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” principle, I dissent to that portion of the opinion. However, I concur in the exoneration of Roxanne Smith and the recusal issue. Therefore, I concur in part and dissent in part.
VENTERS, J.,SEPARATE OPINION:
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 the 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 fyazard was established. • •
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 ear- 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 *432negate 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 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 Speedway’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.
Until now, Kentucky law has not exempted neglectful employees from the consequences of their own negligent acts or omissions while holding the 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 is 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
If, as Justice Hughes’ opinion holds, the defective pavement was an unreasonably *433dangerous 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 danger 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 in 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 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 *434some 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, á 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 warning placards or pylons that alert distracted patrons to hazards on the premises,. including hazards around gas pumps.
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 908. 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 Smith .to -report the hole - to Speedway. Doing so in a 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) (“It is the purpose of all tort law to compensate one for the harm caused by another and to deter future wrongdoing.”). Until now, tort policy assured that on-duty managerial employees had a personal stake in-exercising reasonable care for the safety of invitees coming 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.
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 esteemed colleagues would do.
Keller and Wright, JJ., join.
. 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. Barnett, 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. *433Adkisson, 31 Ky. 110 (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 v. 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, 40 Conn.Supp. 165, 484 A.2d 944, 946-47 (1984) (citing Deaktor v. Fox Grocery Co., 332 F.Supp. 536, 542 (W.D. Pa. 1971), aff'd, 475 F.2d 1112 (3d 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. Markwest 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.”); Terry 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;
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., [190 Miss. 572] 1 So.2d 216, 218 (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., [224 Ky. 427] 6 S.W.2d 481,-482-83 (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.”). ,.