# Byford v. Town of Asher

> Supreme Court of Oklahoma · May 10, 1994 · 65 O.B.A.J. 1634

URL: https://www.frixlaw.com/law-library/cases/9566004

## Case

- **Full name:** Harve A. BYFORD, Appellant, v. TOWN OF ASHER, Oklahoma, Appellee
- **Court:** Supreme Court of Oklahoma
- **Decided:** May 10, 1994
- **Citations:** 65 O.B.A.J. 1634; 874 P.2d 45; 1994 OK 46; 1994 Okla. LEXIS 61; 1994 WL 190062
- **Precedential status:** Published
- **Opinion:** Dissent by Hodges
- **Judges:** Summers, Opala, Wilson, Kauger, Watt, Hodges, Lavender, Simms, Hargrave
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

HODGES, Chief Justice,
with whom LAVENDER, Vice Chief Justice and HARGRAVE, Justice, join, dissenting.
I must dissent from this Court’s misapplication of Oklahoma law. The majority has failed to recognize that the issues of negligence and assumption of the risk become relevant only if a legal duty was owed. The city owed the plaintiff no duty to warn of the open and obvious condition of the alley. Thus, the majority’s focus on the defense of *57 assumption of the risk is misplaced. While it is true that the trial judge stated that the plaintiff had assumed the risk, he also specifically found “that the conditions that existed in the alley at that time were open and obvious.... ”
The rule that there is no duty to warn of open and obvious dangers is found not only in the law of premises liability but also in the law of municipal liability. A municipality’s duty of care to the traveling public does not extend to normal hazards which can be readily discernable. Evans v. City of Eufaula, 527 P.2d 329, 332 (Okla.1974). Only when the hazard is “not reasonably to be anticipated by users of the street [does] a municipality [have] a duty to eliminate the hazard or warn of its presence.” Haas v. Firestone Tire & Rubber Co., 563 P.2d 620, 626 (Okla.1976).
The plaintiffs own evidence demonstrated that although an alley had been platted where the plaintiff fell, the area was not used by the city or the public as an alleyway. It could reasonably be anticipated that an unpaved area which functioned more as a private drive between two houses might have a rut in it. Evidence presented at trial also revealed that the condition of the area was not only open and obvious, but was actually known to the plaintiff. It makes no difference whether the plaintiff voluntarily assumed the risk because the city had no duty to protect him from the open and obvious rut in the alley. No constitutional provision was implicated and none should have been applied to the facts of this case. The city should not be forced to warn of open and obvious dangers in an undeveloped area used as a private alleyway.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9566004. Public record. Not legal advice.