Opinion
NO. 2012-CA-001107-MR
03-14-2014
BONITA COBB APPELLANT v. JOSEPH KAMER AND MAURITIA KAMER APPELLEES
BRIEFS FOR APPELLANT: Richard A. Getty Danielle A. Brown Joe F. Childers Lexington, Kentucky ORAL ARGUMENT FOR APPELLANT: Joe F. Childers Lexington, Kentucky BRIEF FOR APPELLEES: W. Craig Robertson III Courtney Ross Samford Lexington, Kentucky ORAL ARGUMENT FOR APPELLEES: W. Craig Robertson III Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 11-CI-02785
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Bonita Cobb was injured when she slipped and fell on ice in the driveway of Joseph and Mauritia Kamer's house. The Fayette Circuit Court granted summary judgment to the Kamers on the basis that the hazard was open and obvious. For the following reasons, we affirm.
On Friday night, December 3, 2010, two to four inches of snow fell at the Kamer residence in Lexington, Kentucky. Joseph Kamer cleared the concrete driveway and adjoining brick walkway of snow the next morning using a standard snow shovel. Cobb, who was employed by the Kamers to clean their house, arrived at the residence on the following Tuesday, December 7, 2010, at around nine o'clock in the morning. The weather was clear and the sun was shining, although it was very cold. Cobb parked on the driveway, about fifteen feet from the end of the brick walkway leading to the front door. She had no difficulty in exiting her car and accessing the brick walkway. After cleaning for about two to two-and-one-half hours, she told Joseph Kamer that she was leaving. He gave her a Christmas present, and she left through the front door. This was the same door through which she had entered the premises. She exited carrying her duster, her keys, and possibly a water bottle. As she stepped with her right foot from the brick walkway onto the concrete driveway, her right foot slid immediately to her right, causing her to fall hard on her left ankle. After she fell, she placed her hand on the driveway and felt ice. She had not observed any ice on the driveway when she entered the house, nor when she was leaving. She was able to get into her car and drive herself to the emergency room. When her ankle was x-rayed, it was found to be broken in three places. She underwent surgery two days later. Three weeks later, she returned to the hospital with blood clots in her leg and lungs.
Cobb filed suit against the Kamers on May 31, 2011. She alleged that her injuries were caused by the Kamers' negligence in failing to use reasonable care to protect her from hazardous conditions, failing to maintain their premises in a safe condition, failing to warn her of an existing hazard and danger, failing to make a reasonable inspection of the premises for possible hazards and failing to remedy a dangerous condition that the Kamers knew or should have known existed on their premises. The Kamers filed an answer, and discovery was conducted, which included taking the depositions of Cobb and the Kamers. The Kamers thereafter filed a motion for summary judgment, asserting that their driveway constituted an open and obvious condition. Cobb disputed that the ice was an open and obvious condition, and further argued that, because Joseph Kamer undertook to clear the driveway and walk, he was required to do so in a manner that did not heighten or conceal the nature of the dangerous condition. Following a hearing, the circuit court granted summary judgment to the Kamers, ruling that the ice was open and obvious, and that there was no evidence that Joseph Kamer had concealed the ice. This appeal follows.
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) (citing Kentucky Rules of Civil Procedure 56.03). "The record 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, Inc. 807 S.W.2d 476, 480 (Ky. 1991).
Cobb argues that the trial court erred in granting summary judgment because a jury should have been allowed to decide, first, whether the ice hazard was open and obvious, and second, whether Kamer's actions in clearing the driveway heightened or concealed the hazardous condition.
"To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff's damages." Lee v. Farmer's Rural Elec. Co-op. Corp., 245 S.W.3d 209, 211-12 (Ky. App. 2007).
The parties agree that Cobb's status in relation to the Kamers was that of an invitee. "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) (quoting Scuddy Coal Co. v. Couch, 274 S.W.2d 388, 389 (Ky. 1955)).
In determining whether a landowner owes a duty to an invitee, the general rule is that the owner does not have a duty to remove or warn against naturally occurring outdoor hazards that are open and obvious. "[N]atural 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 landowner has a duty to remove or warn against." Standard Oil Co. v. Manis, 433 S.W.2d 856, 858 (Ky. 1968).
