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Grubb v. Smith

Supreme Court of Kentucky

August 24, 2017



          RENDERED MARCH 23, 2017

          COUNSEL FOR APPELLANTS: Yancey Lee White Morgan & White Law Offices

          COUNSEL FOR APPELLEES: David Andrew Owen Brian Michael Johnson Matthew Atwood Stinnett Dickinson Wright PLLC

          COUNSEL FOR AMICUS CURIAE: Christopher W. Goode Bubalo Goode Sales 85 Bliss PLC



         This case has had a long procedural history, including two attempted removals to federal court, two trips to the Court of Appeals, and now a second visit to this Court, but it began life as, and remains, a fairly straightforward personal injury suit arising from a February 1, 2007 trip-and-fall at the Speedway SuperAmerica filling-station in Manchester, Kentucky. In the ensuing 2010 bench trial, the Clay Circuit Court found for Plaintiffs, Teresa Grubb and her husband Randy Grubb, and against Speedway SuperAmerica LLC (Speedway), the store's owner, and Roxanne Smith, the store's manager at the time of the accident (collectively "Defendants"). The trial court awarded the Grubbs some $200, 000 damages, including an award of $175, 000 to Teresa for pain and suffering.

         On appeal, the Court of Appeals, invoking the common-law's open and obvious doctrine, reversed and remanded for entry of a defense judgment. This -Court granted the Grubbs' motion for discretionary review. Noting our then recent attempts (in such cases as Kentucky River Med. Ctr. v. Mcintosh, 319 S.W.3d 385 (Ky. 2010); Dick's Sporting Goods v. Webb, 413 S.W.3d 891 (Ky. 2013); and Shelton v. Kentucky Easter Seals Soc. Inc., 413 S.W.3d 901 (Ky. 2013)) to modernize the open and obvious doctrine and to harmonize it with our tort law's shift to a regime of comparative negligence, we remanded to the Court of Appeals for reconsideration in light of our recent precedent. On remand, the Court of Appeals panel found its prior ruling consistent with our recent cases and so stood by its original determination that the Grubbs' claims failed in their entirety.

         We again granted the Grubbs' motion for discretionary review, and because we agree with them that the Court of Appeals panel read Mcintosh and its progeny too narrowly, we reverse the panel's ruling. Our reversal reopens certain issues the panel's ruling rendered moot. Ordinarily, we would remand the matter to the Court of Appeals for its consideration in the first instance of those now resurrected issues. Given the long delays the parties have already endured and the fact that those issues have been briefed by the parties, however, we depart from our usual practice and address additional issues concerning the liability of store manager Roxanne Smith, the comparative fault of Teresa Grubb, and the trial judge's denial of a post-judgment motion to recuse. The upshot is our conclusion that the trial court erred by failing to consider whether Teresa Grubb shared responsibility for the accident, and, in light of certain undisputed facts, by failing to find that she did. We further conclude that the trial court erred in finding Smith jointly and severally liable with Speedway on the Grubbs* claims. Finally, we affirm the trial court's denial of the twelfth-hour recusal, motion. Accordingly, we reverse and remand this case for further proceedings consistent with our Opinion.


         According to several witnesses at trial, including Teresa, at about 8:30 p.m. on February 1, 2007, she exited the convenience-store portion of the Speedway filling station in Manchester and was walking back to her car after she and a friend had paid for gasoline and purchased beverages. Teresa caught her foot in an eroded patch of asphalt in the middle of the driveway between the station's two parallel gas-pump islands and fell. The fall resulted in a broken ankle, a wrenched knee, and burns from the hot coffee Teresa had just purchased.

         Teresa's testimony, the testimony of eye witnesses to the accident, and the testimony of Teresa's husband all tended to establish that Teresa experienced significant pain at the time of the accident and during its immediate aftermath. Teresa and her husband testified that then and continuing through the early stages of her recuperation, Teresa was to a large extent incapacitated and was forced to rely heavily on her husband for personal assistance and for household maintenance. And even after her ankle had healed (which her physician testified occurred within a year of the accident), N

         Teresa continued to experience discomfort when she walked and swelling in her ankle if she stayed on her feet for extended periods. She testified that she was no longer able to wear high-heels, to go dancing, or to ride recreational vehicles, something she and her husband had enjoyed doing together. Her physician testified that those residual consequences of the injury could well prove permanent. Hospital, physician, and pharmacy records established that Teresa incurred medical expenses of slightly less than $5, 800.

