Date: 03-06-2013

Case Style: Cynthia Hatchett v. Panda Restaurant Group, Inc.

Case Number: CJ-2011-4698

Judge: Thomas E. Prince

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Brady T. Burr and Aaron Stiles

Defendant's Attorney: Ann E. Allison for Panda Restaurant Group, Inc.

James K. Secrest, III and Robert Earl Applegate for Praxis Development, Inc. and MAR Development, LLC

Jeff R. Beeler for Diversified Construction of Oklahoma, Inc.

David R. Matthews for Omar M. Khoury

Description: Cynthia Hatchett sued Panda Restaurant Group, Inc., Praxis Development, Inc.a and MAE Development, LLC on premises liability theories claiming:

1. Plaintiff Cynthia L. Flatchett and Plaintiff Donald E. Yardley (hereinafter “Plaintiffs’) are individuals residing in Oklahoma County, Oklahoma.

2. On February 1, 2010, Plaintiffs entered the Panda Express restaurant located at 500 S. MacArthur Oklahoma City, Oklahoma (Premises) as invitees.

3. Upon exiting the building where Panda Express Restaurant is located, a large sheet of ice, or multiple large sheets of ice, fell from the building’s roof, striking both Plaintiffs Flatchett and Plaintiff Yardley causing injuries.

4. The injuries giving rise to Plaintiffs’ cause of action occurred in Oklahoma County, Oklahoma.

5. Venue is proper in Oklahoma County, Oklahoma, and this state has personal and subject matterjurisdiction over the issues and parties herein.

6. Defendant Panda Restaurant Group, Inc. (hereinafter “Defendant Panda”) is a foreign corporation doing business in Oklahoma County, Oklahoma.

7. Defendant Panda leases the Premises and operates a Panda Express Restaurant on the Premises.

8. Defendant Praxis Development, Inc. (hereinafter “Defendant Praxis”) is a domestic corporation located in Oklahoma County, Oklahoma.

9. Defendant Praxis is the real estate manager of the Premises.

10. Defendant MAR Development, LLC (hereinafter ‘Defendant MAR”) is a domestic limited liability company located in Oklahoma County, Oklahoma.

11. Defendant MAR owns the Premises.

COUNT 1-NEGLIGENCE BY DEFENDANT PANDA RESTAURANT GROUP INC.
Plaintiffs incorporate paragraphs 1-11 as though set forth herein in full.

12. Defendant Panda knew or should have known that the ice on the roof presented an unreasonable danger to restaurant patrons.

13. Plaintiffs were invitees to which Defendant Panda owed a duty to exercise “reasonable care” in keeping the premises safe for all invitees.

14. Defendant Panda breached its duty and as a result Plaintiffs have suffered great pain, suffering, and injuries for which Plaintiffs have incuned expenses for medical attention and hospitalization. Plaintiffs have also suffered temporary and permanent physical impairment, which has resulted in loss of wages and loss of future earning capacity.

15. As a direct and proximate result of Defendant Panda’s breach of its duty to Plaintiffs, Plaintiffs have suffered damages in excess of $75,000.

COUNT 2- NEGLIGENCE BY DEFENDANT PRAxis DEVELOPMENT INC.

Plaintiffs incorporate paragraphs 1-15 as though set forth herein in full.

16- Plaintiffs’ were invitees to which Defendant Praxis owed a duty to exercise “reasonable care” in keeping the premises safe for all invitees.

17. Defendant Praxis had a duty to maintain the restaurant building to prevent unreasonable danger to invitees.

18. Defendant Praxis negligently maintained this building in such a way as to create an unreasonable risk of the kind of injuries suffered by Plaintiff.

19. Defendant Praxis breached its duty and as a result Plaintiffs have suffered great pain, suffering, and injuries for which Plaintiffs have incurred expenses for medical attention and hospitalization. Plaintiffs have also suffered temporary and permanent physical impairment, which has resulted in loss of wages and loss of future earning capacity.

20. As a direct and proximate result of Defendant Praxis’s breach of its duty to Plaintiffs, Plaintiffs have suffered damages in excess of $75,000.

COUNT 3-NEGLIGENCE BY DEFENDANT MAR DEVELOPMENT LLC

Plaintiffs incorporate paragraphs 1-20 as though set forth herein in full.

21. Plaintiffs’ were invitees to which Defendant Mar owed a duty to exercise “reasonable care” in keeping the premises safe for all invitees.

22. Defendant Mar had a duty to maintain the restaurant building to prevent unreasonable danger to invitees.

23. Defendant Mar negligently maintained this building in such a way as to create an unreasonable risk of the kind of injuries suffered by Plaintiff.

24. Defendant Mar breached its duty and as a result Plaintiffs have suffered great pain, suffering, and injuries for which Plaintiffs have incurred expenses for medical attention and hospitalization. Plaintiffs have also suffered temporary and pennanent physical impairment, which has resulted in loss of wages and loss of future earning capacity.

25. As a direct and proximate result of Defendant Mar’s breach of its duty to Plaintiffs, Plaintiffs have suffered damages in excess of $75,000.

COUNT 4— RE5 IPSA LOQUITUR BY DEFENDANT PANDA RESTAURANT GROUP INC.

Plaintiffs incorporate paragraphs 1-25 as though set forth herein in full.

