In the second appearance of this case before the Supreme Court, and in a splintered opinion, the Court again addressed the open and obvious doctrine of premises liability law. Grubb v. Smith, No. 2014-SC-000641. The opinion also addresses the liability of a store manager for premises liability claims, the application of comparative fault in such claims, and issues related to recusal of the trial judge.

Teresa Grubb suffered a broken ankle and other injuries when she caught her foot in a pothole at a Speedway gas station. The depth of erosion in the pothole varied from less than an inch to more than two inches. The gas station argued that the pothole was open and obvious. After a bench trial, the trial judge held that the pothole presented a significant tripping hazard and rendered the premises unreasonably unsafe. The trial court awarded $200,762 to the plaintiffs.

In a four-to-two opinion (with Justice VanMeter not sitting), the Supreme Court reversed the Court of Appeals and held that the trial court, acting as finder of fact, did not clearly err in holding that even the relatively small pothole at issue constituted an unreasonably dangerous condition on the business premises. The Court again emphasized that, under the new comparative-fault approach to open and obvious conditions, summary judgment or directed verdict are only appropriate if “under all the circumstances of the given case, ‘reasonable minds cannot differ’ on the unreasonable-risk question.” Here, there was “rational disagreement” as to the danger posed by the pothole. Thus the “trial court's finding that in the circumstances of this case (in particular the hole’s location in a heavily trafficked area), the relatively small hole still constituted an ‘unreasonably dangerous condition on the business premises,’ was not clearly erroneous.”

The opinion also addresses the gas store manager’s liability for the unreasonably dangerous condition of the premises. In that portion of the opinion, however, the Justices split three to three. Justice Hughes authored one opinion, joined by Chief Justice Minton and Justice Cunningham, holding that the store manager did not have sufficient control over the premises to incur a duty to repair or warn against the pothole. Justice Venters authored the other opinion on this issue, joined by Justices Keller and Wright, holding that the store manager had “sufficient supervisory and possessory control of the premises to impose upon her a duty as a possessor on the land to report the hazardous pothole so that it could be repaired, and until that occurred, to post sufficient warning of the hazard.”

The Court also addressed Teresa Grubb’s comparative fault for the accident. Five justices agreed that the trial court committed palpable error in failing to assign any percentage of fault to Teresa. The Court noted that it has been “laboring to assure that the comparative-fault approach to open and obvious hazards is fair to both sides, that it does not subject premises owners to liability for a business invitee's own negligence.” The trial court’s failure to attribute any fault to Teresa, where much of the fault was “clearly the plaintiff's own,” was plain error.