Is the Kentucky Supreme Court finally clear ? An “open and obvious” risk does not excuse a land owner from exercising his or her duty of care.

The Kentucky Supreme Court (“SCOKY”) yet again was forced to address the mounting issues Kentucky trial courts and the Court of Appeals have with premises liability law following the SCOKY opinion Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). That opinion finally brought premises liability law in line with Kentucky’s adoption of comparative negligence. Under comparative negligence an invitee’s negligence (failing to appreciate an open and obvious risk of harm) does not foreclose recovery, it merely reduces it.

The lower courts seem to have trouble with cases where a land owner alleges a risk of harm is open and obvious, and they continue to dismiss cases that should not be dismissed. An open and obvious condition is one in which the danger is known or obvious. The individual knows of a condition when she is aware, not only of the existence of the condition or activity itself, but also appreciates the danger it involves. And the condition is obvious when both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.

In Goodwin v. Al J. Schneider Co., 2015-SC-000380-DG (Ky. Oct. 20, 2016) SCOKY has hopefully put this issue to bed. This case concerned whether or not the Galt House was liable to a patron who slipped getting out of the shower. The hotel provided bath mats to some hotel guests, but not all. The case was dismissed by the trial court, who was affirmed by the Court of Appeals. The SCOKY reversed.

The trial court dismissed the case because it found that the Galt House had not assumed a duty to provide bathmats for all rooms simply because it provided bathmats for some rooms, and the risks associated with getting in and out of a wet shower were open and obvious. SCOKY stated this finding did not comport with the new line of premises liability cases. The Galt House had a duty to take reasonable steps to eliminate unreasonably dangerous conditions. Thus, the issue is not whether the Galt House had a duty to provide bathmats but whether the failure to provide bathmats breached its duty of care.

SCOKY was again clear; the question for the trial court on summary judgment in these cases is whether the landowner breached a duty, a duty that exists whether the conditions are open and obvious or hidden. Thus, in determining whether the landowner has breached that duty, the court does not look to whether the conditions were open and obvious but to whether the landowner took reasonable steps to eliminate the risks created by the conditions. If there is a genuine issue of material fact regarding the reasonableness of the steps the landlord took, then summary judgment is not appropriate.

Why is this important? In the old days a land owner could see a risk that could cause injury existing on his property, and simply ignore it if a court could deem it open and obvious. After McIntosh that is no longer the case. A land owner still has a duty to take reasonable steps to eliminate unreasonably dangerous conditions on his land. Hopefully, trial courts and the Court of Appeals will stop dismissing cases where a purported risk existing on property is “open and obvious.”

The only way a land owner should be able to avoid trial on this issue is when he can show when a situation cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable. In those situations, the land owner has exercised his duty of care.

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