Date: 08-12-2013

Case Style: Olivia Diane Neely v. Event 1 Productions, Inc.

Case Number: CJ-2011-7870

Judge: Thomas E. Prince

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Larry M. Spears

Defendant's Attorney: Shawn Arnold and Matthew J. G. McDevitt

Description: Olivia Diane Neely sued Event 1 Productions, Inc. on an premises liability theory claiming:

1. On September 29, 2010, Plaintift a business invitee, was attending an Oklahoma Municipal League conference at the Cox Convention Center in Oklahoma City, Oklahoma.

2. The Defendant was contracted by the Municipal League to stage the event.

3. As a part of its duties in staging the event, Defendant laid carpeting in the aisles between exhibits in the exhibit area.

4. In one part of the exhibit area, Defendant overlapped a piece of the carpet negligently creating a hidden snare, pitfall and trap over which Plaintiff tripped and broke her leg.

5. As a result of the negligence of the Defendant, Plaintiff required surgery to repair the broken leg, incurred substantial medical bills, suffered pain of mind and body, has sustained permanent impairment to her leg, has and will require frill time care for the remainder of her life and has sustained damages in an amount in excess of that required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code.

WHEREFORE, Plaintiff prays judgment against the Defendant in an amount in excess of that required for diversity jurisdiction Pursuant to Section 1332 of Title 28 of the United States Code, plus interest, costs and such other relief as the Court deems just.

Defendant appeared and answered as follows:

1. Defendant admits the allegations contained in Plaintiff’s paragraph No. 1;

2. Defendant admits that it contracted with the Municipal League to provide trade show equipment but denies the remaining allegations as contained in Plaintiffs paragraph No. 2;

3. Defendant admits that it laid carpeting in the exhibit area but denies the remaining allegations as stated in Plaintiffs paragraph No. 3;

4. Defendant denies the allegations contained in Plaintiffs paragraph No. 4 as stated;

5. Defendant denies the allegations contained in Plaintiff’s paragraph No. 5 as stated;

AFFIRMATIVE DEFENSES

1. Ongoing discovery may reveal that the Plaintiffs actions caused or contributed to her injuries and therefore, that affirmative defense is reserved;

2. Discovery may reveal that the condition complained of was an open and obvious condition and therefore, that affirmative defense is reserved;

3. Discovery may reveal that the actions complained of were caused by a third party over whom this Defendant had no control;

4. The damages complained of were not proximately caused by the negligence of this Defendant;

5. Defendant reserves the right to amend Affirmative Defenses as discovery proceeds.

Defendant moved for summary judgment asserting:

The Plaintiff’s Petition alleges that on September 29, 2010, she was a business invitee attending an Oklahoma Municipal League Conference at the Cox Convention Center in Oklahoma City. She alleges specifically:

“In one part of the exhibit area, Defendant overlapped a piece of the carpet negligently creating a hidden snare, pitfall and trap over which Plaintiff tripped and broke her leg.” (Plaintiffs Petition, ¶4, attached as Exhibit 1).

At deposition the Plaintiff testified that she had attended the conference for two days, having spent four or five hours in the convention hail the first day looking at the exhibits. She had been at many conventions at the Cox Center, on average once a year for a dozen years. She was aware that there are parts of the convention hall that have temporary carpets and parts that do not, and on the first day in attendance she had no difficulty seeing that there was carpet laid down in various areas, and had no difficulty negotiating the floors.

On the second day she was also aware of the setup and had no difficulty negotiating the flooring until the time of her fall. She had spent a couple of hours there in the morning and had gone back around 4:00 p.m. to watch dancing. She walked across the carpeting, sat her purse down at a table, and was going from her table to meet a friend when she fell. The Plaintiff indicates the carpeting was kind of rolled up on the edges a little bit and she caught her toe on the turned up edge of the carpet and fell. After she fell she was able to see the rolled up edge of the carpet, but she does not know whether the act of her foot hitting it rolled it up or what caused the edge of the carpet to not lie flat, aside from wear. She admits that had she looked down prior to her trip, nothing would have prevented her from seeing the condition of the carpet.

