RENDERED: APRIL 21, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0354-MR

LARISSA PENDLEY APPELLANT 

v. 

APPEAL FROM DAVIESS CIRCUIT COURT

HONORABLE JAY A. WETHINGTON, JUDGE

ACTION NO. 19-CI-00963

CITY OF OWENSBORO, KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, ECKERLE, AND KAREM, JUDGES.

CALDWELL, JUDGE: Larissa Pendley appeals from a summary judgment 

granted in favor of the City of Owensboro, Kentucky on her premises liability 

claim. We affirm.

FACTS

Larissa Pendley (Pendley) attended a conference at the city-owned 

Owensboro Convention Center with friends. She, her friends, and others passed 
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through a well-worn landscaped area rather than using the sidewalk to enter the 

convention center in the morning. This landscaped area contained a concrete pad. 

A few hours later, along with others, she went through the same landscaped area

when going to lunch and suddenly fell. She suffered injuries from her fall and 

filed suit against the city and other entities. Discovery commenced. 

According to deposition testimony, Pendley had tripped over the 

concrete pad’s ledge. Evidence showed that the concrete pad was level with the 

wood chips and landscaping on the northern ingress side, but the concrete pad was 

inches higher than the landscaping on the southern egress side. In other words, one 

did not have to step up over the pad to go towards the center grounds, but one 

would have to step up over the pad when leaving the center grounds. 

Pendley testified by deposition that she had been watching where she 

was going and was aware of the concrete pad structure. She also testified there 

were no signs warning anyone to stay out of the landscaped area and that she had 

not perceived the area to be dangerous before her fall. She admitted she should 

have just used the sidewalk, but she noted others passed through the same area 

without incident. 
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The city filed a motion for summary judgment, arguing inter alia that 

the landscaped area was open and obvious and not unreasonably dangerous.

1

 

Pendley filed a response, asserting genuine issues of material facts existed and 

precluded summary judgment. She also argued that even if any hazardous 

condition was open and obvious, that alone did not entitle the city to summary 

judgment under recent precedent and a jury should determine any issues of 

comparative fault. 

Following oral argument by the parties’ counsel, the trial court 

granted the city’s motion for summary judgment. It perceived that the material 

facts were not in dispute. It noted the city owned the property at issue and was 

responsible for its maintenance. It noted that weather conditions were not adverse. 

It also accepted that Pendley was an invitee though she had elected to cross 

through the landscaped area rather than using the sidewalk.2 

1 The city also argued that Pendley’s lawsuit was barred by the Claims Against Local 

Governments Act (CALGA). But the trial court ultimately declined to rule on this argument. 

We express no opinion on any CALGA issues – particularly as the parties have not argued 

CALGA issues in their appellate briefs. 

2 The city’s counsel orally noted to the trial court that Pendley might be considered a trespasser 

since she passed through the landscaping area rather than using the sidewalk. But counsel 

argued the city was entitled to summary judgment even if Pendley was an invitee. The city did 

not argue that Pendley was a trespasser in its appellee brief or in its written motion for summary 

judgment. So, for purposes of resolving this appeal, Pendley’s status as an invitee appears 

undisputed and we do not reach any issues about how the city’s liability might be affected if she 

was considered a trespasser. 
-4-

Without explicitly discussing how one side of the concrete pad was 

level with the landscaping but the other was not, the trial court summarized that 

Pendley fell on the concrete pad within the landscaped area. It also noted in its 

order and judgment her testimony that she was paying attention to where she was 

going, noticed the concrete pad and did not perceive any danger prior to her fall:

Plaintiff testified in her deposition that the condition that 

caused her to trip, the edge of the concrete pad and the 

landscaping adjacent to the concrete pad, did not appear 

dangerous to her when she first walked to the entrance of 

the Owensboro Convention Center on the morning of this 

incident and traversing the same landscaping. Plaintiff 

further testified that she would not have walked through 

and over the concrete slab on the first or second occasion 

if she had believed the area was dangerous.

The trial court also referred to Pendley testifying that, both while going into and 

leaving the conference center area via the landscaped area, Pendley looked ahead 

and “was fully aware that she was walking on a concrete pad surrounded by 

decorative landscaping but adjacent to the unobstructed sidewalk.” 

Even construing the evidence in Pendley’s favor, the trial court 

concluded it would be impossible for her to prevail at trial based on recent 

precedent.

