WOOD v. MERCEDES-BENZ OF OKLAHOMA CITY
2014 OK 68
Case Number: 108555
Decided: 07/16/2014
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2014 OK 68, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL
RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
ERICA WOOD, Plaintiff-Appellant,
v.
MERCEDES-BENZ OF
OKLAHOMA CITY, Defendant-Appellee.
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I, ON
APPEAL
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY,
STATE OF
OKLAHOMA, HONORABLE DANIEL L. OWENS
¶0 Plaintiff brought suit against Mercedes-Benz of Oklahoma City for injuries
she suffered after she slipped and fell on ice that had accumulated on
sidewalks, pavement, and grass surrounding the Defendant's automobile
dealership. The icy conditions were caused by Defendant's sprinkler system which
activated during freezing temperatures. The trial court granted summary judgment
in favor of the Defendant. The Court of Civil Appeals affirmed. Plaintiff
petitioned this Court for review of the decision. We granted certiorari and
conclude summary judgment was improper.
COURT OF CIVIL APPEALS' OPINION VACATED;
DISTRICT
COURT'S JUDGMENT REVERSED; MATTER
REMANDED FOR FURTHER
PROCEEDINGS
Thomas K. Ventura, Law Offices of Daniel M. Davis, Oklahoma City, OK,
for Plaintiff-Appellant
Rodney Ramsey, Michael Gray, Ramsey and Gray,
P.C., Oklahoma City, OK, for Defendant-Appellee
Facts & Procedural History
¶1 Erica Wood was employed by Ned's Catering, Inc. On March 8,
2008, Wood reported to Mercedes-Benz of Oklahoma City to assist with a catered
event at the car dealer's facility. Upon arriving at the dealership, Wood drove
around the parking lot searching for a place to park her vehicle. Wood noticed
ice on the grass, pavement, and sidewalks surrounding the Mercedes-Benz
facility. Wood testified in her deposition that "[t]he whole building was
covered in ice, all the way around, all the sidewalks."1 Although the nighttime temperatures
had been freezing, precipitation was not a factor in creating the icy
conditions, and Wood did not encounter any ice on the roads while driving to the
dealership. A sprinkler system, which had been serviced the day before,
activated overnight, causing ice to cover surfaces throughout the entire
property of the dealership.
¶2 After parking her car, Wood walked to the east entrance of the dealership.
To reach the door, Wood had to cross grass and a sidewalk that were coated with
ice. Wood was wearing common "food industry" non-slip shoes and claimed she was
"very careful as she walked in." After entering the building, Wood was unable to
locate her supervisor at Ned's Catering. She proceeded back outside to retrieve
a cell phone from her vehicle to contact the supervisor.2 Wood testified that there was
"an incline on the east side, on the grass, [like] a little hill" outside the
entrance.3
Wood "knew . . . it was important to be careful" because she had observed ice
covering the entire area around the entrance and "honestly believe[d] [she] was
as careful as [she] could be" traversing the ice.4 Nevertheless, Wood alleged she slipped
on the ice, fell flat on her back, and sustained injuries. Subsequently, Wood
discussed the accident with an employee of the dealership who acknowledged,
"[y]eah, I should have [put salt down] when I got here."5
¶3 Wood sued Mercedes-Benz of Oklahoma City, alleging negligence based on the
company's failure to maintain its premises in a reasonably safe condition.
Mercedes-Benz denied liability and later filed a motion for summary judgment.
The District Court granted summary judgment in favor of the dealership without
specifying a basis for its decision. The Court of Civil Appeals affirmed,
holding Mercedes-Benz owed no legal duty because "Wood readily acknowledges the
ice presented a known danger." Wood sought review in this Court, and we granted
certiorari to address the propriety of summary judgment.
Standard of Review
¶4 This appeal stems from a grant of summary judgment, which calls for de
novo review. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Under the de
novo standard, this Court is afforded "plenary, independent, and non-deferential
authority to examine the issues presented." Harmon v. Cradduck, 2012 OK 80, ¶ 10, 286 P.3d 643, 648. When examining
an order sustaining summary judgment, this Court must determine whether the
record reveals disputed material facts. Sheffer v. Carolina Forge Co.,
L.L.C., 2013 OK 48, ¶ 11, 306 P.3d 544, 548. Even when basic
facts are undisputed, motions for summary judgment should be denied, if from the
evidence, reasonable persons might reach different inferences or conclusions.
Id. All facts and inferences must be viewed in a light most favorable to
the party opposing summary adjudication. Id.
Analysis
¶5 Traditionally, in premises liability cases we have applied the common
law's tripartite classification system for assessing landowner liability for
injuries sustained on the property. The initial determination to be resolved in
these cases has been the "entrant's status-based classification under
traditional common law terms--trespasser, licensee or invitee." Scott v.
Archon Group, L.P., 2008 OK
45, ¶ 18, 191 P.3d 1207,
1211. We held that a property owner, as an invitor, owes the highest duty of
care to an invitee.6 Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 10, 951 P.2d 1079, 1084. Our prior
opinions obligate a landowner to "exercise reasonable care to keep the premises
in a reasonably safe condition and to warn [an invitee] of conditions which
[are] in the nature of hidden dangers, traps, snares or pitfalls." Martin v.
