slipandfallA 4-3 decision announced this past week and authored by Chief Justice Minton should end nearly three years of parsing and quibbling over their earlier decision in Kentucky River Medical Center v. McIntosh,  319 S.W.3d 385 (Ky. 2010) which by many accounts marked the demise of the “open and obvious” doctrine in premises liability cases.  Well, “open and obvious” is gone, gone, gone, and its eulogy recognized in Justice Scott’s dissent in the following case.

The Supreme Court’s decision in Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc., 2011-SC-000554-DG, should serve as a landmark in Kentucky jurisprudence not only on the limited issue presented in premises liability law but on the  historical power of the common law of the Commonwealth as a bulwark in the protection of the public’s right to be secure and safe and the duty of care owed to others and to  yourself. More importantly (and I may well be alone on this), but I see this decision also as a Magna Carta moment for Chief Justice Minton and the current court on our historical and constitutional right to a civil jury trial – a right that seems to have eroded in the wake of summary judgment expansion and the convenience of the courts to handle a docket of cases growing in complexity and number.

Let us not forget the judiciary is a separate and equal branch of our government.  And that the common law and the right to a jury trial in civil cases are part and parcel of the judiciary’s power.  The right to an independent jury goes back to the Trial of William Penn (aka Bushell’s Case) in 1670 and was echoed in the Trial of John Peter Zenger, and the authority of the common law stood as a check on the Crown.

 

As Chief Justice Minton noted in the last paragraph of his opinion:

We reverse the Court of Appeals and remand the case for further proceedings because Cardinal Hill had a duty to Shelton and there remains a question of material fact whether that duty was breached or not. The approach we embrace in this opinion brings Kentucky even further into the modern era of tort law and takes one more step in our journey toward a fairer system less burdened by vestiges of contributory negligence. We may walk slowly in the law, but we should never walk backward. 65 Perpetuating the confusion engendered by the open-and-obvious doctrine would be a step backward. 

Although I applaud this decision for looking forward and not retrenching from Justice Noble’s opinion written in McIntosh, I cannot help but feel sorrow for those claimants who  met the “resistance” and ultimately were denied compensation or at least a chance to be heard on their claims following the remand of their cases the post-McIntosh remands but before Shelton.

Here is a brief summary of Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc.:

While tending to her husband during his stay in Cardinal Hill Rehabilitation Hospital,’ Wilma Jean Shelton became entangled in some wires strung along the side of his bed and fell, fracturing her kneecap. She later filed this personal injury action against Cardinal Hill, but the trial court dismissed her claim on summary judgment. The trial court reasoned that Cardinal Hill owed no duty of care to Shelton because the wires were an open-and-obvious condition. The Court of Appeals affirmed the trial court’s grant of summary judgment but ruled before we rendered our decision in Kentucky River Medical Center v. McIntosh [319 S.W.3d 385 (Ky. 2010).] We granted discretionary review and remanded the case to the Court of Appeals for reconsideration in light of McIntosh. The Court of The Appellant, Easter Seals Society, Inc., owns and operates Cardinal Hill Rehabilitation Hospital. We refer to the Appellant as “Cardinal Hill” throughout this opinion. Appeals again affirmed the trial court’s dismissal. This appeal followed. We granted discretionary review to examine and clarify the impact of the modifications to Kentucky premises-liability law announced in McIntosh. Because we disagree with the result and the analytical approach taken by the Court of Appeals, we must now reverse. The opinion of the Court of Appeals retreated from the positive and progressive steps begun in McIntosh by applying principles rooted in the bygone era of contributory negligence. And the Court of Appeals reached its result using a foreseeability and duty analysis—an approach we recognize as having widespread application in our precedent—that we find confusing and incompatible with modern tort law trends. We alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a nobreach determination, dismissing a claim on summary judgment or directed verdict when there is no negligence as a matter of law, the plaintiff having failed to show a breach of the applicable duty of care. This approach places the reasonable-foreseeability analysis where it belongs—in the hands of the factfinders, the jury. This approach continues Kentucky’s, along with a growing number of states’, slow, yet steady, progress to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims. And this approach brings transparency and consistency to the decision-making and reasoning of Kentucky’s judges. * * * The core of not only this case, but the entire line of open-and-obvious cases, is located outside the duty analysis. Traditionally, a defendant’s liability would be excused because the court would determine the defendant did not owe a duty to the plaintiff because of the obviousness condition. This is the procedure seemingly promoted by McIntosh with Section 343A. At the very least, McIntosh did not discourage the practice because it has continued 32 See www.cardinalhill.org/chrh (last visited July 24, 2013). Under “spinal cord injury,” “brain injury,” “stroke,” and “amputation” Cardinal Hill states that “[flamily members are included in the treatment team, and we encourage active family participation as the patient works to achieve functional goals.” without interruption. While this approach has been widespread, we believe it to be flawed. A defendant’s absolution from liability for a plaintiff’s failure to take notice of and avoid an open and obvious danger is a concept long entrenched in our jurisprudence. Unfortunately, the discussion surrounding this principle has often, if not always, overlooked the applicable standard of care. The existence of a duty has been the focus of courts when facing claims of this nature and is, too often, diapositive. We write today to shift the focus away from duty to the question of whether the defendant has fulfilled the relevant standard of care. To label the open-and-obvious doctrine’s continued spotlight on duty as a vestige of contributory negligence is compelling but not essential to our understanding. Both the open-and-obvious doctrine and contributory negligence seemingly target the conduct of the plaintiff in determining whether liability for the defendant should attach. But we find it important to point out that when the open-and-obvious doctrine relieves a defendant of liability, it is not because damages are not recoverable as a matter of policy (as the case with contributory negligence). Instead, the defendant is not liable because he has failed to satisfy the standard of care in the given factual scenario. In attempting to be faithful to precedent, courts, including this Court, have muddied the water and confused the issues. McIntosh was the first step in clearing the confusion, and today we advance our progress. * * * Accordingly, an open-and-obvious condition does not eliminate a landowner’s duty. Rather, in the event that the defendant is shielded from liability, it is because the defendant fulfilled its duty of care and nothing further is required. The obviousness of the condition is a “circumstance” to be factored under the standard of care. No liability is imposed when the defendant is deemed to have acted reasonably under the given circumstances. So a more precise statement of the law would be that a landowner’s duty to exercise reasonable care or warn of or eliminate unreasonable dangers is not breached. “When courts say the defendant owed no duty, they usually mean only that the defendant owed no duty that was breached or that he owed noduty that was relevant on the facts.” And without breach, there can be no negligence as a matter of law. We have reached this conclusion after carefully considering the role foreseeability plays in our jurisdiction’s duty analysis. In previous open-and obvious cases, because the question of duty is a question of law, we have also treated the foreseeability of harm as a question of law. As a result, especially when cases are before courts on motion for summary judgment, courts are left in “the peculiar position . . . of deciding questions, as a matter of law, that are uniquely rooted in the facts and circumstances of a particular case and in the reasonability of the defendant’s response to those facts and circumstances.”  Too often, in our opinion as a result of the factual nature of foreseability, when deciding the duty issue, courts identify the existing duty in fact-specific statements.  “An attempt to equate the concept of ‘duty’ with such specific details of conduct is unwise, because a fact-specific discussion of duty conflates the issue with the concepts of breach and causation.” In open-and-obvious cases, especially, complication often arises “because it is all too easy to confuse a finding for the defendant on the facts of a particular case with a rule of law for all cases”; and “[i]n some particular cases, the obviousness of danger is compelling, so that the court might take the case from the jury by directed verdict or summary judgment.”  Furthermore, a noduty determination creates a perception that the plaintiff was contributorily negligent.  