FALLER (RHODA) VS. ENDICOTT-MAYFLOWER, LLC; PROFESSIONAL PROPERTY MANAGERS, LLC; AND RADER ENTERPRISES, INC., D/B/A BUCK'S RESTAURANT
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RENDERED: JULY 1, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001506-MR
RHODA FALLER
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 2009-SC-0824-D
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 05-CI-010758
ENDICOTT-MAYFLOWER, LLC;
PROFESSIONAL PROPERTY MANAGERS, LLC;
AND RADER ENTERPRISES, INC.,
D/B/A BUCK’S RESTAURANT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; COMBS AND NICKELL, JUDGES.
NICKELL, JUDGE: This Court previously rendered an Opinion affirming this
case. See Faller v. Endicott-Mayflower, LLC, --- S.W.3d ----, 2009 WL 3878062,
rendered November 20, 2009 (NO. 2008-CA-001506-MR). The case is before us
again after the Kentucky Supreme Court granted discretionary review and
remanded it to us for reconsideration in light of Kentucky River Medical Center v.
McIntosh, 319 S.W.3d 385 (Ky. 2010). Having reconsidered our original opinion,
we again affirm.
At the heart of this appeal is Rhoda Faller’s fall while leaving a
Louisville restaurant. She claims she fell because the historic eatery’s threshold
was too narrow and the trial court erred in granting summary judgment to the
restaurant. We begin with a recap of the facts from our original opinion:
On the afternoon of December 30, 2004, Rhoda
met colleagues for a belated holiday gathering at Buck’s
Restaurant, a fine dining establishment and cigar room
located on the first floor of the historic Mayflower
Apartment Building in Old Louisville. Rader owns and
operates Buck’s Restaurant in a location leased from
Mayflower, owner of the Mayflower Apartment
Building.[1] After arriving at the Mayflower Apartment
Building, her fourth or fifth such visit to Buck’s in recent
years, Rhoda walked down the cobblestone path leading
to Buck’s entryway, pulled open the door, and stepped up
into Buck’s vestibule—crossing the threshold from
which she would later fall.
Buck’s threshold is relatively common. Because it
is the subject of Rhoda’s lawsuit, we describe it in detail.
Construction of the Mayflower Apartment Building
began in 1924 and was completed in 1926. Buck’s has a
primitive doorsill—a single piece of stone the width of
the door. Resting below the doorway, it protrudes about
two inches from the building’s façade, and rises about
four inches above a cobblestone path. Affixed to the
stone doorsill, and abutting the tiled floor of the
vestibule, is a modern, aluminum doorsill that is the same
width as the door and about four inches deep. The
1
A third appellee, Professional Property Managers, LLC, will be referred to as PPM.
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modern doorsill is raised slightly, but flush with the door.
When the door is closed, portions of the modern doorsill
extend from both sides of the door and are covered in
yellow- and black-striped caution tape. Rhoda maintains
Buck’s threshold is defective because it is not as wide as
the accompanying door. She expected the threshold to be
wide enough for her to take two steps, but it was wide
enough for only one step. She asserts the narrowness of
the threshold is the reason she fell.
After the gathering concluded, Rhoda walked
through the vestibule, followed by her paralegal. Using
her right hand, Rhoda pushed open the door which was
hinged on her right, and stepped onto the threshold with
her right foot. As she did, Rhoda twisted to her right,
looking over her outstretched right arm and back into the
vestibule to insure the door would not hit her paralegal
when she released it. According to Rhoda’s deposition,
when she stepped out of the vestibule with her left foot, it
“unexpectedly dropped” to the cobblestone path, causing
her to fall.
As a result of her fall, Rhoda sustained a
compound trimalleolar fracture of her left tibia and
fibula. She was transported to Baptist East Hospital by
ambulance where she underwent surgery on her lower
leg. During the surgery, two pins were placed in her tibia
and a plate was screwed into her fibula. She remained in
the hospital for four days and three nights, and upon her
release, was forbidden from placing any weight on her
left leg for a month, practically confining her to bed or a
wheelchair. Since recovering she has relied on a cane to
walk and has experienced vascular problems causing
increased swelling in her left ankle. Because her
vascular problems are aggravated by flying, and air travel
is essential to her work as a medical malpractice attorney,
Rhoda no longer handles medical malpractice cases.