Aramark Services, Inc., 2004 OK
38, ¶ 5, 92 P.3d 96, 97.
¶6 Our opinions have generally eliminated a landowner's duty to protect a
third-party for "dangers so 'open and obvious' as to reasonably expect others to
detect them for themselves." Williams v. Tulsa Motels, 1998 OK 42, ¶ 6, 958 P.2d 1282, 1284. These cases
have reasoned that an open and obvious hazard relates directly to the
foreseeability of a danger, and therefore, affects a landowner's duty.
See, e.g., Kastning v. Melvin Simon & Associates, Inc.,
1994 OK 68, ¶ 10, 876, P.2d 239,
240.
¶7 However the open and obvious doctrine is not absolute under our case law.
For claims predicated on negligence, the threshold question is the existence of
a duty. Miller v. David Grace, Inc., 2009 OK 49, ¶ 11, 212 P.3d 1223, 1227. Whether a duty
existed is a question of law. Id. The relevant inquiry for assessing the
existence of a duty in negligence cases was described as follows:
One of the most important considerations in establishing a duty is
foreseeability. Foreseeability is critical as it determines (1) to whom a
duty is owed and (2) the extent of the duty. A defendant owes a duty of care
only to foreseeable plaintiffs. As for the extent of the duty, it too is
determined in great part by the foreseeability of the injury. Whenever the
circumstances attending a situation are such that an ordinarily prudent
person could reasonably apprehend that, as the natural and probable
consequences of his act, another person will be in danger of receiving an
injury, a duty to exercise ordinary care to prevent such injury
arises.
Weldon v. Dunn, 1998 OK
80, ¶ 11, 962 P.2d 1273, 1276
(citations omitted). Applying the foreseeability test in a premises liability
case, we explained that a landowner "does have a duty to exercise ordinary care
to prevent injury to another whenever the circumstances are such that the owner,
as an ordinary prudent person, could reasonably foresee that another will be in
danger of injury as a probable consequence of the owner's
actions." Brown v. Alliance Real Estate Group, 1999 OK 7, ¶ 6, 976 P.2d 1043, 1045 (citation
omitted and emphasis added).
¶8 More specifically, we have rejected the open and obvious doctrine for a
hazardous accumulation of ice, caused or enhanced by a landowner, and determined
the creation of such a dangerous condition would impose a legal duty on the
owner to exercise care for the protection of third parties. Krokowski v.
Henderson Nat. Corp., 1996 OK
57, ¶¶ 7-8, 917 P.2d 8, 11.7 In
Krokowski, an apartment tenant slipped and fell on an icy sidewalk while
walking from the parking lot to his apartment. Id. ¶ 2, 917 P.2d at 10.
The tenant claimed the landlord had installed a drain pipe in such a way that,
when it rained, water would unnaturally pool around the pipe. Id. ¶ 1,
917 P.2d at 11. Additionally, the tenant presented evidence that the pooling
caused a hazard greater than what was normally present when natural freezing
conditions occurred. Id. ¶ 7, 917 P.2d at 11. We found that evidence
presented to the trial court could show that the condition "causing the tenant's
injury may have resulted from an increased natural hazard brought about by the
landlord's placement of the drain pipe." Id. "Because reasonable people
could differ on whether the [tenant's] fall was caused by a natural accumulation
of ice or by an increase in the natural hazard caused by the placement of the
drain pipe," summary judgment was improper. Id. ¶ 8, 917 P.2d at 11.
¶9 We agree with Wood that under the peculiar facts of this case,
Mercedes-Benz owed a duty to take remedial measures to protect her from the icy
conditions surrounding the entry to its facility. The accumulation of ice
throughout Mercedes-Benz' facility was caused by the activation of the
dealership's sprinkler system during freezing temperatures; not by a natural
condition. The dealership had notice of the icy conditions surrounding the
entire building and knew that Ned's Catering was sending its employees to the
facility to cater the business' scheduled event. As such, it was foreseeable
that Ned's Catering employees would encounter the icy hazards created by the
sprinkler system and would likely proceed through the dangerous condition in
furtherance of their employment.8
Conclusion
¶10 We find that Mercedes-Benz had a duty to take precautionary measures for
the employees of Ned's Catering. Further, we find there is a question of fact
regarding whether Mercedes-Benz breached its duty toward Wood, requiring
submission of this matter to a jury. Judgment of the trial court is reversed,
the opinion of the Court of Civil Appeals is vacated, and the cause is remanded
for further proceedings consistent with this opinion.
COURT OF CIVIL APPEALS' OPINION VACATED;
DISTRICT
COURT'S JUDGMENT REVERSED;
MATTER REMANDED FOR FURTHER
PROCEEDINGS
¶11 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, GURICH, JJ., concur.
¶12 KAUGER, WINCHESTER, TAYLOR (by separate writing), COMBS (by separate
writing), JJ., dissent.
