Two seminal opinions on premises liability law issued by the Supreme Court of Kentucky have substantially redefined the open-and-obvious-danger doctrine, with significant implications for premises liability claims. Generally, land possessors owe invitees a duty to discover unreasonably dangerous conditions on the property and to either correct the conditions or, at a minimum, warn invitees of their existence. See, e.g., Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) (citing Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992)). Traditionally, the open-and-obvious-danger doctrine operated as an exception to this general duty, providing that land possessors were not liable to invitees who are injured by open and obvious dangers. The Court’s opinions in McIntosh and more recently in Shelton v. Kentucky Easter Seals Society, Inc., 2011-SC-000554-DG (Ky. 2013), issued in November 2013, combine to effectively abrogate the open-and-obvious-danger doctrine in Kentucky.

McIntosh: The First Step Toward Abrogating the Doctrine

In McIntosh, the parties and the Court framed the issue as whether the existence of an open and obvious danger presents a question of law as to a defendant’s duty, or a question of fact as to the relative fault of the parties. In its opinion, the Court explored the history of the doctrine, which arose during the era of contributory negligence. Under contributory negligence, any negligence on the part of the plaintiff barred recovery. When contributory negligence was the prevailing rule, the Court noted, courts sometimes applied the doctrine in terms of duty while others did so in terms of fault. But the distinction was irrelevant because under either approach the plaintiff could not recover by virtue of his or her own contributory negligence. Now that Kentucky and most other states have adopted a comparative fault regime, the distinction is critical. If the doctrine is applied to excuse a land possessor’s duty, there is no recovery because the existence of a legal duty is a prerequisite to a finding of negligence. By contrast, if the doctrine is applied only to assess the relative fault of the parties, an injured party may recover, with the amount of recovery offset by his share of the fault.

The McIntosh Court noted that the “manifest trend of the courts [nationally] is away from the traditional rule absolving … owners and occupiers of land from liability for injuries resulting from known or obvious conditions” and toward tasking the jury with evaluating the relative fault of the parties. Courts are increasingly adopting the position of the Restatement Second of Torts, which provides: “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.” The Restatement approach thus frames the issue in terms of foreseeability: a land possessor may, under this approach, be liable for injury caused by a condition, despite its open and obvious nature, if the harm was foreseeable.

The Restatement enumerates specific instances in which harm may be foreseeable, and the land possessor may be liable: “where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it … [and] where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.”

The McIntosh Court explicitly embraced the Restatement approach, viewing it as “consistent with Kentucky’s focus on foreseeability in its analysis of whether or not a defendant has a duty.” Moreover, the Court characterized the approach as consistent with a rule of comparative fault because it would hold both plaintiff and defendant responsible for their negligence. The Court reasoned that allowing “known or obvious conditions to always absolve land possessors from any liability ‘would be to resurrect contributory negligence’ in such cases,” and concluded that the open-and-obvious-danger doctrine has little place outside a contributory negligence regime. The Court couched its reasoning in policy terms, viewing its role as “ [discouraging] unreasonably dangerous conditions rather than fostering them in their obvious forms.” “The party in the best position to eliminate a dangerous condition,” the Court wrote, “should be burdened with that responsibility.”

The Court established the following approach, effectively gutting the doctrine: “The lower courts should not merely label a danger as ‘obvious’ and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger.” The Court further noted that this approach “places a higher duty on the plaintiff to look out for his own safety,” noting that the jury could still apply comparative fault principles to apportion some degree of fault to the plaintiff.

In McIntosh, the Court clearly set out to abrogate, or at least severely limit, the open-and-obvious-danger doctrine by shifting its application from a question of law, to be decided by the trial judge, to a question of fact, to be resolved by the jury. While the Court embraced the Restatement approach and emphasized foreseeability as the central inquiry, it retained the basic principle underlying the open-and-obvious-danger doctrine: that there is no duty to warn of or correct open and obvious dangers, except where the harm, despite the open and obvious nature of the danger, was foreseeable.

Shelton: The Death Knell

In Shelton v. Kentucky Easter Seals Society, Inc., 2011-SC-000554-DG (Ky. 2013), the Court went further, noting that a “close reading of McIntosh indicates that [the Court] decided the existence of an open and obvious danger went to the issue of duty.” The Shelton Court embraced the opportunity to clarifyMcIntosh and “emphasize that the existence of an open and obvious danger does not pertain to the existence of duty. Instead, [it] involves a factual determination relating to causation, fault or breach.”

Shelton explicitly flips the basic foundation of the open-and-obvious-danger doctrine and its own reasoning in McIntosh, holding that an “open-and-obvious condition does not eliminate a landowner’s duty. Rather, in the event that the defendant is shielded from liability, it is because the defendant fulfilled its duty of care and nothing further is required. … No liability is imposed when the defendant is deemed to have acted reasonably under the given circumstances.” In other words, there is always a duty owed to invitees, regardless of the obvious and open nature of the danger. The relevant inquiry, to be conducted by the jury, is the extent of the foreseeable risk, and this speaks to the existence of a breach and apportionment of fault, not duty.

Where We Stand

Post-Shelton, the open-and-obvious-danger doctrine survives in theory, but likely not in practice. By characterizing the issue of whether a danger was open and obvious as a question of fact relating to breach and fault, rather than a question of law relating to duty, the Court has removed the bar to recovery that previously existed for plaintiffs claiming injuries resulting from openly and obviously dangerous conditions on the land of another. Now, the nature of the condition is relevant only to the issues of whether the defendant breached a duty to the plaintiff and the relative fault of the parties to an action.

The effect of Shelton is that far more premises liability claims involving injuries previously barred under the doctrine will survive motions for summary judgment and proceed to trial. While the Court predicted that summary judgment would remain a viable option under the new approach, it is difficult to envision such viability in practice. The Court held that “[i]f reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation, summary judgment is still available to the [land possessor],” theoretically retaining the option of summary judgment. However, motions for summary judgment are analyzed in a light most favorable to the non-moving party (the plaintiff), and in light of the Court’s emphasis on comparative fault principles, it seems likely that claims will survive simply by plaintiff asserting some fault on the part of defendant. It would then fall to the jury to assess the relative fault of each party.

The open-and-obvious-danger doctrine is effectively dead in Kentucky, its application now confined to the factual issues of breach and comparative fault – determinations made during the trial phase, after significant investments of time and money that the doctrine had previously enabled land possessors to avoid.