Byford v. Town of Asher

1994 OK 46, 874 P.2d 45, 65 O.B.A.J. 1634, 1994 Okla. LEXIS 61, 1994 WL 190062

• Court: Supreme Court of Oklahoma
• Decided: May 10, 1994
• Docket: 75849
• Status: Published

Opinions

SUMMERS, Justice:

On a Christmas night Plaintiff Harve By-ford fell and broke his ankle in a deeply rutted, poorly maintained alley behind his home in Asher. He sued the Town for his damages, alleging compliance with the Governmental Tort Claims Act, 51 O.S. 1991 § 151 et. seq. The Town did not contest Plaintiff’s allegations of compliance with that Act. The case went to trial, and at'the conclusion of Plaintiff’s evidence the trial court sustained the Town’s demurrer, ruling that as a matter of law Plaintiff had assumed the risk of his injury. The Court of Appeals affirmed. We reverse and send the case back for resolution by a jury.

Plaintiff’s house is separated from his father’s by the alley in question. Plaintiff was disabled by a prior injury which had required many surgeries, and which left his right leg several inches shorter than the left. He walked with a cane and wore a leg brace. That night he needed to use his father’s telephone, and crossed the alley for that purpose. Finding his father’s home dark he returned toward his own. He knew generally of the state of disrepair of the alley, and proceeded cautiously, but stepped into a rut or hole he asserts was more than a foot deep, breaking the ankle on his bad leg. The bones would not mend, and a few months later the leg was amputated below the knee.

Plaintiff testified that he had on at least two occasions spoken with town officials and workmen about repairing the alley. A town councilman confirmed receiving Plaintiffs complaints and reported them, but said it had not been repaired. A town maintenance worker testified that the condition of the alley had worsened over the last few years since the Town’s installation of a sewer pipe in the alley. The evidence showed that the Town had occasionally tended to the alley and mowed it, but had never done any extensive work to repair the ruts and gullies. Two witnesses testified they would not attempt to drive their vehicles through the alley. By-ford stated that the only light for the alley was one he installed, and for which he paid the electricity bill

After the presentation of plaintiffs evidence, the Town demurred to the evidence. The trial court sustained the demurrer, stating that even if it was the Town’s responsibility to maintain the alley, the conditions were open and obvious, and Byford had assumed the risks of walking in the alley at night. The trial court thus determined that reasonable men could not differ in its conclusion that Plaintiff had fully assumed the risks of crossing the alley. The Court of Appeals agreed and affirmed. We view it differently and reverse.

In order for a trial court to correctly sustain a demurrer to the evidence all evidence and reasonable inferences therefrom which favor the party opposing the motion ¿the plaintiff) must be taken as true. Blood v. R & R Engineering, Inc., 769 P.2d 144, 145 (Okla.1989); Messier v. Simmons Gun Specialties, 687 P.2d 121, 130 (Okla.1984). Any conflicting evidence which is favorable to the movant (the defendant) is disregarded. Id. If there is any evidence which tends to show a right to recover, the demurrer is overruled and the case allowed to proceed. Id., citing Austin v. Wilkerson, 519 P.2d 899 (Okla.1974); Jack Healey Linen Serv. v. Travis, 434 P.2d 924, 926 (Okla.1967). With these standards in mind we must now review the trial court’s decision.

OKLAHOMA CONSTITUTION ART. 23, § 6 AND ITS EXCEPTIONS

The Oklahoma Constitution provides in Article 23, Section 6, that “[t]he defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” We have honored the plain meaning of these words, and have repeatedly required the issue of assumption of risk to be submitted to the jury. Foster v. Harding, 426 P.2d 355 (Okla.1967); C.R. Anthony Co. v. Williams, 185 Okla. 564, 94 P.2d 836 (1939); Joy v. Pope, 175 Okla. 540, 53 P.2d 683 (1936); Cosden Pipe Line Co. v. Berry, 87 Okla. 237, 210 P. 141 (1922); Dickinson v. Cole, 74 Okla. 79, 177 P. 570 (1919).

We did recognize two exceptions to this constitutional rule in Flanders v. Crane Co., 693 P.2d 602 (Okla.1984), and again acknowledged them in Anderson v. Northwestern Elec. Co-op., 760 P.2d 188 (Okla.1988). First, the defense of assumption of risk need not be submitted to the jury if the plaintiff fails to present evidence showing primary negligence on the part of the defendant. Flanders, 693 P.2d at 606; Anderson, 760 P.2d at 191. Second, the defense need not be submitted to the jury where there are no disputed material facts and reasonable people exercising fair and impartial judgment could not reasonably reach differing conclusions. Flanders, 693 P.2d at 606; Anderson, 760 P.2d at 191.