¶1 I respectfully dissent to the Court's decision rendered today. The Court
ignores our long-standing laws regarding the open-and-obvious doctrine and the
duty in a premises-liability action in order to obtain the result it
reaches.
¶2 The facts are undisputed. On March 8, 2008, the plaintiff was an employee
of a catering company hired by the defendant to assist with an event at
defendant's business. The plaintiff drove to the defendant's business, arriving
about 8:45 a.m. When she arrived, the plaintiff drove around the building
looking for a parking place. As she drove around, the plaintiff noticed ice on
the street, grass, and sidewalks around the building, including those on the
east side. The ice was localized to the building, and there was no ice on the
public streets that morning. The plaintiff parked her car on the east side of
the building and walked into the building, having traversed over grass and a
sidewalk that were icy. Because of the ice, the plaintiff was cautious and
careful. The plaintiff could not locate her supervisor in the building, and she
started back to her car to retrieve her cell phone. When the plaintiff left the
building, she was as "careful as she could be" because of the ice, but she
slipped and fell in spite of her caution. The plaintiff later learned that the
sprinkler had been on earlier that morning.
¶3 It is undisputed that the plaintiff drove up to the building and observed
the ice everywhere. She got out of her car and walked across the ice the first
time and somehow survived the journey without mishap. The plaintiff admitted
that after surviving one journey over the ice, she made the choice to go back
for more. She knew of the dangerous, icy conditions; and this time she fell
down. The second journey over the ice was her choice and at her peril and was
not required by the defendant, according to the facts presented in the record
before this Court. Nothing in the facts show the plaintiff was required to
return to her car for her cell phone rather than use the defendant's business
phone or some other phone to contact her boss. It is folly to suggest that the
only phone she could use was the phone on the other side of the open and obvious
ice. No one but the plaintiff is responsible for the consequences of her
decision. There is nothing about her status as an employee of the catering
company that exempts her from this Court's decades of adherence to the
open-and-obvious doctrine or changes her status as an invitee.
¶4 The Court's decision shows a lack of judicial restraint as well as
disrespect for this Court's long-standing jurisprudence and the rule of law.
Grounded in the common law, this Court has long recognized actionable negligence
has three elements: (1) a duty owed by the defendant to the plaintiff, (2) the
defendant's failure to perform the duty, and (3) an injury to the plaintiff
caused from the defendant's failure to perform the duty. Faurot v. Okla.
Wholesale Grocery Co., 1908 OK
85, ¶ 9, 95 P. 463, 465. "The
threshold question in any negligence action is whether the defendant has a duty
to the plaintiff." Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, ¶ 11, 256 P.3d 38, 43. The lack of any
one element, including a duty owed by the defendant, defeats a claim for
actionable negligence. Id. This rule remains as vital today as it was in
1908. Id.; Scott v. Archon Group, L.P., 2008 OK 45, ¶ 1, 191 P.3d 1207, 1208; Tucker v.
ADG, Inc., 2004 OK 71, ¶ 17,
102 P.3d 660, 667 ("In the first
instance, there is no need for any defense at all because where there is no duty
or negligence there can be no liability.")
¶5 As early as 1931, this Court recognized the common-law rule of premises
liability that an owner or occupant "is under no legal duty to reconstruct or
alter premises so as to obviate known and obvious dangers" and is not "liable
for injury to an invitee resulting from a danger which was obvious or should
have been observed in the exercise of ordinary care." City of Tulsa v.
Harman, 1931 OK 73, ¶ 37, 299 P. 462, 463. Until today, this
Court has consistently adhered to this premises-liability rule. Sholer,
2011 OK 24, ¶ 2, 256 P.3d at 40;
Archon Group, 2008 OK 45,
¶ 21, 191 P.3d at 1212; Tucker, 2004 OK 71, ¶ 13, 102 P.3d at
666; Kastning v. Melvin Simon & Assoc., Inc., 1994 OK 68, ¶¶ 6, 10, 876 P.2nd 239,
240; Turner v. Rector, 1975 OK
172, ¶ 10, 544 P.2d 507, 509
(citing Jackson v. Land, 1964
OK 102, 391 P.2d 904
(Syllabus by the Court)); Nicholson v. Tacker, 1973 OK 75, ¶ 18, 512 P.2d 156, 159 ("The presence of
an open and obvious danger is akin to the defendant nailing a 'Danger' sign on
the premises."); C.R. Anthony Co. v. Million, 1967 OK 231, ¶¶ 7-8, 435 P.2d 116, 118; Rogers v. Cato
Oil & Grease Co., 1964 OK
152, ¶¶ 21-22, 396 P.2d 1000,
1004-05; Jackson, 1964 OK
102, ¶ 0, 391 P.2d 904
(Syllabus by the Court, No. 3); City of Drumright v. Moore, 1946 OK 203, ¶¶ 9-14, 170 P.2d 230, 233.
