Opinion
NO. 2012-CA-001711-MR
08-09-2013
CHRISTINE STINSON APPELLANT v. WAL-MART STORES EAST, LP APPELLEE
BRIEF FOR APPELLANT: James E. Davis Mount Sterling, Kentucky BRIEF FOR APPELLEE: Palmer G. Vance II Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 10-CI-00905
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, DIXON AND STUMBO, JUDGES. DIXON, JUDGE: Appellant, Christine Stinson, appeals from an order of the Clark Circuit Court granting summary judgment in favor of Appellee, Wal-Mart Stores East, LP, in this premises liability case. For the reasons set forth herein, we reverse and remand the matter to the circuit court for further proceedings.
On December 9, 2009, Stinson and her daughter had gone to the Wal-Mart store in Winchester, Kentucky, to do some Christmas shopping. As Stinson approached the exterior automatic sliding doors, one of the doors "broke out," causing it to swing out and hit Stinson's right wrist. As a result of the incident, Stinson allegedly suffered injuries that required physical therapy and will possibly require surgery in the future.
On December 9, 2010, Stinson filed an action against Wal-Mart in the Clark Circuit Court claiming that she was injured as a direct and proximate result of Wal-Mart's negligent maintenance of the premises. In May 2012, Wal-Mart filed a motion for summary judgment arguing that Stinson's claims were barred by the open and obvious danger doctrine. Subsequently, on October 12, 2012, the trial court entered an order granting summary judgment in favor of Wal-Mart and dismissing Stinson's action. She thereafter appealed to this Court as a matter of right.
Our 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). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. The trial court must view the record "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 v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id.
We feel it incumbent to note at the outset that although the parties herein argue whether or not the trial court properly found that the open and obvious danger doctrine barred Stinson's claims, we do not have any basis for determining whether the trial court, in fact, relied upon that doctrine. In its order granting summary judgment, the trial court provided no basis for its decision but merely stated that Wal-Mart's Motion for Summary Judgment is granted [and] all claims of the Plaintiff are dismissed with prejudice." Further, the hearing on the summary judgment motion was apparently not recorded. It is, of course, not strictly incumbent upon the trial court to make findings of fact and conclusions of law when rendering summary judgment. See Allen v. Martin, 735 S.W.2d 332 (Ky. App. 1987). However, in this case, its failure to do so has left this Court to merely speculate as to the reasoning that supported summary judgment. When a motion for summary judgment is granted, as in this case, without any indication as to the specific facts and rules of law supporting the court's decision, it is difficult, except in the simplest of cases, for an appellate court to review such a decision. "The absence of reasons may also often prejudice the reviewing court's view of the correctness of the decision below." United States v. Woods, 885 F.2d 352, 354 (6th Cir. 1989).
On appeal, Stinson argues that because issues of material fact remain to be decided in this case, the trial court's summary judgment was premature and inappropriate. Those issues include whether the breakout feature of the sliding doors was an open and obvious danger and whether she exercised the care necessary for her own safety as an invitee. She points out that in Wal-Mart's motion for summary judgment, it argued that any danger from the automatic doors was open and obvious because: (1) the manner in which they slid open and closed was something that Stinson was aware of, having passed through such doors in the past; (2) the doors displayed a warning urging individuals to use caution in approaching because the doors could automatically open or close; and (3) Stinson was not distracted as she approached the doors. However, Stinson argues that the issue is not whether the sliding functions of the door were open and obvious but whether the breakout feature, which caused the door to leave the track and swing open, was an open and obvious danger of which she should have been aware.
