Nider v. Republic Parking, Inc.

WISEMAN, P.J.,

concurring in part, dissenting in part:

1 I concur with the majority in Parts I and III of the analysis but am unable to concur in Part II on the issue of the nature of the ramp's condition, i.e., Republic's "open and obvious" argument.

T2 I agree that Oklahoma case law holds that if

conflicting inferences may be drawn from the facts and cireumstances in evidence as to whether the offending hazard did have a "deceptively innocent appearance", or its extent could not be anticipated, neither the trial court nor this court may declare that the peril was obvious and apparent and that recovery is precluded as a matter of law.

Jack Healey Linen Serv. Co. v. Travis, 1967 OK 213, ¶ 9 , 434 P.2d 924, 928 . The majority also cites another parking ramp case, Brown v. Nicholson, 1997 OK 32 , 935 P.2d 319 , for the proposition that plaintiffs familiarity with the condition of the ramp is not fatal to her recovery. However, in Brown, as the Supreme Court opinion points out, the record was conflicting on when the weather strips in question were placed on the ramp-Brown said shortly before her fall, and the owners said possibly two years before her fall. Reasonable minds, under this conflicting evidence, could draw different inferences and conclusions as to whether this weather stripping addition was of recent vintage and whether it created a "deceptively innocent appearance" which may not have been familiar to Brown.

1 3 The Jack Healey case also presented a change in conditions familiar to the plaintiff. She knew the area in question was always damp and sometimes covered with water, but she had always been able to pass around it without having to walk through it. But on the morning she fell, "the 'whole area' was covered by water and she could not 'walk *749 around it" and could not "readily perceive that the water was so deep that the soap in it would cover the soles of her shoes." Jack Healey, 1967 OK 213 at ¶ 7 , 434 P.2d at 927 . The Supreme Court stated:

This case is distinguishable from Beatty v. Dixon, ... 408 P.2d 339 . The evidence there failed to show that the defect, known to the plaintiff, may have had a deceptively innocent appearance or that the risk of injury from it had increased because of a sudden or unanticipated change.

Id. at ¶ 10, 434 P.2d at 928 .

T 4 A review of the undisputed facts, and it should be noted that Nider does not dispute any of the facts set forth by Republic that are material to the issue of the ramp's condition, shows that Nider had traversed this ramp twice a day.to and from work for 8 months before she fell and that the condition of the ramp was unchanged this entire time. Her complaint is that the protective coating on the ramp was worn and that the coating and handrail did not extend the full leng 1 th of the ramp. She stated in her deposition that nothing prevented her from seeing the condition of the protective coating every day for eight months before this incident. Nider has never claimed that this was a known danger from which Republic failed to protect her; she has always claimed that she failed to notice or appreciate the danger this ramp presented. I would ask the majority to respond to the question at the heart of this controversy: What was hidden (4.e, not known or familiar) to this plaintiff about the condition of the ramp and handrail? 2 Put another way, under, the specific cireum-stances of this case, what is the particular risk from the observable lack of protective coating that is incapable of appreciation? See id. at ¶ 9, 434 P.2d at 927-28 .

151 find the facts in this case aligned more closely with Beatty and Jackson v. Land, 1964 OK 102 , 391 P.2d 904 , than with Brown or Jack Healey. This condition had existed and been used for many months; there is nothing "deceptively innocent" about it, nor has the risk of injury been increased by some new or unanticipated change in the condition. 3

T 6 If the majority is correct that the ramp and handrail could be considered a hidden danger to Nider under the cireumstances presented, then it should address more substantively the issue of the effect of the warning painted on the ramp shown in the photograph Republic submitted with its motion. 4 Although Nider recites without reference to any evidentiary material that "[tlhere were no signs warning patrons to 'watch your step' on or near the ramp," it is plain from the photo that "Watch Your Step" is painted clearly on the ramp on the protective surface. If one accepts the majority's conclusion that the condition of the ramp's coating could be considered a hidden danger, then Republic's duty is either to correct the dangerous condition hidden from persons in Nider's position or to warn them of its existence. OUJI-CIV No. 11.10. The warning on the ramp appears to satisfy Republic's duty to Nider and should be addressed.

T7 For these reasons, I concur with Parts . I and III of the majority's analysis and conclusions and dissent from Part II. The trial court's judgment should be affirmed.

. Nider did not comply with the Rule 13 requirement of separately stating and numbering each specific material fact claimed to be in controversy or the requirement of making reference to the pages, paragraphs, or lines of the evidentiary materials supporting or establishing that fact. The only facts in Nider's response to Republic's motion which are supported by references to attached evidentiary materials relate to Nider's reasons for choosing her parking location and for taking the ramp rather than the stairs.

. There can be no question that the handrail's condition of not extending the full length of the ramp is open and observable, nor can there be any question that the trial court was correct to remove this issue from jury consideration. The trial court's decision on this issue should be affirmed.

. The only new condition present was the pair of new, non-leather boots which Nider was wearing for the first time that day.

. That this photograph depicts the location's condition on the day of the incident is undisputed by Nider.