PNC BANK, KENTUCKY, INC V. GRACE GREEN
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RENDERED: OCTOBER 26,200O
TO BE PUBLISHED
1999-SC-0452-DG
PNC BANK, KENTUCKY, INC
REVIEW FROM COURT OF APPEALS
1998-CA-000918
MADISON CIRCUIT COURT 96-Cl-013
V.
APPELLEE
GRACE GREEN
OPINION OF THE COURT BY JUSTICE GRAVES
REVERSING
On January 6, 1995, Grace Green was injured when she slipped and fell on an
icy sidewalk at a PNC Bank in Richmond, Kentucky. At three different times on the
morning of the incident, a bank teller had spread a melting agent on the sidewalk.
However, at the time Green fell, which was approximately I:30 p.m., the sidewalk had
not been treated for over 1 l/2 hours. Green admitted that the weather conditions were
poor that day, with alternate periods of snow and freezing rain. Green stated that she
had gone to the hairdresser earlier that morning, and that she approached the shop like
she was “walking on eggs” to avoid falling. When Green and her husband arrived at the
PNC bank later that afternoon, she observed that the parking lot and sidewalk were icy
and slippery. Moreover, she stated in her deposition that she did not see any salt on
the sidewalk or notice that any measures had been taken to clear away the snow and
ice.
The Madison Circuit Court relied on Ashcraft v. Peoples Libertv Bank & Trust
Co., Ky. App., 724 S.W.2d 228 (1986), in granting PNC’s motion for summary
judgment. However, based upon the decision in Estep v. B.F. Saul Real Estate
Investment Trust, Ky. App., 843 S.W.2d 911 (1992), the Court of Appeals held that
factual questions as to the obviousness of the natural hazard and the reasonableness
of PNC’s actions precluded summary judgment. We granted discretionary review and
now reverse the decision of the Court of Appeals.
The current state of the law in Kentucky regarding outdoor natural hazards is set
forth in Standard Oil Comoany v. Manis, Ky., 433 S.W.2d 856, 858 (1968), and
establishes that “natural outdoor hazards which are as obvious to an invitee as to the
owner of the premises do not constitute unreasonable risks to the former which the
landlord has a duty to remove or warn against.” The Standard decision,
which involved a slip and fall upon an outdoor icy platform, was premised on the fact
that the risk was as obvious to the injured party as it was to the owner of the premises,
and that it occurred as a result of natural outdoor hazards.
As we have heretofore noted, the hazard faced by appellee was
created by natural elements. It was outside, and exposed in broad
daylight. Appellee was thoroughly familiar with the structure. He was
fully aware of the accumulation of ice and snow in the area. He saw that
the level part of the walkway was wet, indicating that melting ice had been
there. That there might be on the platform unmelted ice, or refreezing
water was a distinct possibility.
There was no duty on appellant to stay the elements or make this
walkway absolutely safe. Nor was there a duty to warn appellee that the
obvious natural condition may have created a risk. If a ‘glare of ice’
existed on the platform, whatever hazard it constituted was as apparent to
appellee as it was to appellant. We are unable to find a breach of duty by
the latter. (citation omitted)
Id. at 859; See also Corbin Motor Lodae v. Combs, Ky., 740 S.W.2d 944 (1987).
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The Court of Appeals’ reliance on Estep, supra, is misplaced. In Estep, a store
patron was injured when she slipped and fell on a sidewalk near the entrance to
McAlpins at the Lexington Mall. While the Plaintiff was aware of the inclement weather
conditions present at that time, she observed that the parking lot had been cleared of
snow when she arrived at the shopping mall. The plaintiff surmised that the sidewalk
had been cleared as well, although she noted a “thin skiff’ of snow thereon. However,
after taking several steps, she slipped and fell on ice which was concealed underneath
the snow.
In reversing the trial court’s granting of summary judgment in favor of the
defendants, the Court of Appeals in Estep held that Standard Oil Company. supra, was
distinguishable in that Plaintiff Estep was “unaware of the transparent layer of ice on the
seemingly cleared sidewalk until she stepped upon it, even though she was aware of
the generally icy and snowy conditions then existing.” Estep. supra, at 913. As such,
there was an issue regarding the obviousness of the hazard which precluded summary
judgment.
Similarly, Green’s citation to City of Madisonville v. Poole, Ky., 249 S.W.2d 133
(1952) is also misplaced. The plaintiff therein slipped and fell on ice on a covered porch
of a clubhouse as she was about to enter the door. However, as noted in Standard Oil
Company, supra, the distinguishing aspect of Poole is that the accident occurred at
night and the porch, which the plaintiff could have perhaps foreseen would be free of
ice since it was covered, was not lighted. Therefore, the hazard was not obvious.
Green argues that the Court of Appeals was correct in holding that summary
judgment was not proper because a genuine issue of fact was presented as to whether
the hazard was open and obvious. We disagree. Green’s deposition testimony
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unquestionably confirms that her visit to the bank was during daylight hours; that she
was aware of the inclement weather conditions; that she had earlier in the day been
forced to walk like she was “walking on eggs” to avoid falling; that she clearly noticed
the sidewalk at the PNC Bank was icy; and that there was no indication that any
measures had been taken to clear the sidewalk. Green’s own testimony dispels any
issue as to whether the risk was open and obvious. Accordingly, PNC Bank was
entitled to summary judgment.
