Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 10, Number 4 Louisville, Kentucky, March, 1985 Circulation 5400
LEGAL AID: Cuts Reduce Services of Local Office
By Tom Ransdell
It is not news to members of the legal
community that legal aid for the poor
has been losing ground during the
Reagan Administration. Some say the
cuts in aid amount to a personal
vendetta that goes back to Reagan's
days as governor of California, when
liberal lawyers donated legal assistance
to the striking Farm Workers Union.
Others say that this trend reflects the
conservative ideal of divorcing big
government from the everyday lives of
the people. Whatever the motives, legal
assistance for the poor has suffered real
and nearly disabling setbacks.
Locally, this can perhaps best be seen
in the diminution of the Legal Aid
Society. In 1981, the year President
Reagan took office, the Legal Aid
Society had two offices and employed 75
full-time employees for this fifteen
county region of Kentucky. Four years
later, the LAS has been reduced to one
office which employs 23 full-time
lawyers and six paralegals. According to
Dennis Brickling, Executive Director of
the LAS, "Every year the number of
people needing Legal Aid is increasing,
and every year our ability to serve them
is decreasing."
In Jefferson County alone there are
between 120,000 and 160,000 people
who are economically eligible for Legal
Aid services. As Paul Porter, head of the
Volunteer Lawyer Program, describes
the situation, "Prior to the cutbacks in
1981, Legal Aid services were able to
handle between five and seven percent of
the eligible clients. Now, since the
cutbacks, they are able to handle only
between three and five percent."
One solution that is being pushed by
the national organization that has been
set up to fund Legal Service programs
across the country, the Legal Services
Corporation, is Pro Bono, or Volunteer
Lawyer programs. The LAS receives 70
percent of its budget from the national
organization, and the LSC currently
requires that twelve and one-half percent
of those funds be used for a volunteer
lawyer program.
'Legal Aid Able To Handle
Only Three to Five Percent
of Eligible Clients'
The local Volunteer Lawyer Program,
which serves the same fifteen county
region as the LAS, is still in the growing
stages. Porter said there are currently
about 120 lawyers in Jefferson County
who have volunteered for the program.
He hopes that by the end of this year
there will be close to 200 volunteer
lawyers in the program .
Lawyers in the Volunteer Lawyer
Program usually take two to four pro
bono cases a year. Last year, 350 cases
were handled through the Volunteer
Lawyer Program in Jefferson County.
Porter said the Volunteer Lawyer
Program offers backup services so that
the average pro bono case does not take
as much time as one would suspect. For
instance, the Program interviews the
client initially, and, if the lawyer wishes,
the initial pleadings will be written for
them, and in many cases the lawyer can
probably file the case without even
seeing the client.
In addition, the lawyers are asked to
fill out a questionaire when they
volunteer for the program so they can be
given cases in areas in which they have
an interest or expertise.
"Usually I ask them to handle at least
one domestic relations case because we
get so many of those," Porter said.
"The Legal Aid Society only does
spouse abuse cases, and there are a lot of
times when a woman may really need to
get a divorce even though she hasn't
been abused by her husband. For
instance, say they're separated and he
refuses to help support the children, or
she's afraid she's going to lose custody
of the children. People in that kind of
situation really need to get a divorce, but
they can't get it through the Legal Aid
Society because they haven't been
abused by their spouse."
Porter said lawyers volunteer for the
pro bono program primarily because
they "feel a sense of moral responsibility
that makes them want to help the poor
and a feeling that they want to give back
to the community something for what
they have received from the community."
" ••. Moral Responsibility to
Help the Poor."
"Many lawyers tell me that they do
pro bono work on their own, in that they
have clients who don't pay them, but
that's not what I call pro bono work,"
Porter said. "To me, pro bono work is
taking on a client who's not going to pay
you, and who you know is not ever
going to be able to pay you, and you go
ahead and take the case anyway."
Not everyone feels that the Volunteer
Lawyer Program is the best solution to
the problems facing legal aid services.
"I could serve more people with that
money if I spent it through this office,"
Bricking said. "The Volunteer Lawyer
Program is very important, and we need
to have it, and there are lawyers all over
the· city who do pro bono work on their
own, too, but pro bono work is not
(Continued on page 3)
cO'Conner Could Become Chief Justice'
Graham Says Supreme Court May Fail to Uphold Rights
By Joel D. Zakem
In looking at the current lineup of the
U.S. Supreme Court, Fred Graham,
Law Correspondent for CBS News, said
his major concern is that the Court
"may fail in its duty to uphold the rights
of the American people against the
authority of the government."
"If this happens, it would be an
unfortunate turn in our constitutional
history," he said. Graham also said
that, in his analysis, the court has been
giving great deference to the
government.
"For the last five years, the Court has
overwhelmingly ruled against criminal
defendants and in favor of the
prosecution," he said.
Graham delivered those remarks at U
of L as part of a recent speech entitled
"The Effect of President Reagan on the
Supreme Court." Graham's remarks
were sponsored by the Louisville Law
Forum as part of the Evelyn Crady
Adams Lecture Series.
In discussing the Supreme Court,
Graham said the age factor cannot be
overlooked. He pointed out that five
justices, "including the only three who
could be considered liberals," are 76
years old or older. However, Graham
said he doubts whether Reagan will be
able to remake the Court.
The three justices who are considered
the most liberal, William Brennan,
Harry Blackmun, and Thurgood
Marshall, have, according to Graham,
made it known that they "intend to try
to outlast Reagan." Justice Marshall has
gone so far as to issue a statement saying
that he "was appointed to this job for
life, and I intend to serve my full term."
Graham does see the possibility of two
vacancies on the Court within the next
four years. Justice Lewis Powell will
probably have to step down for health
reasons, according to Graham. Graham
also claimed he would not be surprised
to see Chief Justice Warren Burger retire
before the end of Reagan's term.
"I look for the Chief Justice to stay
until the Bicentennial of the
Constitution (1987)," Graham said.
"Then I think he'll step aside to allow
the Republican President to pick his
successor.''
While a new Chief Justice often comes
from outside the ranks of current
justices, Graham said he thinks Reagan
may choose Justice Sandra Day
O'Conner for the post.
"It's hard for any President to resist
doing something for the first time," said
Graham. "And I think Chief Justice
Burger would be very pleased if Justice
O'Conner were chosen to succeed him."
Even if there are wholesale changes on
the high court, Graham said he thinks
Right-To-Life groups are overly
optimistic when they say that, with two
votes, they can overturn Roe v. Wade,
the 1973 decision legalizing abortion.
"The Supreme Court would be very
unlikely to overturn a decision of that
(Continued on page 5)
CBS News Law Correspondent Fred Graham came to U of L recently to
discuss the Supreme Court.