26. As alleged above, injuries of the kind suffered by Plaintiffs do not usually occur absent a failure to exercise due care by the party or parties controlling the instrumentality which caused the injury.

27. Defendant Panda had control of the Premises, and massive sheets of ice do not generally fall on persons absent some failure to maintain the Premises in a reasonably safe condition.

28. As a direct and proximate result of Defendant Panda’s breach, Plaintiffs have suffered damages in excess of $75,000.
COUNT 5— RES IPSA LOOUITUR BY DEFENDANT PRAxis DEVELOPMENT INC.

Plaintiffs incorporate paragraphs 1-28 as though set forth herein in full.

29. As alleged above, injuries of the kind suffered by Plaintiffs do not usually occur absent a failure to exercise due care by the party or parties controlling the instrumentality which caused the injury.

30. Defendant Praxis had control of the Premises, and massive sheets of ice do not generally fall on persons absent some failure to maintain the Premises in a reasonably safe condition.

31. As a direct and proximate result of Defendant Praxis’s breach, Plaintiffs have suffered damages in excess of $75,000.

COUNT 6— RES IPSA LOOUITUR BY DEFENDANT MAR DEVELOPMENT LLC

Plaintiffs incorporate paragraphs 1-31 as though set forth herein in ffill.

32. As alleged above, injuries of the kind suffered by Plaintiffs do not usually occur absent a failure to exercise due care by the party or pasties controlling the instrumentality which caused the injury.

33. Defendant MAR had control over the Premises, and massive sheets of ice do not generally fall on persons absent some failure to maintain the Premises in a reasonably safe condition.

34. As a direct and proximate result of Defendant MAR’ s breach, Plaintiffs have suffered damages in excess of $75,000.

Defendant Praxis Development, Inc and Mars Development, LLC appeared and answered as follows:

1. These Defendants are without sufficient information to admit or deny the contained in Paragraphs 1 and 2 of Plaintiffs’ Amended Petition, therefore, same are denied.

2. The allegations contained in Paragraph 3 of Plaintiffs’ Amended Petition are denied. These Defendants demand strict proof thereof.


3. These Defendants are unable to admit or deny the allegations contained in 4 of Plaintiffs’ Amended Petition, therefore, same are denied.


4. These Defendants are unable to admit or deny the allegations contained in 5 of Plaintiffs’ Amended Petition, therefore, same are denied at this time.

5. These Defendants are without sufficient information to admit or deny the allegations contained in Paragraphs 6 and 7 of Plaintiffs’ Amended Petition, therefore, same are denied at this time.

6. The allegations contained in Paragraphs 8-il of Plaintiffs’ Amended Petition are admitted.

7. These Defendants are without sufficient information to admit or deny the allegations contained in Paragraphs 12-15 of Plaintiffs’ Amended Petition, therefore, same are denied.

8. These Defendants deny the allegations contained in Paragraphs 16-25 of Plaintiffs’ Amended Petition. These Defendants demand strict proof thereof.

9. These Defendants are without sufficient information to admit or deny the allegations contained in Paragraphs 26-28 of Plaintiffs’ Amended Petition, therefore, same are denied.

10. These Defendants deny the allegations contained in Paragraphs 29-34 of Plaintiffs’ Amended Petition. These Defendants demand strict proof thereof

AFFIRMATIVE DEFENSES

1. These Defendants deny that they or their agents, servants or employees were guilty of negligence herein.

2. Should these Defendants be found guilty of negligence, which is not admitted but is expressly denied, these Defendants state that their negligence was not the proximate cause of Plaintiffs’ alleged injury and damage, if any.

3. Should these Defendants be found guilty of negligence, which is not admitted but is expressly denied, these Defendants state that Plaintiffs were likewise guilty of negligence and that the negligence of Plaintiffs exceeded that of these Defendants, thereby precluding Plaintiffs from recovering herein.

4. These Defendants state that the proximate cause of Plaintiffs’ alleged injury and damage, if any, was the negligence of third parties over whom these Defendants had no control.

5. The incident described in Plaintiffs’ Amended Petition came about as an unavoidable accident from the standpoint of these Defendants.

6. Should these Defendants be found guilty of negligence, which is not admitted but is expressly denied, these Defendants state that their negligence merely established a condition. These Defendants further state that said condition was not the proximate cause of Plaintiffs’ alleged injury and damage, if any. These Defendants state that Plaintiffs had the last clear chance to avoid said accident and that Plaintiffs’ negligence in failing to do so was the proximate cause of Plaintiffs’ alleged injury and damage, if any.

7. Plaintiffs had knowledge and appreciated certain dangers and risks involved in the activity in which they were participating at the time of the incident in question. That they voluntarily exposed themselves to those dangers and risks. That those very dangers and risks were the proximate cause of Plaintiffs’ alleged injury and damage, if any, thereby precluding Plaintiffs from recovering herein.

8. Plaintiffs’ action is barred by the statute of limitations.

9. Plaintiffs’ Amended Petition fails to state a cause of action against these Defendants.

10. Plaintiffs’ Amended Petition fails to state a cause of action for attorney’s fees.

11. For further defense, these Defendants allege and state that any injuries and damages complained of in Plaintiffs’ Amended Petition are the natural, probable and proximate result of the physical condition, anatomy, and physiology of the Plaintiffs, and any injuries or damages which the Plaintiffs may have sustained were not the result of any acts or omissions on the part of these Defendants; that any injuries or damages sustained by the Plaintiffs were the result of natural and nonnal occurrences within the body of the Naintiffs over which these Defendants had no control, and for which these Defendants are not responsible.

