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RENDERED: JULY 12, 2013; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V., JUDGE
ACTION NO. 10-CI-01558
ROBERT A. SCHNEIDER, D/B/A
SWEET TOOTH CANDIES;
AND CINCINNATI INSURANCE
** ** ** ** **
BEFORE: ACREE, CHIEF JUDGE; DIXON AND MOORE, JUDGES.
ACREE, CHIEF JUDGE: Amanda Spears appeals the Campbell Circuit Courtâs
December 22, 2011 order dismissing her premises liability claim against Appellees
Robert A. Schneider, Jr., d/b/a Sweet Tooth Candies and Cincinnati Insurance
Company (collectively, âSweet Toothâ) for lack of a duty owed. The question
before us is whether the circuit court erred in classifying the danger at issue, i.e., a
step of unequal height, as an open and obvious hazard and, as a result, concluding
the open and obvious doctrine barred Spearsâ negligence suit as a matter of law.
Finding no error, we affirm
I. Facts and Procedure
The following facts are not in dispute.
Schneider owns and operates Sweet Tooth Candies, a candy, ice cream, and
sweet treat shop at the corner of Eleventh and Ann Streets in Newport, Kentucky.
The storeâs front door and only entrance is positioned at the corner where the two
streets intersect. Four steps lead from the sidewalk up to the front door. The steps
wrap around the front door in a semi-circle arc; they are level, and have not
changed since 1958. The sidewalk immediately adjacent to the shop on the
Eleventh Street side is also level. However, the sidewalk on the Ann Street side
slopes downward. Because of this, the height of the bottom step gradually
increases from left to right.
Spears was a semi-frequent Sweet Tooth patron, having visited the store on
at least twenty occasions since childhood. She had previously negotiated the steps,
without issue, during both daylight and evening hours. She had noticed no change
in the configuration of the steps, or the orientation of the sidewalk to the steps,
during her preceding visits to the shop. The steps are in good repair. There is a
handrail along one side of the steps; Spears had used the handrail to enter or exit
the store on prior occasions.
On January 3, 2010, Spears and friends visited Sweet Tooth. She ascended
the steps without issue, entered the store, enjoyed a dish of ice cream, and then left.
Spears descended the middle of the steps; she was not holding the handrail.1 As
Spears stepped from the bottom step to the sidewalk, she rolled her ankle and fell,
severely injuring her right ankle and leg.2 Spears expected the distance between
each step to be the same. Spears claims the change in height from the final step to
the sidewalk caused her to lose her footing and fall. When the accident occurred,
the steps were free of foreign substances, not covered in snow or ice, and lit by
both natural and artificial light.
Spears filed a premises liability action against Sweet Tooth seeking damages
because of the injuries she suffered in the fall on the steps. Spears claimed the
steps were in a state of disrepair and/or poorly constructed, and Sweet Tooth
breached its duty to keep the steps in a reasonably safe condition. Following
discovery, Sweet Tooth moved for summary judgment. The circuit court granted
that motion on December 22, 2011. The circuit court concluded the nature of the
steps was open and obvious to all, Spears was intimately familiar with the steps
before she fell, Spears had a duty to look out for her own safety due to the open
According to Spearsâ deposition, she left the shop with her partner. They descended the steps
together. Spearsâ partner came down the steps on the left side holding the handrail. Spears was
one step behind, descending the middle of the steps and not holding the handrail.
Spears also injured her left ankle, the severity of which is disputed, but that dispute is not
material to the resolution of the case.
and obvious condition of the steps, and Spears was not distracted by any outside
force or emergency when her fall occurred. From this order, Spears appealed.
