Open and Obvious Doctrine No Bar To Suit
In a decision recently rendered by the Kentucky Court of Appeals, it was held that the Open and Obvious Doctrine is (i) a question of fact to be considered by the jury that (ii) goes to the allocation of responsibility for the injury. For that reason, a lawsuit against Kroger and Coca-Cola must be tried by a jury. Shirrell v. The Kroger Company, No. 2015-CA-000362-MR (Ky. App. Aug. 12, 2016).
Shirell slipped and fell in a Kroger store on posters that had been laid on the ground by an employee of Western Kentucky Coca-Cola Bottling Company, presumably in preparation for erecting them as part of the display. After Shirell filed and brought this action, both Kroger and Coca-Cola filed for summary judgment on the basis that posters on the floor constituted an “open and obvious hazard.” The trial court granted summary judgment to each of those defendants. This appeal followed.
On appeal, Shirell argued, inter alia, that the open and obvious doctrine does not go to ultimate liability, but rather is a factual question to be considered in allocation of fault. Specifically:
Shirell believes that the Circuit Court misinterpreted the law as to open and obvious hazards in relation to invitees. Even if the posters were an open and obvious hazard, Shirell maintains that the open and obvious nature of the posters merely constitutes an issue of fact for the jury to consider when allocating fault between him and appellees. Slip op. at 4.
After summary judgment had been granted in this case, the Kentucky Supreme Court had issued an opinion in Carter v Bullit Host, LLC, 471 S.W.3d 288 (Ky. 2015), in which it clarified the law regarding open and obvious hazards vis-a-vie the premises liability claims of the invitees. Therein, the Kentucky Supreme Court held:
The open-and-obvious nature of a hazard is, under comparative fault, no more than a circumstance that the trier of fact can consider in assessing the fault of any party, plaintiff or defendant. Under the right circumstances, the plaintiffs (sic) conduct in the face of an open-and-obvious hazard may be so clearly the only fault of his injury that summary judgment could be warranted against him, for example when a situation cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable.
In that the open and obvious doctrine was not, on the facts available in considering the motion for summary judgment, a bar to the suit, the summary judgment was reversed, and the case remanded for reconsideration.
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