McBryde v. Arvest Bank

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

LISA McBRYDE, )

)

Plaintiff, )

)

v. )

) Case No. 20-CV-528-TCK-SH

ARVEST BANK, )

)

)

Defendant. )

OPINION AND ORDER

Before the Court is the Motion for Summary Judgment filed by the defendant Arvest Bank

(“Arvest”). (Doc. 37). Plaintiff filed a Response (Doc. 48), Defendant filed a Reply (Doc. 49) and

Plaintiff filed a Supplemental Response (Doc. 51).

I. Background

The undisputed record establishes that on October 16, 2017, in the late afternoon, Plaintiff

and her husband traveled to an Arvest Bank location in Tulsa, Oklahoma. The sky was clear and

the sun was out. Plaintiff’s husband parked, Plaintiff exited the vehicle and began walking on the

sidewalk toward the bank. Plaintiff tripped on the edge of the bank’s foundation which was slightly

uneven compared to the adjacent block of sidewalk.

On each side of concrete along the expansion joint, a strip was painted yellow to signal that

the sidewalk was uneven. Plaintiff testified she saw these yellow stripes, knew that they signaled

danger, and knew that she should be cautious. Nonetheless, Plaintiff walked across the sidewalk,

tripped, fell, and suffered injury. For purposes of summary judgment, Arvest does not dispute that

Plaintiff was an invitee to the Arvest Bank location at the time the incident occurred.

II. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The movant bears the burden of showing that no genuine issue of material fact

exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). The Court

resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party.

Id. However, the party opposing a motion for summary judgment may not “rest on mere

allegations” in its complaint but must “set forth specific facts showing that there is a genuine issue

for trial.” Fed. R. Civ. P. 56(e). The party opposing a motion for summary judgment must also

make a showing sufficient to establish the existence of those elements essential to that party’s case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).

A movant that “will not bear the burden of persuasion at trial need not negate the

nonmovant’ claim, “but may “simply . . . point[] out to the court a lack of evidence for the

nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima

facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth

specific facts’ that would be admissible in evidence in the event of trial from which a rational trier

of fact could find for the nonmovant.” Id. (citing Thomas v. Wichita Coca-Cola Bottling Co., 968

F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)). “In a response to a motion for

summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and

may not escape summary judgment in the mere hope that something will turn up at trial. The mere

possibility that a factual dispute may exit, without more, is not sufficient to overcome convincing

presentation by the moving party.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (internal

citations omitted).

III. Analysis

Because this case is before the Court pursuant to the Court’s diversity jurisdiction,

Plaintiff’s claims are governed by Oklahoma law. See Martinez v. Angel Expl., LLC, 78 F.3d 968,

973) (10th Cir. 2015) (internal citations omitted).

Though the nature of a defendant’s duty varies with the plaintiff’s status on the property in

question, in this case it is undisputed that Plaintiff was an invitee at the time she attempted to enter

Arvest Bank. See Brown v. Nicholson, 935 P.23 319, 321 (Okla. 1997) (describing duties owed to

licensees and invitees). Oklahoma premises liability law provides that a business owner such as

Arvest “owes a duty to exercise ordinary care to keep its premises in a reasonably safe condition

for use of its invitees and a duty to warn invitees of dangerous conditions upon premises that are

either known, or should reasonably be known by the owner.” Phelps v. Hotel Mgmt., Inc., 925 P.2d

91, 893 (Okla. 1996).

“However, an invitor is not an insurer of the safety of others and is not required to prevent

all injury occurring on the property.” Taylor v. Hynson, 856 P.2d 278, 281 (Okla. 1993).

Accordingly, the Oklahoma Supreme Court long ago recognized the common law rule that a

landowner “is under no legal duty to reconstruct or alter premises so as to obviate known and

obvious dangers” and is therefore 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, 299 P. 462, 463 (Okla. 1931). “If the danger is readily apparent to the plaintiff, the

defendant has not breached a duty to the plaintiff.” Southerland v. Wal-Mart Stores, Inc., 848 P.2d

68, 69 (Okla. Civ. App. 1993). Put another way, “[t]he fact that the danger is open and obvious

nullifies the duty of defendant to plaintiff.” Nicholson v. Tacker, 512 P.2d 156, 159 (Okla. 1973);

see also Tucker v. ADG, Inc., 102 P.3d 660, 667 (Okla. 2004)(“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.”).

“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.” Buck v. Del

City Apts., Inc., 431 P.2d 360, 365 (Okla. 1967). This is so because “the basis of the invitor’s

liability for injuries sustained by an invitee on the premises is the owner’s superior knowledge of

the danger.” Dover v. W. H. Braum, Inc., 111 P.3d 243, 247 (Okla. 2005). Once the invitee has

knowledge of the danger, she is on equal footing with the landowner and the underlying basis to

impose liability disappears. See Scott v. Archon Group, L.P., 191 P.3d 1207, 1212 (Okla. 2008).

In the instant case, the uneven concrete around the expansion joint was open and obvious

because it was painted with bright yellow stripes. The yellow paint indicated “danger” or “caution”

and conspicuously outlined the uneven concrete between the foundation and the sidewalk. The

alleged “danger” was unobstructed and clear to any patrons or passersby. Plaintiff testified she saw

the yellow stripes and understood the yellow paint to indicate a “danger” on the sidewalk.

Therefore, her knowledge of the danger put her on equal footing with Arvest. The yellow stripes

made the danger apparent and readily observable such that Arvest would reasonably expect for

invitees to discover it in the exercise of ordinary care. Therefore, as a matter of law, the alleged

dangerous or hazardous condition which caused Plaintiff’s injury was open and obvious.

Landowners owe invitees no duty as it relates to open and obvious conditions.

IV. Conclusion

For the reasons set forth above, Arvest’s Motion for Summary Judgment (Doc.37) is

granted.

IT IS SO ORDERED this 8th day of July, 2022.

TERENCE C. KERN

United States District Judge