1 Louisville Law Examiner, March, 1985
Louisville Law Examiner
EDITORIAL BOARD
John Schaaf
Editor-in-Chief
Nancy Morgan
Photography Editor
Jon Hardy
Mike Schafer
Rebecca Ward
Joel Zakem
Associate Editors
Peggy Weiner Dyer
Benjamin Johnson
STAFF
Crystal Collins
Managing Editor
Tim Cocanougher
Brandeis Brief Editor
Winnie McConnell
Night Associate Editor
Tom Lukins
Jennifer Miller
Doug Neagli
Tom Ransdell
David E. Williams
Professor LAURENCE W. KNOWLES, Consultant
The Louisville Law Examiner is published six times during the academic
year in the .interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40292.
Phone: 502-588-6398.
COMING UP
The Southern Regional Convention of the National Black Law Student Association will be
hosted by the University of Louisville Chapter from March 6 through 10 at the Hyatt Regency
Hotel. During the convention, the final rounds of the frederick Dougl- Moot-c-ourt Competition­will
be held in U of L's Allen Courtroom at 6 p.m. on Friday, March 8 and Dr. Mary Frances
Berry, a member of the U.S. Commission on avil Rights, will speak at the Awards Banquet at 6
p.m. on Saturday, March 9.
Throughout the convention, workshops will be conducted at the Hyatt Regency. Among the
workshop topics are: 'Equal Employment Case Meditation', 'Black View From the Bench', and
'Land Retention and Voting Rights'.
Further detaib on the convention are available by calling Kent D. Lollis at the U of L School of
Law (SII-6362).
U of L Hosts Mock Trial;
Akron Takes Top Honors
The University of Louisville Law
School recently sponsored the Regional
Mock Trial Competition at the Jefferson
County Hall of Justice. Law students
from Kentucky, Michigan and Ohio
participated in the competition. The two
winning teams, which will continue on
to compete at the national competition
in Houston, were both from Akron Law
School.
The law students representing the U of
L Law School were Rodney Burress,
Sherry Feldpausch, David Fernandez,
Ronda Hartlage, Molly Jones and
Terrence Yenson. Although none of U
of L's participants made it to the final
rounds, Burress, Feldpausch and
Y enson had a chance at the finals until
the third round when they lost by a split
decision.
when they lost by a split decision.
The U of L Law School received
excellent support from the local bench
and bar which provided 108 judges for
the three-day competition. The judges
for the final rounds were Jefferson
Circuit Judges Joe Leibson, George
Ryan, John Potter and Edmund "Pete"
Karem, and attorneys Frank Mascagnia
III, and Jeff Morris.
Professor James Ragan said that
without the cooperation of the U of L
Law School and the Moot Court Board
in providing witnesses and bailiffs, the
MoclrTrial Competition woutctnot have
been such a success. Normally, a school
has one year in which to prepare to
sponsor the competition. This year,
Ragan and Professor Russ Weaver
received notice only three and one-half
months ago. The U of L Medical School
also helped out by providing more than
20 first and second year students to play
the part of the medical examiner. Many
of the participants said the witnesses,
especially the medical students, were
excellent expert witnesses and were well­prepared.
Ragan said two individuals who
deserve special recognition are Louisville
attorney Chuck King and Columbus
attorney Mark Stanziano. Both men
participated in the Mock Trial
Competition when they were students at
the U of L Law School. Ragan said they
were extremely helpful because they
acted either as witnesses or judges in
four out of the five rounds.
According to Ragan, the members of
the Moot Court Board also gave
valuable assistance by participating as
witnesses in almost every round. T. Clay
Mason, Greg Staples, Julie Gregory, Pat
Glass and Louis Waterman were
prepared to handle the part of any of the
four witnesses. Fifteen members of the
freshman class were briefed on the
autopsy report by students Mary Burns
and John Coon, in case they were called
to be expert medical witnesses. There
was a total of 160 witnesses during the
weekend competition.
Most of the participants said they
gained valuable experience by taking
part in the competition.
"Participating in the Mock Trial
enabled me to obtain an insight into how
the trial process actually works," said
Sherry Feldpausch. "I would encourage
all law students interested in litigation to
participate." ·
'A Sound Labor Policy Demands More'
Labor Seminar Leans Toward Management
By Jon Hardy
The Louisville Bar Foundation
recently conducted a seminar on Labor­Management
Relations. The program
was designed to cover such diverse topics
as recent trends of the National Labor
Relations Board (NLRB), Title VII,
trends of the National Labor Relations
Board (NLRB), Title VII, pre-hire
agreements, common situs picketing,
strikes and replacements, effects of
busines& mergers and closings, and fair
representation.
The first featured speaker, Edward
Verst of Region 9 of the NLRB,
examined the recent decisions of the
courts and of the NLRB. Among the key
decisions of the Board which Verst
discussed were: Otis Elevator (no duty to
bargain over decision to relocate part of
operations, but must bargain over the
effects of the decision); Olin Corp.
(greater deference to grievance/
arbitration process, but likely to strain
union budgets); United Technologies
Corp. (extending deferral to more types
of cases); and Dresser Industries, .Inc.
(duty to bargain while representation
petitions pending).
Commentary
Supreme Court highlights which Verst
explored included: NLRB v.
Transportation Management Corp.
(violates Act to impose more severe
discipline on union officials for
unlawful work stoppage); and NLRB v.
Bildisco (agreement can be voided in
bankruptcy proceeding).
Dorothy M. Pitt of Greenebaum Doll
and McDonald presented cases dealing
with burdens of proof and statutes of
limitation in the many areas of
employment litigation. Seminar
participants also heard James U. Smith
III of Smith and Smith discuss
numerous issues involving pre-hire
agreements and common situs picketing,
while Andrew J. Russell covered labor
law implications of plant closings and
successor employees, noting especially
the Reagan Board's new directions in
Milwaukee Spring II and Otis Elevator
II.
During a discussion on strikes,
picketing and replacements, seminar
participants were treated to a videotaped
example of the meaning of unprotected
"strike misconduct." A long-time
employee was discharged for throwing
several firecrackers into a fire barrel, an
act which caused no visible reaction
from bystanders. Surprisingly, the
decision upholding his discharge was
neither explained nor questioned at the
seminar.
The only union attorney speaking at
the seminar was Raymond L. Sales of
Segal Isenberg Sales and Stewart, who
outlined the problems and burdens
involved with the duty. of fair
representation.
The pro-labor viewpoint was very
lightly represented at the seminar,
causing an otherwise worthwhile session
to occasionally take on an uncritical and
unobjective flavor. At times, there
seemed to be a lack of sensitivity to the
harsh effect that some recent NLRB
decisions could nave on workers and the
possible impact of such decisions on the
continuing labor-management
relationship which is frequently stressed
in law school labor law classes, such as
those taught by Professor Carl Warns.
