Mall receives protection from slip and fall by exercise walkers. Or, a trip to the mall for exercise does not include a “trip” at the mall. Of course, where is the line to be drawn from an exercise walk vs. window shopping and can the role change between stores?
The Kentucky Court of Appeals announced 321 decisions on May 8, 2015, with two (2) of their opinions designated to be published.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals). AOC version of this week’s decisions can be accessed by clicking here.
For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.
Of interest to injury lawyers, are the nonpublished decisions with the Court of Appeals seemingly ignoring Three Rivers, Shelton and other slip and falls cases attempting to lay to rest the open and obvious doctrine.
Published appellate cases for week of May 8, 2015:
366. Criminal Law. COA vacated and remanded revocation of conditional discharge
Anthony Williams vs. Commonwealth of Kentucky
COA Published 5/8/2015; Opinion vacating and remanding, Jefferson Cir Ct
COMBS, JUDGE: This case is before us on discretionary review. Williams appeals the order of the Jefferson Circuit Court which affirmed the revocation of his conditional discharge in Jefferson District Court. After our review, we vacate and remand.
369. Criminal Law. Search and seizure.
Matthew Baker vs. Commonwealth of Kentucky
COA Published 5/8/2015; Affirming Fayette Cir Ct
COMBS, JUDGE: This appeal has been filed by Matthew Baker as a result of our grant of his petition for discretionary review of a Fayette Circuit Court order. The Fayette Circuit Court had affirmed a Fayette District Court order denying a motion to suppress. At issue is whether the police had reasonable suspicion to initiate a traffic stop of Baker. We affirm the order of the Fayette Circuit Court affirming the denial of the motion to suppress by the Fayette District Court.
Tort Report – Insurance, Civil, Tort Decisions – 5/8/2015
361. Premises Liability.
Post-Shelton vs. Ky Easter Seal Society remand with COA decision still finding no liability against the landowner for fall on steps
Amanda Spears vs. Sweet Tooth Candies
COA NPO 5/8/14; Affirming. Campbell Cir Ct
BEFORE: ACREE, CHIEF JUDGE, DIXON AND MAZE, JUDGES.
ACREE, CHIEF JUDGE: This case is before us on remand from the Kentucky Supreme Court to reconsider our previous opinion in light of the Supreme Court’s recent decisions in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), and Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013). Upon further consideration and applying these cases, we again affirm.
We have very little problem concluding that no reasonable person would regard these steps as an unreasonable risk to invitees. The risk created by the steps would be obvious to a reasonable person in Spears’s position and the steps themselves, including the last step, would be safely descended by anyone who was minimally attentive and utilizing practical faculties of observation and simple powers of ambulation. Because we find that the danger at issue did not amount to an unreasonable risk, we likewise conclude that Sweet Tooth did not breach its duty of care. Again, that duty was to warn against or minimize unreasonable risks. Absent an unreasonable risk, there is no breach.
In sum, we conclude that no reasonable jury could find that Sweet Tooth breached its duty of care to Spears. Accordingly, we affirm the circuit court order dismissing Spears’s premises-liability claim, albeit on different grounds.
MAZE, JUDGE, DISSENTING: I respectfully dissent for the reasons that I recently expressed in Ward v. JKP Investments, LLC, No. 2013-CA-001706-MR, 2015 WL 293332 (Ky. App. 2015). As I noted in my dissent in that case, the Kentucky Supreme Court’s decision in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), expressly eliminated much of the emphasis on a condition’s “open and obvious” nature, instead focusing primarily on the factual issue of foreseeability. Summary judgment is still appropriate in such cases only when reasonable minds could not differ as to breach and causation. Id. at 914. While the majority makes such a finding, they do so based upon Spears’s inattention to the condition of the step and where she was stepping, and the open- and-obvious nature of the step. Under Shelton, I am compelled to conclude that these are factual questions for the jury to decide. Consequently, I reluctantly conclude that summary judgment was not appropriate in this case.
363. Government Immunity for fall at school.
Johnny J. Shoupe vs. Lisa Siebert
COA, Not Published
CLAYTON, JUDGE: Johnny Shoupe appeals the Laurel Circuit Court’s orders granting Lisa Sibert and David Young’s motion for summary judgment and denying Shoupe’s motion to alter, amend, or vacate. After careful consideration, we affirm the decision to grant the summary judgment but for a different reason than that of the trial court. We conclude that the appellants were entitled to qualified official immunity, and therefore, not potentially liable for Shoupe’s injury after his fall on school property.
Turning to the facts herein, we observe that within the purview of qualified official immunity, public officers and employees are shielded from liability for the negligent performance of discretionary acts which are performed in good faith and within the scope of the officer’s authority. Sibert, as principal of Bush Elementary, and Young, as superintendent of the Laurel County Schools, acted within the scope of their authority and in good faith in overseeing the maintenance of school property. Given that a discretionary act involves the exercise of personal judgment and that no specific statute or directive existed to direct the supervision of the parking lot’s repaving, we conclude that Sibert and Young’s actions were discretionary, and as such, entitled to qualified official immunity. Thus, even if the actions of Sibert and Young were negligent, their actions are protected by qualified official immunity and not subject to suit.
368. COA vacated and remanded summary judgment on injury claim against school for injuries from fall
Adair County Board of Ed. vs. Patrick Buck
COA NPO
370. Premises Liability. Recreational use statute and mall exercisers.
Johnnie Bryant vs. Jefferson Mall
COA NPO
COA applied recreational use statute for injuries sustained by exercise walker through the mall.
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