Teresa Grubb v. Roxanne Smith

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MODIFIED:` AUGUST 24, 2017
RENDERED: MARCH 23, 2017
TO BE PUBLISHED

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Ol\l 133me FROM COURT OF APPEALS
V., . CASE NO. 2011-CA-OOO223-MR
CLAY CIRCUIT COURT NO. OS-CI§OOOSS

TERESA GRUBB AND
RANDY GRUBB

ROXANNE SM-ITH ` _ . APPELLEES
AND '

SPEEDWAY SUPERAMERICA LLC

'OPINION OF TI-IE COURT BY JUSTICE HUGI-IES
REVERSING AND REM.ANDING

This case has had a long procedural history, including two attempted
removals to federal court, two trips to the Court of Appe`als, and now a second
visit to this Court, but it began life as, and remains, _a fairly straightforward
personal injurj suit arising from awii`ebruar-y 1, 200-7. trip-and-fall at the
Speedway SuperAmerica filling-station in Manchester, Kentucky. In the
ensuing 2_010 bench trial, the Clay Circuit Court found for Plaintifis, Teresa
Grubb and her husband Randy Grubb, and against Speedway Sup`erAmerica
LLC (Speedw'ay), the store’s owner, and Roxanne Smith`, the store’s manager at'

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the time of the accident (collectively “Defendants”). The trial court awarded the

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Grubbs some $200,`000 damages, including an award of $17_5,.000 to Teresa for
pain and suffering. `

On appeal, the Court of Appeals,_ invoking the common-law’s open and
obvious doctrine, reversed and remanded for entry of a defense judgment This § .
Court granted the Grubbs’ motion for discretionary review. _Noting our then
recent attempts (in such cases as Kentucky River Med. Ctr. v. McIntosh, 319
S.W.3d 385 (Ky. 2010); Dick’s Sporting Goc)¢:l.'sl v. Webb, 413 S.W.3d 891 [Ky.
2013); and Shelton v. K`entucky Easter Seals So`c. Inc.; 413 S.W.Sd 901 (Ky.
2013)) to modernize the open and obvious doctrine and to harmonize it with
our tort law’s shift to a regime of comparative negligence, we remanded to the
Court of Appeals for reconsideration in light of our recent precedent On
remand, the Court of Appeals panel found its prior ruling consistent with our
recent cases and so stood by its original determination that the Grubbs’ claims
failed in their entirety.

~We again granted the Grubbs’ motion for discretionary review, and
because we agree with them that the Court of Appeals panel read McIntosh and
its progeny too narrowly, we reverse the panel’s ruling. Our reversal reopens
certain issues the panel’s ruling rendered moot. Ordinarily, we would remand d
the matter to the Court of Appeals for its consideration in the flrst instance of
those now resurrected issues. Given the long delays the parties have already
endured and the fact that those issues have been briefed by the parties,
however, we depart from our usual practice and address additional issues

concerning the liability of store manager Roxanne Smith, the comparative fault

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of Teresa Grubb:, and the trial judge’s denial of a post-judgment motion to
recuse. The upshot is our conclusion that the trial court erred by failing to
consider whether,Teresa Grubb shared responsibility for the accident, and, in
light lof certain undisputed facts, by failing to find that she did. We further
conclude‘that the trial court erred in finding Smith jointly and severally liable
with Speedway on the Grubbs’ claims._ Finally, We affirm the trial`court’s denial
of the twelfth-hour recusal motion. Accordingly, we reverse and remand this
case for further proceedings consistent With our Opinion.

RELEVA.NT -FACTS

According to several witnesses at_ trial, including Teresa, at about 8:30
p.m. on February 1, 2007 , she exited the convenience-store portion of the
Speedway filling station in Manchester and was walking back to her car after
she and a friend had paid for gasoline and purchased beverages. Teresa
caught her foot in an eroded patch of asphalt in the middle of the driveway
between the station’s two parallel gas-pump islands and fell. The fall_resulted
in a broken ankle, a wrenched` knee, and burns from the hot coffee_Teresa had
just purchased.

Teresa’s testimony, the testimony of eye witnesses to the accident, and
the testimony of Teresa’s husband all tended to establish that Teresa
experienced significant pain at the time of the accident and during its
immediate aftermath. Teresa and her husband testified that then and
continuing through the early stages of her recuperation, Teresa was to a large

extent incapacitated and was forced to rely heavily on her husband for personal

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assistance and for household maintenance And even after her ankle had
healed [which= her physician testified occurred within a year of the accident),
Teresa continued t_o experience discomfort when she walked and swelling in her
ankle if she stayed on her feet for extended periods. She testified that she was
no longer able to wear high-heels, to go dancing, or to ride recreational
vehicles, something she and her husband had enjoyed ldoing together. Her
physician testified that those residual consequences of the injury could well
prove permanent -I-Iospital, physician, and pharmacy records established that
Teresa incurred medical expenses of slightly less than $5,800.

For these losses_the expenses incurred, Teresa’s pain and -suffering, her
lostabilities and enjoyments, and her husband’s lost consortium-the Grubbs
sought $2 million from Speedway and its store manager Smith. According to
the Grubbs, by opening the premises for business purposes Defendants
incurred duties tonensure that the premises were reasonably safe for business
invitees such as Teresa. vDefendants had breached those duties, the Grubbs
maintained, by failing to fix in a timely manner the eroded asphalt that tripped
Teresa up.

Smith testified that she began working at the Manchester store in
October 2004 and was promoted to manager in October 2006, some three or
four months prior to Teresa’s accident. Smith acknowledged that her
employment duties included inspecting, at regular intervals, the store’S exterior
premises; policing them for trash and rubbish; sweeping the walkways; and

reporting to the .“Store support” office, via an email, any “large cracks and

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potholes” in the gas-pump and parking areas. “Store .support,” according to
Smith, was responsible for referring such reports to a repair person._ Smith
also acknowledged that she had a budget of up to $100 per day for_ such
immediate necessities as “replacing a burned out light bulb,” but she denied
having the authority, much less the responsibility, either to make driveway
repairs on her own or to contact a repair person directly without going through
“store support.” Smith further testified that while she was familiar with the
worn patch of asphalt by the drain_she saw it at least once every day, every
time she emptied out a bucket of mop water_She had not reported it to “store
support,” because in her view it was not hazardous, not the sort of “large crack
[or] pothole” Speedway wanted her to report.

Other employees testified similarly.__ They knew from emptying mop
buckets that the asphalt by the drain had worn, but the worn patch did not
strike them as hazardous Employee testimony also tended to establish that
the drain area was well lit in the evenings; was not obscured by cars parked at
the gas pumps; and, although there was, because of the pumps,` heavy
pedestrian traffic in that area, the Worn asphalt had not caused any other
customer to trip or even to complain.

Photographs introduced by both sides showed that the driveway area
directly between the two pump islands was surfaced with concrete, and, as
noted, testimony indicated that that area was also canopied and lighted.
Beyond the concreted area between the islands, the driveway/ parking portion

of the premises was surfaced with asphalt.. The drain Was located about

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midway between the pump islands and toward one end of the concrete portion
of the diive. It was set into the drive so that its cover was flush with the
surface of the concrete, One side of the drain lay near the concrete / asphalt
boundary, and it was there, the photo exhibits show, near that side of the
drain, that an irregularly shaped patch of the asphalt_a foot square, perhaps,
more or less_had weathered and eroded. The erosion varied from just a
fraction of an inch to what appears to be, in a small area, at least two inches
and probably more. One photograph shows erosion through the top layer of
asphalt to a second or even third layer below.

Defendants maintained that they had no duty to do anything about this
asphalt area because itwas in plain view_“open”_and the risk it posed to
pedestrians, such las it was, was apparent_“obvious_.” Under the common
law’s “open and obvious” doctrine, they argued, such conditions do not pose an
“unreasonable” risk of injury to business invitees-the invitees being well able
to protect themselves from such risks-and thus do not conflict with the
premises owner’s duty to ensure that the premises are “reasonably” safe.
Smith maintained, additionally, that her limited"employment duties as store
manager did not subject her to liability to the Grubbs.

The trial court, the finder-of~fact in this bench trial, rejected Defend_ants’
characterization of the area where Teresa Grubb fell. In its view, as expressed
in the “Findings” portion of its Judgment, the photo exhibits showed a-

significant tripping hazard, a “hole” which Defendants should have realized

;might go unnoticed by an invitee. The court found that the hole rendered the

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premises unreasonably unsafe and thus triggered Defendants’ duty to mitigate
the risk. Their failure to do so constituted a breach of their duty, according to
the court, and that breach caused injuries to Teresa and her husband,
including What the trial court deemed Teresa’s “significant and prolonged” pain
and suffering

In the “Conclusions” portion of its initial Judgment, the trial court held _
that Speedway was vicariously liable for the “acts and/ or failure to'act on the
part of its employees, Roxanne Smith, et al.,_ under the Doctrine of Respondeat
Superior.” The court also held that Speedway’s liability rendered moot “the
individual claim against Roxanne Smith.” In a Kentucky Rule of Civil
Procedure [CR] 59.05 motion to alter or amend, Speedway (without, it .appears,
acknowledging a potential conflict with Smith) objected to the apparent
inconsistency of- finding it vicariously liable for Smith’s¢_ actions when her direct
liability would never be conclusively determined

Following the motion, the trial court amended its Judgment to find that
Smith’s duty to inspect, sweep, and remove trash from the premises together,
with her $100/ day necessities budget “constituted a level of supervision and
control of the premises that created on the part of the Defendant, Roxanne
Smith, the legal duty of a possessor of the property in question to business
invitees.” The court further found that Smith breached that duty and she Was
jointly and severally liable for the $200,762 in damages awarded to the

Grubbs.

At the same time that Speedway filed its motion to alter or amend,
Speedway and Smith filed a motion “for recusal and a new trial.” Defendants
moved the trial judge, Judge Oscar House, to order a new trial and to recuse.
The recusal motion was premised on allegations aired (after the trial in this
case) in the course of a'criminal trial in the United States District Court for the
Eastern District of Kentucky. _According to Defendants, those allegations
linked Judge House and the Grubbs’ attorney, Yancey White, to a Clay County,
Kentucky vote~buyi-ng conspiracy, which in turn lent an air of impropriety to
Judge House’s ruling on a matter of direct interest to Mr. White, Defendants
maintained that the relationship suggested in the federal case “between Judge
House and Mr. White calls into question the rulings received by these
Defendants and other parties in similar circumstances.”