In view of the NLRB's recent drastic
reversals, it is questionable whether the
Board will continue to provide the
protection necessary to carry out the
goals it has developed over the past 50
years. Law school students interested in
- t-he labor law field should certainly hope
that members of the local Bar would see
their role as something more than merely
helping clients evade the requirements of
existing labor law. In the long run, it is
fundamental that a sound labor
'relations policy demands more. If t hesc
coricerns are not in the forefront,
perhaps such conferences should be
renamed "Management's Seminar on
New Labor Law Loopholes." .
In fairness, it should be noted that the
presentations at the seminar were
scholarly and helpful. The seminar was
another program in the Foundation's
growing Continuing Legal Education
series. Further information on
upcoming seminars can be obtained
from Kathy Marshall at the Louisville
Bar Foundation office (583-5314).
Louisville Law Examiner, March, 1985 3
NIGHT and DAY
Volunteers Will Monitor Cases of Abused Children
By Winnie McConnell
Every child has a right to live in a safe
and peaceful family atmosphere, but
this ideal situation does not always
occur. Over the last four years in
Kentucky, the number of reported cases
of abused and neglected children has
skyrocketed from 5,000 to 20,000 per
year. On top of this, the number of
social workers has declined.
This has resulted in the court system
being overloaded with children who are
receiving less than adequate home care.
Since the foster care system is also
overcrowded, adequate alternative home
care becomes a concern.
District Judge Tom McDonald, who
has been serving as a juvenile court
judge since May 1984, is taking an
activist role to improve the state's child
welfare system.
"Courts have an ongoing
responsibility to make certain children
are receiving the best possible care,"
said McDonald. "Abused, neglected
and dependent children are special and
need special attention."
McDonald, who hears about 200 child
abuse cases each week in district court,
said he gives children an opportunity to
talk with him about their problems.
"I usually talk with them in my office,
since it's a more comfortable
atmosphere than in a courtroom," he
said. "This lets children know they have
a right to voice their opinions. After all,
we're dealing with children's lives and
they have a right to say what they want
in their futures."
the best possible care while they are
wards of the state involves the beginning
of a new program entitled "Court
Appointed Special . Advocates" or
"CASA." McDonald, along with
District Judge Richard Fitzgerald, has
initiated the program with the help of
the National Council of Jewish Women
and the Jefferson County Child Abuse
Authority.
CASA will recruit and train
volunteers to monitor the cases of
abused and neglected children.
McDonald said the volunteers will
follow the cases from the court
proceedings through placement with
county or state agencies and placement
in foster homes.
"This will be another check in the
system to make sure children won't fall
through the cracks," he said. "CASA
will make foster parents, the state
welfare system and the judge more
accountable for ensuring children better
care."
In addition, McDonald said CASA
volunteers will have the authority to
come into court and report cases of
inadequate child care. "We hope that
CASA will spot the problem before it
damages the child," he said.
McDonald said the operations of
CASA will get underway by the first of
April. The program has received grant
funding and will be housed in the
Jefferson County Hall of Justice near
juvenile court.
"CASA is a nationwide program in
response to this overwhelming
problem," said McDonald. "Other
states which have initiated CASA have
reported that the amount of time
children spend in foster care has been
reduced by as much as one-third."
McDonald's concern over abused and
neglected children doesn't stop here. He
is also a member of the Board of
Directors for the Spouse Abuse Center
and the Jefferson County Child Abuse
Authority.
McDonald's most recent efforts to
provide abused and neglected children District Judge Tom McDonald.
McDonald, formerly a prosecutor
with the Jefferson County Attorney's
Office, was the youngest judge in
Kentucky when he was elected in
November 1983, and he plans to seek re­election
this November. McDonald is a
1980 graduate of the University of
Louisville School of Law.
Letter to the Editor:
Letter Writer Criticizes
''Sexual Stereotyping''
To the Editor:
After reading Sheryl Kramer Smith's
letter in your November edition, I felt
compelled to respond. That letter
suggested that the scheduling of bar
courses at 8 a.m. works to discriminate
aginst women who must care for their
small children in the morning hours. To
quote from Smith's letter: "The
dogmatic attitude of the administration
is effecti>vely discriminating against
women whose child care needs must take
precedence over class schedule."
With all respect, I suggest that there is
no sexual discrimination involved in this
matter. The discrimination argument is
onli effective if we accept the
discriminatory premise that mothers,
and not fathers, are solely capable of
caring for their children. This is
precisely the type of stereotyped
thinking that feminists have worked so
hard to overcome, and such thinking is
largely the reason why fathers have such
a difficult time in obtaining custody over
their children. I find it astonishing to
suggest, as Smith does, that "[T]he
burden of juggling children still
unfortunately falls to the women in most
cases." Such a statement summarily
refutes the notion that many fathers are
efficient parents who are capable of
caring for their children.
Perhaps it would be more accurate to
say that scheduling early-morning
classes discriminates against all parents
of young children. In any case, I
applaud recent progress which indicates
that sexual stereotyping is being rejected
by more and more people in today's
society. We must recognize, however,
that stereotyping of either sex is
unacceptable.
Matthew H. Jones
1134 Centralia Ct.
Jeffersonville, IN 47130
Local Attorneys Say
Legal Services Cuts
Leave Poor in the Cold
(Continued from page 1)
going to solve all of the problems of a
meagerly funded legal aid system."
Indeed, the immediate future of legal
services for the poor does not appear to
be bright. Two possible additional
sources of funds are lOL T A, if it is
adopted in Kentucky, and the Louisville
Bar Foundation's Endowment Trust
Fund.
However, Jane Hopson, Executive
Director of the Louisville Bar
Foundation, cautioned that legal aid
services would not be the only programs
competing for those funds. She said the
Louisville Bar Foundation is looking at
a variety of public services that could be
supported with interest from the
Endowment Trust Fund, including the
judicial evaluation program, law-related
education for the public, and continuing
legal education.
"Everybody hopes for a pot of gold at
the end of the rainbow, and it isn't going
to be there," Hopson said.
Reduced legal services assistance is
causing serious problems for the
nation's low income citizens, according
to Bricking.
"What we're coming to is a system
where people are losing their homes or
being evicted from them, or are losing
their social security or their welfare
payments, and are being denied access to
the courts and to the legal system to
defend themselves," Bricking said.
''The average needy person needs access
to the courts more than the average
middle class person or more than
the average corporation. The needy
person's legal problems are actually
worse, because if he loses his welfare
payments or loses his horne, he's lost
everything he has."
4 Louisville Law Examiner, March, 1985
Brandeis Brief
Comparative Negligence ... Supreme Court Had til
By Ronald W. Eades
Ronald W. Eades has been a professor
of law at the University of Louisville
since 1977. He holds a J.D. from
Memphis State University, and an
L.L.M. from Harvard Law School.
