*1 transferee, and therefore the adminis- against no of action trator had cause the adminis-
transferee. Thus Martin money. recovery denied
trator was conclusion, spouse surviving if
brings a claim that a fraudulent transfer deprive her of
was made with the intent to interest, must, she within the
her dower time, renounce the will that makes
allotted
provisions thereby her and invoke her her interest. Fail-
statutory right to dower this, as a devisee
ing to do the widow takes right bequests by the will and her made case, the ceases. In this widow dower pre- and thus is
has taken under will inter-
cluded statute to take her dower
est in addition thereto. require.
This is the result the statutes est, quidem perquam durum sed ita
“Hoe scripta
lex est.” Translation: “This indeed hard, very such is the law.” but written Blackstone, Commentaries, 430. reasons, than stat-
For these rather those Appeals’ Opinion,
ed in the Court of we judgment.
affirm the trial court’s
All concur. PERRY, Movant,
Martha T. and Doris
William WILLIAMSON Williamson, Respondents.
J.
No. 90-SC-773-DG. Kentucky.
Supreme Court of 13, 1992.
Feb.
The case was submitted to jury under respondents claim, instructions which the argued successfully at the Court of level, Appeals inappropriate were to de- scribe the duties of the landowners circumstances. These instructions were taken almost from the sample verbatim Kentucky instruction Instruc- Ed.1989, Juries, tions to 2d Instruction No. 2. The differences between Palmore’s instruction and the in- struction at the trial of this case necessary were factual references to ac- commodate the facts of this case. respondents insist that while the in- liability given struction on at the trial might have had the been suitable movant invitee, enjoyed the status of an it lacked necessary proved must elements which be recovery by to merit a licensee. The in- struction out in Palmore’s Sec. 24.09 is set explicitly the “Comment” as an appropriate example jury where there is “a question injured as to the status of the party” as an or a licensee. The invitee entirety instruction in its leaves no doubt sample that Instruction No. 1 in the in- struction sets out the defendant’s duties if invitee, jury plaintiff finds the is an applies if the Instruction No. then is Norman McNally, E. Edward F. Recten- “not satisfied from the evidence” wald, Louisville, for movant. plaintiff by cir- was an invitee as defined Yittitow, Louisville, Chester A. for re- cumstances set out in Instruction No. 1. spondents. Respondents’ that Instruc- counsel insists
tion No. 2 as No. 1 as well Instruction liability only plaintiff LEIBSON, describes Justice. invitee, is plainly but not The sole issue in this case is whether the intent of the author. properly trial court instructed the on respondents, the duties owed Respondents’ badly Wil- counsel has misun- Williamson, persons liam and Doris as in derstood Palmore’s Sec. 24.09 and the possession estate, explains underlying residential real to the “Comment” which movant, Perry, legal principles through Martha who had come to the in- illustrated Nevertheless, ques- as one of several Jehovah’s structions. the basic up inquiry Witnesses follow on an from tion is not the trial court has fol- whether daughter regarding sample the household lowed the instruction set out Palmore, has, their standing literature. Movant was on which it but whether the porch the front respon- given properly apply at the door of the instructions the law dents’ Kentucky. house when she was struck of the State of The Court of falling giv- limb from a dead tree in the front has held that the instructions yard. point dispute erroneous, At this there is no en were re- and reversed and using to her status in premises being manded for a new trial. With all due def- that of a licensee. scholarly quality erence to of Palmore’s losing party in the Court Instructions, made recognize the issue is we granted, it is then incumbent Appeals is are court’s instructions whether the trial prevailing party upon the correct, court has the trial whether for discre Appeals to file a cross-motion For reasons that we followed Palmore. *3 pre respondent if wishes tionary review discuss, concluded that both we have will re right argue issues which serve the correctly the trial court and Palmore have Appeals, of spondent lost the Court Accordingly, in this case. applied the law not to Appeals of decided issues the Court Appeals rein- the Court of and we reverse in the party prevailing address. If the trial judgment entered state the Appeals further considera wishes court. along the issues of such issues with tion instructions, for a addressing the Before discretionary review has been for which understanding are in clearer of where we file a prevailing party must granted, the need to refer first to other this case we CR discretionary review. cross motion longer part no of this issues which are 76.21; Dept. Health River Dist. Green case. (1989); Ky., 475 Wigginton, 764 S.W.2d for discretion- There is no cross-motion Dept. Transportation Cabinet Comm. in this case. Thus there were ary review Taub, Ky., 766 49 Highways v. S.W.2d questions presented to the Court certain (1988). Appeals longer are no at issue. which turn to the issue before us: Now we These are: erroneous? The rea- were the instructions 1) respondents