Most refreshing, in response to examination by her own counsel, the Plaintiff admits that, prior to her fall she actually watched event workers putting the carpet down JO to 20 feet from where she fell, she knew that they were laying the carpet wrong, in an unsafr fashion, and that was what caused her accident.

UNDISPUTED MATERIAL FACTS

1. On the first day of a two day conference the Plaintiff spent four or five hours in the convention hail area looking at exhibits. (Deposition of Olivia Neely, P.66, lines 11-22, attached hereto as Exhibit 2).

2. Plaintiff had been to lots of conventions at the Cox Center prior to this incident; she attended conventions at Cox Convention Center on average at least once a year for a dozen years. (Exhibit 2 at P.67, Lines 8-18).

3. The subject incident occurred at 4:00 p.m. on the second day of the conference at the Convention Center. (Exhibit 2 at P.66, Lines 8-12).

4. Prior to the incident, Plaintiff was aware that there were parts of the convention hall that had temporary carpets and other parts did not, as the main aisles had carpets. (Exhibit 2 at P.68, Line 24 to P.69, Line 8, and P.103, Lines 13-14).

5. Plaintiff was aware that temporary carpet was put down, which was not unlike other conventions that she had attended at the Cox Convention Center and other locations. (Exhibit 2 at P.69, Lines 15-23).

6. During the first day of the conference, she had no difficulty seeing that there was carpet laid down in various areas and she was aware of the carpet. She did not have any difficulty negotiating the floors or carpets on the first day of the conference. Likewise, on the second day of the conference, she was aware of the set up and the flooring and she had no difficulty negotiating the floor until her fall. (Exhibit 2 at P.70, Lines 9-25).

7. The Plaintiff selected a table closest to the dance floor and left her belongings and purse there, and after a couple of minutes went to join a friend at another table (Exhibit 2 at P.77, Lines 4-25, P.78, Lines 1-25).

8. Plaintiff fell walking across the convention hail floor when she tripped on some carpeting that was rolled up on the edges and her toe caught in the rolled up edge, causing her to fall. (Exhibit 2 at P.79, Lines 14-22).

9. Plaintiff tripped in an area where two carpets that were going in different directions overlapped each other. (Exhibit 2 at P.104, Lines 7-12).

11. Plaintiff saw the carpet’s condition (the flap) after she fell and she testified that if she had looked down prior to her trip, nothing would have prevented her from seeing the carpet in the condition it was in prior to her fall. (Exhibit 2 at P.87, Lines 2-9; P.108, Lines 6-8 and P.109, Lines 15-22).

11. Just prior to her fall, Plaintiff saw two men laying down the carpet in the aisles. (Exhibit 2 at P.116, Line 16 to P.117, Line 9; P.119, Lines 4-7).

12. She watched these men lay the carpet for a long enough time to wonder what they were going to use to secure the carpet and not just let it lay there on the floor. (Exhibit 2 at P.118, Lines 3-8).

13, Plaintiff knew that the carpet was not properly taped down because on the day of the incident prior to her fall, she saw the men laying carpet 10 to 20 feet away from her, in the same aisle where she fell, and she noticed by her own visual inspection that these men were not properly taping the carpet down. (Exhibit 2 at P.124, Lines 2-16).

14. When Plaintiff observed the men laying down the carpet, she wondered why they were not taping down the carpet properly. (Exhibit 2 at P.124, Lines 17-21).

15. Only about two minutes elapsed between the time that Plaintiff saw the men laying down the carpet without tape and her fall. (Exhibit 2 at P.125, Lines 6-10).

16. Plaintiff knew from observing these men laying the carpet that what they were doing was wrong, it was unsafe, and from what she saw, it was the cause of her accident. (Exhibit 2 at P.126, Line 19 to P.127, Line 5).

ARGUMENTS AND AUTHORITIES

PROPOSITION I

THERE WAS NO LEGAL DUTY TO WARN OF AN OPEN AND OBVIOUS CONDITION.