A. THE “LACK OF PRIMARY NEGLIGENCE” EXCEPTION

The Town first urges that Byford failed to present evidence which tended to show primary negligence by the Town.¹ Although called an “exception” to the eonstitu-tional provision, in reality it is a fundamental premise underlying all suits in negligence— without the primary negligence there can be no liability. The Town urges that it had no duty to maintain the alley, as it was not used by the public. However, the testimony showed that the Town had placed various power and utility lines and pipes in the alley. At times the Town had performed slight maintenance on the alley. The alley, while used primarily by Byford and his family, was accessible to the public and to the various town workers who installed the sewer pipe and performed maintenance.

The Town relies on Town of Quapaw v. Holden, 96 Okla. 281, 222 P. 680 (1924) as authority for the proposition that maintenance is not required if the alley is not used by the public. In Quapaw, an alley was dedicated and shown on the town plat, but had never been used by the town. A woman was injured in the platted alley and sued the town. The Court held that there was no duty on the part of the town to maintain the alley since it had never been used by the town or been opened to the public.

Quapaw is not controlling as to the present case, because here there was testimony that the dedicated alley was open to the public, although rarely used by it. The alley had also been used by the Town for the purpose of locating sewer and other utility lines, and had been subject to some maintenance by the Town. Furthermore, we have held in Bannister v. Farmers Alliance Mut. Ins. Co., 630 P.2d 1279, 1281 (Okla.1981) that a city has a primary non-delegable duty to maintain its streets in a reasonably safe condition for the public. The test to determine whether the city was negligent is “whether or not such municipality, in the exercise of reasonable care and prudence, could have or should have, anticipated danger and damages to the traveling public using the way.” Rider v. City of Norman, 476 P.2d 312, 313 (Okla.1970). The same standard of reasonable care on behalf of the municipality must extend also to alley ways.

The Town also urges that the conditions causing Plaintiffs injury were open and obvious. It relies on cases affirming judgments for defendant cities where plaintiffs fell on sidewalks. Evans v. City of Eufaula, 527 P.2d 329 (Okla.1974); Rider v. City of Norman, supra In each of those cases, however, the Court pointed out that the plaintiffs view was clear, unobstructed, and in broad daylight. In Evans the crack in the sidewalk 1 to 1½ inches deep was held “trivial.” Here we are unable to conclude from the record that the plaintiffs light bulb was so positioned that the depth of the ruts were open and obvious to him. Further, the ruts were deep enough that two witnesses testified they would not attempt to put their vehicles through the alley.

“The test of a municipality’s negligence in a ease such as here is whether or not such municipality, in the exercise of reasonable care and prudence, could have or should have, anticipated danger and damages to the traveling public using the way.” Rider, 476 P.2d at 313. We find that, under the standard of review for demurrers to the evidence, construing reasonable inferences in favor of the plaintiff, Byford has presented evidence sufficient to show primary negligence on the part of the Town.

B. THE “REASONABLE MINDS CAN NOT DIFFER” EXCEPTION

It is the second exception which was relied on by the trial court. The court, in ruling in favor of the Town of Asher, stated that reasonable minds could not differ as to Byford’s assumption of the risk. The defense of assumption of risk may arise in one of three situations. Thomas v. Holliday, 764 P.2d 165, 168-69 (Okla.1988). The first is where a plaintiff expressly agrees that the defendant will not be held accountable for plaintiffs well being or lack thereof. The second is where the two parties stand in some sort of voluntary relationship by which the plaintiff assumes such a risk so as to destroy any duty which defendant might owe the plaintiff. The third involves voluntarily exposing oneself to a known danger, even though not negligent in so doing. In this situation he is deemed to have assumed the risk of his injury, but the defense here requires “a subjective standard in evaluating a plaintiff’s knowledge, comprehension and ap-predation of the risk.” Id. at 169.² Unlike contributory negligence, which since 1979 in Oklahoma must be compared to the primary negligence of the defendant, with the plaintiffs recovery reduced accordingly, Bode v. Clark Equipment Co., 719 P.2d 824 (Okla.1986); Laubach v. Morgan, 688 P.2d 1071 (Okla.1978); 23 O.S. 1991 § 13, the defense of assumption of risk may exist in the absence of negligence on the part of the plaintiff, and the defense still constitutes an absolute bar to recovery.

Generally, landowner .liability falls within this second category involving a voluntary relationship. In Thomas, we explained the instances in which no duty is owed to the plaintiff because of the relationship between the plaintiff and defendant:

Risk assumption is used in this sense to describe the occupier’s lack of liability for open and obvious hazards on the land. An invitee ‘assumes all normal and ordinary risks attendant upon the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to obviate known and obvious dangers.’

