In addition, "the possessor has reason to expect that the invitee[] . briefs keyed to 223 law school casebooks. Both of these positions have some initial appeal. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. While reasonable minds could differ whether McIntosh was to some degree at fault under these facts, all the evidence was before the jury and was argued to them. 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. CINCINNATI. This curb is unmarked and unprotected. The modern approach is consistent with Kentucky's focus on foreseeability in its analysis of whether or not a defendant has a duty. It is important to stress the context in which McIntosh sustained her injury: she was rushing a critically ill patient into a hospital, in an effort to save his life. The incompatibility between the traditional open and obvious rule and comparative fault is palpable; any incompatibility should be resolved in favor of comparative fault. Get 1 point on providing a valid sentiment to this Such a condition, being open and obvious, should usually be noticed by a plaintiff who is paying reasonable attention. Second, the Hospital argues that the trial court erred in allowing the testimony of McIntosh's expert witness, James Lapping. Contact Us. away Wednesday, March 14, 2012 at his home. a plaintiff avoid some share of the fault under comparative negligence. k. The incompatibility between the open and obvious doctrine as an absolute, automatic bar to recovery and comparative fault is great. Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious. Paramedics will rarely have the luxury of calmly walking towards an emergency room entrance. Become a member and get unlimited access to our massive library of The commentary to this section elaborates on the emphasized clause: Despite the "manifest trend of the courts in this country," Ward, 143 Ill.Dec. ). 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. 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. There was no error. Kentucky River Medical Center, et al. Get 2 points on providing a valid reason for the above Although the Hospital is correct that the front entrance and emergency room entrance have different sorts of traffic, this is a fact that can be easily pointed out at trial, and this Court does not think it is beyond the capability of the jury to understand this distinction, especially given the testimony about the unique safety requirements of emergency room entrances. 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] . . This is no doubt why the Hospital stresses this point in its brief. This website requires JavaScript. After considering the parties' briefs, the trial court summarily denied this motion. 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. 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. As the reporters' notes to the current draft of the Restatement (Third) of Torts state: Restatement (Third) of Torts: Liab. The hospital appealed. You're using an unsupported browser. McIntosh had helped transport about 400 patients to this emergency room entrance before, and she had always navigated past the protruding curb without incident. Restatement (Third) of Torts: Liab. 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: If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable. Admitting this testimony was not an abuse of discretion. 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. Thus, even though the curb may have been open and noticeable to some extent, in this case "the possessor has reason to expect that the invitee's attention may be distracted" from it. Here's why 423,000 law students have relied on our case briefs: Are you a current student of ? Although this Court ultimately concluded that the danger "was not `known or obvious to`" the plaintiff, this Court concluded in the alternative that. After considering the parties' briefs, the trial court summarily denied this motion. 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. A "yes" or "no" answer to the question framed in the issue section; A summary of the majority or plurality opinion, using the CREAC method; and. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. 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. Under contributory negligence, any negligence on the part of the plaintiff completely barred recovery. 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 McIntosh , the Supreme Court held that the presence of an “open and obvious” hazard is no longer a complete bar to recovery.2 Irene McIntosh was working as a paramedic at the time of her fall. The Hospital had good reason to expect that a paramedic, such as McIntosh, would be distracted as she approached the emergency room entrance. These courts therefore conclude that no duty should be imposed when dangers are obvious. CR 56.03; The incompatibility between the open and obvious doctrine as an absolute, automatic bar to recovery and comparative fault is great. He was born in Lost Creek, Kentucky, and was the son of . § 6-801," where that statute provides that "[contributory negligence shall not bar recovery in an action . By clicking on this tab, you are expressly stating that you were one of the advocates appearing in this matter. 