Boudreaux v. Sonic Industries, Inc.

1986 OK CIV APP 14, 729 P.2d 514, 1986 Okla. Civ. App. LEXIS 58

• Court: Court of Civil Appeals of Oklahoma
• Decided: June 24, 1986
• Docket: 64607
• Status: Published

Opinions

HANSEN, Judge:

This Accelerated Docket case was orally presented and submitted to a three judge panel of the Court of Appeals. Upon examination of the records and briefs and based upon argument of counsel, the case was withdrawn from the Accelerated Docket and placed on the Regular Docket of this court.

This appeal by Plaintiff below arises out of the trial court’s order granting Defendant’s motion for summary judgment. Plaintiff, Joann Boudreaux, filed suit against Sonic Industries, Inc., Sonic Drive In, (Sonic) and Stephanie Cobb for the wrongful death of her husband Kenneth Boudreaux. At the time of the accident Miss Cobb was attempting to exit the Sonic Drive-In Restaurant on N.E. 23rd, east of Oklahoma City, Okla. When she pulled to the curb line, the view to the east was obstructed by a large, permanent Sonic sign. As she made a left turn onto 23rd Street she struck a motorcycle coming from the east driven by decedent Kenneth Boudreaux. He was thrown from his motorcycle, suffered a head injury and subsequently died.

After filing this action, Plaintiff settled with the driver of the car, Ms. Cobb. Plaintiff alleged in her petition Sonic was negligent in placing its sign too close to the highway so that it obstructed the view of traffic. She further alleged this negligence caused the death of decedent.

Sonic moved for summary judgment arguing statements in Ms. Cobb’s deposition clearly indicated the sign was not the cause of the accident. In response Plaintiff submitted an affidavit of the police officer who had investigated and photographed the accident scene. These pictures appeared to support allegations the view of the road was obstructed by the sign. The officer stated his investigation disclosed that because of the sign, a vehicle 200 feet down the highway could not be seen by a driver exiting Sonic without her pulling into the roadway. Nevertheless, 'the trial court granted Sonic’s motion and Plaintiff appeals.

The basis for Sonic’s motion for summary judgment was a statement in Ms. Cobb’s deposition in which she states once she leaned forward in her car, she could see approaching oncoming traffic to her left. However, other portions of the deposition indicate Ms. Cobb could not unequivocally state her vision was unobstructed.

While a single statement in Ms. Cobb’s deposition may be a tool in impeachment, it should not be the basis for summary judgment. The trial court does not weigh the evidence on a motion for summary judgment. That must be left to the jury.¹ The trial court must not decide which of Ms. Cobb’s deposition statements are credible and which are not. A genuine question for the jury exists as to whether Ms. Cobb’s view was obstructed by Sonic’s sign.

Sonic did not argue the “condition versus cause” dichotomy in its motion for summary judgment or on appeal, and we do not deal with it herein. In fact Sonic’s reply to Plaintiff’s response stated “the instant case does not present the condition versus proximate cause issue”.

The questions of whether Sonic created a dangerous situation by placing the sign so close to the highway and whether such action was the proximate cause of decedent’s death are for the jury.² In addition whether Sonic could have reasonably foreseen or anticipated injurious consequences from a hazardous placement of its sign is also a jury question.³

The trial court did not address the threshold issue of a landowner’s duty to travelers on a public highway. Its ruling was based solely on lack of causation. It is axiomatic Sonic owes a duty of care toward Ms. Cobb as its customer and invitee.⁴ But under Oklahoma law if Sonic’s duty of care does not extend, through Ms. Cobb to lawful travelers on the public highway, then this court may affirm, even though the trial court did not rule on that issue. A trial court will be affirmed if its judgment reaches a legally correct result.⁵ For this reason this court requested and received briefs by the parties addressing the issue of whether a landowner whose property abuts a highway owes a duty of care to the traveling public.

Oklahoma has long recognized an owner has the right to construct anything he chooses on his land, even in close proximity to a public roadway. But that right must be exercised with due regard to coexisting rights of its invitees. Our historic and fundamental right to use our property in any legal manner we so choose collides head on with our classic duty to refrain from creating a hazard with the potential to harm a member of the public. Does not Sonic owe some special duty to Ms. Cobb, inherent in its description as a “drive in,” to provide a safe entrance and exit or at least not to create a hazardous one? Under these circumstances we hold that it does.