Professor Eades teaches Torts, Products
Liability, and Evidence. He has
published books on Wrongful Death,
Products Liability, and a Legal
Guidebook for Athletes.
One of the most highly discussed
topics of recent note in the
Commonwealth is the doctrine of
comparative negligence. This· topic is, of
course, made of utmost importance by
the recent decision in the case of Hilen v.
Hays'. The discussion concerning the
case ranges widely because of the great
impact this decision will have on the
practice of tort law. The practicing bar is
rightly concerned in wanting to know
how this case will affect cases that they
must try, and what will happen to the
vast number of minor issues that must
ru>w be confronted in light of the change
in the law. Those questions will, of
course, be worked out in the future
cases. There · is, however, another
question. It is a question that has been
spoken frequently whenever Hi len v.
Hays has been discussed and, in fact, is
raised by the dissent in the case itself.
The question is, of course, can the Court
do what it did?
The basic premise of the question
must first be outlined. Kentucky tort law
had a doctrine of contributory
negligence for almost 100 years. During
part of that time, the General Assembly
considered comparative negligence
statutes but never adopted them.
Considering these facts, can the Court
make this major change in the law of
torts without waiting for legislative
action?
One is tempted to provide a quick,
simple answer to this question. Of
course the Court can change the law, it
changed it didn't it? For those who
believe that the power to act also gives
the authority to act, that answer will be
sufficient. Further consideration of the
question, however, can be quite useful.
When the history and tradition of the
common law courts are considered,
additional explanations begin to appear.
"The question is ...
can the Court
do what it did?"
Not only did the Court have the power
to change the law, it was, in fact, a
legitimate exercise of the traditional role
of the common law courts to do
precisely what the Kentucky Supreme
Court did in the caes of Hilen v. Hays.
Prior to the 1700's, it was assumed
that the common law was a unitary
system that existed apart, in and of
itself, and that judges merely found the
law. 2 They did not make law, they
merely discovered the true meaning of
the law. During the late 1700's,
however, this idea disappeared. It
became recognized that judges do make
law; they do not merely find it in some
Professor Ronald W. Eades
omnipresent natural scheme. By the
1800's, it was recognized that judicial
decisions were acts of will, not acts of
discovery. For over 100 years, therefore,
it has been recognized that judges can
make law. It is obvious, for example,
that much of the pressure for
codification of the law has been a result
of those who fear judical law making.
Studies in legal history reflect that
pressures for codes and statutes are
frequently the result of a distrust of
arbitrary judicial decisions. Our system,
of course, is a mix. The legislature
passes statutes while the courts balance
the system with judicial decisions.
Whether one believes the mix is good or
bad, even or unbalanced, is probably a
result of whether one likes or dislikes the
last statute passed, or the last judicial
decision. Codifiers and their codes seem
to have the most success in passing
statutes where the need for uniformity
and the need to set rules for future
decisions are most important. Criminal
law needs clear guidelines for crimes,
and the idea of common law crimes is
not favored. Banks need clear, concise
rules to dispatch their business in an
orderly manner, and the Uniform
Commercial Code solves that problem.
Tort law, however, has been viewed as
an area best served by decisions on a
case by case basis. People, for example,
do not plan how carefully they will drive
their auto by reference to some rule of
Proximate Cause. They drive their auto
and worry about the standard after an
accident. The common law system of
court decisions and law making on a
case by case basis, therefore, seems to
prevail in tort law.
In the 1800's, the dramatic use of the
common law courts, acting as makers of
law, was seen in the creation of the
doctrine of negligence. The theory
during the beginning of the 1800's, was a
theory of compensation. When an injury
occurred, the person who was the cause
of the injury would pay compensation
for that injury. No showing of fault was
required. This was, of course, occurring
at just the point that one of the greatest
periods of economic and industrial
growth was about to begin. With the
industrial revolution, railroad and steam
power rather than stream power was
starting. A boost to this economic
growth was to be the indirect but clear
subsidy of allowing recovery only on the
showing of fault. Chief Justice Shaw of
the Massachusetts court in the
mid-1800's is usually credited with the
landmark decision and clearly setting the
stage for negligence.' At the same time,
defenses began to creep into the law of
negligence to continue to aid economic
growth by reducing or preventing
recovery. These defenses were
assumption of risk, fellow servant rule,
and contributory negligence. The
creators of these doctrines were not
finding some natural law in existence
since the beginning of time, but
changing the law to meet the perceived
needs of their day. Occasionally, the
judges even admitted that was what they
were doing:
"The onward spirit of the age must,
to a reasonable extent, have its way.
The law is made for the times, and will
be made or modified by them. The ex­panded
and still expanding genuis of
the common law should adapt it here,
as elsewhere, to the improved and im­proving
condition of our country and
our countrymen. " 4
When a common law court, therefore,
adapts or changes the law according to
changes in the times, it is merely doing
what common law courts have done,
and admitted they were doing, for well
over 100 years.
Just as the common law courts created
the doctrines of negligence, as pointed
out above, they also created
contributory negligence. An English
case of Butterfield v. Forrester' is
usually credited with creating the
doctrine of contributory negligence.
This is interesting in light of the fact that
it was decided in 1809, a time when
liability without fault was the rule. Some
commentators now believe the case was
nothing more than a causation case. It
may have been a finding that the
defendant did not cause the injury but,
in fact, the sole cause of the injury was
the plaintiff. It was, however, viewed as
creating a doctrine that barred recovery
when the plaintiff was negligent. There
was no need to balance the negligence to
make each responsible for the portion of
the injury he caused.
The doctrine of assumption of risk
was also adopted. It differed from
contributory negligence, but was
frequently confused with it. Where
contributory negligence was a failure to
use reasonable care for one's own
safety, assumption of risk was the
voluntary encounter of a known risk. In
the middle to late 1800's, these doctrines
became the law in the United States and
acted as a method to subsidize the
growing industry of the industrial
revolution. Industry did not have to pay
for injuries it caused .
Kentucky followed the national trend.
The Hi len v. Hays case discussed some
of this history and reached the
conclusion that the history demanded!
The law was made for the times and the
Court must be ready to review, alter, or
amend that law. The doctrine of
contributory negligence was adopted by
the courts and could be changed by the
courts.
In recent years, the tort law in
Kentucky has been in the stream of
modern development. For the most part,
decisions have sought to improve the law
when necessary without fear of change.
In Parker v. Redden,', for example, the
Court abolished the doctrine of pure
assumption of risk and left it as a
defense only where the assumption was
unreasonable. This optmon merged •
assumption of risk and contributory
negligence. The doctrine of last clear
chance was, of course, followed in
Kentucky, and Kentucky adopted the
Restatement view of the doctrine." A
major change that Kentucky had not
made, however, was a shift to
comparative negligence. Kentucky did·
codify a form of comparative theory in
the statute that allows apportionment of
damages among defendants," and with
the possible exception of the products
liability statute, never codified
contributory negligence.'"