Denying that motion, Judge House opined that the unsupported
allegations mentioned during the federal trial: did not amount to the sort of
substantial evidence of impropriety or bias that justifies or requires recusal.
Furthermore, Judge House noted that while the federal court allegations were
aired in March 2010 (after the January 2010 trial in this case), Defendants
waited until after entry of the August 9, 20 10 Judgment to raise their
concerns. In the judge’s view, Defendants’ “failure to bring the matter to the
Court’s attention in a timely fashion” amounted to a waiver of whatever right to
complain they may have had. .

On appeal to the Court of Appeals, Defendants challenged the trial

court’s application of the “open and obvious” doctrine and they sought review

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regarding Smith’s individual liability, Teresa Grubb’s comparative fault, and
Judge House’s refusal to recuse. While acknowledging it was dicta, the

appellate panel deemed clearly erroneous the trial court’s conclusion that

Smith’s employment duties were such that she could be held liable to business

invitees in the same manner as the premises owner. The Court of Appeals’
main ruling was that the trial court had erred by failing to apply the “open and
obvious” rule to the clearly visible parking-lot imperfection at issue. In their
view, the imperfection was of a type so common and so universally anticipated
and observed by invitees that it could not, absent some exceptional
circumstance, give rise to the premises owner’s liability.

The panel noted that since the entry of the trial court’s Judgment, this
Court had rendered its Opinion in McIntosh, supra,l and it acknowledged that
McIntosh recognized an exception to the open and obvious rule for cases in
which, notwithstanding the hazard’s obviousness, the possessor of the
premises could reasonably foresee that an invitee would fail to avoid it. In the
panel’s view, this exception was meant to be a narrow one, limited to situations
where “it was foreseeable that the plaintiff would be distracted and not observe -
or appreciate the danger.” There being no evidence in this case of a distraction

or of any other exceptional circumstance, the panel concluded that the

1 In McIntosh, we affirmed a judgment in a favor of a paramedic who was
injured when she tripped over a curb while helping -to transport an injured person
from an ambulance into a hospital’s emergency room. 3 19 S.W.3d at 387. Our
attempt to explain why the “openness” and “obviousness” of the curb did not defeat
the plaintiffs claim launched what has become an 011-going discussion of the effect the
adoption of comparative negligence has had on contributory-negligence-related rules
such as the old “open and obvious” rule. ' '

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McIntosh exception did not apply and that under the common-law rule
Defendants weren entitled to judgment as a‘matter of law.

We granted the Grubbs’ discretionary review motion, vacated the Court
of Appeals’ Opinion, and remanded the matter to that court for reconsideration
in light of two cases subsequent to McIntosh, namely Dick’s Sporting Goods v.
Webb, 413 S.W.3d at 891, and Shelton v. Kentucky _Eqster Seals Soc. Inc., 413
S.W.3d at 901.2 As noted in those Opinions, both are attempts to refine and to
clarify McIn.tosh and further to explore and to articulate, in the context of
premises liability and the “open and obvious” rule, the seismic effects of
Kentucky’s shift to comparative fault. Specifically, Hr'len v. Hays, 673 S.W.2d
7\13 (Ky. 1984) and KRS 41 1. 182 embody Kentucky'tort law’s version of the
now virtually universal shift from the old common law’s complete defense of
contributory negligence, in its many guises, toward a new regime in which a
plaintiff’s own negligence no longer bars his or her claim.

Under the comparative-fault regime, the fact finder is tasked with
apportioning fault for the plaintiffs injuries between (or among) those
responsible, with the defendantis liability for the plaintiff"s damages

proportionate to his or her share of the fault._ The new system is designed to

2 In Dick’s Sporting Goods, the plaintiff, a customer, slipped and fell on a wet
floor just inside a retail store’s main entrance. The trial court granted summary
judgment to the defendant under the “open and obvious” rule, Upholding the Court of
Appeals’ reversal of the summary judgment, we sought to delineate the boundaries of
the “open and obvious” rule, which, we held, did not apply to the hazard in that case.

.=In Shelton, the wife of a hospital patient tripped and fell over wires along her

husband’s bedside. The hospital was granted summary judgment under the “open
and obvious” rule. Reversing, we sought to clarify why, in accord with the principles

discussed in McIntosh, the'“open and obvious” rule did not preclude recovery.

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protect defendants, including premises-liability defendants, from being saddled
with liability for the plaintiffs own negligence and thus greatly reduces
(theoretically, at least) the need for common law rules designed to limit the

land possessor’s duties of care toward the particular plaintiff. To the extent
that those old rules survive, as the Court’s discussion in McIntosh, Dick’s
Sporting Goods, and Shelton indicates, their application needs to be reassessed
and made to harmonize with the new comparative-fault system.`3 Emphasizing
the new system’s heavy reliance on jury (or fact-finding judge) apportionment of
fault, McIntosh and its progeny strongly counseled courts, trial and appellate,
not to short circuit premises liability cases by easy resort to the old-school type

of “no duty” ruling. Such rulings should henceforth be reserved, rather, for

3 Academic debate about the “duty” element in negligence law following the shift
to comparative fault has been both voluminous and intense, frequently characterized
as the “duty wars.” See Alani Golanslcl, A New Look At Duty In Tort Law: Rehabilitating
Foreseeability And Related Themes, 75 Alb. L. Rev. 227 (2011-2012] (noting W.
Jonathan Cardi 85 Michael D. Green’s use of that phrase in, Duty Wars, 81 S. Cal. L.
Rev. 671 (2008], and attempting to identify the “wars” principal battle lines and some
of its representative combatants); see also John C. P. Goldberg and Benjamin C.
Zipursky, Civil Recourse Defended: A Reply To Posner, Calabresi, Rustad, Cham,allas,
An¢:l Robinette, 88 Ind. L.J. 569 (2013] (an account of the “wars” from the point of view
of two of the major participants]. As our recent spate of premises liability cases makes
clear, we are painfully aware of these “wars” by virtue of being caught up in them.
Unlike the theorists and commentators, however, who can assume the lofty
perspective of generals high above the battlefield, we must chart our course into the
brave new post-Hilen world one case at a time. The scholarship is helpful, of course,
but any use we make of it (this includes any citations to the Restatement {Third) of
Torts, which many see as having abandoned to a significant degree the descriptive
aims of earlier editions for a role as advocate) should not be understood, absent an
express statement to the contrary, as adopting or endorsing any one or another of the
contending theories. See, Victor E. Schwartz and Christopher E. Appel, Reshaping
The Traditional Limits OfA_]j‘innative Duties Under _The Third -Restatement.Of Torts, 44 J.
Marshall L. Rev. 319 {2011)].

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classes of cases genuinely implicating public policy concerns of sufficient
weight to justify an exception to the basic premises liability rules.

Notwithstanding those exhortations, on remand the Court of Appeals
panel did not read Dick’s Sporting Goods or Shelton as extending what it viewed
as McIntosh’s narrow exception to the very alive-and-well open and obvious
doctrine. Having already determined that the McIntosh exception did not
rescue.the Grubbs’ claims, the panel readily concluded that Dick’s Sporting
Goods and Shelton did not rescue them either.4 Reinstating its prior order, the
appellate court again reversed the trial court’s Judgrnent and remanded the
matter for entry of a judgment dismissing the Grubbs’ claims.

On this second discretionary review,` the Grubbs insist that the Court of
Appeals’ application of the “old style” open and obvious doctrine misses the
point of Mcfntosh and its progeny, and amounted in this case to appellate
usurpation of the trial court’s fact-finding role. Our analysis begins with
consideration of these claims. -

_ ANALYSIS

I. Speedway and Smith Were Not‘ Entitled to a Directed Verdict Under The
Open 'and Obvious Rule.

4 In a bow, app'arently, to'Shelton’s cautioning against “no duty” rulings in
“open and obvious” cases, the Court of Ap_peals slightly reworded its ruling. It again
insisted that the pothole at issue did not pose an unreasonable risk of injury, but now,
instead of holding that the pothole did not implicate Defendants’ duty to maintain
reasonably safe premises, it held that their failure to fix the pothole could not be found
a breach of that duty. Nevertheless, in either version, the crux of the panel’s view was
that the particular hazard was not “unreasonable” because only a negligent invitee
would be injured by it. In effect, they held recovery was barred because the plainn'ff
was (had to have been] negligent-the old contributory negligence bar-_precisely the
outcome Mcl'ntosh and Shelton. sought to correct.

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To begin at the beginning, this is‘a premises liability case involving the
long-recognized subclass of “business prernises” and the duties a possessor of
such premises owes to “business invitees.” In She_lton,_we noted that in
Kentucky the general rule in such cases is, and has long b_een, that “a
possessor of land Owes a duty to an invitee to discover unreasonably dangerous
conditions on the land and either eliminate _or warn of them.” 413 S.W.3d at
909 (citing McIntosh, 319 S.W.3d at 388). Conversely, conditions lon the land
that are not unreasonably dangerous do not implicate the land possessor’s 1
duty of care, and thus injuries arising from such conditions cannot give rise to
the possessor’s liability. The Restatement (Second) of Torts, § 343 (1965). :I`he
main questions before us, then, are whether the asphalt area where Teresa
tripped did or did not amount to an unreasonably dangerous condition, and
who gets to make that determination.5

Under the old common law, the rule developed that conditions on the
land could not be deemed unreasonably dangerous if they were “known to the
visitor or so obvious to him that he may be expected to discover them.” Bonn v.
Sears, Roebuck 65 Co., 440 S.W.2d 526, 528 (Ky. 1969). “Obvio‘us,” for these
purposes, meant “that both the condition and the risk are apparent to and '

would be recognized by a reasonable man in the position of the visitor

5 The Grubbs initially posit that the Court of Appeals’ decision should be
reversed because the appeals panel addressed an issue that had not been properly
preserved. Because we agree with the Grubbs that the appeals panel’s decision must
be reversed, although for a did`erent reason, we decline to discuss the preservation
issue at this point. lt resurfaces below, however, when we turn to issues we resolve
adversely to the Grubbs.

