Scott v. Archon Group, L.P.

2008 OK 45 Scott; SCOTT, Jr.; Amanda

Robert Ball, Ball, Daniel Owen

Jessica

Scott, Children, through Minor friends, parents next Robert

Scott, Jr., Scott, Plain and Amanda

tiffs/Appellants/Respondents, GROUP, L.P., A Delaware cor

ARCHON corporation;

poration; Prime Financial Partnership,

Northwest Tower Limited corporation; Winthrop Fi

an Illinois Co., Inc., corpo

nancial a Massachusetts

ration; Leech; Real Es Sandi W9/PHC Partnership,

tate Limited a Delaware partnership;

limited and Trammell foreign corporation, Operations,

Crow dants/Appellees/Petition

Defen

ers. 102,782.

No.

Supreme Court of Oklahoma.

May 6, 2008. May

As Corrected

Rehearing Sept. Denied Norman, Norman,

John W. B. John Jerri Bird, Trammel, K. Norman & Oklahoma OK, City, Gary Hornsey, Jeffrey B. M. Hill, Hornsey, Cooper, Cooper, Kevin E. Hill Associates, OK, City, & Oklahoma for Plain- tiffs/Appellants. Zorn, Collins, K. Wagner,

Daniel C. Jason Zorn, P.C., Wagner Gibbs, City, & Oklahoma OK, L.P., Group, Defendants/Arcane Partnership. Real Limited Estate W9/PHC Harmon, Edwards, E. Joe W. M. Joel Lisa Molsbee, Day, Edwards, Propester & Chris- tensen, OK, City, Kathy Oklahoma R. Neal, Leach, Eldridge William S. Cooper Leach, LLC, DefendanVAp- Steichen & pellee Corporation. Prime Financial Durban, Mullins, Gerald E. Ryan Glen R. Durbin, Deligans, Bialick, Larimore & Okla- OK, City, homa for Defendants/Appellees Trammell Operations, Crow and Sandi Leech.

EDMONDSON, V.C.J. dispositive issue before us erroneously granted trial court summary judgment to the defendants in this premises liability We action. answer in the negative. provides We find the evidence un- proof disputed obvious condi- premises, supporting single but a nonliability inference that favors of the de- fendants based on absence of plaintiffs. previously granted We certiorari opinion and now reverse the of the Court of Appeals judgment Civil and affirm the trial court. seriously injured Mr. Scott was on

