Quimbee is a company hell-bent on one thing: helping you get an “A” in every course you take in law school, so you can graduate at the top of your class and get a high-paying law job. While guiding the patient into the hospital’s emergency room entrance, she tripped over a steep curb and suffered injuries. Even in such situations, a jury could still reasonably find some degree of fault by the plaintiff, depending on the facts. Ultimately, the jury found the Hospital liable. This is an unwise and unnecessary change in the law in the Commonwealth. No contracts or commitments. This is good impeachment and rebuttal evidence, and it was all heard and duly considered by the jury. The operation could not be completed. So when we presume their knowledge is already equal, as we do for obvious conditions, the warning could serve no purpose. Pathways v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003) (citing David J. Leibson, Kentucky Practice, Tort Law § 10.3 (1995)). As the reporters' notes to the current draft of the Restatement (Third) of Torts state: Restatement (Third) of Torts: Liab. However, sometimes "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." Under KRE 401: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." The standards for summary judgment and for a judgment notwithstanding the verdict are identical, Cassinelli v. Begley, 433 S.W.2d 651, 652 (Ky. 1968). However, they are less familiar with emergency room entrances, which are used primarily by specialized professionals such as paramedics and EMTs. As noted above, a few courts state that a land possessor's duty to invitees "is predicated upon [his] superior knowledge concerning the dangers of his property," Janis, 780 N.W.2d at 502, something which is absent when the danger is obvious to all. Cancel anytime. Phelan v. State, 11 Misc.3d 151, 804 N.Y.S.2d 886, 898 (N.Y. Ct. Claims 2005). The need to focus on the patient necessarily means taking attention away from other tasks, such as carefully navigating past a protruding curb. There was testimony that paramedics have a duty to focus on the patient while the EMTs guide them into the emergency room, including monitoring the patients' health and making sure their intravenous lines do not become entangled on the wheels of the stretcher. She testified that she had safely navigated the entrance hundreds of times before her injury. Physical Harm § 51 cmt. On May 27, 2004, McIntosh, a trained and licensed paramedic, was transporting a critically ill patient to the Hospital. The incompatibility between the traditional open and obvious rule and comparative fault is palpable; any incompatibility should be resolved in favor of comparative fault. If the land possessor can foresee the injury, but nevertheless fails to take reasonable The hospital filed a motion for summary judgment and claimed that the “open and obvious” doctrine barred McIntosh’s claims. The Court of Appeals affirmed the trial court's grant of summary judgment but ruled before we rendered our decision in Kentucky River Medical Center v. McIntosh. The question then is whether the applicability of the doctrine is a question of law or of fact. Admittedly, it may seem at first that McIntosh was not a particularly sympathetic plaintiff because, as the Hospital points out, she "had encountered [the danger] on many, many occasions." Further, the modern approach is more consistent with Kentucky's rule of comparative fault. COLUMBUS. The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. In Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 390 (Ky. 2010), the Kentucky Supreme Court adopted the rule set forth in § 343A(1) of the Second Restatement of Torts and explained how it applies in Kentucky. In the present case, the Hospital owed a duty to McIntosh, given that her injury was foreseeable. She was the widow of the late Ronnie Ritchie and the daughter of the late Fallen and Carrie Keith McIntosh. at 367-70. We’re not just a study aid for law students; we’re the study aid for law students. As a general rule, land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them. In short, there is no doubt the photographs were relevant. It awarded Mcintosh $40,409.70 for medical expenses, $65,000 for impairment of her earning capacity, and $50,000 for pain and suffering, for a total of $155,409.70. Get 1 point on providing a valid sentiment to this This makes good policy sense. In particular, McIntosh testified that she transports patients to several nearby hospitals and that none of them have any uneven surface between the ambulance dock and the doors. Even if we assume that she was neither distracted nor forgetful about the curb, we would still have to conclude that the benefits of her rushing to the door (at the risk of tripping over the curb) outweighed the costs of her failing to do so (at the risk of the patient's condition worsening, perhaps to the point of death, on the Hospital doorstep). Retain a Kentucky Premises Liability Attorney for Help. Ctr., Inc., 807 S.W.2d 476, 480-81 (Ky. 1991). The trial court's decision to admit this evidence is reviewed for an abuse of discretion. The Hospital appealed to the Court of Appeals, which affirmed because "the Hospital could reasonably expect that a paramedic treating a critically-ill patient could be distracted, could forget (if she had ever observed it) that the curb was uneven, and could fail to protect herself against it." * Enter a valid Journal (must Barcode Under KRE 401: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." to the manner of his testimony." However, in the case of open and obvious dangers, the invitee should be just as aware of the danger. It was not an abuse of discretion to allow the jury to hear expert testimony about the proper safety features and regulations of emergency room entrances. Consequently, the safety requirements for such of the entrances may be "outside the common knowledge of jurors." Accredited Chest Pain Center, Kentucky River Medical Center has enhanced the quality of care for patients and has demonstrated its commitment to higher standards,” said Chad Leonard Noble, 79, passed . Essentially, the area looks like a wide curb ramp used for wheelchair access, except that the "ramp" part is flat rather than at an incline. On appeal, Barker argues that the trial court erred in granting summary judgment. In Home, this Court endorsed the Restatement (Second) view throughout the opinion. The Hospital first argues that the trial court should have granted its motions for summary judgment and for a judgment notwithstanding the verdict because the curb over which McIntosh tripped was an open and obvious danger. Second, the Hospital argues that the trial court erred in allowing the testimony of McIntosh's expert witness, James Lapping. However, this Court concludes that the modern trend, as embodied in the Restatement (Second) of Torts, is the better position. See, e.g., Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) (citing Perry v. Williamson, 824 S.W.2d 869, 875 (Ky. 1992)). One of the patient's family members testified that McIntosh was completely focused on the patient as he was pushed to the entrance. McIntosh, in turn, had a duty 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. This Court granted discretionary review to determine whether the open and obvious doctrine should have completely barred McIntosh's cause of action. The Court of Appeals declined to review this error because the Hospital failed to make a "contemporaneous objection . These courts therefore conclude that no duty should be imposed when dangers are obvious. Id. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) was decided by the Kentucky Supreme Court. It is likely that in such a situation, a paramedic such as McIntosh may forget that this particular entrance has a unique danger that she must avoid. 812, 658 S.E.2d 637, 642 (2008). Therefore, they rule that no duty should be imposed. That sort of analysis is exactly what comparative fault analysis requires the jury to do; thus, the jury was properly instructed to compare the faults of the parties in this case. ; ABRAMSON, CUNNINGHAM and VENTERS, JJ., concur. In Kentucky River Medical Center v. McIntosh , 319 S.W.3d 385 (Ky. 2010), the court recognized that the modification was necessary because of Kentucky's adoption of a comparative fault tort scheme. If the issue here was one of duty and duty alone, then it would not matter how many times she had encountered the danger (assuming, of course, this Court were to label the curb "obvious"). Id. You can try any plan risk-free for 30 days. A trial court abuses its discretion if its decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." For the foregoing reasons, the Court of Appeals is affirmed. McIntosh, a paramedic, was injured when she In these cases, the extent of foreseeable risk at the time of the defendant's alleged negligence depends on the specific facts of the case. will forget what he has discovered." Thus, these courts maintain that the basis for placing a duty on the land possessor — his superior knowledge — does not exist when the danger is truly open and obvious. The lower courts should not merely label a danger as "obvious" and then deny recovery. E.g., Ethyl Corp. v. Johnson, 345 Ark. "In either event, the injured invitee could not recover." Although the Hospital is correct that the front entrance and emergency room entrance have different sorts of traffic, this is a fact that can be easily pointed out at trial, and this Court does not think it is beyond the capability of the jury to understand this distinction, especially given the testimony about the unique safety requirements of emergency room entrances. . The principal issue on appeal is whether the trial court should have granted the Hospital's motion for a judgment notwithstanding the verdict because the open and obvious doctrine barred the plaintiffs recovery as a matter of law. By concluding that a danger was open and obvious, we can conclude that the invitee was negligent for falling victim to it, unless for some reason "to a reasonable man in his position the advantages of [encountering the danger] would outweigh the apparent risk." Immediately outside the emergency room entrance there is a flat surface which is eleven feet wide to allow stretchers to be wheeled directly from the ambulance dock into the emergency room. The dire need to rush critically ill patients through the emergency room entrance should be self-evident, and as such, "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." In addition, evidence was introduced showing that having such a tripping hazard at an emergency room entrance is very rare, if not unique in Breathitt County and the counties adjoining it. . contains alphabet), KENTUCKY RIVER MEDICAL CENTER v. McINTOSH. KENTUCKY RIVER MEDICAL CENTER V. MCINTOSH (Ky. 2010) Facts: o Outside the emergency room entrance there was a flat surface, eleven feet wide, to allow stretchers to be wheeled directly from the dock into the ER; flat area looks like a wide curb ramp, except the ramp part is flat rather than inclined o The curb is unmarked and unprotected o McIntosh tripped over the curb and suffered a fractured hip and sprained wrist o … More Information . Id. Paramedics will rarely have the luxury of calmly walking towards an emergency room entrance. So although it is true that when the danger is obvious the land possessor does not have superior knowledge, the land possessor still has the superior ability to issue repairs. After considering the parties' briefs, the trial court summarily denied this motion. Importantly, expert testimony does not need to be flawless to be admissible. Thus, there were genuine issues of material fact that were properly submitted to the jury. This Court has previously stated: This Court concludes that the testimony was properly admitted. If she had never been to this emergency room entrance even once before, the Hospital would still owe her no duty, and the same result would follow. The Court of Appeals had reversed based on Kentucky River Medical Center v. McIntosh, 319 S.W.3d 395 (Ky. 2010). Read our student testimonials. The hospital appealed. They are required to think and act quickly in the most time-sensitive and stressful of circumstances. You're using an unsupported browser. . There can be no doubt in this case that the injury was foreseeable. Ultimately, the jury found the Hospital liable. A "yes" or "no" answer to the question framed in the issue section; A summary of the majority or plurality opinion, using the CREAC method; and. The minority view is no doubt confused because it is often said that "there is no duty to warn for open and obvious dangers." This Court cannot say that their finding that McIntosh bore no comparative fault is clearly erroneous. Restatement (Third) of Torts: Liab. Restatement (Second) § 343A cmt. Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321, 1325 (1989). Physical Harm § 51 cmt. The trial court did not abuse its discretion in admitting these photographs into evidence. The Hospital also argues that Lapping's testimony was improper because it was undermined during cross-examination. This website requires JavaScript. Harrison, 768 P.2d at 1325. 65 E. State Street Suite 2000 Columbus, Ohio 43215 (614) 469-7130 Fax: (614) 469-7146. See Restatement (Third) of Torts: Liab. Please enable JavaScript in your browser settings, or use a different web browser like Google Chrome or Safari. In this case, to avoid future liability, the hospital will need to build the same type of entrance ramp as some unknown group of hospitals. However, the absence of the duty to warn does not mean there is no duty at all, simply because "the duty of reasonable care may require precautions other than a warning, including employing durable precautions that eliminate or reduce the risk posed." Among other reasons, the photographs were relevant to show alternative designs that could have feasibly been used; to show the Hospital could foresee para-medics would trip over the curb, given that paramedics may falsely assume that the entrance would be as safely designed as any other hospital; to show that even though McIntosh had been to this entrance numerous times, the "possessor has reason to expect [she] will forget what she has discovered," Restatement (Second) of Torts § 343A, since she may forget that this particular hospital lacks the same safety precautions that all other hospitals in the area have; and to show that she may be reasonably distracted. And, in particular, Home cites section 343A(1) of the Restatement and its supporting commentary for the proposition that a land possessor may be held liable for open and obvious dangers if "the possessor should anticipate the harm despite [its] . June 24, 2011 DBL Law There has been considerable discussion among Kentucky civil litigators in recent months about the effect of the Kentucky Supreme Court’s decision in Kentucky River Med. the late Vince and Ada Noble. CR 56.03; see also Steelvest, 807 S.W.2d at 480-81. away Wednesday, March 14, 2012 at his home. He served as the safety director for the AFLCIO for over two decades, and he also worked for the Occupational Safety and Health Administration (OSHA), where he wrote training programs for safety inspectors. Some law schools—such as Yale, Vanderbilt, Berkeley, and the University of Illinois—even subscribe directly to Quimbee for all their law students. In case of any confusion, feel free to reach out to us.Leave your message here. Restatement (Second) § 343A cmt. Although this Court ultimately concluded that the danger "was not `known or obvious to`" the plaintiff, this Court concluded in the alternative that. For many open and obvious dangers, the land possessor would have no reason to anticipate the harm, and so he would not be liable. Admitting this testimony was not an abuse of discretion. Find a Doctor. . This flat area rises on both sides to form a curb. Physical Harm § 51 cmt. Contact Us. This Court concludes that these are not error. In short, "[e]ven where the condition is open and obvious, a landowner's duty to maintain property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such a condition." Such a condition, being open and obvious, should usually be noticed by a plaintiff who is paying reasonable attention. Before confirming, please ensure that you have thoroughly read and verified the judgment. Our sister states do not unanimously agree about the correct answer. Some courts in that era explained the doctrine in terms of duty and others did so in terms of the plaintiffs contributory negligence, see generally Page Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U. Pa. L. Rev. v. McIntosh, 319 S.W.3d 385 (Ky. 2010), on the open and obvious hazard defense in … The most logical way of taking this factor into account is to say that if she has familiarity with the danger, then she is at fault for failing to avoid it, and to reduce her recovery accordingly. Then click here. Id. McIntosh sued the Hospital, arguing that the curb was an unreasonably dangerous condition which caused her injuries. 629 (1952), but the precise doctrinal rationale was not carefully considered because it made no difference at that time. Kentucky River Medical Center, et al. f. In these situations, the injury is still foreseeable, and so liability should still be imposed. Restatement (Third) of Torts: Liab. The Hospital also raises two evidentiary issues on appeal. Martin Allen Arnett, William P. Swain, Denis Carl Wiggins, William Baxter Orberson, Phillips, Parker, Orberson Arnett, PLC, Louisville, KY, Counsel for Appellants. . CINCINNATI. In McIntosh, a paramedic who was tending to a patient tripped over a curb at the entrance to the medical center's emergency room. Christopher W. Goode, Bubalo, Hiestand Rotman, PLC, Lexington, KY, Counsel for Appellee. Now, even though the alleged danger is open and obvious (like snow or ice on a sidewalk), if the possessor can anticipate the harm to an invitee, the possessor has a duty to fix the condition, or to somehow give additional warnings. We even dramatically shifted the law in favor of injured victims with the landmark decision of Kentucky River Medical Center v. McIntosh, which has been adopted across the country as the new standard for premises liability cases. 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