ON REVIEW FROM COURT OF APPEALS CASE NO. 2009-CA-000945-MR FAYETTE CIRCUIT COURT NO. 08-CI-01094
COUNSEL FOR APPELLANT: Joseph T. Pepper George Stephen Schuhmann
COUNSEL FOR APPELLEE: Gregory Kerr Jenkins Allison Marie Helsinger Melissa Ann Wilson COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION: Kevin Crosby Burke
MINTON CHIEF JUSTICE
While tending to her husband during his stay in Cardinal Hill Rehabilitation Hospital,  Wilma Jean Shelton became entangled in some wires strung along the side of his bed and fell, fracturing her kneecap. She later filed this personal injury action against Cardinal Hill, but the trial court dismissed her claim on summary judgment. The trial court reasoned that Cardinal Hill owed no duty of care to Shelton because the wires were an open-and-obvious condition. The Court of Appeals affirmed the trial court's grant of summary judgment but ruled before we rendered our decision in Kentucky River Medical Center v. Mcintosh. We granted discretionary review and remanded the case to the Court of Appeals for reconsideration in light of Mcintosh. The Court of Appeals again affirmed the trial court's dismissal. This appeal followed. We granted discretionary review to examine and clarify the impact of the modifications to Kentucky premises-liability law announced in Mcintosh.
Because we disagree with the result and the analytical approach taken by the Court of Appeals, we must now reverse. The opinion of the Court of Appeals retreated from the positive and progressive steps begun in Mcintosh by applying principles rooted in the bygone era of contributory negligence. And the Court of Appeals reached its result using a foreseeability and duty analysis—an approach we recognize as having widespread application in our precedent—that we find confusing and incompatible with modern tort law trends.
We alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a no-breach determination, dismissing a claim on summary judgment or directed verdict when there is no negligence as a matter of law, the plaintiff having failed to show a breach of the applicable duty of care. This approach places the reasonable-foreseeability analysis where it belongs—in the hands of the factfinders, the jury. This approach continues Kentucky's, along with a growing number of states', slow, yet steady, progress to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims. And this approach brings transparency and consistency to the decision-making and reasoning of Kentucky's judges.
I. FACTUAL AND PROCEDURAL BACKGROUND.
On the day she fell, Shelton visited her husband, Charles, a stroke victim, at Cardinal Hill, where he had been a patient for nearly five weeks. Cardinal Hill is, as its name suggests, an inpatient hospital that provides care for physical rehabilitation needs and medically complex patients.
Over the course of her husband's stay, Shelton visited him daily and performed various acts associated with his care. Shelton developed a routine of approaching her husband's bed and kissing him goodbye when it was time for her to leave him.
Shelton concedes that during these visits she was aware of the various wires, cables, and cords that extended out from the right side of her husband's bed to the wall. The bed was placed such that the only path of approach was the right side, the side where the cords were located. Shelton testified that she "tried to avoid" and "be careful of the cords. And Shelton's daughter testified that she complained to Cardinal Hill about the hazard created by the cords:
I had made mention - when a nurse was in the room I was like well why do all these cords have to be on the floor, they all go to different things which I understand that but it is a rehabilitation center, there are people walking around on walkers, that's the last thing they would need to have there especially since my stepdad, he's paralyzed on the left side, [it's] not the safest environment.
Just before she fell, Shelton applied a soothing cream to her husband's back, and then, per her routine, she bent over to kiss him goodbye before leaving for the night. As she turned to leave his bedside, her ankle became entangled in the cords; and she fell onto her knees and hands. Shelton's husband and daughter witnessed the fall and called for help. Shelton suffered a fracture of the lower third of the patella on her left knee. This personal injury action followed.
In the complaint initiating this case, Shelton contended that Cardinal Hill breached its duty to exercise reasonable care in maintaining its facility in a reasonably safe manner because of the cords being strung as they were. The trial court granted Cardinal Hill's motion for summary judgment, reasoning that these cords were an open-and-obvious hazard; and, as a result, Cardinal Hill owed no duty to Shelton. The Court of Appeals affirmed the trial court. Less than a month later, we rendered Mcintosh. We granted Shelton's motion for discretionary review and summarily remanded this case to the Court of Appeals to reconsider its holding in light of Mcintosh. Again, the Court of Appeals affirmed the trial court's summary judgment for Cardinal Hill, holding that Shelton was unable to provide evidence that would justify imposing a duty upon Cardinal Hill to protect Shelton from the open-and-obvious hazard. We granted discretionary review for a second time. We reverse.
