TORTS (Premises liability); JUDICIAL ACMISSIONS: Faller v. Endicott-Mayflower, LLC (COA 11/20/2009)

Faller v. Endicott-Mayflower, LLC
2008-CA-001506 11/20/09 2009 WL 3878062

Opinion by Judge Nickell; Chief Judge Combs and Judge Taylor concurred.

The Court affirmed a summary judgment in favor of appellees on appellant’s claims related to injuries she sustained when she fell while leaving a restaurant. The Court ultimately held that the trial court properly granted summary judgment because appellant could not prove that any act or omission by any of the appellees substantially caused her to fall.

In reaching that conclusion, the Court first held that statements in appellant’s deposition were judicial admissions that the condition of the threshold of the restaurant was known to her.
The Court next held that appellees had no reason to expect appellant would fall at the threshold after her numerous visits without incident and that, based on her admitted knowledge of the condition, she assumed the risk of crossing the threshold and appellees had no duty to warn her of the condition of the threshold.

The Court next held that because no duty was owed and no duty was breached, appellant’s claim that the trial court misapplied the doctrine of contributory negligence was without merit.
The Court next held that summary judgment was appropriate on appellant’s claim that the premises violated the Kentucky Building Code. Appellees’ testimony created a presumption of non-deficiency under KRS 198B.135 and because the building was completed in 1926 and the threshold was unchanged from the time the restaurant was opened in 1992 until the time of appellant’s fall, compliance with the current code provisions was not mandatory.

The Court finally held that summary judgment was not premature when appellant had nearly three years to complete discovery, significant discovery had occurred, and no additional discovery was sought after a notice of submission for final adjudication was filed.

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