¶6 This Court has refused to limit the open-and-obvious doctrine whenever it
has come under attack. Tucker, 2004 OK 71, ¶ 17, 102 P.3d at 667;
Buck v. Del City Apartment, Inc., 1967 OK 81, ¶ 23, 431 P.2d 360, 366; see
Lohrenz v. Lane, 1990 OK
18, ¶ 16, 787 P.2d 1274, 1276
("Appellant [a trespasser] argues that this is the modern view and that to
follow the common law would be to maintain an 'ancient and archaic citadel of
class privilege' which is out of step with current trends of Tort Law.");
Midland Valley R.R. v. Graney, 1919 OK 315, ¶ 3, 185 P. 1088, 1088 ("[W]here there is
no evidence reasonably tending to show that the defendant is guilty of
negligence, it is error for the trial court to submit the issue to the
jury.").
¶7 In Tucker, this Court declined to change the common-law rule
regarding open-and-obvious dangers and recognized that the rule is consistent
with article 23, section 6 of the Oklahoma Constitution. 2004 OK 71, ¶ 17, 102 P.3d at 667.
This Court found that the defenses of assumption of the risk and contributory
negligence need not be submitted to a jury where an invitee was injured from an
open-and-obvious danger "because where there is no duty or negligence there can
be no liability." Id. Tucker remains the law today regarding an
open-and-obvious danger. Scott, 2008 OK 45, ¶¶ 1, 21, 191 P.3d at
1208, 1212 (finding no duty to warn invitee of open-and-obvious danger); see
Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, 256 P.3d 38 (finding whether a
danger is open and obvious may be a question for a jury and reaffirming the rule
that there is no duty to warn of an open-and-obvious danger).
¶8 The Court's reliance on Krokowski v. Henderson National Corp., 1996 OK 57, 917 P.2d 8, is misplaced. We have
never, in Krokowski or any other case, "rejected the open and obvious
doctrine for a hazardous accumulation of ice, caused or enhanced by a
landowner." In Krokowski, the plaintiff asserted that the invitor
increased the risk of danger from a naturally occurring accumulation of ice and
that a drain pipe's placement increased the natural hazard. Nothing in
Krokowski indicates that the increased hazard was open and obvious or
that the plaintiff in the case recognized the risk of walking on the increased
hazard when he was injured. Krokowski did not address the invitor's
liability for an increased hazard which was open and obvious.
¶9 The Court relies on Weldon v. Dunn, 1998 OK 80, 962 P.2d 1273, for its new rule of
law that any foreseeable risk creates a duty of care. This new rule of law has
no support in Weldon; rather, the Court takes language out of context to
bolster its position. The particular language states: "Whenever the
circumstances attending a situation are such that an ordinarily prudent person
could reasonably apprehend that, as the natural and probable consequences of his
act, another person will be in danger of receiving an injury, a duty to exercise
ordinary care to prevent such injury arises." Id. ¶ 11, 962 P.2d at 1276
(citing Bradford Sec. Processing Serv. v. Plaza Bank & Trust, 1982 OK 96, ¶ 6, 653 P.2d 188, 190). An invitor would
not foresee that an invitee would be injured by open-and-obvious dangers "which
are so apparent or readily observable that one would reasonably expect them to
be discovered." Id. ¶ 12, 962 P.2d at 1276-77. In Weldon, this
Court found that the invitor owed no duty to the invitee even though the risk
was foreseeable because the danger was open and obvious.
¶10 Today's decision abandoning the open-and-obvious doctrine and changing
the duty in premises-liability actions has far-reaching implications. If, for
example, a pile of bananas falls in the middle of a grocery store floor, a
customer sees the banana pile and is aware of the risk of slipping on the
bananas, and the customer walks back and forth over the bananas until the
customer finally falls and is injured, the store may now liable under the
Court's new rule. I cannot abide a new rule of law that would allow an invitee
to recover when she ignores an open-and-obvious risk merely because the risk was
foreseeable. Surely the banana pile would pose a foreseeable risk but not create
a duty which gives rise to liability for an injury incurred from a slip and
fall. Under today's pronouncement, an invitor has a duty to warn against any
foreseeable danger, no matter how absurd the result.
¶11 I would point out that this is not a worker's compensation claim and that
the defendant is not the plaintiff's employer. I would urge my fellow members of
the Court to exercise restraint in this matter. As this Court stated in
Lohrenz, 1990 OK 18, ¶ 9,
787 P.2d 1274, 1277:
As judges, we are accountable for interpreting the law according to
precedent and sound public policy. We are not afforded the luxury of
indulging in sympathetic tendencies at another's
expense.
The duty of an invitor is based on the proper balance between an invitor's
rights and the rights of those coming upon the property. Id. The Court
has failed to articulate any valid reason for shifting the balance to favor an
invitee. As in Lohrenz, we should follow our precedents in the absence of
sound public policy for abandoning the current rule of law.