         For these losses-the expenses incurred, Teresa's pain and suffering, her lost abilities and enjoyments, and her husband's lost consortium-the Grubbs sought $2 million from Speedway and its store manager Smith. According to the Grubbs, by opening the premises for business purposes Defendants incurred duties to .ensure that the premises were reasonably safe for business invitees such as Teresa. Defendants had breached those duties, the Grubbs maintained, by failing to fix in a timely manner the eroded asphalt that tripped Teresa up.

         Smith testified that she began working at the Manchester store, in October 2004 and was promoted to manager in October 2006, some three or four months prior to Teresa's accident. Smith acknowledged that her employment duties included inspecting, at regular intervals, the store's exterior premises; policing them for trash and rubbish; sweeping the walkways; and reporting to the "store support" office, via an email, any "large cracks and potholes" in the gas-pump and parking areas. "Store support, " according to Smith, was responsible for referring such reports to a repair person. Smith also acknowledged that she had a budget of up to $100 per day for such immediate necessities as "replacing a burned out light bulb, " but she denied having the authority, much less the responsibility, either to make driveway repairs on her own or to contact a repair person directly without going through "store support." Smith further testified that while she was familiar with the worn patch of asphalt by the drain-she saw it at least once every day, every time she emptied out a bucket of mop water-she had not reported it to "store support, " because in her view it was not hazardous, not the sort of "large crack [or] pothole" Speedway wanted her to report.

         Other employees testified similarly. They knew from emptying mop buckets that the asphalt by the drain had worn, but the worn patch did not strike them as hazardous. Employee testimony also tended to establish that the drain area was well lit in the evenings; was not obscured by cars parked at the gas pumps; and, although there was, because of the pumps, heavy pedestrian traffic in that area, the worn asphalt had not caused any other customer to trip or even to complain.

         Photographs introduced by both sides showed that the driveway area directly between the two pump islands was surfaced with concrete, and, as noted, testimony indicated that that area was also canopied and lighted. Beyond the concreted area between the islands, the driveway/parking portion of the premises was surfaced with asphalt. The drain was located about midway between the pump islands and toward one end of the concrete portion of the drive. It was set into the drive so that its cover was flush with the surface of the concrete. One side of the drain lay near the concrete/asphalt boundary, and it was there, the photo exhibits show, near that side of the drain, that an irregularly shaped patch of the asphalt-a foot square, perhaps, more or less-had weathered and eroded. The erosion varied from just a fraction of an inch to what appears to be, in a small area, at least two inches and probably more. One photograph shows erosion through the top layer of asphalt to a second or even third layer below.

         Defendants maintained that they had no duty to do anything about this asphalt area because it was in plain view-"open"-and the risk it posed to pedestrians, such as it was, was apparent-"obvious." Under the common law's "open and obvious" doctrine, they argued, such conditions do not pose an "unreasonable" risk of injury to business invitees-the invitees being well able to protect themselves from such risks-and thus do not conflict with the premises owner's duty to ensure that the premises are "reasonably" safe. Smith maintained, additionally, that her limited employment duties as store manager did not subject her to liability to the Grubbs.

         The trial court, the finder-of-fact in this bench trial, rejected Defendants' characterization of the area where Teresa Grubb fell. In its view, as expressed in the "Findings" portion of its Judgment, the photo exhibits showed a significant tripping hazard, a "hole" which Defendants should have realized might go unnoticed by an invitee. The court found that the hole rendered the premises unreasonably unsafe and thus triggered Defendants' duty to mitigate the risk. Their failure to do so constituted a breach of their duty, according to the court, and that breach caused injuries to Teresa and her husband, including what the trial court deemed Teresa's "significant and prolonged" pain and suffering.

         In the "Conclusions" portion of its initial Judgment, the trial court held that Speedway was vicariously liable for the "acts and/or failure to act on the part of its employees, Roxanne Smith, et al, under the Doctrine of Respondeat Superior." The court also held that Speedway's liability rendered moot "the individual claim against Roxanne Smith." In a Kentucky Rule of Civil Procedure [CR] 59.05 motion to alter or amend, Speedway (without, it appears, acknowledging a potential conflict with Smith) objected to the apparent inconsistency of finding it vicariously liable for Smith's, actions when her direct liability would never be conclusively determined.

