“Reframing the question in this way focuses the inquiry not on whether a duty existed, but whether the existing duty was fulfilled.”
How later courts described this case
- “Reframing the question in this way focuses the inquiry not on whether a duty existed, but whether the existing duty was fulfilled.”
- finding that small potholes, steep stairs leading to a business, or even a simple curb do not create an unreasonable risk
- stating a desire to further Kentucky’s “slow, yet steady, progress to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims”
- “emphasiz[ing] that the existence of an open and obvious danger does not pertain to the existence of duty” and holding that “a land possessor’s general duty of care is not eliminated because of the obviousness of the danger”
Written by the judges who cited it.
The opinion
CUNNINGHAM, J.,
Dissenting.
I concur completely with Justice Scott’s well-stated dissent in this case. I only write further to express my own concerns for the direction our Court is taking here today in the area of slip and fall cases.
I strongly oppose the abandonment of our open and obvious standard for determining the duty of property owners. As Justice Scott states, such a result has very disturbing ramifications. The cost of health care in hospitals, rehabilitation centers — and even nursing homes — will be affected as insurance premiums rise. Naturally, this cost is going to be passed on to the consumer. More importantly, such a rule of law will compel these health care providers to adopt and impose much more restrictive visitation policies upon visitors to the infirmed. This will extract a poignant and emotional toll upon our sick and their loved ones.
Contrary to the reasoning in McIntosh and the expressions of this opinion, the principle of “open and obvious” is not “rooted in the bygone era of contributory negligence.” It is rooted in the basic tort requirement of duty — or more accurately, the lack of duty. In the case of Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526 (Ky.1969), a patron fell into a grease pit when purchasing a boat battery. The Court, in holding that the pit was a usual and necessary condition to the business of an automobile service station, stated: “It was well lighted. It was open and obvious. Therefore, it is our conclusion that so far as this plaintiff is concerned, Sears breached no duty owed to him which was causative of the harm he suffered.” Id. at 529 (emphasis added).
Without a duty, we never look at foreseeability. Neither do we look at breach or ordinary care. These terms do not come into play without duty. A pedestrian walking past a lake may observe a drowning person in the water. Under our law, as it stands, that person has no duty to attempt to rescue the hapless victim. But he or she surely has foreseeability — the person is going to drown. If the pedestrian swims like Michael Phelps, ordinary care demands that a rescue be attempted. But there is no duty. So there is no tort.
The overarching concern I have for our departure from the open and obvious protection is not for the landlord business. Landlords can take care of themselves. And they will always pass their costs along to the consumer. I’m concerned about the elderly person on a fixed income still being able to get a hamburger at Wendy’s for less than five dollars, and our sick and infirmed still being able to get needed health care at affordable insurance rates. Also, it is my desire that such persons still be allowed to receive the comforting, reassuring and unrestricted hands of loved ones in the hospital rooms where they lay infirmed and suffering. We fool ourselves when we think that the landowner is going to carry the brunt of the financial and human cost in relaxing the open and obvious principle.
Therefore, I respectfully dissent.
SCOTT, J., joins.