FRANKFORT, Ky. (Legal Newsline) - A municipal waterpark may have to pay money to a woman who burned her feet on hot pavement after the Kentucky Court of Appeals overturned a lower court’s grant of summary judgment to the City of Barbourville because the risk was open and obvious.
The Sept. 3 decision drew a strong dissent from one judge, who said “perhaps nothing is more open-and-obvious than the light and heat of the summer sun.” The majority, however, said it was up to a jury to decide whether the plaintiff, who is diabetic and lacks a sense of feeling in her feet, should have been protected against walking barefoot on the hot pavement.
Evelyn Hoskins went to the Barbourville Waterpark in late July 2017 and burned her feet in the 82-degree heat. A diabetic, she suffers from neuropathy that reduces her ability to detect pain and she claims she suffered burns that eventually progressed to an ulcer and infection that required the amputation of part of her left foot.
Hoskins and her husband sued the waterpark and City of Barbourville for negligence and breach of contract. After the discovery of evidence ended, the judge granted Barbourville summary judgment on the theory the hot pavement was open and obvious and no jury could find the waterpark liable for exposing Hoskins to an unreasonable risk of injury.
The Kentucky Court of Appeals disagreed with that analysis. Citing changes in how the Kentucky Supreme Court has treated open and obvious risks since 2012, the appeals court said judges must be more conservative about granting summary judgment unless there is virtually no room for disagreement on the facts.
The appeals court cited decisions allowing juries to decide whether a curb at the entrance of an emergency room was an unreasonable tripping risk, for example, or whether a hotel should be liable for a guest who fell in the bathtub and argued there should have been a bathmat to prevent injury.
The appeals court cited one case where the open-and-obvious argument succeeded: A business that surrounded a hole in the pavement with yellow caution tape and red lights, which the plaintiff apparently ignored before tripping on the hazard.
Since Barbourville didn’t take any such precautions to protect visitors against the hot pavement on a sunny July afternoon, it’s up to a jury to decide if the risk was unreasonable, wrote Chief Judge Denise Clayton for the majority.
Judge J. Christopher O’Neill dissented, saying there was no reason for a jury to consider awarding money to Hoskins.
“Barbourville could not reasonably have foreseen the injury to Hoskins’ feet arising from the sun heating the concrete,” he wrote.