Date: 04-18-2013

Case Style: Joyce Haliford v. Edmond Public Schools

Case Number: CJ-2012-1427

Judge: Thomas E. Prince

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Steven W. Crow and Daniel M. Delluomo

Defendant's Attorney: Laura N. Hendricks, Heather N. Hendricks and Brett M. Logan

Description: 1. That the Plaintiff is a resident of Oklahoma County, State of Oklahoma.

2. That the Defendant is an incorporated school district located within Oklahoma County, State of Oklahoma.

3. That on or about July 22, 2011 Defendant was placed on notice of the tort claim of the Plaintiff. That ninety (90) days expired after notice to the Defendant without the Defendant accepting liability, The Plaintiff initiated litigation within one hundred and eighty (180) days of the denial of the Plaintiff’s claim

4. That on or about May 12, 2011, the Plaintiff was injured at the Defendant’s place of business located at [-laskell Elementary School in Oklahoma County, State f Oklahoma.

5. That on or about May 12, 2011, the Defendant owed a duty of care to the Plaintiff which required it to maintain the premises free from traps, snares and pitfalls for which they knew existed or have existed for sufficient time as they should have been aware they exist. The Defendant had a duty to wan of dangerous conditions which they knew existed or had existed for sufficient time that they should have known existed.

6. That the Defendant breached the above duty of care by, among other things, failing to remove traps, snares and pitfalls form the premises or warn of such conditions for which they knew existed or which existed for a sufficient time that they should have known they existed.

7. That the Defendant is responsible for the acts of its employees under a duty of respondent superior.

8. That as a direct cause of Defendant’s breach of duty and negligent acts to the Plaintiff, Plaintiff was injured and has suffered certain permanent and personal injuries including mental and physical pain and suffering; Plaintiff has incurred medical bills, lost wages, loss of enjoyment of life and permanent impairment to her whole body, all caused by the negligence of the Defendant and all to the detriment of the Plaintiff.

WHEREFORE, premises considered, Plaintiff prays for judgment against the Defendant in a sum less than of Seventy-Five Thousand Dollars ($75,000.00) plus interest thereon, attorney fees and the casts of this action and such other relief as this Court may deemjust and proper.

Defendant appeared and answered as follows:

1. With respect to the allegations of Paragraph 1, Defendant does not have sufficient information upon which to fonn a belief as to Plaintiff’s place of residence, therefore these allegations are denied.

2. With respect to the allegations of Paragraph 2, Defendant admits that Independent School District No. 12 of Oklahoma County, Oklahoma is a political subdivision of the State of Oklahoma and that the board of education is its governing body.

3. Defendant denies the allegations of Paragraphs 3,4,5, 6,7, and 8.

4. To the extent that Plaintiff’s prayer for relief could be construed as containing any allegations, those allegations are denied,

Affirmative Defenses

1. Plaintiff fails to state a claim for which relief may be granted.

2. Defendant is exempt from liability under one or more exemptions of the Oklahoma Governmental Tort Claims Act (51 O.S. § § 151 - et seq.).

3. Defendant is immune from punitive damages.

4. Plaintiffs claims are barred by the statute of limitations.

5. Plaintiff’s injuries were caused by acts or omissions of third parties.

6. Plaintiff failed to satisf, the statutory notice requirements of the Oklahoma Governmental Tort Claims Act.

Wherefore Defendant requests that Plaintiff take nothing by her claims and that her claims be dismissed from this action, with prejudice, and costs and reasonable attorneys’ fees against her.

Defendant filed a motion for summary judgment asserting the following:

Pursuant to Rule 13(a) of the Rules for the District Courts, Defendant moves for summary judgment in its favor as to the claims set forth in Plaintiffs’ Petition, on the ground that the pleadings and other evidentiary materials on file herein and filed with this Motion and Brief show that there is no substantial controversy as to any material fact and that it is entitled to judgment in its favor as a matter of law on all of Plaintiffs’ claims.

Plaintiff claims to have tripped on the threshold of an entryway of one of Defendant’s buildings. After tripping on the threshold, Plaintiff claims to have slipped on a puddle of water before hitting a water fountain nearly twelve (12) feet from the door. Plaintiff alleges that Defendant is negligent for failing to warn and/or remove dangerous traps from the entry way.

Undisputed Material Facts

The following facts are set out below, as they must be for purposes of a motion for summary judgment, in the light most favorable to Plaintiff. Some of these facts will be controverted by Defendant should the case proceed to trial. However, for purposes of this motion only, these facts may be considered the substantially uncontroverted material facts.