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exercising ordinary perception, intelligence and judgment.” Bonn, 440 S.W.2d
at 529. Such “obvious” risks could not be deemed unreasonable because the
invitee could be expected to protect him or herself from them. Indeed, many of
the early cases reiterate that invitees should be expected to protect themselves,
otherwise the land possessor would become an insurer of their safety. See,
e.g., Humben‘ v. Audubon Country Club, 313 S.W.2d 405 (Ky. 1958] (citing J.C.
Penney Co. v. Mayes, 255 S.W.2d 639, 643 (1952]).

As we discussed in McIntosh, this “open and obvious” rule, while'not
necessarily derived from the more general contributory negligence rule, has
obvious affinities to it, as several old cases make clear by often referring to both
in the same breath. 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.

From United states vi carroll rowing co., 159 F;2d 169 (2n'd cir. 1947) to
the il~`t‘estate'm,eni.L {Third) of Torts: Phys. & Emot. Harm (2010) (See section 3,
Negligence), it has been widely understood that the reasonableness of a risk
involves some manner of balancing the costs or burdens of mitigating it against
the likelihood and severity of the injuries it threatens ln our law, that
determination, that balancing is ordinarily deemed a matter of fact to be
addressed by the jury. Shelton, 413 S.W.3d at 914; see also Restatement

(Third) of Torts: Phys. & Emot. Harm, § 8, Judge and Jury (20`10). As McIntosh

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and "Shelton explained, however, application of the “open and obvious” rule
tends to frustrate that intended jury function.

As we -further discussed in McIntosh, the gradual demise of contributory
negligence as a complete defense in favor of the comparative fault approach to
protecting defendants from liability for the plaintiffs negligence, as well as the
Restatemen.t (Second} of Torts’ important observation that the “open and
obvious” rule has significant qualifications6 made, or should have made, the
determination of whether an “obvious” risk-posing condition on lthe land was
reasonable or not very fact dependent again. Consequently, this shift should'
have restored the jury’s principal role in- making that factual determination.

Our McIntosh line of cases, including Dick’s Sporting Goods, Shelton, and
now Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015), reflect our
determined effort to effect that restoration and to limit holdings, at‘trial or on
appeal, that an obvious, risk-posing condition on the property is “not
unreasonable as a matter of law,?’ to those rare instances where they are
justified. For example, public policy may require that a frequently recurring
type of risk-creating condition be deemed inot unreasonable and thus excepted

from a land possessor’s general duty of care.7 Similarly, in some, albeit rare,

__ 6 Under § '343A of that Restatement, the land possessor-is not subject to liability
for obvious conditions “unless the possessor should anticipate the harm despite such
. . . obviousness.”

7 See Shelton, 413 S.W.3d, at 908 (citing Pathways, Inc. v. Hamnions, 113
S.W.3d 85, 89 (2003) for the idea that the duty determination is a policy question
addressed by the court as a matter of law and is appropriate only where the
determination will apply to a category of cases]; and see, e.g., Stan,dard Oil Co. v.
Manis, 433 S.W.2d 856 (Ky. 1968] (holding that land possessors have no duty to
mitigate the risks posed by natural accumulations of ice and snow), .and Justice

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instances summary judgment or a directed verdict is appropriate because “the
plaintist conduct in the face of an open and obvious hazard [was] . . . clearly
the only fault [sic] of his injury . . . [as] for example when a-'situation [a risk-
creating condition on the property] cannot be corrected by any means or when
it is beyond dispute that the landowner had done all that was reasonable.”
Carter, 471 S.W.3d at 297 (citing generally Shelton, 413 S.W.3d at 91 1-918).3
lf McIntosh and its earlier progeny left any doubt about our intention to
return most open and obvious cases to jury consideration, the majority’s
Opinion in Carter should lay all such doubts to rest. As the Carter Court held,
“all open and obvious hazard cases, including obvious natural outdoor hazard
cases, are subject to the comparative fault doctrine.” 471 S.W.3d at 289-90.
Since here, in our view, the Court of Appeals panel clearly violated that
“doctrine,” by substituting its view of reasonably debatable facts for that of the
fact-finder, we must reverse its decision. -
In concluding that Defendants were entitled to judgment as a matter of
law, the Court of Appeals panel suggests that this case involves either or both
of the exceptions noted above, i.e., either no rational fact-finder-co_uld deem
Teresa’s injuries the result -of anything but her own fault, or, as a general

matter of public policy, small, “everyday” paving flaws such as the one at issue

Venters’s cogent defense of that decision in his Opinion dissenting from the Court’s
recent decision in Carter, which overruled Manis.

3 See, e.g., Bonn, supra, where, in light of the proven circumstances the
plaintiffs negligent failure to observe an automobile service center’s grease pit, into
which he fell, was deemed the only pertinent cause a reasonable juror could assign to
his injuries -

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should not be deemed unreasonably dangerous With respect to the panel’s
first concern, it notes that the risk-creating condition in this case, the “hole” as
the trial court labeled it, was indeed obvious There was no dispute that it was
in plain view in a well-lit area. .F-urther, Teresa admitted that she failed to
observe the hazard, not because it was obscured or because she was
distracted, but simply because she was talking lto her friend and not paying
attention to- where she was walking9 Citing City of Maw‘ield v. Hamlet, 227 Ky.
758, 13 S.W.2d 1051 (1928), which also involved a trip occasioned by a paving
defect; the panel opined that Speedway was not obliged to anticipate that one
of its invitees “would blindly walk through its parking lo_t oblivious to common
imperfections,?’ the imperfection in this case being “.only a danger to the
unwary.” As their reliance on this old contributory negligence case might
suggest, the Court of Appeals’ ruling misses the comparative-fault point we
have labored to make since McIntosh

To be sure, “[t]here is in general no duty to anticipate and take
precautions against the negligence of another person.” Davis v. Consolidated
Rail Corp., 788 F.2d 1260, 1265 (7th Cir. 1986). Davis involved the negligence
claims of a railroad inspector (Davis} whose legs were severed when the train,
one of the cars of which he was inspecting, began moving without any warning
ljavis was himself concededly negligent, because he failed to post the blue

warning flags custom and regulation required when a train inspector

9 During Teresa’s direct examination her counsel asked, “Did you notice the
hole?” Teresa answered, “No, Iwasn’t looking at the ground or anyt_hing.”

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undertook his duties In resisting Davis’s claim that it could be deemed
negligent for not giving any warning prior to moving the train, the railroad
company cited the general rule just noted to the effect that it had no duty to
anticipate Davis’s breach of his own duty to look after himself. The Seventh
Circuit _Court of Appeals acknowledged the general rule, but explained an
important caveat.

The Court noted that in jurisdictions such as the one where-Davis’s
injury occur-red, “where the complete defense of contributory negligence has
given way to the partial defense of comparative negligence,” if “precautions

necessary to prevent an undue risk of injury to persons who are exercising d-ue

`care are omitted and a careless person is injured as a result, then . . . the

careless victim can recover some damages But he can do so, in general, only if
there was a breach of duty to the careful.” Id.

Here, of course, the Court of Appeals asserted that Speedway breached .
no duty to the careful, since the pothole “was a danger only to the unwary.”
We disagree. Teresa did not fall into a grease pit. See Bonn, 440 S.W.2d at
527. As emphasized in McIntosh and-its progeny, an obvious risk-posing
condition on the property can be unreasonable if, despite the obviousness, the
property possessor can still anticipate someone’s being injured by it. While

there was no serious dispute that the “hole” here was “obvious,” for these‘

18

"°'\.

y

purposes,10 neither was there any dispute that it was located in an area-the

. driveway directly between gas-pump islands_heavily trafficde by both

pedestrians and automobiles A reasonable fact-finder could readily have
believed that Speedway could and should have anticipated a duly cautious
pedestrian’s being distracted momentarily by a moving car or blinded `
momentarily by a car’s headlights so as to enc§ounter the pothole
notwithstanding its lobviousness. Under the comparative fault doctrine, since

Speedway could reasonably be thought to have breached its duty to the careful,

`Teresa’s claim remained viable even though by her own admission she_was

- careless11

The Court of Appeals, citing Lugo v. Ameritech Cor_'p. Inc., 629 N.W.2d
384, 389 (Mich. 2001'), another “pothole” case, also` suggested that because
potholes and other minor flaws in walkways are so common, pedestrians
should anticipate them and those minor flaws should be deemed, as a matter
_of law, not to.pose an unreasonable risk of injury. Along these lines, a number
of jurisdictions have adopted so~called trivial-defect rules, under which

pavement flaws satisfying some standard of minimalness are deemed not

10 The Grubbs’ arguments to the effect that the pothole was not “obvious”
because the defense witnesses testified that the pothole did not seem to them
hazardous does little to address the genuine issues

11 We note again that, land-possessor {and lower-court) concerns to the
contrary notwithstanding comparative negligence is not intended to, and does not in
fact, render land possessors the insurers of negligent invitees Negligent invitees still
are not entitled.to- recover for their own negligence. The difference under comparative
fault, as we noted in Carter, is only “t_hat a landowner is not excused from his own
reasonable obligations just because a plaintiff has failed to a degree, however slight, in
looking out for his own safety.” 471 S.W.3d at 298 (emphasis supplied).

19

h*`_

unreasonable12 The rationale for such rules, generally, is that, because there
is no such thing as a flawless pavement, to impose a'.requirement on land
possessors to address minor flaws “would be to place upon them too great a
financial burden.” Elsturr v. b.`Spcmgl¢=:s, Inc., 217 P.3d 450, 454 (Kan. 2009).13
Kentucky has not adopted a “trivial defect” rule, but in Shelton, as
Defendants point out, the Court noted that risks posed by obvious conditions
on the premises will sometimes absent countervailing circumstances not be
unreasonable Such a risk “‘is not unreasonable,”’ we observed, “‘if a
reasonable person in the defendant’s shoes would not take action to minimize
or avoid the risk.’” 413 S.W.3d at 914 (quoting Dobbs, The Law of Torts '§ 143,
p. 335 (2001)). One of the examples the Court gave of an open and obvious
condition that might pose only a reasonable risk was “a small pothole in the
parking lot of a shopping mall.” fd. Speedway urges us, in effect, to fashion
from this example a trivial defect rule under which all “small potholes,” at least

all “obvious” ones (such as the hole in this case) are deemed “not

12 The Ohio courts, for example, apply a “two-inch rule” to walkway defects
They presume, although the presumption is rebuttable, that any flaw less than two-
inches deep does not pose an unreasonable risk of harm. Long t). Speedway, LLC,
2016 WL 3219642 (Ohio App. 2016] [aff'irming a summary judgment for Speedway
because the “pothole” that tripped up the plaintiff in that case was, at its deepest
point, less than an inch deep). See also, Elstun v. Spangles, Inc., 217 P.3d 450 (Kan.
2009] (discussing and refusing to extend from sidewalks to parking lots Kansas’s
“slight defect” rule]; Milewski v. Washington Mut., Inc.‘, 931 N.Y.S.2d 336 (N.Y. App.
201 1) (applying New York’s “trivial defect” rule, which eschews the per se approach
and instead requires the trial court to determine, in.light of the totality of
circumstances, whether the defect at issue should be deemed trivial as a matter of
law). '

13 ij Justice Venters’s observation in his Carter dissent that public policy is
hardly served “by imposing a duty that cannot be performed.” Carter, 471 S.W.3d at
304 (Venters, J., dissenting).

