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Open and Obvious

Written by:  Ashley Smith Lant

In November of 2013 the Kentucky Supreme Court addressed the "open and obvious" doctrine in Shelton v. Kentucky Easter Seals Soc., Inc., 2011-SC-000554-DG, 2013 WL 6134212 (Ky. Nov. 21, 2013).[1] The decision in Shelton v. Kentucky Easter Seals Society, Inc. may greatly impact tort law specifically as it relates to the "open and obvious" doctrine.

In Shelton, the Plaintiff fractured her patella after becoming entangled in wires that were connected to her husband's hospital bed. Id. at *1. By way of factual background, the Plaintiff had admitted that she knew the cords were present, and that "she 'tried to avoid' and 'be careful of' the cords." Id. The trial court ultimately dismissed the claim on a Motion for Summary Judgment finding that the wires were an "open and obvious" condition. Id. On appeal, the Court of Appeals affirmed the trial court's ruling. Id. The Supreme Court of Kentucky then granted discretionary review and remanded the case to the Court of Appeals, which again affirmed the trial court. Id. Another appeal followed, and the Supreme Court granted discretionary review to address prior precedent and the "open and obvious" doctrine. The Kentucky Supreme Court noted as follows:

Traditionally, the open-and-obvious doctrine stated, "land possessors cannot be held liable to invitees who are injured by open and obvious dangers." As a result, if a plaintiff was injured by an open and obvious hazard, the landowner, regardless of any negligent conduct on its part, had a complete defense to any asserted liability. But, in [Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 389 (Ky.2010)] we noted that a growing majority of states has moved "away from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions" and, instead, adopted the Restatement (Second) of Torts's approach to allow the jury to assess comparative fault.

Id. at *3 (internal citations omitted). The Court further noted that it would take the opportunity to clarify the McIntosh ruling and "emphasize that the existence of an open and obvious danger does not pertain to the existence of duty." Id. at *4. The Court makes clear that an "open and obvious" condition does not eliminate a landowner's duty. Id. at *7. Rather, "[t]he obviousness of the condition is a 'circumstance' to be factored under the standard of care." Id.

The Court also addressed how this change will affect Motions for Summary Judgment. Id. at *9. Specifically, the Court states that "summary judgment remains a viable concept under this approach." Id. The Court specifically notes that "if reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation, summary judgment is still available to the landowner." Id.


[1] Final citation format not yet available.

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