Bench & Bar

SEP 2014

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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The court in Jenkins relied on Lanier v. Wal- Mart Stores, Inc., 11 which was decided while the appeal in Jenkins was pending. Lanier emphasized that the court had shifted the requirement from the invitee to the propri- etor and had adopted the rule that one in possession of premises has an affirmative duty to make sure the premises are reason- ably safe. The court, in Lanier, stressed also that the commercial realities control what is foreseeable. In Lanier, the court recognized that retail practices are designed to distract the plaintiff's attention away from the floor and toward the merchandise which the business hopes to sell. In determining liabil- ity, the Lanier court recognized that this commercial reality can create a jury ques- tion. Accord, Vaughan v. Dillard's. 12 In Horne v. Precision Cars of Lexington, Inc., 1 3 the court continued the trend of en- trusting these issues to the jury for determi- nation. In Horne, the plaintiff visited the de- fendant's auto dealership to shop for a car. He and the salesperson, Spencer, walked out of the dealership and got into a red Firebird. The plaintiff was in the driver's seat and Spencer was in the passenger seat. Spencer suggested that they switch places, so he could drive the vehicle off the lot. As plaintiff walked around to the passenger side of the vehi- cle, he tripped over a par- tially ex- posed concrete parking barrier. The plaintiff in Horne had never been at the dealership before and testified he did not see the bar- rier prior to tripping over it. At the time he fell, Spencer was extolling the virtues of the Firebird and the plaintiff gave his attention to the salesperson. The trial court and the Court of Appeals both held the concrete parking barrier was an open and obvious hazard, entitling the defendant to summary judgment. The Supreme Court reversed. This decision adopted the rationale in the unpublished case of Jenkins. Relying on the Restatement (Second) of Torts, §343, the court recited the general rule that a landowner owes no duty to warn an invitee of open and obvious hazards, but cautioned that such rule applied only where the "danger is known or obvious" to the in- vitee. 1 4 According to the Supreme Court, for the danger to be "known" it must be shown that the invitee possessed not only knowledge of the existence of the condi- tion or activity itself, but also that the invi- tee appreciated the danger it involved. 15 In discussing the "obvious" prong of the "open and obvious" test, the court prof- fered an example, derived from the Re- statement. The court noted: The A Department Store has a weighing scale protruding into one of its aisles, which is visible and quite obvious to anyone who looks. Behind and about the scale it dis- plays goods to attract customers. B, a cus- tomer, passing through the aisle, is intent on looking at the displayed goods. B does not discover the scale, stumbles over it and is injured. A is subject to liability to B. 16 T he court in Horne, relying on Comment f, held that the hazard there could not be deemed "open and obvious" because t here was no evidence that the parking barrier was either known or obvious to plaintiff. 1 7 In Kentucky River Medical Center v. McIn- tosh, 18 the court reviewed the prior cases and decided the time had come to quit viewing open and obvious as a part of the duty analysis and to evaluate slip and fall cases under a forseeability standard. In McIntosh, the court noted that a growing majority of states has moved "away from the traditional rule absolving ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions and, instead, adopted the Re- statement (Second) of Tort's approach to allow the jury to assess com- parative fault. 19 The court adopt- ed Restatement (Second) of Torts §343A, holding that "lower courts should not merely label a danger as 'obvi- ous' and then Wa s t h e h a za rd ope n a n d obvi ou s? Wa s t h e du t y of t h e de f e n da n t bre a ch e d? Is a land possessor's general duty of care not eliminated because of the obviousness of the danger? I s t h e d e f e n d a n t 's l i a b i l i t y l i m i t e d t o so m e d e g re e b y t h e p l a i n t i ff's co m p a r a t i ve n e g l i g e n ce ? We , t h e ju r y f in d . . .

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