In Kentucky, if you are injured on a property that is not your own, you may have rights to recovery money for your damages. We have represented many people who have been injured due to the negligence or carelessness of a property owner. Premises liability covers many areas of law including, slip and falls, falling objects, broken staircases, broken railings, falling trees, wet floors, uneven pavement, unsafe carnival rides, dangerous amusement park rides, deadly roller coasters, unsafe construction sites, train tracks, electrical wires, open holes in the ground, broken furniture, trip hazards such as wires, uneven curbs, and many other types of hazards that can cause injury. In any civil case there are two important aspects: liability and damages. Liability means determining who was at fault. Damages is how badly someone is hurt.
For years Kentucky went by what was known as the “open and obvious” rule. This meant that if a hazard was readily visible to a person they could not recover money for their injuries. However, in recent years the Kentucky Supreme Court has done away with the “open and obvious” rule. (see, Kentucky River Medical Center v. McIntosh (Ky. 2010) and Shelton v. Kentucky Easter Seals Society, Inc. (Ky. 2013)). These decisions have drastically changed the landscape of premises liability cases in Kentucky. Kentucky operates on a pure comparative fault basis. That means that even if a person is 90% at fault for their own injuries they can still recover money against the other person who is 10% at fault. So the “open and obvious” rule was flatly against Kentucky’s pure comparative fault approach to negligence. According to the open an obvious rule if a person could see a hazard it cut off their ability to recover for damages. So even if they did not truly appreciate the danger or were only a small percentage at fault they could still not recover for their injuries. The court in McIntosh and Shelton remedied this problem by doing away with the “open and obvious” rule and ruling that these cases should be judged on a pure comparative fault basis just like other negligence cases. That means that a jury would be allowed to weigh each person’s own negligence or fault depending on the particular situation.
It should be noted that five years after McIntosh, insurance companies and adjusters are still not aware of the change in the law. Many times claims are denied because an adjuster or insurance company still believes that the “open and obvious” rule still applies in Kentucky. It is important to educate adjusters on the current state of premises liability law in Kentucky, and encourage them to speak with their own attorneys. Often if an adjuster can be educated on the law in Kentucky, cases can be resolved without litigation. There are still times when premises liability cases will have to be litigated. Our attorneys have successfully litigated and even tried premises liability cases to juries.
Premises liability cases are often controversial cases. Most of the public does not understand the dangers that unsafe conditions pose. It is important to remember that in the case of a commercial business where people are invited for the purpose of commerce, safety is a must. It would be wrong for a business such as a theater to pack its building full of people without proper fire exits. Similarly it would be wrong for a large store to allow unsafe racks of merchandise fall on the customers it hopes to make money from. The fact that a business is profiting from people means that business owes those people a duty to make sure they are not being lured into an unsafe environment.
It is important to realize that anyone could be the victim of a premises liability accident. When someone is hurt, it is not always someone else’s fault, but it is important to speak with an attorney who can evaluate the rights of the injured person and see whether they are owed compensation under the law. If you or someone you love is injured – for any reason, in any situation – call one of our attorneys today. The consultation is free and no fee is ever charged unless we recover money for the injured victim.