Cobb argues that genuine issues of material fact exist regarding whether the condition that caused her fall was open and obvious. She contends that in personal injury cases involving slips and falls on ice, the "open and obvious" question is almost always deemed to be a disputed issue of fact and therefore a jury question.
Since ice is a readily foreseeable companion for snow, and should be reasonably anticipated by pedestrians, it is arguably an obvious natural hazard. However, not "all natural conditions outdoors are equally apparent to landowners and invitees. On the contrary, whether a natural hazard like ice and snow is obvious depends upon the unique facts of each case." Schreiner v. Humana, Inc., Ky., 625 S.W.2d 580, 581 (1982).Estep v. B.F. Saul Real Estate Inv. Trust, 843 S.W.2d 911, 913 (Ky. App. 1992).
The term "obvious" as it is used in this context means "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." Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 529 (Ky. 1969).
With this standard in mind, we summarize the pertinent facts: Three days prior to Cobb's fall, Kamer cleared the driveway of snow using a shovel. He testified in his deposition that he did so in a "meticulous" and "detail-oriented" manner. He cannot remember whether he applied salt or any other melting agent. Neither he nor Cobb remembers whether any additional snow fell during the three days which elapsed between the shoveling and her fall. Both agree that the weather was cold during that period. It was sunny, clear and cold on the morning that Cobb fell. Cobb had been working for the Kamers since late 1999 or early 2000, so was presumably well-acquainted with the layout of the driveway and the pathway. Cobb stated that she did not notice anything on the driveway when she left her car to go to the house, and that she did not notice anything on the driveway when she returned to her car. She was carrying a few articles when she left. She only felt the ice with her hand after she had fallen.
Thus, the only evidence as to the existence of the ice is Cobb's deposition testimony that she felt it with her hand after she had fallen. She did not describe the ice as "black ice," or claim that it was invisible. As the trial court stated, nothing was obstructing Cobb's view of the condition, and the fact that she personally did not see the ice does not mean that it was not obvious. "[A] party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Steelvest, 807 S.W.2d at 482. Cobb argues that a factual dispute remained regarding what she saw or a reasonable person would have seen given the contradictory testimony. But the testimony was not contradictory. There was absolutely no evidence that the ice was concealed in any way, or could not have been observed by a reasonable person in Cobb's position. Equally important, Cobb transversed the driveway and walkway upon entering the premises safely and without encountering any difficulty.
Cobb argues that the facts of her case are similar to those of Lahutsky v. Wagner Moving & Storage, in which the federal district court applied Kentucky law to hold that a genuine issue of fact existed regarding whether ice on some steps was open and obvious. No. 5:10-CV-00007-R, 2011 WL 5597330 *6-8 (W.D. Ky. Nov. 17, 2011). In that case, the plaintiff ascended side A of a flight of steps leading into a warehouse, and later descended on side B, where he slipped and fell on some ice. The plaintiff was adamant that he did not look and had no reason to observe side B as he was entering the building. By contrast, Cobb traversed precisely the same area both entering and leaving the Kamer home. Also, in Lahutsky, there was evidence that the owners of the warehouse had not complied with building codes by failing to install a handrail and a cover for the flight of steps that would have prevented the accumulation of ice. There is no evidence that Kamer failed to comply with any codes or regulations in clearing his driveway.
There was also no evidence introduced that there was water on the driveway that could have created the mistaken impression that ice was not present nor was there any evidence that the presence of the ice was obscured by a shadow hidden from view in any way. Because of the absence of disputed facts, the trial court correctly ruled as a matter of law that the hazard was open and obvious.
Before proceeding to Cobb's next argument, we acknowledge that in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), the Kentucky Supreme Court held that even if a hazard is deemed to be open and obvious, a plaintiff is not necessarily barred from recovery.
The lower courts should not merely label a danger as "obvious" and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee thatId. at 392.
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. Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious.
Neither of the parties raised arguments in reliance on McIntosh, 319 S.W.3d 385, regarding whether the Kamers could have foreseen the danger, and consequently the trial court never directly addressed the issue. Because "[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court[,]" Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989), we will not do so here.
