OPINION

TAYLOR, JUDGE.

Stuart Dale Carney brings this appeal from a June 25, 2014, order of the Jefferson Circuit Court granting Rusty Galt and Julita Nord's respective motions for summary judgment as concerns Carney's premises liability and negligence claims arising from injuries sustained on June 9, 2012.1 For the reasons stated, we affirm in part, reverse in part, and remand.

BACKGROUND

The circuit court set out the relevant undisputed facts for this case in its order as follows:

One additional fact not referenced by the circuit court that we find relevant to our review is that at the time of the accident, Carney was a guest on property owned by Sherri Moore, which is located immediately next door to Galt's house on Rock Spring Drive. The basketball court that Carney was playing on at the time of the accident was located in Moore's driveway, which is adjacent to Galt's property where the fence was under construction. Additional facts relevant to our analysis will be set out in the discussion that follows.

STANDARD OF REVIEW

The standard of review on appeal of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure 56.03). "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). Consequently, summary judgment should be cautiously applied and is not a substitute for a trial. It is appropriate only when it appears, as a matter of law, that it would be impossible for the respondent to produce evidence at trial warranting a favorable judgment. Id.

ANALYSIS

A. Landlord Liability

The circuit court concluded that Julita Nord as landlord and owner of the residence being leased to Galt was not liable to Carney based upon the allegations set out in the amended complaint in this action. We agree. Upon leasing the property to Galt, and placing Galt in complete control of the premises, Nord's only duty as a landlord was to warn Galt of known latent defects at the time that Galt leased the premises. See Carver v. Howard, 280 S.W.2d 708 (Ky. 1955). It has been a long standing rule in Kentucky that a tenant takes the premises as he finds them. Milby v. Mears, 580 S.W.2d 724 (Ky. App. 1979). In this case, the fence was being constructed by Galt on Nord's property under his control pursuant to his lease with Nord. As a general proposition in Kentucky, a landlord is not liable for the negligence of his tenant in the use of a leased premises. Farmer v. Modern Motors, Co., 235 Ky. 483, 31 S.W.2d 716 (1930). The Supreme Court has recently carved out one exception to this rule as concerns the dog-bite liability statute, Kentucky Revised Statutes (KRS) 258.235(4). Benningfield v. Zinsmeister, 367 S.W.3d 561 (Ky. 2012). That exception is not applicable to this case. We can find no authority in Kentucky jurisprudence that would create liability against Nord based upon the allegations set out in the amended complaint in this action. Accordingly we affirm the summary judgment granted by the circuit court in favor of Nord.

B. Liability of Rusty Galt

The circuit court concluded that Carney was a trespasser on Galt's property to whom there was no duty of care owed, and that further the fence was an open and obvious condition that precluded liability even if there was a duty owed to Carney by Galt. We will review each of these findings in light of the established facts in this case and in conjunction with the status of premises liability law in Kentucky, beginning with the open and obvious doctrine.

Prior to 2010 in Kentucky, the facts of this case would have easily fit into an open and obvious doctrine analysis that would have precluded any liability by Galt to Carney regardless of Carney's status when coming onto Galt's property. Under this doctrine, a land possessor could not be held liable to a visitor on his property, regardless of the visitor's status, who was injured by open and obvious dangers that were known to the visitor or otherwise so obvious that the visitor would be expected to discover them. Rogers v. Prof'l Golfers Ass'n of Am., 28 S.W.3d 869 (Ky. App. 2000). The fence was clearly an open and obvious condition based upon the record in this case.

However, the Kentucky Supreme Court has recently modified (and perhaps abolished) the open and obvious doctrine beginning with Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010) and its progeny.2 In McIntosh, the Kentucky Supreme Court adopted the position of the Restatement (Second) of Torts with respect to open and obvious conditions. That position is stated as follows:

Restatement (Second) of Torts § 343A(1) (1965).

The Supreme Court further expounded upon its position in McIntosh in Shelton v. Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901 (Ky. 2013). In explaining the retreat from the open and obvious doctrine, the Court stated:

Id. at 906 (citations omitted).

