DICK'S SPORTING GOODS, INC. APPELLANT
BETTY C. WEBB APPELLEE
ON REVIEW FROM COURT OF APPEALS CASE NO. 2010-CA-001194-MR FAYETTE CIRCUIT COURT NO. 08-CI-04183
COUNSEL FOR APPELLANT: Phillip A. Sammons Jason Michael Nemes
COUNSEL FOR APPELLEE: Kelly P. Spencer Bradly F. Slutskin
COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION: Kevin Crosby Burke
MINTON, CHIEF JUSTICE
On a rainy day during the busy Christmas shopping season, Betty Webb entered Dick's Sporting Goods. As she walked in, she noticed that the mats covering the tile floor at the front of the store had shifted and a puddle of water had collected between the mats. Webb attempted to avoid the puddle by stepping onto a nearby tile, which she believed was dry. But that tile was wet. Webb slipped and fell to the floor, allegedly sustaining substantial injuries.
Webb sued Dick's Sporting Goods, claiming the store was negligent in maintaining its premises. Dick's Sporting Goods denied that it owed any duty to Webb because the condition of the floor that day was open and obvious. The trial court granted summary judgment in favor of Dick's Sporting Goods on open-and-obvious grounds. The Court of Appeals, in reliance on our opinion in Kentucky River Medical Ctr. v. Mcintosh,  reversed the trial court's grant of summary judgment.
We granted discretionary review to analyze further, given the different circumstances presented by this case, the reach and effect of Mcintosh. But after reviewing the record in this case, we do not perceive our holding in Mcintosh as governing. We simply do not view this as an open-and-obvious case. Although we affirm the holding of the Court of Appeals that the trial court erred by granting summary judgment, we differ with the Court of Appeals on the reasons for so holding. Dick's Sporting Goods had an affirmative duty to maintain its store premises in a reasonably safe condition, and whether Dick's Sporting Goods breached that duty is a question for the jury to decide.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Betty Webb and her neighbor ventured out in pouring rain to do some Christmas shopping at Dick's Sporting Goods. Upon her arrival, Webb noticed puddles in the parking lot and proceeded cautiously to the store's entrance. As Webb entered the store, she immediately stepped onto floor mats that Dick's Sporting Goods had placed in the entryway to soak up water tracked in by customers. Webb saw the floor mats had shifted from their customary parallel formation into a "V" shape. A visible pool of water had formed in the center of the "V." According to Webb, the mats were wet and spongy. Dick's Sporting Goods placed no signage at the front of the store to warn customers that the floor may be wet.
A crowd of other customers attempting to enter Dick's Sporting Goods at the same time surrounded Webb. In an attempt to avoid the visible pool of water in the "V, " Webb stepped off of one of the mats and tried to step onto a tile that appeared to her to be dry. But in fact the tile was wet. As she stepped onto the tile, she slipped and fell forward, injuring her knees, arms, and shoulders. A store employee witnessed the fall.
Webb brought this action against Dick's Sporting Goods. In Webb's discovery deposition, she acknowledged that there were a number of fellow customers entering the store at the same time, which made it difficult for her to avoid the pool without pausing momentarily and waiting for people to pass. Webb acknowledged that her shoes were wet and that the lighting in the store was bright. Webb also admitted that had Dick's Sporting Goods placed a sign near the entrance to warn of wet floors, the warning probably would not have dissuaded her from entering the store.
Dick's Sporting Goods moved the trial court for summary judgment, asserting that the wet floor causing Webb's injury was an open-and-obvious condition, which barred Webb's claim because the open-and-obvious condition eliminated any duty potentially owed to Webb. The trial court agreed with the position of Dick's Sporting Goods, ruling that there was no duty to eliminate or warn of the water because of its open-and-obvious nature.
Webb appealed to the Court of Appeals. During the pendency of the appeal, we rendered Mcintosh. Mcintosh, emphasizing a landowner's unwavering general duty of reasonable care, sought to modernize and clarify our jurisprudence involving open-and-obvious hazards. Reversing the trial court in this case, the Court of Appeals relied heavily on Mcintosh to hold that (1) Dick's Sporting Goods had a duty to take reasonable steps to eliminate or reduce ...