DAT [E D ANDREW STEPHENSON HORNE PRECISION CARS OF LEXINGTON, INC .
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AS MODIFIED : SEPTEMBER 22, 2005
RENDERED : AUGUST 25, 2005
TO BE PUBLISHED
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2002-SC-0104-DG
ANDREW STEPHENSON HORNE
D
DAT [E
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2001-CA-100
FAYETTE CIRCUIT COURT NO. 99-CI-1645
PRECISION CARS OF LEXINGTON, INC .
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
On May 13, 1998, Appellant, Andrew Stephenson Horne, then eighteen years
old, injured his wrist when he tripped and fell on the business premises of an automobile
dealership owned and operated by Appellees, Precision Cars of Lexington, Inc ., and
Tom Wood Pontiac, Inc., a general partnership d/b/a Courtesy Pontiac Acura
(hereinafter "Courtesy") . He brought this action in the Fayette Circuit Court asserting
that the negligence of Courtesy or its employees was a substantial factor in causing his
fall and resulting injury . The Fayette Circuit Court entered a summary judgment in favor
of Courtesy and the Court of Appeals affirmed . We now reverse the Court of Appeals
and remand this case to the Fayette Circuit Court with directions to vacate the summary
judgment and grant Appellant a trial by jury on the allegations of his complaint .
On May 13, 1998, Appellant drove his own vehicle onto Courtesy's premises,
parked at the rear of the showroom building, and entered the showroom through the
rear door. He met Joshua Spencer, one of Courtesy's salespersons, and advised
Spencer that he was interested in possibly purchasing a Pontiac Firebird . Spencer led
Appellant out the front door of the showroom, where a red Firebird was parked just to
the right of the showroom door. The vehicle had been backed into its parking place so
that the left (driver's) side was immediately adjacent to the showroom door. Appellant
got into the driver's seat and Spencer walked around the car and got into the front
passenger seat . Spencer suggested that Appellant test-drive the vehicle but informed
Appellant that, because of insurance requirements, he (Spencer) would have to drive
the vehicle off the lot. Both men then exited the Firebird, intending to exchange
positions in the vehicle . Appellant walked around the rear of the vehicle, still giving his
attention to Spencer, who was extolling the virtues of T-tops and other possible
accessories . As he rounded the right rear of the Firebird, Appellant tripped on a
concrete parking barrier extending outward from under the vehicle, fell, and injured his
wrist .
If the previous operator of the Firebird had parked it properly, both rear tires
would have been touching the parking barrier, which would then have been visible from
the left side of the vehicle and would not have extended outward past the width of the
vehicle. However, the previous operator had parked the Firebird too far to the left and
at an angle, so that only its right rear wheel was touching the barrier. The left rear
wheel was to the left of and past the barrier, concealing the barrier's presence from
persons observing the vehicle from its left side . Because the vehicle was parked too far
to the left, the right side of the barrier projected outward from under the right rear of the
vehicle.
Appellant testified in his discovery deposition that he had never previously visited
Courtesy's lot, that he had not noticed any parking barriers when he parked at the rear
of the showroom, and that he did not see the barrier in question before he tripped on it
and fell. Both the trial court and the Court of Appeals concluded that the barrier was an
"open and obvious" hazard, and that Courtesy thus had no duty to warn or otherwise
protect its customers, including Appellant, against tripping on it.
"The standard of review on appeal of a summary judgment is whether the
circuit judge correctly found that there were no issues as to any material
fact and that the moving party was entitled to a judgment as a matter of
law." Pearson ex rel. Trent v. Nat'l Feeding Systems, Inc. , 90 S .W .3d 46,
49 (Ky. 2002). Summary judgment is only proper when it would be
impossible for the plaintiff to produce any evidence at trial warranting a
judgment in his favor. Steelvest, Inc . v. Scansteel Serv. Ctr., Inc . , 807
S .W .2d 476, 480 (Ky. 1991) . In ruling on a motion for summary judgment,
the court is required to construe the record in a light most favorable to the
party opposing the motion. Id .