12. These Defendants specifically deny that a defect existed in the premises at the time of Plaintiffs’ alleged accident.

13. These Defendants deny Plaintiffs were business invitees upon these Defendants’ premises and therefore denies that these Defendants owed any duty to the Plaintiffs to keep the premises involved in a reasonably safe condition.

14. By way of further defense and pleadin.g in the alternative, the condition about which Plaintiffs complain was not there for a sufficient amount of time for these Defendants to effectuate its removal or warn of its presence.

15. The condition about which Plaintiffs complain was a natural accumulation of ice or snow and did not exist due to the negligence of these Defendants therefore, Plaintiffs are precluded from recovering against these Defendants.

16. Plaintiffs’ comparative negligence bars any action against these Defendants.

17. These Defendants are entitled to a credit or set off for any previous payments made to Plaintiffs.

18. These Defendants deny that the instrumentality at issue was under the exclusive control and management of these Defendants.

19. These Defendants deny that the event was the kind which ordinarily does not occur in the absence of negligence.

20. These Defendants deny that any of the acts or omissions complained of by the Plaintiffs were as a result of those acts or omissions occurring under these Defendants’ exclusive control and/or management.

21. These Defendants deny that Plaintiffs’ are entitled to any instruction under the theory of res ipsa loquitor.

22. Act of God.

23. These Defendants reserve the right to amend or modify their Answer upon the completion of discovery.

WHEREFORE, premises considered, Defendants Praxis Development Inc. and MAR Development, LLC pray that they be dismissed
from this cause of action with their costs and attomeys fees expended herein and for any and all other relief as the Court may deem just and proper.

Defendant Panda Restaurant Group, Inc. appeared and answered as follows:

1. This Defendant denies generally and specifically each and every material allegation contained in the Amended Petition of the Plaintiffs except that which may be hereinafter admitted.

2. The facts and allegations set forth in Paragraphs 4, 5, 6 and 7 of Plaintiffs’ Amended Petition are admitted.

3. The facts and allegations set forth in Paragraphs 12, 13, 14, 15, 26, 27, and 28 of Plaintiffs’ Amended Petition are denied and this Defendant demands proof thereof by a preponderance of the evidence.

4. This Defendant is without sufficient information to either admit or deny the facts and allegations set forth in Paragraph 1, 2, 3, 8, 9, 10, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 29, 30, 31, 32, 33 and 34 of Plaintiffs’ Amended Petition and thus denies same and demands proof thereof by a preponderance of the evidence.

AFFIRMATIVE DEFENSES

5. For further answer and defense, this Defendant states that Plaintiffs’ occurrence was an unavoidable accident, casualty, and/or misfortune occurring without fault on the part of this Defendant.

6. For further answer and defense, this Defendant states that if it was guilty of negligence, which it does not admit, but specifically denies, that the Plaintiffs, Cynthia Hatchett and Donald Yardley, were guilty of comparative negligence to such an extent as to bar their recovery under Oklahoma law of comparative negligence.

7. For further answer and defense, should this Defendant be found negligent, which is not admitted but is expressly denied, this Defendant states that its negligence was not the proximate cause of Plaintiffst alleged injuries and damage.

8. For further answer and defense, this Defendant states that Plaintiffs’ occurrence was proximately caused by the negligence of third parties over whom this Defendant had no control, and for those acts this Defendant is not responsible. Accordingly, this Defendant reserves the right to pursue any third-party and/or cross-claims.

9. For further answer and defense, the Plaintiffs’ Petition fails to state a claim against this Defendant for which relief can be granted.

10. For further answer and defense, this Defendant would state that the Plaintiffs assumed the risk of injury resulting from the negligence of this Defendant, if any, by voluntarily and unreasonably exposing themselves to injury with the knowledge and appreciation of the danger and risk involved.

11. In the event that this Defendant is found liable to the Plaintiffs herein, any such liability being expressly denied, then this Defendant states that it is entitled to contribution, credit and/or indemnity as provided by applicable law and statutes.

12. For further answer and defense, this Defendant is entitled to a credit or offset for all monies or consideration paid to the Plaintiffs by virtue of any type or form of settlement agreement entered into by and between the Plaintiffs and any Defendant herein or any other person or entity not a party to this litigation.

13. For further answer and defense, should this Defendant be found guilty of negligence, which is not admitted but is expressly denied, this Defendant states that its negligence merely established a condition. This Defendant further states that said condition was not the proximate cause of Plaintiffs’ alleged injury and damage, if any. This Defendant states that Plaintiff had the last clear chance to avoid said accident and that Plaintiffs’ negligence in failing to do so was the proximate cause of Plaintiffs’ alleged injury and damage, if any.

14. For fhrther answer and defense, Plaintiffs had knowledge and appreciated certain dangers and risks involved in the activity in which they were participating at the time of the incident in question. The Plaintiffs voluntarily exposed themselves to those dangers and risks. Those very dangers and risks were the proximate cause of Plaintiffs’ alleged injury and damage, if any, thereby preclude Plaintiffs from recovering herein.