entitled to a Were the Opin- Appeals’ sons stated in the Court Appeals The directed verdict? Court holding are three: ion for so sufficient to estab- held there was evidence 1) premised upon knowl- “[L]iability was lish movant’s status as a licensee rath- both condition of edge of the deteriorated trespasser liability er than as a to a alone, require- although an additional tree licensee in the circumstances. real- appellant should have ment is that the 2) failing court err in Did the trial the condition of the tree involved ized that comparative negligence include a instruc- appel- risk of harm to the an unreasonable held, Appeals citing tion? The Court of lee.” Gravatt v. B.F. Saul Real Estate Invest- re- 2) “Further, the instructions did not Trust, (1980), Ky., 601 287 ment S.W.2d finding appellants had rea- quire a that this,” liability “in a like is
that appellee not son to believe pos- premised on owed “[t]he appre- the condition of the tree or discover of hazards are sessor ... to warn which harm.” ciate the risk of obvious,” negligence comparative not is not 3) instruction in sub- trial court’s “[T]he obvious, issue, “if hazard is an because actual knowl- speaks only not section [c] cannot than be liable tree, but also edge of the condition place.” first brought to the attention of the 3) admitting the trial court err Did appellants ‘by information instructing ex- upon medical evidence and ordinary care should the exercise of ” post-accident condition for penses for a have known it.’ to connect proof was insufficient which the attempt an Because the instruction was the occurrence? it to Palmore, paraphrase we start our discus- “reversing mat- this held that since was comparison the two. sion with a between in the instruc- grounds ter on other [error in its Palmore’s instruction not reach this issue.” tions], we need up cov- entirety, is an instruction drawn above, the first two of there is an issue
As er the situation where rejected by party the Court of injured issues were “whether was an invitee these [the] mentioned but 1 what Appeals, and the third was or licensee.” No. then states both specific plaintiff jury Our rules are must believe to find the not “addressed.” discretionary jury an must if motion for review was invitee what helpful believe to find in the event licensee. is to a full under- plaintiff is found to be an invitee. No. standing of this case to set out Palmore’s prefatory phrase then starts with jury No. side side with the trial court’s apply jury it if the is “not will given in instruction this case. When dowe [plain- satisfied from the evidence that P’s it is clear that the trial court so succeeded purpose going into the room” was tiff’s] paraphrase in its effort Palmore’s in- plaintiff such that was an invitee under No. structions, so the issue then becomes proceeds 1. No. 2 then what the with sample instruction whether liability against must find to find the defen- wrong. plaintiff if dant invitee but *4 Plaintiff, .you you 2. .. will find for P if You find for Martha will Perry, you are satified from the fol- if are satisfied from the evidence as lows: evidence as follows: (a) (a) upon prem- P in the D’s Plaintiff was that was room with that permission, express implied; permission, or either either ises with Defendants’ express implied; or (b) (b) by by reason of the deteriorated that reason the hole covered that in the floor in the condition of the tree mentioned over with sheetrock room was not dition in not in a a safe con- evidence the reasonably were P; by safe condition for use for use Plaintiff; (c) (c) knowledge D that Defendants had actual knowl- that had actual (or edge brought it had brought such condition it had of such condition been been [or to their attention informa- to his attention which in the exercise of he should have known information ordinary in the exercise of ordi- care tion from which nary it); it]; care should have know (d) (d) such knowledge that D such in- that Defendants had knowl- had prevent edge formation in or information in sufficient time to sufficient time accident; accident; prevent (e) (e) ordinary that in the exercise of that in the exercise of anticipat- D P anticipated care might step should have care Defendants should have might step upon the covering on the sheetrock ed that Plaintiff premises, forewarned the hole in the floor unless forewarned of the mentioned unless danger; danger; of the
AND AND (f) (f) a fore- of such a fore- that the of such absence absence a warning warning to P was a substantial factor to Plaintiff was substantial causing causing the accident. the accident. factor Trespass 41 sample
In both the
instruction in Pal-
see
75 Am.Jur.2d
also
§
(1974).”
just
present
person
person
and the
in-
is a licensee
more
Such a
property
plaintiff in
jured
upon
hypothetical
has come
with the
the same as the
instruction,
implied permission
person
posses-
sample
of the
Palmore’s
Appeals’
sion. As stated
the Court of
No. who
not a business invitee be-
Opinion,
implied
pur-
exists an
invitation
no mutual business
“there
cause there was
example
up
pose.
for one to come
to the house of another
Both Palmore’s
and the
information, visitation,
premised
or the like.
a
present
See
case are
on
situation
City
Sterling
Baking
Mt.
v. Donaldson
there is
from which the
evidence
Co.,
781,
(1941);
Ky.
