These courts therefore conclude that no duty should be imposed when dangers are obvious. By concluding that a danger was open and obvious, we can conclude that the invitee was negligent for falling victim to it, unless for some reason "to a reasonable man in his position the advantages of [encountering the danger] would outweigh the apparent risk." However, this view also alters the position of the person injured by an open and obvious danger to the extent that only under extremely rare circumstances could. For example, type "Jane Smith" and then press the RETURN key. Janis v. Nash Finch Co., 780 N.W.2d 497, 502 (S.D. Specifically, the Hospital notes that Lapping admitted he was unaware of McIntosh's familiarity with the entrance or that OSHA had investigated the entrance and found no violations. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 389 (Ky. 2010) (discussing the open-and-obvious doctrine as an application of contributory negligence). Martin Allen Arnett, William P. Swain, Denis Carl Wiggins, William Baxter Orberson, Phillips, Parker, Orberson Arnett, PLC, Louisville, KY, Counsel for Appellants. If not, you may need to refresh the page. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) This opinion cites 14 opinions. In addition, members of the public are not familiar with OSHA regulations governing the treatment of physical hazards. In Kentucky River, the Kentucky Supreme Court adopted the position of the Restatement (Second) of Torts with respect to “open and obvious conditions,” which states: However, almost all states now have comparative fault — including Kentucky, see Hilen v. Hays, 673 S.W.2d 713, 720 (Ky. 1984); see also KRS 411.182(1)(a)-(b). If she had never been to this emergency room entrance even once before, the Hospital would still owe her no duty, and the same result would follow. Kentucky River Medical Center and Jackson Hospital Corporation (collectively "the Hospital") appeal from a decision of the Court of Appeals, which affirmed a judgment of the Breathitt Circuit Court. In short, "[e]ven where the condition is open and obvious, a landowner's duty to maintain property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such a condition." Harrison, 768 P.2d at 1325. Restatement (First) of Torts § 340 (1934). The Hospital moved the trial court for summary judgment, claiming that the open and obvious doctrine barred McIntosh's recovery as a matter of law. She and two Emergency Medical Technicians (EMTs) arrived at the ambulance dock, and began guiding the patient to the emergency room entrance. Harrison, 768 P.2d at 1325. There was no error. In the present case, the Hospital owed a duty to McIntosh, given that her injury was foreseeable. The rule of law is the black letter law upon which the court rested its decision. . BUCKINGHAM, SENIOR JUDGE: Kentucky River Medical Center and Jackson Hospital Corporation (collectively referred to as “the Hospital”) appeal from a judgment of the Breathitt Circuit Court, which was entered after a jury found the Hospital liable for injuries suffered by Irene McIntosh. The Hospital also argues that Lapping's testimony was improper because it was undermined during cross-examination. The Court of Appeals declined to review this error because the Hospital failed to make a "contemporaneous objection . That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor: The focus on foreseeability is precisely why subsection 343AQ) of the Restatement creates an exception to the rule that a land possessor will not be liable for open and obvious dangers when "the possessor should anticipate the harm" anyway. She testified that she had safely navigated the entrance hundreds of times before her injury. Both of these positions have some initial appeal. McIntosh responds that the existence of an open and obvious danger does not go to duty, but goes to the factual issue of fault. More Information . In the usual case, a land possessor's better knowledge regarding the premises means that he is in the better position to prevent the harm. Read more about Quimbee. to the manner of his testimony." As a general rule, land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them. The trial court denied the hospital’s motion. The Court of Appeals affirmed the trial court's grant of summary judgment but ruled before we rendered our decision in Kentucky River Medical Center v. McIntosh. COLUMBUS. Second, the Hospital argues that the trial court erred in allowing the testimony of McIntosh's expert witness, James Lapping. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. This Court has previously stated that "[t]he most important factor in determining whether a duty exists is foreseeability." Thus, there were genuine issues of material fact that were properly submitted to the jury. The Hospital first argues that the trial court should have granted its motions for summary judgment and for a judgment notwithstanding the verdict because the curb over which McIntosh tripped was an open and obvious danger. f. The Hospital had very good reason to believe McIntosh would be tending to the patient, not to each step she was taking. The dire need to rush critically ill patients through the emergency room entrance should be self-evident, and as such, "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." This was verified by a number of photographs of the entrances of nearby hospitals. That sort of analysis is exactly what comparative fault analysis requires the jury to do; thus, the jury was properly instructed to compare the faults of the parties in this case. This is good impeachment and rebuttal evidence, and it was all heard and duly considered by the jury. Northcutt argues: (1) based on longstanding Kentucky law regarding naturally occurring outdoor hazards, the grant of summary judgment was correct; and (2) Barker's interpretation of Kentucky River Medical Center v. Mcintosh, 319 S.W.3d 385 (Ky. 2010) is misplaced. Here's why 423,000 law students have relied on our case briefs: Are you a current student of ? The Hospital appealed to the Court of Appeals, which affirmed because "the Hospital could reasonably expect that a paramedic treating a critically-ill patient could be distracted, could forget (if she had ever observed it) that the curb was uneven, and could fail to protect herself against it." The jury found the hospital liable and awarded McIntosh damages. Even though it will often make little sense to impose liability on land possessors for failing to warn invitees of conditions which are obvious, it makes a great deal of sense to impose liability on them for failing to eliminate or reduce the risk posed by unreasonable dangers. For the foregoing reasons, the Court of Appeals is affirmed. We even dramatically shifted the law in favor of injured victims with the landmark decision of Kentucky River Medical Center v. McIntosh, which has been adopted across the country as the new standard for premises liability cases. However, the Kentucky Supreme Court’s opinion in Kentucky River Medical Center v.McIntosh1 leveled the playing field. The Hospital also raises two evidentiary issues on appeal. Get 1 point on adding a valid citation to this judgment. Barcode Irene McIntosh (plaintiff), a licensed paramedic, transported a critically ill patient to Jackson Hospital Corporation, doing business as Kentucky River Medical Center (KRMC) (collectively the hospital) (defendant) for treatment. Accordingly, this Court concludes that if error, this is not reversible error, as it does not rise to the level of "manifest injustice." Restatement (Second) § 343A cmt. . 2 We granted discretionary review and remanded the case to the Court of Appeals for reconsideration in light of McIntosh. So although it is true that when the danger is obvious the land possessor does not have superior knowledge, the land possessor still has the superior ability to issue repairs. The standards for summary judgment and for a judgment notwithstanding the verdict are identical, The Hospital argues that the question is one of law — specifically, that the open and obvious doctrine means that land possessors are absolved of their duty, and "[t]he question of duty presents an issue of law. Although this Court ultimately concluded that the danger "was not `known or obvious to`" the plaintiff, this Court concluded in the alternative that. Thus, "[t]he conclusion that there is no liability for open and obvious dangers for which the only reasonable precaution is warning is correct." If the Hospital is correct that the open and obvious doctrine relates to duty (and is also correct that the danger in this case was actually open and obvious), then there was no genuine issue as to a material fact in the case, and the trial court should have granted the motions. Id. . In case of any confusion, feel free to reach out to us.Leave your message here. Kentucky River Medical Center, et al. In addition, evidence was introduced showing that having such a tripping hazard at an emergency room entrance is very rare, if not unique in Breathitt County and the counties adjoining it. So great, in fact, that a few states have held that their comparative negligence statutes abolished the open and obvious doctrine outright. Quimbee is a company hell-bent on one thing: helping you get an “A” in every course you take in law school, so you can graduate at the top of your class and get a high-paying law job. Essentially, the area looks like a wide curb ramp used for wheelchair access, except that the "ramp" part is flat rather than at an incline. at 367-70. McIntosh had helped transport about 400 patients to this emergency room entrance before, and she had always navigated past the protruding curb without incident. contains alphabet), KENTUCKY RIVER MEDICAL CENTER v. McINTOSH. Some courts in that era explained the doctrine in terms of duty and others did so in terms of the plaintiffs contributory negligence, see generally Page Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U. Pa. L. Rev. June 24, 2011 DBL Law There has been considerable discussion among Kentucky civil litigators in recent months about the effect of the Kentucky Supreme Court’s decision in Kentucky River Med. