Full Opinion

RENDERED: OCTOBER 23, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0698-MR TAMMIE L. PORTER APPELLANT APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE W. DAVIS, III, JUDGE ACTION NO. 20-CI-00757 ASHLAND INTEGRATIVE MEDICINE, LLC; CANNONSBURG WATER DISTRICT; AND BOYD COUNTY SANITATION DISTRICT 4 APPELLEES OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: CALDWELL, ECKERLE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Tammie L. Porter brings this appeal from May 2, 2025, Summary Judgment of the Boyd Circuit Court granting summary judgment in favor of Ashland Integrative Medicine, LLC, in a premises liability action. We reverse and remand. Tammie L. Porter was a patient of Ashland Integrative Medicine, LLC (Ashland Medicine), located in Ashland, Kentucky. On October 24, 2019, Porter had an appointment at Ashland Medicine. After the appointment, Porter left the building, walked past the parking lot where her vehicle was parked, and walked into an abutting grassy area to allow her service dog to relieve himself. Once there, Porter waited for the service dog and took a step backwards into a hole containing a water meter. She allegedly did not see the water meter due to tall grass obscuring its view. Porter further alleges that the cover over the water meter flipped when she stepped on it, and she fell straight into the water meter hole, resulting in serious injuries. On October 9, 2020, Porter filed a complaint against Ashland Medicine, Boyd County Sanitation District 4, and the City of Ashland.1 Therein, Porter claimed, inter alia, that Ashland Medicine breached its duty to maintain the premises in a safe condition, and as a result, she suffered physical injury: 9. On or about October 24, 2019, Tammie L. Porter was an invitee on property located at 10730 Midland Trail Rd, Ashland, Boyd County, Kentucky. 10. While on the aforementioned property, Plaintiff, Tammie L. Porter the plaintiff was injured when she was caused to fall by a water meter hatch and/or manhole cover on property owned, controlled, and/or maintained by the Defendants. 1 It appears that the City of Ashland was later dismissed as a party. -2- 11. Plaintiff had no expectation or warning of the dangerous condition on the property. 12. Defendants had a duty to maintain their property in a safe condition. 13. Defendants had a duty to inspect and maintain the water meter hatch and/or manhole cover in a reasonably safe condition and to promptly alert any invitees of any unreasonably dangerous condition. 14. The negligently maintained water meter hatch and/or manhole cover created an unreasonably dangerous condition. 15. The Defendants breached their duties to Plaintiff by their: a. Failure to maintain the water meter hatch and/or manhole cover for public safety; and b. Failure to warn of or make safe the unreasonably dangerous condition of the water meter hatch and/or manhole cover. Complaint at 3-4. Porter sought damages for injuries she suffered as a result of the accident. Subsequently, on November 6, 2020, Ashland Medicine filed a third- party complaint against Cannonsburg Water District. Ashland Medicine asserted that Cannonsburg District owned, operated, maintained, and controlled that water meter and cover. Ashland Medicine claimed that Cannonsburg District possessed the duty to maintain and to operate the water meter and cover in a safe condition, and Ashland Medicine possessed no such duty. -3- On March 21, 2023, Ashland Medicine filed a Motion for Summary Judgment. In the motion, Ashland Medicine asserted that Porter believed the cover on the water meter was loose and caused her to fall into the water meter hole. Based upon the facts presented, Ashland Medicine alleged it was undisputed that Cannonsburg District owned, maintained, and operated the water meter. Ashland Medicine maintained that Porter failed to allege any facts demonstrating that its negligence caused her fall. Ashland Medicine pointed out that it did not own or maintain the water meter or cover and was unaware of any dangerous condition as to the water meter. Ashland Medicine argued that it was entitled to summary judgment. Porter filed a response in opposition. Porter argued that it was irrelevant that Ashland Medicine did not own or maintain the water meter. Rather, Porter alleged that “[t]he issue is not whether [Ashland Medicine] owned the meter, but whether they let a foreseeable hazard exist on their property.” Response at 1. Porter maintained that “[i]t is certainly foreseeable that an open manhole near a parking spot for your business invitees could constitute a hazard.” Response at 2. Porter believed that a material issue of fact existed upon whether a dangerous condition existed upon the real property, and Ashland Medicine failed to remedy or warn of same. -4- By Summary Judgment entered May 2, 2025, the circuit court granted Ashland Medicine’s motion for summary judgment. The circuit court noted that it was uncontroverted that Cannonsburg District owned and maintained the water meter, including the cover. The court also pointed out that there was no evidence that Ashland Medicine knew of the water meter or interacted