February singlervehicle in a acci- dent parking on roof level deck of the building Oklahoma office where he building, worked. The known as “The Tow- er,” had on two levels. order prevent overweight from parking trucks deck, a steel barrier beam had been erected entrance ramp across the stop vehicles taller than feet 6 inches from entering. Mr. driving Scott was a truck was 11 feet tall. When the truck struck the beam was knocked truck, loose and fell onto cab of quadri- height-clearance warnings there also rendering Mr. Scott a crushing it and they his vehicle. Former owners asserted plegic. to Mr. Scott as did Scott, Plaintiffs, Mr. his wife and possession property, or control of the nor did multiple children, brought against this action they any knowledge regarding concerns Tower, of The the owners defendants: W9/ about the beam should have been re- Limited Partner- PHC Real Estate by them their vealed to vendees. manager, Archon ship(W9/PHC); its assets reasons, L.P.(Archon); specifying her the building’s the on-site Without Group, granted summary each Opera- Trammell Crow trial court defendant property manager, tions, (Trammell), manag- judgment. appealed, claiming Plaintiffs that: Inc. and its senior (1) (Leech); open as well whether the clearance bar was and employee, Sandi Leech Tower, question or a hazard was a Northwest obvious hidden as former owners of The (2) (Northwest) jury, plaintiff fact for the was an Partnership, Limited Inc. Tower Co., trespasser or a of fact invitee partner, Winthrop and Financial Inc. its (3) jury, the for the and under facts this Corporation (Winthrop), Prime Financial and though (Prime). case Prime is to Mr. even liable Scott years prior it four sold the land to W9/PHC alleged Mr. Scott’s Plaintiffs injury. Appeals, The Court Civil in his resulted from breaches defendants’ decision, unpublished summary affirmed respective exercise reasonable care duties to judgment granted in more favor re- they negligently main- in that erected and owners, Winthrop, mote Northwest and own- ramp and the beam across the failed tained from property ers of the November 1983 to protect dangers which the to warn and Archon, 1997, February and as- W/9PHC’s should have fore- defendants knew about or manager. sets But court reversed sum- alleged Mr. was an seen. Plaintiffs Scott W9/PHC, mary judgment granted in favor of manner of the beam’s and that the Trammell, Prime, Leech and the former own- violation of the de- installation constituted a property er which sold the to W9/PHC. keep premises reason- fendants’ mortgage 7 Prime had been the lender to him, ably in ease which that the with safe Winthrop. February Northwest and toppled resulting and the beam could be 1997, option purchase Prime exercised its weight posed of serious property in order to market collateral snare, trap it a hidden or constituted it, which it did March sell pitfall. Pursuant to successive written W9/PHC. summary 5 All moved for defendants contracts, provided property Trammell had undisputed judgment and asserted independent as an con- management services duty to they had no showed to The Tower since first with tractor the beam was an warn Mr. Scott because Prime, continuing on Northwest and with open Defendants and obvious condition. also Those defendants then W9/PHC. trespasser by Mr. contended Scott became (1) individually sought hold certiorari. We attempt enter into an area reason of legal duty to protect no defendants had specifically prohibited. trucks were where open warn Mr. Scott as beam was if They argued that even if even he further (2) obvious as matter because as an invitee rath- should establish his status condition was is unneces- legal duty trespasser, er than a status, sary precise Mr. to determine Scott’s posed him to warn because beam (3) building, as former owner danger which have been and obvious should injury. not for Mr. Scott’s Prime is liable by any person exercising ordinary observed ¶ Summary proper judgment is safety. Defendants contend care for his own dispute no substantial 11-fooL-high Mr. to drive his where there is tried fact, any appears that one inch material through opening truck an 8 foot 6 party judgment despite is entitled daylight the facts barrier Dixon, view, Beatty 1965 OK of law. plain was in marked matter beam all, Mu- Weldon v. Seminole height-clearance warning visible to cab, nicipal Hospital, collapsed causing injuries 1985 OK 709 P.2d onto novo; review de addition to paralyzed Our left Mr. Scott from the chest down. pleadings, evidentiary we consider ¶ 12 Mr. Scott testified he did not parties materials to the submitted seeing recall there that affidavits, depositions, trial court such ad day up ramp. as he drove He had no missions, interrogatories, and answers to explanation for noticing it. He further viewing evidentiary light all inferences seeing he did recall ever the beam opposing most favorable nonmovant. years prior time in the more than two Hargrave Valley Coop Electric v. Canadian accident, passed although under it erative, Inc., daily explanation on a why basis. He had no ¶ 9 The record shows numerous uncontro- he would not have been aware of the exis- presented verted the trial court. tence of beam. the He also did not see the (variously by The steel beam referred the truck, height warnings clearance in the parties bar,” bar,” “height “warning as a explanation why he had no he had not seen beam”) “clearance beam” and “barrier was them. Mr. Scott stated there were no ob- ramp up- set the south to the across access prevented structions or distractions which per posts deck on parking two steel seeing him from the beam or its clearance were The beam anchored concrete. was warning warning or the on signs his truck. height approximately at a nine feet and it police investigated The officer who the acci- 1,843 long weighed pounds. was feet dent that Mr. told just stated Scott him he lettering The beam had the facing on side forgot height the about of the truck. oncoming high traffic which ten was inches visible, reading: ¶ 13 The Tower was in 1981 built and was “NO TRUCKS VISITOR PARKING originally designed and constructed with the CLEARANCE 8'6".” areas, separate parking two an upper deck employer’s 10 Mr. Scott’s office was in parking parking lot for visitor and an under daily on a The Tower and basis for more ground parking garage. Because concerns accident, years than two before the he had factors, about weight load restrictions were up ramp, passed driven south the under the necessary heavy considered to avoid vehicle beam, upper parking entered the deck and parking possibly the on roof and falling parked. Scott option parking Mr. had the through. In order approve the construc deck, garage the beneath upper the but he building, tion of the the of Oklahoma preferred upper parking on the level and City required upper deck parking always routinely did so. Mr. Scott drove his upper area be off-limits to The trucks. level vehicle, work; own Expedition, Ford provided: Grading Plan “Barriers shall be however, day question on the he was driv- provided 2nd prohibiting on level vehicular eleven-foot-high the truck U-Haul be- traffic passenger other than vehicles.” family moving cause he was some furniture. height There has been beam an 8 foot displayed A warning sign prominently on the 6 inch warning clearance in 10 high inch Require- “11 dashboard read foot Clearance ramp letters on the south building since the sign warning ment” on and similar was the was built in 1981. twin There is a outside of truck the driver where could beam on the north building. side of the see it in the rear view Mr. Scott mirror. years, Through the the entrance and exit previous rented a truck like this two one on functions had been rotated between the two occasions. but, ramps; since ramp the south has up been to traffic going limited day- Mr. accident occurred in entrance Scott’s light upper into the north morning ramp 8:30 in level and the about as he has was ramp been an arriving going Mr. exit for traffic work. that as down approached upper from ramp south he checked level. The function of coming physically make traffic beam sure no toward him was to restrain a truck over proceeded slowly up height entering he then ramp limit from whereupon his truck struck beam deck. testimony given agree. It is fundamental three elements Deposition approxi- were must shown in order to establish action until there be