1. Plaintiff alleges that on May 12, 2011, she fell while entering one of Defendant’s buildings, Charles Haskell Elementary School. Exhibit 1, Deposition of Joyce Haliford, p. 11, lines 16- 17.

2. Plaintiff was attending a school program. Exhibit 1, p. 8, 11. 12-13.

3. Plaintiff alleges that the threshold of the entry was the cause of her tripping, and Defendant was negligent in maintaining the threshold of the door. Exhibit 1, pp. 12-13, 11. 18-11.

4. Prior to May 12, 2011, Plaintiff had been to the school and used the same entrance at least five to six times. Exhibit 1, p. 8, 11. 18-22.

5. Plaintiff was in a group of approximately one hundred (100) people. She does not recall tripping over anything. Exhibit 1, p. 9-10, 11. 21-1; p. 12, 11. 1-3.

6. Plaintiff was wearing open toe sandals on the night of the incident. She believes she caught her toe on the threshold. Exhibit 1, p. 10, 11. 17-25; p. 11, 11. 17-18.

7. The weather was clear and the sun was out at the time of the accident, approximately 6:45 PM. Exhibit 1, p. 10, 11. 12-16.

8. Plaintiff was holding the hand of her youngest granddaughter on her left side when she fell. She released her granddaughter when she started to fall. Exhibit 1, p. 11, 11. 8-11; p. 17-18, 11. 23-2.

9. Defendant’s employee, Leila Carpenter (“Carpenter”), escorted students to the gymnasium at 6:45 PM for the school program. When she arrived at the gymnasium, there was no water on the floor. Exhibit 2, ¶ 3, Affidavit from Leila Carpenter.

10. Plaintiff asserts that there was a puddle of water on the floor that did not allow Plaintiff to regain her balance after tripping on the threshold of the door. Ultimately, Plaintiff claims she fell and hit her head and shoulder on the water fountain before landing face forward on the floor. Exhibit 1, p. 11, 11. 21-25.

11. If there is water present on the floor, District employees immediately notify custodial staff of the hazard. Exhibit 2, ¶ 4.

12. There were no wet floor signs in the area. Exhibit 1, p. 35, 11. 6-9.

13. After Plaintiff fell against the water fountain, water would run over the side of the fountain and pooi on the floor. Custodial staff mopped the area and monitored the area so no one else would fall. Exhibit 3, ¶J 4-5, Affidavit from Carolyn Bryson.

14. Charles Haskell Elementary School was built in 1982, and the gymnasium was built in 1990. No alterations or modifications have been made to the threshold or doors leading to the gymnasium since it was built. Exhibit 4, ¶ 4, Affidavit from Bret Towne. Defendant has received no other claims, lawsuits, or notices of accidents at the gymnasium of Charles Haskell Elementary. Exhibit 5, Defendant’s Responses to Request for Production No. 1.

15. There were no broken water fountains near the entrance where Plaintiff entered District’s building, and there are no work orders to repair any water fountains at District’s building. Exhibit 6, ¶ 3, Affidavit from Sylvan Gordon.

16. The water fountain Plaintiff hit after entering the building is eleven feet six inches (11’-6”) from the entrance. Exhibit 4, ¶ 5.

Argument And Authority

Standard on Motion for Summary Judgment

In ruling on a motion for summary judgment, the court should determine whether the evidentiary materials submitted to it establish a substantial controversy as to any material fact. Rule 13(e), Rules for District Courts of Oklahoma, Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535, 536; Johnson v. Mid-South Sports, Inc., 1991 OK 17, 806 P.2d 1107, 1108. The court must examine the pleadings and evidentiary materials and view all inferences and conclusions that can be drawn from them in a light most favorable to the plaintiff, the party opposing the motion. Johnson, 806 P.2d at 1108. One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiffs claims or theories in order to prevail on a motion for summary judgment. When a defendant moves for summary judgment without relying upon any affirmative defense, the defendant must show: 1) that no substantial factual controversy exists as to at least one fact essential to plaintiffs’ theory of the cause of action; and 2) that the fact is in defendant’s favor. Tice v. Pennington, 2001 OK CIV APP 95, 30 P.3d 1164. Summaryjudgment is properly granted when the pleadings, depositions, and other evidentiary materials establish that there is not a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926.

Proposition I: Defendant did not breach its duty to Plaintiffs.

