WOOD v. MERCEDES-BENZ OF OKLAHOMA CITY

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.

1 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 (8) 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 negli-genee. 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 1981, 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 *462 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.2d 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, 1978 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 , 197 Okla. 306 , 170 P.2d 230, 233 .

16 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 Apartments, 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 , 77 Okla. 54 , 185 P. 1088, 1088 ("[Where 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.").

T7 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 28, 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).

T8 The Court's reliance on Krokowski v. Henderson National Corp., 1996 OK 57 , 917 P.2d 8 , is misplaced. We have never, in EKrokowski 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. EKrokowski did not address the invitor's liability for an increased hazard which was open and obvious.

T 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 cireumstances 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 See. Processing Servs. v. Plazo 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." *463 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.

1 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 Lohreng, we should follow our precedents in the absence of sound public policy for abandoning the current rule of law.