from 1984 (1) duty clear- mately where the north on negligence: six incidents able existence of trucks and part plaintiff had been hit ance beam the defendant (2) damage to the injury; down which caused knocked defendant’s breach (3) to re-place In order duty; proximately each time. to plaintiff structure required involved repairs require were resulting therefrom. The threshold reattaching them to the moving posts negligence ment in case based on is to injuries There no caused concrete. duty, of a for there establish existence incidents, probably the bar twice those negligence can in the absence of a damaged it. landed the truck on plaintiff. According defendant’s ly, question exists to a of whether 1997, during period of Prime’s 15 In particular plaintiff part alleged of an ownership, the the south clearance beam properly of law for tortfeasor delivery hit truck and the by a Hospi St. court. Sutherland v. Francis the track. The truck was dam- fell on tal, Inc., 780, 788-784; OK aged, but no were sustained. Rector, Turner v. at the sole direction of beam was reinstalled Oklahoma See also Grace v. repairs The costs of the Trammell. of City, APP CIV required under such that Trammell not of its contract to inform Prime of the terms It18 is well-settled liabili There was no evidence that repair. the duty ty of care which an owner law the incident or Prime had been advised of occupier or land has toward one who of know, knew, or had to of the that reason injured upon his or her land and is comes any this incident at time before lawsuit was premises, of the condition of the because any having Prime received filed. denied occupied by the en varies with the status knowledge of the incident. of the entrant’s trant. determination affidavits of two 16 Plaintiffs submitted under traditional status-based classification witnesses, engineers. Mr. expert both terms—trespasser, law licensee or common the beam was Charles Powell stated resolving therefore essential invitee—is expansion-steel bolts on secured with four duty. a the of existence of McKin issue which, said, inadequate an each side P.2d ney Harrington, OK 855 v. and defective manner of installation because weight represent- of the size and beam’s Metropolitan In Tulsa Pickens Rick Gill design a material defect. Mr. ed plain- Ministry, 951 P.2d diligence, opined as a matter of due man, tiff, a the owner of a homeless sued analy- conducted hazard Prime “should have” he suffered shelter homeless property both and after its ses of the before sleep- retaining a wall while when he fell off acquisition. He that had Prime done following it. forth there the on We set so, it “would have” found remedied our exten- pertinent concise of sys- by posed posi/beam hidden a land sta- regarding sive law owner’s case hidden therein before the tem and hazards injured by duty to one a hazard tus-based to Mr. Gill property was sold premises: W9/PHC. obligation expressed his view of Prime’s to ... trespasser, a a landowner owes To inspections though as it were conduct hazard duty injuring wilfully only to avoid him a duty purchaser a a mat- an affirmative of as licensee, wantonly. or To a an owner owes a for the

