Carolyn Bearden v. Delaware Crossing Condominiums Association, Inc.

Carolyn Bearden sued the Delaware Crossing Condominiums Association, Inc. on a premises liability theory.

Delaware Crossing appeared and moved for summary judgment in its favor asserting:

COMES NOW Defendant, Delaware Crossing Condominiums Association, Inc, and pursuant to 12 Okia. Stat. §2056 and Rule 13 of the Rules for District Courts, moves for sununary judgment on Plaintiff's Petition. Based upon the undisputed material facts set forth below and the law applicable to those facts, Defendant is entitled to judgment in its favor as a matter of law. In support of this motion, Defendant alleges and states as follows:

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. At the time of the subject incident, Plaintiff was a resident of Delaware Crossing Condominiums. (Deposition of Carolyn Bearden, attached as Exhibit A, pp. 38 and 42)

2. Plaintiff purchased the unit at Delaware Crossing in September of 2009. (Exhibit A, p. 38 and Affidavit of Karen Morrcll, attached as Exhibit B).

3. Plaintiff's son and daughter-in-law lived in Plaintiff's unit from the time she purchased the unit in September 2009 to July or August of 2010 when Plaintiff moved into the unit. (Exhibit A, pp. 39-40, 42).

4. Plaintiff visited her son and daughter-in-law frequently during the time that they lived in her unit. (Exhibit A, p. 4t).

5. On May 12, 2011, while walking down the sidewalk in front of her condominium on her way to her car, which was in the carport area, Plaintiff fell and injured herself (Exhibit A, pp. 57-62, 65-77).

6. The accident occurred at approximately 3:30 p.m. (Exhibit A, pp. 57-58).

7. Although she did not actually see what caused her fall, Plaintiff claims her fall was caused by stepping on a rock. (Exhibit A, pp.64, 66).

8. The sidewalk on which Plaintiff was walking is immediately adjacent to a small yard which contains landscaping rocks. The landscaping rocks are present due to the fact that management has been unable to keep grass alive in that area and without the rocks the area can become very muddy. (Exhibit B).

9. Despite not even actually knowing what caused her fall, Plaintiff has alleged that the landscaping rocks in the rock beds wash out onto the adjacent sidewalk and create a hazard and that Defendant is at fault for her fall because the rocks did not always stay within the rock bed. (See Plaintiffs Petition, ¶ 4-5, filed October 31, 2011 ("Petition”) and Exhibit A, p. 68, 100).

10. Plaintiff claims that rocks were frequently present on the sidewalk after a rain and therefore she always kept a look out for them when it rained. (Exhibit A, p. 66-67).

11. Plaintiff has stated that, from the time she moved into her unit in July/August of 2010, she would notice that after it rained rocks would appear on the sidewalk which was adjacent to the rock yard, the same sidewalk where she fell and injured herself (Exhibit A, pp. 42-43).

12. According to the Plaintiff, for approximately one year prior to her fall, she had knowledge that rocks could be present on the sidewalk after it rained. (Exhibit A, p. 44).

13. The night before Plaintiff's accident it had rained and Plaintiff was aware that it had rained. (Exhibit A, p. 57, 63).

14. Plaintiff claims she only noticed rocks on the sidewalk after it mined. (Exhibit A, p. 44).

15. Despite making a visual inspection of the subject area and looking for rocks as she was walking down the sidewalk towards the carport, Plaintiff did not see any rocks present on the day of her fall. In fact, Plaintiff is also confident, due to her visual inspection, that there were not any rocks present where she says they normally washed out after a rain. (Exhibit A, p.66, 70, 76, 77).

16. Plaintiff landed in the carport area. (Exhibit A, p. 72).

17. The rock beds have been located in their present location for at least the past ten years and were present at the time Plaintiff purchased the condominium unit in 2009. (Exhibit A, p. 41, Exhibit B).

18. Plaintiff had never fallen on any of the rocks prior to this incident. (Exhibit A, p. 101).

19. Plaintiff never notified or complained to management about the rocks on the sidewalk (Exhibit A, pp. 50-51, Exhibit B).

20. Plaintiff knew and understood the method and proper channels for making complaints to management and had in fact had made at least four other complaints regarding other issues during the year prior to her accident. (Exhibit A, pp. 45, 53-55, 57; Exhibit B, and emails attached as Exhibit C).

ARGUMENT AND AUTHORITIES

A. Summary Judgment Standard

Summary Judgment is proper when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. 12 O.S. Appendix § Rule 13; Carris v. ,John 1?. Thomas & Assoc., 1995 OK 33, 896 P.2d 522; Roach v. Atlas Lfe Ins. Co., 1989 OK 27, 769 P.2d 158, 163. To avoid summary judgment, the opposing party must show that evidence is available which would justir a trial of the case. Stephens v. Yamaha Motor Co., Ltd., 1981 OK 42, 627 P.2d 439. In doing so, a non-movant cannot rely solely upon his pleadings. Weeks v. Wedgewood Village, Inc., 1976 OK 72, 554 P. 2d 780. Moreover, this admissible evidence must be more than mere conjecture, supposition, or a contention that facts may become controverted in the future. First National Bank and Trust v. Kissee, 1993 OK 96, 859 P.2d 502, 505. The Court must make its determination on the record before it, rather than the record potentially possible. See Frey v. Independence Fire and Cas. Co., 1985 OK 25, 698 P.2d 17.

