Kentucky Law Review: July 2011

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A review of recent decisions by the Kentucky Court of Appeals seems to show a trend developing with the Court of Appeals taking a bite out of the recent Kentucky Supreme Court decision in Kentucky River Medical Center v. Irene McIntosh.

Some have said if the current trend continues any further then McIntosh will be distinguished to death and nothing more than a footnote of interest unless the Supreme Court takes a bite out of the judges at the Court of Appeals.

When reading these lower court decisions, I am reminded of the old legal saw that if the law is on your side, then argue the law. If the facts favor you, then argue the facts. But if neither facts nor law are on your side, then yell like hell.

Well, COAKY is in the unique position of picking and choosing those facts it wishes to use, and the ability to parse those very facts with short term impunity and no SCOKY scrutiny which winnows the docket and sends it back down to the trial court which probably welcomes the winnowing of their docket and a re-affirmation of the soundness of their pre-McIntosh ruling.

Fortunately, the Supreme's decision is what is controlling and not the COA. After the Supremes in McIntosh modernized Kentucky legal standards in the area of "premises liability" while at the same time putting some teeth into the the jury's deliberative process and some life in the claimant's right to a jury trial, one cannot help but wonder how did Summary Judgment become a housekeeping tool to the detriment of those who seek to have their day in court? Oh, jury trial, where did you go?

The gravity of the loss of a right to a jury trial is "open and obvious", but it leaves the claimant with the ultimate result that questions of duty and factual applications are back to being decided by the judges applying a single person's view of what is "open and obvious" and puts us back to pre-McIntosh days. And all this after, it seemed that the clear import of the SCOKY decision was to allow these "open and obvious" cases to have their day in court with a jury deciding and not the judges.

Before McIntosh, I offered a philosophical view of the "open and obvious" legal standard in a post entitled "Of premises liability, Sorites paradox, law of leverage, and tipping points as they relate to the open and obvious defense and rights to a jury trial."

However, you decide. Comments appreciated by those lawyers parsing these opinions in more detail than me.

Here is a link to Kentucky River Medical Center v. Irene McIntosh, 2008-SC-000464, Aug. 26, 2010, Published.

Kentucky River Medical Center and Jackson Hospital Corporation (collectively "the Hospital") appeal from a decision of the Court of Appeals, which affirmed ajudgment 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.

However, almost all states now have comparative fault-including Kentucky, see Hilen v. Hays, 673 S.W.2d 713, 720 (Ky. 1984) ; see also KRS .4.182(11)(a)1-(b) Under comparative fault, whether the doctrine concerns duty or fault becomes very important. Harrison, 768 P.2d at 1325 . If duty is not excused by a known or obvious danger, the injured invitee might recover, albeit in a diminished amount, [by virtue of his own comparative fault] . In contrast, if the invitee's voluntary encounter with a known or obvious danger were deemed to excuse the land owner's duty, then there would be no negligence to compare-and, therefore, no recovery.

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, ipsofacto, 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.

In the present case, the Hospital owed a duty to McIntosh, given that her injury was foreseeable. McIntosh, in turn, had a duty to act reasonably to ensure her own safety, heightened by her familiarity with the location and the arguably open and obvious nature of the danger. Thus, there were genuine issues of material fact that were properly submitted to the jury. CR 56 .03 ; see also Steelvest, 807 S.W.2d at 480-81 . For that reason, the trial court correctly denied the Hospital's motions for a directed verdict and for a judgment
notwithstanding the verdict. While reasonable minds could differ whether McIntosh was to some degree at fault under these facts, all the evidence was before the jury and was argued to them. This Court cannot say that their finding that McIntosh bore no comparative fault is clearly erroneous.

In the one SCOKY decision to mention McIntosh, see, Calhoun v . CSX, SCOKY, 2/11/2011 (lExcept for railroads, all property owners have a duty of ordinary care to maintain their property in a reasonably safe condition, and a duty to discover unreasonably dangerous conditions on the land, and to either correct them or warn of their presence. See Kentucky River Medical v. McIntosh, 319 S .W.3d 385, 388 (Ky. 2010), citing Perry v. Williamson, 824 S.W .2d 869 (Ky. 1992) . That duty would impose no injustice upon the railroad.).

Some recent COAKY cases:

628. TORTS. SLIP AND FALL. MCINTOSH APPLIED.
FALLER (RHODA)
VS.
ENDICOTT-MAYFLOWER, LLC;
PROFESSIONAL PROPERTY MANAGERS, LLC; AND RADER
ENTERPRISES, INC., D/B/A BUCK’S RESTAURANT
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2008-CA-001506-MR
7/1/2011
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: This Court previously rendered an Opinion affirming this case. See Faller v. Endicott-Mayflower, LLC, --- S.W.3d ----, 2009 WL 3878062, rendered November 20, 2009 (NO. 2008-CA-001506-MR). The case is before us again after the Kentucky Supreme Court granted discretionary review and remanded it to us for reconsideration in light of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). Having reconsidered our original opinion, we again affirm.