The dissent in Hilen v. Hays, of
course, argues that the inaction by the
Legislature was an indication of public
policy to adopt contributory negligence
and any further change was for
legislative action . This idea was flawed
for several reasons. First, the Legislature
had a clear, concise method of acting.
Passage by both houses of the General
Assembly and signing by the Governor
was the procedure for the Legislature to
speak. Trying to draw meaning from
inaction, when the ability to speak was
clear, was not helpful. If, for example,
the Legislature wanted to affirm
contributory negligence, it could have
passed a contributory negligence statute
anytime during the last 100 years. It did
not pass such a statute. Its failure to
speak on the subject of contributory
negligence and comparative negligence,
therefore, told nothing. Even
considering the problem as one of logic,
the failure to act told nothing. Attempts
to draw inferences from a failure to pass
legislation would lead to varied and
conflicting results. There may have been
many reasons why the Legislature did
Louisville Law Examiner, March, 1985 5
Power to Make Change
not pass a comparative negligence bill.
They may have thought that the
legislative session was too short to spend
time debating and planning such a
change when other more pressing
matters were before them. They may
have thought that this was a matter for
careful case by case review and preferred
to have the Kentucky Supreme Court
monitor the situation. It may have been
a result of the political process of
compromise that forced the legislators
to just decide that they did not want to
deal with the issue at all. There are too
many possible reasons available as to
why the General Assembly may not have
wanted to pass a comparative negHgence
statute to allow anyone to assume there
was one sole reason. All that was known
"The times now indicate
that some protection of the
individual must occur."
for certain was that the General
Assembly did not act. It did not pass a
comparative negligence statute, and it
also did not pass a contributory
negligence statute. The General
Assembly, therefore, left the matter in
the hands of the courts.
When the Kentucky Supreme Court
received the case of Hilen v. Hays, it
appeared that the time was ripe. The
court told us that 41 jurisdictions had
adopted comparative negligence, and 9
of those were by judicial decision.
The facts of the case were simple.
Basically, it involved an injured party
riding with someone that evidence
indicated was intoxicated. The jury
found the plaintiff contributorily
negligent . The Kentucky Supreme Court
overruled earlier decisions, abolished
contributory negligence in Kentucky and
adopted pure comparative negligence.
This allowed the jury to determine total
damages, then allocate the damages
between defendant and plaintiff based
on an allocation of percentage of fault.
This fault appeared to be a combination
of breach of duty and causation. If the
plaintiff was 90 percent at fault, and the
defendant was 10 percent, the defendant
paid 10 percent. Since the Uniform
Comparative Fault Act used this form,
the majority opinion of the Court used
the suggested jury instruction in the
Uniform Act to specify how the jury
would be instructed in Kentucky. This
was all the case said. In fact, at the end
of the majority opinion it clearly
indicated that it had only decided the
specific issue before it and no others. It
specifically only used the Uniform Act
to reach pure comparative negligence
and to get a jury instruction.
The Court, therefore, had the power
and authority to make the change. The
opinion was merely making the law
accountable to the times. One hundred
years ago the Court created negligence
and contributory negligence to aid the
growing industry. Those risks have now
been spread across society by insurance,
be it accident, health or liability
insurance, while at the same time
industry has gotten strong. The times
now dictate that some protection of the
individual must occur. Whether the
defendant's insurance company pays for
the injury or the plaintiff pays for the
injury himself, then spreads the loss
through society by his own insurance,
worker's compensation, loss of
productivity or even tax supported
welfare, society is going to pay the cost.
The modern decision is to place the
burden equally on those responsible to
pay immediately, then find a way to
spread the loss to society. To try to
recapture contributory negligence is to
ignore history, ignore where modern
society has taken us and attempt to
return to a vision of the good old days, a
vision that includes work and life
conditions for the average American
that resemble the workshops of the
industrial revolution. Pure comparative
negligence accomplished the modern
goals. The immediate burden of the loss
is placed directly on those responsible in
an amount equal to the amount for
which they are responsible. They then
have the ability to spread the cost to the
rest of society through risk sharing.
In short, the Kentucky Supreme Court
acted in the best tradition of common
law courts. The opinion carefully
explained the background and history of
the law in order to explain the need for
change. The Court then confronted the
single issue before it and decided that
issue. The opinion then specifically
stated that it was not deciding any other
issue but left those for future case
decisions. Regardless, therfore, of one's
view of the substantive law of
comparative negligence, the opinion was
valid. It was the legitimate exercise of
the authority of a common law court; it
was well reasoned and written; and
should be well respected.
***
FOOTNOTES
1. Hilen v. Hays, 673 S. W.2d 713 (Ky.
1984).
2. Much of background for the
historical material can be found in M.
Horwitz, The Transformation of
American Law (1977).
3. Brown v. Kendall, 60 Mass. 292
(1850).
4. Lexington & Ohio RR v. Applegate,
38 Ky. 289, 310 (1839).
5. Butterfield v. Forrester, 103 En~.
Rep. 926 (K.B. 1809).
6. The opinion cites an 1892 case as the
first contributory negligence case. This
may not be accurate. A I least 1 wo cases
existed before that. Favre v. Louisville
and Nashville R.R. Co., 16 S. W. 370
(Ky. 1891). Louisville and Nashville
R.R. Co., v. McCoy, 12 Ky. Op. 385
(1883). The court is accurate, however,
in its reasoning. Any fear that the
Kentucky Constitution of 1891 may
have affected the doctrine should be put
to rest. A Kentucky case indicated that
the Constitution neither adopted nor
abolished contributory negligence.
Passamaneck v. Louisville Ry Co., 32
S. W. 620 (Ky. 1895).
7. Parker v. Redden, 421 S. W.2d 586
(Ky. 1967).
8. General Telephone Co. v. Yount,
482 S. W.2d 567 (Ky. 1972).
9. Ky. Rev. Stat, § 454.040.
10. Ky. Rev. Star. § 411.320(3).
Court Increases Its Role
In Church/ State Issues
(Continued from page 1)
magnitude with just a switch of
members," he said.
Instead, Graham sees the possibility
of a narrowing of the interpretation of
Roe, particularly in the areas of parental
consent and second trimester
operations.
Graham predicts the Court's current
term will produce landmark decisions .in
the area of the separation of church and
state.
"Generally, the Court hears a case on
this issue every two years," he said.
"This year, the Court is hearing seven
cases on the subject."
Among the issues that the court could
decide are the constitutionality of a
moment of silence, whether a city can
refuse to let a private group put up a
nativity scene on public property, and
whether a law that grants employees a
Sabbath day off is discriminatory
against non-religious workers.