On December 16, 2005, Rhoda filed a complaint
alleging Rader, Mayflower and PPM breached a duty
owed to her by: (1) failing to reasonably design,
construct and maintain the exit area of the property and
business in a reasonably safe condition; (2) negligently
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constructing a step in an unreasonably dangerous area;
and (3) failing to warn of the unreasonably dangerous
exit area and step, thus creating a dangerous condition.
After answering interrogatories, responding to requests
for production and deposing Rhoda, Rader moved for
summary judgment alleging Rhoda’s own words
eliminated any genuine issue of material fact. Further,
Rader argued it was entitled to judgment as a matter of
law because: (1) there were no violations of the
Kentucky Building Code; (2) the threshold’s condition
was open and obvious; (3) Rhoda knew of the threshold’s
condition; (4) Rader had satisfied any duty to warn of the
threshold’s condition by placing yellow- and blackstriped caution tape over the aluminum doorsill; (5) the
proximate cause of Rhoda’s fall was her own
inattentiveness in failing to look where she was walking;
and (6) Rhoda failed to articulate any cause for her fall
warranting judgment in her favor.
Before responding, Rhoda deposed Curtis Rader, a
representative of Rader, and John Endicott, a
representative of Mayflower. Thereafter, Mayflower and
PPM jointly moved for summary judgment. In doing so,
they adopted Rader’s arguments, but alternatively argued
that the terms of the lease between Mayflower and Rader
made Rader solely responsible for any building code
violations at the site of Rhoda’s fall.
In response to both motions for summary
judgment, Rhoda tied the appellees’ liability for her
injury to one of two conditions: either the threshold
violated the Kentucky Building Code, or the appellees
failed to anticipate that an invitee could be harmed by the
threshold’s allegedly dangerous condition. Further,
Rhoda alleged that there were genuine issues of material
fact regarding whether the threshold was open and
obvious, whether acts or omissions of the appellees
substantially caused her injury, and whether Rader or
Mayflower exercised control over the threshold. Finally,
she claimed jurors should decide whether: the caution
tape provided a sufficient warning; the motion for
summary judgment was premature; and statements in her
deposition constituted judicial admissions.
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On July 9, 2008, the circuit court granted summary
judgment in favor of each appellee, finding the
threshold’s condition was open and obvious; Rhoda knew
of the threshold’s condition before she fell; and she failed
to exercise ordinary care for her own safety when leaving
Buck’s. Furthermore, after considering testimony from
the previous owner of Buck’s, as well as from Rader and
Mayflower, the circuit court concluded Rhoda had not
produced, and could not produce, sufficient affirmative
evidence of a code violation to overcome the
presumption created by KRS [Kentucky Revised
Statutes] 98B.135 which states:
[i]n any action alleging defective building
design, construction, materials, or supplies
where the injury, death, or property damage
occurs more than five (5) years after the date
of completion of construction or
incorporation of materials or supplies into
the building, there shall be a presumption
that the building was not defective in design,
construction, materials, or supplies. This
presumption may be overcome by a
preponderance of the evidence to the
contrary.
According to testimony from Rader and Endicott, and an
affidavit from Buck’s previous owner, the threshold had
not been changed for at least a dozen years before
Rhoda’s fall. As a result, the circuit court concluded the
appellees were entitled to summary judgment as a matter
of law because their actions did not substantially cause
Rhoda’s fall.
On appeal, Rhoda alleges the trial court
erroneously reached four factual conclusions and two
legal conclusions. First, she claims there were genuine
issues of material fact regarding whether the threshold’s
condition was open and obvious. Second, she argues that
even if the threshold’s condition was open and obvious,
the appellees should have anticipated that an invitee
would be harmed. Third, she claims the adequacy of the
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warning, the yellow- and black-striped caution tape, was
a question of fact reserved for the jury. Fourth, she
alleges that the circuit court analyzed the claim under a
theory of contributory negligence, contrary to our
Supreme Court’s abolition of that doctrine as a total bar
to recovery by a tort plaintiff in Hilen v. Hays, 673
S.W.2d 713 (Ky. 1984). Fifth, she claims there was a
genuine issue of material fact regarding whether the
dimensions of the threshold violated the Kentucky
Building Code. Finally, she claims that the trial court
granted summary judgment prematurely because
discovery was incomplete.
