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.

Slip and Fall: The Failure to Keep a Careful Lookout Defense

In a recent decision, the Missouri Court of Appeals for the Western District of Missouri examined a defendant’s assertion of comparative fault for the plaintiff’s failure to keep a careful lookout in case involving injuries from a slip and fall due to water on the floor. In Isaiah Rider v. The Young Men’s Christian Association of Greater Kansas City, Isaiah Rider, a six year old boy attending after-school day care at the YMCA, slipped on water on the floor of a YMCA and fell. The staff of the YMCA had directed the children to play outside, where there was melting ice and snow. After the children were done playing, the staff brought them back inside though a door that led directly to the cafeteria, which had a smooth tile floor. There was no door mat near the door where the children could dry their feet. The staff then told the children to wash their hands at a communal sink in the cafeteria. No floor mat was placed near the sink to absorb water splashing from the sink. After the children washed their hands, they proceeded across the cafeteria to line up. While crossing the cafeteria, Isaiah slipped and fell, breaking his tibia. Unfortunately, due to complications and a pre-existing medical condition, Isaiah’s leg was eventually amputated below the knee. He subsequently brought suit for his injuries.

In defending the suit, the YMCA asserted Isaiah was comparatively at fault his injuries for failing to keep a careful lookout. At trial, the evidence was that Isaiah did not see water on the floor before he fell, but that his clothes were wet after the fall. In fact, all of the staff testified that they did not observe any plainly visible dangerous conditions on the floor and did not believe any existed at the time of the fall. At the end of the trial, the jury awarded nearly six million dollars in damages, but found Isaiah 90% at fault and he appealed.

One of the issues addressed on appeal was whether it was proper to allow the jury to consider whether Isaiah was at all at fault for his injuries. The jury found Isaiah at fault through the YMCA’s defense that he failed to keep a careful lookout. The essence of this defense is the failure to see a danger and a failure to react to that danger. However, it is only negligent (or comparatively at fault) to fail to see what is plainly visible. In addition, the Court stated a person is not required to look for danger where there is reason to anticipate danger.

In Isaiah’s case, there was no evidence to support he was at fault for his injuries. No one saw any water on the floor before the fall – in other words, the water must not have been plainly visible. Without any evidence of a plainly visible condition, the jury should not have been allowed to assess fault to Isaiah and the trial court’s judgment was reversed.

This case offers lessons for injured parties,  plaintiff’s attorneys,  and defense attorneys. First, if you have been injured due to a dangerous condition on a piece of property, do not assume you do not have a law suit simply because the condition causing the injury seems obvious after the fact. Consult an attorney to determine whether your case is one that can be prosecuted successfully.

When considering whether to pursue cases of premises liability, plaintiff’s attorneys should keep in mind that a plaintiff should be assessed comparative fault for failure to keep a careful lookout only if the condition causing the injury was “plainly visible.” Further, conditions everyone ordinarily may consider plainly visible may not turn out to be based upon the testimony of the witnesses  – like water on the floor.

For defense attorneys, it will be important when asserting or investigating this defense to develop evidence of the existence of a plainly visible condition. This may be done through a defendant’s employees or third-party witnesses. This evidence, however, may be a double-edged sword. If the defendant’s employees testify a condition was “plainly visible,” shouldn’t those same employees have taken steps to warn, barricade, or repair the condition?