In its recently published 4-3 opinion in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), the Kentucky Supreme Court expanded on its prior decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), limiting the “open and obvious hazard doctrine,” and held that a personal injury claim brought by a hospital visitor who tripped on hospital equipment wiring next to her husband’s bed while tending to him should not have been dismissed by summary judgment. The Fayette Circuit Court court had dismissed the claim, and the Court of Appeals affirmed the dismissal, after determining that the hazard posed by the wires was open and obvious to the visitor.
The Supreme Court majority noted that the visitor was an invitee (rather than a licensee) to whom the hospital owed a duty of reasonable care to eliminate or warn of unreasonable risks of harm on the premises. The Court referred back to its prior limitation on the open and obvious doctrine in McIntosh and held that the issue was no longer one of whether there was a duty on the part of the premises owner but rather one of whether the duty was breached. The Court noted that in McIntosh it had adopted the approach of the Restatement (Second) of Torts Section 343(a) and that of a growing number of American jurisdictions in generally permitting juries to assess the comparative fault of the parties in premises liability cases.
The Court explained that a family member tending to a hospitalized patient might reasonably be distracted from the existence of an obvious hazard on the premises, or might determine that the need to tend to the patient outweighs exposure to the hazard. The Court concluded that there was a genuine issue of material fact whether the hospital fulfilled its duty of reasonable care, thereby precluding summary judgment. Specifically, the Court held that the record of the case was inadequate for it to determine whether there were any safer alternative solutions available to the hospital to the placement of the exposed wiring, whether any warnings were provided, or whether other precautions could have been taken to make the premises safer.
It is interesting to note that the Court suggested the hospital might still be entitled to summary judgment upon remand after those additional issues are addressed. Generally in these cases, if an appellate court finds that a motion for summary judgment was well grounded, the appellate court notes that the burden shifts to the plaintiff, and then considers whether the plaintiff had an adequte opportunity for discovery before the trial court granted summary judgment. If so, it usually does not reverse a properly supported summary judgment. Review of the case docket in Shelton on CourtNet suggests that summary judgment was entered relatively early in the case, though some discovery had been conducted. However, the Supreme Court did not ascribe the reversal in Shelton to an inadequate opportunity for discovery by the plaintiff.
In conclusion, this decision and the Court’s other recent rulings in this area are likely to result in more premises liability claims reaching the jury for determinations of apportionment of fault between the plaintiff and the premises owner.
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