Some panels and some judges continue to go on their own merry way on what is meant by the SCOKY in its McIntosh decision regarding premises liability and the open and obvious defense. Here the case went to jury which held the manager of the premises liable, the defect not open and obvious, and the COA’s judges, Thompson, Lambert and Vanmeter, substituting their judgment of the facts over those of the jury. Maybe the changes by the SCOKY are not open and obvious to me.
519. TORTS. PREMISES LIABILITY. ANOTHER OPEN AND OBVIOUS POST-MCINTOSH DISMISSAL.
SMITH (ROXANNE), ET AL.
VS.
GRUBB (TERESA), ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND VANMETER (CONCURS)
2011-CA-000223-MR
TO BE PUBLISHED
CLAY
THOMPSON, JUDGE: Speedway SuperAmerica, LLC, and its local store manager, Roxanne Smith, appeal from the Clay Circuit Court’s findings of fact, conclusions of law and judgment (judgment) awarding Teresa Grubb $5,762.45 for past medical expenses, $175,000 for pain and suffering, and awarding her husband, Randy Grubb, $20,000 for loss of consortium. The issues presented are: (1) whether the trial court erred when it found Smith individually liable; (2) whether the open and obvious doctrine applied and precluded recovery; (3) whether the trial court properly considered Teresa’s comparative fault; and (4) whether Judge House, the trial judge, was required to recuse after he and the plaintiffs’ attorney were identified by a federal court as participants in a vote-buying scheme. After a review of the record and contemplation of the applicable law, we conclude that Smith cannot be individually liable and that the condition on Speedway’s premises was open and obvious.
In Lucas v. Gateway Community Services Organization, Inc., 343 S.W.3d 341 (Ky.App. 2011), the Court applied the law as modified in McIntosh. Similar to the present case, the plaintiff stepped on crumbling gravel in a parking lot and fell. The trial court granted summary judgment to the premises owner on the basis of the open and obvious doctrine and this Court affirmed. The plaintiff’s contention that McIntosh required that the issue of her carelessness be submitted to the jury was rejected. In doing so, this Court emphasized that there was no evidence that the plaintiff was distracted by some outside force or her view obstructed. Unlike McIntosh, she was not under time-sensitive or stressful circumstances but simply failed to exercise care for her own safety. Under the circumstances, summary judgment was appropriate. Id. at 346.
As in Lucas, we conclude that McIntosh did not preclude a directed verdict based on the open and obvious doctrine. It modified the doctrine to the extent that trial courts must analyze the facts on a case-by-case basis. Therefore, the open and obvious doctrine has not been eliminated in this Commonwealth, rather, McIntosh created an exception that is simply stated: even if a condition on a premises owners’ property is open and obvious, the owner will not be absolved from liability if it was foreseeable that the plaintiff would be distracted and not observe or appreciate the danger.
When a motion for summary judgment or directed verdict is made by the owner, the question becomes whether there is a material issue of fact regarding the foreseeability of the plaintiff’s injury. Absent a material issue of fact upon which a fact-finder could reasonably find that the injury was foreseeable, the open and obvious doctrine precludes recovery. Otherwise, it is a question of fact and the application of comparative fault.
In this case, Teresa fell when she stepped on eroded blacktop in proximity to a drain covered by a grate. Such imperfections are so common that they should be anticipated and observed by an invitee and, absent special aspects of the pothole or foreseeable distraction, the premises owner has no liability. As stated by the Michigan Court when presented similar facts:
[P]otholes in pavement are an “everyday occurrence” that ordinarily should be observed by a reasonably prudent person. Accordingly, in light of plaintiff’s failure to show special aspects of the pothole at issue, it did not pose an unreasonable risk to her.
Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 523, 629 N.W.2d 384, 389 (2001).
The photographs and testimony indicate that the pothole was several feet from any parked car, under a well-lit canopy, not uncommonly deep or shielded from view, and located near a drainage grate. It had no special aspects that would pose an unreasonable danger to an observant invitee but was an erosion of the surface, a common condition in parking lots. Teresa admitted that the pothole was not concealed: she simply failed to observe the pothole.
The Grubbs argue that because Smith and other Speedway employees did not notice the pothole prior to Teresa’s fall, it could not have been open and obvious. We disagree. The standard is an objective one and not dependent on whether the employees noticed the pothole. Although Teresa was not obligated to look directly at her feet with each step taken, in the exercise of ordinary care for her own safety, she was required to observe the surface of the parking lot. Humbert v. Audubon Country Club, 313 S.W.2d 405, 407 (Ky. 1958).
Under the undisputed facts, the exception to the rule that a premises owner is not liable to injured invitees for open and obvious conditions on its premises is not applicable. There is no evidence that Speedway knew or should have known that an invitee on its premises would blindly walk through its parking lot oblivious to common imperfections. The pothole was only a danger to the unwary. Hamlet, 13 S.W.2d at 1052-1053. Therefore, the trial court erred as a matter of law when it denied Speedway’s motion for a directed verdict.