15. For thither answer and defense, Plaintiffs’ Amended Petition fails to state a cause of action for attorney’s fees.

16. For further answer and defense, and pleading in the alternative, the condition about which the Plaintiffs complain was not there for a sufficient amount of time for this Defendant to effectuate its removal or warn of its presence.

17. For further answer and defense, the condition about which Plaintiffs complain was a natural accumulation of ice or snow and did not exist due to the negligence of this Defendant. Thus, the Plaintiffs are precluded from recovering against this Defendant.

18. This Defendant denies that the instrumentality at issue was under its exclusive control and management.

19, This Defendant denies that the event at issue was the kind which ordinarily does not occur in the absence of negligence.

20. For further answer and defense, this Defendant reserves the right to plead additional affirmative defenses upon the completion of discovery and reserves its right to file a third-party petition and/or cross-claim herein.
WHEREFORE, premises considered, Defendant, Panda Restaurant Group, Inc., prays for judgment in its favor and against the Plaintiffs, together with its costs of this action and such other and further relief as the Court deems is just and equitable.

CROSS-CLAIM

Comes Now the Defendant, Panda Restaurant Group, Inc. and for its Cross-Claim against Defendants, Praxis Development, Inc. and MAR Development, LLC, states and alleges as follows:

1. Plaintiffs in the above-action have alleged that they were injured on February 1,
2010, outside of the Panda Express restaurant located at 500 S. MacArthur in Oklahoma City, Oklahoma by ice that fell from the roof of the building owned and maintained by the Defendants, Praxis Development, Inc. and Mar Development, LLC.

2. Defendant, Panda Restaurant Group, Inc. specifically denies that it, or any of its employees committed any act of negligence which caused the Plaintiffs’ injury and specifically denies that it had any duty to maintain the roof of the leased premises from where the ice reportedly fell. However, should Plaintiffs obtain judgment against Panda Restaurant Group, Inc., Panda Restaurant Group, Inc. states that it is entitled to indemnity and/or contribution from Defendants, Praxis Development, Inc. and Mar Development, LLC, for any amounts it is required to pay on Plaintiffs’ claim as a result of the February 1, 2010 accident.

Wherefore, Defendant, Panda Restaurant Group, Inc. requests the Court enter judgment in its favor and against the Defendant, Praxis Development, Inc. and Mar Development, LLC, for any amount adjudged against Defendant, Panda Restaurant Group, Inc. and for any costs, attomey fees and or any other relief as allowed by law.

Defendant Panda Restaurant Group, Inc. moved for summary judgment in its favor stating:

COMES NOW Defendant, Panda Restaurant Group, Inc. (“Panda”), by and through its attorney Ann E. Allison of Rhodes, Hieronymus, Jones, Tucker & Gable PLLC, and hereby moves this Court to enter summary adjudication in its favor as a matter of law pursuant to Rule 13 of the Rules for the District Courts of Oklahoma and 12 0.S. § 2056. In further support of its Motion for Summary Judgment, Panda shows the Court as follows:

I. INTRODUCTION

After finishing their lunch at Panda in the MacArthur Shopping Center (“Shopping Center”), Plaintiffs Cynthia Hatchett and Donald Yardley exited the restaurant in the Shopping Center to walk back to their vehicle. Upon exiting Panda, the Plaintiffs claim that ice from the roof of the Shopping Center fell and hit them, causing injury. Plaintiffs have brought claims for premises liability against Panda, alleging that Panda failed to warn or make safe its premises and its failure to do so resulted in their injuries. However, the place where the Plaintiffs’ injuries allegedly arose precludes any claim for premises liability against Panda. The Shopping Center is owned by Mar Development, L.L.C., which then leases a space to Panda (as well as various other tenants). The roof of the Shopping Center is under the exclusive control of Mar Development, and per the lease agreement, Mar Development has the sole duty to inspect and maintain the roof and make sure the roof is safe for persons at the Shopping Center. Since Panda had no control over the roof of the Shopping Center, a duty of care to make sure its invitees were warned of an alleged danger arising from the roof cannot legally exist between Plaintiffs and Panda.

Panda is entitled to judgment as a matter of law on Plaintiffs’ claims because it cannot be liable for alleged damages in areas it has no control. Additionally, the Plaintiffs have contradicted their claims by testifying that they were aware of the snow and icy conditions and of the potential that ice could fall from the roof—showing the Court that the dangers were open and obvious to all. There are no material facts in dispute regarding the lease agreement or the testimony of the Plaintiffs. And, as Panda did not owe a duty of care to warn of alleged falling ice from the Shopping Center roof, Plaintiffs cannot hold Panda liable for their damages. Summary judgment is appropriate as to Plaintiffs’ claims against Panda.

II. STATEMENT OF UNDISPUTED MATERIAL FACTS

For purposes of summary judgment, the following facts are undisputed:

1. Panda leased space from Mar Development for the property described in the lease
as 500 S. MacArthur Shopping Center, Oklahoma City, Oklahoma. Ex. 1, Panda Lease, at 1.