At the heart of this appeal is Rhoda Faller’s fall while leaving a Louisville restaurant. She claims she fell because the historic eatery’s threshold was too narrow and the trial court erred in granting summary judgment to the restaurant.

Unlike McIntosh, who tripped over an unmarked curb while rushing a critically ill patient into an emergency room, Rhoda tripped over a threshold marked with yellow- and black-striped caution tape while leaving a restaurant following a leisurely holiday meal. Rhoda admitted being familiar with the threshold, having traversed it on prior occasions, and admitted she would not have fallen had she been looking in the direction she was walking. The factual distinctions between McIntosh and Rhoda are too great for us to consider Rhoda’s fall foreseeable. Therefore, we agree with the trial court’s award of summary judgment to all three appellees and hold that McIntosh does not require a change in our original opinion.
For the foregoing reasons, we again affirm the decision of the Jefferson Circuit Court and our original opinion.

604. TORTS. PREMISES LIABILITY. "McIntrosh" Slip and Fall. "Open and Obvious".
SHELTON (WILMA)
VS.
KENTUCKY EASTER SEALS SOCIETY, INC.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2009-CA-000945-MR
TO BE PUBLISHED 6/24/2011
ON REMAND FROM SUPREME COURT OF KENTUCKY
FAYETTE

WINE, JUDGE: Wilma Shelton appeals from an order of the Fayette Circuit Court granting summary judgment in favor of Kentucky Easter Seals Society, Inc. This Court rendered an opinion on July 30, 2010. Mrs. Shelton filed a motion for discretionary review with the Kentucky Supreme Court. The motion for discretionary review was granted, and this case was remanded for further consideration in light of the recent case of Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010). For the reasons stated below, we again affirm the trial court’s summary judgment in favor of the appellees.

It is well established in Kentucky, as a general rule, that if a hazardous condition is “open and obvious”, a landowner owes no duty of care to an invitee regarding the hazardous condition. See, e.g., Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky. 1987). Mrs. Shelton acknowledges generally the open and obvious rule in Kentucky case law. She also concedes that she knew of the wires on the right side of her husband’s bed, establishing that the hazard was open and obvious. Mrs. Shelton instead argues that the circumstances surrounding her accident cause the hazard to fit within two separate exceptions to the open and obvious rule.

Mrs. Shelton asserts two separate arguments for reversal of summary judgment, the first of which is an exception to the open and obvious rule as described in Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526 (Ky. 1969). The Bonn Court derives this exception directly from Restatement (Second) of Torts §343A (1965). The Restatement specifically states that a landowner has no liability for physical harm to invitees caused by “activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Id. Circumstances in which a landowner should expect the harm are “where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will . . . forget what he has discovered, or fail to protect himself against it . . .” Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 367 (Ky. 2005), citing Restatement (Second) of Torts §343A (1965).

Very recently, the Kentucky Supreme Court modified the open and obvious doctrine in McIntosh, whereby it adopted the modern trend as expressed in the Restatement (Second) of Torts §343A (1965) regarding open and obvious conditions:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
McIntosh, 319 S.W.3d at 389. Contrary to Mrs. Shelton’s position, we do not find the opinion in McIntosh abrogates the open and obvious doctrine in Kentucky. The Court in McIntosh explained, 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.
Id. at 392.

Mrs. Shelton argues that a hospital should foresee that visitors will be distracted by tending to their loved ones admitted to the facility. She asserts that Cardinal Hill should have reasonably anticipated that her husband’s condition would have distracted her from the hazard of the wires.

Mrs. Shelton had an unfortunate accident due to a known hazard at her husband’s bedside. Both parties agree that the wires beside the patient’s bed were open and obvious, and that the general rule remains that a landowner is not liable for such open and obvious hazards. Mrs. Shelton has failed to offer substantial evidence in support of her theory that she was distracted or had no alternate route to approach the bed. Without that evidence, there is no genuine issue of material fact to put before a jury. We affirm the trial court’s order granting summary judgment in favor of Kentucky Easter Seals Society, Inc.