Under Oklahoma law, a storekeeper is not an insurer of its invitees. Safeway Stores v. McCoy, 1962 OK 194, 376 P.2d 285. The fact that one is injured carries no presumption of negligence. Collins v. N-Ren Corp., 604 F.2d 659 (10111 Cir. 1979).

The Court in Rogers v. Hennessee, 1979 OK 138, 602 P.2d 1033, said that the owner of premises owes “the duty to exercise reasonable care to keep the premises in a reasonably safe condition and to warn invitees of conditions which are in the nature of hidden dangers.” Id. at ¶3, P.1034. The Court in Williams v. Tulsa Motels, 1998 OK 42, 958 P.2d 1282, said, “[t]he invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant 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. at ¶6, P.1284.

Where the Plaintiff knew or should have known of a condition, there is no obligation to warn the Plaintiff. Jackson v. Land 1964 OK 102, 39] P.2d 904. In this situation it is not the application of assumption of the risk or contributory negligence, but rather the lack of any liability or duty on the part of the Defendant. The case of Nicholson v. Tacker, 1973 OK 75, 512 P. 2d 156 clarifies that distinction:

“There has been a tendency in premises liability cases to confuse the defense of assumption of the risk with a lack of duty on the party of the defendant where open and obvious dangers are concerned. In the case of the open and obvious danger, the 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’s nailing a ‘danger’ sign on the premises. In so far as the defense of assumption of the risk is concerned, it cannot be said that plaintiffs continuing to use the premises in the presence of an obvious danger requires invoking that particular doctrine. Rather, the fact that the danger is open and obvious nullifies the duty of defendant to plaintiff.”

Id. at 161 (emphasis added).

In the subject case, it is undisputed that the Plaintiff had been a regular attendee at conventions within the Cox Convention Center over the last dozen years, that she was aware parts of the convention hail had temporary carpets, and that this setup was not unlike other conventions she had attended. She had no difficulty negotiating the carpet or flooring at the convention center on day one or day two, until the time of her fall. She does not dispute that had she looked down she would have seen the condition of the carpet:

Q. In the condition that you saw it in after you fell, did you have any problems seeing that condition, that is the flap as you’ve described it?

A. No.

Q. Okay. And likewise, if you had looked down prior to your trip would anything have prevented you from seeing it?

A. No.

Q. Okay. And do you know how long that carpet in that position that you’ve showed me, that rolled position, how long had it been like that prior to your walking in the area?

A. No idea.

(Exhibit 2 at P.87, Lines 2-14).

This alone would be sufficient to justif’ summary judgment on the basis of an open and obvious condition. However, the testimony that followed on cross-examination by the Plaintiffs own counsel was refreshingly candid as the Plaintiff testifies that not only could she have seen the hazard that she complains of prior to her fall, she actually did see the hazard being created prior to her fall!

BY MR. SPEARS:

Q. Yeah. Maybe they did tape it down, okay, but you tripped on rolled up carpet you told us?

A. Yes.

Q. So do you think that that means they taped in down properly?

A. No.

Q. Okay. So would that go to the -

A. I saw them unrolling the little carpet strips, I watched them put down the carpet.

Q. You did?

A. Yes.

Q. Okay.

A. Some of them.

Q. It’s amazing what we learn. But when did you see this?

A. They were still in the process ofputting the carpeting down.

Q. When you first got there the first day?

A. No, when I was there the second day. They were still, acted like they were getting ready for the convention. (Exhibit 2 at P.116, Lines 9-25 to P.117, Lines 1-4).

* * *

BY MR. SPEARS:

Q. Okay. How long did you watch them, I mean, or did you watch them, or you just notice them? That may be a distinction without a difference, but.

A. Well, I watched them long enough to figure out I was wondering when they were going to secure the carpet and not just let it be there on the floor.

(Exhibit 2 at P.118, Lines 3-8).

* * *

BY MR. SPEARS:

Q. Which exhibit hail, if you know, did you see the gentlemen laying carpet in on the second day?

A. They were just north, just this side of where the tables and things were. And I can make an assumption but that’s, I cant.

Q. What’s your estimate of how far away from where you fell was to where these guys were laying carpet. What’s your estimate of distance?