Investment
dant the short, tree; contrary, it did not long story To make a if the of the on the unless the found that premises impose has (1) the to exercise reasonable care either tree was a “deteriorated condi (2) tion” that made the unreason appears, the land as as it make safe (“not ably con unsafe a safe danger- that it is as disclose the fact dition”), (3) the defendant “had actual be. ous as he knows it to Therefore it is knowledge of such condition” or “informa immaterial that a condition tion from which in the exercise of him, known to and which he has reason care” the defendants “should known have that the licensees will not believe dis- of the condition.” cover, is natural rather than artifi- [Emphasis cial.” added.]
Next, Appeals’ Opinion Court out, points presumably as error that “the Thus the difference between the artificial require finding instructions did not sample instruction, condition in Palmore’s appellants had reason believe that and the natural condition as appellee would not discover the condi- constituted the deteriorated tree is “im- appreciate tion of the tree or the risk of material.” The movant’s evidence was that harm.” dead, the tree respondents knew before, year Appeals’ Opinion it did not leaf out the answers knew respect falling its own criticism this elsewhere off for knew that limbs had been contributory negli- discussing time, while that the tree needed some and knew gence aspect case: down; information had to be cut that such Gravatt, brought by person pointed finding by been to their attention
“As out circumstances the posses- in a case like this that the in the such business. pos- sor of the excludes a find- comment in the land is liable Restatement ing contributory negligence required on the land to exercise rea- sessor of “is *6 theory danger that the condition and make the land as sonable care either to should have to the licensee. appears, been obvious or to disclose the fact safe as duty possessor The owed is to dangerous as he knows it to that it is as obvious, be,” warn of hazards which are not appropriate. is Johnson, Shipp Ky., see v. 452 S.W.2d Appeals’ fallacy in the Court of The third (1970), obvious, and if the hazard is (c) that Opinion is its subsection statement possessor then the cannot held liable be instructions was confus- of the trial court’s place.” in the first impose duty to ing or “could construed be “If the hazard is obvious” then it ordinary appellants to exercise care on the does not involve an unreasonable risk of investigate for and discover to separate harm to the licensee. A instruc contrary, On the conditions on their land.” tion to this effect adds no additional ele (c) explain that did no more than subsection jury impose ment to what find to must knowledge includes actual liability. by information “brought to their attention should respondents] from which ... [the parties Both the have referred to condition. As other- have known” of the (Second) Torts, the Restatement Sec. explained in “Comment” to wise 342, appropriately describing when the Sec. 24.09: liability possessor subject of land is to for por- dangerous conditions he “It noted that bracketed which knows will be 2(c) in example this and should realize unreasonable tion of Instruction involve As in infer permits risk of harm to licensees. to actual knowl- Comment e: of D from that edge part on the evidence from he had sufficient information which of land
“The who ordinary in exercise of care he permits invites or licensees to enter his have known. Sec. 342 and other should upon duty land is not to maintain based Restatement, Tort related sections of the upon it in safe It is his condition. based 2d, know,’ expression use the ‘reason duty to disclose to them the risk which realize,’ are defined they they accept will encounter if or ‘reason to which Restatement, Torts, 2d, permission. required or He is 12. The invitation (c), required examples subsection which before im form chosen for the various involving principle posing liability this work seeks be satisfied way express it in such a as to avoid respondents from the evidence that had necessity separate of a definition. knowledge” of the condition “or “actual important the difference is to observe from which the exer information [had] (notice concept this or knowl- between should have cise edge) duty inspect.” known it.” confusion in this great A deal of the duty by the The owed case, filed in this as exhibited in the briefs pres possession of land to others whose argument, the oral flows anticipated, is the might ence be trying to reason from off-the-rack labels: care in the duty to exercise reasonable “invitee,” “trespasser,” “licensee” or rath The traditional classifica circumstances. negligence principles. from basic er than tions, “trespasser,” “licensee” and “invi labels, “in “trespasser,” “licensee” or The tee,” simply are convenient classifications vitee,” are in themselves answers assumptions ap defining certain requires basic reasonable care in the cir what party posses propriate duty to the “The exercise ordi cumstances. nary with circum sion in the circumstances. These classifica care commensurate issue, is a standard of conduct that does to define real is help stances tions depending on and is not turn off on who under the circum what is reasonable care Co., negligent.” City Gas Services Inc. v. stances? London, 144, 148(1985); Ky., 687 S.W.2d text tort The most recent definitive on Ea Grayson Fraternal see also Order of The Harper, Gray, law James and Law 328, Claywell, Ky., 736 S.W.2d
