Get 2 points on providing a valid reason for the above The Hospital had good reason to expect that a paramedic, such as McIntosh, would be distracted as she approached the emergency room entrance. However, almost all states now have comparative fault — including Kentucky, Despite the "manifest trend of the courts in this country,", The modern approach is consistent with Kentucky's focus on foreseeability in its analysis of whether or not a defendant has a duty. This is no doubt why the Hospital stresses this point in its brief. Irene McIntosh (plaintiff), a licensed paramedic, transported a critically ill patient to Jackson Hospital Corporation, doing business as Kentucky River Medical Center (KRMC) (collectively the hospital) (defendant) for treatment. As the court guided: The lower courts should not merely label a danger as ‘obvious’ and then deny recovery. at 367-70. v. Irene McIntosh. CR 56.03; see also Steelvest, Inc. v. Scansteel Serv. This was verified by a number of photographs of the entrances of nearby hospitals. . Ctr., Inc., 807 S.W.2d 476, 480-81 (Ky. 1991). f. In these situations, the injury is still foreseeable, and so liability should still be imposed. The Court of Appeals again affirmed the trial court's dismissal. Both motions must be granted if and only if there is "no genuine issue as to any material fact" in the case. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. The Court of Appeals affirmed the trial court's grant of summary judgment but ruled before we rendered our decision in Kentucky River Medical Center v. McIntosh. See, e.g., Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) (citing Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992)). So when we presume their knowledge is already equal, as we do for obvious conditions, the warning could serve no purpose. Before confirming, please ensure that you have thoroughly read and verified the judgment. 2 We granted discretionary review and remanded the case to the Court of Appeals for reconsideration in light of McIntosh. Even in such situations, a jury could still reasonably find some degree of fault by the plaintiff, depending on the facts. 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. He served as the safety director for the AFLCIO for over two decades, and he also worked for the Occupational Safety and Health Administration (OSHA), where he wrote training programs for safety inspectors. The greater her familiarity, the greater her own fault. 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. 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. However, this time she tripped and fell over it, suffering a fractured hip and sprained wrist. Retain a Kentucky Premises Liability Attorney for Help. More Information . Please log in or sign up for a free trial to access this feature. . Under contributory negligence, any negligence on the part of the plaintiff completely barred recovery. This flat area rises on both sides to form a curb. Restatement (Third) of Torts: Liab. She should be entitled to assume that this entrance is safe, too. Id. This is good impeachment and rebuttal evidence, and it was all heard and duly considered by the jury. Importantly, expert testimony does not need to be flawless to be admissible. Therefore, they rule that no duty should be imposed. Until this decision, there was no such duty. A trial court abuses its discretion if its decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. Barcode CR 61.02. . v. McIntosh, 319 S.W.3d 385 (Ky. 2010), on the open and obvious hazard defense in … This is nothing more than continuing to recognize that "[t]he most important factor in determining whether a duty exists is foreseeability," Pathways, 113 S.W.3d at 89, and is why the modern approach makes a great deal of sense. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. * Enter a valid Journal (must 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. If you logged out from your Quimbee account, please login and try again. a plaintiff avoid some share of the fault under comparative negligence. will forget what he has discovered." obviousness." Our intuition is that McIntosh's familiarity with the danger makes her a less worthy plaintiff. The holding and reasoning section includes: v1508 - c62a5f3a171bd33c7dd4f193cca3b7247e5f24f7 - 2020-12-18T12:41:07Z. If she had never been to this emergency room entrance even once before, the Hospital would still owe her no duty, and the same result would follow. Ultimately, the jury found the Hospital liable. Specifically, the Hospital notes that Lapping admitted he was unaware of McIntosh's familiarity with the entrance or that OSHA had investigated the entrance and found no violations. In addition, in this case the plaintiff had the defense of foreseeable distraction, as she was attending her patient. 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. 600 Vine Street Suite 2600 Cincinnati, Ohio 45202 (513) 579-0080 Fax: (513) 579-0222. 65 E. State Street Suite 2000 Columbus, Ohio 43215 (614) 469-7130 Fax: (614) 469-7146. 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. Id. The hospital filed a motion for summary judgment and claimed that the “open and obvious” doctrine barred McIntosh’s claims. See, e.g., Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 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. to the manner of his testimony." The trial court denied this motion, concluding that there were material questions of fact 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. In addition, "the possessor has reason to expect that the invitee[] . Id. Christopher W. Goode, Bubalo, Hiestand Rotman, PLC, Lexington, KY, Counsel for Appellee. This makes good policy sense. practice questions in 1L, 2L, & 3L subjects, as well as 16,500+ case So although it is true that when the danger is obvious the land possessor does not have superior knowledge, the land possessor still has the superior ability to issue repairs. The court of appeals affirmed the jury’s verdict. Mary Ritchie, 68, passed away Tuesday, November 5, at the Kentucky River Medical Center in Jackson. This Court has previously stated: This Court concludes that the testimony was properly admitted. Some law schools—such as Yale, Vanderbilt, Berkeley, and the University of Illinois—even subscribe directly to Quimbee for all their law students. So when we presume their knowledge is already equal, as we do for obvious conditions, the warning could serve no purpose. This Court concludes that these are not error. CINCINNATI. 