         Following the motion, the trial court amended its Judgment to find that Smith's duty to inspect, sweep, and remove trash from the premises together, with her $100/day necessities budget "constituted a level of supervision and control of the premises that created on the part of the Defendant, Roxanne Smith, the legal duty of a possessor of the property in question to business invitees." The court further found that Smith breached that duty and she was jointly and severally liable for the $200, 762 in damages awarded to the Grubbs.

         At the same time that Speedway filed its motion to alter or amend, Speedway and Smith filed a motion "for recusal and a new trial." Defendants moved the trial judge, Judge Oscar House, to order a new trial and to recuse. The recusal motion was premised on allegations aired (after the trial in this case) in the course of a criminal trial in the United States District Court for the Eastern District of Kentucky. According to Defendants, those allegations linked Judge House and the Grubbs' attorney, Yancey White, to a Clay County, Kentucky vote-buying conspiracy, which in turn lent an air of impropriety to Judge House's ruling on a matter of direct interest to Mr. White. Defendants maintained that the relationship suggested in the federal case "between Judge House and Mr. White calls into question the rulings received by these Defendants and other parties in similar circumstances."

         Denying that motion, Judge House opined that the unsupported allegations mentioned during the federal trial did not amount to the sort of substantial evidence of impropriety or bias that justifies or requires recusal. Furthermore, Judge House noted that while the federal court allegations were aired in March 2010 (after the January 2010 trial in this case), Defendants waited until after entry of the August 9, 2010 Judgment to raise their concerns. In the judge's view, Defendants' "failure to bring the matter to the Court's attention in a timely fashion" amounted to a waiver of whatever right to complain they may have had.

         On appeal to the Court of Appeals, Defendants challenged the trial court's application of the "open and obvious" doctrine and they sought review regarding Smith's individual liability, Teresa Grubb's comparative fault, and Judge House's refusal to recuse. While acknowledging it was dicta, the appellate panel deemed clearly erroneous the trial court's conclusion that Smith's employment duties were such that she could be held liable to business invitees in the same manner as the premises owner. The Court of Appeals' main ruling was that the trial court had erred by failing to apply the "open and obvious" rule to the clearly visible parking-lot imperfection at issue. In their view, the imperfection was of a type so common and so universally anticipated and observed by invitees that it could not, absent some exceptional circumstance, give rise to the premises owner's liability.

         The panel noted that since the entry of the trial court's Judgment, this Court had rendered its Opinion in Mcintosh, supra, [1] and it acknowledged that Mcintosh recognized an exception to the open and obvious rule for cases in which, notwithstanding the hazard's obviousness, the possessor of the premises could reasonably foresee that an invitee would fail to avoid it. In the panel's view, this exception was meant to be a narrow one, limited to situations where "it was foreseeable that the plaintiff would be distracted and not observe or appreciate the danger." There being no evidence in this case of a distraction or of any other exceptional circumstance, the panel concluded that the Mcintosh exception did not apply and that under the common-law rule Defendants were entitled to judgment as a matter of law.

         We granted the Grubbs' discretionary review motion, vacated the Court of Appeals' Opinion, and remanded the matter to that court for reconsideration in light of two cases subsequent to Mcintosh, namely Dick's Sporting Goods v. Webb, 413 S.W.3d at 891, and Shelton v. Kentucky Easter Seals Soc. Inc., 413 S.W.3d at 901.[2] As noted in those Opinions, both are attempts to refine and to clarify Mcintosh and further to explore and to articulate, in the context of premises liability and the "open and obvious" rule, the seismic effects of Kentucky's shift to comparative fault. Specifically, Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984) and KRS 411.182 embody Kentucky tort law's version of the now virtually universal shift from the old common law's complete defense of contributory negligence, in its many guises, toward a new regime in which a plaintiffs own negligence no longer bars his or her claim.

