Case Notes: Another Court of Appeals, Post-Shelton, “open and obvious”, slip and fall, jury question, question – Ward vs. JKP Investments LLC and James Kevin Porter, COA Published 1/23/2015

Attorneys representing the injured claimants on the appeals in the Shelton v. Kentucky Easters Seals and Dicks Sporting Goods vs. Webb, both argued on same date. From Left to right - Kelly Spencer &  Brad Slutskin for Betty Webb, Joe Pepper for Wilma Jean Shelton, and Kevin Burke on Amicus Brief for Kentucky Justice Association

Attorneys representing the injured claimants on the appeals in the Shelton v. Kentucky Easters Seals and Dicks Sporting Goods vs. Webb, both argued on same date.
From Left to right – Kelly Spencer & Brad Slutskin for Betty Webb, Joe Pepper for Wilma Jean Shelton, and Kevin Burke on Amicus Brief for Kentucky Justice Association

The title of this post says it all, and to put it in perspective, I will lead with Judge Maze’s dissent from the majority in this decision (Judges Vanmeter and Kramer (formerly Moore)).  I was present during the oral arguments before the Supreme Court of Kentucky, have read the triad of decisions by SCOKY, and most unabashedly must confess Judge Maze, in my humble opinion, got it right.

And, when it comes to the human mind and foreseeability, I refer you to the book “the invisible gorilla” by Christoper Chabris and Daniel Simons.

Chief Justice Minton said it best, as follows, in Shelton:

We alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a nobreach determination, dismissing a claim on summary judgment or directed verdict when there is no negligence as a matter of law, the plaintiff having failed to show a breach of the applicable duty of care. This approach places the reasonable-foreseeability analysis where it belongs—in the hands of the factfinders, the jury. This approach continues Kentucky’s, along with a growing number of states’, slow, yet steady, progress to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims. And this approach brings transparency and consistency to the decision-making and reasoning of Kentucky’s judges.

Here are the three decisions from SCOKY:

I would suspect this issue will go up to the Supreme Court for a third time.  Especially, since attorney Joe Pepper was arguing for the injured party in both Shelton vs. Kentucky Easter Seals and Janice Ward vs. JKP Investments.  And come heck or high water, my wife, Diane and I will be present again.

Janice Ward vs. JKP Investments, LLC
COA Published 1/23/2015
Opinion affirming; Jefferson Cir. Ct. (Judge James M. Shake)
VANMETER, JUDGE: Janice Ward appeals from the Jefferson Circuit Court’s order dismissing via summary judgment her personal injury action against JKP Investments, LLC. Upon review of the record and applicable law, we affirm.

* * *

The Jefferson Circuit Court’s order is affirmed.



MAZE, JUDGE, DISSENTING: I respectfully dissent. Though I find no fault with my colleagues’ summation of current premises liability law in Kentucky, I nevertheless believe that law compels a different result in the present case.

Following an initial attempt in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), our Supreme Court recently continued its efforts to square Kentucky’s premises liability law with the Commonwealth’s adherence to the doctrine of comparative negligence. Most notably, in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 904 (Ky. 2013), the Supreme Court stated its intention to “alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a no-breach determination” and to place “the reasonable-foreseeability analysis where it belongs-in the hands of the fact-finders, the jury.” The impact of the Court’s reasoning in Shelton, and even Dicks Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), on summary judgment in premises liability cases could hardly have been greater.

In its opinion in the present appeal, the majority contends that because the condition of the stair was not concealed, and because the plaintiff failed to observe its condition throughout her previous trips up and down the stairs, the risk posed by the crumbling step was not unreasonable. Hence, my colleagues conclude that “reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation” and that summary judgment was appropriate.

Due to the aforementioned changes in premises liability law, I must disagree with my colleagues, as I believe the case requires a jury’s determination.

The Supreme Court’s decision in Shelton expressly eliminated much of the emphasis on a condition’s “open and obvious” nature, removing it as a fact which, if shown, would absolve a defendant of his duty and placing it as a mere factor to be considered in determining breach and causation. This shifted the analysis from one of legal calculation to one of factual determination only to be summarily ended when reasonable minds could not differ as to breach and causation. I proffer that this is not the case.

Rather, in light of our Supreme Court’s decision in Shelton, I contend that the questions of foreseeability, Janice’s attention or inattention to the condition of the step and where she was stepping, and the open and obvious nature of the step must remain to inform a jury’s analysis of the defendant’s breach and even the comparative fault of the parties in this case. While the Supreme Court announced that summary judgment remains a viable possibility in premises liability cases, it is undeniably more difficult to obtain after Shelton. This being the case, and on these facts, I believe it was inappropriate for the trial court to grant summary judgment, and that the matter must proceed to a jury.

Continue reading for the entire text of the COA decision.

