Ky. Sup. Ct. Amends “open and obvious” rule in slip and fall cases – Comparative Negligence applied.

On August 26, 2010 the Ky. Supreme Court created an exception to the “open and obvious” defense in slip and fall cases.   The “open and obvious” defense still exists but is now subject to comparative negligence review.

 The Court stated: “…That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor.”

LawReader synopsis:

For full text of case click case number  2008-SC-000464-DG.pdf

TO BE PUBLISHED

FROM BREATHITT CIRCUIT COURT

KENTUCKY RIVER MEDICAL CENTER; AND JACKSON HOSPITAL CORPORATION

 

VS.

 

MCINTOSH, IRENE

OPINION OF THE COURT BY JUSTICE NOBLE- AFFIRMING

SCHRODER, J., DISSENTS BY SEPARATE OPINION IN WHICH SCOTT, J., JOINS.

 

a land possessor may be held liable for open and obvious dangers if “the possessor should anticipate the harm despite [its] . . . obviousness.”

 

The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger.

OPINION OF THE COURT BY JUSTICE NOBLE

AFFIRMING

Kentucky River Medical Center and Jackson Hospital Corporation (collectively “the Hospital”) appeal from a decision of the Court of Appeals, which affirmed a judgment of the Breathitt Circuit Court.

The principal issue on appeal is whether the trial court should have granted the Hospital’s motion for ajudgment notwithstanding the verdict because the open and obvious doctrine barred the plaintiff’s recovery as a matter of law.

 For the following reasons, the Court of Appeals is affirmed.

McIntosh had helped transport about 400 patients to this emergency room entrance before, and she had always navigated past the protruding curb without incident. However, this time she tripped and fell over it, suffering a fractured hip and sprained wrist. McIntosh sued the Hospital, arguing that the

curb was an unreasonably dangerous condition which caused her injuries. While moving towards the entrance, McIntosh’s attention was not focused on the curb; rather, she remained focused on attending to the critically ill patient .

The Hospital moved the trial court for summary judgment, claiming that the open and obvious doctrine barred McIntosh’s recovery as a matter of law.

After considering the parties’ briefs, the trial court summarily denied this motion.

Ultimately, the jury found the Hospital liable.

The Hospital appealed to the Court of Appeals, which affirmed because “the Hospital could reasonably expect that a paramedic treating a critically-ill patient could be distracted, could forget (if she had ever observed it) that the curb was uneven, and could fail to protect herself against it.” This Court

granted discretionary review to determine whether the open and obvious doctrine should have completely barred McIntosh’s cause of action.

The modern approach is consistent with Kentucky’s focus on foreseeability in its analysis of whether or not a defendant has a duty. This Court has previously stated that “[t]he most important factor in determining whether a duty exists is foreseeability.” Pathways v. Hammons, 113 S.W .3d 85, 89 (Ky . 2003) (citing David J. Leibson, Kentucky Practice, Tort Law § 10 .3 (1995)) . That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor.

By concluding that a danger was open and obvious, we can conclude that the invitee was negligent for falling victim to it, unless for some reason “to a reasonable man in his position the advantages of [encountering the danger] would outweigh the apparent risk .” Restatement (Third) of Torts:

Liab . Physical Harm § 51 cmt. f. But this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place . Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any.

For this reason, to allow known or obvious conditions to always absolve land possessors from any liability “would be to resurrect contributory negligence” in such cases . Harrison, 768 P.2d at 1325 .

…our most recent case on-point, Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364 (Ky. 2005) . In Home, this Court endorsed the Restatement (Second) view throughout the opinion. Id. at 367-70 . And, in particular, Home cites section 343A(1) of the Restatement and its supporting commentary for the proposition that a land possessor may be held liable for open and obvious dangers if “the possessor should anticipate the harm despite [its] . . . obviousness.”

 

The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable

precautions to prevent the injury, he can be held liable . Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious.

However, this view also alters the position of the person injured by an open and obvious danger to the extent that only under extremely rare circumstances could a plaintiff avoid some share of the fault under comparative negligence . While “open and obvious danger” is no longer a complete defense under the Restatement, it is nonetheless a heightened type of danger which places a higher duty on the plaintiff to look out for his own safety.

Such a condition, being open and obvious, should usually be noticed by a plaintiff who is paying reasonable attention . Yet the plaintiff is not completely without a defense to this : there could be foreseeable distraction, or the intervention of a third party pushing the plaintiff into the danger, for

example . Even in such situations, a jury could still reasonably find some degree of fault by the plaintiff, depending on the facts .

Thus, even though the curb may have been open and noticeable to some extent, in this case “the possessor has reason to expect that the invitee’s attention may be distracted” from it.

Restatement (Second) § 343A cmt. f. The Hospital had very good reason to believe McIntosh would be tending to the patient, not to each step she was taking. In addition, “the possessor has reason to expect that the invitee[] . . . will forget what he has discovered.”

III. Conclusion

For the foregoing reasons, the Court of Appeals is affirmed

.

Minton, C.J . ; Abramson, Cunningham and Venters, JJ ., concur.

Schroder, J., dissents by separate opinion in which Scott, J., joins.

SCHRODER, J., DISSENTING: Because I believe the open and obvious doctrine concerns a question of duty, I respectfully dissent. The other hospitals McIntosh served had no curbs to trip over . Appellants had a curb, which contained no building code or OSHA violations, and was open and obvious.

Scott, J., joins.

COUNSEL FOR APPELLANTS:

Martin Allen Arnett

William P. Swain

Denis Carl Wiggins

William Baxter Orberson

Phillips, Parker, Orberson 8s Arnett, PLC

716 West Main Street, Suite 300

Louisville, Kentucky 40202

COUNSEL FOR APPELLEE :

Christopher W. Goode

Bubalo, Hiestand 8s Rotman, PLC

1344 South Broadway

Lexington, Kentucky 40504

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