Larissa Pendley v. City of Owensboro, Kentucky ( 2023 )

RENDERED: APRIL 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0354-MR
LARISSA PENDLEY APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 19-CI-00963
CITY OF OWENSBORO, KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, ECKERLE, AND KAREM, JUDGES.
CALDWELL, JUDGE: Larissa Pendley appeals from a summary judgment
granted in favor of the City of Owensboro, Kentucky on her premises liability
claim. We affirm.
FACTS
Larissa Pendley (Pendley) attended a conference at the city-owned
Owensboro Convention Center with friends. She, her friends, and others passed
through a well-worn landscaped area rather than using the sidewalk to enter the
convention center in the morning. This landscaped area contained a concrete pad.
A few hours later, along with others, she went through the same landscaped area
when going to lunch and suddenly fell. She suffered injuries from her fall and
filed suit against the city and other entities. Discovery commenced.
According to deposition testimony, Pendley had tripped over the
concrete pad’s ledge. Evidence showed that the concrete pad was level with the
wood chips and landscaping on the northern ingress side, but the concrete pad was
inches higher than the landscaping on the southern egress side. In other words, one
did not have to step up over the pad to go towards the center grounds, but one
would have to step up over the pad when leaving the center grounds.
Pendley testified by deposition that she had been watching where she
was going and was aware of the concrete pad structure. She also testified there
were no signs warning anyone to stay out of the landscaped area and that she had
not perceived the area to be dangerous before her fall. She admitted she should
have just used the sidewalk, but she noted others passed through the same area
without incident.
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The city filed a motion for summary judgment, arguing inter alia that
the landscaped area was open and obvious and not unreasonably dangerous.1
Pendley filed a response, asserting genuine issues of material facts existed and
precluded summary judgment. She also argued that even if any hazardous
condition was open and obvious, that alone did not entitle the city to summary
judgment under recent precedent and a jury should determine any issues of
comparative fault.
Following oral argument by the parties’ counsel, the trial court
granted the city’s motion for summary judgment. It perceived that the material
facts were not in dispute. It noted the city owned the property at issue and was
responsible for its maintenance. It noted that weather conditions were not adverse.
It also accepted that Pendley was an invitee though she had elected to cross
through the landscaped area rather than using the sidewalk.2
1
The city also argued that Pendley’s lawsuit was barred by the Claims Against Local
Governments Act (CALGA). But the trial court ultimately declined to rule on this argument.
We express no opinion on any CALGA issues – particularly as the parties have not argued
CALGA issues in their appellate briefs.
2
The city’s counsel orally noted to the trial court that Pendley might be considered a trespasser
since she passed through the landscaping area rather than using the sidewalk. But counsel
argued the city was entitled to summary judgment even if Pendley was an invitee. The city did
not argue that Pendley was a trespasser in its appellee brief or in its written motion for summary
judgment. So, for purposes of resolving this appeal, Pendley’s status as an invitee appears
undisputed and we do not reach any issues about how the city’s liability might be affected if she
was considered a trespasser.
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Without explicitly discussing how one side of the concrete pad was
level with the landscaping but the other was not, the trial court summarized that
Pendley fell on the concrete pad within the landscaped area. It also noted in its
order and judgment her testimony that she was paying attention to where she was
going, noticed the concrete pad and did not perceive any danger prior to her fall:
Plaintiff testified in her deposition that the condition that
caused her to trip, the edge of the concrete pad and the
landscaping adjacent to the concrete pad, did not appear
dangerous to her when she first walked to the entrance of
the Owensboro Convention Center on the morning of this
incident and traversing the same landscaping. Plaintiff
further testified that she would not have walked through
and over the concrete slab on the first or second occasion
if she had believed the area was dangerous.
The trial court also referred to Pendley testifying that, both while going into and
leaving the conference center area via the landscaped area, Pendley looked ahead
and “was fully aware that she was walking on a concrete pad surrounded by
decorative landscaping but adjacent to the unobstructed sidewalk.”