ter of but he did cite source to dis- duty to exercise reasonable care imposition duty. of this dangerous to him the existence of close owner, unlikely to certiorari, W9/PHC, Tram- known to 17 On defects duty This by licensee. summary judg be discovered mell and Leech contend that to and instrumentalities granted they had extends conditions properly ment dangers, nature of hidden which are in the duty Mr. Scott because invitee, snares, like. To an traps, and the hazard. We beam was duty obviously dangerous the additional of exer- beam and the possible an owner owes cising keep premis- consequences driving reasonable care his 11-foot truck reasonably having es safe condition into the marked as reception eight Even foot inch visitor. vis-a-vis an six clearance. Defendants’ invitee, duty keep premises reasonably whom a owes landowner safe highest duty applied only in this triehotomous classifica- to defects or in the conditions require snares, system, dangers, traps, the law does not pit- nature hidden like, protect against the invitee and the landowner falls which were not known to dangers apparent readily which are so Mr. which would be observed reasonably observable one would ex- him the exercise of care. pect to be them discovered. other rely 22 Plaintiffs on Woodis v. Oklahoma words, a landowner owes to an Company, Gas and Electric 1985 OK 704 licensee, duty well as to a him argue that a material are in from conditions which the nature of fact arises whether and Trammell W9/PHC traps, dangers, hidden snares and the like. reasonably anticipated could Mr. Scott’s liability A hidden within this rule presence in a tall truck because of earlier totally partially need not obscured so, entering ramp. incidents trucks If sight; from vision or withdrawn from contend, him, duty defendants’ even phrase pre- is used describe condition trespasser, great was as as owed deceptively appearance senting a innocent general public. inapposite Woodis is reality of danger.’ ‘which cloaks present here because it did not issues of Furthermore, failure to remove known but premises liability regarding obvious hazards alteration recon- status, landowner to an entrant of tres- premises the struction of is not a breach of Instead, passer pre- or otherwise. Woodis duty the even landowner’s to an invitee. legal question sented the of whether open from Whether harm an and obvious company’s alleged electric of violation depends objec- is an defect actionable safety negligence national code constituted care—i.e., tive standard of due whether per duty and a se breach of owed to the under or similar like circumstances an or- public through public policy invocation aof dinary prudent person would have been regulation. able to the defect in see time avoid ¶23 evidentiary materials submitted (Footnotes omitted). being injured. Id. at to the trial court do not show beam was a 1083-1084. snare, danger trap hidden or a or the like or unnecessary We found it to resolve a deceptively appearance that it had innocent precise entry the issue of the status of cloaking reality of danger. Additionally, Pickens, plaintiff if, concluding that even “deceptively argu appearance” innocent invitee, plaintiff argued, had was an urged by plaintiffs ment and advocated duty defendant landowner had no breached expert is not well taken under these retaining to him as the wall from which he facts, as Mr. Scott testified he did not condition, open fell an and obvious not a so, being see the beam at clearance all. That snare, like; danger, hidden or the it was entirely the case situa different and did deceptively visible not have a presented where an entrant appearance. innocent premises danger pres sees an obvious but it manner, 21 In like deceptively appearance we find here that ents a innocent which invitee, even if reality Mr. Scott was an rather than cloaks a of from the deceived trespasser, See, highest e.g., thus was owed the entrant. Southerland v. Wal-Mart by defendants, Stores, duty of care Inc. defendants APP CIV duty (injured breached no to him as the clearance customer who admitted she did open danger. beam was an open and obvious not patently bright As see obvious duty an defendants legal orange owed no electric cord that caused her fall had Mr. Scott to or upon warn otherwise him no factual basis which contend cord open from the deceptively obvious of the appearance). had innocent foreseeability important is the most consider- in the evi- photographs submitted duty in the of Prime’s so dentiary show the clearance beam ation establishment materials haz- being patently that a of fact exists as to obvious material of of All were aware Trammell informed Prime witnesses ard. knew, ramp. repair The beam so that Prime its existence across incident ac- known, thereby or Mr. Scott not obscured hidden. should W9/PHC, vendee, view of the beam knowledged duty and third any way nor was he interfered with in party, Mr. Scott. approached it. Reasonable as he distracted here, applicable is not how- Wofford over the fact that people could not differ ever, as was concerned the determi- ten inches beam with letters twelve foot steel principles general under nation of height require- warning high governing negligence, those law danger. was an obvious ment liability. Wofford, the mother can conflicting inferences that There are patient brought for of a mental suit dam- from the facts and circumstances be drawn against al- ages a mental institution for its hid- as to whether the hazard was evidence legedly patient, negligent who release deceptively appear- innocent den or had a stepfather year two later. We killed his open and danger of the beam was ance. The killing was too remote and unfore- held ordi- and Mr. Scott failed exercise obvious part liability on the seeable to create nary for his to avoid care own hospital. did involve consider- Wofford W9/PHC, danger. Recovery against (as foreseeability ation issues precluded by law. Trammell and Leech was release) persons endangered by patient’s (of psy- of a the establishment agree with Prime that We professional chiatrist to exercise reasonable it had no of The Tower the former owner patients he knows discharging care in whom recognize basic duty to Mr. We Scott. dangerous propensi- know have should prop of real possession rule that and control ties), principles but those are not the as erty requirement is the fundamental govern Prime’s would the establishment of thereon, cribing liability suffered premises in duty or absence thereof this parts possession that once an owner with liability action. premises, responsibili and control of the injury ty liability, any, if for suffered on ¶28 by plaintiffs’ persuaded are not We See property falls on the new owner. attempt change landowner’s to to Casualty Shipley v. Bankers Com Life respect open and obvious dan- invitee with to (ven pany, OK gers by characterizing as one of the issue possession, man dor who surrendered of ordinary negligence urging application apartment of hotel for agement and control concepts negligence. of We buyer years six to under contract for sale depart sup- our previously declined to was not liable for tenant’s sustained as port principles law of of common in when result of defect elevator existed In liability again do here. Sutherland so into). contract entered Hospital, St Francis explained as follows: P.2d we acknowledge gen 26 Plaintiffs this liability negligence in possessor’s Land rule, though argue that even Prime eral premises var- occurring upon harm for years prior to Mr. property sold four complain- the entrant ies with the status of accident, foreseeability of Scott’s duty that injury. of ing of Definition estab harm reason of the 1997 incident protection limit of afforded marks out the part of of care on the Prime. lished or narrows with an entrant broadens rely Plaintiffs v. Eastern State Wofford possessor in interest of the Hospital, in beneficial This upon the land. presence in of the other support of contention that this case (1) approach the common law ever has been A vendor of land who conceals or sovereignty immunity fails since landlord’s to disclose to vendee his condi- tion, artificial, involving for acts within the natural or done boundaries of persons upon risk gradually gave away present-day unreasonable to land land, subject liability bodily is for harm accountability. When tort civil modern thereby caused to the vendee and others finally incorporated possessor’s law liabili- upon the with land consent of the vendee ty, concept negligence of came to be or his subvendee after the vendee has tak- applied within the restrictive framework possession, en if relational, short, status-based duties. (a) the vendee does know or have the common law seen has never fit to reason know the condition or the risk principles general negligence extend its involved, and (as they came to be fashioned last (b) the vendor knows or has reason to century) govern harm occasioned on condition, (Footnotes know of the omitted). and realizes or premises of others. involved, should realize the risk and has reason, plaintiffs’ For the same reli- reason to believe that the vendee will not (Second) § ance on 353 the Restatement discover condition or realize the risk. (1965) coinciding principles Torts (2) actively If the vendor conceals the foreseeability general negligence is law condition, liability Subsection misplaced. also That section sets out (1) continues until the vendee discovers it exception general rule of vendor’s and has opportunity reasonable to take nonliability may come to precautions against effective it. Otherwise conveyed party third premises, pro- liability only continues until the vendee viding subject liability a vendor if has had opportunity reasonable to discover or failed concealed to disclose condition the condition and to such precautions. take vendee, of unreasonable risk to his § 1130 353 has not adopted by been this only liability will continue until vendee has Court and there is no showing evidence opportunity reasonable discover condi- applied should be in this case. There is liability explained tion. These issues are showing evidence Prime was ever aware or the Restatement as follows: should have been aware of the incident falling during ownership, § beam its Dangerous and Prime Arising Conditions denied knowledge. had such There is After Vendor Transfers Possession. also no evidence Prime concealed subject A vendor of land to liabili- failed to anything disclose about the ty bodily harm caused to his vendee expert’s opinion sug- vendee. Plaintiffs’ upon by any others while the land danger- gesting “duty” that Prime had investi- condition, artificial, ous whether natural or find, gate in property analyze order which comes into existence after the vend- repair the hazards before and after the possession. ee taken has purchase unsupported in the law. Dangerous § 352. Arising Conditions ¶ 31 The clearance beam was an after Vendor Transfers Possession. easily obvious hazard and could have been seen and avoided Mr. he Scott had exer- Except § as stated in a vendor of safety. cised for own care his aAs subject bodily land is not liability matter plaintiffs failed to show a harm caused to his vendee or others while duty by breach of opinion defendants. The upon the land after the vendee has taken of the Appeals Court Civil is reversed. possession condition, by any dangerous The trial court’s in favor artificial, whether natural or which existed of defendants is affirmed. posses- the time that the vendee took sion. C.J., WINCHESTER,