         Under the comparative-fault regime, the fact finder is tasked with apportioning fault for the plaintiffs injuries between (or among) those responsible, with the defendant's liability for the plaintiffs damages proportionate to his or her share of the fault. The new system is designed to protect defendants, including premises-liability defendants, from being saddled with liability for the plaintiffs own negligence and thus greatly reduces (theoretically, at least) the need for common law rules designed to limit the land possessor's duties of care toward the particular plaintiff. To the extent that those old rules survive, as the Court's discussion in Mcintosh, Dick's Sporting Goods, and Shelton indicates, their application needs to be reassessed and made to harmonize with the new comparative-fault system.'[3] Emphasizing the new system's heavy reliance on jury (or fact-finding judge) apportionment of fault, Mcintosh and its progeny strongly counseled courts, trial and appellate, not to short circuit premises liability cases by easy resort to the old-school type of "no duty" ruling. Such rulings should henceforth be reserved, rather, for classes of cases genuinely implicating public policy concerns of sufficient weight to justify an exception to the basic premises liability rules.

         Notwithstanding those exhortations, on remand the Court of Appeals panel did not read Dick's Sporting Goods or Shelton as extending what it viewed as Mcintosh's narrow exception to the very alive-and-well open and obvious doctrine. Having already determined that the Mcintosh exception did not rescue the Grubbs' claims, the panel readily concluded that Dick's Sporting Goods and Shelton did not rescue them either.[4] Reinstating its prior order, the appellate court again reversed the trial court's Judgment and remanded the matter for entry of a judgment dismissing the Grubbs' claims.

         On this second discretionary review, the Grubbs insist that the Court of Appeals' application of the "old style" open and obvious doctrine misses the point of Mcintosh and its progeny, and amounted in this case to appellate usurpation of the trial court's fact-finding role. Our analysis begins with consideration of these claims. -


         I. Speedway and Smith Were Not Entitled to a Directed Verdict Under The Open and Obvious Rule.

         To begin at the beginning, this is a premises liability case involving the long-recognized subclass of "business premises" and the duties a possessor of such premises owes to "business invitees." In Shelton, we noted that in Kentucky the general rule in such cases is, and has long been, that "a possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them." 413 S.W.3d at 909 (citing Mcintosh, 319 S.W.3d at 388). Conversely, conditions on the land that are not unreasonably dangerous do not implicate the land possessor's duty of care, and thus injuries arising from such conditions cannot give rise to the possessor's liability. The Restatement (Second) of Torts, § 343 (1965). The main questions before us, then, are whether the asphalt area where Teresa tripped did or did not amount to an unreasonably dangerous condition, and who gets to make that determination.[5]

         Under the old common law, the rule developed that conditions on the land could not be deemed unreasonably dangerous if they were "known to the visitor or so obvious to him that he may be expected to discover them." Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 528 (Ky. 1969). "Obvious, " for these purposes, meant "that 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, " Bonn, 440 S.W.2d at 529. Such "obvious" risks could not be deemed unreasonable because the invitee could be expected to protect him or herself from them. Indeed, many of the early cases reiterate that invitees should be expected to protect themselves, otherwise the land possessor would become an insurer of their safety. See, e.g., Humbert v. Audubon Country Club, 313 S.W.2d 405 (Ky. 1958) (citing J.C. Penney Co. v. Mayes, 255 S.W.2d 639, 643 (1952)).

         As we discussed in Mcintosh, this "open and obvious" rule, while not necessarily derived from the more general contributory negligence rule, has obvious affinities to it, as several old cases make clear by often referring to both in the same breath. The open and obvious rule came to be applied in much the same way as contributory negligence: as a rule of law whereby courts, by labeling a condition on the property "obvious, " in effect precluded jury consideration of the condition's reasonableness. That, as our recent cases have tried to make clear, is a problem.

         From United States v. Carroll Towing Co., 159 F.2d 169 (2nd Cir. 1947) to the Restatement (Third) of Torts: Phys. & Emot. Harm (2010) (See section 3, Negligence), it has been widely understood that the reasonableness of a risk involves some manner of balancing the costs or burdens of mitigating it against the likelihood and severity of the injuries it threatens. In our law, that determination, that balancing is ordinarily deemed a matter of fact to be addressed by the jury. Shelton, 413 S.W.3d at 914; see also Restatement (Third) of Torts: Phys. & Emot. Harm, § 8, Judge and Jury (2010). As Mcintosh and Shelton explained, however, application of the "open and obvious" rule tends to frustrate that intended jury function.