"In many ways, the Supreme Court
encouraged this," said Graham,
pointing to the Chief Justice's comment
that "The Constitution does not
mandate a wall between church and
state." Graham also said the religious
revival that the nation is undergoing has
put political pressure on the Court to
explore church/state issues.
Graham Says He Tries for
Simplicity in News Stories
By Joel D. Zakem
Fred Graham, CBS News Law
Correspondent, said his biggest
problem in reporting the law for the
general public is "making it simple
enough."
"Some law is so complex you must
simplify it by cutting a few corners,"
he said.
Graham brought a large amount of
experience to his position as Law
Correspondent ("I started out as
Legal Correspondent," he said. "But
the president of CBS News figured
out that this would make all the other
correspondents Illegal
Correspondents. So he sent out a
memo saying that Fred Graham is no
longer Legal Correspondent, he is
now Law Correspondent.") Born in
Texarkana, Arkansas, Graham
received his undergraduate degree
from Yale and his J.D. from
Vanderbilt. He spent a year at Oxford
as a Fulbright Scholar, then served as
chief counsel for Senator Estes
Kefauver's committee on
constitutional amendments. After ·
Kefauver's death, Graham became
assistant to Willard Wirtz, Secretary
of Labor under President Kennedy.
Before joining CBS News 13 years
ago, Graham was Law
Correspondent for the New York
Times.
Graham recently visited U of L as
this year's Evelyn Crady Adams
lecturer. Before his speech, Graham
took time out to discuss recent
developments in the relationship of
the press to the law. At the time of
Graham's visit, final decisions had
not been rendered in either the
Sharon or Westmoreland libel cases.
Because of such cases, Graham
feels that "newspeople are already
somewhat more hesitant. This is
beneficial in some ways."
However, other aspects of the
recent libel cases trouble Graham.
"It's an ominous thing that courts
have done since New York Times. v.
Sullivan," he said. "They have put
motive on trial rather than the old
focus on truth and defamation."
"I would challenge any institution
to let in a clever plaintiff's lawyer to
take discovery and then ask a jury to
assess punitive damages based on
motive," Graham said. "What they
are looking for are motives such as
bias, the desire for increased
circulation, and people who are
trying to make names for themselves.
All organizations are guilty of this.
But such motives are not used in any
legal cause other than libel."
Graham said he is also troubled
about the high cost of defending such
actions. Noting that CBS had spent at
least two million dollars defending
itself in the Westmoreland action,
Graham wondered how many other
news organizations could afford such
costs. "How can we keep an
aggressive press in the face of such
costs?" he said.
Another news item that has
interested Graham is the effort by
conservatives to buy CBS stock
because of the alleged liberal bias of
CBS News.
"It's an interesting prospect to
think of either a network or a major
newspaper that would reflect only
one point of view," he said.
Graham said CBS strives "to be as
accurate and fair as possible."
Graham is also happy with most of
the comments he has received from
the legal profession concerning his
reporting.
"I get a lot of support from
lawyers," he said. "They appreciate a
reporter who tries to get it right.
Many lawyers complain that they
cannot recognize their cases from
reports in local newspapers."
"Even though my reporting is
simplified, I try to get it right," he
said.
6 Louisville Law Examiner, March, 1985
Warns Has Become a Leader In The Field of Labor Law
By Dave Williams
In the Fall Semester of 1938, Carl
Warns, Jr., a senior law student at the
University of Louisville, attended a talk
by the President of the American Bar
Association. He became intrigued by the
subject matter of that meeting, the
"golden opportunities for young
lawyers in Administrative Law."
It soon became apparent that at least
this law student had developed
something more than a passing interest
in Administrative Law, and specifically
in the newly-developing area of Labor
Law.
One of four seniors selected to
compete in a moot court competition, he
argued the unconstitutionality of the
new Wage and Hour Law. Present in the
audience was the Director of Industrial
Relations for Seagram's Distilleries. He
sent word that he wanted to see Warns
and offered him a position with
Seagram's handling their .employment
law matters.
After going through an orientation
with the company (involving an
introduction to shift work), Warns
decided he would be better off working
in-Industrial Relations than in the Law
Department, and accepted a position as
Director of Personnel at the Seagram's
Louisville plant. When he left, he
cleaned out the labor libtary and took it
with him to the new job.
"They didn't mind my going, they
only really minded losing all of the
books," Warns said.
He progressed steadily wrth Seagram's
until he was made the (acting) Director
of Industrial Relations in 1941. After
one month on the job, and soon after
Pearl Harbor in December, 1941 , he
received "Greetings" from Uncle Sam.
Things happened quickly from there.
"One day I was in New York on a plush
expense account, and a week later I was
picking up pieces of paper on a military
post," Warns said.
After his discharge, Warns entered
Harvard for advanced study and
received an LL.M . in 1947. Recently
married, and reluctant t.o move into a
new private practice, he accepted a
teaching position from one of his former
Commanding Officers, the Dean of the
University of Miami. When the weather
got too nice for him, he returned to the
University of Louisville to teach and
began building his reputation as an
arbitrator.
Because he had maintained a reserve
commission in the military, Warns was
called back in 1951. Working for the
Strategic Air Command, he was
instrumental "in the development and
selection of the FIOI Voodoo, an escort
fighter."
When he returned to U of L, he began
his long struggle to build a Labor Law
program. Eventually, he had "wheeled
and dealed" his way through the
administrative labyrinth and become the
driving force behind the incorporation
of such courses as Labor Law I and II,
OSHA, Labor Law in the Public Sector,
Collective Bargaining, and Arbitration
Practice and Procedure.
During this time, Professor Warns
was also developing a major arbitration
practice, umpiring for such corporations
as Goodyear, B.F. Goodrich,
Continental Airlines (stewardesses and
mechanics), and Western Airlines
(clerks). This workload took its toll and
he was forced to undergo open heart
\
Professor Carl Warns, Jr. advises students to "Keep an open mind and ask
questions of whoever can answer them."
Seat Belts
surgery four and one-half years ago. He
had retired by then from such extensive
representation, but still retained a desire
to "get back to the industrial
environment."
Feeling better now, he has recently
agreed to become permanent arbitrator
for the Tennessee Valley Authority, and
will begin hearing cases shortly. Just as
he moves back into doing what he likes
best, he is also preparing to leave U of L.
He won't be teaching this summer, will
be on sabbatical this fall, and will teach
his last semester in the spring of 1986.
Professor Warns has accomplished a
great deal and has drawn notice from
many quarters. He was offered a chance
to participate as a member of the
National Labor Relations Board
(NLRB) during the Nixon
administration (the first academic to be
offered a position on the Board) and was
offered an appointment, by then­Governor
Bert Combs, as Kentucky
State Director of Industrial Relations.