Cause of Action: Premises Liability Open and Obvious Hazard Distinguished by COA for licensee (as opposed to invitee) (Klinglesmith vs. Estate of Reba Pottinger, COA, NPO 9/12/2014)

Klinglesmith vs. Esate of Reba Pottinger
Premises Liability.  Slip and Fall.  Licensee treated differently on open and obvious.
COA Not Published 9/12/2014; PJ Stumbo Affirming

[Although the issue of plaintiff’s failure to offer proof of causation was the basis to the lower court’s summary judgment and the Court of Appeals’ affirmance of the dismissal, Judge Stumbo in her opinion addressed a distinction on how open and obvious interplays with the landowner’s duties to an invitee (as in Shelton and McIntosh vs. a licensee in Klinglesmith.  This is why the case is noted under the topic causes of action.]

STUMBO, JUDGE: Stella Klinglesmith appeals from an Order of the Jefferson Circuit Court dismissing via Summary Judgment her personal injury action against the Estate of Reba Pottinger. Klinglesmith contends that the court erred in concluding that the open and notorious doctrine barred her recovery, and that she would be unable to demonstrate causation if the matter proceeded to trial.

As a basis for the Order granting Summary Judgment, the Court noted that Klinglesmith testified in her deposition that she did not observe any defect in the porch and was not sure why she fell. After discussing Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), and the exception to the open and obvious doctrine, the Court determined that Klinglesmith had over a year since the filing of this action to conduct discovery, and had not established that the condition of the porch was a substantial factor in causing her injury. The Court rendered Summary Judgment, and this appeal followed.

Klinglesmith contends that under Shelton, an open and obvious condition does not eliminate a landowner’s general duty to maintain premises in reasonably safe condition or the duty to warn of or eliminate unreasonably dangerous conditions, but, rather, is factor in determining whether landowner fulfilled his or her duty of care. Klinglesmith appears to contend that the Jefferson Circuit Court erred in absolving the Estate of liability because the defect in the

The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klinglesmith engage in an activity of the type that the owner conducts or permits to be conducted on his land.

Causes of Action: Premises Liability – Licensee vs. Invitee

caution wet floor

The following not to be published decision from the Court of Appeals addresses the duties owed to a licensee vs. an invitee and how the distinction made a difference to the plumber whose suit was dismissed and affirmed on appeal.

Rozeboom vs. Hugh Jass Burgers LLC
COA NPO 6/28/2013

TAYLOR, JUDGE: Wes Rozeboom brings this appeal from an April 3, 2012, summary judgment of the Fayette Circuit Court dismissing Rozeboom’s premises liability action against Hugh Jass Burgers, LLC. We affirm.

Rozeboom asked permission from the manager of Hugh Jass Burgers to enter the restaurant and repair the waterline for The manager of Hugh Jass Burgers gave Rozeboom permission to enter the restaurant. On the day of the accident, Rozeboom entered the restaurant at approximately 8:00 a.m., before the restaurant opened to the public. After working for several hours, Rozeboom started removing his tools from the restaurant, and after a couple of trips, he slipped on a greasy spot on the floor and fell, causing a fracture to his tibial plateau.

Rozeboom contends that the circuit court improperly rendered summary judgment by dismissing his premises liability claim against Hugh Jass Burgers. In particular, Rozeboom claims that he was an invitee at the time of his injury as his work also benefited Hugh Jass Burgers. Rozeboom believes the circuit court erroneously concluded that he was a licensee or independent contractor at the time of his injury.

The resolution of this appeal revolves solely upon the issue of whether Rozeboom was an invitee at the time of his injury. Rozeboom believes he was an invitee; conversely, Hugh Jass Burgers argues he was not an invitee but rather was a licensee. For the following reasons, we conclude that Rozeboom was a licensee and was not an invitee.

In this Commonwealth, an individual is considered an invitee if:

(1) he enters by invitation, express or implied, (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner.

West v. KKI, LLC, 300 S.W.3d 184,190 (Ky. App. 2008) (quoting Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 491-92 (Ky. App. 1999)).

Therefore, to constitute an invitee, it must be initially determined whether the individual entered the premises upon the invitation of the landowner. Such invitation may be either expressed or implied. Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870 (1942). An express invitation normally occurs through the verbal language of a landowner, and an implied invitation occurs when:

[T]he owner or occupant does something or permits something to be done which fairly and reasonably indicates to the person entering the premises, that his presence is consistent with the intentions and purposes of the occupant, and leads the one entering to believe that the use is in accordance with the design or purpose for which the place is adapted, and to be used in mutuality of interests.

Shoffner, 166 S.W.2d at 873. By contrast, an individual who enters the premises upon the mere permission of a landowner is considered a licensee. The distinction between invitation or permission of a landowner is pivotal to the determination of the status of the entrant. This distinction has been eruditely explained:

[A]n invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. . . .

Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee, as stated in § 330; but it does not make him an invitee, even where his purpose in entering concerns the business of the possessor. . . .

Restatement (Second) of Torts § 332 cmt. b (1965).

In the case at hand, Rozeboom asked permission to enter the restaurant for the sole purpose of repairing a leaky pipe for For this limited purpose, the manager of Hugh Jass Burgers consented to Rozeboom’s entry. Rozeboom was not employed by Hugh Jass Burgers and performed no repairs at the behest of Hugh Jass Burgers. Additionally, Rozeboom entered the restaurant at 8:00 a.m., well before it opened to the general public and did not dine at the restaurant.

From these facts, it is clear that Rozeboom did not enter the restaurant upon the express or implied invitation of Hugh Jass Burgers. Rather, the manager of the restaurant merely gave Rozeboom permission to enter the restaurant if he desired to do so. And, the mere fact that Rozeboom’s entry may have indirectly benefited Hugh Jass Burgers does not equate to an implied invitation under the particular facts herein. Simply stated, the undisputed facts indicate that Rozeboom’s entry into the restaurant was the direct result of his own insistence for the benefit of and was not at the express or implied invitation of Hugh Jass Burgers. Thus, we conclude that by entering the restaurant by request and upon the permission of the manager of the restaurant, Rozeboom was legally a licensee at the time he suffered his injury.

Accordingly, being a licensee at the time of his injury, the circuit court properly rendered summary judgment dismissing Rozeboom’s premises liability action against Hugh Jass Burgers, LLC.

For the foregoing reasons, the summary judgment of the Fayette Circuit Court is affirmed.

Std. of Review: Summary Judgment on Appeal and Opposing Party Presenting Some Affirmative Evidence

902.  Summary Judgment Reversed on Appeal; Torts. Slip and Fall, Premises Liability, Ice and Natural Hazards
Ollie Barker vs. John D. Northcutt
Rowan County, Judge William Evans Lane
Not to be Published, 9/20/2013

Here is the summary judgment portion of the opinion detailing the standard and the opposing party’s burden:

At the outset we note that the applicable standard of review on appeal of a summary judgment is, “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Kentucky Rules of Civil Procedure (CR) 56.03. The trial court must view theecord “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only “where the movant shows that the adverse party could not prevail under any circumstances.” Id. However, “a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial.” Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992), citing Steelvest, supra. See also O’Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006); Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).

Since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court’s decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001). With this in mind we now turn to the issues raised by the parties.

CAPERTON, JUDGE: Ollie Barker appeals from the grant of summary judgment in favor of John D. Northcutt and Northcutt & Son Home For Funerals, Inc. (hereinafter “Northcutt”). After our review of the parties’ arguments, the record, and the applicable law, we agree with Barker that a genuine issue as to a material fact exists precluding summary judgment. Thus, we reverse and remand this matter for further proceedings.

The facts of this case revolve around a slip and fall outside of Northcutt’s Home for Funerals.

On appeal, Barker argues that the trial court erred in granting summary judgment. Northcutt argues: (1) based on longstanding Kentucky law regarding naturally occurring outdoor hazards, the grant of summary judgment was correct; and (2) Barker’s interpretation of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) is misplaced.1 With these arguments in mind we turn to our jurisprudence.

In Kentucky, a danger is “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man in the position of the visitor exercising ordinary perception, intelligence, and judgment.” Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 529 (Ky. 1969) (citations omitted). “Whether a natural hazard like ice or snow is obvious depends upon the unique facts of each case.” Schreiner v. Humana, Inc., 625 S.W.2d 580, 581 (Ky. 1981).

Barker was aware of the inclement weather.  Contrary to the arguments of Northcutt this awareness by itself does not mandate summary judgment. Unlike the plaintiff in Green, it was not until after he fell that Barker could see that ice was present, that it had mounded2 up and that it was plainly visible. We believe that under these facts summary judgment was premature because there is an issue regarding the obviousness of the hazard prior to Barker’s falling. As such, we reverse and remand this matter for further proceedings.

CAUSE OF ACTION: Duty of Care Owed Social Guest – Licensee


“To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff’s damages.” Lee v. Farmer’s Rural Elec. Co-op. Corp., 245 S.W.3d 209, 211-12 (Ky.App. 2007). “Whether the defendant owed a duty is a question of law for the court to decide. Whether the defendant breached its duty is generally a question of fact for the jury.” Id. at 212 (internal citations omitted). For purposes of determining the duty of care, a social guest is considered a licensee. See Shipp v. Johnson, 452 S.W.2d 828, 829 (Ky.1969). A property owner owes a licensee “only the duty to warn him of a dangerous condition already known to the possessor.” Mackey v. Allen, 396 S.W.2d 55, 58 (Ky. 1965).