A. Ten feet, 12 feet.

Q. Okay. Well, I’ll have to admit, you surprised me with that on how close they were to where you fell. So you’re saying they were extremely close to where you fell?

(Exhibit 2 at P.121, Lines 9-21).

* * *

MR. SPEARS: Okay. I suspect that you want to inquire further.

MR. ARNOLD: Perhaps.

(Exhibit 2 at P.123, Lines 22-24).

* * *

BY MR. ARNOLD:

Q. All right. Just so I understand your testimony, you know that they didn’t properly tape this; true, that’s your testimony?

A. To my knowledge, yes.

Q. And the reason you know is that on the day of this accident you saw them laying carpet somewhere between ten and 20 feet away from you; true?

A. Yes.

Q. And you saw them in the same aisle where the carpet was that you fell on; true?

A. Yes.

Q. And you noticed by your own visual inspection that they weren’t taping it down properly -

A. True.

Q. -- true? And you wondered to yourself what are these guys doing? A. True.

Q. Why aren’t they taping it properly; true?

A. True.

Q. And this is the same aisle that the carpet is that you fell on - A. True.

(Exhibit 2 at P.124, Lines 1-24).

* * *

Q.-- true? And you don’t know whether or not they had just put that down there; true?

A. True.

Q. But you know that at least a portion of that aisle was not properly taped; true?

A. True.

Q. The time period between when you saw this and your fall is how long?

A. Not too long, a few minutes.

Q. A few minutes?

A. Two minutes.

Q. Okay. It was before you sat your purse down?

A. That I saw them?

Q. Right.

A. Yes.

Q. Was it on your way that you saw them, on your way to the table? A. Yes.

Q. Okay. And you thought to yourself, consciously, what are these guys doing and why are they laying this carpet in such a haphazard way; true?

A. True.

MR. SPEARS: Object to the form.

(Exhibit 2 at P. 124, Line 25 to P.125, Lines 1-23.

* * *

Q. (BY MR. ARNOLD) Did you say anything to them?

A. No.

Q. Did you ask them any questions?

A.No.

Q. Did you warn them in any way, look -

A.No.

Q.-- this is dangerous?

A.No.

Q. Did you say anything to anyone else about it 9 before your fall, I mean?

A. I don’t remember.

Q. Okay. Do you know if anyone else saw the laying of this carpet?

A. I don’t know.

Q. Have you talked to anyone else like your husband that said yeah, I saw them laying that carpet in that terrible way just before the accident?

MR. SPEARS: Object to the form.

THE WITNESS: I don’t know.

Q. (BY MR. ARNOLD) Okay. But you knew from looking at what they were doing that they were doing it wrong?

A. I thought so.

Q. Unsafely?

A. I thought so.

Q. And you couldn’t figure out what the heck they were doing?

A. True.

Q. And you think from what you saw that’s what caused your accident?

A. Yes.

(Exhibit 2 at P.125, Lines 24-25; P.126, Lines 1-24 and P.127, Lines 1-5).

CONCLUSION

The Plaintiff admits that the condition of the carpet was not “a hidden snare, pitfall and trap” as alleged in the Petition. Rather, it was open to be seen and, had the Plaintiff looked down, she would have seen the condition of the carpet where she fell. More importantly, the Plaintiff candidly admits that prior to her fall she knew that the carpet was not properly taped because she saw them laying carpet improperly 10 to 20 feet away from where she fell, that she was aware they were not taping it down properly two minutes before her fall, and she thought to herself why are they laying this carpet in such a haphazard fashion. She did not question them, warn them, or make any comment, she just “couldn’t figure out what they heck they were doing,” but those actions caused her fall. Where the hazard complained of is open to see and, in fact, is seen by the Plaintiff prior to her fall, there simply is no duty to warn. Absent a duty breached, this cause for negligence cannot stand.

WHEREFORE, above premises considered, Defendant respectfully requests that summary judgment be granted in its favor together with an award of reasonable costs and attorney’s fees.

Outcome: Motion for summary judgment sustained.

Plaintiff's Experts:

Defendant's Experts:

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