In April of 2013, the United States District Court of the Western District of Kentucky heard a case involving a Kentucky slip and fall matter. (See Altman v. CBOCS, Inc., 940 F. Supp.2d 560 (W.D.KY 2013)). The defendant filed a motion for summary judgment and for the reasons listed below, the court denied the motion.
The plaintiff at the time of the Kentucky slip and fall accident was a graduate student at Murray State University. Id. The plaintiff slip and fell on February 8, 2011 between 9:30am and 10:00am. Id. He was walking to a Cracker Barrel store near the campus to east breakfast. He had to walk through 8-11 inch deep snow to get there that had fallen on the previous evening. Id. He walked very carefully. When he got to the porch he walked carefully under the covered porch and upon entering the porch area, he slipped and fell on the concrete surface landing on his back and right shoulder. Id. He then went to the hospital with a fracture to his humerus bone of his right arm. The slip and fall injury required surgery. To date the slip and fall plaintiff complains of limited range of motion, diminished strength and continued pain. He claims the fall was caused by snow and ice on the porch and that the landlord had a duty to protect him from it, and failed to do so. The injured plaintiff hired a Kentucky slip and fall attorney.
On the day of the slip and fall, the restaurant manager notice that the entrance had snow and ice and so she had a worker shovel the snow of f the porch and spread salt on the cleared areas in order to prevent refreezing. Id. The defendants through their Kentucky slip and fall attorney moved for summary judgment arguing that under Kentucky law they had no duty to protect the plaintiff from danger presented by the snow on the porch, which was a naturally occurring hazard that was open and obvious.
Prior to 2010, the Kentucky law was not generous to business invitees who suffered an injury as a result of a risk created by an obvious, outdoor natural condition such as ice. Id. The general rule was that natural outdoor hazards which are as obvious to an invitee as to the owner of the premises do not constitute unreasonable risks to the former which the landowner has a duty to remove or warn against. Id. If the condition was open and obvious, a landowner had no duty to protect.
The court did note that “whether a natural hazard like ice or snow is obvious depends upon the unique facts of each case.” (cites omitted). Thus, the court held that there were questions of fact as to whether the snow and ice was open and obvious. Id. Prior to the Kentucky Supreme Court’s decision in McIntosh, if the condition was found to be open and obvious, the landowner was absolved of any duty to warn or protect his invitees from the condition under the theory that both parties have equal knowledge when the danger is truly open and obvious. Id. (cites omitted).
But, after the decision in McIntosh, the courts are not to ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. Id. The court detailed three specific circumstances in which such an injury is foreseeable. One had to do with distraction, another with whether the invitee would forget what he had discovered and the third had to do with the position of the invitee and the advantages of doing what the or she is doing and the outweigh of the apparent risk. In the case at hand, the court held that the third circumstance applied as it was foreseeable to a landowner where the benefit to the invitee of encountering the risk outweighs the costs of doing so; ie. It benefited the invitee of gaining entrance to the store so he could buy a meal over the potential ice risk.
“In the present case, the Court finds that even if the snow and ice was an open and obvious condition, the Defendants had a duty to take reasonable precautions to protect the plaintiff from it because it was foreseeable to the Defendants that the benefit of encountering the danger would outweigh the risk of doing so. Though the defendants did shovel the snow and put ice out, the question of reasonableness is a question of fact for the jury.
If you have been the subject of a Kentucky slip and fall case, please call and speak to a Kentucky slip and fall attorney at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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