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.

In a negligence action, the plaintiff must demonstrate that a duty was owed, that it was breached and that that breached caused injury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). A landowner has a general duty to maintain the premises in a reasonably safe manner, and the scope of that duty is based on the status of the plaintiff. Shelton, 413 S.W.3d at 909. A person is characterized 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.” Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc., 997 S.W.2d 490, 491-492 (Ky. App. 1999) (quoting Black’s Law Dictionary, 827 (6th ed. 1990))(internal quotation marks omitted).

The Restatement (Second) of Torts § 332 (1965) provides a definition of “invitee.”. . . Comment b and c discuss the fine distinction between an “invitation,” which is necessary for an invitee, and “permission,” which is given to a licensee, to enter a premises:

An invitation differs from mere permission in this: an 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.

Combs v. Georgetown College, 2011 WL 3793410 (Ky. App. 2011).

Conversely, a licensee is one whose presence upon land is solely for his own purpose, in which the possessor has no interest, either business or social, and to whom the privilege of entering the premises is extended as mere favor by express consent or by general or local custom. Collins v. Rocky Knob Assocs., Inc., 911 S.W.2d 608, 612 (Ky. App. 1995). 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. Johnson, supra.

We need not enter into a protracted analysis of McIntosh and Shelton, as these cases address the somewhat evolving duty owed by possessors of land to invitees rather than licensees. Suffice it to say that the general principle espoused in McIntosh, and reiterated in Shelton, is that the open and obvious nature of a hazard does not necessarily absolve the possessor of liability as to an invitee. Rather, it is but one factor to be considered in determining whether the landowner or occupier satisfied his duty of care to the plaintiff.

When viewing the record in a light most favorable to Klinglesmith and resolving all doubts in her favor, we conclude that the Jefferson Circuit Court correctly found that there were no genuine issues as to any material fact and that the Estate was entitled to a judgment as a matter of law. The record supports Jefferson Circuit Court’s conclusion that Klinglesmith did not offer any proof of causation during the 17 month pendency of the action below. Klinglesmith did not observe any defects in the porch either before or after falling, did not present expert testimony as to any defect, and did not know why she fell other than to note that she felt an urge or compunction to fall after bending over to place the baking pan on the porch. Though the Court discussed McIntosh and other case law relating to duty, breach, and the question of whether any purported defect was open and obvious, it was upon the element of causation that the Court sustained the Estate’s motion. We find no error in the Jefferson Circuit Court’s conclusion that Klinglesmith could not prove the essential element of causation if the matter proceeded to trial; therefore, we find no basis for reversing the Order on appeal.

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