Opinion of the Court by Chief Justice MINTON.
On a rainy day during the busy Christmas shopping season, Betty Webb entered Dick's Sporting Goods. As she walked in, she noticed that the mats covering the tile floor at the front of the store had shifted and a puddle of water had collected between the mats. Webb attempted to avoid the puddle by stepping onto a nearby tile, which she believed was dry. But that tile was wet. Webb slipped and fell to the floor, allegedly sustaining substantial injuries.
Webb sued Dick's Sporting Goods, claiming the store was negligent in maintaining its premises. Dick's Sporting Goods denied that it owed any duty to Webb because the condition of the floor that day was open and obvious. The trial court granted summary judgment in favor of Dick's Sporting Goods on open-and-obvious grounds. The Court of Appeals, in reliance on our opinion in Kentucky River Medical Ctr. v. McIntosh,
We granted discretionary review to analyze further, given the different circumstances presented by this case, the reach and effect of McIntosh. But after reviewing the record in this case, we do not perceive our holding in McIntosh as governing. We simply do not view this as an open-and-obvious case. Although we affirm the holding of the Court of Appeals that the trial court erred by granting summary judgment, we differ with the Court of Appeals on the reasons for so holding. Dick's Sporting Goods had an affirmative duty to maintain its store premises in a reasonably safe condition, and whether Dick's Sporting Goods breached that duty is a question for the jury to decide.
Betty Webb and her neighbor ventured out in pouring rain to do some Christmas shopping at Dick's Sporting Goods. Upon her arrival, Webb noticed puddles in the parking lot and proceeded cautiously to the store's entrance. As Webb entered the store, she immediately stepped onto floor mats that Dick's Sporting Goods had placed in the entryway to soak up water tracked in by customers. Webb saw the
A crowd of other customers attempting to enter Dick's Sporting Goods at the same time surrounded Webb. In an attempt to avoid the visible pool of water in the "V," Webb stepped off of one of the mats and tried to step onto a tile that appeared to her to be dry. But in fact the tile was wet. As she stepped onto the tile, she slipped and fell forward, injuring her knees, arms, and shoulders. A store employee witnessed the fall.
Webb brought this action against Dick's Sporting Goods. In Webb's discovery deposition, she acknowledged that there were a number of fellow customers entering the store at the same time, which made it difficult for her to avoid the pool without pausing momentarily and waiting for people to pass. Webb acknowledged that her shoes were wet and that the lighting in the store was bright. Webb also admitted that had Dick's Sporting Goods placed a sign near the entrance to warn of wet floors, the warning probably would not have dissuaded her from entering the store.
Dick's Sporting Goods moved the trial court for summary judgment, asserting that the wet floor causing Webb's injury was an open-and-obvious condition, which barred Webb's claim because the open-and-obvious condition eliminated any duty potentially owed to Webb. The trial court agreed with the position of Dick's Sporting Goods, ruling that there was no duty to eliminate or warn of the water because of its open-and-obvious nature.
Webb appealed to the Court of Appeals. During the pendency of the appeal, we rendered McIntosh. McIntosh, emphasizing a landowner's unwavering general duty of reasonable care, sought to modernize and clarify our jurisprudence involving open-and-obvious hazards. Reversing the trial court in this case, the Court of Appeals relied heavily on McIntosh to hold that (1) Dick's Sporting Goods had a duty to take reasonable steps to eliminate or reduce open-and-obvious hazards and (2) whether Dick's Sporting Goods satisfied that duty was a fact-question for the jury.
On appeal, Dick's Sporting Goods argues the trial court properly granted summary judgment because Webb presented no evidence to show an affirmative duty either to warn of or to remedy the pooled water was owed her. Webb responds that the injury she sustained was foreseeable by Dick's Sporting Goods and, as a result, the store was required to exercise reasonable care in maintaining its premises. We agree with Webb.
Because this case was decided on a motion for summary judgment, we must first review the applicable standards of appellate review for such cases. Summary judgment is an extraordinary remedy to be used only "to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at trial warranting a judgment in his favor against the movant."
The review of summary judgment on appeal does not involve fact finding. Only legal questions must be resolved.
Traditionally, as the trial court found, "land possessors cannot be held liable to invitees who are injured by open and obvious dangers."
In McIntosh, this Court moved away from a rote application of the former rule and adopted Section 343A of the Restatement (Second) of Torts, holding a defendant liable for harm resulting from an open-and-obvious condition if the harm could be anticipated, the plaintiff's knowledge of the condition or the obviousness of the condition notwithstanding. Despite the groundbreaking nature of our decision in McIntosh, we did not alter what is actually required to find an open-and-obvious condition. That is to say, McIntosh altered the treatment of plaintiffs bringing claims involving open-and-obvious dangers; but it did not alter what actually constitutes an open-and-obvious hazard. Post-McIntosh, an open-and-obvious danger is what it was pre-McIntosh.
Simply put, the case before us does not present an open-and-obvious hazard. An open-and-obvious condition is found when the danger is known or obvious. The condition is known to a plaintiff when, subjectively, she is aware "not only... of the existence of the condition or activity itself, but also appreciate[s] ... the danger it involves."
In entering the store, Webb certainly encountered an open-and-obvious hazard. The pool of water in the center of the mat "V," as well as the soaked condition of the mats themselves were both known and obvious to Webb. According to her own account, the "V" was clearly visible to Webb.' And she appreciated the danger, evidenced by her attempt to step around the pool of water.
Webb departed from the mats in an attempt to avoid the puddle and took a small step — approximately fifteen inches-onto a nearby tile. In doing so, Webb was confident the nearby tile was dry because it appeared to her to be dry. But to her shock,
Furthermore, a reasonable person in Webb's position, exercising ordinary care, may not have noticed the condition either because of the inherent difficulty of detecting moisture on a tile floor. A reasonable person seeking to avoid the puddle might have stepped off of the mats because the surrounding tiles appeared to be dry. This case does not present a situation where the plaintiff is arguably distracted or where the plaintiff arguably could have, by exercising reasonable care, detected a hazardous condition. Here, because of the appearance of the tile and the water, the condition was not easily perceptible without closer inspection beyond the exercise of reasonable care. Again, Webb testified that she looked at the tile and in the instant before taking action was unable accurately to perceive the condition of the tile. Reasonable care does not require more of an invitee. As a result, the wet tile was not known or obvious.
It is important to point out that this opinion should not be read to create a
Generally speaking, a landowner is not exempt from the overarching duty of reasonable care that pervades our negligence law. "The concept of liability for negligence expresses a universal duty owed by all to all."
As McIntosh makes clear, Dick's Sporting Goods, as a possessor of land, has a duty to maintain reasonably safe premises for its patrons. This duty involves the responsibility to "discover unreasonably dangerous conditions on the land and either correct them or warn of them."
Under the circumstances present in this case, with water being tracked in as a result of the natural conditions outside, we find Lyle v. Megerle to be analogous. In Lyle, Mrs. Lyle entered a local butcher shop where, "[a]fter a season of snow and cold weather," "snow had been melting throughout the day," and the "slush had been tracked in by customers."
The Lyle Court disagreed with the trial court. In its opinion, the Court noted that a defendant is "under the duty of exercising ordinary care to have the floor where the plaintiff fell in a reasonably safe condition for her use."
We see no meaningful distinction between Lyle and the facts of this case. Dick's Sporting Goods is undoubtedly subject to a duty of reasonable care and to maintain the premises in a reasonably safe condition, as was the butcher shop in Lyle.
Accordingly, under our established case law, Dick's Sporting Goods had an affirmative duty to maintain the premises in a reasonably safe condition. So the trial court erred when it found that Dick's owed no duty to Webb as a matter of law. Webb was allegedly exposed to an unreasonable risk of harm that was fully foreseeable to Dick's Sporting Goods.
Dick's Sporting Goods argues that it is not liable even if it had a duty to Webb. Although we do not need to address some of the arguments presented because they deal with liability under the open-and-obvious doctrine, we do reject the argument that the water on the floor was not correctable and, therefore, there was no breach of an applicable duty. Repeatedly, Dick's Sporting Goods claims liability should not attach because Webb has offered no evidence of any steps that it could have taken to remedy the hazard. To defeat summary judgment, a plaintiff is not required to provide a detailed explanation for how the defendant could fix the hazard. Furthermore, reasonable care does not require the hazard to be fully remedied.
The actions taken by Dick's Sporting Goods belie the claim that the hazard was irremediable. For example, Dick's Sporting Goods attempted to remedy the hazard with the use of mats. Webb testified that the store could have done numerous things to correct the problem, including putting the mats together, extending the mats, or putting a heater or fan nearby. Whether or not the simple use of mats — without maintaining watch over them or making sure they continued to perform their intended function adequately — was sufficient to satisfy the duty of reasonable care owed by Dick's Sporting Goods, is a question for
Additionally, Dick's Sporting Goods repeatedly argues that Webb was aware of the water on the floor. The well-known physical properties of water may serve as an indicator that surrounding tiles may be wet, but the current state of the record refutes the notion that Webb was aware of any water spreading to nearby tiles.
Dick's Sporting Goods also points out that Webb could have waited for other customers to pass and then continued on the mats rather than stepping onto the adjacent tile. Although this is a valid point, it does not weigh on whether Dick's Sporting Goods has a duty. A duty most certainly exists. Instead, Webb's decision to abandon the mats weighs on comparative fault, which is an issue more properly resolved by the jury rather than via summary judgment. We concede that, as Dick's Sporting Goods argues, Webb could have endured a brief delay and allowed fellow customers to pass in order to continue walking on the mats. But a plaintiff's failure, when deciding among various behaviors, to elect arguably the most reasonable option does not warrant summary judgment for the defendant. Adopting a debatably less reasonable alternative course of action may result in a finding of negligence against the plaintiff, but the mere finding of negligence does not bar her claim under our comparative negligence regime. To hold otherwise would resurrect contributory negligence.
"A customer in a store may assume that the floor will be free from obstructions of a dangerous nature and from a slippery spot, although he may not walk blindly, irrespective of obvious danger."
We affirm the Court of Appeals and remand the case to the trial court for further proceedings. Dick's Sporting Goods had an affirmative duty to Webb. Whether Dick's Sporting Goods breached that duty is an issue of material fact for the jury to decide.
SCOTT, J., Concurring in Result Only:
For the reasons expressed in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, No. 2011-SC-000554-DG, 2013 WL 6134212 (Ky. Nov. 21, 2013), I concur in result only as this truly was a fall caused by a "hidden defect" and thus, would have been protected from application of the "open and obvious" danger rule anyway, were it still the law. See Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 368-70 (Ky.2005); see also Estep v. B.F. Saul Real Estate Inv. Trust, 843 S.W.2d 911 (Ky.Ct.App.1992). Thus, I would stay with the old rule and, thus, concur in result only.
CUNNINGHAM, J., joins.