Kentucky Opens the Door for Premises Liability Lawsuits by Abandoning the Open-And-Obvious Doctrine. Ohio Retains This Critical Defense

Defense Digest, Vol. 23, No. 1, March 2017

by Stephen M. Wagner, Esquire

Kentucky

The Kentucky Supreme Court has eroded the open-and-obvious doctrine as a complete defense for Kentucky landowners and occupiers through its opinions in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013) and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015). Traditionally, in Kentucky, the existence of an open-and-obvious condition that was foreseeable removed a landowner’s legal duty to warn an invitee of the open-and-obvious condition.

The facts of Shelton are straightforward. While tending to her husband during his stay in Cardinal Hill Rehabilitation Hospital, Ms. Shelton became entangled in wires strung along the side of her husband’s bed and fell, fracturing her kneecap. The trial court dismissed her claim on summary judgment by reasoning that Cardinal Hill owed no duty of care to Shelton because the wires were an open-and-obvious condition.

The Kentucky Supreme Court reversed and remanded, turning decades of tort law on its head by holding that the open-and-obvious doctrine is now a question of breach, not a question of duty. Rather than simply labeling a danger as “obvious” and then denying recovery, Kentucky courts must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger, regardless of whether the danger was “obvious.” Put simply, there is always a duty owed to invitees in Kentucky. Instead of focusing on the duty, the question for the jury is the foreseeability of this risk encountered by the plaintiff and the apportionment of fault among the parties.

Two years later, in Carter v. Bullitt Host, LLC, the Kentucky Supreme Court further eroded the “open-and-obvious” defense, even as applied to naturally occurring conditions, such as snow and ice accumulation. James Carter was an invitee at a Holiday Inn Express operated by Bullitt Host, LLC. Near the entrance of the hotel, Carter slipped and fell on ice, breaking his ankle in the fall. The hotel obtained summary judgment under the long-standing law in Kentucky that a landowner cannot be liable for injuries to an invitee caused by an open-and-obvious, natural outdoor hazard. Like in Shelton, the Kentucky Supreme Court stated unambiguously that liability under Kentucky law must be determined based on principles of comparative fault, even with regard to natural outdoor hazards.

Following Shelton and Carter, the open-and-obvious nature of a hazard under comparative fault principles is nothing more than a circumstance that the Kentucky fact finder can consider in assessing the fault of any party. Prior law has been abandoned.

Ohio

In Ohio, the open-and-obvious doctrine remains a complete bar to recovery for many plaintiffs. Specifically, under the open-and-obvious doctrine, the owner or occupier of the premises is under no duty to protect business invitees from dangers known to the invitee or that are so obvious and apparent that the invitee may be reasonably expected to discover them and protect himself against them. Paschal v. Rite Aid Pharmacy, Inc., 480 N.E.2d 474 (Ohio 1985).

Unlike in Kentucky, the rationale for the open-and-obvious doctrine is that the open-and-obvious nature of a hazard itself serves as a warning of the danger and allows the owner or occupier to reasonably expect that invitees will discover the danger and take appropriate measures to guard against it. Although more Ohio courts are finding exceptions to the open-and-obvious doctrine, it still remains the most viable and effective method for disposing of premises liability cases on summary judgment.

Kentucky Guidance

Moving forward in the cold winter months, brick-and-mortar businesses will benefit by implementing routine premises inspection policies. Doing so will greatly reduce a defendant’s potential economic exposure when a jury evaluates the foreseeability of the harm under comparative fault principles.

*Stephen is an associate in our Cincinnati, Ohio office who can be reached at 513.372.6816 or smwagner@mdwcg.com.

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_{Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}