20

"“‘\.

unreasonable” as a matter of law. Without some such rule, they complain, how
“may a property owner ever obtain summary judgment or a directed verdict in
Kentucky?” We are Certainly familiar With their lament, but decline the
invitation.

Even if the _Carter majority’s seeming disavowal of the very idea that
public policy'might have anything legitimate to say about open and obvious
defects (and hence land-possessor duties with respect to them) were not still
reverberating in our ears, we-would not entertain a “trivial defect” rule in this
case, Simply put, lwe cannot accept Speedway’s and the appellate panel’s
characterization of the hole at issue as necessarily “trivial.”

Speedway’s description of the pothole’s size-“a one-inch deep depression
in a well-lit area of a parking lot,”_was supported to some extent by Smith’s
testimony and by one of the photographs Defendants introduced during her
testimony. lt was contradictedj however, by the Grubbs’ testimonies, and is _
belied, as noted above, by other photographic evidence, which shows inches-
deep'erosion in some parts of the affected area through at least one layer of
asphalt

In Sl':clton, we emphasized that under the comparative-fault approach to ‘
“open and obvious”-conditions the approach we endorsed and outlined in
McIntosh, “summary judgment remains a viable concept.” 413 S.W.3d at 916.
We cautioned, however, that under that approach .thequestion of “the
unreasonableness of the risk of harm” of such a condition, will almost always

be “properly categorized as a factual one,'” i.e., that summary judgment (or

21

‘7\.

‘_ directed verdict) will be appropriate only when, under all the circumstances of

the given case, “reasonable minds cannot differ” on the unreasonable-risk
question, or “when only one reasonable conclusion [as to that question] can be
reached.” Id.

By any meaningful standard, the “trivialness” of the pothole or the
“reasonableness” of the risk in this case was subject to rational disagreement
lt was, therefore, a.question for the finder of fact.. The trial court’s finding that
in the circumstances of this case (in particular the hole’s location in a heavily
trafficked area), the relatively small hole still constituted an “unreasonably
dangerous condition on the business premises,” was not clearly erroneous, and-
thus the Court of Appeals erred when it substituted its different take on the
evidence, Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995) (“The findings of the trial
judge may not be set aside unless clearly erroneous with due regard being
given to the opportunity of the trial judge to consider the credibility of the
witnesses.”). The trial court’s factual finding prevails -

II. Store Manager Smith Should Not Have Been Found Liable to -the
Grubbs

Because Speedway and Smith are not entitled to relief from the trial
court’s Judgment on the “open and obvious” ground relied on by the Court of
Appeals, we turn to their claims based on alternative grounds Smith‘, the
store’s manager at the time of Teresa’s injury, contends that the trial court
erred by deeming her essentially a possessor of the premises, and thus liable in l
the same way and to the same extent as Speedway for the Grubbs’ damages

Defendants contend that “a manager must have complete control over the

22

-f'\¥_\

premises to be individually liable,” and by no stretch of the imagination, they
insist, could Smith be deemed to have had “complete control” over Speedway’s
premises

Although unnecessary in light of its disposition of the case, the_Court of
Appeals’ panel agreed with Smith that her position with Speedway did not give
her the sort of control and supervision over`the premises that would render her
liable as a possessor, and so concluded that “Smith cannot be'individually
liable.” Apparently concerned that Speedway’s liability hinges on Smith’s, the
Grubbs note that our law has long provided that “servants or employees may
be sued personally for alleged negligence in the course and scope of their
duties” They insist that this must be so here lest Speedway escape its
responsibilities B_y confusing the source of Speedway’s liability, the parties
[and the trial co‘urt] complicated the question of Smith’s liability, but for
reasons only somewhat different than those the Court of Appealsi panel
articulated, we agree with it that Smith should not have been found liable. The
failure of the Grubbs’ claims against Smith, however, by no means undermines
their claims against Speedway.

To begin, as noted above, under the long-standing law of this state, “a

possessor of land owes a duty to an invitee to discover unreasonably dangerous -

conditions on the land and either eliminate ori warn of them.” Shelton, 413
S.W.3d at 909. As the Restatement (Secon.d) of Torts § 328E notes, the land’s
owner is not necessarily its possessor for the purposes of this rule. See, e.g.,

Milewski v. Washington Mut., Inc., 93 1 N.Y.S.2d at 338 (explaining that “[w]hile

23

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a landlord and tenant are free to agree with each other as to which party, as
between them, will have the contractual obligation to make repairs, the tenant
may not contract away a duty in tort that the law imposes on it with respect to
third parties”). In general, rather, the possessor of premises for premises-
liability purposes is that person (or entity) in occupation of the premises (or
entitled to immediate occupation) with the intent to control them. Hill v.
Superior Prop. Mgmt. Services, Inc., 321 P.3d 1054, 1059 (Utah 2013) .
(discussing Restatement (Second) of Torts §§ 328E and 343, and stating that
“under the Restateme'nt, ‘control’ stemming from actual ‘occupation,’ . . . is the
hallmark of possessor status.”); and see Restatement (Third) of Torts: Phys. &
Emot. Harm § 49 (2012) (defining “[a] possessor of land,” in part, as “a person
who occupies the land and controls it.”). As thus understood, Speedway, the
occupier and controller of its Manchester filling station, is clearly the
“possessor” of those premises and therefore the party upon Whom falls the
possessor’s duty to maintain the premises in a reasonably safe condition,

As we noted in Dick’s Sporting Goods, moreover, that duty is non-
delegable. 413 s.vv.;>,d7 at 897, n. 16 (quoting ban B. Dobbs, et al., The raw of
Torts § 276 (2d ed-._updated 2013)); and See,' Gazo v. City of Stamford, 765 A.2d_'
505, 511-12 (Conn. 2001) (discussing a premises possessor’s non-'delegable
duty to provide reasonably safe premises).14 That means, as we recently

explained in St. Joseph Healthcare, _Inc. v. Thomas, 487 S.W.3d 864, 877 (Ky.

14 We should note that, for reasons discussed below, we disagree with the
Connecticut Supreme Court’s invocation of respondeat superior in this context

24

»`.\,'

2016), in the context -of a hospital’s non-delegable statuton duty, that while

lSpeedway can (indeed, as a corporation, it must) delegate to agents or others

the performance of that duty, it cannot delegate to others its responsibility
under the law of torts. Simply put, it remains directly, whether or not
vicariously, liable for injury~causing breaches of that duty notwithstanding that .
the breach resulted from an agent’s negligence

A very similar issue arose in the case of Devine v. Kroger Grocery &
Baking Co., 162 S.W.2d 813 (Mo. 1942), which, like this case, involved a-trip-
and~fall on the premises of a retail business In Devine, too, the injured
customer sued both the corporate possessor of the premises and the store
manager under negligence theories. A question arose whether the ju_ry’s

verdict exonerating the manager was inconsistent with its verdict finding the

` company liable. The Court explained that in this,situation the company’s

liability was not predicated solely on its vicarious liability for the torts of its
agents or employees, but also on its own_breach of its non-delegable duty to
maintain safe premises. “Others,” the Court observed,
may or may not have been negligent with respect to the condition
complained of and yet liability fastens on the appellant [Kroger] for
its wrong which does not depend on respondeat superior.
Consequently, there is no inconsistency in the jury’s verdict and
the motion in arrest of judgment was properly overruled.
162 .S.W.2d at 818. Speedway’s similar CR 59.05 motion might likewise have
been overruled here, Since it‘was not, however, we address the Grubbs’

contention that the trial court’s amended Judgment appropriately found Smith

liab le .

25

a".\

We can begin by noting that`the fact that Smith was not the “possessor”
of the premises in the same sense that Speedway is the “possessor” does not
mean that Smith has no potential liability. As the Grubbs correctly note, in
Kentucky, “[i]t- is firmly established . . . that an agent of a corporation is
personally liable for a tort committed by him although he was acting for the
corporation.” Pete_rs v; Frey, 429 S.W.2d 847 , 849 (Ky. 1968). As the
Restatement (Tl'lird} ongency puts it,

An agent’s breach of- a duty owed to the principal is not an

independent basis for the agent’s tort liability to a third’_party. An

.-agent is subject to tort liability to a third party harmed by the

agent’s conduct only when the agent’s conduct breaches a duty
that the agent owes to the third party.

\
§ 7.02. Comment b. to § 7.02 notes that an agent’s duty to a third party could
be derived from tort law, from contracts or promises of the agent intended to
benefit the third party, or from statutes designed to protect a class inclusive of
the third party.

ln the premises liability context, Restatement (Second) of Tor'ts § 387 has
been invoked as a possible source of an agent’s duty to third parties. See Hill
v. Superior Prop. Mgmt. Services, Inc., 321 P.3d at 1060-61 (addressing such a
claim). That section provides that where an “owner or possessor of land turns
over the entire charge of the land” to “an independent contractor or servant,” ‘
that person “is subject to the same liability for harm . . . as though he were the

possessor of the land.” Although the Grubbs do not refer expressly to this

section of the Restatement, something along those lines seems to underlie their

26

\.rm

contention that “Speedway’s control of the premises was exercised by and
through Roxanne Smith and its other employees.”

As the comments to § 387 make clear, however, this section
contemplates an agent or contractor (such as the property management
company, perhaps, involved in Bradford. v_. Lexington-Fayette Urban Cty.
Govemment, 2005' WL 327177 (Ky. App. 2005), to which both sides have
referred) who has “ta_ken over the entire charge of the land or building,” not
someone who has undertaken merely “to make Specii`lc repairs, or even to
inspect the land or building and from time to time to make such repairs as he
should discover to be necessary.” Smith, who did not undertake and had no
authority to make repairs, clearly did not have “the entire charge of the land or
building,” and so is not subject to the possessor’s duty under that theory.

