WOOD v. MERCEDES-BENZ OF OKLAHOMA CITY

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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

GURICH, J.

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.

FOOTNOTES

1

Deposition of Erica Wood, page 17, lines 6-25, cited in Defendant, Mercedes-Benz

of Oklahoma City's Motion for Summary Judgment with Brief in Support.

2 This

Court recognizes that the Appellee, Mercedes-Benz, maintains that Wood's

retrieval of her cell phone was purely personal. For purposes of summary

judgment, we view the facts in a light most favorable to the non-moving party.

Sheffer v. Carolina Forge Co., L.L.C. , 2013 OK 48, ¶ 11 , 306 P.3d 544, 548 .

3

Deposition of Erica Wood, Page 21, lines 21-25, cited in Defendant,

Mercedes-Benz of Oklahoma City's Motion for Summary Judgment with Brief in

Support.

4

Id. Page 24, , lines 7-8.

5

Id. Page 35, lines 2-7.

6 An

invitee is defined as one who uses the premises of another for the purpose of a

common interest and mutual advantage. Brown v. Nicholson , 1997 OK 32, ¶ 6 , 935 P.2d 319, 321 . In the typical

case, the invitee can protect herself by leaving the premises when an open and

obvious hazard is encountered or by avoiding the premises altogether. In this

case, neither of these choices was available to Wood. She was not a customer of

the dealership, but was present to fulfill her employer's contractual duty to

provide service for an event sponsored by the dealer. Wood's presence and

exposure to the hazardous icy condition was compelled to further a purpose of

the dealership.

7 Our

cases generally recognize a distinction between hazards occurring naturally

versus those which are created or aggravated through some action of the

landowner. See , e.g. , Dover v. W.H. Braum, Inc. , 2005 OK 22, ¶¶ 7-8, 12 , 111 P.3d 243, 245-246 (affirming

summary judgment for landowner where no evidence demonstrated store had

knowledge of icy conditions and "no act on the part of [store]. . .[created] a

greater hazard than that brought about by natural causes").

8 Our

opinion should not be construed as abrogating the open and obvious defense in

all cases. The icy condition is not dispositive of Mercedes-Benz' duty in this

case because Wood was required to cross the hazardous condition in furtherance

of her employment. As opposed to a random customer appearing at the dealership,

Mercedes-Benz knew that employees of Ned's Catering would be arriving and would

be required to enter the building.

TAYLOR, J., dissenting :

¶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).

Conclusion

¶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.

FOOTNOTES

1

See , e.g., Sholer , 2011 OK 24 , 256 P.3d 38 ; Scott , 2008 OK 45, ¶10-14 , 191 P.3d 1207 (defendant has no

duty to guard against open and obvious hazards, but whether a hazard is open and

obvious may be a question of fact for the jury); Tucker , 2004 OK 71 , 102 P.3d 660 ; Kastning v. Melvin

Simon & Assoc., Inc. , 1994 OK

68, ¶6 , 876 P.2d 239 ("It is

well established that a landowner has no duty to warn of dangers that are open

and obvious."); Turner v. Rector , 1975 OK 172, ¶10 , 544 P.2d 507 ("There is no

obligation to warn an invitee, who knew the condition of a property, against

patent and obvious dangers, and there is no actionable negligence in the absence

of a duty neglected or violated.") (quoting Jackson v. Land , 1964 OK 102, ¶0 , 391 P.2d 904 ); Nicholson v.

Tacker , 1973 OK 75, ¶19 , 512 P.2d 156 ("the fact that the

danger is open and obvious nullifies duty of defendant to plaintiff."); C.R.

Anthony Co. v. Million , 1967 OK

231, ¶¶7-8 , 435 P.2d 116 (An

"owner or occupant is under no legal duty to reconstruct or alter the premises

so as to obviate known and obvious dangers, nor is he liable for injury to an

invitee resulting from a danger which was obvious or should have been observed

in the exercise of ordinary care.") (quoting Safeway Stores v. McCoy , 1962 OK 194, ¶8 , 376 P.2d 285 ); Jackson , 1964 OK 102, ¶0 ("there was no

obligation to warn an invitee, who knew the condition of a property, against

patent and obvious dangers, and there was no actionable negligence in the

absence of a duty neglected or violated.") (citing Long Const. Co. v.

Fournier, 1942 OK 83, ¶10 ,

123 P.2d 689 ); City of

Tulsa v. Harman , 1931 OK 73,

¶37 , 299 P. 462 ("an injured

party will not be permitted to recover damages where he did in fact fully

appreciate the peril; so, in respect of such perils as may be said to be patent

or obvious, there is no obligation to give any sort of warning.")

2 See,

e.g., Scott , 2008 OK 45, ¶21

(clearance beam on owner's property was an open and obvious hazard);

Nicholson , 1973 OK 75, ¶11

(defective fishing dock was an open and obvious hazard); Pickens , 1997 OK 152, ¶11 (retaining wall was

an open and obvious hazard).

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