3

 It concluded that she could not prove the existence of a dangerous 

3 Oddly, the trial court also stated in its conclusions of law: “Here, the condition that caused 

Plaintiff’s injury was not dangerous or hazardous.” It is hard to understand how the trial court 

both concluded that a condition had caused her injury and that the same condition was not 

dangerous or hazardous. Nonetheless, regardless of this perplexing statement, we conclude the 

trial court properly determined that Pendley could not prove that the city breached a duty based 

on the record before us and controlling precedent as we later discuss.
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condition, emphasizing her testimony that she did not perceive any danger before 

her fall despite being aware of the concrete pad and landscaping both when 

entering and exiting the conference center area. It also concluded that the concrete 

pad surrounded by landscaping was an open and obvious condition which she 

observed prior to her fall and that the city had done everything reasonable to 

“segregate foot-traffic from the area.” It concluded Pendley could not prove that 

the city had breached a duty to her, and noted she was aware the concrete pad was 

surrounded by landscaping but “chose to avoid this barrier.” So, it granted 

summary judgment in favor of the city, and it dismissed Pendley’s complaint with 

prejudice.4

4 Since the complaint was dismissed with prejudice and no counterclaims or cross-claims had 

been filed, the appealed-from order granting summary judgment in the city’s favor was a final 

and appealable judgment since it effectively “adjudicat[ed] all the rights of all the parties in an 

action or proceeding[.]” Kentucky Rule of Civil Procedure (CR) 54.01. 

It does not appear that the other defendants to the action were formally dismissed prior to 

the appealed-from order granting the city summary judgment and dismissing the complaint.

Though the order granting summary judgment for the city states that it is final and appealable, it 

does not contain a statement that there is no just cause for delay. See CR 54.02(1) (“when 

multiple parties are involved, the court may grant a final judgment upon one or more but less 

than all of the claims or parties only upon a determination that there is no just reason for delay. 

The judgment shall recite such determination and shall recite that the judgment is final. In the 

absence of such recital, any order or other form of decision, however designated, which 

adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not 

terminate the action as to any of the claims or parties, and the order or other form of decision is 

interlocutory and subject to revision at any time before the entry of judgment adjudicating all the 

claims and the rights and liabilities of all the parties.”).

Nonetheless, we are satisfied that the appealed-from order is inherently final and 

appealable as the dismissal of the complaint with prejudice resolves all claims and rights of all 

parties in the action, see CR 54.01, given the absence of counterclaims or cross-claims here. 
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ANALYSIS

Summary Judgment Standards

We review the trial court’s grant of summary judgment de novo, 

keeping in mind the stringent standards governing the trial court in ruling on a 

summary judgment motion:

Summary judgment is to be cautiously applied and 

should not be used as a substitute for trial. Granting a 

motion for summary judgment is an extraordinary 

remedy and should only be used to terminate litigation 

when, as a matter of law, it appears that it would be 

impossible for the respondent to produce evidence at the 

trial warranting a judgment in his favor and against the 

movant. The trial court must review the evidence, not to 

resolve any issue of fact, but to discover whether a real 

fact issue exists. This review requires the facts be 

viewed in the light most favorable to the party opposing 

summary judgment. . . .

Appellate review of a summary judgment involves 

only legal questions and a determination of whether a 

disputed material issue of fact exists. So we operate 

under a de novo standard of review with no need to defer 

to the trial court’s decision.

Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013)

(internal quotation marks and footnotes omitted).5

5 Based on our review of the record, Pendley clearly preserved the sole issue on appeal for our 

review in her written response to the city’s motion for summary judgment and in oral argument 

to the trial court. However, the argument portion of Pendley’s brief does not begin with the 

required statement identifying – with citations to the record – if and how her argument was 

preserved for our review. See Kentucky Rules of Appellate Procedure (RAP) 32(A)(4); see also

former CR 76.12(4)(c)(v) (in effect at time of briefing). We remind counsel of the importance of 

complying with our appellate rules. “If a party fails to inform the appellate court of where in the 

record his issue is preserved, the appellate court can treat that issue as unpreserved” meaning it 
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To ultimately prevail on her negligence claim, Pendley would have to 

prove the required elements of duty, breach, causation, and damages. See, e.g.,

Phelps v. Bluegrass Hosp. Management, LLC, 630 S.W.3d 623, 628 (Ky. 2021).