The Grubbs do refer us to § 383 of the Restatement (Second) of Torts,
which provides that

One who does an act or carries on an activity upon land on behalf

of the possessor is subject to the same liability, and enjoys the

same freedom from liability, for physical harm caused thereby to

others upon and outside of the land as though he were the

possessor of the land.

The Grubbs apparently would read § 383 broadly as imposing a duty on
Speedway’s “employees and those persons carrying on an activity on behalf of
[Speedway] . . . to keep the passageway from the exit of [the] store through the
service area to their vehicles in a reasonably safe condition and state of repair.”

Rejecting a similarly expansive reading of § 383, the Utah Supreme Court '

noted that the commentary to the section makes such claims untenable

27

According to_the commentary “this section ‘applies only to harm done by some
act done or activity carried on upon the land,’ where ‘the rules which determine
liability for bodily harm caused by a dangerous condition created upon the
land by'persons acting on behalf of the possessor’ are stated in other sections.”
Hill v. Superior Prop. Mgmt. Services, Inc., 321 P.3d at 1061.(quoting
Restatement {Second) of Torts, § 383 cmt. c.). l

Finally, the Grubbs fall back upon the principle that “every person owes
a duty to every other person to exercise ordinary care in his activities to
prevent foreseeable injury. . . . The concept of liability for negligence expresses
a universal duty owed by all to all.” Shelton, 413 S.W.3d at 907. Without
. speculating as to how this “universal duty” might apply in these
circumstances,15 we readily acknowledge that the question of a land
possessor’s agent’s liability to third persons for the agent’s nonfeasance is quite
difficult As the parties’ citations to cases from other jurisdictions amply
demonstrate, some states still apply the old common-law rule that an agent

cannot be liable for nonfeasance,16 while others have entertained claims of

15 We do note, however, that even the Restatement (Nlird) of Torts: Liability for
Phys. 85 Emo. Ham'i (October 2016 update) retains the distinction between risks -.
created by the actor (to which the “universal duty” is usually`thought to apply], § 7,
and risks not created by the actor, with respect to which the general rule is that the
actor “has no duty of care to the other.’_’ § 37. The Grubbs’ blurring of this important
distinction obviously raises questions far beyond this case.

16 See, Edmond v. Food Lion., Inc., 895 F. Supp. 103 (E.D. Va. 1994); Harris v.
Morrison, Inc., 32 Va. Cir. Ct. 298 (1993) (dismissing, with citation to Tumer v.
Comec_ll, 159 S.E. 72 (Va. 1931), slip~and-fall negligence complaint against the
manager of a cafeteria where the alleged negligence was the manager’s failure to
“maintain” the cafeteria.); Boyce v. Wal-Mart Stores, Inc., 2016 WL 2941339 .(D. Ka.n.
2016) (discussing that under Kansas law, a store manager cannot be held individually .
liable to third parties for merely failing to perform her job duties].

28

..~\\

agent liability under the Restatement (Second) of Torts §§ 323 and 324A, the so-

n called undertaker’s doctrine, Under that doctrine, a person who “undertakes .

. . to render services to another which he should recognize as necessary for the
protection of the other’s person” is liable in certain circumstances “for physical
harm resulting from” a “failure to exercise reasonable care to perform [the]

undertaking.”17 In between these extremes, courts have considered and

l applied a number of different approaches.13

As the parties_’ resort to foreign authority indicates, Kentucky precedent
in this area is sparse. We do note, however, that our predecessor Court made
Kentucky one of the firstjurisdictions to reject the old common-law
“misfeasance/nonfeasance” distinction as a guide to an agent’s liability to third
parties, preferring a rule more like that from the Restate'ment (Third} ongency ,
quoted above, “The doctrine is settled in this Sta_te that the servant is
personally liable, whether his act be that of misfeasance or nonfeasance, when

the injury flows from some breach of a duty owed by him.” Murray v. Cowherd,

17See, Hill v. Superior op. Mgm.t. Services, Inc., 321 P.3d at 1062; Gazo‘ v. City
of Stamford, 765 A.2d=at 511; Richarcison‘v. Wal-Mart Stores Texas, LLC, 2016 WL .
3346542 (S.D. Texas 2016]. _

13 For example, see, Bryant v. Shemr’s lenderbird Mkt., 522 P.2d 1383 (Or.
1974] (reversing dismissal of negligence claims againsta contractor employed on the
premises, and referring to § 383 of the Second Restatement ofTorts); Eord v. Elsbury,
32 F.3d 931 (5th Cir. 1994) (citing Canter v. Koehring, 283 So.2d 716 (La. 1973) for the
test for determining when an agent might be liable to third parties for non-
performance of an employment duty) (Canter has been overruled by statute on other
grounds, as noted in Walls v. Amen'can Optical Corp., 740 So.2d 1262: (La. 1999]);
Reynolds v. Schuclcs Markets, Inc., 2009 WL 2259392 (S.D. Ill. 2009] (construing
Illinois law to a]low a store manager with suf§cient control over the premises to be
held liable to third parties for neglect of employment duties].

29

n,
hal

11

148 Ky. 591, 593, 147 S.W. 6, 7 (1912) (citing with special approval Haynes’
Adm’r. v. C., N.O. & T.P. Ry. Co., 145 Ky. 209, 140 S.W. 176 (191 1)).

The older cases, many of them involving allegations against railroad
employees for negligent operation of trains, do not provide any simple guidance
as to when an agent has a duty to a third party. A theme common to many of
them, however, is that liability is more apt to attach the more control the agent
has over the injury-causing implement or condition. Compare Haynes, supra
(holding that a railroad engineer could not be held accountable for a defective .

engine when he had no role in preventing the defect or in choosing whether to

' use the engine), with Murray, supra (holding that a telephone pole inspector

could be held accountable for a defective pole that fell and injured the plaintiff,
because, among other reasons, the inspector had full authority and the
wherewithal to replace defective poles when he found them).

This emphasis on control is reflected in what appears to be the only
Kentucky premises case raising these agency questions In Sabr'ston’s Adm’r v.
Otis Elevator Co., 251 Ky. 222, 64 S.W.2d 588 ('1933), a case in which the
plaintist decedent was killed as a result of a defective condition on the
premises_-an excessive space between the floor of the building and the floor of l
the elevator serving the building--the Court rejected negligence claims against

the company that installed the elevator and against a receiver appointed to

_ collect rents during the pendency of a foreclosure action. Neither defendant,

the Court explained, had any control over the manner in which the building

had been constructed or made to align with the elevator. Id. at 591,

30

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\

At least roughly in line with our cases, the Texas Court of Civil Appeals

' has noted, in one of its retail-store-slip-and-fall cases in which the

manager/ agent was accused of negligence (and found to be 'negligent),l that an
agent’s degree of control over the premises is a key element in determining
whether the agent bears any duty tol third persons. “The servant,” that court
said after referencing various Restatement provisions, n

must be the custodian, in complete charge and control of the

premises, given the duty by the master to see that the particular

defect does not exist and vested by the master with authority to
correct this defect.

”S.H. Kress & Co. r_). 'Selph, 250 S.W.2d 883, 893 (Tex. Civ. App. 1952].

Whether Selp_rh’s ultimate holding_that the manager in that case was
liable for his breach _of employment duties_remains the law in Texas has been
questioned._ Solis v. Wal-Mart'Store_s East, L.P., 617 F.Supp.2`d 476 (S.D. Tex.
2008]. But we are not so much concerned with Selph’s ultimate holding, as we.
are with its recognition that, in order for a land-possessor’s agent to 'be liable to
a third party for breach of an employment duty, the agent must-have sufficient
control over the premises to remedy the premises’ alleged defect. That
requirement is consistent with our precedent, spare as it is, and since Smith
clearly did not have that degree of control, we agree with the Court_of Appeals
that she should riot have been found liable to »the Grubbs.

Justice Venters’s Separate Opinion insists that employees, store
managers included, can be held`liable for their independent torts committed in

the course of their .employment, a point we absolutely agree with and discuss

3-1

in addressing § 7 .02 of the Restatement (Third) of Agency. As the Separate
Opinion’s lengthy, string-cite footnote shows, Kentucky law has long recognized
that an employee who, in the course of employment, breaches his or her
independent tort duty to a third-party can be held liable for.resulting injuries.
This means, for example, as those cases also show, that employees who drive
negligently in the course of employment, use tools negligently, or in some other
way actively bring about an unreasonably dangerous condition and cause
injury to a third person as a result are subject to liability therefor. The
Separate Opinion’s suggestion that our O_pinion alters in any way this well-
established law and immunizes employees from such liability is simply (and
clearly) wrong. Had Smith somehow caused the hole in the Speedway lot that
tripped ,Teresa Grubb, then her potential liability for having done so, for having
breached her “universal duty’ to act with care tgward others, would be clear.
However, it has never been the law in Kentucky that, outside a small
number of exceptions, one has a duty, much less a “universal duty,” to protect
others from dangerous conditions one has not caused or created. 41'\’estatenr1ent

(Third).of Torts § 37 (20 12). Independent of her employment relationship,

' therefore, Smith, who no one claims caused the Speedway'pothole, no more

had a tort duty to protect Teresa Grubb from that hazard than anyone else

including,. for example, a Speedway customer who saw that an inattentive

Grubb was approaching the-pothole but nevertheless said nothing to warn her.
The possessors of business premises, of course, are among _the

exceptions to the general rule of no affirmative duty. Restatement (Third)_ of

32

_..-\v

Torts: Phys. & Emot. Harm § 40(b)(3) (2012). Such persons or entities generally
do have a non-delegable, affirmative duty to protect their invitees from `
unreasonably dangerous conditions on the premises however those dangerous
conditions came to be. Shelton, 413 S.W.3d at 909. -The question in this case
becomes, therefore, to what extent, if any, does Smith’s employment
relationship with Speedway impose upon Smith an affirmative duty, in addition
to that of Speedway, to protect third persons, a duty that, outside the
employment relationship, Smith does not have. The Separate Opinion begs
this question and simply presumes that Smith’s duties are Speedway’s duties,
because Speedway must act through its agents. Thus, according to that
approach, if Smith neglects her employment duty to Speedway, and that breach
amounts to. a breach of Speedway’s non-delegable, affirmative tort duty .to an

invitee then Smith’s employment breach must also amount to a breach of

`Smith’s vicariously assumed affirmative tort duty to that third party.

