The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GRADY HAWKINS, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-20-882-F
)
LOWE’S HOME CENTERS, LLC, )
)
Defendant. )
ORDER
While shopping at Lowe’s in Midwest City, Oklahoma, Grady Hawkins
tripped over a “Shed in a Box” located in the aisle. He fell and injured his hip. Mr.
Hawkins seeks recovery of damages for his injury under premises liability and
negligence theories. The company has moved for summary judgment, asserting “the
existence of a large, white, rectangular shed on a pallet in the aisle was open and
obvious.” Doc. no. 21, p. 2. Mr. Hawkins has responded, opposing summary
judgment. Doc. no. 22. Lowe’s has replied. Doc. no. 23. Upon review, the court
finds Lowe’s motion should be denied.
In Sholer v. ERC Management Group, LLC, 256 P.3d 38 (Okla. 2011), the
Oklahoma Supreme Court stated:
We have rejected the “open and obvious defense” in a
number of cases where the condition or defect was visible
but unseen by the plaintiff. A danger need not be totally
or partially obscured from vision or withdrawn from sight
to be considered hidden. Rather, it may encompass a
condition presenting a deceptively innocent appearance of
safety, cloaking a reality of danger. It may also arise from
circumstances diverting the plaintiff’s attention from the
danger. Therefore, not every “observable” condition is
“open and obvious” as a matter of law. Whether harm
from an open and obvious defect may be actionable
depends on an objective due care standard, i.e., whether
under similar circumstances a prudent person would be
able to see the defect and avoid being injured.
Nevertheless, it is well established in our jurisprudence
that, where conflicting evidence is presented on the issue
of the open and obvious nature of a defect, the question
must be resolved by the trier of fact. What would normally
be considered an open and obvious danger may become a
latent defect because of the conditions existing at the time
of injury.
Id. at 43-44 (emphasis added).
The court concludes that the deposition testimony of Mr. Hawkins, viewed in
his favor, raises a question of fact on the issue of whether the “Shed in a Box” was
an open and obvious defect. Mr. Hawkins testified:
I was in the store. I switched to a lumber cart. And I
couldn’t find the second board. I was looking for a
2X12X12 foot. So I got a Lowe’s employee and told him
that I needed to find this other board and I wanted him to
cut them in four foot lengths. He said okay and he grabbed
the cart and started walking around to another aisle and I
followed suit hanging onto the back end of the cart. Well,
he pulled it up at the location where the 12 foot stock was
for a 2X12 and he grabbed one end and I grabbed the other
and I walked out to the edge of the cart and he was kind of
walking towards me pushing me backwards and I was at
that point sidestepping small sidesteps because I kept
thinking, you know, this ought to be far enough, this ought
to be far enough, and then all of a sudden, I felt something
hit my foot and over I went and landed directly on my hip.
Doc. no. 22-1, p. 2, ll. 1-16.
Although Lowe’s has presented evidence that the “Shed in a Box” in the aisle
was an observable condition, Mr. Hawkins’ deposition testimony reveals foreseeable
circumstances, i.e., assisting Lowe’s employee with placement of lumber on a cart
and walking backwards and sidestepping holding the lumber, diverting Mr.
Hawkins’s attention from that observable condition. “[A]n otherwise observable
condition may be considered a hidden or latent condition because of the presence of
‘circumstances diverting the plaintiffs attention.’” Martinez v. Angel Exploration,
LLC, 798 F.3d 968, 977 (10" Cir. 2015) (quoting Sholer, 256 P.3d at 43 and citing
Roper v. Mercy Health Ctr., 903 P.2d 314, 314-315 (Okla. 1995); Spirgis v. Circle
K Stores, Inc., 743 P.2d 682, 685 (Okla. Civ. App. 1987)).
The court concludes that the openness and obviousness of the danger! of the
“Shed in a Box” in the aisle is a question for the trier of fact. Summary judgment is
therefore not appropriate. A jury may well make short work of plaintiff's contention
that this rather sizeable box was not open and obvious, but, at the summary judgment
stage, the controlling authorities are very indulgent toward slip (or trip) and fall
plaintiffs in these situations.
Accordingly, Defendant’s Motion for Summary Judgment (doc. no. 20), filed
August 2, 2021, is DENIED.
IT IS SO ORDERED this 7" day of September, 2021.
STEPHEN P. FRIOT .
UNITED STATES DISTRICT JUDGE
20-0882p003 rev_.docx
its papers, Lowe’s argues there was nothing inherently dangerous about the “Shed in a Box”
or in its placement. Lowe’s asserts there was ample room in the aisle to avoid the “Shed in a Box”
and under Oklahoma law, it is allowed to display goods in a manner consistent with the nature of
the goods and of business. Viewing the evidence in a light most favorable to plaintiff, the court
concludes that a reasonable jury could conclude that the “Shed in a Box” or its placement was
inherently dangerous. It could conclude that given the circumstances, Mr. Hawkins was not able
to see and avoid the product.