Because his arbitration practice was
starting to soar, he felt it would be too
difficult to "pick up the arbitrations
again when the term was up." In
addition, the University refused to grant
him a leave of absence for the five year
term of the NLRB appointment.
For any students interested in
practicing Labor Law, Professor Warns
suggests trying to go "with the NLRB or
one of the other administrati ve
agencies." Given this "dynamic and
ever-changing area of the law, it i
probably still the best way to get
started." If that doesn't fit your plan, he
s uggests developing " a gen eral
familiarity with what goes on in the
court system. Take opportunities to get
your feet wet, and learn under an
experienced attorney. The fact that the}
are success ful indicates an adeptnes .
Keep an open mind and ask question of
whoever can answer them. "
Professor Warns stresses that thi
advice is applicable to any area of
practice and cautions that "after Ia\\
school there is so much to learn. You
have to learn to accommodate your
learning experience to the real world.
Remember , a high GPA doesn' t mean
you're one of God's chosen children."
Many States Prefer Education Instead of Legislation
By Mike Schafer
Motor vehicle accidents cause between
40,000 and 50,000 highway fatalities
each year, along with two million
injuries. The National Highway Traffic
Safety Administration estimates that
motor vehicle accidents cost society $40
billion annually. Fully half of these
highway fatalities could have been
prevented if the occupants had been
wearing their seat belts. The number of
injuries would have been reduced by 65
percent.
Even though seat belts are recognized
as an effective method of reducing
accident severity, only 13.8 percent of
American drivers regularly wore their
seat belts in 1983. In Kentucky, the 1984
statewide usage of seat belts by drivers
was only 6.9 percent. Further, in 98.2
percent of all fatal traffic accidents in
Kentucky, no one in the vehicle was
using a seat belt.
Despite these fact s, little has been
done to mandate the use of seat belts.
Most states have relied on educating the
public in the hope of prompting
voluntary usage of seat belts. These
public education drives have been
largely ineffective.
In July , 1984, the U.S. Department of
Transportation issued Federal Motor
Vehicle Standard 208. The standard
requires auto makers to in stall
automatic crash protection , which
would protect the vehicle's driver and
right front seat passenger in a 30 m.p.h.
crash into a fixed barrier . This
protection includes automatic seat belts,
air bags and any new technology which
may develop. The requirements of the
standard will be phased in over a three
year period beginning September I,
1986. However, the requirements of the
standard will be rescinded if states
accounting for two-thirds or more of the
U.S . populat ion have enacted
mandatory seat belt usage laws before
April1, 1989. The laws must be in effect
and enforced by September 1989, and
meet federal guidel ines.
The standard also allocates a total of
$40 million a year in Department of
Transportation and private sector funds
to support cooperative educational
programs which encourage greater use
of safety belts and mandatory usage
laws. Of this, two percent of the total a
state receives must be used for safety
belt programs and eight percent for child
passenger safety.
The new standard has prompted New
York, New Jersey and lllinois to enact
mandatory seat belt laws. Seven other
states have legi slation pending.
However, it is questionable whether an}
(Continued on page 7)
Louisville Law Examiner, March, 1985 7
Professor David J. Leibson, newly-appointed Associate Dean, is making some
changes in Law School class schedules.
Associate Dean Leibson
Sets New Scheduling Goals
By Doug Neagli
The U of L School of Law has a new
Associate Dean this semester, as
Professor David J. Leibson has taken
over that position, replacing Professor
Linda S. Ewald, who is taking a
sabbatical.
Leibson has already assumed the full
responsibilities of his new position and
has been putting together the class
schedule for the Fall and Spring
1985-86 semesters. He said one of his
goals for that schedule is to have all bar
courses taught by full-time faculty, with
other courses and seminars taught by
adjunct professors. The new Associate
Dean also said he hopes to eliminate
back-to-back classes so that students will
have more time between classes and will
have a better opportunity to review
material or prepare for upcoming
classes;
Leibson said he was not organizing
the schedule in such a way as to exclude
students from opportunities to work at
outside jobs, but that outside
employment should be a lower priority
for students, coming behind class work
and school-related extra-curricular
activities. Although he said he is not
opposed to students working and
realizes that some work because of
financial necessity, Leibson said
working students might have a tendency
to lose sight of the importance of the law
school curriculum if they become too
involved in other endeavors.
One of Leibson's concerns in his new
job is the so-called "90 percent rule"
which mandates that 90 percent of all
students admitted to th~state's law
schools must be Kentucky residents.
Leibson said the rule has a detrimental
effect on the admissions process and is
too parochial because it limits the
students' exposure to new people, new
ideas, and different points of view which
students could receive from a more
diverse enrollment.
In his new position, Leibson will be
overseeing implementation of a revised ·
first-year curriculum in the Fall semester
and a new Summer Admissions
Program. In the Fall, 1985 semester,
first-year students will· have a class
which will introduce them to the legal
system and replace Constitutional Law
in the first semester. Leibson said the
Curriculum Committee has dropped
Constitutional Law completely out of
the first-year curriculum, making it a
required second-year course, and
moving Criminal Law into the first-year,
second semester slot. Leibson said the
new curriculum wiii help first-year
students gain a basic understanding of
the Jaw and. will give them a better base
from which to approach Constitutional
Law.
The new Summer Admissions
Program will be implemented this
summer and will involve offering two
courses for law school applicants who
have either been rejected for admission
in the past or are on the borderline for
admission in the following Fall semester.
If the applicant's performance in both
of these classes meets certain standards,
the applicant will be admitted for the
following semester. Leibson said such a
program will enable the Admissions
Committee to better determine which
borderline students have the ability to
make it in law school.
"On paper, there is usually very little
difference between the bottom 30
students accepted and the top 30
applicants rejected," Leibson said.
''This new program should help alleviate
some of the guesswork of the admissions
process."
Leibson said he would be trying, as
Associate Dean, to act as a "buffer"
between the student body and the law
school administration - someone who
students can approach with their ideas,
problems, and concerns. He said he
would always be available to discuss
issues with students and he would do his
best to be responsive to students' needs.
His main goal in the new position is
"to enhance each student's three or four
years here so that they will leave the Law
School with good feelings about the
school, the faculty, and the
administration," Leibson said. Students
who have a favorable outlook on their
law school experience will make "good
alumni," according to Leibson, and wiiJ
be more likely to continue their support
for the school in the future.
Seat Belt Laws Proposed
For Next General Assembly
(Continued from page 6)
of these laws meet the federal guidelines
for mandatory seat belt laws. The New
York law allows the shoulder restraint to
be fastened behind the back. This is
contrary to the federal law and also
makes enforcement virtually impossible.
