RUDDY v. SKELLY

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RUDDY v. SKELLY
2010 OK CIV APP 14
231 P.3d 725
Case Number: 106710
Decided: 10/30/2009
Mandate Issued: 02/04/2010
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

PATRICIA RUDDY & WILLIAM RUDDY, Plaintiffs/Appellants,
v.
ROGER AND DONNA SKELLY d/b/a SKELLY ENTERPRISES & McANAW & COMPANY REALTORS, Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY, OKLAHOMA

HONORABLE RUSSELL C. VACLAW, JUDGE

REVERSED AND REMANDED

Jason B. Reynolds, Billy D. Griffin, Griffin, Reynolds & Associates, Oklahoma City, Oklahoma, for Appellant,
Micky Walsh, Jerry Fraley, Beeler, Walsh & Walsh, P.L.L.C., Oklahoma City, Oklahoma, for Appellees.

Larry Joplin, Judge:

¶1 Plaintiffs/Appellants Patricia Ruddy and William Ruddy (Plaintiffs) seek review of the trial court's order granting a motion for summary judgment by Defendants/Appellees Roger Skelly and Donna Skelly d/b/a Skelly Enterprises and McAnaw & Company Realtors (collectively, Defendants) and entering judgment in Defendants' favor based upon the statute of repose embodied in 12 O.S. §109. In this appeal, Plaintiffs argue the trial court misconstrued the legal theory asserted in their lawsuit and consequently erred in its application of law.

¶2 Plaintiffs commenced the instant action asserting Plaintiff Patricia Ruddy was injured after she completed her business on September 14, 2006, exited Defendants' building, tripped on an unmarked step near a landing, and fell. Plaintiff William Ruddy claimed damages due to a loss of consortium.

¶3 Defendants filed a motion for summary judgment in which they asserted the step was unchanged since it was constructed in 1984, and Plaintiffs' claims based upon the incident in 2006 were barred by the statute of repose found in 12 O.S. §109. That statute provides:

No action in tort to recover damages

(i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,

(ii) for injury to property, real or personal, arising out of any such deficiency, or

(iii) for injury to the person or for wrongful death arising out of any such deficiency,

shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement.

According to Defendants, Plaintiffs' claim must fail because §109 prevents the assertion of a negligence per se claim which arises more than ten years after construction is completed.

¶4 Plaintiffs contended the statute of repose was inapplicable since they were not relying upon construction defects1 as the source of the wrong for which they sought damages, but instead upon breach of a duty to warn of hidden traps, snares, or pitfalls. They claimed the concrete and aggregate composition of a curb and adjacent walk made the step just such a hidden danger.

¶5 The trial court granted Defendants' motion. Plaintiffs present a single question of law for consideration in their appeal, and that is, does the statute of repose apply to bar the prosecution of their claims?

¶6 "Summary judgment is appropriate only where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law." Wathor v. Mutual Assur. Adm'rs, Inc., 2004 OK 2, ¶4, 87 P.3d 559, 561. (Citation omitted.) "In reviewing a summary judgment grant an appellate court engages in a plenary, independent and non-deferential re-examination of the trial court's ruling, i.e., a de novo review." Wylie v. Chesser, 2007 OK 81, ¶3, 173 P.3d 64, 66. (Emphasis original.) (Citation omitted.) "If the uncontroverted facts support legitimate inferences favoring well-pleaded theory of the party against whom the judgment is sought or if the judgment is contrary to substantive law, the judgment will be reversed." Wathor, 2004 OK 2, ¶4, 87 P.3d at 561. (Citation omitted.)

¶7 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." Rogers v. Hennessee, 1979 OK 138, ¶3, 602 P.2d 1033, 1034. However, "[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." Williams v. Tulsa Motels, 1998 OK 42, ¶6, 958 P.2d 1282, 1284. That is to say, "[t]he owner . . . of the premises has no obligation to warn an invitee, who knew or should have known the condition of the property, against patent and obvious dangers." Buck v. Del City Apartments, 1967 OK 81, ¶20, 431 P.2d 360, 365.

¶8 In the trial court, Defendants contended they were entitled to judgment under §109 and cited in support, Gorton v. Mashburn, 1999 OK 100, 995 P.2d 1114, in which the plaintiff fell on a pedestrian bridge, structurally unchanged since its substantial completion more than ten years prior. The Oklahoma Supreme Court held in Mashburn that "§109 preclude[d] the claims asserted" and affirmed the trial court's order summarily adjudicating the plaintiff's claim. 1999 OK 100, ¶11, 995 P.2d at 1117.