Dick's Sporting Goods, Inc. v. Webb

• Decision Date: 25 November 2013
• Docket Number: No. 2011–SC–000518–DG.,2011–SC–000518–DG.
• Parties: DICK'S SPORTING GOODS, INC., Appellant v. Betty C. WEBB, Appellee.
• Court: United States State Supreme Court — District of Kentucky

413 S.W.3d 891

DICK'S SPORTING GOODS, INC., Appellant

v.Betty C. WEBB, Appellee.

No. 2011–SC–000518–DG.

Supreme Court of Kentucky.

Nov. 21, 2013.

As Corrected Nov. 25, 2013.

Phillip A. Sammons, Jason Michael Nemes, Louisville, Counsel for Appellant.

Kelly P. Spencer, Lexington, Bradly F. Slutskin, Counsel for Appellee.

Kevin Crosby Burke, Louisville, Counsel for Amicus Curiae, Kentucky Justice Association.

Opinion of the Court by Chief Justice MINTON.

On a rainy day during the busy Christmas shopping season, Betty Webb entered Dick's Sporting Goods. As she walked in, she noticed that the mats covering the tile floor at the front of the store had shifted and a puddle of water had collected between the mats. Webb attempted to avoid the puddle by stepping onto a nearby tile, which she believed was dry. But that tile was wet. Webb slipped and fell to the floor, allegedly sustaining substantial injuries.

Webb sued Dick's Sporting Goods, claiming the store was negligent in maintaining its premises. Dick's Sporting Goods denied that it owed any duty to Webb because the condition of the floor that day was open and obvious. The trial court granted summary judgment in favor of Dick's Sporting Goods on open-and-obvious grounds. The Court of Appeals, in reliance on our opinion in Kentucky River Medical Ctr. v. McIntosh,¹ reversed the trial court's grant of summary judgment.

We granted discretionary review to analyze further, given the different circumstances presented by this case, the reach and effect of McIntosh. But after reviewing the record in this case, we do not perceive our holding in McIntosh as governing. We simply do not view this as an open-and-obvious case. Although we affirm the holding of the Court of Appeals that the trial court erred by granting summary judgment, we differ with the Court of Appeals on the reasons for so holding. Dick's Sporting Goods had an affirmative duty to maintain its store premises in a reasonably safe condition, and whether Dick's Sporting Goods breached that duty is a question for the jury to decide.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Betty Webb and her neighbor ventured out in pouring rain to do some Christmas shopping at Dick's Sporting Goods. Upon her arrival, Webb noticed puddles in the parking lot and proceeded cautiously to the store's entrance. As Webb entered the store, she immediately stepped onto floor mats that Dick's Sporting Goods had placed in the entryway to soak up water tracked in by customers. Webb saw the floor mats had shifted from their customary parallel formation into a “V” shape. A visible pool of water had formed in the center of the “V.” According to Webb, the mats were wet and spongy. Dick's Sporting Goods placed no signage at the front of the store to warn customers that the floor may be wet.

A crowd of other customers attempting to enter Dick's Sporting Goods at the same time surrounded Webb. In an attempt to avoid the visible pool of water in the “V,” Webb stepped off of one of the mats and tried to step onto a tile that appeared to her to be dry. But in fact the tile was wet. As she stepped onto the tile, she slipped and fell forward, injuring her knees, arms, and shoulders. A store employee witnessed the fall.

Webb brought this action against Dick's Sporting Goods. In Webb's discovery deposition, she acknowledged that there were a number of fellow customers entering the store at the same time, which made it difficult for her to avoid the pool without pausing momentarily and waiting for people to pass. Webb acknowledged that her shoes were wet and that the lighting in the store was bright. Webb also admitted that had Dick's Sporting Goods placed a sign near the entrance to warn of wet floors, the warning probably would not have dissuaded her from entering the store.

Dick's Sporting Goods moved the trial court for summary judgment, asserting that the wet floor causing Webb's injury was an open-and-obvious condition, which barred Webb's claim because the open-and-obvious condition eliminated any duty potentially owed to Webb. The trial court agreed with the position of Dick's Sporting Goods, ruling that there was no duty to eliminate or warn of the water because of its open-and-obvious nature.