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. Physical Harm § 51, reporters' notes cmt. She should be entitled to assume that this entrance is safe, too. This Court concludes that these are not error. The Hospital argues that the jury did not need expert testimony to determine whether the emergency room entrance was safe because the issue was within their common knowledge. McIntosh responds that the existence of an open and obvious danger does not go to duty, but goes to the factual issue of fault. CR 61.02. Learn more about Quimbee’s unique (and proven) approach to achieving great grades at law school. . 600 Vine Street Suite 2600 Cincinnati, Ohio 45202 (513) 579-0080 Fax: (513) 579-0222. Barcode Until today, a landowner or possessor of land could not be held liable to invitees who were injured by open and obvious dangers. Restatement (First) of Torts § 340 (1934). The jury is fully capable of considering how a person's familiarity with a danger should bear upon his respective share of fault, if at all. reversed and remanded, affirmed, etc. 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). So great, in fact, that a few states have held that their comparative negligence statutes abolished the open and obvious doctrine outright. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). You can try any plan risk-free for 30 days. The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. The minority view overlooks this point, and for that reason this Court cannot follow it. He also testified that the entrance violated OSHA regulations. Id. Get 1 point on adding a valid citation to this judgment. The need to focus on the patient necessarily means taking attention away from other tasks, such as carefully navigating past a protruding curb. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), which changed how the open-and-obvious doctrine worked in Kentucky and which had been rendered the previous summer. In the present case, the Hospital owed a duty to McIntosh, given that her injury was foreseeable. Id. Accordingly, this Court concludes that if error, this is not reversible error, as it does not rise to the level of "manifest injustice." While guiding the patient into the hospital’s emergency room entrance, she tripped over a steep curb and suffered injuries. Physical Harm § 51 cmt. McIntosh had guided hundreds of patients into the hospital on previous occasions without tripping. Read our student testimonials. Thus, there were genuine issues of material fact that were properly submitted to the jury. McIntosh filed suit against the hospital and alleged that the curb was an unreasonably dangerous condition. Even if we assume that she was neither distracted nor forgetful about the curb, we would still have to conclude that the benefits of her rushing to the door (at the risk of tripping over the curb) outweighed the costs of her failing to do so (at the risk of the patient's condition worsening, perhaps to the point of death, on the Hospital doorstep). The greater her familiarity, the greater her own fault. The Hospital also raises two evidentiary issues on appeal. 476, 49 S.W.3d 644, 650 (2001); La Quinta Inns, Inc. v. Leech, 289 Ga.App. 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 moved the trial court for summary judgment, claiming that the open and obvious doctrine barred McIntosh's recovery as a matter of law. See, e.g., Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Find a Doctor. E.g., Ethyl Corp. v. Johnson, 345 Ark. For that reason, the trial court correctly denied the Hospital's motions for a directed verdict and for a judgment notwithstanding the verdict. The lower courts should not merely label a danger as "obvious" and then deny recovery. 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." 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 … 629 (1952), but the precise doctrinal rationale was not carefully considered because it made no difference at that time. 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." ; ABRAMSON, CUNNINGHAM and VENTERS, JJ., concur. 2 We granted discretionary review and remanded the case to the Court of Appeals for reconsideration in light of McIntosh. Our intuition is that McIntosh's familiarity with the danger makes her a less worthy plaintiff. 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. Supreme Court rendered its opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), which modified the “open and obvious” doctrine of premises liability. The lower courts should not merely label a danger as "obvious" and then deny recovery. And KRE 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Sign up for a free 7-day trial and ask it. SCHRODER, J., dissents by separate opinion in which SCOTT, J., joins. Pathways, 113 S.W.3d at 89 (citation omitted). We’re not just a study aid for law students; we’re the study aid for law students. And KRE 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." The issue section includes the dispositive legal issue in the case phrased as a question. Thus, this Court rejects the minority position, which absolves. The trial court did not abuse its discretion in admitting these photographs into evidence. Members of the public are familiar with the main entrances to hospitals. The trial court denied the hospital’s motion. No contracts or commitments. v. Irene McIntosh. KRE 401, 403. On May 27, 2004, McIntosh, a trained and licensed paramedic, was transporting a critically ill patient to the Hospital. The jury found the hospital liable and awarded McIntosh damages. She and two Emergency Medical Technicians (EMTs) arrived at the ambulance dock, and began guiding the patient to the emergency room entrance.