         As we further discussed in Mcintosh, the gradual demise of contributory negligence as a complete defense in favor of the comparative fault approach to protecting defendants from liability for the plaintiffs negligence, as well as the Restatement (Second) of Torts3 important observation that the "open and obvious" rule has significant qualifications[6] made, or should have made, the determination of whether an "obvious" risk-posing condition on the land was reasonable or not very fact dependent again. Consequently, this shift should -have restored the jury's principal role in making that factual determination.

         Our Mcintosh line of cases, including Dick's Sporting Goods, Shelton, and now Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015), reflect our determined effort to effect that restoration and to limit holdings, at trial or on appeal, that an obvious, risk-posing condition on the property is "not unreasonable as a matter of law, " to those rare instances where they are justified. For example, public policy may require that a frequently recurring type of risk-creating condition be deemed not unreasonable and thus excepted from a land possessor's general duty of care.[7] Similarly, in some, albeit rare, instances summary judgment or a directed verdict is appropriate because "the plaintiffs conduct in the face of an open and obvious hazard [was] . . . clearly the only fault [sic] of his injury . . . [as] for example when a situation [a risk-creating condition on the property] cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable." Carter, 471 S.W.3d at 297 (citing generally Shelton, 413 S.W.3d at 91 l-918).[8]

         If Mcintosh and its earlier progeny left any doubt about our intention to return most open and obvious cases to jury consideration, the majority's Opinion in Carter should lay all such doubts to rest. As the Carter Court held, "all open and obvious hazard cases, including obvious natural outdoor hazard cases, are subject to the comparative fault doctrine." 471 S.W.3d at 289-90. Since here, in our view, the Court of Appeals panel clearly violated that "doctrine, " by substituting its view of reasonably debatable facts for that of the fact-finder, we must reverse its decision.

         In concluding that Defendants were entitled to judgment as a matter of law, the Court of Appeals panel suggests that this case involves either or both of the exceptions noted above, i.e., either no rational fact-finder could deem Teresa's injuries the result of anything but her own fault, or, as a general matter of public policy, small, "everyday" paving flaws such as the one at issue should not be deemed unreasonably dangerous. With respect to the panel's first concern, it notes that the risk-creating condition in this case, the "hole" as the trial court labeled it, was indeed obvious. There was no dispute that it was in plain view in a well-lit area. .Further, Teresa admitted that she failed to observe the hazard, not because it was obscured or because she was distracted, but simply because she was talking to her friend and not paying attention to where she was walking.[9] Citing City of Mayfield v. Hamlet, 227 Ky. 758, 13 S.W.2d 1051 (1928), which also involved a trip occasioned by a paving defect, the panel opined that Speedway was not obliged to anticipate that one of its invitees "would blindly walk through its parking lot oblivious to common imperfections, " the imperfection in this case being "only a danger to the unwary." As their reliance on this old contributory negligence case might suggest, the Court of Appeals' ruling misses the comparative-fault point we have labored to make since Mcintosh.

         To be sure, "[t]here is in general no duty to anticipate and take precautions against the negligence of another person." Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1265 (7th Cir. 1986). Davis involved the negligence claims of a railroad inspector (Davis) whose legs were severed when the train, one of the cars of which he was inspecting, began moving without any warning. Davis was himself concededly negligent, because he failed to post the blue warning flags custom and regulation required when a train inspector undertook his duties. In resisting Davis's claim that it could be deemed negligent for not giving any warning prior to moving the train, the railroad company cited the general rule just noted to the effect that it had no duty to anticipate Davis's breach of his own duty to look after himself. The Seventh Circuit Court of Appeals acknowledged the general rule, but explained an important caveat.

         The Court noted that in jurisdictions, such as the one where Davis's injury occurred, "where the complete defense of contributory negligence has given way to the partial defense of comparative negligence, " if "precautions necessary to prevent an undue risk of injury to persons who are exercising due care are omitted and a careless person is injured as a result, then . . . the careless victim can recover some damages. But he can do so, in general, only if there was a breach of duty to the careful.'' Id.