We now must decide whether this duty extends to travelers on the highway. The right of Sonic to erect a sign is undeniable, but Sonic has a duty to exercise that right with due regard to the right of the public to use the roadway. A property owner thus owes a duty to maintain his property in such a manner that when it is put to its normal business use, it does not create an unreasonable hazard to travelers upon the abutting roadway.⁶ This has long been the law in Oklahoma as well as in other jurisdictions⁷ when that duty is applied to the use of property that permits obstructions or hazards actually to intrude on the roadway. However the test for liability should not be some mechanistic rationale based on actual physical contact with the premises hazard. If a landowner uses his property without regard to the traveling public, it is immaterial whether the injury is caused by physical contact or by another means such as here. Salomone v. Boulanger, 32 Conn.Sup. 115, 342 A.2d 61 (1975) is persuasive. It holds, “an occupier of land abutting a highway is under a duty not to do anything on that land that will increase the hazards normally encountered by travelers on the highway, even though there is not tangible invasion of the highway area as a result of the activity carried on by the abutting occupier”.

One must use his own rights so as not to infringe upon rights of another.⁸ How far this obligation extends depends on the foreseeability that a particular plaintiff might be injured by a defendant’s conduct. Forseeability is not only involved in a determination of proximate cause, it is one of the yardsticks by which duty is measured. Even under the historic Palsgraf⁹ limitation of liability, decedent was a foreseeable plaintiff to whom Sonic owed a duty to refrain from acts which would threaten his safety. If Sonic owes a duty to Ms. Cobb to refrain from creating a hazardous exit, then that duty extends to a motorist placed in jeopardy by any breach of that duty. It is foreseeable that any injury to Ms. Cobb would also cause an injury to the traveler upon the highway with whom she collides. It would be patently unjust to require an innocent plaintiff in that situation to bear the burden of her loss because of a technicality relieving a defendant of liability for proven negligence.¹⁰ If Sonic is negligent as to Ms. Cobb, it is negligent as to Decedent.

Sonic cites Williams v. City of Bristow, 350 P.2d 484 (Okla.1960) wherein the Supreme Court held the facts stated in an injured pedestrian’s petition did not show a municipality failed to use ordinary care in erecting a Christmas tree that obscured a motorist’s vision causing him to strike the pedestrian. This decision did not discuss the duties of landowners to the traveling public but rather concerned the liability of the municipality acting in a governmental capacity. It was premised on causation and is inapposite. The decisions in Booth v. Warehouse Market, 286 P.2d 721 (Okla.1955) and Safeway Stores v. Musfelt, 349 P.2d 756 (Okla.1960) also dealt with causation, not duty. Other Oklahoma decisions are more analogous to this case. In Apache Gas Co. v. Thompson, 177 Okla. 594, 61 P.2d 567 (Okla.1936) a plaintiff fell in an excavation dug by the gas company abutting the sidewalk, but not on it. The Supreme Court held the fact the excavation did not extend into the sidewalk did not necessarily relieve the gas company of liability. Also parallel is the decision in Brodsky v. Atchison, Topeka & Santa Fe Railway Company, 368 P.2d 852 (Okla.1962) permitting liability of a railroad to a motorist who stopped suddenly when a switch engine emerged suddenly from behind an earthen embankment on railroad property resulting in his car being struck from behind.¹¹

We limit our holding today to acts of “misfeasance.” We do not tamper with the traditional rule that a landowner is under no affirmative duty to remedy view obstructions of purely natural origin upon his land.¹² We leave that distinction to another day.¹³

Accordingly, we hold the public’s right of passage imposes an obligation upon the owners and occupiers of abutting commercial property to use reasonable care to refrain from creating a view obstruction which might cause forseeable harm to the users of the highway.¹⁴ Under the facts and circumstances of this case, any liability of Sonic to Plaintiff is derivative from its potential liability to Ms. Cobb.¹⁵ It is not within our realm to impose a universal duty of care upon an landowner to all the world, limited only by the foreseeability of injury. But there is no reason in modern day life to insulate a landowner, under the circumstances of this case, from entirely forseea-ble consequences.¹⁶

The Sonic sign was either the proximate cause of the injuries or it was not. A jury must decide.

