WEST v. SPENCER

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WEST v. SPENCER
2010 OK CIV APP 97
Case Number: 107156
Decided: 06/04/2010
Mandate Issued: 10/08/2010
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

BETTY WEST, Plaintiff/Appellant,
v.
STEVE SPENCER d/b/a SPENCER'S SMOKEHOUSE & BARBEQUE, and D. WAYNE BREWER d/b/a, 23 POST PLAZA COMPANY, Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE CAROLYN RICKS, JUDGE

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Rex Travis, Paul D. Kouri, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Paul B. Middleton, DOBBS & MIDDLETON, Oklahoma City, Oklahoma, and Randy L. Goodman, RANDY L. GOODMAN, P.C., Nicoma Park, Oklahoma, for Defendant/Appellee.

BAY MITCHELL, JUDGE:

¶1 In this premises liability action, Plaintiff/Appellant, Betty West, appeals from orders granting summary judgment to Defendants/Appellees, Steve Spencer d/b/a Spencer's Smokehouse & Barbeque ("Spencer") and D. Wayne Brewer d/b/a 23 Post Plaza Company ("Brewer").1

¶2 Plaintiff sustained personal injuries when the toe of her shoe caught in an expansion joint in the sidewalk after exiting Spencer's restaurant.

¶3 Brewer's motion for summary judgment contends the expansion joint was a "trivial defect" for which no liability could attach as a matter of law. Plaintiff responded, arguing the "trivial defect doctrine" was inapplicable to private landowners and the sidewalk had a "deceptively innocent appearance." Brewer replied that Plaintiff failed to present evidence the expansion joint in question was different from any other expansion joint, and any defect was apparent and observable. The trial court granted Brewer's motion for summary judgment without explanation of the basis for its decision.

¶4 The threshold question for any negligence action is whether the defendant owed a duty to the plaintiff. Pickens v. Tulsa Metro. Ministry,

A municipality will not be liable for every defect or obstruction, however slight or trivial, or little likely to cause injury, or for every inequality or irregularity in the surface of the way, but is only required to guard against danger it could have, or should have, anticipated in the exercise of reasonable care and prudence. When a defect is so slight that no careful or prudent person would reasonably anticipate any danger from its existence, but still an accident occurs which could have been guarded against by the exercise of extraordinary care and foresight, the municipal corporation is entitled to a directed verdict.

More recently, it was stated another way:

[The municipality] is answerable only for negligence in failing to repair, remove or guard against substantial (as distinguished from slight or trivial) defects or obstructions after actual or constructive notice of their existence is established.

McCathern v. City of Oklahoma City

¶5 Presently, the "trivial defect doctrine" is applicable only to municipalities and applies a different standard than that applicable to private or non-governmental defendants. Not being a municipality, Brewer's reliance on the "trivial defect doctrine" is misplaced.

¶6 Brewer also contends the sidewalk joint was open and obvious. It is undisputed Plaintiff was an invitee at the time of her accident. Under Oklahoma law, an invitor has a duty to exercise reasonable care to prevent injury to an invitee, but owes no duty to protect against hazards that are "open and obvious dangers." Williams v. Tulsa Motels,

¶7 "[T]he 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 hidden defects, traps, snares or pitfalls - things which are not readily observable." Krokowski v. Henderson Nat'l Corp.,

[N]eed not be totally or partially obscured from vision or withdrawn from sight; most generally, the phrase is used to denote a condition presenting a deceptively innocent appearance of safety "which cloaks a reality of danger". Deception, camouflage, deceit and fraud in concealment are the very concepts to which the hidden peril theory of liability traces its historical origin.

Henryetta Constr. Co. v. Harris

¶8 There is no fixed rule for determining whether a defect in the premises constitutes a trap or hidden danger. Jack Healey Linen Serv. Co. v. Travis,

¶9 As the property owner, Brewer had a duty to invitees to use reasonable care to maintain the sidewalk. Reasonable minds could disagree on whether the expansion joint constituted an open and obvious hazard. Reasonable minds could differ on whether the expansion joint constituted a hidden danger based upon a "deceptively innocent appearance." Further, we reject Brewer's argument Plaintiff was required to submit evidence in opposition to summary judgment proving the expansion joint in question was different from expansion joints in other public places. Brewer presented no evidence to suggest the expansion joint in question was a standard size or within acceptable limits in the construction industry. If conflicting inferences can be drawn from the facts as to whether the hazard had a "deceptively innocent appearance," the issue of whether it was an open and obvious condition is for the jury. Jack Healey Linen Serv. Co., ¶9,

¶10 Spencer, who leased the restaurant space from Brewer, moved for summary judgment like Brewer, arguing the expansion joint constituted a "trivial defect" for which no liability could attach as a matter of law. Spencer further argued summary judgment was proper because, pursuant to his lease agreement, Brewer, the property owner, was responsible for maintaining the sidewalk in question. Plaintiff pointed out the "trivial defect doctrine" is not applicable as discussed above and Spencer could not delegate his duty to maintain the sidewalk. The trial court granted summary judgment to Spencer finding no duty was owed to Plaintiff, because the sidewalk in question was not under Spencer's control and Spencer had no duty to maintain the sidewalk.

¶11 The Court of Civil Appeals has recognized that "a lessee is liable to a third party injured on the leased premises only when the lessee (1) has control of the premises, (2) has had a reasonable opportunity to inspect the premises, and (3) could have discovered the defect upon inspection." Strader-Faiazi v. Edmond Fourth of July Festivals,

¶12 Oklahoma recognizes a nondelegable duty to maintain one's premises in a reasonably safe condition to protect invitees. Thomas v. E-Z Mart Stores, Inc.,

[A] landowner's duty may not be delegated in the sense that an invitor may be held liable for certain acts of its independent contractors. Allocation of the risk is placed on the invitor who is in control of its premises, including the injury-causing condition thereon, when the invitor either knew or should have known of its existence.

Id.

¶13 In relevant part, Paragraph 7.1 of the Lease Agreement between Spencer and Brewer states: "LESSOR [Brewer] shall keep in good repair all exterior parts of the building, including, but not limited to, the following: foundation, floor, walls, roof, sidewalks, and exterior painting." Paragraph 7.3 of the Lease Agreement states: "LESSEE [Spencer] shall sweep and keep clean the sidewalks and adjacent service area of the leased premises. LESSOR may enter upon the leased premises at all reasonable hours to inspect it." (Emphasis added).

¶14 Pursuant to the Lease Agreement, Spencer's only duty was to keep the sidewalk clean. Brewer, the property owner, specifically retained control of the sidewalk and contractually agreed to keep it in good repair. No evidence was presented to suggest either Spencer or Brewer attempted to delegate any duty of care to an independent contractor. We find no error in the trial court's grant of summary judgment to Spencer. Spencer did not own or have control of the sidewalk, and had no duty to maintain the same.