§ Dangerous EDMONDSON, V.C.J., HARGRAVE, Concealed Condi- OPALA, TAYLOR, JJ., tions Known to Vendor. Concur. COLBERT, JJ., ¶ KAUGER, WATT, purpose of the beam was a “safe- “stop” ty” it intended to part. in measure and was part, in dissent concur entering heavy in their trucks tracks ¶ REIF, J., Disqualified. falling through to upper level and risk warnings weight No about the level below. WATT, J., KAUGER, J., with whom posted. limits were The clearance bar had COLBERT, J., concurring part, join, in place was built been since the structure dissenting part: City City required 1981. The of Oklahoma heavy upper level be off limits to majority’s holding I1 to the dissent is located on trucks. Another bar undisputed proof of provides “the evidence budding as the north side of the well. premis- of the open and condition Through years the north and south es, single supporting but a inference ramps alternatively have functioned as either nonliability of the defendants based favors ramps, entrance exit but since plaintiffs.” The sum- absence of ramp has entrance south served present disputed mary judgment materials upper level and the north has served raised of fact which have been questions the exit. “open and nature of regarding the obvious” inherently danger- allegedly an “unsafe ¶5 pound approxi- The 1843 pound beam which ous” 1843 steel mately long tall. It was 26 feet feet summary judgment. preclude square constructed welded 8 inch steel it

tubing, posts sat on two steel approximately inches 12 inches. FACTS anchored to the concrete The barrier was Undisputed a. Facts x long expansion inch with four inch 3/4 warning with a bolts. The beam was marked 18, 2002, February appellant, On traffic, top, facing oncoming in 10 across the (Scott), large rented a Robert Scott U-Haul reading: inch white letters (U-Haul), it and loaded with furniture truck to take to auction which he intended Parking. “No Trucks. day. Visitor lunch hour the next during

