REVIEW FROM COURT OF APPEALS NO. 2016-CA-000194-MR KNOX
CIRCUIT COURT NO. 14-CI-00185
COUNSEL FOR APPELLANT: Bethany A. Breetz Michael D. Risley
STITES & HARBISON, PLLC Darrell L. Saunders DARRELL L.
COUNSEL FOR APPELLEE: Brien Glenn Freeman Todd Kevin Childers
Aaron Howard FREEMAN, CHILDERS & HOWARD
to property are classified according to one's purpose in
entering the property and whether such entry is with the
consent of the property's possessor. The standard of care
the possessor must exercise depends on whether the visitor is
present without the possessor's consent, i.e., a
trespasser; with the possessor's consent, i.e.,
a licensee; or with the possessor's consent as a member
of the public for whom the property is held open or for the
possessor's business, i.e., an invitee. In this
case, Bonnie Smith was injured while at her daughter
Barbara's house. The issue we must decide is whether the
Knox Circuit Court erred in giving jury instructions which
failed to account for Bonnie's status and misstated the
duty of care owed by Barbara. We hold that the trial court
did err, as did the Court of Appeals by affirming the trial
court's judgment. We therefore reverse the lower
courts' respective opinions and remand this matter for
further proceedings consistent with this opinion.
Factual and Procedural Background.
31, 2013, Bonnie arrived at her daughter Barbara's house.
Barbara claims that Bonnie came over on her own accord to
visit her great-granddaughter, whereas Bonnie claims she was
asked to come over by Barbara to babysit her
great-granddaughter after Barbara's long shift at work.
Prior to Bonnie's arrival, Barbara had mopped the back
deck with a soapy substance, making it slick and slippery.
When Bonnie arrived, Barbara told her that the child was in
the backyard, and Bonnie went through the house to the back
deck to see her. Bonnie slipped and fell on the deck and
suffered a serious injury to her right leg.
filed a complaint against Barbara and the case proceeded to
trial. At trial, Bonnie testified that she could tell the
floor was wet, but did not know of the floor's slick,
soapy condition. Bonnie's grandson testified that the
soap was visible. Barbara moved for a directed verdict at
both the close of Bonnie's case and at the close of
trial, on grounds that Bonnie was a licensee, and
uncontroverted evidence showed that the danger was not
hidden, thus preventing Barbara from being liable. Both
motions were denied. The trial court also rejected
Barbara's jury instruction regarding Bonnie's status
as a licensee, choosing instead to give a general
"ordinary care" instruction to the jury, as it
determined that Kentucky no longer followed the traditional
premises liability distinctions.
jury rendered a verdict in favor of Bonnie and apportioned
100% of the fault upon Barbara. The trial court denied
Barbara's post-trial motion for judgment notwithstanding
the verdict ("JNOV"). The Court of Appeals
affirmed. On appeal, Barbara claims that (1) the trial court
improperly instructed the jury regarding the law of premises
liability, and (2) the trial court should have directed a
verdict in Barbara's favor because of Bonnie's
apparent status as a licensee and testimony that the danger
was not hidden.
Standard of Review.
begin by looking at the standard of review for both improper
jury instructions and directed verdict motions. On appellate
review, "the substantive content of the jury
instructions will be reviewed de novo." Sargent v.
Shaffer, 467 S.W.3d 198, 204 (Ky. 2015). If the
applicable law given through the instruction is incorrect,
the error is presumed to be prejudicial. Harp v.
Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008).
"the considerations governing a proper decision on a
motion for judgment notwithstanding the verdict are exactly
the same as those ... on a motion for a directed
verdict[.]" Cassinelli v. Begley, 433 S.W.2d
651, 652 (Ky. 1968). "The trial court must draw all fair
and reasonable inferences from the evidence in favor of the
party opposing the motion[.]" Commonwealth v.
Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). Accordingly, a
directed verdict should not be granted unless "there is
a complete absence of proof on a material issue or if no
disputed issues of fact exist upon which reasonable minds
could differ." Bierman v. Klapheke, 967 S.W.2d
16, 18-19 (Ky. 1998). Lastly, "[t]he decision of the
trial court will stand unless it is determined that 'the
verdict rendered is palpably or fragrantly against the
evidence so as to indicate that it was reached as a result of
passion or prejudice."' Indiana Ins. Co. v.
Demetre, 527 S.W.3d 12, 25 (Ky. 2017) (quoting Lewis
v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461-62
slip and fall case, a plaintiff must prove negligence on the
part of the defendant. The first step in proving negligence
is determining what duty, if any, the defendant owed the
plaintiff. In the Commonwealth, under the doctrine of
premises liability, "a landowner has a general duty to
maintain the premises in a reasonably safe manner; and the
scope of that duty is outlined according to the
status of the plaintiff." Shelton v.
Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901,
909 n.28 (Ky. 2013) (emphasis added).
The "Ordinary Care" Instruction Misstated the
Law of Premises Liability.
trial, the court discussed with counsel several recent
premises liability cases and concluded that those cases
"came pretty close to getting rid of the licensee
/invitee distinction." Instead of instructing the jury
as to the difference between a licensee and an invitee, and a
possessor's duties to them, the judge simply gave the
It was the duty of the Defendant, Barbara Smith, to exercise
ordinary care to maintain her premises in a reasonably safe
condition for use of her guests, including the Plaintiff,
Bonnie Smith. "Ordinary care" as used in this
instruction generally means such care exercised by a
reasonable and prudent person under similar circumstances.
Do you find from the evidence that the Defendant, Barbara
Smith, violated her duty as set forth in Instruction No. 1,
and that such failure was a substantial factor in causing the
instruction was erroneous. When interpreting the doctrine of
premises liability, this Court has followed the Restatement
(Second) of Torts (1965). In Shelton, we held that
Section 343A, regarding open and obvious conditions, did not
"shield a possessor of land from liability because a
duty does not extend to the plaintiff[.]" 413 S.W.3d at
908. In like manner, this Court, when interpreting the
attractive nuisance doctrine, followed the Restatement
(Second) of Torts, holding that "a possessor of land is
subject to liability if he 'knows or should know that the
place is one upon which children are likely to trespass and
that the condition is one with which they are likely to
meddle.'" Mason v. City of Mt. Sterling,
122 S.W.3d 500, 507 (Ky. 2003) (quoting Restatement (Second)
of Torts § 339 cmt. e). Today, in the same fashion, we
continue to follow the Restatement (Second) of Torts
§§ 329-343, as "Kentucky law remains steadfast
in its adherence to the traditional notion that duty is r-
associated with the status of the injured party as an
invitee, licensee, or trespasser." Shelton, 413
S.W.3d at 909.
Commonwealth has followed this common law approach to the
scope of a possessor's duty for well over one-hundred
years. See S. R.R. Co. v. Goddard,121 Ky. 567,
574-75, 89 S.W. 675, 676 (1905) (discussing several
authorities on duties owed to licensees, trespassers, and
those who were on the premises by invitation). Under the
Restatement (Second) of Torts § 330, a licensee is
denned as a "person who is privileged to enter or remain
on land only by virtue of the possessor's consent."
A possessor of land owes a licensee a duty to "not