Our original opinion affirmed the trial court’s award of summary
judgment to the appellees “because Rhoda did not demonstrate the existence of any
genuine issue of material fact, and because her own testimony prevented her from
prevailing as a matter of law.” Additionally, we held that statements contained in
Rhoda’s deposition constituted judicial admissions; Rhoda knew the condition of
Buck’s threshold and assumed the risk of falling by continuing to patronize the
restaurant; and, Buck’s had no duty to warn Rhoda about the condition of its
threshold which was presumed not to be deficiently designed due to the passage of
time. Our original opinion was based in large measure upon Horne v. Precision
Cars of Lexington, Inc., 170 S.W.3d 364, 368-9 (Ky. 2005), which states that a
possessor of land is liable for an injury caused by a known or obvious hazard, but
only if the possessor knew or should have known such a hazard would injure the
invitee, and J.C. Penney Co. v. Mayes, 255 S.W.2d 639, 643 (Ky. 1953) (citing
Lachat v. Lutz, 94 Ky. 287, 22 S.W. 218, 15 Ky. Law Rep. 75 (1893); and Lyle v.
Megerle, 270 Ky. 227, 109 S.W.2d 598 (1937)), which states that an invitee's
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assumption that a premises “he has been invited to use are reasonably safe does not
relieve him of the duty to exercise ordinary care for his own safety nor license him
to walk blindly into dangers which are obvious, known to him, or that would be
anticipated by one of ordinary prudence.” We specifically held, “[t]here can be no
award of damages in this case without a showing of a duty and a breach of that
duty—neither of which has been established.” Faller, at *6.
In McIntosh, our Supreme Court explored whether, under the
comparative fault doctrine, an open and obvious danger excuses a land owner’s
duty to warn invitees of the danger or make repairs. The question arose in the
context of whether, in a negligence action tried by a jury, a trial court correctly
denied motions for summary judgment and a judgment notwithstanding the verdict
filed by a hospital against a paramedic who fell at an ambulance dock while
transporting a critically ill patient to the hospital’s emergency room entrance. In
rejecting the hospital’s argument that the open and obvious doctrine barred the
paramedic’s recovery as a matter of law, the Supreme Court held that even though
the paramedic had transported about 400 patients to the hospital’s emergency room
entrance without incident and was, therefore, familiar with the unmarked curb over
which she fell, the hospital could still be held liable because her injury was
“foreseeable.”
McIntosh states the general rule in such cases as:
land possessors owe a duty to invitees to discover
unreasonably dangerous conditions on the land and to
either correct them or warn of them. Perry v.
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Williamson, 824 S.W.2d 869, 875 (Ky.1992). However,
the open and obvious doctrine states that land possessors
cannot be held liable to invitees who are injured by open
and obvious dangers. Restatement (First) of Torts § 340
(1934).
319 S.W.3d at 388. The opinion goes on to hold that § 343A(1) of the Restatement
(Second):
creates an exception to the rule that a land possessor will
not be liable for open and obvious dangers when “the
possessor should anticipate the harm” anyway. For many
open and obvious dangers, the land possessor would have
no reason to anticipate the harm, and so he would not be
liable. However, sometimes “the possessor has reason to
expect that the invitee's attention may be distracted, so
that he will not discover what is obvious, or will forget
what he has discovered, or fail to protect himself against
it.” Restatement (Second) of Torts § 343A(1) cmt. f.
Id. at 391. Thus, under the Restatement (Second), which our Court has quoted
with favor, labeling a danger as open and obvious does not automatically absolve a
land possessor of liability. The inquiry then shifts to whether the invitee was
foreseeably distracted or a third party pushed him into the danger.