house his 19, 2002, 8'6"” February Scott Clearance morning of On the the U-Haul truck from his home drove nor did he 6 Scott did not see Oklahoma, Edmond, work at an site it, explanation seeing for not other building known as “The Oklahoma office oncoming traffic. watching than he was employed an audio- Scott was Tower.” it Consequently, struck with the U-Haul tenant, for Tower Aeker- visual coordinator ramp. attempting up while to drive man-McQueen Advertising. an- truck the beam loose from its knocked truck, onto the cab parking garage consisted of chors and fell 3 The Tower crushing rendering quadripleg- upper Scott deck and an two levels-a lower level level, February and his ic. On driving air had been deck. Scott de- south, family brought against various ramp, and lawsuit up the deck access vehicle, ownership Expedition, on fendants who were involved a Ford (collec- management parking garage years. upper nearly two deck tively, parking garage), alleging that Scott’s parking garage in U- approached the injuries from breaches of the defen- attempted ramp lead- resulted Haul and to enter the to reason- respective dants’ duties exercise required U-Haul upper deck. The 1) they: negli- alleged feet, able care. He that garage had a clearance of (clearance gently the beam erected and maintained barrier beam installed steel bar/ 2) beam) pro- ramp; failed to warn stop taller across the to vehicles across they dangers knew about upper from the which entering tect than 8 feet 6 inches 3) foreseen; installed or should have deck. a manner damaged, inju- beam in such constitute a truck. The truck was but no keep ries were beam was violation sustained. The rein- 4) safe; accident reasonably stalled. Scott’s would have been the created a hidden eighth approximately known snare, accident trap pitfall through their installa- years. Engineers reported that the beams easily toppled tion of a beam inadequately were secured with bolts which posed injury by weight. serious its appeared to have become loose and secured ¶ 7 All of the defendants moved for sum- attempt with wire in an to make them fit mary judgment and asserted that the undis- engineers reported better. The also that puted showed because of the beam’s weight, size and it was protect or because the beam warn Scott defectively installed and constituted hazard “open danger. They and obvious” also easily topple which would over when hit and 1) insisted that: even if Scott could establish readily which would not be observed he was an rather than tres- driver. passer, they legal duty had no to warn him heavy so beam is that a crane posed because the beam required lift it for reinstallation. While have which should been observed photographs submitted show that any person exercising care for his it, warning posted beam had a visible isit 2) safety; plain own the beam was in merely by looking not clear at the beam view and marked with clearance exactly what material was made of or how warnings height-clearance and the warnings heavy engineers it was. The insist that there posted plainly were on the U-Haul dash- many were alternative choices would board and on the outside of truck. posed significantly have lower risk which were warning available for and stop- Disputed b. Facts ping from entering trucks level. bar, installed, The clearance as it was served ¶ 8 The materials attached the motions booby trap threatening life create a responses reveal hazard. relevant, disputed several facts. For in- stance, 1984 and between there were c. Procedural Facts. approximately half a dozen incidents where the north hit by clearance beam had been reasons, specifying Without trucks knocked down. After each inci- granted summary trial court each defendant dent, moved, the beams were con- old judgment on appeal- October 2005. Scott filled, crete posts holes and the were reat- ed arguing on November physical tached to the A inspection concrete. trial court erred in granting judg- property reveals the areas where the ment because whether the bar posts place place have been moved from open and obvious or a hidden hazard was and bolt holes been filled concrete. jury. of fact for the The Court of reported, While no the bar Appeals, decision, unpublished Civil in an have landed on trucks least twice one summary judgment granted affirmed in favor year. likely Most of the incidents were defendants, of some of the but reversed as to licensed, by commercially professional caused recognized others. It also that under the parking garage truck drivers. The insists pertaining summary judgment, rules fact all of the concrete filled holes were questions had been regarding raised of prior evidence attachments of pound the 1843 “open and obvious” beams, but, instead, could have been from and whether the beam was an inherent dan- signs past. other which existed ger inappropriate, because unsafe in- stallation. ¶ 1997, 9 In the clearance bar the south ¶ by was hit an Express Airborne com- 12 UNDER THE FACTS PRESENT- delivery ED, QUESTIONS mercial truck and it fell on the MATERIAL FACT EX-