The Separate Opinion thus suggests a sort of “respondeat inferior,”`-the
employee is' liable because the employer is liable.` Indeed, that Opinion would
impose _on Smith a duty beyond those borne by Speedway. As we noted in
She`lton~, premises owners,. notwithstanding their affirmative duty to provide
invitees with safe premises, generally have no duty to warn of obviously
dangerous conditions because the condition serves as its own warning
Shelton, 413 S.W.3d, at 914 (noting that “the open-and-obvious doctrine . . .
eliminates a defendant’s duty to warn because the condition is a warning in

itself.`”]. The Separate Opinion, nevertheless, would allow Smith, the employee,

33_

-.*.1

b1

to be found liable for failing to warn, even though the premises owner itself had
no such duty. But that, of course, has.never been the law, either in Kentucky

or any place else.

As noted supra,f The Restatement (Thr`rd) ongency § 7.02 reminds us that

`by itself “[a]n agent’s breach of a duty owed to the principal is not an

independent basis for the agent’s tort liability to a third party.” In earlier days,
the general rule was that the agent’s mere neglect, non-perforrnance, or
omission of an employment duty (as alleged in.this case) could never give rise
to the agent’s tort liability to a third party, a rule that persists in a small
number of jurisdictions as we have noted. ' Our predecessor Court, however,
rejected that bright-line approach, and allowed an agent’s employment
omission to be assessed for third-party tort liability on a case-by-case basis
That said, the old High_Court never attempted to articulate a rule, i.e., to
delineate the conditions that would justify departure from the old rule and
alloW.: the non-performing employee to be held liable. As this Opinion notes,
other courts around the country have made that attempt, with widely diverse
outcomes

We have not made that attempt in this case; i.e., we have not attempted
to state in a general and comprehensive way, by marshalling all the factors to .
be considered, including the public policy questions, when an employee’s
employment omission subjects the employee to third-party tort liability. The
full-scale undertaking is unnecessary in this case, because while (contrary to

the Separate Opinion’s assertions) there appears to be no Kentucky premises

34

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liability case dealing with a non-performing agent’s tort liability to a third
party, Kentucky cases from other contexts make the appropriate outcome in
this case clear enough. As noted supra, those cases limit the agent’s potential
liability to situations in which the agent was in substantial control of the
injury-causing object or condition. ln our'view,l Smith’s limited managerial
position, especially with regard to premises maintenance comes nowhere near
the control that has-. been deemed necessary191

In summary, even assuming that circumstances might exist in which a
store manager could be deemed liable to a business invitee for the manager’s
failure to perform employment duties pertaining to the business premises, the
store manager here, Smith, did not have sufficient control over Speedway’s
premises to incur that sort of liability. Her lack of liability, however, does not
undermine the Grubbs’ Judgment against Speedway itself, since Speedway was
both directly, as well as vicariously, responsible to “the Grubbs for maintaining
reasonably safe premises:

III. The Trial Judge Was Not Required to Recuse.

Another issue presented to the Court of Appeals was Defendants’
contention that the trial judge, Judge Qscar House, abused his discretion when
he denied Defendants’ post-trial motion that he recuse As noted above, after
the trial of this case in January 2010, but while the court’s judgment was still

pending, allegations surfaced in a federal criminal trial that Judge House and

19 Interesiingly, Smith was not even on duty when this incident occurred, her
shift having ended hours earlier.

35

_¢

the Grubbs’ attorney, Yancey White, were participants in a conspiracy among
prominent citizens in Clay County to buy votes and to rig local elections
Although the federal trial had taken place several months prior, Defendants
waited until Judge House entered what turned out to be, to them, an
unfavorable Judgment before seeking recusal They maintained that the
allegations floated in the federal trial created an appearance of impropriety
where, as here, Judge House presided over a case involving attorney White,
and entitled them to a new trial from which Judge House should be recused.
As previously noted, Judge House denied Defendants’ new-trial/ recusal n
motion, and the Court of Appeals declined to review that ruling because its
reversal of the Judgment on open and obvious grounds rendered it moot.

Our reversal of the Court of Appeals’ opinion reopens the recusal claim,
and the first question that reopening raises is whether we should follow our
usual practice and remand the matter to the Court of Appeals or, as the
Grubbs urge in light of the decade this case has already dragged on, whether
we should review the trial court’s recusal decision ourselves Having concluded
that the recusal question can be readily addressed, we have decided to forego a
remand and turn to the merits of the recusal motion.

Under both our Code of Judicial Conduct and Kentucky Revised Statutes
(KRS) Chapter 26A, “a judge shall disqualify in a judicial proceeding ‘in which
the judge’s impartiality might reasonably be questioned, including but not
limited to instances where: (a) the judge has a personal bias or prejudice

concerning a party or a party’s lawyer, or personal knowledge of disputed

36

evidentiary facts concerning the proceeding.”’ __Alred v. Commonwealth, 395
S.W.3d 417, 430 (Ky. 2012) (quoting SCR 4.300 Canon 3(E) and citing KRS
26A.015(2)[a]. and (e)); see also, Stopher v. Commonwealth, 57 S.W.3d 787, 794
(Ky. 2001); Petzoid v. Kessler Homes, Inc., 303 S.W.3d 467, 471 (Ky. 2010).
“‘The burden of proof required for recusal of a trial judge is an onerous one.
There must be a showing of facts of a character calculated seriously to impair
the judge’s impartiality and sway his judgment.’” "Alred, 395 S.W.3d at 430
(quoting Stopher, 57 S.W.3d at 794). The inquiry is meant to be “an objective
one, made from the perspective 'of a reasonable observer who is informed of all
the surrounding facts and circumstances.” Id. [citations omitted]. We review
recusal decisions for abuse of discretion. ' Minks v. Commonwealth, 427 S.W.3d
' ' 802, 806 (Ky. 2014) (citing Hodge v. Commonwealth, 68 S.W.3d 338, 345-46
(Ky.\ 2001)).

In A'lred, we noted that the “intensity” of.a judge’s relationship with a
trial participant, such as one of the attomeys, is an important factor in
assessing whether the judge’s impartiality might reasonably be questioned. At `
one end of the intensity continuum, we noted, 1

is the judge*s complete unfamiliarity with a lawyer, a witness[,] or a

litigant, except in a judicial setting. [ln that situation,] [n]o recusal

is required. On the other extreme is a judge’s close personal
relationship with a lawyer, a party[,] or a witness, such as a family
member or a spouse Recusal [in that situation,] is required under
lCanon 3E(l). At some point between these two extremes, a judge
and a participant in a case may have such a close social

relationship that a judge should disclose the relationship to
attorneys and parties in -a case and, if need be recuse

l

37

395 S.W.3d at 430 (citing Judicial;Ethics Opinion, 1 19, 2010 WL 7080288 at l
(2010) [internal quotation marks omitted). While not exactly calculated to clear
up thorny recusal questions these observations do provide a framework for
addressing Defendants’ concerns

Speedway and Smith contend the conspiracy allegations regarding Judge
House and attorney White that arose in the aforementioned federal trial created
an appearance either that (1) the relationship between them was “intense”
enough to call Judge House’s impartiality into question, or (2] the two men had
such a penchant for underhandedness as to call into question the judge’s
impartiality. In his Order denying a new trial and recusal, Judge House, denied
any involvement in a vote buying conspiracy or any questionable relationship
with attorney White. He further explained that, in his view, no reasonable
person would question his impartiality based only on unsupported allegations
mentioned for an entirely different purpose in the course of an unrelated
federal trial. We agree A reasonable person would want more than innuendo
and unsupported allegations to conclude that a judge’s impartiality had been
imp,ugned.

Speedway contends that there is more It answers Judge House’s
observation that it waited until after the judge’s unfavorable ruling to raise its
objection by contending that the Judgment was not merely unfavorable but
was outrageously so, so favorable to White’s client as to confirm a reasonable
person’s doubts and questions about the judge’s impartiality. Although we

agree with Speedway that an award of pain-and-suffering damages in excess of

38

thirty times the medical expenses might raise eyebrows, Speedway’s argument
is belied to some extent by the fact that it did not challenge the damages award
las excessive an unusual challenge in a bench trial, perhaps, but one our rules
certainly ailovv. See CR 59.0.1(¢1), and cf. Dennis v. _Fulkerson, 343` s.w.sd 633 `
(Ky. App. 201 1) (holding that a CR 59.05 motion to reduce a damages award
should have been granted). Notwithstanding the large pain-and-suffering
award, we remain convinced that Judge House did not abuse his discretion
when he determined that a reasonable person would not have found the
unsupported conspiracy allegations and an'unfavorable Judgment enough to
call his impartiality into question. We would observe, however; as the United
States Supreme Court noted in Lib`eberg v. Health Services Acquisition Corp.,
486 'U.S. 847 (1988], that a judge’s duty to avoid the appearance of impropriety .,
is a- continuing one. The question can be revisited on remand in this case if, in
the several years since the question first arose, additional concerns have come '
to Speedway’s notice

IV. The Trial Court’s Failure to Make Appropriate Apportionment
Findings Amounted to a Palp`able Error. .,

Finally, before the Court of Appeals, Defendants argued that should the '
_Court determine that they were not entitled to a directed verdict under the
open and obvious doctrine, the trial court’s failure to address Teresa’s
comparative fault was a'n error entitling them to a remand for consideration of
that question. The Court of Appeals, of course, ruled that Defendants were
entitled to a.directed verdict, and as with the trial court’s decision not to

recuse, it properly declined to address the issue of Teresa’s comparative fault.
39

.l

Before us, Defendants reiterate their comparative-fault claim and insist that if
we reverse the Court of Appeals, this case should be remanded to address the
issue of comparative fault, We agree 1

As Defendants correctly note, in Mcl'ntosh we were emphatic in pointing
out that while the obviousness'of the condition that occasioned the plaintist
injury did not, under the comparative-fault approach, preclude the plaintist
claim, ‘_‘only under extremely rare circumstances”` under that approach “could a
plaintiff [injured by an obvious condition] avoid some share of fault.”" McIntosh,
319 S.W.3d at 392. This case does not present “extremely rare circumstances.”
Quite the contrary, as Teresa herself testified, it presents the utterly mundane
circumstance of a person who, engaged in conversation with a friend, fails to
watch where she is going and trips on an obvious flaw in the pavement

Some portion of the responsibility for her injuries should have been
attributed to Teresa, but the trial court did not even address the question. We
agree with Defendants that the trial court’s lapse was a “substantial error”
requiring us to vacate the Judgment and to remand to that court for the
findings mandated by KRS 41 1.182(1'). And while it is for the trial court to
determine in the fii'st instance the percentages of fault, as provided for in KRS
41 1.182(2), we reiterate that in light of Teresa’s admitted carelessness the
percentage attributed to her should not be insignificantl

The Grubbs resist this conclusion by insisting that Defendants failed to

'preserve the issue by'requesting a comparative fault finding in accord with CR

52.04. Defendants concede their failure to make the request, but claim that

40

.‘

the trial court’s_ abrupt and cursory manner of ruling relieved them of that
obligation by making it clear that any such request would be fruitless. We
need not address that claim, for, while the Grubbs are certainly correct that in
general unpreserved‘err.ors are not subject to appellate review, there is a
limited exception to that general rule for errors the appellate court deems
palpable, i_.e., obvious, egregious errors by the trial court that have resulted in
manifest injustice. Fischer v. Fischer, 348 S.W.3d 582, 589 (Ky. 2011) (citing
CR 61 .02, the substantial error rule). That exception applies here.