620. TORTS. PREMISES LIABILTY. SLIP AND FALL. OPEN AND OBVIOUS. MCINTOSH REVIEWED.
LUCAS (REBECCA)
VS.
GATEWAY COMMUNITY SERVICES ORGANIZATION, INC., ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND WINE (CONCURS)
2010-CA-001033-MR
6/24/2011
TO BE PUBLISHED
MORGAN

LAMBERT, JUDGE: In this personal injury action arising from a slip-and-fall in a parking lot, Rebecca Lucas has appealed from the summary judgments entered
by the Morgan Circuit Court dismissing her claims against Gateway Community Services Organization, Inc., d/b/a Gateway Community Action Agency, and Dennis Gulley, both individually and as the Executive Director of Gateway Community Action Agency (collectively “Gateway”), as well as Mike Stacey. Because we agree with the circuit court that summary judgment was warranted in this case, we affirm.

However, the Supreme Court of Kentucky has very recently modified the open and obvious doctrine in McIntosh, supra, so that the doctrine is more compatible with comparative fault rather than contributory negligence. Deciding that the question of whether the doctrine applies is one of fact related to fault, the Supreme Court adopted the modern trend as expressed in the Restatement (Second) of Torts § 343A(1) (1965) regarding open and obvious conditions:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
See McIntosh, 319 S.W.3d at 389-90. The commentary to this section discusses cases where a possessor of land would still have to anticipate potential harm despite the fact that a danger is both known and obvious, such as in a case where an invitee’s attention is distracted. Id. This approach, the Court held, comports with Kentucky’s “focus on foreseeability in its analysis of whether or not a defendant has a duty. . . . That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor[.]” Id. at 390.

Therefore, we hold that the circuit court did not commit error in finding that there were no disputed issues of material fact regarding the open and obvious nature of the parking lot. But this holding does not conclude our analysis.

We must next look to whether an issue of fact remains concerning the foreseeability of the injury pursuant to McIntosh. While McIntosh had not been rendered when the circuit court entered the summary judgments, the parties have been able to argue on appeal whether that decision applies in this case. Lucas contends that the jury should consider whether the parking lot constituted an open and obvious danger when allocating fault and that the jury could reasonably conclude that she was distracted while looking for her car or that her view had been obstructed. On the other hand, Gateway and Stacey assert that McIntosh is distinguishable from the matter at hand because there was no distraction so as to make Lucas’s injury foreseeable. We agree with Gateway and Stacey that McIntosh does not apply to alter the result in this case.

JOSEPH GAINES, A MINOR BY AND THROUGH HIS PARENTS, ET AL
VS.
DIAMOND POND PRODUCTS, INC.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-000848-MR
TO BE PUBLISHED
FAYETTE

However, Gaines argues that he was not an employee, but rather an invitee on Diamond Pond’s land. As a general rule, a land possessor owes a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them. Perry v. Williamson, 824 S.W.2d 869 (Ky. 1992). However, until recently in Kentucky, the open and obvious doctrine provided that land possessors could not be held liable to invitees injured by open and obvious dangers that were known to the visitor or otherwise so obvious that he would be expected to discover them. Rogers v. Prof’l Golfers Ass’n of Am., 28 S.W.3d 869 (Ky. App. 2000).
Recently, the Kentucky Supreme Court has modified the open and obvious doctrine in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). In Kentucky River, the Kentucky Supreme Court has adopted the position of the Restatement (Second) of Torts with respect to open and obvious conditions. That position is stated as follows:
-5-
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Restatement (Second) of Torts § 343A(1) (1965)(emphasis added). Appellants argue that Kentucky River has abolished the open and
obvious doctrine as concerns premises liability and thus, under the facts of this case, all of the issues raised must be decided by a jury trial and the directed verdict was otherwise not appropriate. See Kentucky River, 319 S.W.3d 385. We disagree with appellants’ characterization and application of Kentucky River to this case. As noted, we believe Kentucky River modified the open and obvious doctrine, not abolished it, upon adoption of the position set forth in the Restatement (Second) of Torts § 343A(1). Likewise, under the facts of this case, we do not believe that Kentucky River precludes the entry of the directed verdict in this case. See Kentucky River, 319 S.W.3d 385.
The uncontroverted facts demonstrate that Diamond Pond did not breach its duty of care to Gaines, assuming he was an invitee, by failing to warn Gaines of a dangerous condition on its premises. In this case, Gaines created the dangerous condition that resulted in his injury by utilizing a dangerous weapon that was prohibited under Diamond Pond’s rules for Terror workers. Applying the newly adopted Restatement (Second) of Torts position, as previously stated, Gaines’ injury was not a foreseeable harm that Diamond Pond could anticipate nor was it caused by a known or obvious condition. See Kentucky River, 319 S.W.3d 385. If we were to follow appellants’ argument, a land possessor would become liable for any negligent act of an invitee that causes injury to the invitee, effectively penalizing the land owner or possessor where the invitee creates the “open and obvious danger” to himself. In other words, the land owner or possessor would be held to a duty of protecting the invitee from himself. This is not the law in Kentucky. We can find no authority to support this position nor is there any authority that would allow a comparative fault jury instruction under these circumstances. Simply put, we do not believe it is reasonable for Diamond Pond to have anticipated the harm that Gaines would inflict upon himself while being on Diamond Pond’s property. See James v. Wilson, 95 S.W.3d 875 (Ky. App. 2002).
In summation, the uncontroverted facts indicate that Gaines was injured by his own conduct in contravention of Diamond Pond’s rules, regardless of whether he was an employee or invitee. We reject appellants’ arguments that Diamond Pond breached various duties owed to Gaines and that breach of such duties caused Gaines’ injury. Under the facts of this case, there was no forseeability of the self-inflicted injury that was incurred by Gaines while a participant in Terror.