II. Standard of Review
âThe standard of review on appeal of summary judgment is whether the trial
court correctly found there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.â Carter v. Smith, 366 S.W.3d 414,
419 (Ky. 2012). Summary judgment involves no fact-finding; it encompasses only
legal queries, and the existence of disputed material facts. Mitchell v. University of
Kentucky, 366 S.W.3d 895, 898 (Ky. 2012) (citation omitted). Our review is de
Spearsâ position on appeal is that summary judgment was improper because
there were genuine issues of material fact regarding whether the steps constituted
an open and obvious danger. If this Court finds otherwise, Spears argues, Sweet
Tooth should have anticipated than an invitee would be harmed by the stepsâ
dangerous configuration because the steps themselves constitute a âdistractionâ as
contemplated by Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385
(Ky. 2010). We are not persuaded.
A negligence action, such as this, comprises four elements: duty, breach,
causation, and damages. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky.
2003). The existence of a duty is a question of law to be decided by the court. See
id. at 89. While common negligence law necessitates the existence of a duty,
âpremises liability law supplies the nature and scope of that duty when dealing
with . . . injuries on realty.â Lewis v. B&R Corp., 56 S.W.3d 432, 437-38 (Ky.
App. 2001); Lucas v. Gateway Cmty. Servs. Org., Inc., 343 S.W.3d 341, 343 (Ky.
App. 2011). To that end, â[t]he status of the person coming onto the land
determines the degree of care required by the land possessorâ and, in turn, the duty
owed. Miracle v. Wal-Mart Stores East, LP, 659 F.Supp.2d 821, 825 (E.D. Ky.
2009); West v. KKI, LLC, 300 S.W.3d 184, 190 (Ky. App. 2008).
Here, as a store patron, Spears was indisputably an invitee. âAn invitee
enters upon the premises at the express or implied invitation of the owner or
occupant on business of mutual interest to them both, or in connection with
business of the owner or occupant.â Horne v. Precision Cars of Lexington, Inc.,
170 S.W.3d 364, 367 (Ky. 2005); West, 300 S.W.3d at 190. Spears was invited to
enter the store, her entry was connected with Sweet Toothâs business, and her
presence was mutually beneficial to Spears and Sweet Tooth.
A premises owner or occupant, such as Sweet Tooth, owes a duty to an
invitee to exercise ordinary care to maintain âthe premises in a reasonably safe
condition and to warn invitees of dangers that are latent, unknown, or not
obvious.â West, 300 S.W.3d at 191. An exception to this general rule, the âopen
and obvious dangerâ doctrine, limits a business ownerâs or occupantâs liability.
Under that rule, a possessor of land âcannot be held liable to invitees who are
injured by open and obvious dangers.â McIntosh, 319 S.W.3d at 388 (quoting
Restatement (Second) of Torts Â§ 343 (1965)).
The open and obvious doctrineâs underlying premise is this: an invitee
cannot âwalk blindly into dangers that are obvious, known to him, or would be
anticipated by one of ordinary prudence.â Smith v. Smith, 441 S.W.2d 165, 166
(Ky. 1969); Rogers v. Professional Golfers Assân of America, 28 S.W.3d 869, 872
(Ky. App. 2000). The owner or occupier of realty âis not an insurer against all
accidents on the premises.â Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 437
(Ky. 2003) (citation omitted).
Of course, âto allow known or obvious conditions to always absolve
land possessors from any liability âwould be to resurrect contributory negligenceââ
in the comparative fault era. McIntosh, 319 S.W.3d at 391 (citation omitted).
With this in mind, our Supreme Court refashioned the open and obvious doctrine
in Kentucky River Medical Center v. McIntosh, supra. Perhaps most importantly,
the Supreme Court declared that the open and obvious doctrine no longer operates
as an absolute bar to recovery. Instead, with â[t]he focus on foreseeability[,]â our
Supreme Court embraced the reasoning underlying the Restatement (Second) of
Torts Â§ 343A(1) cmt. f (1965) that âsometimes âthe possessor has reason to expect
that the inviteeâs 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.ââ Id. (quoting Restatement (Second) of Torts Â§ 343A(1) cmt. f). The Supreme
Court recognized what it calls a plaintiffâs âdefense of foreseeable distractionâ that
undermines the formerly determinative open and obvious principle. Id. at 394.
