MEMORANDUM OPINION AND ORDER
Defendants/Third-Party Plaintiffs, Intercontinental Hotels Group Resources,
I. Relevant Background
This cases arises out of Plaintiff Karen Schmidt’s slip and fall on a patch of ice outside the Holiday Inn Lexington, Kentucky. On January 30, 2009, Schmidt traveled to Lexington for a Gambler’s Anonymous conference. DE # 49-1 (Memorandum) at 2. She arrived at the Holiday Inn at approximately 8:30 p.m. Id. Schmidt spoke to employee Dustin Cook, who checked her in. DE # 54 (Response) at 2-3. Plaintiff testified in deposition that Cook directed her to go outside the building to park her car and to enter the hotel from an outside entrance. DE # 54-1 (Schmidt Depo.) at 19. He then gave her a map of the hotel and hotel parking lot, circled entrance H, and directed her verbally on how to get there. Id. She further testified that Cook did not inform her that she could get to her hotel room from the front lobby without going outside. Id. There is no evidence that Plaintiff had been to the hotel before. DE # 54 (Response) at 13-14.
Schmidt relayed leaving the hotel lobby, driving her car to a parking spot, and walking from her car to the sidewalk. DE # 54-1 (Schmidt Depo.) at 19. Upon exiting her car, she noticed that the parking lot was “surrounded with patches of ice.” Id. at 21. She testified further that she walked “pretty gingerly” to the sidewalk area, carrying her suitcase in some areas, but that once she got to the sidewalk “it was clear” and she put her suitcase down. Id.
On the sidewalk, Schmidt pulled out her cell phone and called her friend, Diana Black. Id. at 22. Plaintiff stated that she rolled her suitcase with one hand, held up her phone with the other, also grasping her room key and papers. Id. She described the sidewalk as follows:
On the sidewalk, looking in front of me, there was snow to the left and right. Now it could have been ice underneath. I don’t know that, but I didn’t try to find out. But — anyway, but the sidewalk was clear; it was wet, very clear. And it had — like I said, there was definitely pebbles of salt. You could see that it had been salted and plowed because it was — or shoveled, I should say, at that area because you did see the snow on the right and left, I mean, as I was walking in.
Id. at 26.
Schmidt described her fall as follows:
I kind of put my arms back to try to catch my fall. You know, that’s what I remember. I fell hard enough that my legs were in front of me, and I was flat down, and I had hit my head. I didn’t hit my head extremely hard, as I said, or I would have — I mean, it would have been a lot — I would have not been in the shape to be able to kind of get my wits about me.
Id. at 27. Schmidt stated that she crawled over to the edge of the ice, stood up carefully, and examined where she fell. Id. at 30. Schmidt testified that she “was looking very close” and, for the first time, she
I don’t know how thick it was, but I can tell you that in parts of it, it was very thick. Some parts it didn’t appear it was — it seemed unlevel, but it was definitely covered. The whole entranceway from sidewalk to sidewalk out several feet was definitely covered, and, like I said, if you had — -I remember looking at a piece that had some crushed up looking ice, but that was more toward the door. That wasn’t what I hit. And I do recall that, and when she took — Diana and them took pictures, they used, you know, a flash and we could — I could really see it. You could actually see it better through the pictures than when you were standing there looking at it.
Id. at 31.
Plaintiff relayed speaking with Cook at least once after her fall. Id. She stated that Cook told her the recent weather had been the worst ice storm Lexington had ever seen, that the hotel was out of salt, and that he was aware of the ice at the H entrance because he had received other complaints. Id. at 41. She further testified that she told Cook she thought she would be okay. Id.
