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The Death Knell of the 'Open and Obvious' Defense for Landowners

On Nov. 21, 2013, the Supreme Court of Kentucky published two opinions that likely sound the death knell for the long-standing “open-and-obvious” defense for landowners in Kentucky.

On Nov. 21, 2013, the Supreme Court of Kentucky published two opinions that likely sound the death knell for the long-standing “open-and-obvious” defense for landowners in Kentucky.

Historically, the open-and-obvious defense was the ultimate legal obstacle for plaintiffs pursuing a slip-and-fall case. The long-standing defense stated that landowners were not held liable when visitors were injured due to open-and-obvious conditions (i.e., potholes on a sidewalk, rain puddles on a rainy day, loose gravel on a parking lot, ice patches on a snowy day). An invited guest has a right to assume that the premises he or she has been invited to are safe, but this does not allow him or her to walk blindly into dangers that are obvious or known to him or her. The defense bar long used the open-and-obvious defense to dismiss plaintiff’s slip-and-fall cases before they ever reached a jury.

The Supreme Court, however, first cast doubt on the viability of the open-and-obvious doctrine in 2010 with its decision in Kentucky River Medical Center v. McIntosh. Many argued that McIntosh effectively eviscerated the doctrine while others felt McIntosh merely changed the analysis from one of duty to one of foreseeability. The court of appeals appeared to fall in the latter camp, as it upheld summary judgment in a number of cases favoring the landowner. With the recent decisions in Shelton v. Kentucky Easter Seals Society, Inc. and Dick’s Sporting Goods, Inc. v. Webb, however, the Supreme Court clarified that the former interpretation was correct. Thus, with Shelton and Webb, the Supreme Court all but ensured that the open-and-obvious doctrine cannot be used as a substantive defense in Kentucky.

Shelton v. Kentucky Easter Seals Society, Inc.

Shelton involved a plaintiff who tripped and fell over wires running from her husband’s hospital bed to adjacent monitoring equipment. During her deposition, she admitted that she had seen the wires on numerous prior visits to her husband and was aware that the wires posed a danger. Based upon these admissions, the trial court granted the hospital summary judgment on the ground that the wires were open-and-obvious conditions. The court of appeals, following its interpretation of McIntosh, affirmed the trial court’s decision.

On discretionary review, the Supreme Court reversed. Historically, the existence of an open-and-obvious condition that was foreseeable to an invitee (legal terminology for a customer or guest on the premises) negated a landowner’s legal duty to warn of the danger. In Shelton, however, the Supreme Court held that the open-and-obvious doctrine is a question of breach, not a question of duty.

If a dangerous condition exists on the property, regardless whether it is open-and-obvious, then the landowner has a duty. To hold otherwise and evaluate the presence of a duty in the context of the nature of a particular hazard (e.g., whether the plaintiff knew or should have known of the hazard) is inappropriate based upon Kentucky’s comparative fault system. Consequently, the relevant question under a breach analysis is whether “the defendant fulfilled its duty of care” or can establish that it “exercised reasonable care to warn of or eliminate [the] unreasonable dangers.”

Regardless of what type of evidence the landowner establishes under this new rubric, the Supreme Court emphasizes that the trial “courts should leave such determinations to the trier of fact unless no reasonable person could differ on the matter.” For Shelton, the court believes that the hospital could have employed “alternative solutions, warnings or precautions” to prevent the plaintiff’s injuries. Although hospitals must put the care of patients above all else, Shelton holds that the jury should decide how far the hospital must go to satisfy its duty to exercise reasonable care.

The majority decision in Shelton, written by Chief Justice Minton, believes that summary judgment for landowners is still possible. “Examples [of conditions that do not create an unreasonable risk] may include a small pothole in the parking lot of a shopping mall; steep stairs leading to a place of business; or perhaps even a simple curb.” Justice Scott, writing for the dissent, disagrees that the majority’s decision will ever allow for summary judgment. Rather, he bluntly characterizes his dissent as “more akin to a eulogy for the former doctrine of ‘open-and-obvious’ dangers.” According to Scott, the open-and-obvious doctrine was “based on personal responsibility and common sense … [I]t protected those whose distractions were warranted, as well as those who could not reasonably perceive the real danger around or underlying what they could see.”

Dick’s Sporting Goods, Inc. v. Webb

Webb, published the same day as Shelton, offered an opportunity for the Supreme Court to apply its holding in Shelton. In Webb, the plaintiff slipped and fell on wet tile in a store entrance on a rainy day. Although the plaintiff saw puddles in the parking lot prior to entering the store and noticed the entrance mats were wet, she claimed surprise when she slipped on the wet tiles just past the entrance.

Although the facts of Webb appeared as though it might fit within Chief Justice Minton’s list of conditions that do not create an unreasonable risk, the Supreme Court in Webb narrowed when a hazard qualifies as an open-and-obvious condition. The court held that a condition is open-and-obvious when the hazard is either subjectively known to the plaintiff or when the hazard is “apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and judgment.” In the end, the Supreme Court stated that the hazard in question was not obvious to the plaintiff, which negated the application of the open-and-obvious doctrine. Ignoring the plaintiff’s knowledge of the puddles and wet mats, the court believed that a reasonable person “may not have noticed the condition” because the “condition was not easily perceptible without closer inspection beyond the exercise of reasonable care.”

If you have questions about how these recent decisions may affect you or your business, please contact a member of the Litigation Practice Group at Bingham Greenebaum Doll LLP.

DISCLOSURE REQUIRED BY CIRCULAR 230. This Disclosure may be required by Circular 230 issued by the Department of Treasury and the Internal Revenue Service. If this article, including any attachments, contains any federal tax advice, such advice is not intended or written by the practitioner to be used, and it may not be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer. Furthermore, any federal tax advice herein (including any attachment hereto) may not be used or referred to in promoting, marketing or recommending a transaction or arrangement to another party. Further information concerning this disclosure, and the reasons for such disclosure, may be obtained upon request from the author of this article. Thank you.



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