Even construing the evidence in Pendley’s favor, the trial court
concluded it would be impossible for her to prevail at trial based on recent
precedent.3 It concluded that she could not prove the existence of a dangerous
3
Oddly, the trial court also stated in its conclusions of law: “Here, the condition that caused
Plaintiff’s injury was not dangerous or hazardous.” It is hard to understand how the trial court
both concluded that a condition had caused her injury and that the same condition was not
dangerous or hazardous. Nonetheless, regardless of this perplexing statement, we conclude the
trial court properly determined that Pendley could not prove that the city breached a duty based
on the record before us and controlling precedent as we later discuss.
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condition, emphasizing her testimony that she did not perceive any danger before
her fall despite being aware of the concrete pad and landscaping both when
entering and exiting the conference center area. It also concluded that the concrete
pad surrounded by landscaping was an open and obvious condition which she
observed prior to her fall and that the city had done everything reasonable to
“segregate foot-traffic from the area.” It concluded Pendley could not prove that
the city had breached a duty to her, and noted she was aware the concrete pad was
surrounded by landscaping but “chose to avoid this barrier.” So, it granted
summary judgment in favor of the city, and it dismissed Pendley’s complaint with
prejudice.4
4
Since the complaint was dismissed with prejudice and no counterclaims or cross-claims had
been filed, the appealed-from order granting summary judgment in the city’s favor was a final
and appealable judgment since it effectively “adjudicat[ed] all the rights of all the parties in an
action or proceeding[.]” Kentucky Rule of Civil Procedure (CR) 54.01.
It does not appear that the other defendants to the action were formally dismissed prior to
the appealed-from order granting the city summary judgment and dismissing the complaint.
Though the order granting summary judgment for the city states that it is final and appealable, it
does not contain a statement that there is no just cause for delay. See CR 54.02(1) (“when
multiple parties are involved, the court may grant a final judgment upon one or more but less
than all of the claims or parties only upon a determination that there is no just reason for delay.
The judgment shall recite such determination and shall recite that the judgment is final. In the
absence of such recital, any order or other form of decision, however designated, which
adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not
terminate the action as to any of the claims or parties, and the order or other form of decision is
interlocutory and subject to revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.”).
Nonetheless, we are satisfied that the appealed-from order is inherently final and
appealable as the dismissal of the complaint with prejudice resolves all claims and rights of all
parties in the action, see CR 54.01, given the absence of counterclaims or cross-claims here.
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ANALYSIS
Summary Judgment Standards
We review the trial court’s grant of summary judgment de novo,
keeping in mind the stringent standards governing the trial court in ruling on a
summary judgment motion:
Summary judgment is to be cautiously applied and
should not be used as a substitute for trial. Granting a
motion for summary judgment is an extraordinary
remedy and should only be used to terminate litigation
when, as a matter of law, it appears that it would be
impossible for the respondent to produce evidence at the
trial warranting a judgment in his favor and against the
movant. The trial court must review the evidence, not to
resolve any issue of fact, but to discover whether a real
fact issue exists. This review requires the facts be
viewed in the light most favorable to the party opposing
summary judgment. . . .
Appellate review of a summary judgment involves
only legal questions and a determination of whether a
disputed material issue of fact exists. So we operate
under a de novo standard of review with no need to defer
to the trial court’s decision.
Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013)
(internal quotation marks and footnotes omitted).5
5
Based on our review of the record, Pendley clearly preserved the sole issue on appeal for our
review in her written response to the city’s motion for summary judgment and in oral argument
to the trial court. However, the argument portion of Pendley’s brief does not begin with the
required statement identifying – with citations to the record – if and how her argument was
preserved for our review. See Kentucky Rules of Appellate Procedure (RAP) 32(A)(4); see also
former CR 76.12(4)(c)(v) (in effect at time of briefing). We remind counsel of the importance of
complying with our appellate rules. “If a party fails to inform the appellate court of where in the
record his issue is preserved, the appellate court can treat that issue as unpreserved” meaning it
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To ultimately prevail on her negligence claim, Pendley would have to
prove the required elements of duty, breach, causation, and damages. See, e.g.,
Phelps v. Bluegrass Hosp. Management, LLC, 630 S.W.3d 623, 628 (Ky. 2021).