Schmidt filed the instant suit on January 26, 2010, seeking medical and hospital expenses, among other damages. Her husband also seeks compensation for loss of consortium. Holiday Inn impleaded the Third-Party Defendant, Bulls Eye Lawn and Landscape, on March 31, 2011. DE # 23 (Third-Party Complaint). Defendants moved for summary judgment on October 5, 2011 (DE # 49), Bulls Eye responded in favor (DE # 52), Plaintiffs responded in opposition (DE # 54), and Defendants subsequently replied (DE # 55). The Motion stands ripe for review. Kentucky law governs this diversity case. Erie Railroad Co. v. Tompkins,
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, a court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317,
A fact is “material” if the underlying substantive law identifies the fact as an essential element. Anderson,
III. Analysis
A. Open and Obvious Doctrine
As the Movant, Holiday Inn bears the burden of proving absence of a genuine dispute of any material fact. Defendants’ primary argument is that the open and obvious doctrine applies, resulting in an award of summary judgment in their favor because they owed no duty to Plaintiff. DE # 49-1 (Memorandum) at 6-9. Defendants’ Motion relies almost exclusively on the Kentucky Supreme Court’s holding in PNC Bank, Kentucky, Inc. v. Green,
Holiday Inn argues that the ice Schmidt encountered was open and obvious, as Plaintiff admitted awareness of the general icy conditions, stating that she had to walk “gingerly” and “where it was safest.” DE # 49-1 (Memorandum) at 8. In support of their argument, Defendants allege the following facts: (1) Plaintiff walked through the parking lot several times prior to her fall
Under Kentucky law, “[a]s a general rule, land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them.” Kentucky River Medical Ctr. v. McIntosh,
On this record, whether the risk was open and obvious is a fact question. Plaintiff arrived at the hotel at 8:30 p.m. in January. Although she acknowledges that the entrance did have some light, the nighttime conditions may have reasonably impacted her ability to perceive the ice patch. The plaintiff in Green fell at 1:30 p.m., unquestionably a daylight hour even in winter storm conditions. Green,
Importantly, Green involved ongoing precipitation. Id. (“[Plaintiff] admitted that the weather conditions were poor that day, with alternating periods of snow and freezing rain.”). In the instant case, although Lexington continued to suffer the after-effects of a winter storm, the area
In Green, one of landowner’s employees spread a melting agent on the sidewalk three times the morning of Green’s fall, but Green testified that “she did not see any salt on the sidewalk or notice that any measures had been taken to clear away the snow and ice.” Id. at 186. However, Schmidt described the sidewalk as “wet” but “clear.” DE # 54-1 (Schmidt Depo.) at 26. She was able to roll her suitcase, and though she testified that snow was to the right and left of the sidewalk, she denied seeing the ice patch on the sidewalk. Id. at 24, 26. Diana Black testified that she could see the ice only if she “walked up on it and looked for it,” noting that she would not have seen the ice had she not been looking for it. DE # 54-4 (Black Depo.). Black also relayed going back to look at the H entrance later that night and witnessing another guest fall on the same patch of ice. Id. at 28. Both Schmidt and Black’s testimony as to the relative clarity of the sidewalk leading up to the entrance, as contrasted to the six-foot ice sheet directly in front of the entrance, undercut the obviousness of the risk.
Further, Holiday Inn clearly undertook snow and ice removal measures.
As Kentucky has long held, “[W]hether a natural hazard like ice or snow is obvious depends on the unique facts of each case.” Schreiner v. Humana, Inc.,
On this record, the Court cannot say as a matter of law that the hazard Schmidt faced was open and obvious.
A jury must assess the obviousness of the risk.
B. Duty Posf-Mclntosh
Even if the ice was open and obvious, the Court also finds that the Kentucky Supreme Court’s holding in Kentucky River Medical Center v. McIntosh renders summary judgment inappropriate. Kentucky River Medical Ctr. v. McIntosh,
Consistent with that view, the court found that plaintiff, “in turn, had a duty to act reasonably to ensure her own safety, heightened by her familiarity with the location and the arguably open and obvious nature of the danger.” Id. at 394. The court upheld the trial court’s denial of directed verdict and judgment notwithstanding the verdict motions, finding that genuine issues of material fact were properly submitted to the jury. Id. at 395. The court found this approach consistent with Kentucky’s comparative fault doctrine, stating:
The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable. Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious.
Id. at 392. Thus, “the analysis recognizes that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on the defendant, despite its potentially open and obvious nature.” Id. at 390-91.
McIntosh held that foreseeability may exist when the possessor “ ‘has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.’ ” Id. at 390 (quoting Restatement (Second) of Torts § 343A(1) (1965)). Further, liability may be imposed if the land possessor expects that the invitee “will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” Id. (quoting Restatement (Second) of Torts § 343A(1) (1965)).
Plaintiff argues that her injury was foreseeable because Holiday Inn should have anticipated that Plaintiff would be distracted. While Holiday Inn had no reason to believe that Schmidt would not be tending “to each step she was taking,” id. at 393, several factors lead the Court to believe that Schmidt’s injury may have been foreseeable. Defendants knew that entrance H was icy: Plaintiff testified that following her fall she complained to a hotel desk clerk about the icy conditions and the clerk told her other individuals had also complained about ice at the H entrance. DE # 54-1 (Schmidt Depo.) at 17; see also DE # 54-4 (Black Depo.) at 27, 29.
