In premise liability claims, a strong defense on behalf of commercial and residential landowners alike is the “open and obvious” doctrine. This rule bars a plaintiff’s claim if the hazard which caused the plaintiff’s harm (usually a trip/slip and fall) was either known and appreciated by the plaintiff, or obvious to a reasonable person. The general consensus had been that a landowner has no duty to warn others about “open and obvious” risks. Without such a duty, the landowner could not be liable for negligence under Kentucky law.
However, on August 26, 2010, the Kentucky Supreme Court issued its Opinion in Kentucky River Medical Center v. McIntosh, 2010 Ky. LEXIS 215, 2008-SC-000464-DG (Aug. 26, 2010), affirming the judgment of the Court of Appeals and the Breathitt Circuit Court, and holding that the Defendant landowners were not entitled to a directed verdict based upon the “open and obvious” nature of the hazard at issue. Rejecting the rule that defendants have no duty with respect to “open and obvious” hazards, the Court instead held that the issue of “open and obvious” is more relevant to the jury’s determination of the plaintiff’s comparative fault, if any. This means that summary judgment, based upon the “open and obvious” nature of a hazard may no longer appropriate under Kentucky law, at least for conditions created by, or known to, the landowner. Instead, under McIntosh, the degree of fault attributable to the plaintiff for failing to notice such a hazard under the particular circumstances is a question of fact for the jury.
Considering Kentucky’s view of comparative fault, the McIntosh court expressly adopted the position of the Restatement (Second) of Torts regarding the open and obvious doctrine, 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.” The Restatement commentary further elaborates that, even where a danger is open and obvious, there may be circumstances where a landowner should expect “the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.”
It is important to note that the individual facts of McIntosh played an important role in the court’s decision – the plaintiff in that case was rushing a critically ill patient into the ER when she tripped over a curb and was injured. Based upon the facts of that case, the court found that the plaintiff’s failure to notice an otherwise open and obvious condition was not only reasonable, it was foreseeable by the defendant hospital. Accordingly, the hospital could be held liable for her injuries.
The potential implications of McIntosh, however, extend far beyond the case itself. The likely interpretation by future plaintiffs’ counsel will be that summary judgment, based upon the “open and obvious” nature of the hazard at issue, is never appropriate for foreign conditions created by, or known to, the landowner. The argument will be that the landowner’s negligence in failing to remove the danger, and the plaintiff’s comparative fault for failing to avoid it, will always be questions of fact for a jury, under McIntosh and the Restatement (Second).
However, McIntosh is arguably limited to those cases involving fixed conditions created by, or known to, the landowner which are open and obvious. In other words, premise liability claims involving natural conditions (such as natural accumulation of ice and snow) or transient conditions (i.e. temporary spills) are likely still subject to the “open and obvious” defense by landowners.
If you would like a full copy of this case, or have any other questions related to premise liability matters, please feel free to contact one of our Premise Liability Practice Area Attorneys.