Our Supreme Court has made clear in recent years that owners or possessors of
land owe certain duties to invitees regardless of the existence of any open and
obvious conditions or hazards. Shelton, 413 S.W.3d at 907-08. In such cases, the
key question now is not whether a duty exists but whether the defendant breached
duties or fulfilled its standard of care. Id. at 910-11. And generally, a possessor of
land owes invitees a duty to discover unreasonably dangerous conditions on the
land and to either eliminate the dangers or warn of them. McKinley v. Circle K,
435 S.W.3d 77, 80 (Ky. App. 2014).
In its order granting the city’s motion for summary judgment, the trial
court did not explicitly state that the city did not owe Pendley any duty. But it
concluded Pendley could not show the city “breached its duty to exercise ordinary
reviews the issue solely for palpable error resulting in manifest injustice. Ford v.
Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021); see also CR 61.02. Furthermore, briefs may
be stricken for substantial failure to comply with appellate rules. See RAP 31(H)(1); see also
former CR 76.12(8)(a). Although perhaps it is debatable whether Pendley’s brief substantially
failed to comply with appellate rules, Pendley’s brief also fails to comply with other
requirements such as a statement regarding oral argument. See, e.g., RAP 32(A)(1); former CR
76.12(4)(c)(ii).
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care to maintain its premises in a reasonably safe condition.”6 Pendley contends
the trial court did not properly assess whether there was evidence of a breach of
duty under controlling precedent such as Shelton. And she contends the trial court
erroneously concluded there was no dangerous condition as a matter of law.
Pendley argues in her brief the “uneven concrete pad”7 was a
dangerous condition “irrespective of its open and obvious nature.” She asserts the
uneven concrete pad caused her to trip and fall and be injured. And she cites for
our consideration an unpublished opinion which she construes as recognizing that
uneven pavement may be a dangerous condition.8
We agree with Pendley’s argument that the trial court’s statements
indicating that there was no dangerous condition were problematic. Apparently, it
concluded there was no evidence of a dangerous condition because, despite
allegations of a dangerous condition in her complaint, “her testimony was that the
area did not appear unsafe or present a dangerous condition.” But properly
6
To the extent that the trial court’s order could be construed as concluding the city owed no
duties to Pendley, this is inconsistent with Shelton. However, that does not mean summary
judgment was nonetheless inappropriate under these facts.
7
Pendley’s brief argues the uneven concrete pad was a dangerous condition, but she does not
explicitly discuss the trial court’s lack of mention of the concrete pad being uneven in its order
granting summary judgment.
8
See Embry v. Mac’s Convenience Stores, LLC, No. 2012-CA-000333-MR, 2014 WL 2640240(Ky. App. Jun. 13, 2014). This unpublished case is not binding. RAP 41(A); former CR
76.28(4)(c).
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construing the evidence in the light most favorable to the party opposing summary
judgment (Pendley), her testimony indicated that she did not perceive the area as
dangerous prior to her fall – but she did not admit there was no dangerous
condition. After all, Pendley, and even the trial court, referred to some condition
concerning the area with the concrete pad causing her to trip and fall.
Thus, we cannot agree with the city and the trial court that summary
judgment was warranted based on a lack of evidence of a dangerous condition
despite their citations to Phelps, 630 S.W.3d at 630 (although summary judgment
in landowner’s favor could not be affirmed based on condition being open and
obvious, the summary judgment was affirmed based on lack of evidence of a
dangerous condition in the premise). Yet despite any problems with the trial
court’s stating there was no dangerous condition, it properly concluded Pendley
could not show that the city did not breach any duty based on the evidence here –
in part based on undisputed evidence that the condition at issue was open and
obvious.
Even though a condition may be dangerous, the law recognizes that
some open and obvious dangerous conditions are not unreasonably dangerous and
that landowners do not breach applicable duties under some circumstances when
they neither eliminate nor warn of open and obvious dangerous conditions. For
example, though stairs might be dangerous because people can fall on them, a
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building containing stairs is often not considered unreasonably dangerous because
the risk is obvious, so people know to take precautions without being warned. See
Shelton, 413 S.W.3d at 914 (danger posed by open and obvious conditions like
stairs and potholes may not be considered an unreasonable danger; “the condition
is a warning in itself and places the plaintiff on the same level of knowledge about
the premises as the land-possessor defendant”). Specifically, recent Kentucky
precedent adopting Section 343 of the Restatement (Second) of Torts indicates a
breach of duty by the landowner cannot be found for an open and obvious
hazardous condition unless there is evidence of a reason to anticipate harm despite
the obviousness of the hazard:
According to the Restatement, a possessor of land is
subject to liability when he fails to protect his invitees
from harm, despite the condition’s open-and-obvious
nature, because he should have anticipated that harm
would result. But a possessor of land is simply not liable
to his invitees for physical harm caused to them by any
condition on the premises whose danger is known or
obvious to them unless the possessor should anticipate
the harm despite such knowledge or obviousness. Read
together, as called for by the Restatement (Second),
Section 343 outlines the general standard of care
applicable to invitors; and Section 343A serves as an
acknowledgment that under certain limited
circumstances, negligence will not be present. In other
words, Section 343A suspends liability when the danger
is known or obvious to the invitee, unless the invitor
should anticipate or foresee harm resulting from the
condition despite its obviousness or despite the invitee’s
knowledge of the condition.