Notwithstanding, the Kentucky Supreme Court, in a recent followup opinion to McIntosh, clarified the status and modification of the open and obvious doctrine. In Dick's Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), the Court noted:
In McIntosh, this Court moved away from a rote application of the former rule and adopted Section 343A of the Restatement (Second) of Torts, holding a defendant liable for harm resulting from an open-and-obvious condition if the harm could be anticipated, the plaintiff's knowledge of the condition or the obviousness of the condition notwithstanding. Despite the groundbreaking nature of our decision in McIntosh, we did not alter what is actually required to find an open-and-obvious condition. That is to say, McIntosh altered the treatment of plaintiffs bringing claims involving open-and-obvious dangers; but it did not alter what actually constitutes an open-and-obvious hazard. Post-Dick's Sporting Goods, Inc., 413 S.W.3d at 895-96 (footnote omitted).
McIntosh, an open-and-obvious danger is what it was pre- McIntosh.
An open-and-obvious condition is found when the danger is known or obvious. The condition is known to a plaintiff when, subjectively, she is aware "not only . . . of the existence of the condition or activity itself, but also appreciate[s] . . . the danger it involves." And the condition is obvious when, objectively, "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." It is important to note that Restatement (Second) § 343A does not require both elements to be found. The defendant will not be subject to liability if the condition is either known or obvious.
The condition of the driveway was obvious to Cobb upon entering the premises. There was no evidence of any circumstances that would have changed the condition of the driveway during her two-and-one-half hour stay at the Kamer residence. Given the undisputed facts in this case, to the extent ice was present, it was open and obvious to Cobb, as the risk of walking thereon would be obvious to a reasonable person. Again, Cobb did not raise the issue below of whether the Kamers could have anticipated or foreseen the resulting injuries to Cobb.
Next, Cobb argues that in shoveling the snow, Kamer may have acted in such a way that he actually heightened or concealed the danger of hidden ice, and that determining whether he acted reasonably is a factual question that should have been decided by a jury. Cobb contends that the trial court improperly based its ruling, at least in part, on the public policy concern that denying summary judgment would discourage individuals from clearing ice and snow from their driveways and walkways. Such concerns are not misplaced, however, and have been articulated by our own state Supreme Court:
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.PNC Bank, Kentucky, Inc. v. Green, 30 S.W.3d 185, 188 (Ky. 2000).
Moreover, the cases on which Cobb relies are factually distinguishable from this case where there was no evidence presented that the ice was hidden beneath snow or otherwise obscured from Cobb's view. Cobb relies heavily on Estep v. B.F. Saul Real Estate Investment Trust, 843 S.W.2d 911 (Ky. App. 1992). In Estep, a tenant in a shopping mall attempted to clear its parking lot and sidewalks of ice and snow, "presumably to attract more customers." Estep, 843 S.W.2d at 914. A light snow fell the following morning; after it had stopped, a customer slipped on some ice concealed beneath a "thin skiff" of snow. Id. at 912. A panel of this Court ruled that summary judgment was inappropriate because a jury question remained regarding whether the store owners' removal efforts were reasonable or actually made the hazard worse. Id. at 914. To the contrary in this case, we again emphasize there is no evidence that any more snow fell after Kamer had shoveled the driveway, or that the ice in the Kamers' driveway was obscured in any way.
Thus, because there is no factual dispute that the hazard in this case was open and obvious, that the Kamers did not conceal or otherwise exacerbate the condition, and that Cobb did not raise the issue of whether Cobb's injuries were foreseeable by the Kamers, the trial court correctly ruled as a matter of law that the Kamers were entitled to summary judgment.
For the foregoing reasons, the summary judgment of the Fayette Circuit Court is affirmed.
THOMPSON, JUDGE, CONCURS.
STUMBO, JUDGE, DISSENTS, WITHOUT SEPARATE OPINION. BRIEFS FOR APPELLANT: Richard A. Getty
Danielle A. Brown
Joe F. Childers
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Joe F. Childers
Lexington, Kentucky
BRIEF FOR APPELLEES: W. Craig Robertson III
Courtney Ross Samford
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
W. Craig Robertson III
Lexington, Kentucky