The secret to a successful personal injury practice may rest equally on the cases that are accepted and those that are not. The vast majority of serious injury cases do not present with the four sides of the perfect square necessary for success-liability, causation, damages and coverage-completed and aligned. We, as lawyers, analyze the cases, identify the problems and find practical solutions. If the client does not have a clear liability case, we must figure out rather quickly whether there are both the facts and the legal theories which will support recovery. This difficult initial decision is particularly challenging when it comes to premises liability cases.
The time crunch of a one-year statute of limitations period can make thorough analysis of cases difficult. Your client either comes to you late into the year or has not completed medical treatment before the year anniversary. For many years, the most challenging aspect of these cases was getting past summary judgment and getting your case to a jury. Many trial judges would routinely dismiss your client’s case on the grounds that the hazard that caused your client’s injury was visible, or “open and obvious,” no matter how egregious the condition of the premises. The prospect of a dismissal caused most attorneys to second guess some cases even with a clear hazard and severe injury.
However, the Kentucky Supreme Court’s opinion in Kentucky River Medical Center v.McIntosh1 leveled the playing field. In McIntosh, the Supreme Court held that the presence of an “open and obvious” hazard is no longer a complete bar to recovery.2 Irene McIntosh was working as a paramedic at the time of her fall. As she guided a critically ill patient on a stretcher into the ER at Kentucky River Medical Center, she tripped over a curb next to a ramp. She landed hard and fractured her wrist and hip. A Breathitt County jury found for McIntosh and compensated her for her medical bills and lost wages. On appeal, the hospital unsuccessfully argued that the case should have never made it past summary judgment because McIntosh’s failure to see and avoid the curb constituted a complete defense and absolved the hospital of responsibility for this dangerous condition. The Court of Appeals affirmed the jury verdict.
In an opinion authored by Justice Mary Noble, the Kentucky Supreme Court affirmed the verdict and adopted the modern trend of most states:”In such cases, the fact that the danger is known, or is obvious . . . is not . . . conclusive in determining the duty of the land owner, or whether he has acted reasonably under the circumstances.”3 Chief Justice Minton and Justices Abramson, Cunningham and Venters joined Noble in her opinion. The Court adopted section
343A(1) from the Restatement (Second) of Torts,4 which reads as follows:
§ 343A Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Justice Noble further explained this approach was consistent with Kentucky’s pure comparative fault system. Even if the injured person was at fault for failing to appreciate an open and obvious hazard, the business or land owner still owes a duty to maintain the premises in a reasonably safe condition.5 Justice Noble also pointed out that this represents good public policy by discouraging dangerous conditions rather than encouraging them.6
Post-McIntosh Emphasis on Foreseeability
While the McIntosh decision and its progeny make it more likely your premises liability cases will get to a jury, they remain difficult cases to win. The proper question to ask when evaluating the liability issue is: “if the danger was known or obvious to your client, is there a reason the defendant would anticipate the harm to your client?” For example, Acme Grocery Store permits a fallen rainspout to lie across a sidewalk alongside its store in front of the main entrance after a heavy rain the previous evening. Sally Shopper safely steps over the rainspout entering the store, but leaves the store with her arms full of grocery bags that obstruct her vision, and she does not see the spout. She trips over it and is injured. In a pre-McIntosh world, many trial courts would dismiss that case applying the “open and obvious” doctrine-Sally entered the store over that same hazard and it was not obscured or hidden.
Under McIntosh and its progeny, Sally’s case would most likely survive summary judgment and go to the jury because the grocery store had reason to believe patrons of its business would be distracted when crossing over the rainspout. The fact that Sally safely walked over this same area when entering the store and that the rainspout was in plain view goes to her own comparative fault, not to whether the store was relieved of its duty to maintain the premises in a reasonably safe condition. And as observed by Justice Noble, this properly puts the burden on the grocery store to eliminate this hazard.
Evidence of Foreseeability
While the common sense argument that it was foreseeable to the grocery store that Sally would be distracted may be enough to survive summary judgment, actual evidence that the store anticipated this scenario is preferred. In McIntosh, the Supreme Court held evidence the same defendant utilized warnings and/or took precautions to avoid a similar fall at a different hospital emergency room entrance, supported the contention that Ms. McIntosh’s fall was foreseeable.8 Likewise, if the grocery store warned patrons or took precautions to eliminate the hazard at other stores, that is strong evidence that Sally’s plight was foreseeable as well. What is their policy for cleaning and inspecting the exterior of the premises?
Now more than ever, expert testimony can bolster the value of your case and educate the jury on why slip and falls are not only foreseeable, but preventable.9 For instance, are applicable building codes or OHSA regulations in compliance? Did the premises owner conduct a safety audit? How can this be avoided in the future?
The result of McIntosh and its progeny should be to allow victims of dangerous conditions to have their day in court. Before McIntosh, insurance companies would bank on getting the case dismissed, and therefore, would often deny liability. With the prospect of a dismissal now greatly diminished, that strategy may no longer be wise.
If you were injured as a result of a fall, or you are an attorney seeking information or advice about premises liability cases, Goode Law Office, PLLC has the experience and expertise to advise you on your legal options and rights. Consultations are always free.
Christopher W. Goode, is a national recognized trial attorney and founder of Goode Law Office PLC. He represented Irene McIntosh in McIntosh v. Ky River Medical Center. While his practice is diverse, he is committed to only representing injured individuals from automobile collisions to nursing home neglect and abuse to product liability claims. He is a past president of the Fayette County Bar Association and is a frequent speaker on legal topics. Chris currently serves as a District Vice President for the Kentucky Justice Association. He can be reached at [email protected] or www.goodelawyers.com.
1. 319 S.W.3d 385 (Ky. 2010)
2. See “Breaking News: Kentucky’s Supreme Court Abolishes the Open and Obvious Doctrine,” The Advocate, November/December 2010, Vol. 38, No. 6 at pg. 10.
3. 319 S.W.3d at 390.
5. Id. at 391.
6. Id. at 392.
7. 99 S.W.3d 431 (Ky. 2003).
8. 319 S.W.3d at 395.
9. See “A Safety Engineer May Help the Slip and Fall Case” by Timothy D. Lange,The Advocate, May/June 2009, Volume 37, Number 3, pg. 8.
10. See 14 K.T.C.R. 9, September 2010, pg. 10.