December 2023 - Parks & Recreation - 30

" breach of duty is an issue of fact
to be decided by the jury, not the
trial court, " which had granted the
City's motion for summary judgment.
As a result, the court of appeals
held " a jury must assess both
the reasonability of the risk and the
foreseeability of the harm " :
[W]e cannot conclude that the
hazard at issue here could not be
corrected by any means or that it is
beyond dispute that the landowner
did all that was reasonable to correct
or warn of the situation.
The City appealed the court of
appeals decision to the Supreme
Court of Kentucky. As noted by
the state supreme court:
The proper standard of review
on appeal when a trial judge has
granted a motion for summary
judgment is whether the record,
when examined in its entirety,
shows there is no genuine issue of
material fact and the moving party
[in this case the City] is entitled to
a judgment as a matter of law.
Premises Liability
As described by the state supreme
court: " A negligence claim brought
under a theory of premises liability
asserts that a land possessor
has violated his duty to maintain
his premises in a reasonably safe
manner. " In addition, the court
noted " the scope of the duty owed
by a land possessor was dependent
upon the status of one claiming injury
as either a trespasser, a licensee,
or an invitee. " In this case, the
court found " Hoskins was an invitee
at the water park because she
was an individual present on the
premises at the explicit or implicit
invitation of the property owner
to do business or otherwise benefit
the property owner. "
When " the facts of a case are undisputed, "
the state supreme court
acknowledged " the determination
of the duty owed by a landowner
to a guest is a question of law to
be determined by the court. " In this
particular case, the state supreme
court found the legal duty owed to
Hoskins as an invitee on the premises
was " a duty to discover unreasonably
dangerous conditions on
the land and either eliminate or
warn of them. " Further, the state
supreme court acknowledged:
It is generally a question of fact
to be presented to the jury whether
an unreasonably dangerous condition
existed on the land possessor's
premises sufficient to trigger the
duty to warn or ameliorate.
That
being
said,
the
Moreover,
edged " conditions on the
the court acknowlland
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. " Further, " if the conditions
on the premises are not unreasonably
dangerous, " the state supreme
court found " the land possessor's
duty of care is not implicated, and
thus injuries arising from such conditions
cannot give rise to the possessor's
liability. "
court
recognized " summary judgment
still remains a viable concept "
under the following circumstances:
If reasonable minds cannot differ
or it would be unreasonable for
a jury to find breach or causation,
summary judgment is still available
to a landowner. And when no
questions of material fact exist or
when only one reasonable conclusion
can be reached, the litigation
may still be terminated.
Unreasonably Dangerous
Condition
As defined by the state supreme
court, an " unreasonably dangerous
condition " is " one that is recognized
by a reasonable person in
similar circumstances as a risk that
should be avoided or minimized
or one that is in fact recognized as
such by the particular defendant. "
On the other hand, the court noted:
" One indication that a risk is not
unreasonable is that a reasonable
person in
the defendant's shoes
would not take action to minimize
or avoid the risk. "
Lack of Evidence
The trial court in this case had
found that " no reasonable jury
could conclude that the sun-heated
concrete walkways at the water park
were an unreasonably dangerous
condition. " The state supreme court
agreed with the trial court. In the
opinion of the state supreme court,
Hoskins had " provided no evidence
that the walkways at the water park
were
negligently
maintained
or
defectively designed " :
She provided no evidence that
other water parks take steps to
minimize the sun-generated heat
of their concrete walkways. She
provided no expert testimony regarding
industry
standards or
practices with which Barbourville
Water Park failed to comply.
Further, in the opinion of the
state supreme court,
" Hoskins
simply produced no evidence that
a reasonable person in the place
of the City would have taken any
action to eliminate the alleged
risk created by the sun heating
the concrete walkways. " As a result,
the state supreme court held
" the trial court did not err in deciding
that only one reasonable
conclusion could be reached: the
sun-heated walkways at the water
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December 2023 - Parks & Recreation

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