Lanier v. Wal-Mart Stores, Inc., Ky., 99 S.W.3d 431 (2003)—Slip and Fall

Plaintiff brought a civil action for damages against a retail store arising from injuries she sustained when she slipped and fell while shopping at the store. The Supreme Court granted discretionary review to reconsider the burden of proof in this type of case. Specifically, it decided whether the burden of proving issues of notice and causation in a slip-and-fall case involving a customer in a retail store should be treated as elements of the plaintiff’s case, or rather as affirmative defenses to be proven by the defendant proprietor. The Kentucky Supreme Court overruled prior decisions and adopted a “burden-shifting” approach. Once a plaintiff proves the existence of a foreign substance on the floor that causes the customer to fall and be injured, a rebuttable presumption arises that the premises owner did not maintain the premises in a reasonably safe condition. Therefore, plaintiffs are required to prove the following elements in order to shift the burden of proof to the defendant: 1) the existence of a “foreign substance” on the proprietor’s floor, 2) that causes the customer to fall and be injured. Once these elements are satisfied, the burden shifts to the defendant to show, by greater weight of evidence, that the store exercised reasonable care in the maintenance of the premises.

Martin v. Mekanhart Corporation, dba Frisch’s of Sommerset, Ky., 113 S.W.3d 95 (2003)—Slip and Fall

Plaintiff slipped and fell in the restaurant parking lot and brought a negligence action against the restaurant. A jury found in favor of the plaintiff. At trial, plaintiff produced testimony of two police officers who came to her aid that motor oil was found in the parking spot where she slipped. The executive manager of the restaurant testified it was common for oil to drip from parked vehicles onto parking spaces and “for safety reasons” the spaces were scrubbed and hosed on a weekly basis and steam cleaned twice per year. He could not testify when the parking lot was last scrubbed before plaintiff fell. A worker at a nearby shopping center adjacent to the restaurant testified after plaintiff’s lawsuit she saw the executive manager and another employee scrubbing the parking spaces in front of the restaurant and it was the first occasion on which she had ever seen anyone doing so. The Court of Appeals vacated the trial court’s judgment. Plaintiff appealed. The Supreme Court reversed the Court of Appeals and reinstated the judgment of the trial court. The Supreme Court relied upon its recent decision in Lanier v. Wal-mart Stores, Inc., Ky., 99 S.W.3d 431 (2003), which overruled prior case law and adopted a burden shifting approach to premises liability cases involving injuries to business invitees. Under Lanier, the customer retains the burden of proving: 1) he or she encountered a foreign substance or dangerous condition on the premises; 2) the encounter was a substantial factor in causing the accident and the customer’s injuries; and 3) by reason of the substance or condition the premises was not in a reasonably safe condition for use of the business invitee. This proof creates a rebuttable presumption sufficient to avoid summary judgment or directed verdict and shifts the burden of proving the absence of negligence (the exercise of reasonable care) to the party who invited the injured customer to its business premises.

Bartley v. Educational Training Systems, Inc., Ky., 134 S.W.3d 612 (2004) – Negligence/Trip and Fall

Bartley, who attended real estate classes conducted by ETS tripped and fell in the school’s main classroom when her foot allegedly became caught underneath a carpet remnant.  The remnant matched the wall to wall carpet underneath and was neither attached nor bound around the edges.  It was placed near a trash can at the back of the classroom, extended into the center isle, and served to protect the wall to wall carpet from “sloppy students.”  The Circuit Court granted summary judgment in favor of ETS on Bartley’s claim for personal injuries resulting from the trip and fall.  The Court of Appeals affirmed, holding Bartley could not meet her burden of showing the remnant created an unsafe condition, nor could she prove the length of time a wrinkle in the carpet was present. 

The Supreme Court considered whether Bartley could maintain a cause of action for personal injuries as a result of the trip and fall under these circumstances or whether summary judgment was properly granted in favor of ETS by the Circuit Court. 

The Supreme Court reversed and remanded this case to the Circuit Court for trial.  It held a reasonable inference can be drawn that the carpet runner constituted an unsafe condition which precludes summary judgment.  The Supreme Court cited its recent decision in Lanier v. Wal-Mart Stores, Inc., Ky., 99 S.W.3d 431 (2003) which now makes the issue of causation and notice of the hazardous condition affirmative defenses of the proprietor, rather than elements of the plaintiff’s case.  The Supreme Court cited the lack of proper edging and backing material in the carpet as a possible dangerous condition. The Supreme Court also rejected ETS’s argument Lanier should be limited to slip and fall cases involving invitees of a self service retail shop. 

Horne v. Precision Cars of Lexington, Inc., Ky., 170 S.W. 3d 364 (2005) - Open and Obvious Defense

Horne visited an automobile dealership.  While Horne was walking around the rear of the car giving his attention to the sales pitch, he tripped on a concrete parking barrier extending outward from under the car, fell, and injured his wrist.  Evidence suggested the prior operator of the car parked too far to the left and at an angle so only its right rear wheel was touching the concrete barrier and the left rear wheel was concealing the barrier’s presence from anyone looking at the car from the left side.  Horne testified he never previously visited the lot, did not notice any barriers, and did not see the barrier in question before he tripped and fell.  The Supreme Court considered whether the barrier was an open or obvious hazard or if the facts were sufficient to proceed to trial on the lot’s alleged negligence.  The Supreme Court held the danger was neither known nor obvious to the plaintiff, and the case should go to trial.  The Supreme Court cited to the fact the barrier was partially concealed from the customer by the manner in which the lot employee parked the car.  The court further stated the lot should “expect that a customer in the process of examining its wears while they were being pitched 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.”