COMBS, J., with whom KAUGER, J., joins, dissenting:
¶1 The central issue of this cause is whether a property owner owes a duty of
care to protect third parties from ice that is open and obvious when the actions
of the landowner created or enhanced the hazard. The majority determines that
the open and obvious doctrine does not apply and a duty is owed in such
circumstances. Because this Court has long held that landowners have no duty to
guard against open and obvious hazards, including ice an entrant is aware of, I
must respectfully dissent from the majority's departure from this Court's
precedent and the settled principles of the common law of Oklahoma.
I.
The Open and Obvious Doctrine Concerns the Existence of a
Legal Duty on
the Part of the Defendant, and Where There is no Duty
There Can Be no
Liability.
¶2 Any actionable claim for negligence requires three fundamental elements:
1) the existence of a duty on the part of the defendant to protect the plaintiff
from injury; 2) a breach of that duty by the defendant; and 3) injury to the
plaintiff proximately resulting therefrom. Berman v. Lab. Corp. of
America, 2011 OK 106, ¶16,
268 P.3d 68; Smith v.
Hines, 2011 OK 51, ¶12, 261
P.3d 1139; Scott v. Archon Group, L.P., 2008 OK 45, ¶17, 191 P.3d 1207. The threshold
question in any negligence action is whether the defendant has a duty to the
plaintiff. Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, ¶11, 256 P.3d 38; Scott, 2008 OK 45, ¶17; Pickens v.
Tulsa Metro. Ministry, 1997 OK
152, ¶8, 951 P.2d 1079. The
reason for this threshold question is that there can be no negligence in the
absence of a defendant's duty to the plaintiff. Scott, 2008 OK 45, ¶17; Tucker v. ADG,
Inc., 2004 OK 71, ¶21, 102 P.3d 660; City of Tulsa v.
Harmon, 1931 OK 73, ¶37, 299 P. 462. The question of whether
a duty exists is properly a question of law for the court. Bray v. St. John
Health Sys., Inc., 2008 OK
51, ¶6, 187 P.3d 721;
Scott, 2008 OK 45,
¶17.
¶3 In the specific context of premises liability, the question of what duty
is owed is answered in part by the status of the entrant - a question that is
the direct result of the complicated interplay between the historical rights of
landowners and the evolution of the nascent common law of torts. As this Court
stated in Sutherland v. Saint Francis Hosp., Inc., 1979 OK 18, ¶5, 595 P.2d 780 (footnotes
omitted):
[l]and possessor's liability in negligence for harm occurring upon the
premises varies with the status of the entrant complaining of injury.
Definition of duty that marks out the limit of protection afforded an
entrant broadens or narrows with the beneficial interest of the possessor in
the presence of the other upon the land. This has been the common law
approach ever since landlord's sovereignty and immunity for acts done within
the boundaries of his land gradually gave away to present-day civil
accountability. When modern tort law finally incorporated possessor's
liability, the concept of negligence came to be applied within the
restrictive framework of relational, status-based duties. In short, the
common law has never seen fit to extend its principles of general negligence
(as they came to be fashioned in the last century) to govern harm occasioned
on the premises of others.
¶4 The result of the evolution described above is the existence of the three
classes of entrant discussed briefly by the majority: trespasser, licensee, and
invitee. Sholer, 2011 OK
24, ¶11, 256 P.3d 38;
Scott, 2008 OK 45, ¶18.
In Scott, this Court restated a concise explanation of the classes of
entrant and what duty each is owed by a landowner:
"To a trespasser, a landowner owes . . . only a duty to avoid injuring
him wilfully or wantonly. To a licensee, an owner owes a duty to exercise
reasonable care to disclose to him the existence of dangerous defects known
to the owner, but unlikely to be discovered by the licensee. This duty
extends to conditions and instrumentalities which are in the nature of
hidden dangers, traps, snares, and the like. To an invitee, an owner owes
the additional duty of exercising reasonable care to keep the premises in a
reasonably safe condition for the reception of the visitor. Even
vis-a-vis an invitee, to whom a landowner owes the
highest duty in this trichotomous classification system, the law does not
require that the landowner protect the invitee against dangers which are so
apparent and readily observable that one would reasonably expect them to be
discovered. In other words, a landowner owes to an invitee, as well as
to a licensee, a duty to protect him from conditions which are in the nature
of hidden dangers, traps, snares and the like. A hidden danger within this
rule of liability need not be totally or partially obscured from vision or
withdrawn from sight; the phrase is used to describe a condition presenting
a deceptively innocent appearance of safety 'which cloaks a reality of
danger.' Furthermore, failure to remove known but obvious hazards by
alteration or reconstruction of the premises is not a breach of the
landowner's duty even to an invitee."
Scott, 2008 OK
45, ¶19 (quoting Pickens, 1997 OK 152, ¶10) (emphasis
added).
