The Kentucky River Medical Center v. McIntosh decision by the Supreme Court made a significant change to the 'open and obvious' standard for slip and fall cases which had become almost an automatic summary judgment dismissal of the claims. I am including the following decision, since it is a review on appeal of a case decided by summary judgment at the trial level applying the "old" standard and how the appellate court reversed and remanded same:
From Embry v. Mac's Convenience Stores, COA, NPO, 3/18/2011
Also after briefing was completed in this appeal, the Kentucky
Supreme Court rendered its opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), which modified the “open and obvious” doctrine of premises liability. In Kentucky River, the Kentucky Supreme Court adopted the position of the Restatement (Second) of Torts with respect to “open and obvious conditions,” 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.
Kentucky River, 319 S.W.3d at 389 quoting Restatement (Second) of Torts § 343A(1) (1965)(emphasis added).
The Supreme Court provided the following directions to the trial courts to assist them in implementing the modified standard:
The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable.
Id. at 392.
Recognizing the pertinence of Kentucky River to his case, Embry filed a notice of supplemental authority with this Court which we treated as a motion to supplement authority and subsequently granted. The circuit court, however, never had the opportunity to consider the facts of this case in light of the modified standard. Nor did counsel for the parties have the opportunity to present evidence and arguments in light of the modified standard. “Since this is an appellate court, our function is to review possible errors made by the trial court. If such court has had no opportunity to rule on a question, there is no alleged error before us to review.” Commonwealth, Department of Highways v. Williams, 317 S.W.2d 482, 484 (Ky. 1958). “[T]he trial court . . . is in the best position to consider any
additional arguments presented to it on remand. . . . .” Brown v. Louisville Jefferson County Redevelopment Authority, Inc., 310 S.W.3d 221, 225 -226 (Ky.App. 2010). Therefore, we remand this case to the trial court to consider what effect, if any, the holding in Kentucky River and the presentation of evidence and arguments by counsel may have on its grant of summary judgment to the appellees.
Conclusion The order setting aside the default judgment is therefore affirmed.
The orders granting summary judgment to the appellees are hereby reversed and the matter is remanded for further consideration in accordance with this opinion.