McIntosh Premises Liability Distinguished by COA relative to dangerous conditions

Gaines v. Diamond Pond Products, Inc.

2009-CA-000848 12/29/10 2010 WL 5343290

Opinion by Chief Judge Taylor; Judges Acree and Senior Judge Buckingham concurred.  The Court affirmed an order of the circuit court granting a directed verdict in favor of appellee and dismissing appellants’ negligence claim for injuries the minor appellant received while employed by appellee for an annual charitable activity.  The Court held that the trial court properly granted the directed verdict.  In reaching that conclusion, the Court first held that the trial court correctly concluded that appellee breached no duty of care owed to appellant as an employee.  The uncontroverted facts demonstrated that appellee provided appellant with a reasonably safe place to work and any injury he suffered was caused by his violation of appellee’s rules and occurred while he was engaged in activities outside the proper scope of his employment.  The Court next held that even if appellant was an invitee, appellee did not breach its duty of care by failing to warn of a dangerous condition on its premises.  While Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), modified the open and obvious doctrine, it did not abolish it.  Appellant’s injury was not a foreseeable harm that appellee could anticipate nor was it caused by a known or obvious condition and appellee had no duty to protect appellant from himself.

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