¶5 Of the three classes of entrant, the invitee is entitled to the greatest
protection. Sholer, 2011 OK
24, ¶12; Scott, 2008 OK
45, ¶21. However, as the above discussion of the types of entrants
indicates, even invitees are not owed a duty by landowners to guard against open
and obvious hazards on the premises. Sholer, 2011 OK 24, ¶12; Scott, 2008 OK 45, ¶2. This rule is the
essence of what has become known as the open and obvious doctrine within the
common law, and which this Court has applied consistently since at least 1931.1 Importantly,
this Court has routinely applied this doctrine and found no duty even in
situations where the hazard was in some way created by the property owner.2 This Court
stated the rule very clearly in Nicholson v. Tacker, 1973 OK 75, ¶11, 512 P.2d 156 (emphasis added):
"[j]ust because the defendant has created a risk which harmed the plaintiff
that does not mean that, in the absence of some duty to the plaintiff, the
defendant will be held liable."
II.
The Majority's Reliance on Brown v. Alliance Real
Estate Group and
Krokowski v. Henderson Nat.
Corp. is Misplaced Because Wood Was Aware of
the Ice and
the Danger it Presented.
¶6 The majority's assertion that Defendant Mercedez-Benz of Oklahoma City
owed a duty to Plaintiff Erica Wood to take remedial measures to protect her
from the icy conditions surrounding its facility rests on two main points.
First, quoting Brown v. Alliance Real Estate Group, 1999 OK 7, ¶6, 976 P.2d 1043, the majority asserts
that a landowner does have a duty to exercise ordinary care to prevent injury to
another whenever the circumstances are such that the owner, as an ordinary
prudent person, could reasonably foresee that another will be in danger of
injury as a probable consequence of the owner's actions. Second, citing
Krokowski v. Henderson Nat. Corp., 1996 OK 57, ¶¶7-8, 917 P.2d 8, the majority asserts that
this Court has rejected the open and obvious doctrine for a hazardous
accumulation of ice caused or enhanced by the landowner, and determined that the
creation of such a dangerous condition would impose a duty on the owner to
exercise care for the protection of third parties.
¶7 Both Brown and Krokowski rely extensively on another
decision of this Court, Buck v. Del City Apartments, Inc., 1967 OK 81, 431 P.2d 360, and a firm
understanding of this Court's determination in Buck is essential for
understanding why the majority's reliance on Brown and Krokowski
is misplaced. In Buck, a plaintiff sued a motel owner after injuring
herself in a fall on ice, that had accumulated on the porch steps and that
she did not see. 1967 OK 81,
¶18. After discussing application of the open and obvious doctrine, this Court
determined that the plaintiff could not recover because:
It is clear from the evidence that the wife knew or should have known
of the general weather conditions. The dangers from them are
universally known and were equally as apparent to her as they were to the
motelkeepers. There is no evidence here that the usual hazard from the
icy condition was in any way increased by an act of the motelkeepers. Where
there is no act on the part of the owner or occupant of the premises
creating a greater hazard than that brought about by natural causes, dangers
created by the elements, such as the forming of ice and the falling of snow,
are universally known, and all persons on the property are expected
to assume the burden of protecting themselves from
them.
Buck, 1967 OK 81, ¶22.
This Court determined that the landowner in Buck did not owe a duty
because the injured person should have known of the general weather conditions
and the dangers from them, i.e. ice, were universally known and were as apparent
to her as they were to the motelkeepers. Buck, 1967 OK 81, ¶22. The Court's
determination was therefore in keeping with its application of the long standing
rule of the open and obvious doctrine, which it reiterated:
[t]he law does not require the owner or occupant of land to warrant that
the invitee shall suffer no injury upon the premises; his duty is discharged
when reasonable care is taken to prevent the invitee's exposure to dangers
which are more or less hidden, and not obvious.
Buck, 1967 OK 81,
¶21.
¶8 In Brown, 1999 OK 7,
this Court clarified the principles set out in Buck. Notably, this Court
clarified that Buck did not declare that under no circumstances may a
premises liability claim be maintained for an accident attributable to a natural
accumulation of snow and ice. Brown, 1999 OK 7, ¶4. In other words, the
Buck ruling does not mean that natural accumulations of snow and ice are
never open and obvious as a matter of law. However, "Buck reasoned
that perceptible hazards created by the elements, such as the accumulation of
ice and snow, are universally appreciated by all reasonable people using due
care and circumspection. Buck teaches that an accumulation of
ice or snow, visible upon due care and circumspection, does not constitute a
hidden danger such that the premises owner is under a duty to give warning."
Brown, 1999 OK 7, ¶4.
¶9 The majority quotes a single point from Brown concerning
foreseeability, but ignores the factual underpinnings of the case. Brown,
1999 OK 7, ¶6 reads in
full:
The summary judgment evidentiary material tends to show not only that
the pavement in front of the real estate office had a deceptively innocent
appearance, but also that the premises owner was on notice of the dangerous
patch of invisible ice because of another accident that occurred earlier the
same day. Consistent with Buck, a premises owner does have a duty
to exercise ordinary care to prevent injury to another whenever the
circumstances are such that the owner, as an ordinary prudent person, could
reasonably foresee that another will be in danger of injury as a probable
consequence of the owner's actions.