Wal-Mart defends, as it did below, that the sliding doors were functioning properly and that any dangers associated with their operation were open and obvious. Furthermore, Wal-Mart asserts that the store's security video is indisputable evidence that Stinson placed her arm on the moving door, in violation of the posted warning, causing it to break out from its track. As such, Wal-Mart contends:
Stinson admits she was specifically warned that the door could move without warning and she should exercise caution in approaching the door. Rather than heed the warning, Stinson placed her arm on the closing automatic door when there was absolutely no reason for her to so do. In placing her arm in the zone of danger, Stinson obviously took an unreasonable risk . . . . It is immaterial whether the resulting harm was that the door closed on Stinson's arm (which it did not) or activated a safety mechanism that caused the door panels to swing open. . . . Had Ms. Stinson heeded the warning, the alleged incident would not have occurred. In this case, there is simply no evidence from which a jury could conclude that the danger posed by placing one's arm on a clearly-visible sliding door in violation of a posted warning is anything other than open and obvious.
Having thoroughly reviewed the security video, we find Wal-Mart's assertion that Stinson placed her arm on the door causing it to break out of its track dubious at best. The video camera was located inside the vestibule at an angle that depicted what was occurring as customers entered the store. At the moment the door breaks away and swings open, there is another customer partially blocking the view of Stinson, making it virtually impossible to determine exactly what Stinson's position was in relation to the door. Whether Stinson touched the door and, if so, whether that caused the door to break out certainly creates a genuine issue of material fact.
As a general rule, an owner or possessor of land has a duty to protect an invitee from physical injuries caused by dangerous conditions on the property, whether known or unknown to the invitee. See Restatement (Second) of Torts § 343 (1965). No one disputes that Stinson was an invitee as she was a person who was "invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Id. § 332(3). Nevertheless, certain exceptions narrow the coverage of this rule, including the "open and obvious danger" doctrine, which provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Id. § 343A(1).
Prior to our Supreme Court's recent decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 389 (Ky. 2010), Kentucky followed the position of the previous Restatement that land possessors cannot be held liable to invitees who are injured by open and obvious dangers. Restatement (First) of Torts § 340 (1934). See also Johnson v. Lone Star Steakhouse & Saloon of Kentucky, Inc. 997 S.W.2d 490, 492 (Ky. App. 1999); Corbin Motor Lodge v. Combs, 740 S.W.2d 944 (Ky. 1987). In McIntosh, however, the Court modified Kentucky's "open and obvious" doctrine of premises liability and adopted the modern trend as expressed in Restatement (Second) of Torts §343A (1965). As a result, the '"open and obvious danger' is no longer a complete defense for the landowner but is now limited by the language of the Restatement that 'unless the possessor should anticipate the harm despite such knowledge or obviousness.'" As the court noted:
The lower courts should not merely label a danger as 'obvious' and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable. Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious.McIntosh, 319 S.W.3d at 392. In essence, the Court recognized that under the modern comparative fault doctrine, which has been adopted in Kentucky, a jury should evaluate the comparative fault of the parties in such cases. Id.
However, we need not reach the McIntosh analysis of comparative fault because we conclude that the breakout feature of the sliding doors was not an open and obvious danger. For a condition to be "open and obvious" it must be both known and obvious. A danger is "known" when one not only has knowledge of the existence of the condition, but also appreciates the danger it involves. See Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 367 (Ky. 2005). Although Stinson acknowledged having visited the store on previous occasions and was familiar with the sliding doors, the record is devoid of any evidence that she was aware of the breakout feature of the doors.
Furthermore, there is no evidence that the danger associated with the doors' breakaway feature was obvious. A danger becomes "obvious" when "both the condition and the risk are apparent to and would be recognized by a reasonable man in the position of the visitor exercising ordinary perception, intelligence, and judgment." Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 529 (Ky. App. 1969). Based on this definition and under the particular facts of this case, the condition and the risk created by this feature of the doors would not be obvious to a reasonable person in Stinson's position.
In all, this Court finds that the breakout feature of Wal-Mart's doors was not an open and obvious danger. Further, even if the doors created an open and obvious danger, Stinson's claims would not be automatically barred without further analysis under McIntosh. Accordingly, we reverse the judgment of the Clark Circuit Court and remand this case for a jury trial on Stinson's claims.
ALL CONCUR. BRIEF FOR APPELLANT: James E. Davis
Mount Sterling, Kentucky
BRIEF FOR APPELLEE: Palmer G. Vance II
Lexington, Kentucky