Id. at 168 n. 10, quoting City of Tulsa v. Harman, 148 Okla. 117, 299 P. 462, 468 (1931). The defense of assumption of risk is applicable to a “situation where two or more persons are associated together in, or enter as a matter of law into, some form of voluntary relationship whether by contract or otherwise (e.g. physician — patient, attorney— client, landowner/occupier — entrant, ballpark owner/partieipant — spectator, etc).” Thomas, 764 P.2d at 170 n. 16. (Emphasis added).³

It is this category of landowner — entrant “risk assumption” which the defendant Town urges bars Byford’s recovery. The Town maintains that it, as owner of the alley, has no liability for the dangers in the alley because they were open and obvious. The Town argues that Byford, as an entrant on to the premises, assumed the risks of the obvious and open dangers presented by the conditions of the land.

We agree that Byford, as an entrant on to the Town’s premises, assumed all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no legal duty to warn an invitee of a danger which was obvious and should have been observed in the exercise of ordinary care. Beatty v. Dixon, 408 P.2d 339, 343 (Okla.1965) quoting City of Tulsa v. Harman, 148 Okla. 117, 299 P. 462 (1931). However, it is ■ the Town’s responsibility to maintain the alley in a reasonably safe condition. Bannister, 630 P.2d at 1281.

In Anderson v. Northwestern Elec. Co-op., supra, we held that the trial court’s grant of summary judgment based on the assumption of risk defense was improper because reasonable minds could differ. The plaintiff brought suit against an electric co-operative and the manufacturer of an amp reclosure unit after he was severely shocked and burned while attempting to seal off a propane tank that was in contact with an overhead line. The plaintiff testified that he did not believe he would be shocked, that he thought the tank was no longer “hot”. We held that “[tjhese beliefs, coupled with expert testimony indicating that his assumptions were not totally unreasonable, presented sufficient facts to create some doubt as to how reasonable people might determine the issue of assumption of the risk.” Anderson, 760 P.2d at 192.

Our case is similar factually to Jack Healey Linen, supra. There an employee slipped and fell in a puddle of water inside the laundry plant. She was familiar with the plant and knew that the area in which she fell usually had a wet or damp floor, and at times had standing water. On the day she fell the water was deeper than usual. She stepped in the puddle and slipped. We ruled that trial court properly refused to grant a directed verdict because, considering those inferences favorable to the plaintiff, there was conflict as to whether “the peril was obvious and apparent”. Id. at 928.

Byford testified that he knew of the general conditions of the alley owned by the Town. He testified that on Christmas night the alley was lit by his light, that he was wearing a brace on his right leg, was walking with a cane, and was walking slowly because of the treacherous conditions and his bad leg. A reasonable inference from the testimony is that Byford believed he was able to minimize any risk in crossing the alley not only by proceeding slowly but by also wearing a brace, using a cane and lighting the alley. “[F]amiliarity with existing physical conditions which are responsible for a party’s injury or mere knowledge of the danger without full appreciation of the risk will not bar recovery.” Anderson, 760 P.2d at 192. We do not view the evidence in this case to be so one-sided that the constitutional provision may be disregarded.

CONCLUSION

Byford presented evidence which, when taking all inferences in his favor as required by the standard of review for demurrers, are sufficient to present a claim for primary negligence. His evidence was also sufficient to create some doubt as to how reasonable people would decide the issue of whether he fully assumed the risks associated-with crossing the alley. The exceptions to Article 23, Section 6’s constitutional assurance of a jury’s determination of the defense of assumption of the risk must be narrowly read, lest they swallow the rule. We find that the facts of this case do not place it within either of those two exceptions to Article 23, Section 6. The mandatory language of that Section requires that in this case the issue of assumption of risk be presented to a jury.

The judgment of the district court is reversed. The Court of Appeals’ opinion is vacated and the case remanded for further proceedings consistent with this opinion.

OPALA, ALMA WILSON, KAUGER and WATT, JJ., concur. HODGES, C.J., LAVENDER, V.C.J., and SIMMS and HARGRAVE, JJ., dissent.

1 . The trial court did not rely on this theory but we address it because this Court may affirm if the trial court relied on faulty rationale in reaching a correct result. Matter of Estate of Bartlett, 680 P.2d 369, 374 (Okla.1984); Russell v. Flanagan, 544 P.2d 510, 511 (Okla.1975).

2 . See Thomas v. Holliday, supra, for a thorough exposition of assumption of risk and its comparison to contributory negligence.

3 . We have held the assumption of the risk doctrine applicable in a number of premises liability cases. See, e.g. Briscoe v. Oklahoma Natural Gas Co., 509 P.2d 126 (Okla.1973) (assumption of the risk defense was available to defendant who urges that dangers were apparent and plaintiff had knowledge of the dangers); Davis v. Whitsett, 435 P.2d 592 (Okla.1967) (the defense of assumption of the risk was available only if the defendant landowner could show that the plaintiff has knowledge of the risks involved).