In other words, the owner had a duty to protect the plaintiff in Brown
from the black ice because 1) it was not an ordinarily perceptible hazard (nor
did the particular plaintiff see it) and 2) the owner knew it was there and
dangerous because it had already caused an accident. Brown, 1999 OK 7, ¶¶5-6. The owner in
Brown had specific knowledge of a non-obvious danger that might injure
someone on the property. Under those facts, the potential harm to others and the
likelihood that others would fail to perceive it was foreseeable. Central to the
entire determination in Brown, and its application of Buck, is the
fact that the black ice was not something a visitor could be expected to see or
appreciate the danger of.
¶10 The majority's reliance on Krokowski is also misplaced. In
Krokowski, this Court applied the core holding of Buck to a
plaintiff who claimed to have slipped on ice allegedly caused not by natural
weather conditions, but by the placement of a landlord's drain pipe. The Court
in Krokowski determined that an issue of fact existed as to whether the
plaintiff's injury was due to natural accumulation of ice, or by an increase in
the natural hazard caused by the placement of the drain pipe. Krokowski,
1996 OK 57, ¶8.
¶11 The majority reads Krokowski to hold that a landlord owes a duty
to guard against any harm caused by an unnatural icy hazard whether the injured
party was aware of the hazard or not. This is not the case. Krokowski
relies upon and quotes a specific passage from Buck:
". . . It is clear from the evidence that the wife knew or should have
known of the general weather conditions. The dangers from them are
universally known and were equally as apparent to her as they were to the
motelkeepers. There is no evidence here that the usual hazard from the
icy condition was in any way increased by an act of the motelkeepers.
Where there is no act on the part of the owner or occupant of the
premises creating a greater hazard than that brought about by natural
causes, dangers created by the elements, such as the forming of ice and the
falling of snow, are universally known, and all persons on the property are
expected to assume the burden of protecting themselves from them . .
."
Krokowski, 1996 OK 57,
¶6 (quoting Buck, 1967 OK
81, ¶22).
This entire passage indicates that a duty may exist in situations where a
property owner increases the hazard caused by natural weather conditions beyond
what a visitor could be assumed to be aware of, because while the natural
dangers of ice are known, extra ice caused by the landlord's actions may not be
something a visitor expects. Remember that the visitor in Buck slipped on
ice she did not see. The landlord owed no duty because she should have known of
the natural dangers of ice even if she was subjectively unaware of its
presence.
¶12 In this cause, there is no question whatsoever that Wood was aware of the
ice surrounding the dealership. As the majority states, she knew it was
important to be careful because she observed ice covering the entire entrance
area. This is not a situation analogous to Krowkowski or Brown
where the owner's actions created an enhanced danger beyond the normal danger of
ice, or where there was hidden black ice of which the property owner had prior
notice. Even though the ice was formed by sprinklers and not natural
precipitation, Wood recognized the ice for what it was and was aware of the
danger it presented. This is not a question of what Wood should have known. It
is a question of what she did know. By attempting to carve out an exception to
the open and obvious doctrine, the majority would erode the clear rule that a
property owner owes no duty as a matter of law to guard against dangers that are
open and obvious to visitors. This court summed up the rule clearly in
Buck, and nothing within this Court's holding in Krokowski or
Brown has altered it:
¶20 The owner or person in charge of the premises has no obligation to
warn an invitee, who knew or should have known the condition of a property,
against patent and obvious dangers. The invitee assumes all normal or
ordinary risks incident to the use of the premises, and the owner or
occupant is under no legal duty to reconstruct or alter the premises so as
to remove known and obvious hazards, nor is he liable to an invitee for an
injury resulting from a danger which was obvious and should have been
observed in the exercise of ordinary care.
¶21 The duty to keep premises in a reasonably safe condition
for the use of the invited public applies solely to defects or
conditions which may be characterized as in the nature of hidden dangers,
traps, snares, pitfalls, and the like - things which are not readily
observable. The law does not require the owner or occupant of land to
warrant that the invitee shall suffer no injury upon the premises; his duty
is discharged when reasonable care is taken to prevent the invitee's
exposure to dangers which are more or less hidden, and not obvious. In the
absence of a duty neglected or violated, there can be no actionable
negligence
Buck, 1967 OK 81,
¶¶20-22 (emphasis added).
¶13 Actionable negligence requires breach of a duty on the part of the
defendant. Berman, 2011 OK
106, ¶16; Smith, 2011 OK
51, ¶12; Scott, 2008 OK
45, ¶17. In premises liability, the duty owed by the defendant is determined
by the classification of the entrant, but regardless of the entrant's
classification, the defendant owes no duty to guard against hazards that are
open and obvious. Sholer, 2011 OK 24, ¶12; Scott, 2008 OK 45, ¶21; Buck, 1967 OK 81, ¶20.
¶14 The rule of Buck, Krokowski, and Brown is this: a
property owner owes no duty to safeguard an invitee from dangers created by ice,
even ice the property owner has created, if the danger was, under the facts,
open and obvious to the invitee. Those cases were concerned with what visitors
should know or should be assumed to know, whereas this cause concerns what a
visitor did know. Without question, the facts indicate that Wood was aware of
the ice and the risk it presented. The actions of Mercedes-Benz did not create a
hidden danger. Summary judgment was proper, as under the facts of this case,
Mercedes-Benz owed no duty to Wood.