The trial court’s failure to make the apportionment findings that had
been statutorily required for more than twenty years at the time of its
Judgment was an error plain enough to come within the palpable-error

exception, and the error resulted, we are convinced, in a manifest injustice. At

least since McIntosh, as the quote above from that case shows, We have been

laboring to assure that the comparative-fault approach to open and obvious
hazards is fair to both sides, that it does not subject premises owners to
liability for a business invitee’s own negligence The trial court’s Judgment in
this case makes that assurance seem hollow, indeed, as the effect of the trial
court-’s error is precisely to. Saddle Speedway with the entirety of a large
damages award, when much of the fault giving rise to those damages was
clearly the plaintist own. This is thus one of those extraordinary cases where,
notwithstanding the lack of preservation, a plain error_the trial court’s failure
to make appropriate apportionment findings-should be noticed on appeal and

remanded for correction.

41

CONCLUSION

In sum,__ the Court of Appeals’ opinion holding that the Grubbs’ claims
are barred by the open and obvious doctrine is reversed, and the trial court’s
findings of fact are reinstated, including any findings of fact regarding the
amount of damages. All concur with this conclusion except Justice
Cunningharn Who dissents for the reasons stated in his Concurring in Part,
‘ Dissenting in Part Opinion. For the reasons stated, three members of the
Court [C.J. Minton, J. Hughes, and :J . Cunningham) agree with the Court of
Appeals’ conclusion, in dicta, that Roxanne Smith, the manager of the
Speedway SuperAmerica had no liability for the Grubbs’ claims. Three
members of the Court disagree for the reasons stated in Justice Venters’s
Separate Opinion. Finally, we unanimously conclude the trial court did not err
in denying the post-judgment recusal motion but it did err, palpably, in not
assessing comparative fault as required by KRS 411.182`, although,Justice
Wright would not direct that the trial court must assign some portion of the
fault to Teresa Grubb_. This matter is remanded to the trial court for further
proceedings consistent with this Opinion.

Part I: Minton C.J.; Keller, Venters, and Wright, JJ., concur.
Cunningham, J., dissents for the reasons stated in his Concurri`ng_ in Part,

Dissenting in Part Opinion.

42

.d".‘

Part II: Minton, C.J.; and Cunningham, J., join Part II of the Opinion.
Keller, Venters, and Wright, JJ., do not join for the reasons stated in Venters,
J., Separate Opinion.

Part III: Minton C.J.; Cunningham, Keller, Venters, and Wright, JJ .,
concur. . `

Part IV: Minton, C.J.; Cunningham, Keller, and Venters, J., concur.
Wright,r J., dissents for the reasons stated in his Concurring in Part, Dissenting
in Part Opinion.

VanMeter, J ., not sitting.

CUNNINGHAM, J., CONCURRING IN _PART AND DISSENTING IN PART:

' Consistent with my votes in the previous cases cited by the Majority abrogating

the old “open and obvious” princi-ple, I dissent to that portion of the opinion.
However, I concur in the exoneration of Roxanne Smith and the recusal issue.
Therefore, l concur in part and dissent in part.

VENTERS, J., SEPARATE OPINIQN: Because of this Court’s recent
opinions in Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015), and Shelton
v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), with its
abolition of the traditional “open and obvious” doctrine, we are constrained to
agree with the lead opinion of Justice Hughes insofar as it holds.that Speedway
must be held to account for Teresa Grubb’s injuries despite th"e open and
obvious condition she overlooked when she fell. ' Under the open and obvious '
doctrine, Grubb’s claims against Speedway and Smith would have been

dismissed once the obvious nature of the hazard was established.

43

We also accept the conclusion that this Court is bound by the trial
court’s finding of fact that, “in the circumstances of this case (in particular the
hole’s location in a heavily trafficked area), the relatively small hole still
constituted an unreasonably dangerous condition on the business premises.”’
We also accept Justice Hughes’ conclusion that Speedway may be found liable
for failing to eliminate the pothole hazard that tripped Grubb because

a reasonable fact~finder could readily have believed that Speedway

could and should have anticipated a duly cautious pedestrian’s

being distracted momentarily by a moving car or blinded

momentarily by a car’s headlights so as to encounter the pothole

notwithstanding its obviousness. Under the comparative fault

. doctrine since Speedway could reasonably be thought to have

breached its duty to the careful, [Grubb’s] claim remained viable

even though by her own admission she was careless

However, we do not agree with the conclusion reached in Part II of
Justice Hughes’ opinion that store manager Smith is immune from suit for
liability that arises from her own individual and independent negligence which
caused or contributed to Grubb’s injury. The doctrine of respondeat superior
assures that her employer, Speedway, will remain jointly liable for the damages
attributable to Smith’s failure to exercise reasonable care, but that does not '
negate Smith’s negligence, nor does it extinguish Grubb’s-right for whatever
reason She chooses to assert her claim directly against Smith, however
distasteful that may seem.

Speedway’s liability upon the grounds postulated in Justice Hughes’
opinion is necessarily derived from the negligence of its' employees on the

scene, including Smith, who as the manager in charge of the store was acting

as Speedway’s eyes and ears on the premises at the time of the injury. If
44

Speedway as a corporate entity “should have anticipated,” as noted in the lead
opinion, a “duly cautious pedestrian’s” encounter with the pothole, it could do
so only through the personal conduct of its employees on the premises, The
evidence clearly established that Smith’s duties included policing the tarmac
around the gas pumps and the parking areas for hazards and trash at regular
intervals, More significantly, she was required to report any hazardous
conditions that she could not repair immediately to Speedway’s central office so
that the employer could arrange for a repair.

Shelton may have abolished the open and obvious doctrine, but it also
reaffirmed this standard of care:

First and foremost, a land possessor is subject to the general duty

of reasonable care. The concept of liability for negligence expresses

a universal duty owed by all to all. And every person owes a duty

to every other person to exercise ordinary care in his activities to

' prevent foreseeable injury.

413 S.W.3d at 908 (internal quotations and citations omitted). Shelton also
reaffirmed the principle that “a possessor of land owes a duty to an invitee to
discover unreasonably dangerous conditions on the land and either eliminate
or warn of them.” Id. .at 909 (citations omitted). Smith was aware of the
hazard that she could not immediately eliminate As \Speedwa_y’s eyes and ears
on the ground, in the exercise of “reasonable care,” she should have known the
hole was a hazard to invitees dodging cars or blinded by headlights and
provided a warning for distracted pedestrians otherwise unable to avoid it.

U-ntil now, Kentucky law has not exempted neglectful employees from the

consequences of their own negligent acts or omissions while holding the

45

employers vicariously liable for employees’ negligent acts or omissions The
opinion of Justice Hughes radically departs from this long-established and
unchallenged authority. Prevailing Kentucky law and the universally-accepted
and applied principle are embodied in the Restatement (Second) of Agency §
343 (1958):

An agent who does an act otherwise a tort is not relieved from

liability by the fact that he acted at the command of the principal or

on account of the principal, except where he i_s exercising a privilege

of the principal, or a privilege held by him for the protection of the

principal’s interests, or where the principal owes no duty or less

than the normal duty of care to the person harmed.

(Emphasis added.)20

20 Consistent with Section 343, it has long been the rule in Kentucky that “an
agent is personally liable for his own tortuous acts even though performed within the
scope of his employment and under conditions which impose liability upon the
principal also.” Carr v. Bamett, 580 S.W.2d 237, 240 (Ky. App. 1979) (citing Kentucky-
Tennessee Light and Power Co. v. Nashville Coal Co., 37 F. Supp. 728 ([W].D. Ky.
1941]]. Indeed, “it has long been the law of this jurisdiction that the party harmed can
look for reparation from the agent only, without the necessity of proceeding against
the principal.” Id~. (citing Pool v. Adkisson, 31 Ky. 1 10 (Ky. 1833)); see also`Enos v.
Kentucky Distilleries & Warehouse Co., 189 F. 342, 346 (6th Cir. 1911) (“[I]n Kentucky,
the servant whose negligent act creates the liability of the corporation may, as a
matter of right be joined as defendant with the corporation.”); Cohen 1). Alliant
Enterprises, Inc., 60 S.W.3d 536, 539 (Ky. 2001] (“[A] plaintiff may bring suit and
recover from the principal under a vicarious liability theory without first filing suit and
getting a judgment against the agent” or may “sue[ ] both the principal and the agent
together.”); Brown v. _Ellis, 484 A.2d 944', 946-47 (Conn. Super. 1984) (citing Deaktor v.
Fox emery co., 332 F. supp. 536, 542 (W.D`. Pa. 1971), aFd, 475 F.2d 11 12 (3<1 cir.
1973)) (“Under principles of agency law, an agent may be individually liable for torts
committed by him, even though the agent contends that such acts were committed on
behalf of the principal.”]; Conn v. Marlcwest Hydrocarbon, Inc., 2006 WL 782728 at **2~
3 (E.D. Ky. Mar. 27, 2006) (“Kentucky law permits servants or employees to be sued
personally for alleged negligence in the course and scope of their duties for the
principal or employer.”); Teny v. Jackson, 19 Fed. Appx. 377, 379 (6th Cir. 2001)
(“There is no authority under Kentucky law that an individual is not jointly and
severally liable for torts committed Within the scope of employment, ”]. -

Similarly, in Wheeler v. Frito- Lay, Inc., the presiding federal district court stated
as follows:

_46

it _

If, as Justice Hughes’ opinion holds, the defective pavement was an
unreasonably dangerous condition, such that Speedway in the exercise of
reasonable care should have acted to “either eliminate [it] or warn of '[it],” per
Shelton, then, a fortiori, the same defect was a dangei' that imposed a duty
upon Smith. As the employee with managerial control of the premises, in the
exercise of reasonable care, she should have eliminated the defect by
contacting Speedway to arrange a repair, and inl the meantime, acted to warn
distracted customers who may not see the hazard in time to avoid injury.
Speedway’s failure to comply with the standard of care flows directly from
Smith’s failure to comply with the standard of care applicable to her.