In order to establish a cause of action in negligence, a plaintiff must show: “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 plaintiffs injury.” Craft v. Graebel-Oklahoma Movers, Inc., 2007 OK 79, ¶ 27, 178 P.3d 170, 178. In a premises liability case such as this, the court must first determine the entry status of the plaintiff in order to determine the duty owed to the plaintiffs. As set forth below, Plaintiff cannot establish that Defendant breached any duty of care owed to her. There are three (3) categories of persons entering upon property: trespassers, licensees, and invitees. The duty of the landowner varies depending on the category of the person entering.

Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 10, 951 P.2d 1079, 1084. The owner of a building is not an insurer of the safety of those invited to the premises. Ross v. Otis Elevator Co., 1975 OK 105, 539 P.2d 731, 732.

A. Licensee

A licensee is one who enters the property for his own benefit or for purposes in which the owner had no financial or other interest. McKinney v. Harrington, 1993 OK 88, 855 P.2d 602, 604. A licensee enters onto another’s property for his own benefit, interest, or pleasure under circumstances that the landowner is presumed to be aware of the person’s presence. Moran v. City of Del City, 2003 OK 57, ¶ 9, 77 P.3d 588, 591 (citing Brewer v. Independent School Dist. No. 1, 1993 OK 17, 848 P.2d 566, 571). The duty of care owed a licensee by a landowner is the duty to exercise ordinary care under the facts and circumstances of the particular case. Id. Ordinary care does not have a precise meaning, but is a variable concept dependent on the circumstances of each case. Brown v. Nicholson, 1997 OK 32, 935 P.2d 319, 322. A landowner must disclose dangerous defects which are known to the owner but unlikely to be discovered by the licensee. Such a duty includes a duty to warn about conditions which are in the nature of hidden dangers, traps, and snares. Pickens, 951 P.2d at 1083.


Thresholds of doors are the sort of everyday thing that people encounter. A reasonably prudent person will take care to negotiate the threshold. Public policy dictates that people be encouraged to take reasonable care for their own safety by not imposing a duty on a property owner to make ordinary entrances foolproof. A property owner is under no duty to protect careless persons from hurting themselves. Bertrandv. Alan Ford, Inc., 537 N.W.2d 185, 189 (Mich. 1995).

In this case, Plaintiff was attending the school program for her own benefit and pleasure. No money or consideration was paid to Defendant for entering onto the property. Defendant received no benefit from the school program being held on its premises, and it was aware that people such as Plaintiff would be entering onto its property for the purpose of attending the school program. Plaintiff was thus a licensee when she entered upon Defendant’s property. As a licensee, Defendant only owed Plaintiff a duty to warn about hidden dangers. The threshold upon which Plaintiff alleges she tripped was not a hidden danger. She had walked through the same doorway several times previous to this incident. No other person has ever claimed that the threshold was dangerous. In fact, Plaintiff had no difficulty entering and exiting the building on occasions before and after this incident. The threshold is in plain view when looking where one is going. To hold that Defendant has a duty to protect Plaintiff from having to look where she is going is to require Defendant to be an insurer of the safety of everyone who enters its property, a requirement not imposed by law.

B. Invitee

An invitee possesses either an express or implied invitation to be upon the premises. An invitation is implied when there is a common interest or mutual advantage between the person entering the property and the property owner. McKinney, 855 P.2d at 604. A landowner owes a higher duty to an invitee as compared with a trespasser or a licensee. Pickens, 951 P.2d at 1084. Although Defendant believes that Plaintiff was a licensee and not an invitee, Defendant would show the Court that Defendant met its duty even if Plaintiff is considered to be an invitee.

An owner owes an invitee the duty of exercising reasonable care to keep the premises in a reasonably safe condition. The owner is not required to protect the invitee against dangers which are apparent and readily observable. The owner is required to protect the invitee from conditions which are in the nature of hidden dangers, traps, snares, and the like. Such hidden dangers include conditions which present a dangerously innocent appearance. An objective standard of due care is applied such that the question is whether under similar circumstances an ordinary prudent person would have been able to see the defect in time to avoid being injured. However, an owner does not breach the duty owed to an invitee by failing to remove known but obvious hazards by alteration or reconstruction of the premises. Pickens, 951 P.2d at 1083-1084. The duty of reasonable care depends upon the visitor’s frequency upon the premises, his knowledge of the conditions of the premises, and the extent of the permission granted by the owner. Brown, 935 P.2d at 322. In Wise v. Roger Givens, Inc., 1980 OK CIV APP 52, 618 P.2d 951, a motel guest was returning to the hotel by walking across a parking lot to the sidewalk which surrounded the motel. The individual was talking with his companions and was not looking where he was going when he stepped in a paint can that had been inserted into a hole in the sidewalk. The plaintiff admitted that, if he had been looking, he would have seen the can. Based on these facts and the law, the court held that sumniary judgment for the defendant was proper. The invitee assumes all normal and ordinary risks incident to utilizing the premises, and the landowner’s duty to keep the premises in a reasonably safe condition is only applicable to defects or conditions which are not readily observable by the invitee in the exercise of ordinary care. Id. at 952.

