subsequently, Regency
filed the present motion, to which Colston failed to respond.
This matter stands ripe for adjudication.
Court has jurisdiction under 28 U.S.C. § 1332(a)(1)
because there is diversity of citizenship between the parties
and the amount in controversy exceeds $75, 000, exclusive of
interest and costs.
STANDARD OF REVIEW
Civ. P. 12(c) provides that “[a]fter the pleadings are
closed-but early enough not to delay trial-a party may move
for judgment on the pleadings.” Fed.R.Civ.P. 12(c).
“The Court analyzes a Rule 12(c) motion for judgment on
the pleadings under the same standard as a Rule 12(b)(6)
motion.” Paulin v. Kroger Ltd. P'ship I,
No. 3:14CV-669-DJH, 2015 WL 1298583, at *3 (W.D. Ky. Mar. 23,
2015) (citing Fritz v. Charter Twp. of Comstock, 592
F.3d 718, 722 (6th Cir. 2010)). Thus, to survive a Rule 12(c)
motion, a complaint must establish “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). When
ruling on a Rule 12(c) motion, a court “must view the
complaint in the light most favorable to the nonmoving party,
accepting as true all well-pleaded factual allegations and
drawing all reasonable inferences in the nonmoving
party's favor.” Paulin, 2015 WL 1298583,
at *3 (citing Commercial Money Ctr., Inc. v. Ill. Union
Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007)). A court
need not, however, “accept as true the nonmoving
party's legal conclusions or unwarranted factual
allegations.” Id. (citing Commercial Money
Ctr., 508 F.3d at 336). “The motion may be granted
only if the moving party is nevertheless entitled to judgment
as a matter of law.” Id. (citing
Commercial Money Ctr., 508 F.3d at 336).
argues that Colston's negligence per se claims for
alleged violations of federal statutes and regulations,
provisions of KRS Chapters 216 and 216B and their
corresponding regulations, and provisions of KRS Chapter 209
and its corresponding regulations must be dismissed because
those statutes and regulations cannot serve as a basis for
negligence per se under Kentucky law. Additionally, Regency
argues that Colston's claims against it for alleged
violations of KRS 216.515 must be dismissed because she does
not have standing to bring them. Regency's arguments are
addressed in turn.
Negligence Per Se Claims
codified the common-law doctrine of negligence per se in KRS
446.070, which provides that “[a] person injured by the
violation of any statute may recover from the offender such
damages as he sustained by reason of the violation, although
a penalty or forfeiture is imposed for such violation.”
KRS 446.070. The statute allows a plaintiff to substitute the
general standard of care attendant to a negligence claim with
a statutory standard of care, Lewis v. B & R
Corp., 56 S.W.3d 432, 438 (Ky. App. 2001), provided the
following requirements are met: (1) the statute in question
must be penal in nature or provide no inclusive civil remedy,
Hargis v. Baize, 168 S.W.3d 36, 40 (Ky. 2005); (2)
the plaintiff must be “within the class of persons the
statute is intended to protect, ” Young v.
Carran, 289 S.W.3d 586, 589 (Ky. App. 2009) (citing
Hargis, 168 S.W.3d at 40); and (3) the
plaintiff's injury must be of the type the statute was
designed to prevent. Carman v. Dunaway Timber Co.,
949 S.W.2d 569, 570 (Ky. 1997).