Our Supreme Court has made clear in recent years that owners or possessors of 

land owe certain duties to invitees regardless of the existence of any open and 

obvious conditions or hazards. Shelton, 413 S.W.3d at 907-08. In such cases, the 

key question now is not whether a duty exists but whether the defendant breached 

duties or fulfilled its standard of care. Id. at 910-11. And generally, a possessor of 

land owes invitees a duty to discover unreasonably dangerous conditions on the 

land and to either eliminate the dangers or warn of them. McKinley v. Circle K, 

435 S.W.3d 77, 80 (Ky. App. 2014). 

In its order granting the city’s motion for summary judgment, the trial 

court did not explicitly state that the city did not owe Pendley any duty. But it 

concluded Pendley could not show the city “breached its duty to exercise ordinary 

reviews the issue solely for palpable error resulting in manifest injustice. Ford v. 

Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021); see also CR 61.02. Furthermore, briefs may 

be stricken for substantial failure to comply with appellate rules. See RAP 31(H)(1); see also

former CR 76.12(8)(a). Although perhaps it is debatable whether Pendley’s brief substantially 

failed to comply with appellate rules, Pendley’s brief also fails to comply with other 

requirements such as a statement regarding oral argument. See, e.g., RAP 32(A)(1); former CR 

76.12(4)(c)(ii).
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care to maintain its premises in a reasonably safe condition.”6 Pendley contends 

the trial court did not properly assess whether there was evidence of a breach of 

duty under controlling precedent such as Shelton. And she contends the trial court 

erroneously concluded there was no dangerous condition as a matter of law.

Pendley argues in her brief the “uneven concrete pad”7 was a 

dangerous condition “irrespective of its open and obvious nature.” She asserts the 

uneven concrete pad caused her to trip and fall and be injured. And she cites for 

our consideration an unpublished opinion which she construes as recognizing that 

uneven pavement may be a dangerous condition.

8

We agree with Pendley’s argument that the trial court’s statements 

indicating that there was no dangerous condition were problematic. Apparently, it 

concluded there was no evidence of a dangerous condition because, despite 

allegations of a dangerous condition in her complaint, “her testimony was that the 

area did not appear unsafe or present a dangerous condition.” But properly 

6 To the extent that the trial court’s order could be construed as concluding the city owed no 

duties to Pendley, this is inconsistent with Shelton. However, that does not mean summary 

judgment was nonetheless inappropriate under these facts.

7 Pendley’s brief argues the uneven concrete pad was a dangerous condition, but she does not 

explicitly discuss the trial court’s lack of mention of the concrete pad being uneven in its order 

granting summary judgment. 

8

 See Embry v. Mac’s Convenience Stores, LLC, No. 2012-CA-000333-MR, 2014 WL 2640240

(Ky. App. Jun. 13, 2014). This unpublished case is not binding. RAP 41(A); former CR 

76.28(4)(c). 
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construing the evidence in the light most favorable to the party opposing summary 

judgment (Pendley), her testimony indicated that she did not perceive the area as

dangerous prior to her fall – but she did not admit there was no dangerous 

condition. After all, Pendley, and even the trial court, referred to some condition 

concerning the area with the concrete pad causing her to trip and fall.

Thus, we cannot agree with the city and the trial court that summary 

judgment was warranted based on a lack of evidence of a dangerous condition 

despite their citations to Phelps, 630 S.W.3d at 630 (although summary judgment 

in landowner’s favor could not be affirmed based on condition being open and 

obvious, the summary judgment was affirmed based on lack of evidence of a 

dangerous condition in the premise). Yet despite any problems with the trial 

court’s stating there was no dangerous condition, it properly concluded Pendley 

could not show that the city did not breach any duty based on the evidence here –

in part based on undisputed evidence that the condition at issue was open and 

obvious. 

Even though a condition may be dangerous, the law recognizes that 

some open and obvious dangerous conditions are not unreasonably dangerous and 

that landowners do not breach applicable duties under some circumstances when 

they neither eliminate nor warn of open and obvious dangerous conditions. For 

example, though stairs might be dangerous because people can fall on them, a 
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building containing stairs is often not considered unreasonably dangerous because 

the risk is obvious, so people know to take precautions without being warned. See 

Shelton, 413 S.W.3d at 914 (danger posed by open and obvious conditions like 

stairs and potholes may not be considered an unreasonable danger; “the condition 

is a warning in itself and places the plaintiff on the same level of knowledge about 

the premises as the land-possessor defendant”). Specifically, recent Kentucky 

precedent adopting Section 343 of the Restatement (Second) of Torts indicates a

breach of duty by the landowner cannot be found for an open and obvious 

hazardous condition unless there is evidence of a reason to anticipate harm despite 

the obviousness of the hazard: 