Despite its acknowledgment that “a possessor of land_owes a duty to an
invitee to discover unreasonably dangerous conditions on the land and either
eliminate or warn of them,” the lead opinion contradicts itself by'holding, on

one hand, that Speedway’s failure to eliminate or warn of the hazard could

However, the fact that a judgment may be entered against an employer
does not absolve the employee of liability for his acts,' rather, the doctrine
of respondeat superior operates to establish a joint and several liability
between both the employer and the employee Granquist [v. Crystal
Springs Lumber Co., 1 So. 2d 216, 218 {Miss. 1941]]. While the liability
of an employee under respondeat superior may not be individual in the
sense that the employee is the only party responsible for the payment of
any judgment, the employee nevertheless remains liable for the total
amount of any judgment though such liability will be joint and several
with his employer.

743 F. _Supp. 483, 485-86 (S.D. Miss. 1990) (emphasis added]; see also Southard v.
Belanger, 966 F. Supp. 2d 727, 742-43 (W.D. Ky. 2013) (citing Bowen v. Gradison
Constr. Co., 6 S.W.2d 481, 482-83 (Ky. 1928]) (“Under Kentucky law, an employer is
jointly and severally liable for the negligence of any employee who is acting within the
course and scope of employment at the time of the negligence.”).

47

~1‘ v

<-“.-`»

reasonably be regarded as a violation of the standard of care, but on the other
hand, holding that Smith’s failure to do anything to eliminate it or warn of it,
despite her actual knowledge of it, `does not violate the standard of care.

The lead opinion absolves Smith of responsibility by concluding that she
cannot be regarded as a “possessor of the land” because she lacked “sufficient

control over the premises to remedy the premises’ alleged defect.” We agree

' with Justice Hughes’ conclusion that one need not have “complete control” of

the premises to incur liability as a “possessor of land.” The rule as stated in
her opinion implies that one may be liable as a “possessor of land” for some
hazards, but not for others, depending on the degree of control one is
authorized to exercise, and we agree. Accordingly, several individuals may
qualify as a “possessor" of the same premises at the same time, depending
upon their specific responsibilities

-But the lead opinion misconstrues the standard by ignoring the fact that,
in the exercise of reasonable care, per Shelton, a possessor of land may remedy
an obvious but unreasonably hazardous hole in either of two ways: fill the hole
or post a warning. The inability to effect a_ remedy by one route does not
eliminate the duty to use reasonable care to pursue the alternate remedy.

Even if Smith lacked the authority to fill the hole, she had plenary control to

- remove the danger by warning patrons With routine regularity we see

employees of Speedway and other businesses post warningpl`acards or pylons
that alert distracted patrons to hazards on the premises, including hazards

around gas pumps

48'

‘_"'1

Smith was aware of the defect for weeks Had she exercised her control
of the premises with reasonable care and notified her Speedway supervisors of
the hazard, or posted a warning, she could argue that she had complied with
the standard of care. Shelton reiterated and reinforced the principle that “every
person owes a duty to every other person to exercise ordinary care in his
activities to prevent foreseeable injury.” Id. at 90`8. Smith is not immune from
that principle. It is no less applicable to her as it is to Speedway. If the
exercise of reasonable care required Speedway to fix the hole, 'then\the exercise
of reasonable care would also require S`mith to report the hole to Speedway.
Doing so ina timely manner would have eliminated the hazard before Grubb
fell. Smith’s control over the premises as a “possessor of -the land” extended at
least that far. Her failure in those respects could be reasonably found to
violate the applicable standard of care and to constitute a substantial factor
causing or contributing to Grubb’s injury.

One of the fundamental purposes of tort law is to incentivize careful
behavior and to discourage careless behavior. Giuliani v., Guiler, 951 S.W.2d

318, 320 (Ky. 1997) (.“Itis the purpose of all tort law to compensate one for the

harm caused by another and to deter future wrongdoing.”). Until now, tort

(
4

policy assured that on-duty managerial employees had a personal stake in
exercising reasonable care for the safety of invitees corning onto the premises
In the- absence of a countervailing social policy which our colleagues have not

cited, we respectfully contend that the law should remain that way.

49

q
n l_,
. -fl

In summary, the evidence in' this case solidly establishes that Smith’s
managerial duties to inspect, sweep, and remove trash from the premises,
together with her $100/ day necessities budget, vested her with sufficient
supervisory and possessory control of the premises to impose upon her a duty
as a possessor on the land to report the hazardous pothole so that it could be
repaired, and until that occurred, to post sufficient warning of the hazard. Her
failure to do so could be reasonably regarded as a failure to exercise reasonable
care. The authorities cited above unambiguously stand for the principle that if

an employee independently commits a tort resulting in an injury to a plaintiff,

_ she may be held liable for those torts by the injured party. The fact that she

was on-the-clock in the service of her employer at the time of her potentially
tortious conduct, and that her employer is vicariously liable for her conduct,
does not cloak her with immunity from the tort, but that.is precisely what the
opinion of our e`steemed colleagues,would do.

Keller and Wright, JJ., join.

WRIGHT, J., CONCURRING lN PART AND DISSENTING IN PART:
Because I- agree that the Grubbs’ claims are viable under Mclntosh and the
other cases cited by Justice Hughes and that the trial judge was not required
to recuse, I join Pa-rts I and III of Justice Hughes’s opinion. l joinJustice
Venters’s opinion on the store manager’s individual liability.

I am compelled, however, to also write separately for two reasons One
reason is to make a request to the bench and bar-that request piggybacking

off of Justice Hughes’s superb discussion of our recent jurisprudence

50

abandoning the open-and-obvious doctrine as a legal bar to certain premises-
liability causes of action. The other reason is to explain why l must respectfully
dissent to Part IV of Justice Hughes’s opinion on the apportioning-fault issue
to the extent it usurps the trial court’s fact-finding ro'le. I begin with the latter.

To be sure, I agree with Justice Hughes that this case must again be
remanded to the trial court for it to address the parties’ comparative fault
under KRS 41'1.182. But where I_ disagree is in her concluding that some
portion of fault necessarily fallsl to Teresa Grubb and directing the trial court
on remand to so find. That, in my Opinion, goes beyond the appropriate scope
of our review in this case.

As Justice Hughes acknowledges our comparative-fault regime entrusts
to the factfinder the task of apportioning fault among all-those responsible to
some degree for tortious injury. (That factfinder here, of course, is the trial
judge, not a jury, because this was a bench trial.) lt is the factfinder who hears
all of the evidence at trial and who is obliged to determine whether and to what
extent each party contributed to bringing about the plaintiffs injuries based on:
its view of that evidence. lt is not the prerogative of a reviewing court to take on
that task. Yet, in my view, Justice Hughes’s opinion does just that.

So l would remand this case to the trial court to answer the first

question, based on its assessment of all the evidence, whether Teresa Grubb’s

. own negligence contributed to her injuries and, then, how much fault for her

injuries should be apportioned to that negligence under KRS 41 1.182. l

respectfully dissent from Part IV of Justice Hughes’s opinion.

51

My other reason for writing separately 'is a pragmatic one, not one based
in law as it were. `It is 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.

lnstead, l 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. ln my opinion, the historical meaning of open and obvious and the

ingrained connotations it invokes are frustrating efforts to fully understand and

properly apply the law'as it now stands after the Mclntosh-led line of cases, So

'for the sake of cutting through the apparent confusion that persists, and to

facilitate our moving forward in this post-McIntosh paradigm, l recommend that
we all, attorneys and jurists alike, make this change. All will benefit from

retiring the phrase open and obvious hazard from our collective vernacular.

52

eg-s.i,

COUNSEL FOR APPELLANTS:

Yancey Lee White
Morgan 85 White Law Offices

COUNSEL FOR APPELLEES:

David'Andrew Owen
Brian Michael Johnson
Matthew Atwood Stinnett
Dicl<:inson Wright PLLC

COUNSEL FOR AMICUS CURIAE:

Christopher W. Goode
Bubalo Goode Sales 85 Bliss PLC

53

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`d%npre_me Tnurf uf Benturkg

2014-SC-0064 l-DG

TERESA GRUBB AND RANDY GRUBB APPELLANTS

ON REVIEW FROM COURT OF APPEALS
_- .~ CASE NO. 201 1-CA-000223-MR
V. _ " CLAY CIRCUIT COURT NO. 08-CI-00033

RoxANNE sMIT`H AND ' _ ~ APPELLEES
sPEEDWAY sUPERAMERICA LLC '

ORDER DENYING PETITION _FOR REHEARING

AND MODIFYING OPINION

The Petition for Rehearing, filed by ‘the Appellants, Teresa Grubb and
Randy Grubb, of the Opinion of the Court, rendered March 23, 2017, is
DENIED, and the Opinion of this Court is modified by substitution of the
attached Opinion in lieu of the original Opinion of the Court. Said modification
does not affect the holding of the original Opinion of the Court.

The Court modifies said Opinion by changing the first sentence in the
first paragraph on page 42 to read as follows: “In sum, the Court of Appeals’
opinion holding that the Grubbs’ claims are barred by the open and obvious
doctrine is reversed, and the trial court’s findings of fact are reinstated,

including any findings of fact regarding the amount of damages.”‘

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Minton, C.J.; Cunningham, Hughes, Keller, Venters and Wright, JJ.,

sitting. All concur. VanMeter, J., not sitting.
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ENTERED: August 24, 2017.

JUSTICE `