gles (1986). Torts, ed, 5, Vol. Secs. 27.8-11 2d (1987). injured party’s status as tres here is the text Opinion Our consonant with licensee, invitee, passer, important is an quote from Sec. 27.9: of this treatise. We determining posses factor whether the matters, judging “In these all circum- care, of land has sor exercised reasonable must be considered.... As stances but such status is no means end of rule, general precautions apt are more inquiry. enlightened legal system An *7 required premises have be been labels, does not reason from to backward more less arranged entry for the of or duty decide whether a of reasonable ” public,.... segments of the identified exits. reasons forward from circum stances, using Id. at 206-07. foreseeability, gravity the of harm, possessor’s potential the and the
right property, control to to decide what licensees, however, most case of In the is reasonable conduct the circumstances occupier’s duty today the courts extend Keaton, negligence. and what is Prosser & (from to danger a condition known any Torts, (5th 1984), ed. dis Law of possession) that the licen- person the cusses “the ‘artificial condition’ of reason expected to ob- reasonably be see cannot ing premise the of ‘no in dis duty’ serve, avoid.... appreciate and negligence regard principles.” of Thus we licensee must show defendant’s The recognize only difference between dangerous knowledge pitfall, of the duty which would have been owed condition ar- it be natural whether invitee, Perry had she been a business Ms. may premises. He of rangement duty which was in fact to her and owed circumstantially, do so even over course of this in her under the circumstances plaintiff licensee, defendant’s denial.... While gratuitous a status as is that had actual must show defendant duty respondents were under no of reason know,’ knowledge or of the ‘reason their able care discover existence on condition, ap- held condition, defendant will be dangerous of a danger if a reasonable preciate its the case with a business invitee. would be so. adequately do This difference was covered If carelessly
... ... deterioration becomes more not realize something. The state imminent in time and more inevitable in of realization is itself neither careless nor fact, point will be reached when actual Consequently careless. sensi- knowledge danger of the at one time way jury interpret ble could the instruc- may be knowledge inferred from of the possessor tion is that the should have done potential condition danger at an earli- something to realize the situation better. pp. er time.” Id. 210-12. possessor The was under no such duty. The sufficiently instructions were ade- Perry argues that the judge appro- trial quate appropriately and clear to describe priately patterned the instructions on Sec- respondents’ duty care, of reasonable tion 24.09 of Kentucky Palmore’s Instruc- and what would constitute a breach of such tions to The Juries. Williamsons claim the duty, appropriate to the circumstances of appellate reversal arose not from using the Therefore, this case. decision treatise, Palmore using por- but from judg- is reversed. The pertaining tion to a landowner’s duties to ment in the trial court is reinstated and an invitee rather than to licensee. affirmed. majority I of the believe that STEPHENS, C.J., COMBS, Appeals panel correct was when LAMBERT, LEIBSON, REYNOLDS and stated that: SPAIN, JJ., concur. possessor The of the land has a WINTERSHEIMER, J„ dissents either to a licensee of or to make warn separate opinion. safe the condition possessor if the or has reason knows WINTERSHEIMER, Justice, dissenting. condition, posses- if the know I respectfully majority dissent from the sor should realize that involves an un- opinion because the was instructed licensee, reasonable risk of harm to erroneously on applicable the law to the has who the also reason to facts this case injuries which involved believe will not discover the condition or by Perry sustained when struck a fall- realize the risk. ing limb from a dead tree on the William- sons’ property. The pat- instructions were case, Under the instructions this terned on Kentucky Instruc- premised upon Juries, Ed.1989, tions to 2d Sec. 24.09. only, the deteriorated condition of the tree although requirement an is that majority correctly additional applica- states the part ble of the rule set realized that out Section 342 of Williamsons should have (Second) the Restatement Torts condition of the tree involved unrea- *8 adopted by has been Kentucky. Palmore’s sonable risk of harm. own comment says to Section 24.09 that his I affirm the decision paraphrase instructions are intended to Appeals. Restatement. problem with the instructions in Pal- more, judge, with that the trial is told to find what the
possessor of the land either knew or should ordinarily prudent per-
have realized as an
son the exercise of care. See
Palmore’s Comment to Section 24.35. person
What a reasonable should realize nothing
from the facts known to him has exercising ordinary person
do with A care.
acts or does not act exercising ordinary realm,
care. the civil cannot