Supreme Court Renders Landmark Decisions Affecting Scope of Premises Liability
On November 21, 2013, the Kentucky Supreme Court issued a ruling in Wilma Jean Shelton v. Kentucky Easter Seals Society, Inc. that could impact premises liability lawsuits in Kentucky. The Shelton case, when coupled with the Court’s companion decision in Dick’s Sporting Goods, Inc. v. Betty C. Webb, demonstrates that the “open-and-obvious” defense is effectively dead as a dispositive issue in Kentucky. Not only will these decisions have an impact on open-and-obvious trip/slip and fall cases, but the Court’s determination to shift the focus in premises liability cases from duty to breach could affect other areas of premises exposure.
Shelton v. Kentucky Easter Seals Society, Inc., 2011 SC-000554-DG (Ky. November 21, 2013)
Shelton involved a plaintiff that became entangled in wires running from her husband’s hospital bed to adjacent equipment. Although she admitted that she was aware of the wires’ presence, she claimed that the defendant rehabilitation facility should have done something more to prevent the incident from occurring. The defendant responded by arguing that (1) the plaintiff was aware that the wires were present and (2) such wires are necessary to providing treatment to patients. The trial court granted summary judgment, and the Court of Appeals affirmed. Subsequent to the Court of Appeals’ decision, the Supreme Court issued its decision in Kentucky River Medical Center v. McIntosh. Believing that McIntosh resolved any confusion regarding the open-and-obvious defense, the Supreme Court remanded the Court of Appeals’ decision in Shelton for reconsideration. Despite the Supreme Court’s decision in McIntosh, the Court of Appeals again affirmed summary judgment in favor of the defendant rehabilitation facility.
The Supreme Court granted discretionary review to clarify its previous decision from 2010 in McIntosh. Since 2010, certain litigants have argued that McIntosh effectively eviscerated the open-and-obvious defense as a dispositive issue, leaving juries to decide premises liability cases under principles of comparative fault. In the wake of McIntosh, however, the Kentucky Court of Appeals continued to grant summary judgment to premises owners when hazards were open-and-obvious, including in the lower court’s Shelton decision. According to the Court of Appeals, the open-and-obvious nature of a hazard fell within the scope of the duty analysis.
The Supreme Court’s decision in Shelton attempts to eliminate all post-McIntosh confusion by shifting the focus away from duty and toward breach. According to the Court, every premises owner owes a general duty of reasonable care to every invitee, and the existence of an open-and-obvious hazard is not relevant to the duty evaluation. Importantly, the Court states that the conspicuity of a hazard is completely irrelevant to the existence of a duty. Indeed, according to the Court, to hold otherwise and evaluate the presence of a duty in the context of the nature of a particular hazard—i.e., whether the hazard is open-and-obvious—is “obtuse” and inappropriate under Kentucky’s comparative fault model.
In prior cases, trial courts and the Court of Appeals evaluated questions such as (1) what the plaintiff knew, (2) when the plaintiff gained that knowledge, (3) whether the plaintiff could have taken alternative measures, (4) whether the plaintiff was distracted, and (4) whether the benefit of the encountering the hazard outweighed the risk. The Shelton court states that trial courts should not engage in such fact-intensive analyses regarding the plaintiff’s knowledge. Although the Court leaves a small crack where summary judgment may still be appropriate, the Court states that juries must decide whether the premises owner breached the relevant duty of care. Under the new rubric, only when “no reasonable minds could differ” on the defendant’s breach should trial courts dismiss premises liability claims.
In the context of the facts from Shelton, the Court states that the premises owner may have breached its duty of care, regardless of whether the hazard was open-and-obvious. Considering the fact-based inquiry necessary to evaluate breach, the Court states that a jury question exists. According to the Court, the defendant rehabilitation facility could have employed “alternative solutions, warnings or precautions” to prevent the plaintiff’s injury. Although rehabilitation facilities and hospitals must put the care of patients above all else, the Shelton Court holds that the jury should decide how far the hospital must go to satisfy its duty to exercise reasonable care.
The Court concludes by stating, “[t]his approach does not leave landowners defenseless against an onslaught of litigation, although we sincerely doubt we will see any increase in litigation because of this approach.” The Court also reiterates its adherence to the Steelvest standard: “[W]ith our recommitment to a very stringent standard for summary judgment in Steelvest and the rejection of the much more lenient federal standard, we expressed our support for a policy that summary judgment is not to be used as a defense mechanism...Legitimate claims should be allowed to proceed to a jury. And we should not fear jury determinations.”
Justices Scott, Cunningham, and Venters dissented in the opinion, with Justices Scott and Cunningham writing dissenting opinions. According to Justice Cunningham, the Supreme Court’s decision will ultimately lead to increased litigation costs and awards, which defendant premises owners will pass along to consumers. Likewise, Justice Scott provides a dissent that is “more akin to a eulogy for the former doctrine of ‘open-and-obvious’ dangers . . . .” He cautions against the majority opinion due to likely unintended consequences. For instance, he questions what changes hospitals will institute to protect against premises suits and the effect such changes will render to medical care and visitation of loved ones. He concluded by offering the following statement: “Oh well, no more peanut shells on the steakhouse floor!”
Dick’s Sporting Goods, Inc. v. Betty C. Webb, 2011 SC-000518-DG (Ky. November 21, 2013)
The Court also rendered a second opinion addressing the open-and-obvious doctrine, Dick’s Sporting Goods, Inc. v. Betty Webb, 2011-SC-000518-DG (Ky. November 21, 2013). However, Webb addresses, and significantly narrows, when a hazard qualifies as open-and-obvious. According to the Court, only if the hazard is actually open-and-obvious does the Kentucky Eastern Seals Society analysis apply. Otherwise, traditional negligence principles apply.
In Webb, the plaintiff slipped and fell on wet tile in the store entrance. It was a rainy day, and prior to entering the store, the plaintiff saw puddles in the parking lot. As she entered the store she noticed that the floor mats were wet and there was standing water between two of the mats. In an attempt to avoid the water, the plaintiff stepped off the side of the mat to an area that she thought was dry. The area was not dry, and Plaintiff fell, injuring her knees, arms, and shoulders. The defendant premises owner had not placed any caution signs near the area.
The Court’s analysis focuses on whether the water on the floor was actually an open-and-obvious hazard. The Court concludes that a condition is open-and-obvious when both the condition and the danger it presents are either subjectively known to the plaintiff, or when both the condition and the associated danger are “apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and judgment.”
Ultimately, the Court states that the hazard in question was not known or obvious and that the open-and-obvious analysis does not apply. The Court reaches its decision despite the plaintiff’s knowledge of the wet mats and wet floor in the general area of the fall. The Court also concludes 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.” The Court further states that reasonable care on the part of the invitee does not require more that looking for an “instant” to detect hazardous conditions.