The Premises Liability Open and Obvious Doctrine: Possibly All Dead.

By Jamie W. Dittert

“There’s a big difference between mostly dead and all dead.”
~  The Princess Bride

Gather your snow shovels, sidewalk salt, and maintenance schedules. The Kentucky Supreme Court has put to rest any lingering questions about the viability of the open and obvious doctrine in slip and fall cases involving natural outdoor hazards with its recent decision in Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015).

Under the previous open and obvious doctrine, landowners had no duty to remove or warn against open and obvious natural outdoor hazards and could obtain summary judgment by establishing that the condition which caused a plaintiff’s fall was as obvious to the plaintiff as it was to the landowner.

Now, however, whether a condition is “open and obvious” is just one of many factors that a court or jury may consider in determining whether a landowner breached a standard of care; courts will also consider whether it was foreseeable that a plaintiff would proceed, despite the hazard.

Accordingly, summary judgment is much more difficult to obtain, and all business premises owners should be sure to make and document reasonable efforts to address natural outdoor hazards like snow and ice, whether through a formal policy and/or by maintaining regular snow and ice removal records.