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Date: 09-06-2012

Case Style: Brenda Linam v. Wal-Mart Stores, Inc.

Case Number: CJ-2011-4987

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Kimberly N. Clark

Defendant's Attorney: Mark T. Steele and Brandy Lee Wandres

Description: Plaintiff, Brenda Linam sued Wal-Mart Stores, Inc. on a premises liability theory. The accident in which Plaintiff, Brenda Linam, slipped and fell on a puddle of water on September 11, 2009, at the Wal-Mart in Broken Arrow, Oklahoma.

Plaintiff filed the present action alleging negligence. No evidence exists to support Plaintiffs claim that WalMart’s actions were negligent, as the existence of the puddle of water on the floor was open and obvious. As such, Wal-Mart requests this Honorable Court to grant its Motion for Summary Judgment as there is no controversy as to any material fact.


The following are material and uncontroverted facts for the purpose of this motion for summary judgment.

1. Brenda Linam slipped and fell in the Broken Arrow, Oklahom Wal-Mart on September 11,
2009. (See Deposition of Brenda Linam, relevant portions attached hereto as Exhibit A,
14:21-23; Petition, ¶3).

2. On that date, Plaintiff slipped and fell on a puddle of water after she had checked-out at WalMart. (Exh. A at 16:9-li; 17:17-20).

3. Plaintiff testified that at the time she fell, there was nothing blocking her view of the water on the floor. (Id. at 19:14-16).

4. Plaintiff further testified that she fell in a puddle of water liquid that was approximately the size of a basketball. (Id. at 17:23-18:6).

Under Oklahoma law, the Plaintiff must prove three factors in order to recover under a theory of negligence. InPhelps v. Hotel Management, Inc., t996 OK 114,925 P.2d 891,893 the Oklahoma Supreme Court stated:

Parties seeking to establish negligence must prove by a preponderance of the evidence: (1) a duty owed by the defendant to the plaintiff to use ordinary care; (2) a breach of that duty; and (3) an injury proximately caused by the defendant’s breach of duty.

In the absence of a duty, there can be no negligence. Southerland v. Wa/-Mart Stores, 1993 OK CIV APP 12, 848 P.2d 68, 70. Because Wal-Mart did not owe a duty to the Plaintiff, Wal-Mart is entitled to summary judgment as a matter of law.
In premises liability cases, Oklahoma specifically defines the duties owed an entrant based upon an entrant’s classification:

Entrants onto real property fall into three categories: trespasser, licensee, and invitee. The determination of entry status is critical in a premises liability case because the duty of care the property owner must exercise expands or contracts based on the entrant’s status.

Pickens v. Tulsa Metro Ministry, 1997 OK 152, 951 P.2d 1079, 1083. In the instant case, it is
undisputed that the Plaintiff was an invitee. The narrow duty of an invitor is best summarized in the Oklahoma Uniform Jury Instructions:

It is the duty of the owner to use ordinary care to keep its premises in a reasonably safe condition for the use of its invitees. It is the duty of the owner either to remove or warn the invitee of any hidden danger on the premises that the owner either actually knows about, or that it should know about in the exercise of reasonable care, or that was created by it or any of its employees who were acting within the scope of their employment. This duty extends to all portions of the premises to which an invitee may reasonably be expected to go.

(Oklahoma Uniform Jury Instruction, Third Edition, No. 11.10) (emphasis added.). Wal-Mart had
the duty to inspect the premises and warn the Plaintiff of any and all hidden dangers on the premises. That duty, however, does not extend to those conditions that are open and obvious.

It is well settled in Oklahoma that an invitor does not have a duty to warn its invitees of open and obvious dangers.
In Billings v. Wal-Mart Stores, inc., 1992 OK CIV APP 102, 837 P.2d 932, 933, the Oklahoma Court of Civil Appeals held:

An invitor’ s duty of ordinary care extends only to hidden dangers, traps, snares, pitfalls, and the like, that are not known to the invitee. The invitor has no duty to protect or warn about dangers readily apparent and observable. The invitee is under no duty to keep premises free from obvious dangers.

See also, Phelps v. Hotel Management, 1992 OK 114, 925 P.2d 891 (“the invitor has no duty to protect or warn about dangers which are open and obvious and which would be discovered by the invitee in the exercise of ordinary care.”); Williams v. Tulsa Motels, 1998 OK 42, 958 P.2d 1282 (“The invitor has no duty to protect against open and obvious dangers.”). Stated another way:

In the case of an open and obvious danger, a fact that the danger is readily apparent to the plaintiff makes it clear that the defendant has not breached any duty to the plaintiff The presence of an open and obvious danger is akin to the defendant nailing a “danger” sign to the premises.
Nicholson v. Tacker, 1973 OK 75, 512 P.2d 156, 159 (emphasis added).

In the instant case, a “danger sign” was present in the area where this accident occurred. If
the Plaintiff had glanced down at the floor prior to her fall, she would have avoided slipping in the puddle of water on the floor. Plaintiff testified that there was nothing obstructing her view. (Exh. A, 19:14-16). Plaintiff further testified that the puddle was approximately the size of a basketball:

Q: How much water was on the floor?

A: Just by showing you, probably a puddle about that big (indicating).

Q: . ... [us that the size maybe of a basketball?

A: Yes, a basketball.

(Id. at 17:22-18:6). Based on this testimony, Plaintiff could clearly see and describe the liquid on the floor. This necessarily leads to the conclusion that had Plaintiff been watching where she was going, she would have seen the puddle and could have avoided it. Accordingly, based upon the testimony of the Plaintiff, the water on the floor was open and obvious.

Oklahoma Courts have long held that an objective standard must be applied when determining whether a condition is open and obvious. Southerland v. Wal-Mart Stores, Inc., 1993

OK CIV APP 12, 848 P.2d 68, 69. The Southerland Court found that Wal-Mart had not breached its duty to plaintiff who had tripped over a bright orange extension cord in Wal-Mart’s light fixture aisle, as the danger was open and obvious. Although she testified she could not see it because of a “blinding light” in the light fixture aisle, the Court noted the standard is an objective one: “would a reasonable person, in the exercise of due diligence for their own safety, discover the danger that was open and obvious?” Applying this objective standard, the Southerland Court affirmed the trial court’s grant of summary judgment, Id. Applying the objective standard to the ease at bar, a reasonable person, in the exercise of due diligence for her own safety, would have seen the puddle of water on the floor and could have avoided slipping in it.

Because of the open and obvious nature of the puddle of water, Wal-Mart did not owe a duty to Plaintiff to warn of a danger that was readily apparent. Accordingly, since Wal-Mart did not owe a duty to Plaintiff, there is no basis for Plaintiff’s claim for negligence and summary judgment is appropriate.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:


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