Shelton argues that the courts below wrongly applied Mcintosh by merely labeling the wire hazard as obvious and then denying recovery. Shelton's main contention is that the focus should be on the foreseeability of the harm, not the obviousness of the danger. Accordingly, it is Shelton's position the trial court erred by granting summary judgment to Cardinal Hill because a jury was not allowed to compare the relative fault of the parties at issue. We agree, but for more nuanced reasons.
We must first begin by reviewing the standards to be used when handling summary judgment. Summary judgment is to be "cautiously applied and should not be used as a substitute for trial." Granting a motion for summary judgment is an extraordinary remedy and should only be used "to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." The trial court must review the evidence, not to resolve any issue of fact, but to discover whether a real fact issue exists. This review requires the facts be viewed in the light most favorable to the party opposing summary judgment. Here, the facts must be viewed in a light most favorable to Shelton.
Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So we operate under a de novo standard of review with no need to defer to the trial court's decision. The facts developed thus far in the litigation are undisputed. Traditionally, the remaining issue in this case would be framed as whether under these facts, as a matter of law, Cardinal Hill had a duty to either warn or remind Shelton of the obvious hazard or to eliminate the risk it posed. But, the question at the heart of this case is better framed as whether, as a matter of law, Cardinal Hill, an invitor, completely satisfied the duty of care it indisputably owed to Shelton, an invitee. Reframing the question in this way focuses the inquiry not on whether a duty existed, but whether the existing duty was fulfilled. Our jurisprudence is littered with examples of fact-specific no-duty determinations. But today we embark on a path that, in our view, will lead to greater clarity in this area of Kentucky's tort law.
A. Premises Liability and the Open-and-Obvious Doctrine Following Mcintosh.
The adoption of comparative negligence in the seminal case of Hilen v. Hays did not alter the requisite elements of a prima facie negligence claim. As a result of the holding in Hilen v. Hays, Kentucky became a pure comparative-fault state; but under comparative fault a plaintiff must still prove the defendant owed a duty to the plaintiff, breached that duty, and consequent injury followed. The evolution from contributory negligence to comparative fault focused on the method in which fault is allocated but did not alter the substantive law surrounding what duties are owed by a defendant. Comparative fault did alter the status of the plaintiff because the plaintiff may now recover despite being partially at fault for his injuries. With that evolutionary process firmly in mind, this Court can no longer perpetuate the flawed methodology that lingers in our conventional application of the open-and-obvious doctrine.
An open and obvious condition is one in which the danger is known or obvious. The plaintiff knows of a condition when she is aware, "not only ... of the existence of the condition or activity itself, but also appreciate^] . . . the danger it involves." And the condition is obvious when "both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment." Unlike in Dick's Sporting Goods v. Webb,  a case we also render today, the wires in this case were clearly open and obvious. Shelton was subjectively aware of the risk posed by the wires. And, objectively, a reasonable person in Shelton's position would recognize the risk.
Traditionally, the open-and-obvious doctrine stated, "land possessors cannot be held liable to invitees who are injured by open and obvious dangers." As a result, if a plaintiff was injured by an open and obvious hazard, the landowner, regardless of any negligent conduct on its part, had a complete defense to any asserted liability. But, in Mcintosh, we noted that a growing majority of states has moved "away from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions" and, instead, adopted the Restatement (Second) of Torts's approach to allow the jury to assess comparative fault. A target for criticism for well over fifty years, the open-and-obvious doctrine persists in our jurisprudence. In Mcintosh, we took steps to ameliorate the harsh effect of the open-and-obvious doctrine for injured persons seeking recovery. We adopted the Restatement (Second) of Torts Section 343A and held that "lower courts should not merely label a danger as 'obvious' and then deny recovery. Rather [the courts] must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger." According to Section 343A, harm to the invitee is reasonably foreseeable despite the obviousness of the condition "where 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" and, also, "where the possessor has reason to expect 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 ...