On November 21, 2013, the Kentucky Supreme Court issued two opinions which will significantly impact premises liability lawsuits in Kentucky – Shelton v. Kentucky Easter Seals Society, Inc.,1 and Dicks Sporting Goods, Inc. v. Webb.2 These cases cast the final stone at the premises owner’s “no duty” argument, essentially destroying its status as a dispositive issue in Kentucky and arguably abolishing the open and obvious defense.
Prior to Shelton and Webb, Kentucky’s open and obvious doctrine was governed by the Supreme Court’s decision in Kentucky River Medical Center v. McIntosh.3 Under McIntosh, premises owners were not liable for injuries caused by an open and obvious condition on their premises unless they could or should have anticipated the harm. The Court suggested that harm should be anticipated when premises owners have reason to expect that (i) invitees’ attention may be distracted so that they will not discover what is obvious or forget what they have discovered; (ii) invitees will fail to protect themselves against the hazard; or, (iii) invitees will proceed despite the knowledge of the hazardous condition because the benefit of proceeding outweighs the risk. In its wake, McIntosh left non-uniform application of its principles and widespread confusion regarding whether the analysis was one of duty or one of breach.
Shelton sought to clarify the post-McIntosh confusion and shifted the analysis toward breach - eliminating the “no duty” argument entirely. In Shelton, the plaintiff tripped on wires running from her husband’s hospital bed to nearby medical equipment despite the fact that, as a daily visitor, she knew about and was familiar with the wires. The plaintiff filed suit against the hospital, claiming that it should have done more to prevent her fall. The hospital argued that it had no such duty because the wires were open, obvious, and necessary. The Court disagreed, holding that every premises owner owes a general duty of reasonable care to every invitee, and the existence of a stipulated open-and-obvious hazard is not relevant to that analysis. In nearly thirty pages of dicta rendered along with the opinion, the Court stated that evaluation of the existence of a duty in the context of each particular hazard (i.e., to analyze whether the hazard is open-and-obvious) is “obtuse” and out of sync with Kentucky’s modern comparative fault principles. The Court found that the hospital may have breached its duty of care to the plaintiff regardless of whether the wires were open and obvious. Ominously, it suggested that the hospital could have employed “alternative solutions, warnings or precautions” to prevent her injury.
Under the post-Shelton analysis, the fact-based inquiry necessary to evaluate breach will present an inherent jury question in most, if not all, premises liability cases. The Court reiterated Kentucky’s high bar for dismissal prior to trial stating, “with 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.” Let us hope that is true. Now, juries will be tasked exclusively with determining how far premises owners must go to satisfy their duty to exercise reasonable care. The Court left only a tiny sliver of hope for future dispositive motions - when “no reasonable minds could differ” as to whether a premises owner exercised reasonable care in a given factual scenario.
Shelton’s companion, Webb, defines when an open-and-obvious hazard exists and, therefore, when the Shelton analysis applies. In Webb, two rugs located at the entrance of a Dick’s Sporting Goods store were angled in a “V” shape and saturated with water due to heavy rain. The plaintiff, seeing that the space inside the “V” was wet, stepped off the opposite side of the rug onto a floor tile which appeared to be dry. The tile, however, was wet and slippery, and caused her to fall. The Court held that the condition of the floor tile did not present an open and obvious hazard. It reasoned that, definitionally, an open and obvious condition is one which a plaintiff subjectively perceives and one that a reasonable person, through the exercise of ordinary attention and perception, knows or should know about. Since the plaintiff did not know that the tile she stepped onto was slippery (and there was no indication that a reasonable person would have known), the hazard was not open and obvious. As such, traditional negligence principles applied, and the Court held that an invitee’s duty of care under traditional negligence principles does not require looking for more than an “instant” to detect a potentially hazardous condition – even though the plaintiff admitted that she knew about the wet conditions in the area.
Shelton and Webb raise the bar even higher in Kentucky for obtaining summary judgment in premises liability cases. Beyond their holdings, the Court’s extensive dictum relative to modern comparative fault principles reaches into cases well outside of the premises liability context. That impact is yet to be explored. Perhaps Justice Scott, dissenting in Shelton, summed up the impact of these landmark rulings for premises owners best when he stated, “Oh well, no more peanut shells on the steakhouse floor!” That will, of course, be up to a jury.
If you should have any questions with respect to these cases, or any issue of premises liability, please contact a member of our Retail & Hospitality Liability Practice Group.
1 Shelton v. Kentucky Easter Seal Society, Inc., 2011-SC-000554-DG (Ky. November 21, 2013).
2 Dick’s Sporting Goods, Inc. v. Betty C. Webb, 2011-SC-000518-DG (Ky. November 21, 2013). 3 319 S.W.3d 385 (Ky. 2010).