Premises Liability, Open & Obvious, Post-McIntosh and Natural Conditions:

This is a Post-McIntosh, open and obvious, decision that needs to be read.  It seems the Court of Appeals has been on a run take a bite out of the McIntosh apple after the SCOKY seemed to do away with the contributory defense of “open and obvious” and place premises liability back into the world of comparative negligence.

Justice Keller seems to have gotten this message and written a succinct decisions addressing the McIntosh implications by putting taking the decision from a single judge’s view of the world and returning the factual question to a jury and their collective wisdom of the relative fault of the parties.

Good for Judge Keller!

This is only an extract of the decision and by-passes the McIntosh review and analysis.

376.  TORTS. PREMISES LIABILITY (SLIP AND FALL).  Post McIntosh decision dealing with natural hazards.
BRUNER (ELGAN), ET AL.
VS.
MIAMI MANAGEMENT COMPANY, INCORPORATED (collectively hereinafter Wendy’s), ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000616-MR
NOT TO BE PUBLISHED
JESSAMINE

KELLER, JUDGE: Elgan and Deanna Bruner appeal from the circuit court’s summary judgment in favor of Miami Management Company, Inc. and Wendy’s International, Inc. (collectively hereinafter Wendy’s). The Bruners argue that material issues of fact exist regarding the extent of liability Wendy’s has for Elgan’s slip and fall injuries. Wendy’s argues that the circuit court appropriately granted summary judgment because the danger Elgan confronted was open, obvious, and the result of “naturally occurring outdoor hazards.” Having reviewed the record and relevant law, we reverse and remand.

The facts are not in dispute. Early on the morning of January 27,

2009, Jessamine and surrounding central Kentucky counties were hit by a winter storm that blanketed the area with ice, sleet, and snow. Despite the weather, and warnings to remain off the roads except for emergencies, Wendy’s opened for business as usual. Before Wendy’s opened, a contractor plowed and salted the parking lot.

At approximately 2:00 p.m. that day, Elgan, who also ignored the weather and warnings, drove to Wendy’s to meet Deanna for lunch. Elgan arrived at Wendy’s approximately five minutes before Deanna, where he waited for her in his truck. When he pulled into the parking lot, Elgan noted that snow had been plowed from the lot; however, he did not see any evidence that the lot had been salted. After Deanna pulled into the parking spot next to his, Elgan got out of his truck, slipped on ice that he had not seen, and fell. Elgan then reported the accident to the assistant manager, who told him that another man had fallen earlier. After providing the assistant manager with information for an accident report, the Bruners went to the emergency room. As a result of the accident, Elgan suffered a torn right rotator cuff, which he has not had repaired, because he is uninsured.

Wendy’s assistant manager testified that he had walked the parking lot approximately every half hour and had not seen ice. He also testified that, after completing the accident report, he looked where Elgan had parked and saw slush but no ice.

On September 4, 2009, Elgan and Deanna filed suit against Wendy’s alleging that it had failed to: keep the property safe; prevent and/or correct unsafe conditions; and warn of the danger. Wendy’s responded, denied any liability, and, after undertaking some discovery, filed a motion for summary judgment. In its motion, Wendy’s argued that any dangerous condition was open and obvious to Elgan; therefore, it had no liability. The Bruners argued, in pertinent part, that summary judgment was not appropriate in light of the Supreme Court of Kentucky’s holding in McIntosh v. Kentucky River Medical Center, 319 S.W.3d 385 (Ky. 2010). The circuit court summarily granted Wendy’s motion and the Bruners appealed.

If an invitee falls victim to an open and obvious danger, he will have some,

perhaps a significant amount of, fault. However, “this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place. Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any.” Id. at 391.

The Court noted that the open and obvious doctrine implies that, absent a duty to warn of a known danger, the land possessor has no duty. However, under comparative fault, that cannot be the case. A land possessor has a duty to “eliminate or reduce the risk posed by unreasonable dangers. In short, ‘[e]ven when the condition is open and obvious, a landowner’s duty to maintain property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such condition.’” Id. at 393 (citing Phalen v. State, 11 Misc.3d 151, 804 N.Y.S. 2d 886, 898 (N.Y. Ct. Claims 2005) (emphasis in original). Thus the duty of the land owner is separate from that of the invitee and trial courts 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.

In this case, Wendy’s premised its motion for summary judgment on the argument that it had no duty to warn Elgan or otherwise protect him from the open and obvious danger. However, that is not the law. As noted by the Supreme Court in McIntosh, a landowner’s duty is twofold, to warn of dangers and to take steps to eliminate them. Under McIntosh, Wendy’s may not have had a duty to warn Elgan of the open and obvious danger; however, that did not relieve Wendy’s of its duty to take reasonable steps to eliminate or reduce the danger. Whether Wendy’s fulfilled that duty is a question of fact for the jury, not a question of law for the court. Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680 (Ky. App. 2009).

We note that Wendy’s argues that McIntosh should be narrowly applied to its facts, i.e. when the danger is manmade, not when the danger is the result of a natural hazard. We do not read McIntosh that narrowly. Based on our reading of McIntosh, a trial court is required to determine whether the landowner met its duty to protect the invitee in all circumstances where it is foreseeable that the invitee might: be distracted; realize there is a danger but forget about the danger; or choose to ignore the danger because the benefit outweighs the risk.

It is foreseeable that invitees to Wendy’s would appreciate a potential risk but proceed despite that risk. As Elgan admitted, he knew that there had been a snowfall, because he saw where the snow had been plowed off the parking lot. However, he proceeded despite that risk, believing that he would be stepping onto a parking lot that had been cleared.

Finally, we note Wendy’s argument that: local officials had warned people only to “venture out if faced with an emergency;” the federal government declared central Kentucky “a major disaster area” several days after the storm; and “despite reports of extreme weather and even a fallen tree on the road where [Elgan] resides, [Elgan] decided to meet his wife at Wendy’s for lunch.” That argument is a double-edged sword. Certainly, the factors cited by Wendy’s could weigh in favor of a finding by the trier of fact that Elgan is significantly, if not completely, liable for his injuries. However, those same factors could weigh in favor of a finding by the trier of fact that Wendy’s, when it decided to open for business, should have taken extra precautions to protect its customers. In any event, the choice of allocating fault is within the purview of the trier of fact and the trial court’s summary judgment was not appropriate.

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