SCOKY Holds Open and Obvious Hazard Doctrine Does Not Apply in Slip and Fall on Wet Floor Tile Near Store Entrance

By David Kramer | dkramer@dbllaw.com

The last post in this blog concerned the case of Shelton v. Kentucky Easter Seals and its limitation on the open and obvious hazard doctrine in a case involving a trip and fall by a hospital visitor who was tending to a hospitalized relative. In a companion decision rendered the same day as Shelton, the Kentucky Supreme Court upheld the Court of Appeals’ reversal of a summary judgment for the defendant in another fall case, this one involving a slip and fall on wet floor tile next to a puddle of water that had accumulated near the front of a sporting goods store from customers tracking moisture in during a heavy rain.
In Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), the issue was whether the open and obvious hazard doctrine applied so as to justify dismissal of an injury claim brought by a customer who slipped on a wet tile while trying to step around a puddle that had collected near floor mats at the customer entrance of the store due to the fact a heavy rain was falling outside. The Court of Appeals had reversed based on Kentucky River Medical Center v. McIntosh, 319 S.W.3d 395 (Ky. 2010). While the Supreme Court affirmed the reversal of summary judgment, it held that McIntosh did not govern the case, and that the question of whether the store met its duty of maintaining the premises in a reasonably safe condition was an issue of fact for the jury.
The Court first discussed McIntosh and its adoption of the Restatement (Second) of Torts § 343A, and noted that McIntosh did not change the rule on what constitutes a known or obvious hazard. It went on to hold that, because the plaintiff looked at the tile next to the mats and believed it to be dry, the slickness of the tile (which was actually wet) was not open or obvious to her. Had the customer noticed the wetness of the adjacent tile before stepping on it, presumably an open and obvious hazard analysis would have been appropriate. The Court concluded that the jury should decide whether the store met its duty to maintain the premises in a reasonably safe condition.
This decision suggests that a business or institution with an entrance used by the public should consider taking precautions to remedy slippery conditions caused by the elements, including periodically cleaning or drying floors, rugs or mats near the entrance or at least putting a “caution – wet floor” sign up when it rains or snows and a high volume of customers is likely to cause a constantly wet condition of the floor at the entrance.

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