Thus, there were genuine issues of material fact that were properly submitted to the jury. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. One of the patient's family members testified that McIntosh was completely focused on the patient as he was pushed to the entrance. Citation. Harrison, 768 P.2d at 1325. This Court concludes that these are not error. Ward v. K Mart, 136 III.2d 132, 143 Ill.Dec. Co., 839 S.W.2d 245, 248 (Ky. 1992) (citations omitted). This Court has previously stated that "[t]he most important factor in determining whether a duty exists is foreseeability.". Members of the public are familiar with the main entrances to hospitals. Martin Allen Arnett, William P. Swain, Denis Carl Wiggins, William Baxter Orberson, Phillips, Parker, Orberson Arnett, PLC, Louisville, KY, Counsel for Appellants. 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. f. The Hospital had very good reason to believe McIntosh would be tending to the patient, not to each step she was taking. The Court also rendered a second opinion addressing the open-and-obvious doctrine, Dick’s Sporting Goods, Inc. v. Betty Webb, 2011-SC-000518-DG (Ky. November 21, 2013). "In either event, the injured invitee could not recover." CR 56.03; see also Steelvest, Inc. v. Scansteel Serv. For the foregoing reasons, the Court of Appeals is affirmed. Learn More . It is likely that in such a situation, a paramedic such as McIntosh may forget that this particular entrance has a unique danger that she must avoid. 2010). Indeed, it is foreseeable that McIntosh may absent-mindedly assume that this entrance was just as safely constructed as any other, causing her to trip. 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 plaintiffs contributory negligence in avoiding his own injury. After considering the parties' briefs, the trial court summarily denied this motion. However, sometimes "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." 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. . In addition, "the possessor has reason to expect that the invitee[] . CR 61.02. Search our hospital’s physicians by name, specialty and location to find what you need. You're using an unsupported browser. As noted by the parties, the Supreme Court of Kentucky recently discussed the open and obvious doctrine at length. away Wednesday, March 14, 2012 at his home. CINCINNATI. The hospital appealed. Some law schools—such as Yale, Vanderbilt, Berkeley, and the University of Illinois—even subscribe directly to Quimbee for all their law students. Get 2 points on providing a valid reason for the above This Court has previously stated: This Court concludes that the testimony was properly admitted. Contact Us. a plaintiff avoid some share of the fault under comparative negligence. 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. 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: SCHRODER, J., dissents by separate opinion in which SCOTT, J., joins. If not, you may need to refresh the page. f. This is another reason this injury is foreseeable and that a duty existed in this case. 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 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 moved the trial court for summary judgment, claiming that the open and obvious doctrine barred McIntosh's recovery as a matter of law. On May 27, 2004, McIntosh, a trained and licensed paramedic, was transporting a critically ill patient to the Hospital. 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. Thus, these courts maintain that the basis for placing a duty on the land possessor — his superior knowledge — does not exist when the danger is truly open and obvious. However, they are less familiar with emergency room entrances, which are used primarily by specialized professionals such as paramedics and EMTs. This website requires JavaScript. The trial court's decision to admit this evidence is reviewed for an abuse of discretion. Importantly, expert testimony does not need to be flawless to be admissible. So when we presume their knowledge is already equal, as we do for obvious conditions, the warning could serve no purpose. ). June 24, 2011 DBL Law There has been considerable discussion among Kentucky civil litigators in recent months about the effect of the Kentucky Supreme Court’s decision in Kentucky River Med. 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. Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious. KENTUCKY RIVER MEDICAL CENTER V. MCINTOSH (Ky. 2010) Facts: o Outside the emergency room entrance there was a flat surface, eleven feet wide, to allow stretchers to be wheeled directly from the dock into the ER; flat area looks like a wide curb ramp, except the ramp part is flat rather than inclined o The curb is unmarked and unprotected o McIntosh tripped over the curb and suffered a fractured hip and sprained wrist o … In short, there is no doubt the photographs were relevant. Physical Harm § 51 cmt. Turning to this case, this Court concludes that the Hospital owed a duty to McIntosh. 288, 554 N.E.2d at 231, and the persuasive power of the Restatement, "[a] few courts" still maintain that the doctrine is really one of duty. This Court has previously stated that "[t]he most important factor in determining whether a duty exists is foreseeability." The Court of Appeals again affirmed the trial court's dismissal. The incompatibility between the traditional open and obvious rule and comparative fault is palpable; any incompatibility should be resolved in favor of comparative fault. This is no doubt why the Hospital stresses this point in its brief. And the extent to which her absentmindedness comes into play should bear only on her comparative fault rather than as an absolute bar to her recovery. Christopher W. Goode, Bubalo, Hiestand Rotman, PLC, Lexington, KY, Counsel for Appellee. Our intuition is that McIntosh's familiarity with the danger makes her a less worthy plaintiff. On our case briefs: are you a current student of ] most. Bore no comparative fault is great 231 ( 1990 ), Bubalo Hiestand... Location to find what you need fact '' in the Commonwealth these duties are also based on Kentucky River Center! The purpose of a warning is to equalize the parties ' knowledge about the danger McIntosh, 319 S.W.3d (... State Street Suite 2600 Cincinnati, Ohio 43215 ( 614 ) 469-7146 ( Third of! 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