SW Legal studies in Business

Even if Danger Is Open and Obvious, Duty of Care to Invitees May Still Exist

Kentucky high court held that if a danger is open and obvious that does not always eliminate the need for a property owner to take precautions to protect invitees. The hospital had a duty to medical personnel at emergency room entrance to protect them from dangers as they focus on patients, not the ground.

Topic Real and Personal Property
Key Words

Unreasonably Dangerous; Open and Obvious Danger; Invitee; Defense

C A S E   S U M M A R Y

McIntosh, a paramedic, was transporting a critically ill patient to a hospital. She and two EMTs arrived at the ambulance dock to guide the patient to the emergency room. Outside the ER is a flat surface eleven feet wide to allow stretchers to be wheeled directly from the ambulance dock to the ER. On both sides of the flat surface are unmarked curbs. While helping with the stretcher and watching the patient, McIntosh fell over a curb and broke her hip and wrist. She sued the hospital, arguing that the curb was an unreasonably dangerous condition that caused her injuries. Her evidence showed that at the other hospitals in the area, the entrance to the ER from the ambulance dock is smooth; there are no curbs to trip over. The hospital moved for summary judgment, contending that the curbs are an open and obvious danger, which barred McIntosh’s recovery as a matter of law. The trial court denied that motion; the jury awarded McIntosh $155,409 for her expenses, impairment, and pain and suffering. The hospital appealed.


Affirmed. Courts should not merely label a danger as open and obvious and then deny recovery, but must ask whether the land owner could reasonably foresee that an invitee would be injured. If the land owner can foresee the injury but fails to take reasonable precautions to prevent it, he can be held liable. The hospital owed a duty to the paramedic despite the open and obvious nature of the curb. Testimony showed that other hospital entrances were constructed in a safer manner. Such evidence is relevant to the determination in this case.

Citation Kentucky River Medical Ctr. v. McIntosh, ---S.W.3d--- (2010 WL 3374239, Sup. Ct., Ky., 2010)

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