Cabinet for Families and Children v. Cummings , 163 S .W .3d 425, 427-28 (Ky. 2005) .
The question is whether the trial court and the Court of Appeals properly held as a
matter of law that the concrete parking barrier on which Appellant tripped and fell was
so obvious to him that Courtesy owed no duty to warn or protect him against it.
Appellant's status with respect to Courtesy 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." Scuddy Coal Co. v. Couch , 274 S .W.2d 388, 389 (Ky. 1955). See also
Restatement (Second) of Torts ("Restatement") § 332(1), (3) (1965) . Sections 343 and
343A of the Restatement provide as follows with respect to the special liability of
landowners to invitees :
§ 343. Dangerous Conditions Known to or Discoverable by Possessor
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 anticipated .
(Emphasis added .)
"Known" means "not only knowledge of the existence of the condition or activity
itself, but also appreciation of the danger it involves ." Id. § 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. Concerning the last clause of section 343A(1), i.e. ,
when the possessor should anticipate the harm, comment f to section 343A explains :
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, for example, where 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 . . . .
Comment f also contains the following illustrations :
2 . The A Department Store has a weighing scale protruding into one of its
aisles, which is visible and quite obvious to anyone who looks. Behind
and about the scale it displays goods to attract customers . B, a customer,
passing through the aisle, is intent on looking at the displayed goods . B
does not discover the scale, stumbles over it, and is injured . A is subject
to liability to B .
4. Through the negligence of A Grocery Store a fallen rainspout is
permitted to lie across a footpath alongside the store, which is used by
customers as an exit . B, a customer, leaves the store with her arms full of
bundles which obstruct her vision, and does not see the spout . She trips
over it, and is injured . If it is found that A should reasonably have
anticipated this, A is subject to liability to B .
Our case law regarding premises liability has developed within three distinct
categories . The first category holds that the owner of a business premises has no duty
to protect invitees from injuries caused by "natural outdoor hazards which are as
obvious to an invitee as to an owner of the premises ." Standard Oil Co. v. Manis, 433
S .W.2d 856, 858 (Ky. 1968) (snow and ice) (emphasis added). See also PNC Bank,
Ky., Inc. v. Green , 30 S .W .3d 185, 186 (Ky. 2000) (same); Corbin Motor Lodge v.
Combs, 740 S .W.2d 944, 946 (Ky. 1987) (same) (holding that adoption of comparative
negligence and abrogation of assumption of risk defense did not mandate a different
result, because negligence is immaterial if there is no duty) ; Rogers v. Prof I Golfers
Ass'n of Am . , 28 S .W.3d 869, 872 (Ky. App . 2000) (wet grassy hillside) . An exception to
this rule occurs when the owner undertakes protective measures that, in fact, heighten
or conceal the nature of the hazardous condition, thus making it worse . Estep v. B .F.
Saul Real Estate Inv. Trust , 843 S.W.2d 911, 914 (Ky. App . 1991), as explained by PNC
Bank, 30 S.W.3d at 187. This category has no relevance to the case sub iudice
because the hazard here, while outdoors, was not "natural ."
The second category holds that if the invitee was injured because of an
encounter with a foreign substance or other dangerous condition on the business
premises, the owner can avoid liability by proving that the hazard was not caused by the
owner or the owner's employees and that the hazard was not present for a sufficient
period of time before the accident to give the owner notice to remove it or to warn
invitees of its presence. E.g ., Bartley v. Educ . Training Sys., Inc. , 134 S.W.3d 612, 61516 (Ky. 2004) ; Martin v. Mekanhart , 113 S .W.3d 95, 98 (Ky. 2003); Lanier v. Wal-Mart
Stores, Inc. , 99 S .W.3d 431, 434-37 (Ky. 2003) . If the actions of the owner or the
owner's employees created the hazardous condition, notice is immaterial . Wal-Mart
Stores, Inc. v. Lawson , 984 S .W .2d 485, 487 (Ky. App . 1998) (quoting Cumberland
College v. Gaines , 432 S.W.2d 650, 652 (Ky. 1968), overruled on other grounds by
Lanier , 99 S .W.3d at 436)). There is no dispute that Courtesy installed the parking
barrier on which Appellant tripped . Spencer's advice to Appellant that customers could
not operate dealership vehicles on the premises is substantial evidence that one of
Courtesy's employees parked the Firebird that partially concealed the barrier's
presence. Thus, notice is not an issue in this case.
