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Issue link: https://kentuckybenchandbar.epubxp.com/i/382597
deny recovery. Rather [the courts] must ask whether the land possessor could reason- ably foresee that an invitee would be in- jured by the danger." 20 According to §343A, harm to the invitee is reasonably foreseeable despite the obviousness of the condition "where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious or will forget what he has discovered, or fail to protect himself against it" and, also, "where the possessor has rea- son to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would out- weigh the apparent risk." 2 1 Unfortunately, lower courts did not fully grasp the fundamental change in the law brought about by McIntosh. Consequently, the Supreme Court took the opportunity to clarify McIntosh in Shelton v. Kentucky East- er Seals Society, Inc. 2 2 The court stated, "we did not speak clearly enough in McIn- tosh; and we now face squarely the confu- sion it produced. McIntosh was undeniably a step forward in the development of our tort law, but our holding regrettably al- lowed the obtuse no-duty determination to survive." The court clarified that the exis- tence of an open and obvious danger, "does not pertain to the existence of duty" and that, "a land possessor's general duty of care is not eliminated because of the ob- viousness of the danger." The court then noted that the analysis should proceed as follows: Along with the defendant's general • duty of care, the defendant's duty is outlined by the relationship between the parties, e.g., an inviter has a duty to maintain the premises in a reason- ably safe condition in anticipation of the invitee's arrival. Was the duty breached? • and Is the defendant's liability limited to • some degree by the plaintiff's compar- ative negligence? Practically speaking, this analysis will almost always begin with the breach question, giv- en the broad sweep of the general duty of reasonable care. The change in the law resulting from Shel- ton is profound. In Shelton, the plaintiff tripped over wires dangling from medical equipment in a hospital room. The condi- tion was, without doubt, both open and obvious, yet the Supreme Court held that the jury must decide whether defendant breached its duty of care. The court recog- nized that a reasonable juror might believe the hospital had reason to foresee that plaintiff would encounter the wires and fall. Since it was potentially foreseeable that the plaintiff might trip over the wires, the jury also had to consider whether a safer method of corralling the cords was feasible. In a case decided on the same day as Shel- t on, the Supreme Court further limited the reach of the open and obvious rule by alerting what is required to consider a haz- a rd to be open and obvious in Dick's Sport- ing Goods, Inc. v. Webb. 23 The plaintiff in Webb noticed the mats in the store's entry- way had shifted and a puddle of water had collected between them. While attempting to step over the puddle, Webb stepped onto the tile floor, which she believed was dry. The tile, however, was also wet, caus- ing Webb to fall and suffer injuries. The Supreme Court held that the hazard was not open and obvious. The Court ruled: Simply put, the case before us does not present an open and obvious hazard. An open-and-obvious condi- tion is found when the danger is known or obvious. The condition is known to a plaintiff when, subjec- tively, she is aware …not only …of the existence of the condition or ac- tivity itself, but also appreciate[s]… the danger it involves…And the con- dition is obvious when, objectively, …both the condition and the risk are apparent to and would be recog- nized by a reasonable man, in the position of the visitor, exercising or- dinary perception, intelligence and judgment….The defendant will be subject to liability if the condition is either known or obvious. 24 The Court held that the condition was not open and obvious because the "appear- ance of the tile and the water" made the danger "not easily perceptible without clos- er inspection beyond the exercise of rea- sonable care." The Court concluded that Dick's Sporting Goods possessed an "affir- mative duty" to maintain the entryway which it may have breached. Accordingly, summary judgment was in error. Traditionally, the open and obvious rule has resulted in the dismissal of numerous cases involving falls on ice and snow. Recent cas- es demonstrate that McIntosh, Shelton, and Webb will change the outcome in many of those cases. In Hayden v. Up, Inc., 25 a young man suffered injuries to his head and knee when he slipped and fell on a chunk of ice in a McDonald's parking lot. The day was described as "an ugly winter day" with more than normal snow accumulation. The trial court granted summary judgment, based on the open and obvious rule. The Court of Appeals reversed. The Court rea- soned as follows: … [T]he fact that the lumps of ice… were… open and obvious does not as a matter of law eliminate Up's duty…as it would have u nder the traditional rule. Instead, the question becomes whether Up breached its duty by failing to remove the ice. Our S upreme Court has emphasized existence of a breach of duty is a factual matter re- garding foreseeability of the risk of harm which is normally left to the jury…. 26 But see, Cobb v. Kamer, 27 in which summa- ry judgment was affirmed because ice on the driveway was obvious to the plaintiff, despite her testimony that she did not ob- serve the ice before her fall. The court rea- soned that nothing obstructed her vision of the ice. In a decision designated as "to be pub- lished" and issued on June 20, 2014, McKinley v. Circle K, 28 the Court of Appeals again considered whether a store owner was absolved from liability where the plain- tiff fell on ice and snow in the store's park- ing lot. The plaintiff, McKinley, parked in the rear of the store, in an area not desig- nated for parking. He testified, though, that he and others regularly parked in the area. A snowstorm had passed through the area the day before McKinley suffered his in- juries and Circle K had hired a contractor to clear the lot. The contractor cleared the front and sides of the lot, but not the rear. While returning to his truck after purchasing a lottery ticket in the store, McKinley slipped and fell on a patch of ice, breaking three ribs. The trial court granted summary judgment, finding the condition to be open and obvious and that injury to McKinley was not foreseeable. The Court easily dis- posed of the contention that the store own- er owed no duty to McKinley. He was an in- vitee and "Circle K owed him not only a general duty of reasonable care, but also the more specific duty associated with the land possessor-invitee relationship." 29 The issue was not whether a duty existed, but whether there was evidence from which a jury could find a breach of that duty. In ana- lyzing that issue, the Court noted, "the harm posed by the snow and ice on the back lot must be weighed with the burden of clearing and salting the back lot." 30 Since Circle K cleared the front and side lots, "a reasonable mind could find that Circle K was aware of the risk of physical harm the 10 B&B; • 9.14 F E AT U R E : T O R T S