Minority Report: Kentucky’s Evolving Law of Foreseeability


By Tia J. Combs and Lucas Harrison

Kentucky courts’ view of foreseeability was recently addressed in a pair of cases: Walmart, Inc. v. Reeves and Culp v. SI Select Basketball, et al. Kentucky’s appellate courts held that the “shift” in the conversation around the concept of foreseeability—that it is an aspect of breach analysis rather than duty analysis—applies only to open-and-obvious hazard cases, not to the analysis of all negligence actions.

The cases brought up the now decade-old question of how to utilize the concept of foreseeability in the analysis of negligence. In 2013, the Supreme Court of Kentucky decided Shelton v. Kentucky Easter Seals Soc, Inc.. The landmark case wiped away the traditional open and obvious analysis. Under the old standard, defense practitioners had become accustomed to getting summary judgments in many premises liability cases by arguing that if a plaintiff could reasonably have seen a hazard, there was no duty for the landowner to remedy it. As the analysis went, if a problem was “open and obvious,” the plaintiff had all the responsibility to avoid it himself.  Shelton ushered in a new era where landowners could not count on the open-and-obviousness of a hazard to negate the duty element and end a case at a summary judgment stage. Instead, Shelton held, foreseeability should be analyzed as a part of the breach element—meaning summary judgments in premises liability cases would be much harder to come by.

More than two dozen supreme court cases and over 200 other cases followed which tried to elaborate on the shift and fill out the analysis. However, even after a decade of decisions, confusion about the finer points remained. Of particular difficulty was the determination of whether the shifting analysis should apply to all cases of negligence. Was foreseeability now and forever a concept applicable only to the breach element—relegating summary judgments to a distant memory in negligence cases? Or was it sometimes appropriate to consider foreseeability under a duty analysis where a judge might decide a plaintiff’s injury was unforeseeable and grant judgment short of a trial?

In February and March of this year, the supreme court cleared up a significant amount of this confusion with Reeves and Culp. The cases concerned plaintiffs who were injured when they were the victims of crimes on the defendants’ property. In Reeves, the plaintiff was attacked in a Wal-Mart parking lot. In Culp, the plaintiff, a referee, was attacked by coach after a basketball game. In both cases, the courts ultimately reached the same conclusion: the Shelton shift, moving the foreseeability analysis from the duty element to the breach element, applies only to cases concerning open and obvious hazards. Accordingly, the courts in both cases reviewed the available evidence concerning whether the defendants could have anticipated the crimes that occurred. In both cases, the courts held that the crimes were not foreseeable and, accordingly, granted judgment for the landowners.

If you need additional information or assistance with a premises liability case, contact Tia J. Combs or Lucas Harrison at or