The appropriate standard is would a reasonable person, in the exercise of due diligence, discover the danger that was open and obvious. Id. If a danger is readily apparent to the plaintiff, the defendant has not breached a duty to the plaintiff. Thus, an orange extension cord across an aisle in a store was easily visible and patently obvious. The fact that the plaintiff did not see the cord does not present a situation where there is an obvious danger that presents a deceptively innocent appearance. Southerland v. Wal-Mart Stores, Inc., 1993 OK CIV APP 12, 848 P.2d 68, 69. Despite conflicting testimony as to the color of a speed bump, the court found that a speed bump was an open and obvious condition and that the owner of the premises did not breach any duty owed to an invitee by failing to warn the invitee about the speed bump. Billings v. Wal-Mart Stores, Inc., 1992 OK CIV APP 102, 837 P.2d 932. A plaintiff was deemed to have known or should have known of dangerous condition based on fact that she admitted she would have seen condition if she had been watching where she walked. Hatcher v. Super C Mart, 2001 OK CIV APP 59, 24 P.3d 377, 379-380.

These authorities support a finding that the threshold upon which Plaintiff alleges she tripped was an open and obvious condition. She cannot testify as to why she fell or what caused her fall.

Applying the objective standard required by the law, it is clear that an ordinary prudent person would be able to see the threshold and maneuver accordingly to avoid any injury. Plaintiff assumed the normal and ordinary risks associated with entering Defendant’s premises. Defendant maintained the premises in a safe condition. A reasonable person would have seen the threshold without any warning or other actions by Defendant. In fact, all other attendees of the school program saw the threshold in the exercise of ordinary care. Furthermore, there can be no liability for Defendant’s failure to alter the premises. To the extent that Plaintiffs argue that Defendant should have altered the threshold, the law does not require such alterations or reconstruction of premises. Rather, because the threshold is open and obvious, Defendant had no duty to alter or reconstruct the threshold.

C. Failure to Warn

A property owner owes no duty to an invitee to warn of obvious dangers. A property owner is only liable to a visitor when the property owner knows of a dangerous condition, recognizes that it involves unreasonable risk, has reason to believe that the visitor will not discover the condition, and fails to warn the visitor of the condition. Nicholson, 512 P.2d at 159, relying on Hull v. Oklahoma City Baseball Co., 163 P.2d 982, 984 (Okla. 1945). Thus, when a condition is open and obvious, it is akin to the property owner having posted a sign that indicates “DANGER.” Id. A landowner has no duty to warn about dangers which are readily apparent and observable. Billings, 837 P.2d at 933. Additionally, a property owner has no duty to warn about a condition which is well-known to the invitee. Thus, a store did not have a duty to warn about slippery, wet floors when the plaintiff knew that it was raining outside and that water would be tracked in to the building and might make the floors slippery. Hatcher, 24 P.3d at 380-38 1. Plaintiff had previously entered the building through the entrance in question. The threshold, as are all thresholds generally, was open and obvious. The threshold did not involve any unreasonable danger or risk of injury. Thus, there was no duty to warn Plaintiff regarding the threshold. If there is no duty to warn, Defendant cannot have breached any duty to warn in such a way as to establish Defendant’s negligence.

Proposition II: Defendant was not aware of the water inside the building.

A plaintiff in a slip and fall case generally has the burden of proof to show: that the item causing the fall was negligently left there by the storekeeper or some employee or had been there for a sufficient time after the latter had actual or constructive knowledge thereof to have removed it in the exercise of ordinary care. (Citations omitted). Or the plaintiff must show the storekeeper negligently failed to inspect or maintain the premises, or did not use ordinary care in policing the premises. (Citations omitted). [If] minds of reasonable [persons] would differ or if it can reasonably be inferred from [plaintiffs] evidence that the storekeeper breached any of these duties, the question is then one of fact for the jury.

