By J.A. Sowell, Attorney
English, Lucas, Priest and Owsley, LLP
Snow is beautiful when you’re tucked inside with hot chocolate and have nowhere to go. But that’s not the case for most of us. You may have a doctor’s appointment, work duties or errands to run that demand you leave the house before the snow is gone.
In most cases, businesses do a nice job of getting out and clearing snow and ice from sidewalks and steps to keep their own employees and customers safe. You might wonder what your own duties are at home or at your business. Are you required to clean your sidewalks? What about your steps?
This depends on where you live and whether or not local officials have weighed in on the matters. In Lexington, city officials reminded residents to clear sidewalks or they could be fined. This was following the lingering and severe winter weather Kentucky suffered in 2015.
That same winter, the U.S. Postal Service issued a statement telling postal customers they may not receive mail unless they clean sidewalks and stairs leading to their mailboxes.
So, in summary, clear your sidewalks of ice and snow. It’s the right thing to do, and it helps everyone out.
Sidewalks can still be icy
But what happens if the property owner misses a spot, and you fall? Can you sue?
That depends on a lot of factors.
The first thing to know is that if you’re venturing out when snow and ice are still present, you’re assuming some reasonable risk. But it is also a property owner’s responsibility to ensure that the paths to the entry of the business are as clear of ice, snow and any other hazards as possible.
The Kentucky case Standard Oil v. Manis, 433 S.W.2d 856 (Ky.1968) used to be the most commonly cited case when discussing outdoor trip and fall hazards and whether a landowner could be liable for any injuries arising from that hazard. In that case, the Supreme Court of Kentucky stated “that natural outdoor hazards which are as obvious to an invitee as to an owner of the premises do not constitute unreasonable risks to [the invitee] which the landowner has a duty to remove or warn against.” In other words, the existence of any open-and-obvious condition of which was foreseeable eliminated a landowner’s duty of care.
Therefore, if you saw ice, you stepped on that ice knowing that it was there, and you fell, then in all likelihood your injuries were your responsibility.
Changes in the law
Now, however, Kentucky has adopted comparative fault principles and the open-and-obvious doctrine no longer eliminates a landowner’s duty of care. Instead, the open and obvious nature of a hazard is simply one of multiple factors to be considered when determining whether a landowner breached a duty of care.
In Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), the Kentucky Supreme Court revisited the issue of the open-and-obvious doctrine and held that while obviousness of a danger was traditionally a question of whether or not the landowner had a duty, in light of comparative fault principles, it should now go to whether or not the landowner breached that duty. As opposed to merely labeling a danger as obvious and then denying recovery altogether by determining that the landowner had no duty of care, “courts must [now] ask whether a land possessor could reasonably foresee that an invitee would be injured by the danger.” Therefore, a landowner cannot ignore his or her duty of care to invitees simply because there was a danger on his or her property and that danger was open and obvious to invitees. If the landowner could reasonably foresee that the danger would injure an invitee, the landowner could still be liable irrespective of the obviousness of that danger.
In Carter v. Bullitt Host, LLC, 471 S.W.3d 288, the Kentucky Supreme Court furthered this new rule to encompass naturally occurring outdoor hazards or dangers. Accordingly, things such as ice or snow, while naturally occurring, can still result in a landlord’s breach of duty of care regardless if the ice or snow are obvious dangers.
If the property is dark – let’s say the lights outside the store aren’t on, and it’s night, and the business is open – and there is ice that you can’t see, and you fall, chances are, the expenses associated with your injuries should be paid by the store or its insurer.
For residential properties, the same standards would apply, but it largely hinges on the invitation. If you invite friends over to your home and the path to your door is covered in ice and you haven’t attempted to remedy that, then yes, you probably will be liable.
Keep in mind, though, that what we are offering in this blog post is NOT legal advice, and every situation is different. If you are involved in a slip-and-fall case, you need assistance from an attorney to determine if you have a viable case.