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Shelton, 413 S.W.3d at 911 (internal quotation marks and footnotes omitted).
Our Supreme Court opined that issues about the foreseeability of harm
despite an open and obvious condition are normally jury questions. And it
recognized that questions of foreseeability of harm are just one factor for the jury
to consider in determining if the landowner defendant fulfilled its standard of care.
Shelton, 413 S.W.3d at 914. Nonetheless, summary judgment is not necessarily
precluded especially if there are no genuine issues of material fact, or the plaintiff
could not possibly prove all elements of negligence – such as breach of duty – even
construing the evidence in his/her favor. Id. at 916.
Pendley correctly asserts that the city owed a duty of care to invitees.
And based on photographs or other evidence showing the landscaped area was well
worn, she reasonably argues that the city should have known that pedestrians
frequently cut through the area. She also points out that there were no signs stating
keep off the landscaping and no signs stating any warnings.
Yet while there may be evidence that pedestrian use was foreseeable
and that no signs with warnings were posted, Pendley does not point to any
evidence that harm should be anticipated despite the obviousness of the concrete
pad drop-off. As the trial court noted, Pendley admitted seeing the concrete
structure and landscaping when passing through earlier that morning and she points
to no evidence that her view of the concrete pad and ledge was obstructed.
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She does not point to any evidence of factors causing pedestrians not
to pay attention when crossing through the area or that harm should be anticipated
despite the obviousness of the drop-off at one edge of the concrete pad. And a
curb or other drop-off in concrete or pavement is often open and obvious especially
if nothing obstructs one’s view. See generally Kentucky River Medical Center v.
McIntosh, 319 S.W.3d 385 (Ky. 2010); see also Dishman v. C & R Asphalt, LLC,
460 S.W.3d 341, 347 (Ky. App. 2014) (noting trial court’s regarding the drop in
pavement or uneven ground in construction area of store parking lot – albeit with
some barricades and caution tape – as an “incredibly open and obvious” hazard).9
Kentucky precedent recognizes that despite the existence of duties,
summary judgment in favor of the landowner is not necessarily precluded –
especially where there is no genuine issue of material fact or where the
plaintiff/invitee has not offered evidence to support all requirements of a
negligence claim. See Shelton, 413 S.W.3d at 916. For example, this Court
affirmed a summary judgment in a landowner’s favor where the hazard was open
and obvious (an unobscured laptop-sized hole in the ground), the plaintiff was
familiar with the area and admitted he would not have stepped into the hole if he
had been paying attention, and the plaintiff presented no evidence of any reason to
9
See also Embry, 2014 WL 2640240, at *6 (approving trial court conclusion that unevenness or
sudden drop-off in pavement was an open and obvious condition).
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anticipate that passersby would be distracted or would suffer injury from the
obvious hole. See Lewis v. Faulkner Real Estate Corp., 403 S.W.3d 64, 68 (Ky.
App. 2013). And we noted invitees have an obligation to pay reasonable attention
to their surroundings to discover and avoid dangerous conditions. See id. at 67-68.
We contrasted the facts in Lewis with McIntosh, 319 S.W.3d 385 – as in McIntosh,
there was evidence to support anticipating harm despite the obviousness of a
potentially hazardous condition:
A comparison of the facts of McIntosh and our
facts show that Lewis has not presented any viable reason
for Faulkner to have an obligation to anticipate any harm.