2. The premises of the Shopping Center space leased from Mar Development is described in the lease as follows
E. Premises: The portion of the property in the City of Oklahoma City and State of Oklahoma, commonly known as 500 South MacArthur Boulevard, having approximately thirty feet (30’) of frontage along MacArthur and a depth of approximately eight feet (80’); the northernmost space in the Shopping Center containing approximately 2,400 square feet, including a drivethru service window, together with, subject to the Restrictions, the right of Tenant, its employees, invitees, customers and agents to use in common with Landlord and the other tenants of the Shopping Center (a) all rights, easements and appurtenances belonging or appertaining thereto (including without limitation, full reciprocal parking and ingress and egress rights in and appurtenant to the Shopping Center, as shown on the attached Exhibit “A”), (b) all right, title and interest of Landlord in and to any and all roads, streets, alleys and ways, bounding such property, and (c) all improvements thereon as shown in Exhibit “B”) (collectively, the “Premises”).
Ex. 1, Panda Lease, at 2.

3. Article 7.2 of the lease provides the Landlord’s obligations.

7.2 Obligation of Landlord to Repair and Maintain. Subject to reimbursement pursuant to Section 10.2, Landlord shall keep in good order, condition and repair, maintain and replace, as necessary, the structural elements of the Premises, Building and Shopping Center, including without limitation the roof, concrete slab, façade, footings, foundation, pavement, all Landlord supplied fixtures, exterior walls and all other structural portions of the Premises and Building . . . and all landscaping, driveways, parking lots, fences and signs located in the Shopping Center and sidewalks and parkways adjacent to the Shopping Center. Landlord shall have no responsibly for the Outdoor Area. Landlord shall be responsible for latent defects in Landlord’s Work or the structural components of the Premises. Landlord shall at all times maintain the Shopping Center in accordance with standards appropriate for similar shopping centers in the Oklahoma City area.

Ex. 1, Panda Lease, at 11 (emphasis added).

4. Plaintiff Donald Yardley testified that the parking lot of the Shopping Center was icy. “Q. Do you remember if there was any ice on the sidewalk in front of the door to the Panda as you went in the first time? A. I don’t remember seeing any ice on the sidewalk. Only in the parking lot.” Ex. 2, Deposition of Donald Yardley, at 101.

5. Mr. Yardley testified that the accident occurred two days after a large ice store had passed through Oklahoma City. Ex. 2, Deposition of Donald Yardley, at 52-53 (“Q. Okay.
How long before February 1St was it that this weather event occurred? A. I would say probably two days before. . . . Q. And it takes a pretty significant weather event to shut that place down? A. Yeah. It was a good ice storm.”).

6. Residual snow and ice were left in piles in parking lots across Oklahoma City. Ex. 2, Deposition of Donald Yardley, at 54 (“Q. But was snow and ice piled up in big piles? A.
There was a residual, snow and ice, yes.”).

7. Mr. Yardley testified he was aware that snow and ice would fall off buildings after a large ice store. “Q. Being from the Midwest, you’ve seen plenty of ice and snow? A. Yes, I have. Q. Have you ever seen ice or snow fall off of a roof during a freeze or a thaw cycle? A. Absolutely.” Ex. 2, Deposition of Donald Yardley, at 57. And Mr. Yardley was
aware of ice on the roof of the Shopping Center. “Q. All right. So for that reason, on February 1st, you were obviously aware that if there was any ice sitting on any roof that there was obviously potential for it to fall off-- A. Correct.” Ex. 2, Deposition of Donald Yardley, at 63.

8. Plaintiff Cynthia Hatchett testified that she was aware of the icy conditions of the
Shopping Center. “Q. Did you have any problems or issues negotiating the parking lot when you
walked in to Panda? A. I just remember him holding on to me, or I’m holding on to his arm. Q.
So the parking lot was still icy? A. Yes. Q. As were a lot of other things, I assume? A. Yes. .
.Q. . . . In other words, was it still an event? A. The ice storm? Q. Yes. A. Yes.” Ex. 3,
Deposition of Cynthia Hatchett, at 67.

ARGUMENT AND AUTHORITIES

1. Standard of Review for Summary Judgment

“A motion for summary judgment is a request for an adjudication on the merits.” Union Oil Co. v. Rd. of Equalization, 1996 OK 40, ¶ 10, 913 P.2d 1330, 1333. The Oklahoma Supreme Court has held that “[s]ummary judgment is proper only when it appears that there is no substantial controversy as to any material fact, and that one of the parties is entitled to judgment as a matter of law.” Seitsinger v. Dockum Pontiac Inc., 1995 OK 29, ¶ 7, 894 P.2d 1077, 1079; see 12 O.S., ch. 2 app., Rule 13; 12 O.S. § 2056. “The moving party has the initial burden of showing that there is no substantial controversy as to any material fact.” Rowers v. Wimberley, 1997 OK 24, ¶ 14, 933 P.2d 312, 315. “[T]he evidentiary materials supporting the motion [must show] all material facts are addressed and are supported by admissible evidence.” Union Oil, 1996 OK 40, ¶ 12, 913 P.2d at 1334. The responding party “may not rely on bald allegations or await trial to produce evidentiary materials when faced with a motion for summary judgment.” Everhome Mortg. Co. v. Robey, 2006 OK CIV APP 64, ¶ 10, 136 P.3d 1066, 1069; see Weldon v. Dunn, 1988 OK 80, ¶ 8, 962 P.2d 1273, 1275-76 (“Mere allegations in a pleading unsupported by evidentiary material in response to a motion for summary judgment will not defeat the motion if it is otherwise good.”). Summary judgment should be granted by a court when “there are no issues of material fact in a case.” Jordan v. Jordan, 2006 OK 88, ¶ 17, 151 P.3d 117, 121.

