FRANKFORT, Ky. (Legal Newsline) - A woman who burned her feet on hot pavement at a water park can’t win money from the park’s municipal owner after Kentucky’s highest court ruled the hazard was open and obvious risk.
Reversing an appellate court decision that would have allowed her lawsuit to proceed, the Kentucky Supreme Court ruled unanimously that Evelyn Hoskins had no case against the City of Barbourville and the Barbourville Water Park.
“Hoskins produced no evidence of any feasible means the city could have undertaken to lessen the alleged risk created by heat radiating from sidewalks warmed by the summer sun,” the court concluded in its Oct. 20 decision.
Hoskins, who suffers from a diabetic condition reducing her ability to feel heat in her extremities, claimed she had to have part of her foot amputated after she burned her feet on the concrete walkways at the water park. A trial judge dismissed her case, but the Kentucky Court of Appeals reversed, with the majority led by Chief Judge Denise Clayton ruling a jury had to decide whether Barbourville should have done something to protect Hoskins from burning her feet.
That decision drew a dissent from Judge J. Christopher O’Neill, who said there was no need for a jury to consider awarding money to Hoskins. The state Supreme Court agreed, in the decision penned by Chief Justice John D. Minton.
“The trial court in this case found that no reasonable jury could conclude that the sun-heated concrete walkways at the water park were an unreasonably dangerous condition,” the Supreme Court said. “And we agree.”
Historically, land owners couldn’t be liable for an open and obvious hazard, but the Kentucky Supreme Court opened the door a bit for plaintiffs in 2015, allowing them to sue if their injuries were foreseeable by the property owner. But Hoskins didn’t provide any evidence she alerted the park to her medical condition and she didn’t provide evidence of anybody else who was injured, the court said.
“We find this to be a rare circumstance in which a plaintiff provided no evidence of the existence of an unreasonably dangerous condition such that summary judgment was appropriate,” the court concluded.