Citing the Restatement (Second) and Horne, the Supreme Court held
the hospital owed McIntosh a duty because her injury was foreseeable. It wrote:
[t]he Hospital had good reason to expect that a
paramedic, such as McIntosh, would be distracted as she
approached the emergency room entrance. There was
testimony that paramedics have a duty to focus on the
patient while the EMTs guide them into the emergency
room, including monitoring the patients' health and
making sure their intravenous lines do not become
entangled on the wheels of the stretcher. (There was also
testimony that McIntosh ably fulfilled her duty by
remaining focused on the critically ill patient as the
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EMTs pushed him to the doors.) The need to focus on
the patient necessarily means taking attention away from
other tasks, such as carefully navigating past a protruding
curb. Thus, even though the curb may have been open
and noticeable to some extent, in this case “the possessor
has reason to expect that the invitee's attention may be
distracted” from it. Restatement (Second) § 343A cmt. f.
The Hospital had very good reason to believe McIntosh
would be tending to the patient, not to each step she was
taking.
In addition, “the possessor has reason to expect
that the invitee [ ] . . . will forget what he has
discovered.” Id. Evidence was introduced showing that
having such a curb at an emergency room entrance is
very unusual, if not unique. McIntosh and an EMT
testified that none of the numerous other hospitals they
went to had any uneven surfaces between the ambulance
dock and the emergency room doors; this was verified by
pictures of nearby hospitals. Paramedics will rarely have
the luxury of calmly walking towards an emergency
room entrance. They are required to think and act
quickly in the most time-sensitive and stressful of
circumstances. It is likely that in such a situation, a
paramedic such as McIntosh may forget that this
particular entrance has a unique danger that she must
avoid. Indeed, it is foreseeable that McIntosh may
absentmindedly assume that this entrance was just as
safely constructed as any other, causing her to trip. She
should be entitled to assume that this entrance is safe,
too. And the extent to which her absentmindedness
comes into play should bear only on her comparative
fault rather than as an absolute bar to her recovery.
It is important to stress the context in which
McIntosh sustained her injury: she was rushing a
critically ill patient into a hospital, in an effort to save his
life. Even if we assume that she was neither distracted
nor forgetful about the curb, we would still have to
conclude that the benefits of her rushing to the door (at
the risk of tripping over the curb) outweighed the costs of
her failing to do so (at the risk of the patient's condition
worsening, perhaps to the point of death, on the Hospital
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doorstep). The dire need to rush critically ill patients
through the emergency room entrance should be selfevident, and as such, “the possessor has reason to expect
that the invitee will proceed to encounter the known or
obvious danger because to a reasonable man in his
position the advantages of doing so would outweigh the
apparent risk.” Restatement (Second) § 343A cmt. f.
This is another reason this injury is foreseeable and that a
duty existed in this case.
McIntosh, 319 S.W.3d at 393-394.
We turn now to the case sub judice. Unlike McIntosh, who tripped
over an unmarked curb while rushing a critically ill patient into an emergency
room, Rhoda tripped over a threshold marked with yellow- and black-striped
caution tape while leaving a restaurant following a leisurely holiday meal. Rhoda
admitted being familiar with the threshold, having traversed it on prior occasions,
and admitted she would not have fallen had she been looking in the direction she
was walking. The factual distinctions between McIntosh and Rhoda are too great
for us to consider Rhoda’s fall foreseeable. Therefore, we agree with the trial
court’s award of summary judgment to all three appellees and hold that McIntosh
does not require a change in our original opinion.
For the foregoing reasons, we again affirm the decision of the
Jefferson Circuit Court and our original opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
Glenn A. Cohen
Lynn M. Watson
Louisville, Kentucky
BRIEFS FOR APPELLEES,
ENDICOTT-MAYFLOWER, LLC
AND PROFESSIONAL PROPERTY
MANAGERS, LLC:
Robert E. Stopher
Robert D. Bobrow
Louisville, Kentucky
BRIEFS FOR APPELLEE, RADER
ENTERPRISES, INC. D/B/A
BUCK’S RESTAURANT:
R. Hite Nally
Russell H. Saunders
Louisville, Kentucky
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