Citationizer© Summary of Documents Citing This Document
| Cite |
Name |
Level |
| None Found. |
Citationizer: Table of Authority
| Cite |
Name |
Level |
| Oklahoma Supreme Court Cases |
| | Cite | Name | Level |
| | 1990 OK 18, 787 P.2d 1274, 61 OBJ 571, | Lohrenz v. Lane | Discussed at Length |
| | 1994 OK 68, 876 P.2d 239, 65 OBJ 2144, | Kastning v. Melvin Simon & Associates, Inc. | Discussed at Length |
| | 1997 OK 32, 935 P.2d 319, 68 OBJ 992, | Brown v. Nicholson | Discussed |
| | 1946 OK 203, 170 P.2d 230, 197 Okla. 306, | CITY OF DRUMRIGHT v. MOORE | Discussed |
| | 1919 OK 315, 185 P. 1088, 77 Okla. 54, | MIDLAND VALLEY R.R. CO. v. GRANEY | Discussed |
| | 1962 OK 194, 376 P.2d 285, | SAFEWAY STORES, INC. v. McCOY | Discussed |
| | 1908 OK 85, 95 P. 463, 21 Okla. 104, | FAUROT v. OKLAHOMA WHOLESALE GROCERY CO. | Discussed |
| | 1964 OK 102, 391 P.2d 904, | JACKSON v. LAND | Discussed at Length |
| | 1964 OK 152, 396 P.2d 1000, | ROGERS v. CATO OIL & GREASE CO. | Discussed |
| | 1967 OK 81, 431 P.2d 360, | BUCK v. DEL CITY APARTMENTS, INC. | Discussed at Length |
| | 1967 OK 231, 435 P.2d 116, | C.R. ANTHONY COMPANY v. MILLION | Discussed at Length |
| | 1931 OK 73, 299 P. 462, 148 Okla. 117, | CITY of TULSA v. HARMAN | Discussed at Length |
| | 1973 OK 75, 512 P.2d 156, | NICHOLSON v. TACKER | Discussed at Length |
| | 2004 OK 38, 92 P.3d 96, | MARTIN v. ARAMARK SERVICES, INC. | Discussed |
| | 2004 OK 71, 102 P.3d 660, | TUCKER v. ADG, INC. | Discussed at Length |
| | 2005 OK 22, 111 P.3d 243, | DOVER v. W. H. BRAUM, INC. | Discussed |
| | 1996 OK 48, 914 P.2d 1051, 67 OBJ 1173, | Carmichael v. Beller | Discussed |
| | 1996 OK 57, 917 P.2d 8, 67 OBJ 1521, | Krokowski v. Henderson National Corp. | Discussed at Length |
| | 2008 OK 45, 191 P.3d 1207, | SCOTT v. ARCHON GROUP, L.P. | Discussed at Length |
| | 2008 OK 51, 187 P.3d 721, | BRAY v. ST. JOHN HEALTH SYSTEM, INC. | Discussed |
| | 2009 OK 49, 212 P.3d 1223, | MILLER v. DAVID GRACE, INC. | Discussed |
| | 2011 OK 24, 256 P.3d 38, | SHOLER v. ERC MANAGEMENT GROUP, LLC | Discussed at Length |
| | 2011 OK 51, 261 P.3d 1129, | SMITH v. HINES | Discussed |
| | 2011 OK 106, 268 P.3d 68, | BERMAN v. LABORATORY CORPORATION OF AMERICA | Discussed at Length |
| | 2012 OK 80, 286 P.3d 643, | HARMON v. CRADDUCK | Discussed |
| | 2013 OK 48, 306 P.3d 544, | SHEFFER v. CAROLINA FORGE COMPANY, L.L.C. | Discussed at Length |
| | 1975 OK 172, 544 P.2d 507, | TURNER v. RECTOR | Discussed at Length |
| | 1979 OK 18, 595 P.2d 780, | SUTHERLAND v. SAINT FRANCIS HOSPITAL, INC. | Discussed |
| | 1997 OK 152, 951 P.2d 1079, 68 OBJ 4087, | PICKENS v. TULSA METROPOLITAN MINISTRY | Discussed at Length |
| | 1982 OK 96, 653 P.2d 188, | Bradford Securities Processing Services, Inc. v. Plaza Bank and Trust | Discussed |
| | 1998 OK 42, 958 P.2d 1282, 69 OBJ 1779, | WILLIAMS v. TULSA MOTELS | Discussed |
| | 1998 OK 80, 962 P.2d 1273, 69 OBJ 2630, | Weldon v. Dunn | Discussed at Length |
| | 1999 OK 7, 976 P.2d 1043, 70 OBJ 530, | Brown v. Alliance Real Estate Group | Discussed at Length |
| | 1942 OK 83, 123 P.2d 689, 190 Okla. 361, | LONG CONSTR. CO. v. FOURNIER | Discussed |
