Ky. River Med. Ctr. v. Mcintosh

• Decision Date: 26 August 2010
• Docket Number: No. 2008-SC-000464-DG.,2008-SC-000464-DG.
• Parties: KENTUCKY RIVER MEDICAL CENTER; and Jackson Hospital Corporation, Appellants,v.Irene McINTOSH, Appellee.
• Court: United States State Supreme Court — District of Kentucky

319 S.W.3d 385

KENTUCKY RIVER MEDICAL CENTER; and Jackson Hospital Corporation, Appellants,v.Irene McINTOSH, Appellee.

No. 2008-SC-000464-DG.

Supreme Court of Kentucky.

Aug. 26, 2010.

COPYRIGHT MATERIAL OMITTED

Martin Allen Arnett, William P. Swain, Denis Carl Wiggins, William Baxter Orberson, Phillips, Parker, Orberson & Arnett, PLC, Louisville, KY, Counsel for Appellants.

Christopher W. Goode, Bubalo, Hiestand & Rotman, PLC, Lexington, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

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. 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 plaintiff's recovery as a matter of law. For the following reasons, the Court of Appeals is affirmed.

I. Background

On May 27, 2004, McIntosh, a trained and licensed paramedic, was transporting a critically ill patient to the Hospital. She and two Emergency Medical Technicians (EMTs) arrived at the ambulance dock, and began guiding the patient to the emergency room entrance.

Immediately outside the emergency room entrance there is a flat surface which is eleven feet wide to allow stretchers to be wheeled directly from the ambulance dock into the emergency room. This flat area rises on both sides to form a curb. This curb is unmarked and unprotected. 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.

McIntosh had helped transport about 400 patients to this emergency room entrance before, and she had always navigated past the protruding curb without incident. However, this time she tripped and fell over it, suffering a fractured hip and sprained wrist. McIntosh sued the Hospital, arguing that the curb was an unreasonably dangerous condition which caused her injuries.

While moving towards the entrance, McIntosh's attention was not focused on the curb; rather, she remained focused on attending to the critically ill patient. She testified that when transporting patients from the ambulance dock to the emergency room doors, it is the duty of a paramedic to remain focused on the patient's health and to make sure his intravenous lines do not get caught in the wheels of the stretcher, among other things. (In contrast, EMTs have the duty to physically push the patient from the ambulance to the doors.) One of the patient's family members testified that McIntosh was completely focused on the patient as he was pushed to the entrance.

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. In particular, McIntosh testified that she transports patients to several nearby hospitals and that none of them have any uneven surface between the ambulance dock and the doors. An EMT working for McIntosh also testified that among the eight to ten other entrances he had used, the Hospital was the only one that had a ledge or curb near the emergency room entrance. He stated: “They're all smooth.” This was verified by a number of photographs of the entrances of nearby hospitals.

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. After considering the parties' briefs, the trial court summarily denied this motion.

Ultimately, the jury found the Hospital liable. 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. The Hospital then moved for a judgment notwithstanding the verdict, renewing its argument about the open and obvious doctrine, which the trial court denied. 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.” This Court granted discretionary review to determine whether the open and obvious doctrine should have completely barred McIntosh's cause of action.

II. Analysis

A. The Open and Obvious Doctrine

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. The standards for summary judgment and for a judgment notwithstanding the verdict are identical Cassinelli v. Begley, 433 S.W.2d 651, 652 (Ky.1968). Both motions must be granted if and only if there is “no genuine issue as to any material fact” in the case. CR 56.03; see also Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480-81 (Ky.1991).

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. Perry v. Williamson, 824 S.W.2d 869, 875 (Ky.1992). However, the open and obvious doctrine states that land possessors cannot be held liable to invitees who are injured by open and obvious dangers. Restatement (First) of Torts § 340 (1934). The question then is whether the applicability of the doctrine is a question of law or of fact.

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.” Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.1992) (citations omitted). 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.

McIntosh responds that the existence of an open and obvious danger does not go to duty, but goes to the factual issue of fault. Under her view, the open and obvious doctrine could at most show that the invitee was partially at fault for failing to avoid injury. Consequently, how much fault should be placed on the invitee (for falling victim to a danger which is obvious) and how much should be placed on the land possessor (for failing to fix or warn of a danger which is obvious) would be a question for the jury.

Which of these two views is correct is not clear from the history of the doctrine because it arose in the era of contributory negligence. Under contributory negligence, any negligence on the part of the plaintiff completely barred recovery. Thus, it was irrelevant whether an open and obvious danger “excused a land possessor's duty to an invitee, or simply insulated the possessor from liability” by virtue of the plaintiff's contributory negligence in avoiding his own injury. “In either event, the injured invitee could not recover.” Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321, 1325 (1989). Some courts in that era explained the doctrine in terms of duty and others did so in terms of the plaintiff's contributory negligence see generally Page Keeton Personal Injuries Resulting from Open and Obvious Conditions, 100 U. Pa. L.Rev. 629 (1952), but the precise doctrinal rationale was not carefully considered because it made no difference at that time.

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). Under comparative fault, whether the doctrine concerns duty or fault becomes very important. Harrison, 768 P.2d at 1325.

If duty is not excused by a known or obvious danger, the injured invitee might recover, albeit in a diminished amount, [by virtue of his own comparative fault]. In contrast, if the invitee's voluntary encounter with a known or obvious danger were deemed to excuse the land owner's duty, then there would be no negligence to compare-and, therefore, no recovery.

Id. This distinction is the principal issue of this case.

Our sister states do not unanimously agree about the correct answer. However, “[t]he manifest trend of the courts in this country is away from the traditional rule absolving ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions.” Ward v. K Mart, 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 231 (1990). Instead, these courts allow the jury to evaluate the comparative fault of the parties, typical in modern negligence cases.

The courts following this trend typically adopt the position of the Restatement (Second) of Torts with respect to open and obvious conditions, which states:

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.

Restatement (Second) of Torts § 343A(1) (1965) (emphasis added). The commentary to this section elaborates on the emphasized clause:

There are ... cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.....

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, 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. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known

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