Hayes v. Gibson Hart Co. , 789 S.W.2d 775 ( 1990 )

STEPHENS, Chief Justice,

dissenting.

Respectfully, I dissent.

I believe the majority opinion impermissi-bly expands the “operating premises” rule set out in K-Mart Discount Stores v. Schroeder, Ky., 623 S.W.2d 900 (1981). In K-Mart, this Court set out factors that are conditions precedent to fixing liability on the employer: 1) the employer must control the area, and 2) a work-related injury must have been sustained on the area. In the case at bar, as in K-Mart, missing from the liability equation is the control factor. The uncontested facts show that the sidewalk where the fall occurred was owned, maintained, and completely and exclusively controlled by the T.V.A., not the employer. The employer had no right to correct any defects to reduce the hazard to its employees. Therefore, it is an unfair result to hold the employer liable for the injuries in this case.

WINTERSHEIMER, J., joins this dissenting opinion.