In Shelton, 413 S.W.3d 901, the Supreme Court went on to explain:

Id. at 907 (citations omitted).

Additionally, in Shelton, the Supreme Court noted that it did not speak "clearly enough" in McIntosh and emphasized that an open and obvious danger did not pertain to the existence of a duty, and at the very least a land possessor's duty of care was not eliminated because of the obviousness of the danger. Shelton, 413 S.W.3d 901; McIntosh, 319 S.W.3d 385. The Supreme Court went on to explain in Shelton the land possessor's duty of care as follows:

Shelton, 413 S.W.3d at 908 (citations omitted).

Based upon the Supreme Court's modification of the open and obvious doctrine to conform to comparative fault principles, we do not believe, albeit reluctantly, that the doctrine precludes liability against Galt under the facts of this case, and thus we must look to Carney's status upon entering Galt's property in determining whether summary judgment was properly granted for Galt.

Kentucky classifies a visitor upon property as one of the following: trespasser, licensee, or invitee. Scifres, 916 S.W.2d 779. A person who comes upon the property of another without any legal right to do so is a trespasser. Hardin v. Harris, 507 S.W.2d 172 (Ky. 1974). A person who comes on the land of another with the possessor's consent is a licensee. Id. And, a person with business dealings with the possessor who comes upon the property is an invitee. Id.

As noted, the circuit court concluded that Carney was a trespasser upon Galt's property at the time of his injuries and thus could not recover damages from Galt, as a matter of law. KRS 381.232.3 The court relied in part on a video that established that Carney and Galt were not on "good terms" at the time of the alleged trespass. However, the circuit court did not address what would appear to be most relevant in this analysis — the relationship of Galt with his next door neighbor, Sherri Moore, and her guests, specifically as pertains to their ongoing relationship regarding access to Galt's property, given the proximity of the basketball court on Moore's property to Galt's property. In other words, was it customary for those who routinely used Moore's basketball court, including other neighbors, to have regular access to Galt's property to retrieve basketballs that left Moore's property during its use? The record clearly establishes that Galt had not posted "no trespassing" signs on his property to give notice that entry was prohibited on his property by all. Customary or routine access by guests of Sherri Moore to Galt's property could look to an implication of consent or acquiesce and otherwise create the status of licensee for those utilizing such access. Bradford v. Clifton, 379 S.W.2d 249 (Ky. 1964); see also, Louisville Baseball Club v. Butler, 289 Ky. 785, 160 S.W.2d 141 (1942).

Based upon our thorough review of the record on appeal, the status of Carney as a trespasser or licensee on Galt's property is clearly a disputed fact that must be determined by the trier of fact.4 Perry v. Williamson, 824 S.W.2d 869 (Ky. 1992) (citing John S. Palmore, Kentucky Instructions To Juries, Civil § 24.09 (2d ed. 1989)).5

There being disputed facts regarding Carney's status on Galt's property, summary judgment was prematurely granted by the circuit court in favor of Galt. On remand, if the trier of fact determines Carney was a trespasser, then there would be no duty owed nor could any liability for damages accrue against Galt. KRS 381.232. However, if Carney's status is held to be that of licensee, then the trier of fact will be required to determine if Galt breached his duty of care to Carney to maintain his premises in a reasonably safe condition and to award damages, if any, under a comparative fault analysis.

CONCLUSION

In conclusion, we affirm the circuit court's grant of summary judgment to Julita Nord as landlord of Galt; we reverse the summary judgment in favor of Galt and remand for proceedings consistent with this opinion. If the trier of fact concludes that Carney was a trespasser, there shall be no liability for Carney's damage claim against Galt in accordance with KRS 381.232. Otherwise, the case shall proceed as a traditional comparative fault tort case.

NICKELL, JUDGE, CONCURS.

ACREE, JUDGE, CONCURS AND WRITES SEPARATE OPINION.

ACREE, JUDGE, CONCURRING:

I am tempted to dissent with regard to the appellee, Galt, by quoting Perry v. Williamson for the principle that, at best, appellant Carney was a licensee and, "[i]f the hazard is obvious then it does not involve an unreasonable risk of harm to the licensee." 824 S.W.2d 869, 874 (Ky. 1992) (internal quotation marks omitted). But I am compelled to concur with the majority because, counterpoised to such clear jurisprudence, we have McIntosh6 and its progeny.

Frankly, the Supreme Court already has tipped its hand. A majority of our justices read Perry v. Williamson as "abandoning status-based duties and replacing with simply the duty of reasonable care given the circumstances." Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 909 fn.28 (Ky. 2013), as corrected (Nov. 25, 2013). Further, the Court is quite obviously ready to swap out our current three status categories (invitee/licensee/trespasser) for the Restatement (Third) of Torts' two status categories (entrant-flagrant trespasser). The Court stated in Shelton as follows:

Id. Obviously, adopting this approach as this passage suggests, would not amount to abandoning status-based distinctions. We would simply be reducing the number of status categories from three to two. Whether this would bring much clarity is highly doubtful since the Restatement still "leaves to each jurisdiction employing the concept to determine the point along the spectrum of trespassory conduct at which a trespasser is a `flagrant' rather than an ordinary trespasser [which equates to a mere entrant]." Restatement (Third) of Torts § 52 cmt a. Additionally, "[t]he critical aspect of this Section" is an aspect already present in our current three-status jurisprudence — "that a distinction is made, and different duties of care are owed depending on" the status of the person who entered upon the land. Id.

Notwithstanding my belief that it is ill-advised and unnecessary, the Supreme Court's clarion signal of its readiness to embrace § 51 and § 52 of Restatement (Third) is alone sufficient to justify my concurrence in the majority opinion.

However, I also write separately to voice concern that the recent series of open-and-obvious cases, and Shelton in particular, did more than merely erode the open-and-obvious doctrine. And, with all due respect to the Supreme Court, I cannot agree that what these cases have accomplished "is not a radical departure." Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 298 (Ky. 2015).

The holdings in Shelton wrest decision-making — that is, law-making and policy-making — responsibility away from the trial judge and give it to the jury as fact determinations. Based on McIntosh and its progeny, the bar and bench have good reason to believe the Supreme Court has moved fully away from a relational concept of duty as Judge Cardozo expressed it in Palsgraf,7 and as it has evolved in our jurisprudence,8 in favor of a universal duty of care owed to society at large. This is one of the foundational concepts of the Restatement (Third) of Torts.9

Furthermore, Shelton has broader implications than mere rejection of the no-duty analysis of the open-and-obvious doctrine. It could well be argued that the Court's rejection of foreseeability as a factor in determining whether a duty exists, combined with acceptance of the universal duty of care, effectively eliminated the need for all no-duty determinations (that is to say all duty determinations) in Kentucky personal injury law.10

It is, of course, the prerogative of our Supreme Court to steer the course of our jurisprudence, even to veer from a trajectory formed firmly over a century. And that is what happened when the Court declared these changes.

It is not idle concern that Kentucky jurisprudence turned away from Judge Cardozo's relational philosophy of duty expressed in his majority opinion in Palsgraf as follows: "risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation." Palsgraf, 162 N.E. at 100 (quoted, in part, in Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003)). In its place, the Supreme Court shifted to Judge Andrews' view, even quoting his dissent in Palsgraf that we all are duty bound to "protect society from unnecessary danger, not to protect A, B, or C alone." Shelton, 413 S.W.3d at 908 fn.26 (emphasis added; quoting Palsgraf, 162 N.E. at 102 (Andrews, J., dissenting)). If the Supreme Court has fully embraced Judge Andrews' view, as its signals to the bar and bench indicate, the first element of a negligence claim soon might be satisfied by an irrebuttable presumption that duty always exists, for that first element is a "universal duty owed by all [i.e., each member of society] to all [i.e., society in the abstract]." Id. at 908 (citation and quotation marks omitted). The trial judge's role of determining, as a matter of law, whether a duty exists could well be a vestige of the past, replaced by citation to the universal duty alone.

This first shift goes hand-in-hand with a second — removing "the reasonable-foreseeability analysis" from the judge and placing it "in the hands of the fact-finders, the jury." Shelton, 413 S.W.3d at 904. This second shift also serves to eliminate the need for the analytical skills of the trial judge whose responsibility, heretofore, was to determine the duty involved by considering "[t]he most important factor in determining whether a duty exists[,] foreseeability." Pathways, Inc., 113 S.W.3d at 89 (citation and internal quotation marks omitted). Should we believe a duty analysis is still necessary? At least some commentators simply do not; they have concluded that "the concept of duty itself is incoherent — even if not meaningless or a `nullity' — if stripped of a foreseeability component."11

The Supreme Court considers our new jurisprudence part of a national trend "to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims."12 Shelton, 413 S.W.3d at 904. But is that correct? The fact it that there are "three main camps in the contest over the nature of duty in tort law."13 And whatever trend our Supreme Court may see, the Indiana Supreme Court chose last year not to be a part of it. After acknowledging that "the concept of foreseeability as a component of duty is not universally embraced[,]" the Indiana justices were persuaded by a decision of the Supreme Court of Tennessee, noting that court's observation that "[w]hile there have certainly been able and skillful critiques of the role that foreseeability plays in determining whether a duty exists, the majority of courts continue to use foreseeability as a central component of their analyses." Goodwin v. Yeakle's Sports Bar and Grill, Inc., 62 N.E.3d 384, 389-90 (Ind. 2016) (citing Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 366 (Tenn. 2008) (citations omitted)). Both states "decline[d] to chart a different course" and maintain the view that "foreseeability plays a role in the analysis of duty."14 Id. But, back to Kentucky.

Shelton suggests that, although "a court no longer makes a no-duty determination[,]" it will be able to apply legal principles to "make[] a no-breach determination, dismissing a claim ... when there is no negligence as a matter of law, the plaintiff having failed to show a breach of the applicable duty of care." Shelton, 413 S.W.3d at 904. According to the Supreme Court, for a premises liability defendant,15 "liability can be limited, not because a duty does not exist but because there is no negligence — no breach — as a matter of law." Id. at 908. But how can it be that a judge makes this determination if we still hold that "[b]reach and injury, are questions of fact for the jury to decide." Henson v. Klein, 319 S.W.3d 413, 423 (Ky. 2010) (citation and quotation marks omitted). The fact is that the only time a trial judge may "make[] a no-breach determination" or may find "there is no negligence — no breach — as a matter of law[,]" is when the plaintiff totally fails to present enough evidence to create a genuine issue as to the material fact of breach, one of the elements of the negligence claim.

Considering McIntosh and its progeny as a whole, I simply cannot agree with the Supreme Court that these changes:

Shelton, 413 S.W.3d at 917 (internal quotation marks and citation omitted). Perhaps it is true that the questions are not changing; but it is most certainly true that who answers the questions has changed. That will have an effect on the evolution of our jurisprudence.

Determining whether a duty exists had always been the purview first of the trial court which, applying factors including foreseeability, made a legal or policy determination, i.e., drew a line of demarcation between where the claimed liability is too attenuated and where it is not. Cumulatively, those trial court decisions were processed into Kentucky jurisprudence by our appellate courts whose role it is to harmonize them. If, in our "attempting to be faithful to precedent, [the appellate] courts, including this Court, have muddied the water and confused the issues[,]" id. at 910, then shame on us for not doing our job well enough. But the answer, it seems to me at least, is not for judges to stop making these determinations, allowing juries to do so in the name of comparative fault.

While my confidence in the jury system is unflagging, I fail to see the wisdom in abdicating the law-making and policy-making role of the courts to an ever-changing group of individuals, untrained in law or policy and unaware of the importance of and need for a predictable trajectory of jurisprudence.16 I find it ironic that we complain about how the increased use of alternative dispute resolution deprives our courts of opportunities to develop our jurisprudence, and yet we relinquish to lay jurors the responsibility of determining, on a case-by-case basis, what yesterday was law and policy, but having them do so without the guidance of precedent, without the guardian of stare decisis, and without the aspiration of predictability. I am confident that Kentucky lawyers and judges will not, to paraphrase the Supreme Court, "confuse a finding for the [plaintiff or] defendant on the facts of a particular case with a rule of law for all cases[.]" Id. at 912. Consequently, our jurisprudence will not evolve based on those jury decisions. Those decisions, decided as questions of fact, will be more difficult to assail on appeal, and that will mean less opportunity for the appellate courts to impact jurisprudence.

Furthermore, if the Supreme Court's attraction to the Restatement (Third) of Torts extends beyond § 51 and § 52, as Shelton indicates,17 then we should warn the bar and bench that its adoption will "reshape[] traditional negligence principles and parlance" and will utilize "risk and scope of liability terminology and concept[s that are] seemingly awkward compared to the traditional terms and expressions."18 And we should alert them to the Restatement (Third)'s own weaknesses articulated by numerous and varied critics.19 At the very least, we should warn them that the Restatement (Third) of Torts is "a fundamental reconfiguration of the duty, breach, and proximate cause elements of the negligence cause of action."20

Perhaps we should also be concerned that the further removed we are from pre-1984 tort law, the more we seem likely to misperceive as tainted every tort concept we then embraced. In fairness, we all generally look to the past as through a glass darkly, remembering what best suits our purpose. Justice Scott did that when he said the traditional era of Kentucky tort jurisprudence coincided with a period of the "greatest opportunity and economic growth this nation has ever known [and] the cause of this growth [was] personal responsibility[.]" Shelton, 413 S.W.3d at 920 (Scott, J., dissenting). We can all agree this is too general to be the whole truth.

But, with due respect, the Shelton majority misstated the interplay between personal responsibility and the law of contributory negligence. Those justices said "if the plaintiff was negligent to any degree, under a contributory-negligence standard, then the defendant could not be found liable."21 Carter, 471 S.W.3d at 292 (emphasis in original). One need not read many contributory negligence cases to learn that this passage overstates the harshness of the jurisprudence of that time. See, e.g., Green River Rural Elec. Co-op. Corp. v. Blandford, 306 Ky. 125, 206 S.W.2d 475 (1947) (where the plaintiff recovered $15,790 from the electric company for his injuries after lifting in the air, from a well he was repairing, a wet thirty-foot pipe and accidentally touching it to an uninsulated power line).

But if the Court's mindset is that little, if any, tort jurisprudence from that era is viable today, then we are likely in for the rejection of other contributory negligence era concepts. The Supreme Court has already said "the rationale for the doctrine of superseding cause has been substantially diminished by the adoption of comparative negligence." Commonwealth, Transp. Cabinet, Dept. of Highways v. Babbitt, 172 S.W.3d 786, 793 (Ky. 2005).22 The Court of Appeals addressed the issue in Cadle v. Cornett, 2010-CA-001063-MR, 2013 WL 3604642 (Ky. App. July 12, 2013), not to be published. In a split decision, this Court concluded that nothing in comparative fault doctrine prevented the trial judge from ruling the plaintiffs' recovery was foreclosed either by superseding cause or remote cause — two concepts developed during the contributory negligence era.23 Id. at 9-10. The Supreme Court granted discretionary review in that case; however, the parties settled before the Court could rule. Although the Court of Appeals did not designate the opinion for publication, the Supreme Court ordered it depublished and removed its text from the WestlawNext digital research database.24

Each of these matters is an important one to consider and to be prepared for. All are worthy of more in-depth treatment than has been offered by judges, lawyers or scholars.

I have offered more than one reason for my concurrence in this case. I will offer another. Despite the Supreme Court's assurances that "summary judgment is still available to a landowner" in a premises liability case, Shelton, 413 S.W.3d at 916, we have not seen one affirmed by the Supreme Court since before Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010). This case offers that opportunity. My prediction is that a different opportunity will be seen here — the opportunity to expand liability under our jurisprudence by adopting more of Restatement (Third) of Torts and to declare, under § 52, that the appellant here was a mere entrant on the appellee's premises and not a flagrant trespasser.