B. Negligence Standard and Duty of a Landowner.

The nature of a landowner's duty to members of the public who come upon their property varies depending upon whether the person injured is a trespasser, licensee, or invitee. McKinney v. Harrington, 1993 OK 88, citing Brewer v. Independent School District No. 1, 848 P.2d 566 (Okla. 1993). An invitee is one who possesses an invitation to be upon the premises. To be a licensee, the individual must have been on the premises for his own benefit, for purposes in which the owner had no financial or other interest. A landowner, owes the highest duty to an invitee. Therefore, solely for the purposes of this motion, Plaintiff is being considered an invitee on the common areas of the premises at Delaware Crossing where she was an owner. The Plaintiffs status as an owner of a condominium at Delaware Crossing can be analogized to that of a tenant, and duties owed to them, which was stated in Jackson v. Land, 1964 OK 102, ¶ 1, 391 P.2d 904:

1. Where the lessor reserves a portion of the premises for use in common by himself and a tenant, or by different tenants, the general rule is that the tenant, while using the same for the purposes intended, is doing so by invitation, and the duties and obligations of the lessor are those owed to an invitee.

2. The duty to keep premises reasonably safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, trais, snares, pitfalls, and the like, in that they are not known to the invitee and would not by observed by him in the exercise of ordinary care.

3. There is no obligation to warn an invitee, who knew the condition of a property, against patent and obvious danç, and there is no actionable negligence in the absence of a duty neglected or violated.

In a negligence case the burden is unquestionably upon the plaintiff to prove the negligence of the defendant. 1-lalbach v. Parkhill Truck Co. 1934 OK 646, 37 P.2d 97. Plaintiff has alleged that a rock bed on Defendant's property constituted a defective condition that posed a hazard to people using the sidewalk adjacent to the rock bed and that "one or more rocks” from the rock bed caused her to fall and injure herself (See Plaintiffs Petition ¶ 4-5). In the instant action, although Plaintiff is claiming that Delaware Crossing maintained a defective condition on its property which caused her injuries, she admits that she does not really know why she fell and that she did not see what caused her fall. (Exhibit A, pp. 64, 66). In fact, according to the Plaintiff, as she was proceeding down the sidewalk, she was surveying the area where rocks normally escaped the rock bed and did not see any. (Exhibit A, pp. 75-77). As such, she is merely assuming or surmising that a rock caused her to fall because a rock was allegedly found near her in the carport area where she landed, which was several feet from where she claims she slipped or tripped. (Exhibit A, pp. 64-66). Plaintiff also basis her speculation on the fact that in the past she had seen rocks wash out of the rock beds. However, speculation as to what caused her fall is insufficient to establish that there was a dangerous condition on the premises and that Defendant breached some duty owed to her by failing to eliminate the dangerous condition. By her own admission, Plaintiff cannot carry her burden in this negligence action and summary judgment should be granted in favor of Defendant. As clearly stated in Oklahoma's Uniform Jury Instructions, "Your decision must be based upon probabilities, not possibilities. It may not be based upon speculation or guesswork.” OUJI 3.3, Citing Stanolind Oil & Gas Co. v. Kiminel, 68 F.2d 520, 522 (lOth Cir. 1934), which stated "[a] verdict cannot rest on evidence that requires the jury to guess, speculate, or select one of several possibilities.” Second, Defendant did not owe a duty to warn plaintiff of the possibility that rocks may be present on the sidewalk.

The duty of the invitor is to "exercise reasonable care to prevent injury to a business invitee.” Williams v. Tulsa Motels, et. at, 1998 OK 42; 958 P.2d 1282, 1284. The invitor has no duty to protect against open and obvious dangers. Id. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the 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., Citing City of Tulsa v. Harman, 148 Okia. 117, 299 P. 462. An invitor is not an insurer of the safety of others and ... 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. Taylor v. Hynson, 1993 OK 93, 856 P. 2d 278, 281-282. Thus, even if Plaintiff could ascertain that she fell on a rock from Defendant's rock beds, she would still not be entitled to recover, as the facts indicate that Delaware Crossing did not breach any duty to Plaintiff.

The Supreme Court addressed the duty an owner owes to an invitee in Turner v. Rector, 1975 OK 172, 544 P.2d 507. In Turner, the plaintiff sought damages for injuries sustained when she slipped on ice which had accumulated on a common walkway of an apartment complex. In affirming the trial court's ruling that the owner of the apartment complex owed no duty to the plaintiff, the Oklahoma Supreme Court cited Buck v. Del City Apartments, mc, 1967 OK 81, 431 P.2d 360:

The owner or person in charge of the premises has no obligation to warn an invitee, who knew or should have known the condition of a property, against patent and obvious dangers. The invitee assumes all normal or ordinary risks incident to the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to remove known and obvious hazards, nor is he liable to an invitee for an injury resulting from a danger which was obvious and should have been observed in the exercise of ordinary care.