with the water meter in any way. The circuit court also concluded that there was a complete absence of evidence showing that Ashland Medicine had actual or constructive knowledge of any hazard connected to the water meter. And, the circuit court held that the water company was solely responsible for maintaining the water meter in a reasonably safe condition and not the owner of the real property. Thus, the circuit court dismissed Porter’s claims against Ashland Medicine.2 This appeal follows. STANDARD OF REVIEW Summary judgment is proper where there exists no genuine issue of material fact and movant is entitled to judgment as a matter of law. Ashland Hosp. Corp. v. Darwin Select Ins. Co., 664 S.W.3d 509, 515-16 (Ky. 2022); Kentucky Rules of Civil Procedure (CR) 56.03. All facts and inferences therefrom are viewed in a light most favorable to the nonmoving party. Ogden v. Emps. Fire Ins. 2 The May 2, 2025, Summary Judgment only dismissed the claims against Ashland Integrative Medicine, LLC (Ashland Medicine); however, claims remained pending against other parties. To achieve finality, the circuit court included complete finality language in the May 2, 2025, Summary Judgment per Kentucky Rules of Civil Procedure 54.02. See Wright v. Ecolab, Inc., 461 S.W.3d 753, 757 (Ky. 2015). -5- Co., 503 S.W.2d 727, 729 (Ky. 1973). And our review is de novo. Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2011). LEGAL ISSUE ON APPEAL Porter contends the circuit court erred by rendering summary judgment in favor of Ashland Medicine and dismissing her claims against it. Porter asserts that the circuit court committed an error of law by concluding that Ashland Medicine owed no duty because it neither owned nor maintained the water meter and had no knowledge of a defect with the water meter. Porter maintains that she was an invitee upon Ashland Medicine’s property at the time of the accident. As the owner of the property where the water meter was located, Ashland Medicine owed her, as an invitee, the duty to discover a dangerous condition upon its property and to either warn her or remedy the dangerous condition. At the time of the accident, Porter alleges that the grass needed mowing and that the overgrown tall grass obstructed her view of the water meter, thus causing her to walk upon the meter and fall into the meter hole. Additionally, Porter believes that Ashland Medicine possessed a duty to maintain the water meter so that it did not pose a danger to its invitees. Porter claims that material issues of fact exist upon whether Ashland Medicine breached its duty to her as an invitee, thus precluding summary judgment. -6- ANALYSIS In Kentucky, a “possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them.” Shelton v. Kentucky Easter Seals Society Inc., 413 S.W.3d 901, 909 (Ky. 2013). An invitee is defined as an individual “who ‘enters upon the premises at the express or implied invitation of the owner or occupant on behalf of mutual interest to them both, or in connection with the business of the owner or occupant.’” Shelton, 413 S.W.3d at 909 (quoting Scuddy Coal Co. v. Couch, 274 S.W.2d 388, 390 (Ky. 1954)). However, “[t]he possessor of land is subject to liability to another as an invitee only for harm sustained while he is on the land within the scope of his invitation.” RESTATEMENT (SECOND) OF TORTS § 332 cmt. l (1965);3 see also 65A C.J.S. Negligence § 509 (2026); Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, 897 (Ky. 2013) (holding “[a] customer of a store, when on that part of the premises where customers are expected to go, is an invitee”). Thus, the possessor’s duty to an invitee only extends to property encompassed within the scope of the invitation. The scope of an invitee’s invitation generally includes property that the possessor gives the invitee reason to believe that her 3 In Smith v. Smith, 563 S.W.3d 14, 17 (Ky. 2018), the Kentucky Supreme Court recognized that Kentucky follows the RESTATEMENT (SECOND) OF TORTS §§ 329-43 (1965) as to premises liability law. -7- presence is wanted in connection with the purpose for which the invitation was extended: [T]he visitor has the status of an invitee only while he is on the part of the land to which his invitation extends— or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come. In determining the area included within the invitation, the purpose for which the land is held open, or the particular business purpose for which the invitation is extended, is of great importance. . . . It is not, of course, essential that the place shall be one in which the particular purpose of the visit is actually carried out. There are many facilities, such as the restrooms of a theatre, department store, or filling station, which are provided for customers or patrons and are as much open to them as the parts of the premises with which their visit is chiefly concerned. On the other hand a toilet in a corner drugstore is not usually provided for the use of customers, and when a customer requests the use of it he is merely a licensee. Where it is customary that customers or patrons shall be free to go to certain parts of the premises, they are invitees