Defendants’ Motion also alleges that “Plaintiff had walked across the parking lot three times and the sidewalks surrounding the Holiday Inn twice prior to her fall.” DE # 49-1 (Memorandum) at 8. Defendants provide no support for this statement, however, and Plaintiffs Response alleges that prior to January 30, 2009, she had never been (1) to the Holiday Inn or (2) on the subject sidewalk. DE # 54 (Response). In Green, the plaintiff was “thoroughly familiar with the structure.” Green,
If the hotel knew generally about the bad conditions and specifically about the danger at Entrance H, and yet sent Schmidt directly to that entrance, the ensuing harm arguably was foreseeable. Schmidt did not know the hotel. Based on Schmidt’s testimony, the hotel desk clerk directed her exclusively to Entrance H as
A land possessor and invitee being on equal footing (so to speak) relative to an open and obvious danger is one thing. A possessor that knows an area is dangerous and yet tells an invitee to encounter the danger is a different matter. The hotel surely could foresee that a guest, unfamiliar with the premises, would trust and follow the hotel’s entry advice, advice that later proved bad. The jury may blame Schmidt for some or all of the event, but it is the jury that must make the assessment.
Based on this analysis, a jury must determine whether Holiday Inn had “reason to expect that [Schmidt would] proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” Restatement (Second) of Torts § 343A.
An example from § 343A is illustrative:
A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.
Id. cmt. F, illus. 5; see also Wallingford v. Kroger Co.,
As the Commentary further states,
In determining whether the possessor of land should expect harm to invitees notwithstanding the known or obvious character of the danger, the fact that premises have been held open to the visitor, and that he has been invited to use them, is always a factor to be considered, as offering some assurance to the invitee that the place has been prepared for his reception, and that reasonable care has been used to make it safe.
Restatement (Second) of Torts § 343A cmt. G.. This is precisely the case here, where the hotel knew well the risk and sent Schmidt on a path that assured she would have to traverse the risk (or figure out on her own a different path). It is no surprise that Schmidt forged on as the possessor counseled.
The Court’s summary judgment conclusion is supported by the string of recent
Based on our reading of McIntosh, a trial court is required to determine whether the landowner met its duty to protect the invitee in all circumstances where it is foreseeable that the invitee might: be distracted; realize there is a danger but forget about that danger; or choose to ignore the danger because the benefit outweighs the risk.
Id. at *3. The plaintiff in Webb fell near the entrance of a busy retail store on a floor that was slick from rain. Id. at *1. The court denied summary judgment, finding that it was foreseeable that plaintiff would appreciate the wetness of the floor but proceed into the store anyway. Id. at *3. The Court agrees with Webb’s view that McIntosh states categorical principles
Nothing in the plain language of McIntosh limits its holding to man-made hazards or emergency situations. Further, following Webb, federal courts in Kentucky have also applied McIntosh more generally. See Lahutsky v. Wagner Moving & Storage, Inc.,
IV. Conclusion
Whether the ice was open and obvious is a fact question. Alternatively, the real question is foreseeability: if the ice was open and obvious, Holiday Inn still may have reasonably foreseen that Schmidt
Therefore, for the reasons discussed above, the Court DENIES Defendants’ Motion for Summary Judgment (DE # 49). On this record, judgment for Defendants as a matter of law is inappropriate.
Notes
. In accordance with Federal Rule of Civil Procedure 56, the Court discusses the facts in favor of Plaintiff Karen Schmidt, the nonmovant.
. Defendants' failure to cite Kentucky River Medical Ctr. v. McIntosh,
. There is no evidence of record to support this assertion.
. The Court, preferring a merits resolution, considers the marginally tardy filing.
. The extent of Holiday Inn's snow and ice removal on the day of Plaintiff's fall is unclear. James Springer testified in deposition that he used Ice Foe, a melting agent, on the sidewalks the morning of Plaintiff's fall. DE # 54-2 (Spring Depo.) at 45. The Court previously denied Bulls Eye's motion for summary judgment, finding that genuine disputes of material fact exist as to the extent of Bulls Eye’s snow and ice removal on January 30, 3009. DE #51 (Memorandum Opinion and Order). The record indicates that someone treated the sidewalk, but Holiday Inn told Plaintiff it had “run out” of salt at some point on the fateful day. DE # 54-1 (Schmidt Depo.) at 19.
. The Court does not decide whether the photos would be admissible, but the Court deems them sufficiently authenticated under Rule 56.
. Plaintiff contends that a material dispute exists over whether "the ice formed as a result of refreezing or ponding due to a depression in the pavement,” but she fails to allege any facts that would support such an allegation. DE # 54 (Response) at 12-13. Further, she does not allege a design defect claim. Plaintiff did testify in deposition that the area leading up to the entrance "seemed unlevel,” but she alleges no competent proof. Plaintiffs sloppy attempt to create a factual dispute about the "natural” formation of the hazard fails.
. Plaintiff argues that she did not know that the city of Lexington had been declared a state of emergency. DE # 54 (Response) at 2.
. In Estep v. B.F. Saul Real Estate Investment Trust,
. In the aptly styled Fatter v. Endicott-Mayflower, LLC,
In Shelton v. Kentucky Easter Seals Society, Inc., — S.W.3d-,