GORDON, LUCY VS. NORTON HOSPITAL, INC. MOORE (PRESIDING JUDGE) TAYLOR (CONCURS) AND VANMETER (CONCURS)Annotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 06-CI-006336
NORTON HOSPITALS, INC., D/B/A
NORTON AUDUBON HOSPITAL
REVERSING AND REMANDING
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BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES.
MOORE, JUDGE: Lucy Gordon (Gordon) appeals from the Jefferson Circuit
Court’s order denying her motion to reconsider that court’s prior order granting the
motion for summary judgment filed by Norton Hospitals, Inc., d/b/a Norton
Audubon Hospital (Norton). After a careful review of the record, we reverse and
remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gordon’s daughter was an emergency room patient at Norton in July
2005, and, while visiting her daughter at the hospital, Gordon went outside
multiple times to speak on her cellular telephone. At the time of the incident in
question, Gordon was outside the hospital for the purpose of returning a telephone
call when she leaned against a pole1 that she believed was concrete, but it was in
fact made of molded plastic. When Gordon leaned against it, the pole collapsed.
Gordon fell onto the asphalt and onto her right shoulder, injuring herself.
Gordon filed the present lawsuit in circuit court, seeking damages for
the injuries she sustained on Norton’s premises. Norton moved for summary
judgment, and the circuit court granted that motion. Gordon moved the circuit
court to reconsider, but the circuit court denied Gordon’s motion to reconsider.
Gordon now appeals, contending that the circuit court improperly granted
II. STANDARD OF REVIEW
“The standard of review on appeal of a summary judgment is whether
the trial court correctly found that there were no genuine issues as to any material
fact and that the moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment
should be “cautiously applied . . . in actions involving allegations of negligence.”
Poe v. Rice, 706 S.W.2d 5, 6 (Ky. App. 1986) (citations omitted). “The record
Gordon testified during her deposition that the pole was approximately waist-high, and that the
injury in question was sustained during the daylight hours.
must be viewed in a light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc.
v. Scansteel Serv. Ctr., 807 S.W.2d 476, 480 (Ky. 1991). “Even though a trial
court may believe the party opposing the motion may not succeed at trial, it should
not render a summary judgment if there is any issue of material fact.” Id. Further,
“the movant must convince the court, by the evidence of record, of the
nonexistence of an issue of material fact.” Id. at 482.
Gordon argues that the circuit court improperly granted Norton’s
motion for summary judgment. Gordon was an “invitee” of Norton at the time of
the incident. “An 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.” Horne v. Precision Cars of
Lexington, Inc., 170 S.W.3d 364, 367 (Ky. 2005) (internal quotation marks
In Horne, the Kentucky Supreme Court quoted the Restatement
(Second) of Torts, Sections 343 and 343A, concerning the liability of property
owners to invitees, as follows:
§ 343. Dangerous Conditions Known to or Discoverable
A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land if,
but only if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them
against the danger.
§ 343A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or
condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.
(2) In determining whether the possessor should
anticipate harm from a known or obvious danger, the fact
that the invitee is entitled to make use of public land, or
of the facilities of a public utility, is a factor of
importance indicating that the harm should be
The Court in Horne continued, noting that “‘Known’ means ‘not only
knowledge of the existence of the condition or activity itself, but also appreciation
of the danger it involves.’” Id. (citing Restatement (Second) of Torts § 343A cmt.
b). “‘Obvious’ denotes that ‘both 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.’” Id. (citing Restatement
(Second) of Torts § 343A cmt. b).
One category of premises liability cases that has developed through
case law is the category involving “hazards caused by the owner. If the hazard is
‘known or obvious to’ the invitee, the owner has no duty to warn or protect the
invitee against it.” Id. at 368. In Horne, an invitee was walking through a parking
lot when he tripped on a parking barrier that he had not seen and fell. The Court
found that “the parking barrier on which Appellant tripped and fell was not ‘known
or obvious to’ Appellant.” Id. at 370. Therefore, the Supreme Court held that
summary judgment should not have been granted in favor of the parking lot’s
owner, and the case was reversed and remanded with instructions for the circuit
court to allow the case to proceed to a jury trial. See id.
In Bartley v. Educational Training Sys., Inc., 134 S.W.3d 612 (Ky.
2004), the Supreme Court noted that “[u]nder common law principles of
negligence, a possessor of land may be subject to liability for failing to protect his
or her invitees against dangerous conditions involving unreasonable risks of harm.”
Bartley, 134 S.W.3d at 614. The Court continued, noting that
[t]he occupier is not an insurer of the safety of invitees,
and his duty is only to exercise reasonable care for their
protection. But the obligation of reasonable care is a full
one, applicable in all respects, and extending to
everything that threatens the invitee with an unreasonable
risk of harm.
Id. at 615 (internal quotation marks omitted).
Thus, in the present case, if a reasonable inference can be made that
the pole constituted an unsafe condition on the premises, then summary judgment
should not have been granted. See id. In premises liability actions, the invitee
retains the burden of proving that: (1) he or she had an
encounter with a foreign substance or other dangerous
condition on the business premises; (2) the encounter was
a substantial factor in causing the accident and the
[invitee’s] injuries; and (3) by reason of the presence of
the substance or condition, the business premises were
not in a reasonably safe condition for the use of business
invitees. Such proof creates a rebuttable presumption
sufficient to avoid a summary judgment or directed
verdict, and shifts the burden of proving the absence of
negligence, i.e., the exercise of reasonable care, to the
party who invited the injured customer to its business
Id. at 616 (internal quotation marks omitted).
In her deposition, Gordon testified that the pole “looked like concrete
to” her, rather than plastic. Such testimonial evidence and the nature of the pole
were sufficient to create a factual issue concerning the obviousness of the pole as a
danger and Gordon’s knowledge thereof. Consequently, this issue should have
been presented to the jury. See Reece v. Dixie Warehouse & Cartage Co., 188
S.W.3d 440, 449 (Ky. App. 2006).
Accordingly, the order of the Jefferson Circuit Court is reversed and
remanded with instructions to allow the case to proceed to trial.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael A. Schafer
Martin A. Arnett
William P. Swain