1217 warn duty has about invitar THE BEAM WAS TO WHETHER 1ST AS obvious, open dangers DANGER OR are OBVIOUS which OPEN AND AN DEFECTIVE, DE- by A invitee in IT WAS which would discovered WHETHER DANGEROUS, HIDDEN ordinary The facts of a CEPTIVELY care.4 the exercise ERRED TRIAL COURT THE upon HAZARD. controlling particular case are each JUDGMENT. SUMMARY IN GRANTING danger- negligence respect in questions of premises, and whether such ous conditions ¶ trial court erred that the 13 asserts Scott ordinarily a negligence is constitute park- summary judgment to granting by jury an action an question for the questions disputed fact garage ing because invitee.5 an clearance bar was as whether exist a hidden hazard. open and ¶ garage motion parking based its that because parking garage contends assertion that its clearly visible and the beam was duty to because the beam it owed no garage to everyone entering the marked danger. It and obvious con- was an see, danger for open and obvious it was an anyone, by looking at the tends towards no additional duties it owed which it or should know would either know Scott. way falling on a giving a poses ¶ negli- seeking challenges establish party 14 vehicle when is struck. Scott A by preponderance a prove argues must gence garage’s position. He parking 1) duty by the owed defendant evidence: a a parking garage created condition 2) care; a ordinary breach plaintiff use measure, safety a appeared as which 3) duty; injury proximately of that deceptive- design, its of its because defective duty.1 by the defendant’s breach caused ly heavy weight, and the ease with which duty to exercise owes A business owner hidden, over, reality created a toppled rea- keep care ques- Consequently, the dangerous hazard. for use of its invitees2 sonably condition safe and the obviousness tions dangerous duty invitees of to warn jury. questions for beam were are premises that either upon the conditions ¶ summary judgment may 16 A motion for by the reasonably be known known or should depositions, inter- pleadings, be filed if the dan- extends to hidden This owner.3 rogatories, and other exhibits re- affidavits snares, which traps, pitfalls and the like gers, controversy However, is no substantial flect that there to the invitee. are not known Inc., 14, parking wanton garage acted in wilful and Welding, Superior 1995 OK v. 1. Grover 500; 5,¶ repeatedly installing by v. Eastern State an unsafe beam 893 P.2d manner Wofford 77, 8, 516; Thompson Hasp., eight 795 P.2d 1990 OK struck it after vehicles in an unsafe manner ¶ 7, 87, P.2d Presbyterian Hosp., 1982 OK 652 v. years. in the last 20 times 260. Inc., Management, Phelps 1996 OK v. Hotel majority opinion determines 2. Because the 114, 6, 891; Hynson, Taylor v. 1993 925 P.2d dan- bar was an and obvious the clearance 278; Safeway P.2d Williams v. OK question of whether ger, reach the it does not Stores, 515 P.2d 223. 1973 OK garage or as the was an Scott argues, undisputed, trespasser. Under the Scott, facts, a matter of I would treat Corp., OK v. Trailer Woods Fruehauf employed one of Tacker, he was 770; an invitee because v. Nicholson park- to use the who was entitled Dixon, businesses 156; 75, 9,¶ Beatty v. 512 P.2d OK he never ventured into and because lot 8-10, ¶¶ 408 P.2d 339. OK stopped in his prohibited because he area such before he ever reached tracks the beam Travis, Healey v. Linen Service Co. 5. Jack However, view if one were to even area. 924; 213, 0,¶ Henryetta Construc 434 P.2d trespasser required a lower Scott as ¶88, 11, Harris, 1965 OK Co. v. facts, Scott, alleged owed to level of Timme, 28 A.L.R.3d Pruitt Scott, light most favorable to when viewed in 8,¶ P.2d 4. jury conclude that also allow a could any fact.6 material Even when basic then granting the trial court erred undisputed, summary summary judgment facts are motions for motion. denied,