2. Allegations of the Plaintiffs

Plaintiffs claim they were invitees of Panda. Plaintiffs aver that as they exited Panda, ice from the roof fell and hit both Plaintiffs, causing their injuries. Plaintiffs also bring a claim of res ipsa loquitur, claiming that Panda had control of the premises, the accident which occurred would not normally occur without negligence on the part of Panda, and Plaintiffs’ injuries resulted from that negligence.

3. Panda Had No Duty to Maintain the Roof and Owed No Duty of Care to Plaintiffs

A negligence claim requires “first, that the defendant had a duty to protect the plaintiff from injury; second, that the defendant failed to properly exercise or perform that duty, and third, that the defendant’s failure to properly exercise or perform that duty caused the plaintiff’s injury.” Craft v. Graebel-Okla. Movers, Inc., 2007 OK 79, ¶ 27, 178 P.3d 170, 178. The “threshold question in any negligence action” is whether the defendant owed a duty of care to the plaintiff. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 12, 160 P.3d 959, 964. “A duty of care is an obligation owed by one person to act so as not to cause harm to another.” Id. “Determining whether a plaintiff is owed a duty of care in a negligence action is a question of law, and if no such duty is owed, ‘there can be no liability for negligence as a matter of law.” Estate of Linda I Barclay Doyle v. Sprint/Nextel Corp., 2011 OK CIV APP 22, ¶ 8, 248 P.3d 947, 949 (quoting Lowery, 2007 OK 38, ¶ 12, 160 P.3d at 964). Plaintiffs cannot recover against Panda because Panda did not build, own or maintain the roof. Further, Panda had no prior knowledge of any ice falling from the Shopping Center’s roof. The duty to warn of an unreasonable danger allegedly presented by the Shopping Center’s roof rested solely with Mar Development. As Panda did not owe a duty of care to Plaintiffs, their claims for negligence fail.
Where a lessee does not have control of a part of the premises under a lease, the lessee does not owe a duty of care to warn persons of its dangerous condition—that duty lies with the owner of the property. Strader-Faiazi v. Edmond Fourth of July Festivals, 2001 OK CIV APP 93, 28 P.3d 1161, 1162. The rule, as outlined in Strader-Faiazi, states “that a lessee is liable to a third party injured on the leased premises only when the lessee (1) has control of the premises, (2) has had a reasonable opportunity to inspect the premises, and (3) could have discovered the defect upon inspection.” Id. at 1162-63; see Schiender v. Andy Jansen Company, 1962 OK 156, 380 P.2d 523 (Okla. 1963) (Syllabus 3); Sheffield v. Link, 550 F. Supp. 11, 12 (W.D. Okla. 1981). The lessor of the property, Mar Development, per the Lease Agreement, maintained control of its roof; because Panda did not have control of the roof, it had no duty to warn its invitees of danger posed by it

The Strader-Faiazi plaintiff brought a premises liability claim against the defendant who leased the football stadium on the campus of the University of Central Oklahoma (UCO) for a fireworks display. 2001 OK CIV APP 93, 28 P.3d at 1162. On her way to the stadium, the plaintiff was walking across the UCO campus when she stepped in a grass-covered hole and injured her ankle. Id. The defendant moved for summary judgment asserting it had no duty to maintain the grounds around the stadium. Id. The Court of Civil Appeals upheld the trial court’s grant of summary judgment, finding that the defendant lacked control over the premises where the plaintiff was injured. Id. at 1163 (“[T]here is no evidence that UCO relinquished control of the campus to Defendant as to give rise to Defendant’s duty to inspect and warn or remedy the condition, even if the hidden condition could have been discovered.”). The court reasoned that “in a suit for personal injuries, even if the defendant is careless or negligent in some manner, unless the defendant’s negligence causes the complained-of injury, it is the trial court’s duty to render judgment for the defendant.” Id. (citing Schiender, 1962 OK 156, 380 P.2d at 544. The Court of Civil Appeals holding focused on the defendant’s “lack of control over either the leased premises or the remainder of the UCO campus, the lack of reasonable opportunity to inspect even if control had been given, and the hidden nature of the defect” to affirm summary judgment. Id. If a landlord has not given over control of part of the premises to a tenant, the tenant does not have a duty of care to warn its invitees of hidden dangers it has no ability to find or control.

Where a lease agreement conveys control over part of the premises to one party, the other party has no duty arising from the premises which it has no control of. Scheffield v. Link, 550 F. Supp. 11, 12 (W.D. Okia. 1982). The Sheffield plaintiff brought an action to recover damages for personal injuries sustained from an amusement ride at the Oklahoma State Fair. She sued the City of Oklahoma City, owner of the fairgrounds, and the State Fair of Oklahoma, Inc., who leased the fairgrounds for a period of thirty days—the State Fair also assumed exclusive possession, maintenance, and operation of the fairgrounds during that period of time in the lease. Id. at 11. The court held that the lease agreement between Oklahoma City and the State Fair revealed that the State Fair had exclusive control over the fairgrounds premises, although Defendant Oklahoma City still provided certain services to the premises such as maintenance of the streets and fire and police protection. Id. at 12. And because the State Fair had exclusive control of the premises where the injury occurred, Oklahoma City owed no duty to the plaintiff. Id.