According to the Restatement, a possessor of land is 

subject to liability when he fails to protect his invitees 

from harm, despite the condition’s open-and-obvious 

nature, because he should have anticipated that harm 

would result. But a possessor of land is simply not liable 

to his invitees for physical harm caused to them by any 

condition on the premises whose danger is known or 

obvious to them unless the possessor should anticipate 

the harm despite such knowledge or obviousness. Read 

together, as called for by the Restatement (Second),

Section 343 outlines the general standard of care 

applicable to invitors; and Section 343A serves as an 

acknowledgment that under certain limited 

circumstances, negligence will not be present. In other 

words, Section 343A suspends liability when the danger 

is known or obvious to the invitee, unless the invitor 

should anticipate or foresee harm resulting from the 

condition despite its obviousness or despite the invitee’s 

knowledge of the condition.
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Shelton, 413 S.W.3d at 911 (internal quotation marks and footnotes omitted).

Our Supreme Court opined that issues about the foreseeability of harm

despite an open and obvious condition are normally jury questions. And it 

recognized that questions of foreseeability of harm are just one factor for the jury 

to consider in determining if the landowner defendant fulfilled its standard of care. 

Shelton, 413 S.W.3d at 914. Nonetheless, summary judgment is not necessarily 

precluded especially if there are no genuine issues of material fact, or the plaintiff 

could not possibly prove all elements of negligence – such as breach of duty – even 

construing the evidence in his/her favor. Id. at 916. 

Pendley correctly asserts that the city owed a duty of care to invitees. 

And based on photographs or other evidence showing the landscaped area was well 

worn, she reasonably argues that the city should have known that pedestrians 

frequently cut through the area. She also points out that there were no signs stating 

keep off the landscaping and no signs stating any warnings. 

Yet while there may be evidence that pedestrian use was foreseeable 

and that no signs with warnings were posted, Pendley does not point to any 

evidence that harm should be anticipated despite the obviousness of the concrete 

pad drop-off. As the trial court noted, Pendley admitted seeing the concrete 

structure and landscaping when passing through earlier that morning and she points 

to no evidence that her view of the concrete pad and ledge was obstructed. 
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She does not point to any evidence of factors causing pedestrians not 

to pay attention when crossing through the area or that harm should be anticipated 

despite the obviousness of the drop-off at one edge of the concrete pad. And a 

curb or other drop-off in concrete or pavement is often open and obvious especially 

if nothing obstructs one’s view. See generally Kentucky River Medical Center v. 

McIntosh, 319 S.W.3d 385 (Ky. 2010); see also Dishman v. C & R Asphalt, LLC, 

460 S.W.3d 341, 347 (Ky. App. 2014) (noting trial court’s regarding the drop in 

pavement or uneven ground in construction area of store parking lot – albeit with 

some barricades and caution tape – as an “incredibly open and obvious” hazard).9

Kentucky precedent recognizes that despite the existence of duties, 

summary judgment in favor of the landowner is not necessarily precluded –

especially where there is no genuine issue of material fact or where the 

plaintiff/invitee has not offered evidence to support all requirements of a 

negligence claim. See Shelton, 413 S.W.3d at 916. For example, this Court

affirmed a summary judgment in a landowner’s favor where the hazard was open 

and obvious (an unobscured laptop-sized hole in the ground), the plaintiff was 

familiar with the area and admitted he would not have stepped into the hole if he 

had been paying attention, and the plaintiff presented no evidence of any reason to 

9

See also Embry, 2014 WL 2640240, at *6 (approving trial court conclusion that unevenness or 

sudden drop-off in pavement was an open and obvious condition). 
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anticipate that passersby would be distracted or would suffer injury from the 

obvious hole. See Lewis v. Faulkner Real Estate Corp., 403 S.W.3d 64, 68 (Ky. 

App. 2013). And we noted invitees have an obligation to pay reasonable attention 

to their surroundings to discover and avoid dangerous conditions. See id. at 67-68. 

We contrasted the facts in Lewis with McIntosh, 319 S.W.3d 385 – as in McIntosh,

there was evidence to support anticipating harm despite the obviousness of a 

potentially hazardous condition: 

A comparison of the facts of McIntosh and our 

facts show that Lewis has not presented any viable reason 

for Faulkner to have an obligation to anticipate any harm. 