Rucinski v. Cinemark, COA, Nonpublished 3/4/2011

The parties agree that Rucinski was an invitee of Cinemark. An invitee is one who “enters upon the premises at the express or implied invitation of the owner or occupant . . . in connection with business of the owner or occupant.” Cozine v. Shuff, 378 S.W.2d 635, 637 (Ky. 1964). It is firmly established in Kentucky’s law that owners of premises do not have a “duty to warn an invitee concerning open and obvious conditions.” Reece v. Dixie Warehouse & Cartage Co., 188 S.W.3d 440, 450 (Ky. App. 2006). Very recently, our Supreme Court refined the doctrine by adopting the position of the Restatement (Second) of Torts § 343A(1) (1965), which holds that if “the possessor should anticipate the harm despite such knowledge or obviousness,” then the possessor does have a duty to warn. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 389 (Ky. 2010).

In the case before us, the trial court found that the dark stairs were an obvious and open condition that Rucinski recognized and voluntarily accepted when she attempted to walk down them before the house lights came on. Therefore, finding that Cinemark did not have a duty to warn Rucinski about the dark stairs, it granted the summary judgment.

From Embry v. Mac's Convenience Stores, COA, NPO, 3/18/2011

Also after briefing was completed in this appeal, the Kentucky
Supreme Court rendered its opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), which modified the “open and obvious” doctrine of premises liability. In Kentucky River, the Kentucky Supreme Court adopted the position of the Restatement (Second) of Torts with respect to “open and obvious conditions,” which states:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Kentucky River, 319 S.W.3d at 389 quoting Restatement (Second) of Torts § 343A(1) (1965)(emphasis added).
The Supreme Court provided the following directions to the trial courts to assist them in implementing the modified standard:
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.
Id. at 392.
Recognizing the pertinence of Kentucky River to his case, Embry filed a notice of supplemental authority with this Court which we treated as a motion to supplement authority and subsequently granted. The circuit court, however, never had the opportunity to consider the facts of this case in light of the modified standard. Nor did counsel for the parties have the opportunity to present evidence and arguments in light of the modified standard. “Since this is an appellate court, our function is to review possible errors made by the trial court. If such court has had no opportunity to rule on a question, there is no alleged error before us to review.” Commonwealth, Department of Highways v. Williams, 317 S.W.2d 482, 484 (Ky. 1958). “[T]he trial court . . . is in the best position to consider any
additional arguments presented to it on remand. . . . .” Brown v. Louisville Jefferson County Redevelopment Authority, Inc., 310 S.W.3d 221, 225 -226 (Ky.App. 2010). Therefore, we remand this case to the trial court to consider what effect, if any, the holding in Kentucky River and the presentation of evidence and arguments by counsel may have on its grant of summary judgment to the appellees.
Conclusion The order setting aside the default judgment is therefore affirmed.

The orders granting summary judgment to the appellees are hereby reversed and the matter is remanded for further consideration in accordance with this opinion.

Sentence for Northern Kentucky attorney angers victim

NEWPORT - A Northern Kentucky lawyer charged with felony rape has pleaded guilty to a misdemeanor sex offense, angering the victim in the case.

D. Keith Johnson, 45, of Fort Mitchell pleaded guilty Friday in Campbell Circuit Court to the misdemeanor charge of sexual misconduct. Kentucky law states that someone is guilty of this crime when they engage in sexual intercourse without the other person's consent.

Judge Fred Stine sentenced Johnson to 90 days of house arrest, but the Newport lawyer will be allowed to take a summer vacation during that time.

“Talk about a slap on the wrist,” said the victim's lawyer, Tad Thomas of Louisville. “He gets 90 days in his own home ... and he is allowed to take vacation in the middle of it. My client is outrage at this sentence.”

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