The lower courts should not merely label a danger as
âobviousâ and then deny recovery. Rather, they must ask
whether the land possessor could reasonably foresee that
an invitee would be injured by the danger. If the land
possessor can foresee the injury, but nevertheless fails to
take reasonable precautions to prevent the injury, he can
be held liable.
Id. at 392. In sum, McIntosh necessitates a two-part inquiry: First, whether the
hazard is indeed open and obvious; and second, despite the dangerâs obvious
nature, whether the premises owner or occupier could reasonably foresee that an
invitee would be injured by the hazard. Id.; see also Lucas, 343 S.W.3d at 345-46.
Turning to the matter at hand, we find the circuit court properly concluded
that no disputed issues of material fact existed concerning the open and obvious
nature of the steps. A danger is âobviousâ if âboth the condition and the risk are
apparent to and would be recognized by a reasonable man, in the position of the
visitor, exercising ordinary perception, intelligence, and judgment.â Horne, 170
S.W.3d at 367 (citation omitted).
Spears asserts that â[r]ecent Kentucky precedent unequivocally shows that a
stairway whose risers vary in height presents a condition which absolutely cannot
be considered open and obvious.â (Appellantâs Brief at 6). In support, Spears
relies upon this Courtâs decision in Boland-Maloney Lumber Company, Inc. v.
Burnett, 302 S.W.3d 680 (Ky. App. 2009). At issue in Burnett was whether the
plaintiff had to present expert testimony to establish the defendantâs duty of care.
In Burnett, the plaintiff fell descending a stairway. Instead of constructing seven
steps, as dictated by the blueprints, the defendant contractor framed the stairway
with six steps. This resulted in a stair riser for one step which was twice as high as
the other stair risers, causing the plaintiff to fall. At trial, plaintiffâs expert(s) failed
to testify concerning the defendantâs professional standard of care. This Court
concluded this was not fatal to plaintiffâs claim because âexpert testimony is not
always required in cases involving professional negligence.â Id. at 686. Instead,
this Court found:
that the uniformity of stair risers on a stairway is an
abundantly apparent standard, even among laypersons.
Here, where there was a âdouble-riserââthat is, a stair
riser in a stairway that was not uniform with the height of
all of the other stairs in the stairwayâit seems clear that
most anyone could interpret the exceptional
foreseeability of risk therefrom. As such, we cannot say
that the trial court abused its discretion in allowing the
matter to proceed to the jury absent expert testimony on
[the defendantâs] duty.
Id. at 686-87.
Burnett neither involved nor discussed the open and obvious doctrine.
Despite this, Spears interprets Burnett as holding that a reasonable person would
not recognize or appreciate the danger posed by risers of an unequal height, and
therefore steps that are not uniform in height can never be deemed an open and
obvious danger. We caution that Burnett should not be construed as meaning that
a disparity in stair risers constitutes per se negligence. Instead, whether a hazard,
such as a discrepancy in step height, constitutes an open and obvious danger is a
fact specific, case-by-case determination. The staircase in Burnett (connecting two
level landings within a structure) materially differed from the stairs in this case
which facilitated the transition between a level structure and an unlevel sidewalk.
Spearsâ application of Burnett is overly broad.
The crux of Spearsâ argument is that the jury, not the court, should be
the determiner of whether a hazard constitutes an open and obvious danger.
However, when the material facts are not in dispute, whether a danger is open and
obvious is a legal, not a factual, determination. See Horne v. Precision Cars of
Lexington, Inc., 170 S.W.3d 364, 367 (Ky.2005). Spears frankly concedes, â[t]he
facts relative to [Spearsâ] trip and fall are undisputed.â (Appellantâs Brief at 1).
In light of those undisputed facts, we find the nature of the steps here was
readily apparent to invitees visiting the store, and the risk created thereby would be
obvious to a reasonable person in Spearsâ position utilizing practical faculties of
observation. The record demonstrates the bottom stepâs relation to the sidewalk
was not concealed or otherwise hidden from view, and the area was well lighted.
