contrasting duty to exercise ordinary care to maintain premises in a reasonably safe condition with the higher degree of care owed by a hospital to a patient
How later courts described this case
- contrasting duty to exercise ordinary care to maintain premises in a reasonably safe condition with the higher degree of care owed by a hospital to a patient
- invitee need not be warned or protected from open and obvious conditions
Written by the judges who cited it.
The opinion
WILLIAMS, Justice
dissenting:
I respectfully dissent from the majority opinion. To my way of thinking, that opinion misapprehends the alleged factual and legal basis for its requested decision, to-wit: the sustention of an appellee’s motion for summary judgment. A ease should be summarily dismissed only when fully warranted under the facts and circumstances and applicable law. This underlying consideration is what prompted the Court to mandate that, “[0]n motion for summary judgment all inferences and conclusions to be drawn from underlying facts . . . must be viewed in light most favorable to the party opposing the motion.” 1
In Perry v. Green, 468 P.2d 483, 489 (Okl.1970) cited in Northrup v. Montgomery Ward & Co., 529 P.2d 489 (Okl.1974) this Court stated: “A motion for summary judgment, under Rule 13 . . . . should be denied if the facts concerning any issue raised.are conflicting, or if reasonable men, in the exercise of a fair and impartial judgment, might reach different conclusions from undisputed facts concerning any issue as set forth in such instruments.” (Emphasis added).
In the view of this writer, there properly remained issues for determination by the trier of the facts as to whether certain duties were owed to plaintiff, an invitee on defendant’s premises, related to plaintiff’s apparent state of health, position in the wheel-chair and leaning against his wife’s bed, instructions and demands made upon him by defendant’s orderly, substitution of the stool for the wheel-chair, et cetera. These issues involved more than those emanating from mere possession of real estate. A jury trial should have been afforded plaintiff.
Pertinent here, it seems, are questions raised in the opinion of the Court of Appeals (by Brightmire, J.) referred to in the opinion of the majority, in substance as follows: What are the relevant circumstances attending the incident which have a bearing on the propriety of the orderly’s act of demanding the wheel-chair? Were there present circumstances which would suggest to a prudent person the necessity that Appellant-Sutherland needed the wheel-chair from a standpoint of safety? Was the appearance and demeanor of Sutherland such as to constitute notice to the orderly? 2 These unanswered questions are sufficient to introduce substantial controversy necessary to remove this case from summary treatment. 3 Appellee has failed to sustain its burden under the Northrip test, supra.
*785 I reiterate my position that the issue to be decided is not the totality and history of possessory landholder’s liability for negligent torts, but the summary preclusion of a trial by jury.
Certiorari should be denied, the Court of Appeals decision upheld, and the case tried by jury. As stated, I dissent.
I am authorized to state that Mssrs. Justices Hodges, Doolin and Hargrave concur in the above dissenting views.
.Weaver v. Pryor Jeffersonian, 569 P.2d 967 (Okl. 1977).
. 49 OBAJ 1742 at 1743 (Section III).
. Refer to O.S.A. Ch. 2 App.Rule 13, entitled “Judgment where Facts not controverted”.