*1 185 not, in by one Section 116 does An indictable is defined as ed to Court offense view, additionally power an which punishment my give that carries infamous us punishable imprison- by separate includes offenses section determine v. penitentiary. ment in the state Lakes preserved need not be same Constitution Goodloe, 240, Ky. Ky. 242 632 195 S.W. I RCr and would hold that followed. (1922). 6.02(1) therefore, An indictment of fundamental and, is unconstitutional importance in the because process criminal appealed is void as judgment from jur- subject both the matter it determines constitutionally has no valid basis. of the trial court and the status of isdiction Adams, v.
the accused. Commonwealth LAMBERT, C.J., concurs. (1891): Ky., King City 17 276 v. S.W. Pineville, Ky. 73, 222 1082 299 S.W.
(1927): Commonwealth, Ky., v. Singleton (1948). 454, Ky. 208 S.W.2d 325 jurisdiction by
The an indict- conferred only charged
ment extends to the offense Cody lesser v. included offense. Commonwealth, 749, Ky., 449 BANK, KENTUCKY, (1970). not The indictment has been held INC., Appellant, subject to be to waiver. v. Commonwealth Adams, 276, Ky., 17 S.W. To quote Commonwealth v. Adams: GREEN, Appellee. Grace creates their The law courts and defines can powers. [by Consent the accused] No. 1999-SC-0452-DG. judge not authorize a law to do what the Supreme Kentucky. Court of him given has not to do .... power province grand jury, It is the sole 26, Oct. law, It, under our an find indictment. court, say upon
and not the what must
charge party arraigned. shall be
Id., at 277. 17 S.W. 6.02(1) permits
RCr waiver of an defendant, requiring
indictment
only that same be The rule writing. 12, specifically not-
itself refers to Section
ing requires that the Constitution that cer- prosecuted
tain offenses indictment. promulgated by
That rule was the authori-
ty gives to us given Section pre- Court Supreme power practice rules of procedure
scribe the mind, my To
for the Court Justice. procedure simply do not rise
practice guaranteed of a
to the level constitutional only face with an
right charges those punishment passed
infamous
through Jury the Grand Practice process. you tell procedure prosecute how to authority
charge, not court has the judgment power grant- pass it.
186 icy slippery.
lot and sidewalk were
Moreover,
deposition
she stated in her
that
any
she did not see
salt on the sidewalk or
notice
that
measures had been taken
away
to clear
the snow and ice.
The Madison Circuit Court relied on
v. Peoples Liberty Bank & Trust
Ashcraft
Co.,
(1986),
Ky.App.,
Kentucky regarding outdoor natural haz ards is forth in Company set Standard Oil Manis, (1968), 433 S.W.2d and establishes that “natural outdoor haz ards which are as obvious to an invitee Howland, Louisville, Bixler Ap- W. for premises the owner of the do not consti pellant. tute unreasonable risks former Childers, Jr., Lexington, Joe Francis for which the landlord has a to remove or Appellee. against.” Compa warn The Standard Oil decision, ny fall involved GRAVES, Justice. an icy platform, prem outdoor was 6, 1995, January On Grace Green was on ised the fact that the risk was as obvi injured slipped icy when she and fell on an injured party ous to the as it was to the Richmond, sidewalk at a Bank in PNC that premises, owner of the oc Kentucky. At three different times on the curred as a result of natural outdoor haz incident, morning of the a bank teller had ards. spread a melting agent on the sidewalk. noted, As we have heretofore the haz- However, fell, at the time Green which was by appellee ard faced was created approximately p.m., 1:30 the sidewalk had outside, natural elements. It was not been treated for over hours. Green ½ exposed daylight. Appellee broad admitted that the weather conditions were thoroughly, was familiar with the struc- poor day, that periods with alternate fully ture. He was aware of the accu- freezing snow and rain. that Green stated mulation of and snow in the area. ice gone she had to the hairdresser earlier that the walk- part that He saw the level morning, approached and that she wet, ice way indicating melting shop “walking eggs” like she was might avoid had been there. That there be on falling. When Green and her hus- ice, refreezing platform band arrived at the Bank unmelted later afternoon, possibility. she observed that the water was a distinct free of ice it was duty on foreseen would be since appellant
There was no
covered,
Therefore, the
stay
walkway
bghted.
or make this
was not
elements
absolutely
safe. Nor
there
hazard was not obvious.
natu-
appellee
to warn
that the obvious
Ap
argues that the
Green
Court
may
ral condition
have created a risk.
*3
summary
holding
in
peals was correct
that
‘glare
platform,
If a
of ice’ existed on the
judgment
proper
genu
was not
because a
as
whatever hazard
constituted was
presented
to
ine issue of fact was
apparent
appellee
appel-
to
as it
towas
open
whether the hazard was
and obvious.
of
lant. We are unable to find a breach
deposition
disagree. Green’s
testimo
We
latter, (citation omitted)
confirms that her visit
ny unquestionably
859;
Lodge v.
Id. at
See also Corbin Motor
hours;
during daylight
to the bank was
Combs,
(1987).