Spears admitted the light allowed her â and conceivably other invitees in her
position â to see and visualize the steps, and the relevant portion of the sidewalk.
Moreover, Spears was familiar with the shop, including the steps, having visited
the shop on at least twenty occasions since childhood and having ascended the
steps upon entering the store, mere minutes before she fell. See Horne, 170
S.W.3d at 369 (emphasizing âthe plaintiffâs admission that the hazard was both
known and obvious to him or her pertains . . . to whether the hazard was so known
and obvious as to obviate any duty on the part of the owner to warn or protect the
invitee against the hazardâ).
Spears argues the âriskâ was not obvious because the human psyche focuses
on what seems normal; when one descends a stairway, Spears continues, a rhythm
develops and our subconscious brain tells our legs and feet to function from one
step to the next. However, it has been observed that while an invitee does not have
to âlook directly down at [her] feet with each step taken[,] . . . in the exercise of
ordinary care for [her] own safety, one must observe generally the surface upon
which [she] is about to walk.â Humbert v. Audubon Country Club, 313 S.W.2d
405, 407 (Ky.1958). We find that a prudent person, having observed the bottom
stepâs obvious height difference on numerous occasions, would also recognize the
obvious risk of tripping and, therefore, exercise suitable caution. In sum, Spears
has failed to pinpoint any disputed facts she believes could compromise this
rationale and justify precluding summary judgment. Based on the specific facts of
this case, we conclude that the steps at issue constitute an open and obvious
McIntosh directs us to next consider the foreseeability of the inviteeâs
injury. McIntosh, 319 S.W.3d at 390-91. As explained, if âthe possessor has
reason to expect that the inviteeâs 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,â then the injury is foreseeable and the premises owner may not escape
liability. McIntosh, 319 S.W.3d at 391. Instead, the business owner or occupant
owes its invitees a heightened duty of reasonable care âwhich may require him to
âtake other reasonable steps to protect [the invitee] against the known or obvious
condition.ââ Id. at 390 (citation omitted).
In McIntosh, the record demonstrated that the plaintiff (an emergency
medical technician transporting a patient from an emergency vehicle to the
hospitalâs emergency room) was foreseeably distracted from the open and obvious
hazard of an uneven curb between the ambulance dock and the emergency room
doors. 319 S.W.3d at 394. Cautioning that it was âimportant to stress the context
in which McIntosh sustained her injury[,]â the Court emphasized that her âdire
need to rush critically ill patients through the emergency room entrance should be
self-evidentâ; such a distraction was unquestionably foreseeable by the hospital
which had every âreason to expect that the invitee will proceed to encounter the
known or obvious danger because . . . the advantages of doing so [preserving
health and saving lives] would outweigh the apparent risk.â Id. (internal quotation
marks and citation omitted).
Unlike the hospital in McIntosh, we cannot find that Sweet Tooth had
good reason to expect that a store patron would be distracted as he or she entered
or exited its store such that the patron would forget or fail to observe the obvious
danger presented by the steps. In McIntosh, âthe plaintiff had the defense of
foreseeable distractionâ because her focus was properly and foreseeably on
something other than the hazard â her patient. Here, Spearsâ focus, necessarily,
should have been on the hazard itself. It was not. Unlike McIntosh, Spears was
not acting under time-sensitive or stressful circumstances. She was enjoying a
leisurely outing with friends. Spearsâ presents no evidence whatsoever that she
was distracted from her âduty 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.â Id. at 395. She is not entitled to the âdefense of foreseeable
distraction.â Id. at 394.
The Campbell Circuit Courtâs December 22, 2011 order is affirmed.
BRIEF FOR APPELLANT:
Thomas A. Sweeney
Crescent Springs, Kentucky
BRIEF FOR APPELLEE, ROBERT
A. SCHNEIDER, JR. AND SWEET
Stephen M. Yeager
Charles J. Davis