there unless the possessor notifies them that the area of invitation is more narrowly restricted. . . . If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent. . . . .... Since the status of the visitor as an invitee may depend upon whether the possessor should have known that the visitor would be led to believe that a particular -8- part of the premises is held open to him, the question is often one of fact for the jury[.] RESTATEMENT (SECOND) OF TORTS § 332 cmt. l (1965). As to a business invitee, the scope of invitation generally includes areas of ingress and egress, areas necessary for carrying out business activities, and areas ordinarily provided to invitees incidental to their visit (e.g., restrooms). Id. Based on our review of the record, Porter was a patient of Ashland Medicine and is considered a business invitee upon property contained within the scope of her invitation from Ashland Medicine. See 65A C.J.S. Negligence § 509 (2026); RESTATEMENT (SECOND) OF TORTS § 332 cmt. l (1965); Dick’s Sporting Goods, Inc., 413 S.W.3d at 897. In her deposition, Porter testified that she exited Ashland Medicine’s building after completing her appointment and headed in the direction of the parking lot. Porter and her dog passed her vehicle and walked through the parking lot into a grassy area abutting the parking lot. Once in the grassy area, Porter waited for her dog to finish his business, and at some point, she took a step back causing the cover of the water meter to dislodge and resulting in her leg falling straight into the water meter hole. Porter testified that she could not see the water meter before the accident due to the tall grass obstructing the cover of the water meter. Nonetheless, Porter stated that she and her dog frequented the grassy area each time she had an appointment at Ashland Medicine. -9- Ashland Medicine alleges that Porter did not argue before the trial court that Ashland Medicine’s failure to maintain the median (tall grass obstructing the water meter) where the water meter was located breached its duty of care owed to Porter as an invitee on their property. Thus, the issue was not preserved for appellate review. We are cognizant that this is a summary judgment case and not an appeal from an evidentiary hearing or trial. Being an appeal of a summary judgment necessitates our de novo review of the entire record below as previously stated. Paragraph twelve of the complaint plainly alleges that Ashland Medicine owed a duty to Porter to maintain their property in a safe condition, which she alleges was breached. And, Porter testified through interrogatory answers and by deposition that her view of the water meter was obstructed by tall grass. For purposes of our review, the issue was sufficiently preserved below. In viewing the facts most favorable to Porter, there is a material issue of fact upon whether Ashland Medicine breached its duty to Porter as a business invitee by permitting grass to allegedly grow tall enough to obstruct Porter’s view of the water meter, thus causing her to walk upon the meter and fall into the water meter hole. Additionally, a material issue of fact also exists as to whether Porter’s injury occurred on premises (grassy area) that was included within the scope of her invitation as a business invitee on Ashland Medicine’s property. The grassy area was not utilized as an ingress or egress to Ashland Medicine’s business and was -10- not utilized in connection to Ashland Medicine’s business activities, albeit it was immediately adjacent to the parking area of the business. Thus, the issue of whether the grassy area is within the scope of the invitation to Porter as an invitee is factual and should be decided by a jury.4 And, the foreseeability of Porter walking in the grassy median as an invitee of Ashland Medicine as it relates to the risk of harm that Porter was exposed to is also a factual issue. See Shelton, 413 S.W.3d at 916. CONCLUSION There exist genuine issues of material fact as to whether Porter’s injury took place upon property (grassy area) within the scope of her invitation as a business invitee and whether the alleged tall grass created an unreasonably dangerous condition that obstructed Porter’s view of the water meter leading to the accident and her injuries. If the grassy area is outside the scope of the invitation, Porter was not an invitee thereupon, and Ashland Medicine did not have a duty to discover dangerous conditions thereon and remedy or warn of such dangerous conditions. Accordingly, we reverse the summary judgment of the Boyd Circuit Court and remand for proceedings consistent with this Opinion. 4 We note that if the grassy area were not within the scope of the invitation, Porter would likely become a licensee, and Ashland Medicine owed Porter a duty to “not knowingly let [] her come upon a hidden peril or willfully or wantonly caus[e] her harm.” Smith v. Smith, 563 S.W.3d 14, 17 (Ky. 2018); RESTATEMENT (SECOND) OF TORTS § 330 (1965). -11- ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE ASHLAND INTEGRATIVE MEDICINE, LLC: Daniel G. Yeast Somerset, Kentucky D. Luke Vincent Andrew K. Wheeler Ashland, Kentucky -12-