         Here, of course, the Court of Appeals asserted that Speedway breached no duty to the careful, since the pothole "was a danger only to the unwary." We disagree. Teresa did not fall into a grease pit. See Bonn, 440 S.W.2d at 527. As emphasized in Mcintosh and its progeny, an obvious risk-posing condition on the property can be unreasonable if, despite the obviousness, the property possessor can still anticipate someone's being injured by it. While there was no serious dispute that the "hole" here was "obvious, " for these purposes, [10] neither was there any dispute that it was located in an area-the driveway directly between gas-pump islands-heavily trafficked by both pedestrians and automobiles. A reasonable fact-finder could readily have believed that Speedway could and should have anticipated a duly cautious pedestrian's being distracted momentarily by a moving car or blinded momentarily by a car's headlights so as to encpunter the pothole notwithstanding its obviousness. Under the comparative fault doctrine, since Speedway could reasonably be thought to have breached its duty to the careful, Teresa's claim remained viable even though by her own admission she was - careless.[11]

         The Court of Appeals, citing Lugo v. Ameritech Corp. Inc., 629 N.W.2d 384, 389 (Mich. 2001), another "pothole" case, also suggested that because potholes and other minor flaws in walkways are so common, pedestrians should anticipate them and those minor flaws should be deemed, as a matter of law, not to pose an unreasonable risk of injury. Along these lines, a number of jurisdictions have adopted so-called trivial-defect rules, under which pavement flaws satisfying some standard of minimalness are deemed not unreasonable.[12] The rationale for such rules, generally, is that, because there is no such thing as a flawless pavement, to impose a requirement on land possessors to address minor flaws "would be to place upon them too great a financial burden/ Elstun v. Spangles, Inc., 217 P.3d 450, 454 (Kan. 2009).[13]

         Kentucky has not adopted a "trivial defect" rule, but in Shelton, as Defendants point out, the Court noted that risks posed by obvious conditions on the premises will sometimes, absent countervailing circumstances, not be unreasonable. Such a risk "Is not unreasonable, m we observed, "*if a reasonable person in the defendant's shoes would not take action to minimize or avoid the risk.w 413 S.W.3d at 914 (quoting Dobbs, The Law of Torts § 143, p. 335 (2001)). One of the examples the Court gave of an open and obvious condition that might pose only a reasonable risk was "a small pothole in the parking lot of a shopping mall.'' Id. Speedway urges us, in effect, to fashion from this example a trivial defect rule under which all "small potholes, " at least all "obvious" ones (such as the hole in this case) are deemed "not unreasonable" as a matter of law. Without some such rule, they complain, how "may a property owner ever obtain summary judgment or a directed verdict in Kentucky?" We are certainly familiar with their lament, but decline the invitation.

         Even if the Carter majority's seeming disavowal of the very idea that public policy might have anything legitimate to say about open and obvious defects (and hence land-possessor duties with respect to them) were not still reverberating in our ears, we-would not entertain a "trivial defect" rule in this case. Simply put, we cannot accept Speedway's and the appellate panel's characterization of the hole at issue as necessarily "trivial."

         Speedway's description of the pothole's size-"a one-inch deep depression in a well-lit area of a parking lot, "-was supported to some extent by Smith's testimony and by one of the photographs Defendants introduced during her testimony. It was contradicted, however, by the Grubbs' testimonies, and is belied, as noted above, by other photographic evidence, which shows inches-deep erosion in some parts of the affected area through at least one layer of asphalt.

         In Shelton, we emphasized that under the comparative-fault approach to "open and obvious" conditions, the approach we endorsed and outlined in Mcintosh, "summary judgment remains a viable concept." 413 S.W.3d at 916. We cautioned, however, that under that approach the question of "the unreasonableness of the risk of harm" of such a condition, will almost always be "properly categorized as a factual one, " le., that summary judgment (or t directed verdict) will be appropriate only when, under all the circumstances of the given case, "reasonable minds cannot differ" on the unreasonable-risk question, or "when only one reasonable conclusion [as to that question] can be reached." Id.

         By any meaningful standard, the "trivialness" of the pothole or the "reasonableness" of the risk in this case was subject to rational disagreement. It was, therefore, a question for the finder of fact. The trial court's finding that in the circumstances of this case (in particular the hole's location in a heavily trafficked area), the relatively small hole still constituted an "unreasonably dangerous condition on the business premises, " was not clearly erroneous, and thus the Court of Appeals erred when it substituted its different take on the evidence. Lawson v. Loid,896 S.W.2d 1, 3 (Ky. 1995) ("The findings of the trial judge may not be set aside unless clearly erroneous with due ...

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