The facts of our case strongly distinguish it from those 

found in McIntosh. Unlike the paramedic in McIntosh,

who tripped over an unmarked curb while rushing a 

critically ill patient into an emergency room, Lewis

stepped off a sidewalk during a leisurely neighborhood 

stroll. He disclosed familiarity with the area, having 

walked it often, and admitted he would not have fallen 

had he been looking. Moreover, Lewis was not 

confronted with a situation or condition that would have 

allowed Faulkner to foresee such an injury.

Lewis, 403 S.W.3d at 68. 

In the instant case, Pendley had not passed through the landscaped 

area on numerous occasions, but she had crossed over it at least once before her 

fall and she admitted being aware of the concrete pad and landscaping. Normally 

any danger posed by a curb or sudden drop in pavement is open and obvious and 

no harm would be anticipated unless there is evidence of a reason to assume one
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could not focus on looking at the ground or would proceed despite perceiving the 

risk – such as a paramedic’s needing to focus on a critically ill patient rather than 

carefully stepping over a curb in a hospital emergency entrance in McIntosh. See

319 S.W.3d at 393-94. But Pendley has not pointed to any evidence the city 

should have foreseen that people passing through the area would not pay attention 

to their surroundings or that they might proceed despite an obvious risk to 

accomplish a critical task. See also Shelton, 413 S.W.3d at 917 (reasonably 

foreseeable that hospital patient’s wife would proceed to comfort or care for him

despite obvious risk of wires by bed because advantages of providing comfort and 

care would outweigh the risks). Furthermore, unlike the plaintiffs in Shelton or 

McIntosh who had no alternative but to proceed through the obviously dangerous 

area in order to provide care for others, the evidence here indisputably showed that 

Pendley could have simply used the adjacent sidewalk, rather than passing through 

the landscaped area with the uneven concrete pad, for access to and from the 

conference center. 

Based on the record here, the trial court correctly concluded that there 

was nothing to support a finding of breach of duty. In this action the city provided 

an alternative means of access, the hazardous condition of the landscaped area with 

the uneven concrete pad was open and obvious, and there was no evidence 

presented of reasons to presume that people passing through would be distracted or 
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would proceed despite being aware of the obvious risks. Though our reasoning 

may differ somewhat from the trial court’s,10 we conclude that the trial court 

reached the proper result in granting summary judgment based on the record before 

us, so we affirm. See Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 

434 S.W.3d 489, 496 (Ky. 2014) (“If an appellate court is aware of a reason to 

affirm the lower court’s decision, it must do so, even if on different grounds.”). 

CONCLUSION

We affirm the Daviess Circuit Court’s judgment.

ALL CONCUR.

10 The trial court’s written order indicated that it relied on our opinion in Hoskins v. City of 

Barbourville, No. 2019-CA-1622-MR, 2021 WL 3935361 (Ky. App. Sep. 3, 2021)

(unpublished). But the trial court orally stated it favored the dissent’s opinion in that case at a 

hearing. The trial court noted the Supreme Court had granted discretionary review, but it had not 

yet issued an opinion when the trial court issued its order granting summary judgment. Our

Supreme Court later reversed our decision on premises liability and reinstated the trial court’s 

summary judgment for the landowner in City of Barbourville v. Hoskins, 655 S.W.3d 137 (Ky. 

2022). Specifically, the Supreme Court determined that the trial court correctly concluded “the 

sun-heated walkways at the water park were not an unreasonably dangerous condition.” Id. at 

142.

The trial court also indicated it relied on Phelps, 630 S.W.3d 623 – in which summary 

judgment for the defendant was affirmed due to lack of evidence of a dangerous condition. Id. at 

630. Again, we cannot agree that there was no evidence of any dangerous condition here.

Lastly, the trial court also indicated it relied on Dishman, 460 S.W.3d 341. Dishman’s 

facts are very different from the instant case since the defendant had put up barricades and 

caution tape – thus, taking affirmative steps to warn or to keep people out of a potentially 

dangerous area and making it much more likely that a passer-by would be “able to avoid the 

drop-off in the pavement” if paying attention. See id. at 347. Yet despite factual differences, we 

conclude that summary judgment was properly granted here as it was in Dishman and in Lewis

given the lack of evidence of a reason to foresee harm despite the obviousness of the danger. 
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BRIEF FOR APPELLANT:

Thomas E. Springer, III

Madisonville, Kentucky

BRIEF FOR APPELLEE:

James A. Sigler

M. Jared Sigler

Paducah, Kentucky