Unpainted Curb Not an Open and Obvious Condition

One of the issues in premises liability cases is whether the dangerous condition was open and obvious. This is because property owners may not have a duty to warn others of open and obvious dangers on the property. A recent Eastern District Court of Appeals decision addressed the issue of whether an unpainted curb constituted an open and obvious danger.

Facts of Case

Kathy Christian drove her employer’s minivan to the Saint Francis Medical Center  to pick up a client following the client’s medical treatment at the hospital. The patient drop-off and pick-up area was a two-way curved drive past the hospital doors. A canopy covering the drive was supported on the far side of the drive opposite the hospital doors by a pillar located on a traffic island. The curb of the traffic island was not painted to contrast with the drive.

Christian had been to the hospital on several occasions, including earlier that day when she transported her client to the hospital. Previously, she had always stopped or parked adjacent to the curb to her right, near the hospital doors. She never noticed the curb or the island on which the pillar stood. When Christian arrived at the hospital, a valet motioned to her to pull into the left lane, or oncoming traffic lane, and to park at the curb. Christian parked to her left in the hospital driveway, which she had never done before. This was adjacent to the traffic island. She then listened to the valet’s instructions about leaving the van with the keys in it for valet parking. She opened the van door and, as she exited, stumbled on the adjacent curb. Christian did not see the curb and  the valet did not warn her about it. The fall caused her to suffer a compound fracture to her femur.

Christian then filed suit against the hospital asserting a claim of premises liability.

The Trial Court Ruling

The trial court granted Saint Francis Medical Center summary judgment. The trial court did not state the basis for its grant of summary judgment. Christian then appealed.

The Ruling on Appeal

The Eastern District Court of Appeals reversed the trial court’s summary judgment. In doing so, it noted that the court could not say, as a matter of law, that the curb that was the same color as the driveway was an open and obvious danger that would allow the hospital to rely on Christian to see and appreciate the risk of danger while parking a vehicle at the instruction of a valet in the oncoming traffic lane with congested traffic conditions. In addition, when determining whether the curb constituted a dangerous condition, a jury could consider whether Christian would have been distracted by the activity in the patient pick-up/drop-off area. Therefore, there were issues of fact Christian was entitled to have a jury decide.


Many people would think a curb constitutes an open and obvious condition. This case supports the proposition that the legal analysis can be heavily fact dependent. Was the curb the same color as the street? Were there other conditions present that affected a person’s appreciation or observation of the curb? What distractions existed that could case a person not to notice the curb? All of these questions should be addressed in analyzing this issue. However, this may merely avoid judgment as a matter of law against a plaintiff. Juries still could find that a curb should be seen appreciated by anyone, regardless of its color and surrounding conditions.

The full opinion can be found here.