We acknowledge that the Estep, supra, decision reiterates the well-known rule
that a duty voluntarily assumed cannot be carelessly undertaken without incurring
liability therefore. Id. at 914; See Louisville Cooperage Co. v. Lawrence, 313 Ky. 75,
230 S.W.2d
103 (1950). However, with regard to outdoor natural hazards, we perceive
a distinction where a business owner undertakes reasonably prudent measures to
increase the safety of the premises, such as was done in this case, and a business
owner who undertakes measures which, in fact, heighten or conceal the nature of the
dangerous condition such as occurred in Estep.
PNC bank attempted to clear its sidewalk of ice and snow for the safety of its
customers. Yet, given the fact that it was intermittently snowing and sleeting that day, it
would have been virtually impossible for bank employees to have maintained a constant
watch over the condition of the sidewalk. More importantly, nothing that PNC bank did
made the natural hazard any less obvious or increased the likelihood that Green would
slip and fall. We are of the opinion that it is against public policy, and even common
sense, to impose liability on those who take reasonable precautions if such does not
escalate or conceal the nature of the hazard, while absolving those who take no action
whatsoever.
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The decision of the Court of Appeals is reversed and the Madison Circuit Court’s
order granting summary judgment in favor of PNC Bank is hereby reinstated.
Cooper, Graves, Johnstone, and Keller, J.J., concur. Wintersheimer, J., concurs
in result only. Lamber-t, C.J., dissents in a separate opinion in which Stumbo, J., joins
COUNSEL FOR APPELLANT
Bixler W. Howland
414 Kentucky Home Life Building
239 South Fifth Street
Louisville, KY 40202
COUNSEL FOR APPELLEE
Joe Francis Childers, Jr.
201 West Short Street
Suite 310
Lexington, KY 40507
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RENDERED: OCTOBER 26,200O
TO BE PUBLISHED
1999-SC-0452-DG
PNC BANK, KENTUCKY, INC.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1998-CA-0009 18
MADJSON CIRCUIT COURT NO. 96-Cl-013
V.
GRACE GREEN
APPELLEES
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
In Corbin Motor Lodae v. Combs,’ I wrote a dissenting opinion expressing
the view that public establishments that remain open for business during inclement
weather and thereby encourage customers to come on their premises have a duty to
exercise the proper degree of care for the safety of persons who foreseeably might be
injured by their acts or omissions. This Court’s decisions have utilized various theories
including a lack of legal duty with regard to natural outdoor hazards to defeat claims for
compensation by persons injured on parking lots and sidewalks of business
establishments. This theory fails to take account of the higher duty of care owed by a
business owner to invitees on premises to conduct business and who thereby bestow
an economic benefit on the owner.
‘KY., 740 S.W.2d 944, 947-948 (1987)(Lambert, J., dissenting).
The obviousness of a hazard caused by bad weather does not make it the
less dangerous, nor should it relieve a business owner who profits from an invitee’s
patronage of the duty to make the business premises safe. The economic incentives to
attract the general public to a business make it reasonable for the proprietors of
commercial establishments to be held to a higher duty to invitees. Thus, the better rule
is that of the Restatement, Torts 2d, 5 343, which imposes premises liability upon a
business owner despite an obvious danger if the owner should realize that there is an
unreasonable risk of harm and that invitees will fail to protect themselves against such
harm.
This case presents just such a situation. PNC Bank was open during bad
weather and anticipated the arrival of customers. To melt the snow and ice, a bank
employee spread a melting agent on the sidewalk periodically throughout the day,
thereby demonstrating an awareness that customers would come to the bank to
transact business despite the inclement weather. Thus, although the slippery
conditions may have been obvious, it is clear that the bank knew that customers would
walk on the sidewalk regardless of the possibility that they might fall and injure
themselves. Thus, Ms. Green should be able to proceed with this lawsuit and a jury
should decide the comparative fault of the parties. The economic benefit the bank
derives from remaining open during inclement weather justifies possible imposition of
liability under these circumstances. Moreover, it should not be overlooked that as
between the bank and Mrs. Green, only the bank was in a position to remove snow and
ice by the use of melting agents. Only the bank had any realistic opportunity to prevent
the harm while remaining open for business and realizing its economic benefit.
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This conclusion is supported by Wallinaford v. Kroaer CO.,~ another case
dealing with a slip and fall resulting from an obviously slippery surface. In Wallinaford,
a delivery man slipped and fell on a delivery ramp covered with snow and ice after he
had been denied entry into the store through a less hazardous entrance. The court
applied the exception to the general rule governing natural and obvious outdoor
hazards, stating
There are, however, cases in which the possessor of land can and should
anticipate that the dangerous condition will cause physical harm to the
invitee notwithstanding its known or obvious danger. In such cases the
possessor is not relieved of the duty of reasonable care which he owes to
the invitee for his protection . . .
Such reason to expect harm to the visitor from known or obvious dangers
may arise . . . where the possessor has reason to expect that the invitee
will proceed to encounter the known or obvious danger because to a
reasonable man in his position the advantages of doing so would
outweigh the apparent risk.3
Accordingly, the obviousness of the slippery sidewalk that Ms. Green fell on should not
absolve the bank from potential liability, as the bank should have and in fact did realize
that customers would enter the bank despite the dangerous conditions.
We should endeavor to go beyond the worn-out, rigid theories relied upon
by the majority and forthrightly say that when business establishments remain open for
business during inclement weather, they have a duty to exercise the degree of care
required for business invitees regardless of whether the natural hazard is obvious.
Thus, I respectfully dissent.
Stumbo, J., joins this dissenting opinion.
2Ky. App., 761 S.W.2d 621 (1988).
31d. at 624-625, quoting the Restatement (Second) of Torts § 343 (A) cmt.
f (1965).
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