The facts of our case strongly distinguish it from those
found in McIntosh. Unlike the paramedic in McIntosh,
who tripped over an unmarked curb while rushing a
critically ill patient into an emergency room, Lewis
stepped off a sidewalk during a leisurely neighborhood
stroll. He disclosed familiarity with the area, having
walked it often, and admitted he would not have fallen
had he been looking. Moreover, Lewis was not
confronted with a situation or condition that would have
allowed Faulkner to foresee such an injury.
Lewis, 403 S.W.3d at 68.
In the instant case, Pendley had not passed through the landscaped
area on numerous occasions, but she had crossed over it at least once before her
fall and she admitted being aware of the concrete pad and landscaping. Normally
any danger posed by a curb or sudden drop in pavement is open and obvious and
no harm would be anticipated unless there is evidence of a reason to assume one
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could not focus on looking at the ground or would proceed despite perceiving the
risk – such as a paramedic’s needing to focus on a critically ill patient rather than
carefully stepping over a curb in a hospital emergency entrance in McIntosh. See
319 S.W.3d at 393-94. But Pendley has not pointed to any evidence the city
should have foreseen that people passing through the area would not pay attention
to their surroundings or that they might proceed despite an obvious risk to
accomplish a critical task. See also Shelton, 413 S.W.3d at 917 (reasonably
foreseeable that hospital patient’s wife would proceed to comfort or care for him
despite obvious risk of wires by bed because advantages of providing comfort and
care would outweigh the risks). Furthermore, unlike the plaintiffs in Shelton or
McIntosh who had no alternative but to proceed through the obviously dangerous
area in order to provide care for others, the evidence here indisputably showed that
Pendley could have simply used the adjacent sidewalk, rather than passing through
the landscaped area with the uneven concrete pad, for access to and from the
conference center.
Based on the record here, the trial court correctly concluded that there
was nothing to support a finding of breach of duty. In this action the city provided
an alternative means of access, the hazardous condition of the landscaped area with
the uneven concrete pad was open and obvious, and there was no evidence
presented of reasons to presume that people passing through would be distracted or
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would proceed despite being aware of the obvious risks. Though our reasoning
may differ somewhat from the trial court’s,10 we conclude that the trial court
reached the proper result in granting summary judgment based on the record before
us, so we affirm. See Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co.,
434 S.W.3d 489, 496 (Ky. 2014) (“If an appellate court is aware of a reason to
affirm the lower court’s decision, it must do so, even if on different grounds.”).
CONCLUSION
We affirm the Daviess Circuit Court’s judgment.
ALL CONCUR.
10
The trial court’s written order indicated that it relied on our opinion in Hoskins v. City of
Barbourville, No. 2019-CA-1622-MR, 2021 WL 3935361 (Ky. App. Sep. 3, 2021)
(unpublished). But the trial court orally stated it favored the dissent’s opinion in that case at a
hearing. The trial court noted the Supreme Court had granted discretionary review, but it had not
yet issued an opinion when the trial court issued its order granting summary judgment. Our
Supreme Court later reversed our decision on premises liability and reinstated the trial court’s
summary judgment for the landowner in City of Barbourville v. Hoskins, 655 S.W.3d 137 (Ky.
2022). Specifically, the Supreme Court determined that the trial court correctly concluded “the
sun-heated walkways at the water park were not an unreasonably dangerous condition.” Id. at
142.
The trial court also indicated it relied on Phelps, 630 S.W.3d 623 – in which summary
judgment for the defendant was affirmed due to lack of evidence of a dangerous condition. Id. at
630. Again, we cannot agree that there was no evidence of any dangerous condition here.
Lastly, the trial court also indicated it relied on Dishman, 460 S.W.3d 341. Dishman’s
facts are very different from the instant case since the defendant had put up barricades and
caution tape – thus, taking affirmative steps to warn or to keep people out of a potentially
dangerous area and making it much more likely that a passer-by would be “able to avoid the
drop-off in the pavement” if paying attention. See id. at 347. Yet despite factual differences, we
conclude that summary judgment was properly granted here as it was in Dishman and in Lewis
given the lack of evidence of a reason to foresee harm despite the obviousness of the danger.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Thomas E. Springer, III James A. Sigler
Madisonville, Kentucky M. Jared Sigler
Paducah, Kentucky
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