Mar Development did not give over control of the Shopping Center roof to Panda. Under the lease, Mar Development must “keep in good order, condition and repair, maintain and replace, as necessary, . . . without limitation the roof. . . .“ Ex. 1, Panda Lease, at 11. Panda does not have control of the Shopping Center roof; nor can Panda repair or maintain the roof. Under the precedent of Strader-Faiazi, Panda did not owe a duty of care to the Plaintiffs to warn of an alleged danger because Panda could not exercise control over the premises which the condition arose from. Panda is therefore entitled to judgment as a matter of law.

4. Accumulated Ice and Snow Are Open and Obvious Conditions which all Invitees Should Be Aware

Plaintiffs were invitees of Panda. And while storekeepers and landowners have specific duties toward invitees, “a storekeeper is not an insurer of the safety of its invitees.” Safe way Stores, Inc. v. McCoy, 1962 OK 194, ¶ 7, 376 P.2d 285, 286. An invitee must assume “all normal duties or ordinary risks attendant upon the use of the premises.” Id. ¶ 8, 376 P.2d at 286 (quoting City of Tulsa v. Harman, 1931 OK 73, 299 P. 462 (syllabi 3)). An owner is 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.” Id. An invitee is owed no duty to be warned of open and obvious dangers. See Williams, 1998 OK 42, ¶ 6, 958 P.2d at 1284 (“The invitor has no duty to protect against open and obvious dangers.”); Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 10, 951 P.2d 1079, 1083-84 (“Even vis-à-vis an invitee, to whom a landowner owes the highest duty.. . the law does not require that the landowner protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered.”); Nicholson v. Tacker, 1973 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.”). The question of whether a condition is open and obvious, and thus whether a duty is owed, may be resolved at the summary judgment stage. See Williams, 958 P.2d 1285.

The Oklahoma Supreme Court has held that an invitee knows or should know of the dangers from “general weather conditions” as such dangers are “universally known.” Buck v. Del City Apartments, Inc., 19670K 81, 431 P.2d 360, 365-66.

The Buck Court held

Where there is no act on the part of the owner or occupant of the premises creating a greater hazard than that brought about by natural causes, dangers created by the elements, such as the forming of ice and the falling of snow, are universally known, and all persons on the property are expected to assume the burden of protecting themselves from them. . .

Id. at 365. Further Oklahoma Supreme Court precedent has viewed the Buck opinion as holding “that an accumulation of ice or snow, visible upon due care and circumspection, does not constitute a hidden danger such that the premises owner is under a duty to give warning. Brown v. Alliance Real Estate Group, 1999 OK 7,976 P.2d 1043, 1044.
General weather conditions include ice and snow deposited from a massive ice storm two days before the Plaintiffs suffered their alleged injuries. Both Plaintiffs testified that they were aware of ice in the parking lot of the Shopping Center and the icy conditions around the Shopping Center. Ex. 2, Deposition of Donald Yardley, at 53-54 ; Ex. 3, Deposition of Cynthia Hatchett, at 67. And Mr. Yardley was aware of ice and snow on the roof of the Shopping Center. Ex. 2, Deposition of Donald Yardley, at 63. The conditions on the roof of the Shopping Center were open and obvious to all patrons. The alleged dangers posed by the ice were not hidden in any way.

Where an invitee is aware of a condition, the invitor does not owe a duty of care to the invitee to warn of the alleged dangerous condition. See Kastning v. Melvin Simon & Assoc., Inc., 1994 OK 68, ¶J 2-3, 7, 876 P.2d 239, 239-40 (finding the plaintiff was aware of any hazard posed by a puddle of water as evidenced by the fact that plaintiff stepped over the water, used the toilet, and then fell on the same puddle of water while exiting the restroom); Williams v. Tulsa Motels, 1998 OK 42, ¶ 7, 958 P.2d 1282, 1284-85(finding that a statement by the plaintiff that he thought he saw a maid mopping the floor and stepped aside to allow the plaintiff to pass was enough to show that the plaintiff knew or should have known the floor was still wet and a dangerous condition); Southerland v. Wal-Mart Stores, Inc., 1993 OK CIV APP 12, ¶ 4, 848 P.2d 68, 69 (holding that a bright orange extension cord is patently obvious to all). Plaintiffs were aware that ice and snow had accumulated on and around the Shopping Center. Plaintiffs were also aware of the risks posed by the ice and snow. The ice and snow which had accumulated on the roof of the Shopping Center were open and obvious to all invitees—under Oklahoma law, Panda does not owe a duty of care to warn of dangers which are open and obvious.

The accepted holding across jurisdictions for falling ice and snow from roofs is that a invitor need not warn the invitee because the potential danger is obvious. The Western District of Michigan stated that
[p]resently, Michigan case law does not authorize this court to impose on property-owners tort liability for ‘failing’ to prevent something so obvious, common and predictable as ice accumulating on, and occasionally falling from, a roof in the winter months in Michigan. That principle does not change whether the roof in question is flat, sloped, or, as is the case here, both flat and sloped. Such an onerous new requirement must be imposed, if at all, only by the Michigan Supreme Court or the people’s elected representatives in the Michigan Legislature.
Leys v. Lowe’s Home Ctrs., Inc., 664 F. Supp. 2d 828, 839 (W.D. Mich. 2009). The Ohio Court of Appeals ruled along similar reasoning. See Bailey v. St. Vincent DePaul Church, 1997 Ohio App. LEXIS 1884 (Ohio Ct. App. May 8, 1997). Plaintiffs were both aware of the icy conditions of the Shopping Center. Mr. Yardley even testified that he was aware ice could fall from the Shopping Center roof. Under Oklahoma precedent, ice falling from a roof is not a hidden danger. Therefore, Panda did not have a duty to warn its invitees of falling ice from the Shopping Center roof, and it is entitled to judgment as a matter of law.