Hodge v. Morris, 1997 OK CIV APP 53, ¶ 7, 945 P.2d 1047, 1049 (quoting Glover v. Montgomery Ward & Co., 1974 OK CIV APP 33, ¶ 24-25, 536 P.2d 401, 408). The defendant moving for summary judgment bears the “burden of showing the absence of any genuine issue of fact.” White v. Wynn, 1985 OK89,J 10, 708 P.2d 1126, 1129.

Here, one of Defendant’s employees, Carpenter, escorted students from the main building of Charles Haskell Elementary over to the gymnasium for the school program at 6:45 P.M. Exhibit 2, ¶ 3. When she arrived at the gymnasium, there was no water on the floor. Id. at ¶ 4. If water was present, Carpenter would have contacted a member of the custodial staff immediately to mop up the water and placed a wet floor sign in the area to notify the public that there was a hazard and the floors were slick. Id. However, there was no water present, so any water that was present when Plaintiff arrived was not known about by District or any of District’s employees. Further, after Plaintiff fell, a District employee continued to mop the area because water would pool if the fountain was used. District did not want a patron to fall in the water.

District cannot be liable for any damages caused by the puddle of water because District was not on notice that the water was present. Because District did not have actual or constructive notice of the water on the floor, it was not possible for District’s employees to clean-up the spill or to provide warning to patrons that were coming to the school program.

Proposition III: Defendant is exempt from liability under the Governmental Tort Claims Act. Plaintiff alleges that District was negligent in failing to provide a safe environment at Charles

Haskell Elementary. However, even if Plaintiff’s allegations are sufficient to state a claim for negligence, District is exempt from liability under Oklahoma law.

The Oklahoma Governmental Tort Claims Act (“GTCA”) waives the sovereign immunity of the State of Oklahoma and its political subdivisions (including public school districts) subject to the limitations and specifications of the GTCA. 51 O.S. § 153. The Oklahoma legislature has also carved out certain claims for which immunity has not been waived. 51 O.S. § 155. One such exemption is for losses or claims that result from the “participation in any activity approved by the local board of education and held within a building or on the grounds of the school district served by that local board of education before or after normal school hours or on weekends.” 51 O.S. § 155(21).

Plaintiff was attending a school program in the gymnasium of Charles Haskell Elementary on the evening of May 12, 2011. Plaintiff’s attendance at the school program falls under the participation that is contemplated in the GTCA. The school program is an activity that is approved by the Board of Education of District, and the event was being held in one of District’s buildings after normal school hours. Therefore, District is exempt from any liability of negligence that may exist. As such, Defendant’s Motion for Summary Judgment must be granted.

Proposition IV: Any claim for defective design is barred by the statute of repose.

Plaintiff alleges that Defendant’s premises were negligently designed in that the threshold was not properly where it should have been.

Oklahoma law provides that no action may be brought for any design defect related to construction or improvements to real property more than ten (10) years after completion of the construction or improvements. This statute is commonly called the statute of repose. 12 O.S. § 109. Abbott v. Wells, 2000 OK 75, 11 P.3d 1247, 1248-1249. To the extent that Plaintiff alleges the design of the Charles Haskell Elementary School building was negligent, such claim is barred by the statute of repose. There is no evidence that the threshold in question was constructed or modified within ten (10) years of suit being filed. Plaintiff may not allege or seek recovery for an alleged deficiency in the design of the building.

Conclusion

Plaintiff was a licencee when she was visiting one of District’s buildings. As such, District was only required to disclose dangerous defects which are known to the District but unlikely to be discovered by the Plaintiff. Plaintiff claims to have tripped on the threshold of an entryway, which is an open and obvious hazard that a reasonable person is aware of. After tripping on the threshold, Plaintiff claims to have slipped on a puddle of water before hitting a water fountain nearly twelve (12) feet from the door. District had no actual or constructive notice of the water puddle. Even if District is found to be liable for the negligence, District is exempt under the GTCA because Plaintiff was a participant in a Board approved activity at a District building after normal school hours. Based on the facts and authorities set forth above, District should be granted summary judgment as to all claims of Plaintiff. District has met its burden of showing there is no dispute to any material fact related to this slip and fall incident.

Outcome: Motion sustained.

Plaintiff's Experts:

Defendant's Experts:

Comments: