Rhetoric tips from the Kentucky Supreme Court: "Open and obvious" is out, "conspicuou
The Kentucky Supreme Court has reminded jurists and attorneys that comparative fault is the law (KRS 411.182), and that we should forget about the antiquated rule of "open and obvious" as complete defense to tort claims. The vehicle for making these suggestions was Grubb v. Smith and was handed down on March 23, 2017 of this year in 2014-SC-000641-DG.
The majority explains, "The open and obvious rule came to be applied in much the same way as contributory negligence: as a rule of law whereby courts, by labeling a condition on the property "obvious," in effect precluded jury consideration of the condition's reasonableness. That, as our recent cases have tried to make clear, is a problem." The case stems from a personal injury action brought in Clay County after Mrs. Grubb tripped and fell injuring herself while walking outside a Speedway store. She alleged Speedway and its manager failed to warn her of the dangerous condition and failed to maintain the premises in a safe manner. The jury awarded her over $200,ooo. Much activity occurred at the Court of Appeals and the Supreme Court thereafter. The Court of Appeals mistakenly ordered the case to be remanded and for a defense verdict to be entered. The Court of Appeals surprisingly struggled with interpreting our comparative fault law.
At the Supreme Court the matter was clarified. Justice Wright wrote separately to, "simply to ask the bench and bar to cease using the phrase open and obvious hazard to describe a dangerous condition that is or should be readily apparent. Although the phrase doubtless has descriptive value, that value is swallowed by its tendency to perpetuate an ongoing blurring of the correct inquiry our modern comparative-fault regime now calls for. Open and obvious is a legal term of art invoking the now-defunct common-law doctrine immunizing premises owners from liability for injuries sustained as a result of such hazards. The notion that it might be divorced from its doctrinal meaning and used as any other adjective phrase is a pipe dream. Instead, I would suggest employing more benign phrasing to describe such dangerous conditions—call them, say, conspicuous and apparent hazards, or something similar. While this word choice might not have the same rhetorical appeal as the assonant and familiar "open and obvious," it will more than make up for that in promoting clarity in arguments and analyses going forward."
I hope jurists and attorneys alike take heed of this good advice.