5. There Is a Complete Absence of Evidence that Panda Had Knowledge of Ice Falling from the Shopping Center Roof

There is an absence of evidence that Panda was on notice or had knowledge that ice would fall from the Shopping Center roof. A plaintiff is required to prove notice to hold an invitor liable in a premises liability case. The Oklahoma Supreme Court has defined that requirement as follows:

“The pivot of liability sought to be imposed here on the Owner is timely notice of danger. An invitor cannot be held responsible unless it be shown that he/she had notice or could be charged with gaining knowledge of the condition in time sufficient to effect its removal or to give warning of its presence.” Lingerfelt v. Winn-Dixie Tex., Inc., 1982 OK 44, 645 P.2d 485, 487 (quoting Rogers v. Hennessee, 602 P.2d 1033 (Okla. 1979)). In fact, the Court has held that “[a]bsent evidence the invitor created the condition or that he/she failed to remove a peril known to exists, a demur must put an end to a ‘slip and fall’ litigation based on negligence.” Rogers, 602 P.2d at 1035. In premises-liability cases, the plaintiff must show “the storekeeper negligently failed to inspect or maintain the premises, or did not use ordinary care in policing the premises.” Glover v. Montgomery Ward & Co., 1974 OK CIV APP 33, 536 P.2d 401, 408. And where a defendant does not have notice of the dangerous condition, it cannot be held liable for a guest’s injuries. Kassick v. Spicer, 1971 OK 131, 490 P.2d 251, 254. Not only are the Plaintiffs unable to show that Panda failed to inspect or maintain the premises—a fact that is impossible to show as Mar Development had legal control over the roof, and Panda was unable to maintain or inspect the roof over the Shopping Center—there is also an absence of evidence to show that Panda had knowledge or should have had knowledge that ice would fall off the roof of the Shopping Center. Because it cannot be established that Panda had knowledge or should have had knowledge the ice would fall from the Shopping Center roof, Panda requests the Court enter summary judgment in its favor.

6. Without a Duty of Care, the Doctrine of Res Ipsa Loquitur Is Inapplicable

Res Ipsa Loquitur recognizes that negligence and causation may be established with circumstantial evidence to assist a plaintiff in his or her cause for a prima fade case. When a plaintiff fails to establish a duty of care, the doctrine of res ipsa loquitur is inapposite. See Williams v. New Beginnings Residential Care Home, 2009 OK CIV APP 75, 225 P.3d 17, 26 (“Once a duty is established, res ipsa loquitur aids the plaintiff to make a prima facie case for negligence against the defendant in instances where . . . proof of why the accident happened.
is beyond the power of the plaintiff but should be in the power of the defendant.”) (quoting St. John’s Hosp. & Sch. Of Nursing, Inc. v Chapman, 1967 OK 126, 434 P.2d 160, 166-37). “Whether a case is fit for the application of res ipsa loquitur presents a question of law, and it is the court’s function to determine if a given inference may be drawn from a proffered set of circumstances.” Id.

Courts have refused to apply the doctrine of res ipsa loquitur to falling snow or ice. See McLaughlin v. Moura, 754 A.2d 95 (R.I. 2000); McGee v. Boston Elevated Ry. Co., 73 N.E. 657 (Mass. 1905); Gosselin v. Colonial Shopping Ctr., 2009 Mass. App. Div. LEXIS 46, at *8 (Mass. Ct. App. 2009). Plaintiffs allege that because Panda had control of the premises, it is entitled to an instruction on res ipsa loquitur as proof of negligence and causation on the part of Panda. But without establishing a duty of care exists, the purpose of res ipsa loquitur is destroyed. The Court should strike Plaintiffs’ allegations under the doctrine of res ipsa loquitur as Panda did not have control of the Shopping Center roof’; nor do courts recognize that falling snow and ice should receive an instruction for res ipsa loquitur.

Conclusion

Settled and dismissed with prejudice.Oklahoma law has established that if a tenant has no control over a premises which allegedly causes injury, a duty of care from the tenant to the injured party cannot arise. Panda had no control over the roof of the Shopping Center. Plaintiffs cannot be allowed to proceed with claims that are not legally cognizable. Plaintiffs also bear the burden to show that the alleged danger was hidden from them, but their own testimony contradicts their claims. Further, Plaintiffs have failed to produce any evidence that Panda had had knowledge that ice would fall from the Shopping Center roof. As there is no genuine issue as to the fact that the Panda had control over the Shopping Center roof, summary judgment is proper.

WHEREFORE, Defendant Panda Restaurant Group, Inc. prays the Court to grant its Motion for Summary Judgment and to enter judgment in its favor as a matter of law against Plaintiffs.

Outcome: Settled and dismissed with prejudice.

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