Cause of Action: Slip and Fall and McIntosh Distinguished by COA

The following COA decision examined recent Supreme Court decision of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) involving an invitee and premises liability for an "open and obvious" defect defense and distinguished it from the facts of that case.  The COA facts were a minor was an employee for a halloween amusement park who was chopping wood with a machete and injured himself when another invitee spooked him.

This decision has limited applicability since it arose from a work-place injury to an employee in which the exclusive remedy provisions of the workers comp act were waived and not pled.

JOSEPH GAINES, A MINOR BY AND THROUGH HIS PARENTS, ET AL
VS.
DIAMOND POND PRODUCTS, INC.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-000848-MR
TO BE PUBLISHED
FAYETTE

However, Gaines argues that he was not an employee, but rather an invitee on Diamond Pond’s land. As a general rule, a land possessor owes a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them. Perry v. Williamson, 824 S.W.2d 869 (Ky. 1992). However, until recently in Kentucky, the open and obvious doctrine provided that land possessors could not be held liable to invitees injured by open and obvious dangers that were known to the visitor or otherwise so obvious that he would be expected to discover them. Rogers v. Prof’l Golfers Ass’n of Am., 28 S.W.3d 869 (Ky. App. 2000).
Recently, the Kentucky Supreme Court has modified the open and obvious doctrine in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). In Kentucky River, the Kentucky Supreme Court has adopted the position of the Restatement (Second) of Torts with respect to open and obvious conditions. That position is stated as follows:
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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.
Restatement (Second) of Torts § 343A(1) (1965)(emphasis added). Appellants argue that Kentucky River has abolished the open and
obvious doctrine as concerns premises liability and thus, under the facts of this case, all of the issues raised must be decided by a jury trial and the directed verdict was otherwise not appropriate. See Kentucky River, 319 S.W.3d 385. We disagree with appellants’ characterization and application of Kentucky River to this case. As noted, we believe Kentucky River modified the open and obvious doctrine, not abolished it, upon adoption of the position set forth in the Restatement (Second) of Torts § 343A(1). Likewise, under the facts of this case, we do not believe that Kentucky River precludes the entry of the directed verdict in this case. See Kentucky River, 319 S.W.3d 385.
The uncontroverted facts demonstrate that Diamond Pond did not breach its duty of care to Gaines, assuming he was an invitee, by failing to warn Gaines of a dangerous condition on its premises. In this case, Gaines created the dangerous condition that resulted in his injury by utilizing a dangerous weapon that was prohibited under Diamond Pond’s rules for Terror workers. Applying the newly adopted Restatement (Second) of Torts position, as previously stated, Gaines’ injury was not a foreseeable harm that Diamond Pond could anticipate nor was it caused by a known or obvious condition. See Kentucky River, 319 S.W.3d 385. If we were to follow appellants’ argument, a land possessor would become liable for any negligent act of an invitee that causes injury to the invitee, effectively penalizing the land owner or possessor where the invitee creates the “open and obvious danger” to himself. In other words, the land owner or possessor would be held to a duty of protecting the invitee from himself. This is not the law in Kentucky. We can find no authority to support this position nor is there any authority that would allow a comparative fault jury instruction under these circumstances. Simply put, we do not believe it is reasonable for Diamond Pond to have anticipated the harm that Gaines would inflict upon himself while being on Diamond Pond’s property. See James v. Wilson, 95 S.W.3d 875 (Ky. App. 2002).
In summation, the uncontroverted facts indicate that Gaines was injured by his own conduct in contravention of Diamond Pond’s rules, regardless of whether he was an employee or invitee. We reject appellants’ arguments that Diamond Pond breached various duties owed to Gaines and that breach of such duties caused Gaines’ injury. Under the facts of this case, there was no forseeability of the self-inflicted injury that was incurred by Gaines while a participant in Terror.

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