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) was decided by the Kentucky Supreme Court. Likewise, the photograph of the Hospital's front entrance goes to show that the Hospital was aware — or at least should have been aware — of alternative designs that would eliminate tripping hazards and that the emergency room entrance presented such an additional hazard. Both motions must be granted if and only if there is "no genuine issue as to any material fact" in the case. Retain a Kentucky Premises Liability Attorney for Help. This Court has previously stated that "[t]he most important factor in determining whether a duty exists is foreseeability.". McIntosh had guided hundreds of patients into the hospital on previous occasions without tripping. Thus, "[t]he conclusion that there is no liability for open and obvious dangers. This is an unwise and unnecessary change in the law in the Commonwealth. The greater her familiarity, the greater her own fault. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. Last, the Hospital complains that Lapping was allowed to address the jury for twelve to thirteen minutes uninterrupted, rather than in the typical question-and-answer format. McIntosh, in turn, had a duty to act reasonably to ensure her own safety, heightened by her familiarity with the location and the arguably open and obvious nature of the danger. In Kentucky River Medical Center v. McIntosh , 319 S.W.3d 385 (Ky. 2010), the court recognized that the modification was necessary because of Kentucky's adoption of a comparative fault tort scheme. However, almost all states now have comparative fault — including Kentucky, Despite the "manifest trend of the courts in this country,", The modern approach is consistent with Kentucky's focus on foreseeability in its analysis of whether or not a defendant has a duty. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable. In the Shelton case, the Kentucky Supreme Court again reversed the Court of Appeals and again remanded the case for a comparative negligence analysis stating it was clarifying the prior McIntosh decision. While "open and obvious danger" is no longer a complete defense under the Restatement, it is nonetheless a heightened type of danger which places a higher duty on the plaintiff to look out for his own safety. Lapping testified that to make the entrance safe, the Hospital should have leveled it, installed guardrails to prevent tripping, or used paint to mark the area. This flat area rises on both sides to form a curb. Yet the plaintiff is not completely without a defense to this: there could be foreseeable distraction, or the intervention of a third party pushing the plaintiff into the danger, for example. Lapping testified as an expert regarding the safety of emergency room entrances. The Relay for Life organization explained how money raised for breast cancer would be used and provided a guest speaker. The modern approach is consistent with Kentucky's focus on foreseeability in its analysis of whether or not a defendant has a duty. In addition, in this case the plaintiff had the defense of foreseeable distraction, as she was attending her patient. Now, even though the alleged danger is open and obvious (like snow or ice on a sidewalk), if the possessor can anticipate the harm to an invitee, the possessor has a duty to fix the condition, or to somehow give additional warnings. Id. CR 61.02. Co., 839 S.W.2d 245, 248 (Ky. 1992) (citations omitted). Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). As a general rule, land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them. KRE 401, 403. As the court guided: The lower courts should not merely label a danger as ‘obvious’ and then deny recovery. Become a member and get unlimited access to our massive library of Paramedics will rarely have the luxury of calmly walking towards an emergency room entrance. Until today, a landowner or possessor of land could not be held liable to invitees who were injured by open and obvious dangers. In Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), the Court held that, even if a danger is open and obvious, a landowner may still have a duty to warn if the owner “can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.” Reasons an owner should know there is still a risk of harm includes: (1) when a … This Court cannot say that their finding that McIntosh bore no comparative fault is clearly erroneous. The Court of Appeals affirmed the trial court's grant of summary judgment but ruled before we rendered our decision in Kentucky River Medical Center v. McIntosh. f. In these situations, the injury is still foreseeable, and so liability should still be imposed. Such a condition, being open and obvious, should usually be noticed by a plaintiff who is paying reasonable attention. The Hospital had good reason to expect that a paramedic, such as McIntosh, would be distracted as she approached the emergency room entrance. On appeal to this Court, the Hospital admits they made no such objection. * Enter a valid Journal (must It awarded Mcintosh $40,409.70 for medical expenses, $65,000 for impairment of her earning capacity, and $50,000 for pain and suffering, for a total of $155,409.70. If you logged out from your Quimbee account, please login and try again. Then click here. Restatement (Third) of Torts: Liab. CR 56.03; see also Steelvest, 807 S.W.2d at 480-81. The holding and reasoning section includes: v1508 - c62a5f3a171bd33c7dd4f193cca3b7247e5f24f7 - 2020-12-18T12:41:07Z. However, the absence of the duty to warn does not mean there is no duty at all, simply because "the duty of reasonable care may require precautions other than a warning, including employing durable precautions that eliminate or reduce the risk posed." Under comparative fault, whether the doctrine concerns duty or fault becomes very important. It is likely that in such a situation, a paramedic such as McIntosh may forget that this particular entrance has a unique danger that she must avoid. But this intuition reveals it is not the Hospital's duty, but McIntosh's comparative fault, that matters to us. Importantly, expert testimony does not need to be flawless to be admissible. The principal issue on appeal is whether the trial court should have granted the Hospital's motion for a judgment notwithstanding the verdict because the open and obvious doctrine barred the plaintiffs recovery as a matter of law. Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious. The Hospital then moved for a judgment notwithstanding the verdict, renewing its argument about the open and obvious doctrine, which the trial court denied. Therefore, they rule that no duty should be imposed. So when we presume their knowledge is already equal, as we do for obvious conditions, the warning could serve no purpose. This is no doubt why the Hospital stresses this point in its brief. Learn More . No contracts or commitments. Learn more about Quimbee’s unique (and proven) approach to achieving great grades at law school. to recover damages for negligence"). However, sometimes "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." The minority view is no doubt confused because it is often said that "there is no duty to warn for open and obvious dangers." CR 56.03; The incompatibility between the open and obvious doctrine as an absolute, automatic bar to recovery and comparative fault is great. McIntosh, in turn, had a duty to act reasonably to ensure her own safety, heightened by her familiarity with the location and the arguably open and obvious nature of the danger. briefs keyed to 223 law school casebooks. The trial court's decision to admit this evidence is reviewed for an abuse of discretion. There was testimony that paramedics have a duty to focus on the patient while the EMTs guide them into the emergency room, including monitoring the patients' health and making sure their intravenous lines do not become entangled on the wheels of the stretcher. This curb is unmarked and unprotected. k. The incompatibility between the open and obvious doctrine as an absolute, automatic bar to recovery and comparative fault is great. Ctr., Inc., 807 S.W.2d 476, 480-81 (Ky. 1991). While guiding the patient into the hospital’s emergency room entrance, she tripped over a steep curb and suffered injuries. On May 27, 2004, McIntosh, a trained and licensed paramedic, was transporting a critically ill patient to the Hospital. ", However, the absence of the duty to warn does not mean there is no duty at all, simply because "the duty of reasonable care may require precautions other than a warning, including employing durable precautions that eliminate or reduce the risk posed.". After considering the parties' briefs, the trial court summarily denied this motion. Admitting this testimony was not an abuse of discretion. The need to focus on the patient necessarily means taking attention away from other tasks, such as carefully navigating past a protruding curb. Restatement (Second) § 343A cmt. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). . However, this Court concludes that the modern trend, as embodied in the Restatement (Second) of Torts, is the better position. However, the open and obvious doctrine states that land possessors cannot be held liable to invitees who are injured by open and obvious dangers. 629 (1952), but the precise doctrinal rationale was not carefully considered because it made no difference at that time. 600 Vine Street Suite 2600 Cincinnati, Ohio 45202 (513) 579-0080 Fax: (513) 579-0222. Evidence was introduced showing that having such a curb at an emergency room entrance is very unusual, if not unique. The question then is whether the applicability of the doctrine is a question of law or of fact. And, in particular, Home cites section 343A(1) of the Restatement and its supporting commentary for the proposition that a land possessor may be held liable for open and obvious dangers if "the possessor should anticipate the harm despite [its] . v. Irene McIntosh. E.g., Harrison, 768 P.2d at 1326 (stating that "[t]he open and obvious danger doctrine, born in the era . After considering the parties' briefs, the trial court summarily denied this motion. The operation could not be completed. She should be entitled to assume that this entrance is safe, too. The Court of Appeals again affirmed the trial court's dismissal. f. In these situations, the injury is still foreseeable, and so liability should still be imposed. The Kentucky Supreme Court granted certiorari to review. "In either event, the injured invitee could not recover." Because I believe the open and obvious doctrine concerns a question of duty, I respectfully dissent. She was a member of the Pentecostal Church. a plaintiff avoid some share of the fault under comparative negligence. practice questions in 1L, 2L, & 3L subjects, as well as 16,500+ case . In this case, to avoid future liability, the hospital will need to build the same type of entrance ramp as some unknown group of hospitals. 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