Webb appealed to the Court of Appeals. During the pendency of the appeal, we rendered McIntosh. McIntosh, emphasizing a landowner's unwavering general duty of reasonable care, sought to modernize and clarify our jurisprudence involving open-and-obvious hazards. Reversing the trial court in this case, the Court of Appeals relied heavily on McIntosh to hold that (1) Dick's Sporting Goods had a duty to take reasonable steps to eliminate or reduce open-and-obvious hazards and (2) whether Dick's Sporting Goods satisfied that duty was a fact-question for the jury.

II. ANALYSIS.

On appeal, Dick's Sporting Goods argues the trial court properly granted summary judgment because Webb presented no evidence to show an affirmative duty either to warn of or to remedy the pooled water was owed her. Webb responds that the injury she sustained was foreseeable by Dick's Sporting Goods and, as a result, the store was required to exercise reasonable care in maintaining its premises. We agree with Webb.

Because this case was decided on a motion for summary judgment, we must first review the applicable standards of appellate review for such cases. Summary judgment is an extraordinary remedy to be used only “to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at trial warranting a judgment in his favor against the movant.” ² Under Kentucky Rules of Civil Procedure (CR) 56.03, summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The review of summary judgment on appeal does not involve fact finding. Only legal questions must be resolved.³ So we review the issue de novo with no obligation to offer the trial court's decision deference. ⁴ The material facts of this case are undisputed. As a result, the remaining issue is whether Dick's Sporting Goods owed—and if so, breached—a duty to Webb to exercise reasonable care. Up to this point in the litigation, this case has been argued as one involving an open-and-obvious hazard. But we see the circumstances differently and affirm on other grounds. As a result, we do not find McIntosh applicable to this case. Of course, we can affirm on any grounds supportable by the record.⁵

A. Webb was not Injured as a Result of an Open–and–Obvious Hazard.

Traditionally, as the trial court found, “land possessors cannot be held liable to invitees who are injured by open and obvious dangers.” ⁶ Accordingly, 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.

In McIntosh, this Court moved away from a rote application of the former rule and adopted Section 343A of the Restatement (Second) of Torts, holding a defendant liable for harm resulting from an open-and-obvious condition if the harm could be anticipated, the plaintiff's knowledge of the condition or the obviousness of the condition notwithstanding. Despite the groundbreaking nature of our decision in McIntosh, we did not alter what is actually required to find an open-and-obvious condition. That is to say, McIntosh altered the treatment of plaintiffs bringing claims involving open-and-obvious dangers; but it did not alter what actually constitutes an open-and-obvious hazard. Post-McIntosh, an open-and-obvious danger is what it was pre-McIntosh.

Simply put, the case before us does not present an open-and-obvious hazard. An open-and-obvious condition is found when the danger is known or obvious. The condition is known to a plaintiff when, subjectively, she is aware “not only ... of the existence of the condition or activity itself, but also appreciate[s] ... the danger it involves.” ⁷ And the condition is obvious when, objectively, “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.”⁸ It is important to note that Restatement (Second) § 343A does not require both elements to be found. The defendant will not be subject to liability if the condition is either known or obvious.

In entering the store, Webb certainly encountered an open-and-obvious hazard. The pool of water in the center of the mat “V,” as well as the soaked condition of the mats themselves were both known and obvious to Webb. According to her own account, the “V” was clearly visible to Webb.' And she appreciated the danger, evidenced by her attempt to step around the pool of water.⁹ Furthermore, the pool of water and the risk associated with it were of such a nature that a reasonable person, in the position of a store entrant, would recognize. But, at least arguably, the “V” and its accumulated water did not cause Webb's fall.¹⁰

Webb departed from the mats in an attempt to avoid the puddle and took a small step—approximately fifteen inches-onto a nearby tile. In doing so, Webb was confident the nearby tile was dry because it appeared to her to be dry. But to her shock,¹¹ the tile was, in fact, not dry. Webb “didn't know it was wet until [she] actually felt it when [she] fell.” She was unsure of the amount of water on the tile but testified that her sweater became wet upon her fall. This is not the testimony of an individual who has suffered an injury as a result of an encounter with an open-and-obvious hazard. Webb did not have “knowledge of the existence of the condition” or “appreciation of the danger” associated with it.

Furthermore, a reasonable person in Webb's position, exercising ordinary care, may not have noticed the condition either because of the inherent difficulty of detecting...