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Colston v. Regency Nursing, LLC

United States District Court, W.D. Kentucky, Louisville Division

June 7, 2017

JANICE COLSTON, Executrix of the Estate of Tommie Haugabook PLAINTIFF


          Greg N. Stivers, Judge.

         This 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.

         I. BACKGROUND

         This is 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)).[1] Colston also asserts separate claims against Regency for alleged violations of KRS 216.515. (Compl. ¶¶ 29-33).

         Regency 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.


         This 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.


         Fed. R. 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).


         Regency 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.[2]

         A. Negligence Per Se Claims

         Kentucky 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).

         1. Federal ...

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