In the last few years, the Kentucky Supreme Court has written lengthy, and somewhat conflicting, opinions on one of the simplest, you might say pedestrian, areas of the law: the classic trip/slip and fall case. When is the owner of publicly used property liable for trip and fall or slip and fall injuries? No doubt, such injuries can occur in a variety of different situations. And the unique facts of a case can, and almost always should, determine the outcome. But Kentucky’s Supreme Court has recently stumbled over the basic legal principles that govern such injury cases.
In 2007 (when GW was still President!), a woman tripped and fell in a Speedway parking lot, sustaining a serious ankle injury. The case went to trial in 2010, where she received an award of $180,000. Then her next trip began, the trip to Kentucky’s appellate courts. First, to the Court of Appeals, then to the Supreme Court, and then back to the Court of Appeals, which just a few weeks ago completely exonerated Speedway after seven years of litigation. At every level, from the trial court to the Supreme Court, the judges struggled over the rules of the road, or sidewalk, or parking lot, or interior building spaces.
At Speedway, the asphalt lot had eroded creating a medium-sized depression. It was night when the customer fell, but the lot was well lit. As she walked back to her car, she was carrying a just-purchased cappuccino and, at the time she fell/tripped, was conversing with her husband. At first, the Court of Appeals affirmed the $180,000 award based on a 2010 opinion of the Supreme Court. But when Speedway appealed its case to the Supreme Court, those judges had second thoughts about their 2010 trip and fall opinion. In fact, they had in the meantime issued two other opinions which gave new life to the “open and obvious” doctrine which they seemingly had declared dead and buried in 2010. In light of these two more recent opinions, the Court of Appeals was told to get it right, which it did by declaring the Speedway parking lot depression to be an open and obvious danger. This meant it was not careless or negligent on Speedway’s part to leave the depression unrepaired and not warn its customers of this condition. The customer should have seen and avoided the depressed area of the parking lot.
Most importantly for property owners, the Supreme Court and Court of Appeals are now in agreement that property owners do not have to go to the expense and uncertainty of a jury trial before such injury cases, stemming from “open and obvious” property conditions, are dismissed by the judge early in the case. Unless the property owner creates a distraction, it will not be held liable for injuries caused by open and obvious conditions. For pedestrians, these cases are a reminder to stay focused at all times on where you are walking. Pedestrians Beware!
Richard Meyer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.
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