In Kentucky and elsewhere, one of the foundation principles for personal injury claims is premises liability. Landowners owe a duty of care to invitees to keep the premises reasonably safe and to warn them of potential dangers of which they should reasonably be aware.
But this duty has limits. No proprietor can make their property entirely safe in all conditions, and expecting them to do so is futile. Invitees also must exercise due diligence to avoid injury. Drawing the line between these two expectations can be complicated.
Open and obvious
One common defense landowners use in court is the “open and obvious” doctrine. This doctrine dictates that injured parties have the ultimate responsibility to avoid dangers which are obvious regardless of the landowners’ responsibility to address them. For example, if a guest trips on a plainly visible obstruction in the driveway, a court may hold him responsible for failing to exercise due care for his well-being.
As Miami Management Co v Bruner explains, when a Kentucky court applied the open and obvious doctrine in the past, it barred the plaintiff from receiving any damages whatsoever. So the guest who tripped in his host’s driveway in the above example would not be able to receive compensation in court, even if the court believed the landowner to be primarily at fault for causing the danger.
But over time, legislative action and common law have changed the way courts treat these cases.
In 1984, Kentucky adopted comparative negligence doctrine, meaning that courts could rule on cases by measuring the comparison of fault between two parties in a civil dispute. For example, instead of barring the injured neighbor from receiving compensation for his fall, a court may consider that both he and the landowner played a part in the incident and hold them both accountable.
As FindLaw explains, there are several types of comparative negligence, but Kentucky adopted “pure comparative negligence,” meaning that courts calculate the degree of fault in an incident as a percentage and subtract the plaintiff’s damages by his or her percentage of fault.
For example, a court may determine that the guest was 75% at fault for failing to see the obvious obstruction, and the owner was 25% at fault for not removing a danger he could have foreseen. In this situation, the guest would receive the total amount of compensation less 75%.
According to current Kentucky Statutory Code, “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.“
In short, landowners are still responsible to keep their property reasonably safe, and visitors are still responsible to exercise due care.
— On behalf of Mark Knight Attorney at Law