There has been considerable discussion among Kentucky civil litigators in recent months about the effect of the Kentucky Supreme Court’s decision in Kentucky River Med. Cntr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010), on the open and obvious hazard defense in premises liability cases. In McIntosh, SCOKY reversed a summary judgment in a premises case where a paramedic was injured after tripping on a curb outside a hospital emergency room while tending to a patient who was being wheeled into the hospital. SCOKY held that under the circumstances of that case “foreseeable distraction” of a visitor to the premises could overcome the fact that a hazard was open and obvious and created an issue for the jury such that summary judgment was inappropriate, notwithstanding the fact that the paramedic had long known about the curb and had escorted hundreds of patients into that ER.
However, in two cases issued on June 24, 2011, the Kentucky Court of Appeals considered McIntosh and nevertheless affirmed summary judgment on the part of premises owners, finding that the hazards in question were open and obvious and there was no foreseeable distraction to those injured.
First, in Shelton v. Kentucky Easter Seals Society, Inc., 2010-SC-566 (6/24/11), http://opinions.kycourts.net/coa/2009-CA-000945.pdf (not yet final, designated for publication), the COA, in an opinion authored by Judge Wine, distinguished McIntosh and held the foreseeable distraction exception did not apply to a hospital patient’s family member who was visiting the hospital and was injured by a premises condition that she had been aware of for weeks. It is interesting to note that this decision was issued on reversal and remand from SCOKY with instructions to the COA to reconsider the case in light of McIntosh.
Likewise, in Lucas v. Gateway Community Services Organization, Inc., 2010-CA-1033 (6/24/11), http://opinions.kycourts.net/coa/2010-CA-001033.pdf (not yet final, designated for publication), a different COA panel (with Judge Lambert presiding and Judge Wine concurring) affirmed summary judgment for the property owner based on the open and obvious hazard defense in a case where a visitor to a building tripped and fell in an area of a parking lot that changed from blacktop to gravel. The visitor had previously been to the premises numerous times, and admittedly knew of the area where the lot changed from paved to gravel. The visitor even admitted she had exercised caution in walking in that area previously. The fall occurred in broad daylight with no visibility problems. The decision did not recount any evidence of factors that would foreseeably distract someone who was walking in the area from watching where they were going.
It will be interesting to see if SCOKY accepts discretionary review of Shelton (again) and/or Lucas and if so how it applies McIntosh.
NOTE: Again, both Shelton and Lucas are not yet final, and should not be cited as authority until they become final and either are published or qualify for citation under CR 76.28(4)(c).
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