Also required by the federal standard is
a minimum fine of $25. In New Jersey
the minimum fine is only $20. The
Illinois law is also questionable because
it exempts mail carriers and other
federal employees.
In Florida, the courts have taken the
problem involving seat belt usage into
their own hands. In Insurance Company
of North America v. Pasakainis, 451
So.2d 447 (Fla. 1984), the Supreme
Court of Florida ruled that juries
assessing damages in car accident cases
can consider whether the injured party's
failure to wear a seat belt contributed to
producing a portion of the damages. To
establish this, the defendant must prove
that the plaintiff did not use an available
and operational seat belt, non-use was
unreasonable under the circumstances,
and there was a causal relat ionship
between the plaintiff's injuries and his
failure to buckle up. If there is sufficient
evidence, the jury may consider this in
deciding whether damages should be
reduced. Non-use of a seat belt can not
be considered in resolving the issue of
liability unless the nonuse was a
proximate cause of the accident.
Kentucky has not followed either of
the above trends of enforcing seat belt
usage. However, Joane O'Haire of the
Kentucky State Police Division of
Highway Safety says a bill wiii be
introduced in the Kentucky General
Assembly in 1986. O'Haire said there is
considerable interest in the mandatory
Jaw. She hopes to establish
communication with other states in an
effort to promote uniformity and
compliance with the federal guidelines.
The only mandatory usage law on the
books in Kentucky is the Child Restraint
Law, KRS 189.125. This statute requires
the use of child safety seats for children
40 inches in height or less. It is also
stated that failure to use a safety seat is
not contributory negligence. Since the
introduction of the law in 1978 there has
been a slight rise in safety seat usage.
Before 1978, only 14 percent of the
children were in safety seats. Currently,
27.2 percent are in safety seats, with
another three percent in a safety belt of
some type. Of those seats being used,
only half are being used correctly. Also,
since there is no penalty for
noncompliance with the law, there is
little legal incentive to make an effort to
obtain the equipment.
Presently, Kentucky is using public
education to encourage restraint use.
Programs such as All American Buckle
Up Day and school contests where
children obtain pledges from adults that
they will wear seat belts for 30 days have
been mildly successful.
In an effort to set an example,
Governor Martha Layne Collins issued a
proclamation in 1984 requiring all state
employees to wear seat belts while riding
in government-owned vehicles.
Kentucky was the 14th state to enact
such a proclamation.
With the national trend moving
toward encouraging greater use of seat
belts, the next session of the Kentucky
Legislature will wrestle with the issue of
whether to join those states which
mandate the use of these auto safety
devices.
CURRENT PUBLICATIONS
SCHOOL OF LAW
UNIVERSITY OF LOUISVILLE
Leibson and Nowka, The Uniform Commercial Code of
Kentucky, The Michie Co............................................... S 75.00
Merritt, Kentucky Practice (Probate Practice, Vols. I and 2)
West Publishing Co...................................................... $125.00
Petrilli, Kentucky Family Law, W.H. Anderson Co.................... $ 50.00
Eades, Wrongful Death: The Law in Kentucky,
Harrison Publishing Co................................................. $ 22.00
Knowles and Eades, Law for Asphalt Athletes: A Legal Guide For
Hikers, Runners, and Bicyclists ................... ,.................... S 3.25
Eades, Products Liability: The Law in Kentucky,
Harrison Publishing Co................................................. $ 22.50
Journal of Family Law, (four issues per year)............................ S 15.00
Journal of Law & Education, edited by Knowles & Wedlock,
(four issues per year)..................................................... S 33.50
All publications may be obtained through the
OFFICE OF CONTINUING LEGAL EDUCATION
SCHOOL OF LAW
UNIVERSITY OF LOUISVILLE
Louisville, Kentucky 40292
8 Louisville Law Examiner, March, 1985
Law School Looking For Temperature Solution
By Jennifer Miller
The recent cold winter weather caused
problems for people throughout the
Louisville area and the U of L Law
School did not escape the harsh effects
of sub-zero temperatures.
Problems with the Law School's
heating system have caused
temperatures in classrooms and in the
library to fluctuate wildly and at one
point, water pipes which burst caused
administrative offices on the first and
second floors to be flooded under
several inches of water.
Kent Lollis, assistant to the Dean, said
the Law School administration is
conducting discussions with the building
architects, the Louisville firm of Luckett
and Farley, in an effort to resolve the
heating problems.
"The problem involves an air flow
and reheating coil capacity problem,"
said Tony Zabloudil, Manager of
Mechanical Engineering at Luckett and
Farley. "In its present condition, the
equipment doesn't have the capacity to
adequately heat or cool both the faculty
offices and classroom areas."
Zabloudil, who is in charge of the
Law School project for the architects,
said part of the problem originated with
the energy crisis which was occurring
when the new parts of the building were
constructed .
"The energy crisis required
enforcement of a specific energy code to
regulate the temperature of the
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Saturday, Mar. 16
9 to Midnight
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building," Zabloudil said. "Today, the
energy crisis is over and the code is no
longer enforced. However, the heating
and cooling system has not been altered
to conform to the changes."
Zabloudil also said one million dollars
was cut from the Law School building
project while the new wing of the school
was under construction. Although such
a budget cut would normally necessitate
a reduction in the square footage of a
project, Zabloudil said the University of
l.Quisville had established minimum
requi_t:ements for space in the new
building, forcing dollars to be removed
from another part of the project. Thus,
the cut was made in the mechanics and
engineering aspect of the building -the
heating and cooling system.
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40292
The Luckett and Farley firm is
collecting the data needed to evaluate
the existing system, Zabloudil said. The
air flow and temperature readings, along
with fan performance, have already
been measured, and figures on the
reheating coil performance have been
requested from the manufacturer. When
the data has been collected, Zabloudil
said the architects will meet with Law
School administrators to discuss
possible solutions to the problems.
Although Zabloudil was not prepared
to suggest a specific solution, he said he
is "optimistic" and thinks there are
methods by which full air flow and
heating and cooling capacity can be
achieved in the Law School.
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Law Examiner AMERICAN BAR ASSOCIATION A w_ARD FOR EXCELLENCE, 1984
Volume 10
Legal Aid Cuts: 'If A Poor
Person Loses His Welfare
Payments or Loses His
Home, He's Lost
Everything.'
....................•...... page 1
Volunteers Will Monitor
Cases of Abused Children
..•..•.....•.....•..••.•.•• page 3
March, 1985 Number4
a I Kentucky's Supreme Court
Acted Properly In
Adopting Comparative
Negligence
...•.....•......•••..•..... page 4
Professor Carl Warns Is A
Leader In The Field of
Labor Law
....•..•.....•....•.•.•..•. page 6
Professor David J. Leibson
is appointed Associated
Dean
..•••..•....•.••.•...•.•... page 7
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