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.
Issue link: https://kentuckybenchandbar.epubxp.com/i/382597
Virtually all trial lawyers will, at some point in his or her career, encounter a client or potential client who has suffered a slip and fall injury. Therefore, it is important to know how the law has changed over time in the Commonwealth of Kentucky. This article will address the significant changes in the law pertaining to "open and obvious" haz- ards, as the rule has evolved in recent years to transform the analysis of liability for open and obvious defects. The duty of care owed in any premises lia- bility case depends on the status of the in- jured party. This article will focus on the du- ties owed to an invitee or business visitor. "A business visitor is a person who is invit- ed to enter or remain on land for a purpose directly or indirectly connected with busi- ness dealings with the possessor of the land." 1 Generally, the owner of premises in which the public is invited has a duty to ex- ercise ordinary care to keep the premises in a reasonably safe condition. 2 However, "[r]easonable care on the part of the pos- sessor of a business premises does not or- dinarily require precaution or even warning against dangers that are known to the visi- tor or so obvious to him that he may be ex- pected to discover them." 3 This standard was first articulated in Standard Oil Co. v. Manis, 4 in which the court held that owners of premises do not possess a duty to warn against hazards which are as obvious to in- vitees as to the owner. In the late 1990's, the evaluation of the re- sponsibility for injuries on business premises began to shift. The inherent inequity of the courts' approach to the burden of proof in premises liability cases was discussed at length in the concurring opinion in Smith v. Wal-Mart Stores, Inc. 5 Before Smith, if a plaintiff could not explain why he could not avoid an open and obvious hazard, summary judgment was likely. Presumably, the courts reasoned that a plaintiff who knew or should have known of the presence of the substance/object before the accident would not have slipped on it. This responsi- bility to avoid injury, placed on the con- sumer, created a virtually insurmountable burden of proof for the injured customer. This concept was inconsistent with the duty of a business proprietor to keep a premises in a reasonably safe condition for normal use by customers. Winn-Dixie Louisville, Inc., v. Smith. 6 The shift of burden occurred when courts began to balance the competing principles of notice versus duty. That is, what was once the customer's burden became an affirmative defense of the proprietor. The burden-shifting approach espoused in the Smith concurrence was subsequently adopt- ed by the Supreme Court of Florida in Owens v. Publix Supermarkets, Inc. 7 The Smith concurrence also foreshadowed changes in the analytical framework ob- served by the Kentucky courts. The shift away from viewing the open and obvious rule as a purely legal issue which could be decided on summary judgment can be found in Wal-Mart Stores, Inc., v. Lawson. 8 The court held, among other things, that a jury issue was presented as to whether the hazard causing the plaintiff's fall was open and obvious. Thus, that issue was properly presented to the jury for reso- lution. In Lawson, the court held that a 10 foot by 20 to 30 inch strip of black sub- stance, located in a concrete aisle in a Wal- Mart garden center, was not an open and obvious hazard as a matter of law. The Law- son court held that whether the danger should have been noticed by the plaintiff prior to his fall was properly addressed by the trial court as an issue of comparative fault to be decided by a jury. This continuing shift of the burden from the customer to the proprietor is set forth in an unpublished case, Jenkins v. PetSmart, Inc. 9 In that case, the plaintiff was injured while shopping in a PetSmart store. While perus- ing the advertisements, the plaintiff stepped into dog feces and fell, suffering serious in- juries to her lower extremities. In her depo- sition, Jenkins testified that she shopped at PetSmart frequently. Customers were per- mitted to bring their pets onto the premis- es. Jenkins testified that on the date of her injury she did not see the dog feces before stepping into it, although the substance was clearly visible at the end of the aisle where she was walking and she could have seen it if she had been looking for it. Jenkins had no knowledge as to how long the feces had been on the floor and she possessed no ev- idence from which a jury could determine how long the feces had been present be- fore she slipped. A motion for summary judgment was filed by the defendant, PetSmart, and was sustained in the Boone County Circuit Court. On appeal, Jenkins ar- gued that due to the store's policy which permitted dogs on the premises, PetSmart should possess a higher duty of care be- cause it obtained the business advantage of customers accepting the invitation to bring their pets to the premises. In its defense, PetSmart argued that the case law placed no duty on businesses to remove or to warn against open and obvious hazards. Citing several cases, the defense argued that liabil- ity cannot be found where an invitee slips and falls in canine feces when she is not watching where she is going. Relying on Lawson, the Kentucky Court of Appeals ruled that the obvious risk rule will not always bar a suit caused by a hazardous substance or object located on the floor of a business premises that was not observed by the customer prior to an injury. In arguing the case, counsel for the plaintiff urged the court to adopt a theory of liability premised on the "mode of operation" of businesses. This ar- gument was contrary to the obvious-risk rule previously adopted by the majority of courts. Under the mode of operation theory, an invi- tee may recover without showing actual no- tice or constructive knowledge by the busi- ness owner of the specific object causing the accident if she shows the proprietor adopted a mode of operation where a patron's care- lessness should be anticipated and the pro- prietor fails to use reasonable measures commensurate with the risk involved to dis- cover the condition and remove it. See Jack- son v. K-Mart Corp. 10 The court overturned summary judgment in Jenkins and held that Jenkins had met her burden of establishing the presence of excrement on the floor and that her injury was caused by her slipping in the substance. The burden of proof was shift- ed to PetSmart to show the absence of neg- ligence or lack of notice as an affirmative de- fense. 8 B&B; • 9.14 F E AT U R E : T O R T S NO LONGER A BAR TO LIABILITY IN SLIP AND FALL CASES By: Ed Massey and Randy J. Blankenship Openand Obvious