The third category involves 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 . These are the cases contemplated by Restatement § 343A, supra, and are
best exemplified by Bonn v. Sears, Roebuck & Co . , 440 S.W .2d 526 (Ky . 1969). In
Bonn, a customer of an automobile service center fell into a "grease pit," an open
basement in which employees stand while servicing the undersides of customer's
vehicles . Although Bonn had never been in this particular shop, he admitted that he
was familiar with such businesses and knew they commonly contained grease pits .
Noting that the risk was inherent in the nature of the activity, itself, that the pit was
neither unusual nor hidden (it was two car-lengths long, bisected by a metal bridge, and
ridged around its edges), and that the area was well lighted, our predecessor court held
that the premises owner "breached no duty to [the plaintiff] which was causative of the
harm he suffered ." Id . at 529 .
In Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc . , 997 S .W .2d 490
(Ky. App. 1999), the plaintiff was a customer in a restaurant that provided peanuts to its
customers and permitted them to toss empty shells onto the floor. Johnson was in the
restaurant for more than two hours and admitted that she was aware of the peanut
shells on the floor and considered them a hazard . Upon attempting to exit the
restaurant after finishing her meal, she slipped on the peanut shells and fell . Citing
Bonn , the Court of Appeals held that the owner of the premises owed no duty to the
plaintiff because the hazard was both known and obvious to her. Id . at 491 .' In such
cases, the plaintiffs admission that the hazard was both known and obvious to him or
her pertains not only to the issue of contributory fault, but also 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 hazard . PNC Bank, 30 S .W .3d at 187 .
In affirming the summary judgment against Appellant, the Court of Appeals relied
primarily on Bonn and Lone Star. However, unlike the grease pit in Bonn and the
peanuts in Lone Star, there was evidence that the parking barrier in this case was
neither known nor obvious to Appellant . "In pedestrian fall-down cases arising out of
It is unclear from the facts recited in Lone Star whether the plaintiff had any
alternative to walking across the strewn peanut shells. If not, then Lone Star is
substantially different on its facts from Bonn , where the plaintiff simply stepped into an
open pit instead of walking around it, and is more akin to the situation described in
Restatement § 343A cmt. f, supra . Cf. Wallingford v. Kroger Co. , 761 S .W .2d 621, 624
(Ky . App . 1988) .
defects in or obstructions on the walking surface the visibility factor is vital." Jones v .
Winn-Dixie of Louisville . Inc. , 458 S .W.2d 767, 769 (Ky. 1970) . While parking barriers,
curbing, division strips, and other such obstructions commonly used in parking areas to
protect automobiles from property damage (and buildings from automobile damage) are
not per se dangerous or unsafe, they can become so when their presence is hidden or
otherwise not readily apparent to invitees using the premises . In both Cantrell v. Hardin
Hospital Management Corp . , 459 S .W.2d 164,165 (Ky. 1970), and Downing v.
Drybrought , 249 S .W .2d 711, 712 (Ky. 1952), the fact that the accident occurred at night
in a poorly-lighted parking lot was held to create a jury question as to liability . See also
Holliday v. Great Atl. & Pac. Tea Co. , 314 F .2d 682, 684-85 (4th Cir. 1963) (yellow paint
had peeled off curbing and lighting was inadequate) ; Geraghty v. Burr Oak Lanes , 125
N .E.2d 47, 52 (III . 1955) (railroad ties used as parking barriers were obscured by
weeds) ; McFarland v. Sears, Roebuck & Co . , 91 S .W .2d 615, 620 (Mo . Ct. App. 1936)
(inadequate lighting) ; Narz v. Parking Auth . of Town of Dover, 156 A .2d 42, 45 (N .J .
Super . Ct . App . Div. 1960) (white line observed on previous visit had been replaced with
white parking barrier) ; H .E. Butt Grocery Co . v. Brudfield , 396 S .W.2d 254, 255-56 (Tex.
Civ. App . 1965) (asphalt ridge between sidewalk and parking lot was same color as
asphalt parking lot). Compare Mershon v. Gino's, Inc. , 276 A.2d 191, 194 (Md . 1971)
(broad daylight, bumpers painted yellow to contrast with black asphalt pavement,
openings or walkways between bumpers, and plaintiff admitted that nothing obstructed
her view) .
In Wilkinson v. Family Fair, Inc. , 381 S .W .2d 626 (Ky. 1964), the plaintiff was
descending some steps into a basement and, upon rounding a corner at the landing,
tripped on an abutment extending out level with the floor and covering almost all of the
right portion of the upper step. "Though the stairway was well lighted, the lighting is
immaterial, for the obstacle which caused the fall was completely concealed from the
view of appellant until she had rounded the wall ." Id . at 627. See also Winn-Dixie
Louisville, Inc . v. Smith , 372 S .W.2d 789, 792 (Ky. 1963) ("While appellee was required
to exercise ordinary care for her own safety, such did not require her to look directly
down at her feet with each step taken ."). The closest case factually to the case at bar is
Magee v. Federated Department Stores, 371 S .E .2d 99 (Ga. Ct. App . 1988), where the
plaintiff tripped over a six-inch-high concrete barrier used as an enclosure for temporary
storage of shopping carts . A parked car partially obscured the enclosure from the
plaintiffs view, but the barrier projected out approximately two feet from the rear of the
car. The plaintiff was momentarily distracted by another vehicle being driven in her
direction and tripped over the barrier . Id . at 99 . While Magee did not refer to
Restatement § 343A, it did hold the owner responsible "where the distraction is placed
there by the defendant or where the defendant in the exercise of ordinary care should
have anticipated that the distraction would occur." Id . at 100 .
We conclude from this analysis that the parking barrier on which Appellant
tripped and fell was not "known or obvious to" Appellant . In fact, its presence was
partially concealed from him by the manner in which a Courtesy employee had parked
the Firebird . Even if that were not so, the facts of this case would fall within
Restatement § 343A, comment f, because Courtesy would expect that a customer in the
process of examining its wares while they were being touted by one of its sales staff
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." Id .
Accordingly, we reverse the Court of Appeals and remand this case to the
Fayette Circuit Court with directions to vacate its summary judgment and grant
Appellant a trial by jury on the allegations of his complaint .
Lambert, C.J . ; Graves, Johnstone, and Scott, JJ ., concur. Roach, and
Wintersheimer, JJ ., concur in result only.
COUNSEL FOR APPELLANT :
Avery L . Stanley
317 Second Street
P.O. Box 40
Vanceburg, KY 41179
Marilee Stephenson
530 Sixth Street
Portsmouth, OH 45662
COUNSEL FOR APPELLEE :
Andrew N . Clooney
O'Bryan, Brown & Toner
1500 Starks Building'
Louisville, KY 40202
Mark Edward Hammond
Suite 1500
455 South 4th Avenue
Louisville, KY 40202
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2002-SC-0104-DG
ANDREW STEPHENSON HORNE
V
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2001-CA-100
FAYETTE CIRCUIT COURT NO. 99-CI-1645
PRECISION CARS OF LEXINGTON, INC.
APPELLEE
ORDER MODIFYING OPINION
On the Court's own motion, the To Be Published opinion in the above-styled
appeal, rendered August 25, 2005, is hereby modified by the substitution of new pages
one (1) and eight (8), attached hereto, in lieu of pages one (1) and eight (8) of the
opinion as originally rendered . Said modifications are being made to change word
forms so that text correctly reads : "the fact that the accident occurred at night in a
poorly-lighted parking lot was held to create a jury question as to liability" and to change
the word "opening" to "openings ." Said modifications appear on page eight of the
opinion and do not affect the holding of the opinion as originally rendered .
ENTERED : September 22, 2005 .
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