Regular readers will recall that we reported in August of 2010 a new Supreme Court opinion which claimed to change the open and obvious rule in premises liability cases. A number of cases involving falls were remanded for reconsideration in light of that case, and so far the Court of Appeals panels are rejecting the idea that Kentucky River Medical Center v. McIntosh really means that open and obvious cases are always jury cases. These cases will likely return to the Supreme Court, and we would expect a majority of the Court to basically rewrite McIntosh. However, it could be that a majority of the Court will agree to further marginalize the role of judges in civil cases and further confuse duty with comparative fault. This little drama bears watching by all, so this page will follow these cases as they progress.
This case arose out of an injury sustained by a paramedic who tripped on a curb while a patient was being transported from an ambulance into the emergency room. The ambulance dock was eleven feet across and constructed in such a way that there were curbs on each side. A jury found for the paramedic, and the hospital asserted on appeal that it should have been granted a directed verdict. While the court noted that the curb areas were unmarked and unprotected, it seemed to be undisputed that the curbs constituted an open and obvious condition. The opinion will likely create more confusion than it provides clarification. After a brief review of foreign cases, the court draws the concept of comparative fault into the equation. After almost 25 years, one would think it would be understood that comparative fault simply altered the effect of a finding of fault on the part of the plaintiff – it has nothing to do with whether a plaintiff or defendant owed a duty, breached a duty, or caused an injury. In fact, the principle in question predates the adoption of comparative fault. After this opinion, it remains the general rule that a landowner is not liable for open and obvious conditions. It also remains an exception to the rule a landowner may be liable if he has reason to anticipate the harm despite its obviousness. In this case, the court put a lot of emphasis on the proof that a paramedic is obligated to focus entirely on the patient, which would mean that the hospital should anticipate that a paramedic could not be focusing on where he or she was stepping. Since there was this evidence, it was for the jury to determine whether the condition was in fact unreasonably dangerous. That is all that was necessary to decide the case, but the opinion mixes and matches a number of different principles in a way that is going to make application of a rather simple rule difficult to administer. Some will read the opinion as holding that the entire open and obvious issue is to be decided by the jury, and that may have in fact been the intent of the court.
Smith v Grubb, ___ S.W.3d ___, 2012 WL 2160192 (Ky.App. June 15, 2012)
This Clay county slip and fall case concerned an eroded area in the pavement near a drain, which the court thought could be properly called a pothole since it was the product of gradual erosion over time. The injuries were allegedly a broken ankle, a knee injury and burns from her hot beverage. After a bench trial before Judge House (Yancy White was the plaintiff’s attorney) and standard Clay county award, the appeal was brought. Unfortunately, the Court did not reach the most interesting issues concerning Judge House’s admission in federal court proceedings that he had participated in a vote buying scheme and Mr. White’s role in the scheme.
First, and these days very important, the Court recognized that with respect to an open and obvious condition no duty is owed to the invitee. The Court then proceeded to muddle this key point by referring to comparative fault (which has nothing to do with duty) and suggesting that the Supreme Court decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) was a change in the law. The Court of Appeals distinguished McIntosh, however, on the ground that there was no evidence that Grubb was distracted. If the issue is duty, what Ms. Grubb was or was not is irrelevant, what is relevant is whether it was foreseeable that someone like Ms. Grubb would be distracted. Before the opinion is over, the Court reverts to the proper analysis based on duty. *20-22. In finding the eroded area to be open and obvious, the Court noted that 1) imperfections in pavement are common, 2) was under a well-lit canopy, and 3) the pothole was not uncommonly deep or shielded from view. This opinion purports to create a rule that imperfections in pavement are not unreasonably dangerous unless the imperfections have special aspects or foreseeable distraction.
The plaintiff brought suit against his landlord for injuries sustained when he fell from the second floor balcony. Before occupying the apartment, plaintiff and his girlfriend inspected the premises and noted on a move-in checklist that the railing on the balcony was loose. Plaintiff testified that he placed a grill next to the loose area to keep guests from encountering it. At the time of the fall plaintiff had no reason to believe that repairs had been made. The plaintiff argued that the Supreme Court case of Kentucky River Medical Center v. McIntosh required reversal because an open and obvious condition is no longer a bar to recovery. The Court observed that McIntosh required some sort of distraction, and that none had been shown in this case. The court did not even need to discuss the open and obvious rule, however, because the claim failed for lack of a duty in the first instance.
This case was remanded by the Supreme Court for further consideration in light of the decision in Kentucky River Medical Center v McIntosh. Faller fell while exiting a restaurant, allegedly because the threshold was too narrow. The Court distinguished McIntosh because plaintiff admitted that she had been in the restaurant before and was aware of the threshold. The Court seems to rely to some extent on the fact that this was a historic building, which led to a presumption that the threshold was not defective due to the passage of time. While this is a ground for dismissing the claim, it does not have anything to do with open and obvious, but instead means there was no condition requiring a warning. The open and obvious rule is but one reason why a condition was not unreasonably dangerous, which accordingly requires no warning.
This case was remanded by the Supreme Court for further consideration in light of the decision in Kentucky River Medical Center v McIntosh. The defendant is a rehabilitation hospital and plaintiff was visiting her husband, who was a patient. Before her husband’s admission, plaintiff had been warned about the numerous wires by the beds at the hospital. After one visit, plaintiff’s daughter complained to the staff about the wires. Plaintiff admitted that she always tried to avoid the wires. After one visit, plaintiff’s foot became entangled in the wires as she approached the bed to kiss her husband goodbye, and was injured. The Court of Appeals rejected the argument that McIntosh abrogated the open and obvious rule. The panel distinguished McIntosh on the grounds that the paramedics in that case were operating under a stressful and time sensitive environment, while there were no similar circumstances in this case.
This case was remanded by the Supreme Court for further consideration in light of the decision in Kentucky River Medical Center v McIntosh. The plaintiff went to Gateway with a friend to sign forms that would allow the friend to pick up her grandchildren from Head Start. The parking lot was graveled while portions close to the building were paved. As Lucas was leaving she fell on a piece of “crumbling gravel” where the paving ended and the gravel began. The Court discusses three categories of what it calls premises liability categories which may be helpful to some but are not really relevant to legal theory. The Court then states that in McIntosh, the Supreme Court modified the open and obvious rule to be more consistent with comparative fault. (Of course, duty has nothing to do with comparative fault, but this kind of erroneous thinking drives some of the decisions being made these days, perhaps including McIntosh). The Court of Appeals panel distinguished McIntosh, however, since Lucas had admitted that she was familiar with the condition of the premises from earlier visits. The opinion suggested that the result might be different if the proof showed that Lucas had been distracted. This is not correct. The issue is not whether the invitee is distracted, but whether it is foreseeable to the land possessor that a reasonable person would be distracted in such a way that the condition would not be obvious. The Court reached the correct conclusion, but the reasoning demonstrates how the muddy language used in McIntosh is likely to lead to great confusion in the area of a land possessor’s duty.