Cause of Action: Duty owed to invitee (with McIntosh)

From Rucinski v. Cinemark, COA, Nonpublished 3/4/2011

The parties agree that Rucinski was an invitee of Cinemark. An invitee is one who “enters upon the premises at the express or implied invitation of the owner or occupant . . . in connection with business of the owner or occupant.” Cozine v. Shuff, 378 S.W.2d 635, 637 (Ky. 1964). It is firmly established in Kentucky’s law that owners of premises do not have a “duty to warn an invitee concerning open and obvious conditions.” Reece v. Dixie Warehouse & Cartage Co., 188 S.W.3d 440, 450 (Ky. App. 2006). Very recently, our Supreme Court refined the doctrine by adopting the position of the Restatement (Second) of Torts § 343A(1) (1965), which holds that if “the possessor should anticipate the harm despite such knowledge or obviousness,” then the possessor does have a duty to warn. Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 389 (Ky. 2010).

In the case before us, the trial court found that the dark stairs were an obvious and open condition that Rucinski recognized and voluntarily accepted when she attempted to walk down them before the house lights came on. Therefore, finding that Cinemark did not have a duty to warn Rucinski about the dark stairs, it granted the summary judgment.

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