July 2011
Court of Appeals
Premises Liability – Open and Obvious Conditions
Faller v Endicott-Mayflower, LLC , ___ S.W.3d ___, 2011 WL 2582339 (Ky.App. July 1, 2011)
This case was remanded by the Supreme Court for further consideration in light of the decision in Kentucky River Medical Center v McIntosh. Faller fell while exiting a restaurant, allegedly because the threshold was too narrow. The Court distinguished McIntosh because plaintiff admitted that she had been in the restaurant before and was aware of the threshold. The Court seems to rely to some extent on the fact that this was a historic building, which led to a presumption that the threshold was not defective due to the passage of time. While this is a ground for dismissing the claim, it does not have anything to do with open and obvious, but instead means there was no condition requiring a warning. The open and obvious rule is but one reason why a condition was not unreasonably dangerous, which accordingly requires no warning.
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