Ky.,
weather conditions that at to clear own en the sidewalk. Green’s she observed that the lot had been testimony dispels any issue as to whether of snow when she at the cleared arrived was and Accord open the risk obvious. plaintiff mall. that shopping The surmised summary Bank entitled ingly, PNC was well, the sidewalk had been cleared as judgment. although she noted a “thin skiff’ of snow supra, that the However, acknowledge Estep, We taking thereon. after several rule steps, she on was decision reiterates the well-known slipped and fell ice which voluntarily concealed the that a assumed cannot underneath snow. carelessly incurring without b- undertaken reversing In the trial granting court’s 914; ability Id. at Louis- therefore. See summary judgment in favor of the defen- Lawrence, Ky. Cooperage v. ville Co. dants, Appeals Estep the Court of held 75, However, with Company, supra, that Standard was Oil hazards, we regard per- to outdoor natural distinguishable Estep in that Plaintiff ceive a distinction where business owner- “unaware of transparent layer the of ice on reasonably prudent undertakes measures seemingly the cleared until she sidewalk safety premises, the such to increase it, stepped though even she case, business as was done generally icy snowy con- aware which, in who measures owner undertakes at existing.” Estep, supra, ditions then fact, heighten conceal the nature of the such, regard- 913. As there was an issue such as occurred dangerous condition the ing the obviousness of hazard which Estep. precluded summary judgment. Similarly, City attempted Bank to clear its side- Green’s citation to PNC Poole, safety the of its 133 walk of ice and snow for Madisonville (1952) Yet, that it was misplaced. plaintiff given is also customers. fact sbpped intermittently snowing sleeting feb on ice a covered therein virtually impossi- day, of a as she it would have been porch clubhouse was about However, maintained employees the door. as noted ble for bank enter supra, over the Company, Oil the distin- a constant watch condition Standard importantly, nothing that guishing aspect of Poole is that the acci- sidewalk. More Bank made the natural hazard night porch, dent occurred at and the did increased likelihood plaintiff perhaps could have less obvious or that Green would and fall. We are of make it reasonable for proprietors opinion against that it is public policy, commercial establishments to be held to a sense, and even common impose liability higher duty Thus, to invitees. the better on those who precautions take reasonable Restatement, rule 2d, is that of the Torts if such does not escalate or conceal the § imposes premises liability hazard, nature of the while absolving those upon a business owner despite an obvious who take no action whatsoever. danger if the owner should realize that there is an unreasonable risk of harm and The decision of the Appeals Court of is protect invitees will fail to themselves reversed and the Madison Circuit Court’s against such harm. order granting summary judgment in fa- vor of PNC Bank hereby reinstated. just This case presents such a situation. *4 PNC Bank open during bad weather COOPER, GRAVES, JOHNSTONE, anticipated the arrival of customers. KELLER, J.J., concur. ice, To melt the snow and employee a bank
WINTERSHEIMER, spread J., agent a melting in on the concurs sidewalk only. periodically result throughout day, thereby the demonstrating an awareness that custom- LAMBERT, C.J., dissents in separate a ers would come to the bank to transact opinion STUMBO, J., joins. despite business the inclement weather. LAMBERT, Justice, Chief dissenting. Thus, although slippery the may conditions obvious, have been it is clear that the bank In Combs,1 Lodge Corbin Motor I knew that customers would walk on the wrote a dissenting opinion expressing the regardless sidewalk possibility the public view that establishments that re- they might injure fall and themselves. main open for during business inclement Thus, Ms. Green should be proceed able to thereby weather and encourage customers with this jury lawsuit and a should decide to come on premises their duty have a the comparative fault of parties. the proper exercise the degree of care for the economic benefit the bank derives from safety persons who foreseeably might remaining open during inclement weather injured by their acts or omissions. justifies possible imposition liability un- This Court’s decisions have utilized various Moreover, der these circumstances. theories a including legal duty lack of with not should be overlooked that as between regard to natural outdoor hazards to de- Green, the bank and Mrs. only the bank feat claims for compensation by persons position to remove snow and ice injured lots and sidewalks of by the use of melting agents. Only the business establishments. theory This fails bank had opportunity realistic pre- to take account of the higher duty of care vent the harm remaining open while for owed aby business owner to invitees on realizing business and its economic benefit. premises to conduct business and who thereby bestow an economic benefit on the This conclusion supported by Walling owner. Co.,2 v. Kroger dealing another case ford The obviousness of a hazard caused with a resulting and fall from an obvi bad weather ously does not make it the slippery less surface. In Wallingford, a dangerous, nor should it relieve a delivery business man slipped and fell on a delivery profits owner who pa- from an ramp invitee’s covered with snow and ice after he tronage to make the business had been entry denied into the store premises safe. The economic incentives to through less hazardous entrance. The attract general public to a business applied court the exception general (1987)(Lam 1. 947-948 Ky.App., bert, J., dissenting). have and liability, the bank should and obvious out- governing
rule natural would enter fact did that customers realize hazards, stating door conditions. dangerous the bank despite are, however, There cases which beyond the go We should endeavor of land can and should antici- possessor worn-out, rigid theories relied condition pate dangerous will when majority forthrightly say that physical harm to the invitee not- cause open for business establishments remain withstanding its known or obvious dan- weather, they during inclement business ger. possessor In such cases the is not of care degree a duty to exercise the of reasonable care relieved regardless required for business invitees he owes the invitee his for obvious. natural hazard is whether ... protection Thus, I respectfully dissent. harm to visi- expect reason Such dangers may from known
tor or obvious STUMBO, J., joins dissenting possessor arise ... where the has rea- opinion. will expect pro-
son to that the invitee
ceed to encounter the known obvious
danger because man in reasonable position advantages doing
his so outweigh
would risk.3 apparent
Accordingly, slip- obviousness of the
pery sidewalk that Ms. Green fell on potential not absolve from
should the bank 624-625, 343(A) (Second) § quoting f Id. at the Restatement of Torts cmt.