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 Court of Appeals affirmed the trial court's grant of summary judgment but ruled before we rendered our decision in Kentucky River Medical Center v. McIntosh. She testified that she had safely navigated the entrance hundreds of times before her injury. Citation. Kentucky River Medical Center, et al. 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. In the usual case, a land possessor's better knowledge regarding the premises means that he is in the better position to prevent the harm. Quimbee might not work properly for you until you. The lower courts should not merely label a danger as "obvious" and then deny recovery. of contributory negligence, has been abolished legislatively through the adoption of I.C. Phelan v. State, 11 Misc.3d 151, 804 N.Y.S.2d 886, 898 (N.Y. Ct. Claims 2005). to recover damages for negligence"). 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." The Hospital also raises two evidentiary issues on appeal. While guiding the patient into the hospital’s emergency room entrance, she tripped over a steep curb and suffered injuries. 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. Martin Allen Arnett, William P. Swain, Denis Carl Wiggins, William Baxter Orberson, Phillips, Parker, Orberson Arnett, PLC, Louisville, KY, Counsel for Appellants. No contracts or commitments. f. This is another reason this injury is foreseeable and that a duty existed in this case. The modern approach is consistent with Kentucky's focus on foreseeability in its analysis of whether or not a defendant has a duty. The minority view overlooks this point, and for that reason this Court cannot follow it. If the land possessor can foresee the injury, but nevertheless fails to take reasonable While "open and obvious danger" is no longer a complete defense under the Restatement, it is nonetheless a heightened type of danger which places a higher duty on the plaintiff to look out for his own safety. McIntosh had guided hundreds of patients into the hospital on previous occasions without tripping. As noted by the parties, the Supreme Court of Kentucky recently discussed the open and obvious doctrine at length. 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 question then is whether the applicability of the doctrine is a question of law or of fact. 288, 554 N.E.2d 223, 231 (1990). Co., 839 S.W.2d 245, 248 (Ky. 1992) (citations omitted). Physical Harm § 51, reporters' notes cmt. 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. 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. Click here to remove this judgment from your profile. You're using an unsupported browser. The lower courts should not merely label a danger as "obvious" and then deny recovery. 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] . 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." In Kentucky River Medical Center v. McIntosh , 319 S.W.3d 385 (Ky. 2010), the court recognized that the modification was necessary because of Kentucky's adoption of a comparative fault tort scheme. § 6-801," where that statute provides that "[contributory negligence shall not bar recovery in an action . Under KRE 401: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." You’ll be in good company: Quimbee is one of the most widely used and trusted sites for law students, serving more than 97,000 law students since 2011. Sign up for a free 7-day trial and ask it. Id. 2 We granted discretionary review and remanded the case to the Court of Appeals for reconsideration in light of McIntosh. Physical Harm § 51 cmt. Learn More . (There was also testimony that McIntosh ably fulfilled her duty by remaining focused on the critically ill patient as the EMTs pushed him to the doors.) However, in the case of open and obvious dangers, the invitee should be just as aware of the danger. We even dramatically shifted the law in favor of injured victims with the landmark decision of Kentucky River Medical Center v. McIntosh, which has been adopted across the country as the new standard for premises liability cases. The most logical way of taking this factor into account is to say that if she has familiarity with the danger, then she is at fault for failing to avoid it, and to reduce her recovery accordingly. briefs keyed to 223 law school casebooks. So great, in fact, that a few states have held that their comparative negligence statutes abolished the open and obvious doctrine outright. Evidence was introduced showing that having such a curb at an emergency room entrance is very unusual, if not unique. Admittedly, it may seem at first that McIntosh was not a particularly sympathetic plaintiff because, as the Hospital points out, she "had encountered [the danger] on many, many occasions." Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). 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 … Court rejects the minority view overlooks this point, and so liability should still be imposed when dangers are.. Settings, or unsupported by sound legal principles. entitled to assume that this is... Conclude that no duty should be just as aware of the public are familiar with regulations! Always try to avoid dangers of which he is aware, but precise! Should still be imposed the judgment as an absolute, automatic bar to recovery and comparative fault, that duty! Matters to us kentucky river medical center v mcintosh determine whether the open and obvious, should usually be noticed by a plaintiff is... 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