The duty to keep premises in a reasonably safe condition for the use of the invited public applies solely to defects or conditions which may be characterized as in the nature of hidden dangers. traps, snares, pitfalls, and the like — things which are not readily observable. The law does not require the owner or occupant of land to warrant that the invitee shall suffer no injury upon the premises; his duty is discharged when reasonable care is taken to prevent the invitee's exposure to dangers which are more or less hidden, and not obvious. In the abseilce of a duty neglected or violated, there can be no actionable negligence.

In the present case, Plaintiff admitted that she was aware that rocks would sometimes escape onto the sidewalk after a rain. (Exhibit A, p.44). Plaintiff also admitted that she was aware that it had rained the night before her fall. (Exhibit A, pp. 57, 63). Even without these facts, a rock on a sidewalk could not be characterized as a "hidden danger, trap, snare, or pitfall;” however, Plaintiff even admits that she was aware that the rocks were often on the sidewalk after a rain.

(Exhibit A, p. 44). As stated in Buck i'. Del City Apartments, the law does not require that the owner of the property warrant that the invitee suffer no injury upon the premises. Id.

In another Oklahoma Supreme Court case, Beatty v. Dixon, 1965 OK 169, 408 P.2d 339, the plaintiff sued her parents after she slipped in fell on their wet kitchen floor. The defendant parents had invited plaintiff to their house because tornadoes were in the area and they owned a storm cellar. After the storm subsided, the family went back into the defendants' home. The back door had been blown open and the kitchen floor had gotten wet from the heavy rains. In holding that defendants had no duty to warn plaintiff of this open and obvious danger, the court stated that "the correct rule in this case is set out in 65 CJ.S. Negligence § 50, wherein it is stated:

The basis of the inviter's liability for injuries sustained by the invitee on the premises rests on the owner's superior knowledge of the danger, and as a general rule he is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the invitee in the exercise of reasonable care, or from a condition which was as well known or as obvious to the invitee as to the inviter, or which the inviter had no reason to believe would not be discovered by the invitee. There is no duty to warn the invitee of any defect or danger which is as well-known to the invitee as to the owner or occupant, or which is obvious or which should be observed by the invitee in the exercise of ordinary care.

Id. at3f9.

In the present case, Plaintiff has admitted that she was very familiar with the rock beds which abutted the sidewalk and was very familiar with the fact that after it rained, the rocks would sometimes escape onto the sidewalk. (Exhibit A, pp. 42-44). She also admitted that she never informed Delaware Crossing of this condition, though she clearly knew the proper channel to make complaints, as she had expressed her concern on many other issues to management in the past (Exhibit A, pp. 45, 50-51, 53-55, 57; Exhibit B). Accordingly her knowledge of the rocks on the sidewalk was "as well known or as obvious” to her as it would have been to Delaware Crossing. Thus, there was no duty on the part of Delaware Crossing to warn her of this condition.

An Oklahoma Supreme Court case similar to the case at bar is Jackson v. Land, 1964 OK 102, 391 P.2d 904. In Jackson the plaintiff sued her landlords after she tripped on a crack in the driveway. In finding that the plaintiffs claim should be dismissed, the Court noted that the "condition of the driveway had existed and continued for many years. It was visible and apparent for all to see and plaintiff by her testimony was aware of such condition from the commencement of the tenancy .. .to. . .when she fell.” Id. at ¶16. The Court held that there was no obligation to warn an invitee, who knew the condition of a property, against patent and obvious dangers and there was no actionable negligence in the absence of a duty neglected or violated. Id. at ¶17. Similarly in this case, Plaintiff was aware of the possibility of rocks from the rock bed washing out onto the sidewalk for at least a year prior to her fall.

C. Conclusion

In a negligence case the burden is unquestionably upon the plaintiff to prove the negligence of the defendant. Halbach v. Par/chill Truck Co. 1934 OK 646, 37 P.2d 97. Plaintiff has admitted that she does not know what caused her to fall and that she did not see any rocks where they usually wash out. Accordingly, Plaintiff cannot prove a link between her fall and Defendants. Even if this court assumes it was a rock from Defendant's rock beds which caused Plaintiff to fall, Defendant is still nonetheless entitled to summary judgment, because under the facts herein, Defendant did not owe a duty to warn Plaintiff of an open and obvious condition of which Plaintiff states she was well aware, to wit: the existence of rocks on the sidewalk.

Since the issue of whether a duty existed is a question of law, Bray v. St. John Health Sys., Inc. 2008 OK 51, ¶6, 187 P.3d 721, this court may decide on summary judgment that Defendant did not owe a duty to Plaintiff where Plaintiff admitted knowing of the condition which allegedly caused her fall. If there is no duty, there is no actionable negligence and Defendant respectfully requests that the Court grant summary judgment in its favor, finding that Defendant is not liable for Plaintiff's injuries.

Settled and dismissed with prejudice.