As a result, the true reasoning behind the summary judgment—no breach by the defendant—is obfuscated.” In the present case, the no-duty determination supported by the lower courts gives the impression that “the court’s decision is separate from and antecedent to the issue of negligence.” 45 “The extent of foreseeable risk” at the time of the defendant’s alleged negligence “depends on the specific facts of the case and cannot be usefully assessed for a category of cases; small changes in the facts may make a dramatic change in how much risk is foreseeable. Thus, courts should leave such determinations to the trier of fact unless no reasonable person could differ on the matter. [emphasis added by blog editor]” It is important to note that whether a duty of care exists is a wholly different and distinct concept from whether a standard of care, typically that of reasonable or ordinary care, is met or satisfied. 47 One is a purely legal question, grounded in social policy, while the other is inherently fact-intensive, grounded in common sense and conduct acceptable to the particular community. Accordingly, the foreseeability of the risk of harm should be a question normally left to the jury under the breach analysis. 48 In doing so, the foreseeability of harm becomes a factor for the jury to determine what was required by the defendant in fulfilling the applicable standard of care. This approach is completely consistent with the result reached by thisCourt in McIntosh. In McIntosh, we held that the hospital’s motions for summary judgment and judgment notwithstanding the verdict were appropriately granted. McIntosh, a paramedic, tripped over a curb, unique in both location and size, as she rushed a patient into the hospital. The entrance used by McIntosh was the emergency entrance where paramedics routinely bring patients suffering a myriad of traumas. It cannot reasonably be argued that the hospital did not owe McIntosh a duty and, in point of fact, the Court held such. The McIntosh Court determined that a reasonable juror could find the defendant hospital certainly had reason to foresee that an individual entering the hospital through that entrance would be distracted and forget or fail to notice the condition, i.e. the unusually placed curb, and that either the curb should have been eliminated or some other precaution should have been taken to eliminate or more adequately warn of the hazard. And, as the court found, it was certainly foreseeable that McIntosh, as a paramedic, would proceed despite the risk posed by the curb. When viewed through the lens of breach, this analysis does not involve the specific fact-intensive duties 55 that are produced when foreseeability remains a part of the duty analysis. Instead, we are left with a coherent picture of the factual circumstances and any potential liability for the defendant. * * * Furthermore, with our recommitment to a very stringent standard for summary judgment in Steelvest and the rejection of the much more lenient federal standard, we expressed our support for a policy that summary judgment is not to be used as a defense mechanism. 60 Instead, summary judgment is to be cautiously employed for cases where there is no legitimate claim under the law and it would be impossible to assert one given the facts. Legitimate claims should be allowed to proceed to a jury. And we should not fear jury determinations. Admittedly, juries may be unpredictable; but relatively recent studies show that juries usually reach the same conclusion a judge would have reached had the judge decided the case as a matter of law. 61 Inded, acording tone study, in 78 percent of cases judges would have ruled the same as juries, with the main reason for disagreement being the judge would have imposed liability where the jury did not. 62 As our tort law has progressed, we have stated through numerous decisions that plaintiffs should not be barred from bringing legitimate claims. The approach we adopt today, adopted in a number of other states, continues this policy. Our action today should not be viewed as a major change in our law. The questions are not changing, their locations are. “To say, as we have in the past, that a defendant had no duty, under particular circumstances, to foresee a particular harm is really no different from saying that the defendant’s duty to take reasonable care was not breached, under those circumstances, by its failure to foresee the unforeseeable.” 63 Applying this approach to the present case, we reverse the Court of Appeals because there remains a question of material fact regarding whether Cardinal Hill properly fulfilled its duty of reasonable care. * * * We reverse the Court of Appeals and remand the case for further proceedings because Cardinal Hill had a duty to Shelton and there remains a question of material fact whether that duty was breached or not. The approach we embrace in this opinion brings Kentucky even further into the modern era of tort law and takes one more step in our journey toward a fairer system less burdened by vestiges of contributory negligence. We may walk slowly in the law, but we should never walk backward. 65 Perpetuating the confusion engendered by the open-and-obvious doctrine would be a step backward.  All sitting. Minton, C.J.; Abramson, Keller, and Noble, JJ., concur. Cunningham, J., dissents by separate opinion in which Scott, J., joins; and Scott, J., dissents by separate opinion in which Cunningham and Venters, JJ., join. CUNNINGHAM, J., DISSENTING:  * * * I strongly oppose the abandonment of our open and obvious standard for determining the duty of property owners. As Justice Scott states, such a result has very disturbing ramifications. The cost of health care in hospitals, rehabilitation centers—and even nursing homes—will be affected as insurance premiums rise. Naturally, this cost is going to be passed on to the consumer. More importantly, such a rule of law will compel these health care providers to adopt and impose much more restrictive visitation policies upon visitors to the infirmed. This will extract a poignant and emotional toll upon our sick and their loved ones. SCOTT, J., DISSENTING:I must respectfully dissent. In doing so, however, I acknowledge that the majority of my colleagues are following the national common law trend in matters such as this. Yet, I cannot follow because I believe this trend establishes an impractical and unwise rule of law and will be bad for Kentucky. In so doing, I realize my final dissent in these cases (one of which I concurred in result only with) is now more akin to a eulogy for the former doctrine of “open and obvious” dangers than a real effort to turn the majority at this time; yet, I have tried. Nevertheless, I must write what I feel for a doctrine that I believe has served America’s judges, litigants, and courtrooms aptly for many years.