judgment if should be from evi- A totally hidden not be need dence, persons might reasonable reach dif- or partially obscured from vision or with- ferent inferences or conclusions from the un- sight; drawn from phrase is used to disputed Summary judgment facts.7 is presenting a condition deceptively describe affidavits, proper only pleadings, when the appearance innocent which cloaks a admissions, depositions, evidentiary or other reality danger.11 Healey Jack Linen genuine materials establish that there is no Travis, 213, 9, Service Co. v. 1967 OK fact, any issue as to material and that the 924, P.2d the Court in addressing whether moving party is a judgment entitled to as a question of an accumulation of water matter law.8 explained: constituted a hidden hazard ¶ 17 All evi- conclusions drawn from the ... familiarity 9 Plaintiffs gen- with the dentiary trial material submitted court physical may eral condition which re- be light are viewed in the most favorable to the sponsible for her does not of itself party opposing the motion.9 Before a motion operate offending to transform the defect summary 13, for judgment under Rule an apparent into and obvious hazard. 2, Supp.2002, App. O.S. Ch. Rules for the knowledge Mere without full may District properly granted, Courts be appreciation of the risk involved is not movant must show that disputed there is no sufficient bar plaintiffs right of recov- if, Accordingly, issue of material fact.10 after ery-While general physical condi- considering evidentiary at- materials might actor, tion be familiar par- tached the motion for ticular risk the known defect could response light nevertheless, in a most favorable to under the circumstances of a Scott, remains, disputed occasion, given of fact incapable apprecia- be Inc., 3, 6.Phelps Management, v. ¶ party Hotel see supported by acceptable note adverse is 17; Ins., supra at Roach v. Atlas 1989 OK evidentiary If material. the motion for Life sum- 27, 15, 158; 13, Supp. Rule 12 O.S. mary judgment summary disposition or is 2002, App. Ch. 2 Rules for the District Courts granted, party parties opposing or the mo- provides pertinent part: any appeal rely cannot fact or party summary a. A move for either material that is not referred to or included judgment summary disposition any or issue the statement in order to show that substan- ground on the merits on the ry that the evidentia- controversy tial exists.... filed material with the motion or subse- quently filed with leave of court show that Inc., 3, Phelps Management, 7. v. Hotel see note controversy there no substantial as to Inc., supra; Whinery’s Markwell v. Real Estate material fact.... 1994 OK 869 P.2d 840. Any party opposing summary judgment b. or summary disposition of file issues shall ... a Inc., 3, Phelps Management, v. Hotel see note concise written statement of material facts Assoc., supra; Carris v. John R. Thomas & genuine to which issue exists and the 33, ¶ 16, motion; OK denying Roach v. reasons Atlas ... the ad- Life Co., party supra. Ins. see verse shall attach to the note statement evi- dentiary justifying opposition material motion, may incorporate by reference Inc., Phelps Management, v. Hotel see note papers par- material attached to the ty. of another Shawnee, supra; Ross v. 1984 OK statement, party In the the adverse ¶ 16, 683 P.2d 535. parties specif- shall set forth number each ic material fact which is claimed to be in Supp.2002, App. 10. Rule 12 O.S. Ch. 2 Rules controversy and reference shall be made Courts, supra; Phelps the District see note pages paragraphs or lines of the evidentia- Management, v. supra; Hotel see note ry materials. All material set forth in the Roper Center, 82, 4,¶ Mercy Health supported statement of the movant which are 903 P.2d 314. by acceptable evidentiary material shall purpose deemed admitted for the judgment summary disposition Metropolitan Ministry, spe- 11. Pickens v. unless Tulsa 152, ¶ cifically controverted the statement of the 951 P.2d 1079. ¶ purpose of the beam was here, The If, conflicting inferences as tion. “safety” as a measure that it was installed and circum- the facts may drawn from be level, entering the “stop” trucks from the of- to whether in evidence as stances facts, it according disputed was but in- ‘deceptively did have fending hazard and, fact, designed created defectively not could or its extent appearance’, nocent condition. Noth- threatening, life hazardous court nor the trial anticipated, neither speed ing in the mentions record peril was may that the declare this court traveling, but a may have been which Scott recovery is apparent and that traveling up a would large U-Haul ques- The of law. as matter precluded Yet, very fast. it traveling likely have been jury.... one for the tion is readily apparent photographs from the is not v. Tul ¶ on Pickens majority relies weighed nearly a ton and that the beam Ministry, Metropolitan sa a cab easily topple it over and crush would so homeless P.2d 1079. Pickens involved a speed. hit at low rate of of a truck when least, had on its could very persons in Tulsa which At reasonable shelter questions and guardrails or barriers. to these material retaining wall without differ as improper. top wall was off of the Pickens rolled When sleep injured, he sued and was negligence. alleging architect owners and CONCLUSION re that the concrete The Court determined and obvious open was an taining wall summary adjudica- purpose of The that, such, recovery a matter of law a trial affidavit tions is not to substitute legal premise precluded. was While a meth- by jury, but rather afford one correct, to the facts Pickens application summarily terminating a case where od of re Nothing is not. about remain.12 uncon- only questions of this cause of law When conflicting wall in Pickens was hidden support or ob proof troverted lends taining inferences, choice be made between scured, in fact undiscov undiscoverable present an opposite does not alternatives It not defective. did The wall was ered. trier of rather one for the issue of but collapse fall collapse causing fall or evidentiary materials fact.13 Based anyone. upon summary with the presented connection evidentiary Here, materials show motion, minds could dif- judgment reasonable beam, see the did not that Scott fer, and its concerning all the evidence after marked, nothing was ob- inferences, whether reasonable only This shows structing of it. his vision obvious dan- clearance bar was itself, beam, have been seen. could summary judg- ger hazard. The or a hidden dispositive evidentiary are not materials garage motion offered ment concerning questions wheth- material fact genu- of a showing the absence falls short or wheth- and obvious er the beam Accordingly, the of material fact. ine issue danger and was defec- posed a hidden er it entered court erred when trial design. The fact that the tive in parking garage. in favor of the judgment hit at least 8 times raises been bar jury as to

itself, under open and obvious—whether like circumstances

similar person have been able to see

prudent would injured— being in time avoid

the beam “danger.” open and obvious

much less an Services, Inc., Services, see note v. 13. Martin Aramark 2004 OK 12. Martin v. Aramark Co., Inc., 96; Wimberly, Penny 2003 OK supra; 1997 OK Bowers v. Walters v. J.C. 92 P.3d 24, ¶ 18, Stuckey Young Explo Co., P.2d 726. ration

Case Details

Case Name: Scott v. Archon Group, L.P.

Court Name: Supreme Court of Oklahoma

Date Published: May 14, 2008

Citation: 191 P.3d 1207

Docket Number: 102,782

Court Abbreviation: Okla.