“Open-and-Obvious” Liability Defense Further Eroded as Kentucky Supreme Court Reverses Decision in Hotel Slip-and-Fall Lawsuit
The Kentucky Supreme Court’s erosion of the “open-and-obvious” defense in premises liability cases continued with its recent ruling in Carter v. Bullitt Host, LLC. The 4-3 decision in Bullitt Host held that the premises owner was unable to prevail on summary judgment when faced with an invitee who suffers an injury after slipping or tripping on an outdoor natural hazard on the premises owner’s property. This decision will impact the liability that all premises owners, including residential landowners, face for natural hazards, especially snow and ice.
Carter v. Bullitt Host, LLC, 471 S.W. 3d 288 (Ky. 2015)
The facts of Bullitt Host are straightforward. James Carter was traveling with his family from Texas through Bullitt County, Kentucky, when he encountered a severe winter storm. Carter and his family stopped and spent the night at Holiday Inn Express operated by Bullitt Host, LLC (“the Hotel”). Early the next morning, Carter exited the front of the Hotel and proceeded out under the covered carport of the Hotel on his way to his car parked in the parking lot. Though Carter noticed that the area under the carport was wet and that there was snow in the parking lot, he stated he did not see any snow or ice on the ground beneath the carport. As he approached the edge of the covered carport, he slipped on ice. As a result of the fall, he broke his ankle.
Carter filed suit against the Hotel alleging negligence. The Hotel moved for summary judgment arguing that under the precedent established in Standard Oil Co. v. Manis, 433 S.W.2d 856 (Ky. 1968), a landowner cannot be liable for injuries to an invitee caused by an open-and-obvious, naturally occurring hazard. Carter argued that Manis was no longer the law after Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). The trial court ultimately granted summary judgment finding (1) that the ice was open-and-obvious, (2) that the carport was an outdoor location, and (3) that Carter’s injuries were not foreseeable because he had safely walked through the parking lot the evening before his fall. The Court of Appeals affirmed the trial court’s decision. The Court of Appeals interpreted McIntosh narrowly, holding that the open-and-obvious doctrine barred liability and that there was an exception to the doctrine only if the injured party was distracted. The Court of Appeals went on to conclude that the Hotel did not breach its duty to Carter since he was aware of the snow and ice and any ice in his path to his car was an open-and-obvious hazard. The Kentucky Supreme court granted discretionary review to address the applicability of both McIntosh and Shelton v. Kentucky Easter Seals Society, Inc. 413 S.W.3d 901 (Ky. 2013) to the facts of the case.
Supreme Court Applies Doctrine of Comparative Fault
The Kentucky Supreme Court began its analysis with the rule established in Manis that “natural outdoor hazards which are as obvious to an invitee as to the owner of the premises do not constitute unreasonable risks to [the invitee] which the landowner has a duty to remove or warn against.” (Emphasis in original). According to the Supreme Court, the Manis rule created a “legal anomaly excepting obvious outdoor natural hazards from the comparative-fault doctrine.” Rather, the Supreme Court stated unequivocally that liability under Kentucky law must be determined based on principles of comparative fault. It reasoned that after its decision in Shelton v. Kentucky Easter Seals Society, Inc.,every person has a duty of ordinary care and that duty applies equally to both plaintiffs and defendants. Although Shelton involved an indoor, man-made hazard, the Supreme Court found its logic persuasive and noted that in Shelton it found that a land possessor’s duty is not eliminated simply because a hazard is obvious; rather, if it is foreseeable that an invitee will proceed in the face of a danger and a landowner has not made reasonable efforts to correct that danger, then the landowner has breached his reasonable duty of care. According to the Supreme Court, after Shelton the open-and-obvious nature of a hazard under comparative fault principles is nothing more than a circumstance that the fact finder can consider in assessing the fault of any party, plaintiff or defendant.
The Supreme Court noted that a landowner is not excused from his own reasonable obligations to insure the safety of his premises “just because a plaintiff has failed to a degree, however slight, in looking out for his own safety.” While seemingly eliminating the potential for summary judgment for premises owners based upon open-and-obvious hazards, the Supreme Court did leave some hope that a landowner can escape liability, noting that “if a landowner has done everything that is reasonable under the circumstances, he has committed no breach, and cannot be held liable to the plaintiff.” However, landowners are now left to the challenging task of avoiding liability by convincing a jury that they acted reasonable in the face of all the challenges that Mother Nature has to offer in those harsh Kentucky winters.
Applying this new approach to the facts of Bullitt Host, the Supreme Court found that there were questions of fact about whether the Hotel acted reasonably with respect to the ice under the carport, as well as questions of fact about whether Carter acted with ordinary care for his own safety. The Supreme Court further stated that even if Carter was negligent, under comparative fault, he has a right to attempt to prove how any negligence on the part of the Hotel contributed to his injuries and to have a jury apportion fault accordingly. Therefore, the Supreme Court remanded the matter to the trial court for consideration of these issues.
A solution in search of a problem?
Justice Venters, in a dissenting opinion which was joined by Justices Abramson and Cunningham, would have affirmed the trial court’s decision to grant summary judgment to the Hotel. The dissenting Justices criticized the majority’s conclusion that the Manis rule was a product of contributory negligence and for confusing the concepts of duty and liability. Justice Venters emphasized that Manis’ rule that a landowner has no duty with respect to naturally-occurring accumulations of snow and ice has nothing to do with the contributory negligence of the invitee and in fact the Manis rule is completely indifferent to the conduct of the invitee because regardless of how careful or careless the invitee is, the landowner has no duty to render the property safe from the risks inherent to natural accumulations of snow and ice. Thus the shift to comparative fault did not alter the substantive law regarding the existence of a legal duty.
The dissenting justices recognized that the elimination of the Manis rule will have the harshest effect on residential landowners, “especially those who lack the means and resources to attack the hazard that nature has dropped upon their land.” Whereas before homeowners and renters did not have a duty to remove snow and ice that fell on their sidewalks and driveways, they would now be required to brave the elements in a futile attempt to eliminate the natural hazards thus satisfying their duty to take “reasonable measures” in light of the circumstances – a question always to be determined by the jury. Such a rule, according to Justice Venters, “opens the door to vast realms of new issues to litigate” and is nothing less than “a new rule for the sake of having a new rule, and a solution in search of a problem.”