By: Danielle J. Lewis

A discussion of premise liability standards and when summary judgment may still be possible.

Over the last several years, the Kentucky Supreme Court has issued a series of rulings which have gradually chipped away at a defendant premise owner’s arguments in favor of summary judgment. The primary casualty of this trend has been the “open and obvious” doctrine, which previously held that if the hazard which harmed the plaintiff was “open and obvious,” the defendant landowner had no duty to warn the plaintiff of the hazard. Without such a duty, there could be no successful negligence claim. Thus, the defendant would be entitled to summary judgment.

In Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), the Court held that, even if a danger is open and obvious, a landowner may still have a duty to warn if the owner “can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.” Reasons an owner should know there is still a risk of harm includes: (1) when a defendant 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 (2) when a defendant has reason 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 outweigh the apparent risk. In other words, the most important factor to consider when deciding whether a duty exists isn’t the nature of the danger, but the foreseeability of that danger.

A few years later, the Kentucky Supreme Court affirmed McIntosh in Shelton v. Ky. Easter Seals Soc'y, Inc., 413 S.W.3d 901, 914 (Ky. 2013). The Shelton Court explained that the McIntosh case did not change the question of duty and foreseeability; it simply shifted the focus from whether a duty existed to whether that duty had been breached. If a danger is foreseeable, the defendant has a duty to take reasonable measures to address it. If the dangerous is not foreseeable, or if a defendant has acted reasonably in addressing the danger but the plaintiff has been harmed nonetheless, summary judgment might still be possible (although it will depend upon the facts of each individual case). Most recently, in Smith v. Smith, 563 S.W.3d 14 (Ky. 2018), the Court affirmed that premises liability claims are still determined based on the legal status of the plaintiff (licensee, invitee, or trespasser).

Many plaintiff personal injury attorneys have taken the position that the McIntosh line of cases has eliminated the possibility of summary judgment in premise liability claims in Kentucky, reasoning that the decisions above frame the relevant questions in term of comparative fault (i.e. how much responsibility did the plaintiff have for his or her own safety in the face of an “open and obvious” danger?). Since Kentucky is a pure comparative fault state, it is up to the jury to apportion fault between the parties, and the plaintiff can recover something even if he or she bears the majority of fault for the injury. Courts are therefore reluctant to take the decision from the jury and stop a plaintiff’s case at the summary judgment stage.

However, the Kentucky Supreme Court recently proved that summary judgment is still possible even based upon an open and obvious danger. In Hayes v. D.C.I. Properties-D KY, LLC, 563 S.W.3d 619 (Ky. 2018)1, a 16-year old plaintiff and his friends snuck onto the defendant’s property, which was under construction, and spent several hours there drinking and smoking marijuana. The plaintiff, early in the evening, “had the foresight to remove keys from at least one piece of machinery because he recognized that a friend might get hurt if he started the machine.” As the group was leaving, the plaintiff climbed up into a compactor, turned it on, and began driving it up a floodwall. Not surprisingly, the compactor tipped over, the plaintiff fell off, and was severely injured when the compactor landed on his leg.

The plaintiff and his parents brought suit against the landowner and construction company, alleging negligence and invoking the “attractive nuisance” theory (since the plaintiff and his friends were clearly trespassers). The trial court granted summary judgment for the defendants, finding that the plaintiff demonstrated an actual awareness of the dangers of driving the construction machinery while impaired and thus, there could be no breach by the defendants (for failing to warn him of same) because there was no evidence that the defendants intended to inflict harm upon the plaintiff. The appellate courts affirmed, noting that KRS § 383.232 expressly provides that a landowner owes no duty to a trespasser other than avoiding inflicting intentional harm upon him. The Court further held that the “attractive nuisance” doctrine does not apply to a plaintiff who, although technically a minor, demonstrated an awareness and understanding of the danger which was comparable to that of an adult.

The Hayes case proves that summary judgment is still possible in Kentucky based upon dangers which are open and obvious, at least in cases involving trespassers. Where the plaintiff is a licensee or invitee, the challenge is greater. However, in the above opinions, the Kentucky Supreme Court continues to insist that summary judgment is still possible and that each case must be judged separately on the facts and merits.

[1]Defended by Reminger attorney Mark McDonald, a partner Reminger’s Cincinnati office.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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