"Open & Obvious" defense abolished in Kentucky

For years, Kentucky judges have dismissed premises liability cases when they believe, in hindsight, that the hazard was "open and obvious."  A decision issued last week by the Kentucky Supreme Court abolished that defense, holding that the "open and obvious" defense conflicts with the doctrine of comparative fault, which Kentucky has followed for decades.

Now, slip and fall claims will be treated the same as other personal injury claims.  At trial, the jury will consider the circumstances of the accident and allocate fault for the accident as they deem appropriate.  Thus, if the jury finds the injured person and the landowner equally at fault, (50% / 50%), the injured person can still recover half of his medical expenses, lost wages and compensation for pain and suffering.

The case is Kentucky River Medical Center v. Irene McIntosh, 2008-SC-000464-DG, issued August 26, 2010. 

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