The trial court’s order sustaining defendant’s motion for summary judgment is REVERSED and the case REMANDED for further proceedings not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

REYNOLDS, J., concurs. HUNTER, J., dissents and files opinion in dissent.

1 . Stuckey v. Young Exploration Co., 586 P.2d 726 (Okla.1978).

2 . Henry v. Hallett Construction Co., 488 P.2d 1286 (Okla.1971).

3 . Atherton v. Devine, 602 P.2d 634 (Okla.1979); Brodsky v. Atchison, Topeka & Santa Fe Railway Co., 368 P.2d 852 (Okla.1962). See also Minor v. Zidell Trust, 618 P.2d 392 (Okla.1980).

4 . Pruitt v. Timme, 349 P.2d 4 (Okla.1960) recognizes a duty to invitees to provide a reasonably safe means of ingress and egress. See Also O’Reilly Motor Company v. Rich, 3 Ariz.App. 21, 411 P.2d 194 (1966).

5 . Atlantic Richfield Co. v. State, 659 P.2d 930 (Okla.1983).

6 . Sinclair Texas Pipeline Co. v. Ross, 175 Okla. 435, 54 P.2d 204 (1936); Haas v. Firestone Tire and Rubber Company, 563 P.2d 620 (Okla.1976).

7 .See Bolton v. Smythe, 432 So.2d 129 (Fla.App.1983) holding a plaintiff stated a cause of action for negligence when he alleged a sprinkler on defendant's property sprayed water on a motorcyclist’s windshield causing him to have an accident; Brown v. Nebraska Public Power District, 209 Neb. 61, 306 N.W.2d 167 (1981) holding it was error to grant summary judgment in favor of a defendant whose smoke from burning leaves caused an accident; Wolfe v. Des Moines Elevator Co., 126 Iowa 659, 98 N.W. 301 (1904) holding it was a question for the jury whether defendant was negligent in the manner of operating a gasoline engine with a noisy exhaust in close proximity to a roadway resulting in injury through frightening a team of horses; Welch v. Amalgamated Sugar Company, 154 F.Supp. 3 (S.D.Idaho 1957) denying a defendant’s motion for summary judgment in an action for personal injuries sustained by plaintiff when the automobile which he was driving upon striking mud deposited on highway in front of defendant’s premises went out of control and collided with an approaching truck.

8 . Young v. Darter, 363 P.2d 829 (Okla.1961).

9 . Palsgraf v. Long Island Railway Co., 248 N.Y. 339, 162 N.E. 99 (1928) states the issue of duty in terms of foreseeability.

10 . See William L. Prosser, Law of Torts (1971) Chs. 8, 9, 10; Restatement of Torts 2nd §§ 364, 368.

11 . Also see Concho Construction Co. v. Oklahoma Natural Gas Co., 201 F.2d 673 (10th Cir. 1953) and cases cited in note 6 supra.

12 . See Wisher v. Fowler, 7 Cal.App.3d 225, 86 Cal.Rptr 582 (1970) holding a complaint alleging defendants negligently created or allowed a hedge to be maintained which blocked the view from the driveway of a commercial premises impaired the vision of motorists on the highway and persons exiting the premises, stated a cause of action; Deschamps v. Hertz Corp., 429 So.2d 75 (Fla.App.1983) concerning a complaint against motel owners alleging unnatural shrubbery obstructing guest’s view as he attempted to exit caused the guest to collide with another motorist. See Also Bohm v. Racette, 118 Kan. 670, 236 P. 811, 42 ALR 571 (1925); Coburn v. City of Tucson, 143 Ariz. 50, 691 P.2d 1078 (1984).

13 . See Wolfe v. Des Moines Elevator Co., 126 Iowa 659, 98 N.W. 301 (1904).

14 . See Harvey v. Hansen, 299 Pa.Super. 474, 445 A.2d 1228 (1982).

15 . Derivative liability is imposed to redress a wrong to one person which is proximately caused by a wrong done to another. Garfield v. U.S., 297 F.Supp. 891 (D.C.Wis.1969).

16 . Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980).