PICKENS v. TULSA METROPOLITAN MINISTRY

Annotate this Case

PICKENS v. TULSA METROPOLITAN MINISTRY
1997 OK 152
951 P.2d 1079
68 OBJ 4087
Case Number: 89540
Decided: 12/16/1997
Modified: 04/10/1998
Mandate Issued: 01/14/1998
Supreme Court of Oklahoma

ERIC PICKENS, Plaintiff-Appellant,
vs.
TULSA METROPOLITAN MINISTRY, an Oklahoma Corporation; and OLSEN COFFEY ARCHITECTS, an Oklahoma Corporation, Defendants-Appellees.
ON APPEAL FROM THE DISTRICT COURT, TULSA COUNTY

¶ 0 Eric Pickens (Pickens) brought in the District Court, Tulsa County, Thomas Gillert, trial judge, an action to recover damages for bodily injuries sustained in a fall upon premises owned by Tulsa Metropolitan Ministry (TMM) and designed by Olsen Coffey Architects (Architect). The trial court gave summary judgment to TMM and Architect, and Pickens appealed. The cause was ordered retained on the Supreme Court's docket.

JUDGMENT IS AFFIRMED

M. Scott Ash, The Ash Law Firm, Tulsa, Oklahoma, for Appellant.
Truman B. Rucker, Law Office of Truman B. Rucker, Tulsa, Oklahoma, for Appellee
Tulsa Metropolitan Ministry. Harry M. Crowe, Law Office of Harry M. Crowe, Tulsa, Oklahoma, for Appellee Olsen Coffey Architects.

OPALA, J.

¶ 1 We are asked to decide today whether the evidentiary material tendered by TMM and Architect to support the trial court's summary judgment in their favor provides undisputed proof of the open and obvious character of the premises' condition, which will support but a single inference that favors nonliability. We answer in the affirmative.

¶ 2 Eric Pickens (Pickens) sued Tulsa Metropolitan Ministry (TMM), an Oklahoma Corporation, the owner of The Tulsa Day Center for the Homeless (the Day Center), a day center and nighttime shelter for the homeless in Tulsa, alleging that TMM was negligent in constructing and maintaining on its premises a retaining wall without guardrails or barriers. Pickens also sued Olsen Coffey Architects (Architect), alleging that Architect negligently designed the retaining wall. Pickens himself has no memory of how he came to be injured. He was found on the sidewalk at the foot of the retaining wall. A witness gave a deposition that Pickens was asleep on the retaining wall and fell off as he rolled over in his sleep. Pickens had been [951 P.2d 1081] drinking and at a minimum had consumed six cans of beer. TMM and Architect sought and secured summary judgment The trial court found that "the condition or defect complained of was open and obvious." Pickens appealed claiming that: 1) whether the defect was open and obvious is a question of fact for a jury, 2) whether the condition was open and obvious must be viewed in light of Pickens' inebriated condition, and 3) the open and obvious defense is not available to an architect in a suit for damages for defective design. We hold that (a) the condition of the retaining wall was open and obvious as a matter of law, (b) Pickens' inebriated condition does not bear on the determination of what is an open and obvious defect or condition, and (c) an architect is not liable for a patent design defect or condition.

I

THE ANATOMY OF LITIGATION

¶ 3 The Tulsa Day Center for the Homeless opened its doors on January 9, 1995. Previously, it had operated the same type of facility at a location approximately one block away. During the daytime, the Day Center offered food, clothing, shelter, showers, and various social services to the homeless of Tulsa. At night, the Day Center provided sixty-five spaces for homeless people to sleep indoors. The sixty-five indoor spaces were allotted on a priority system, women and children receiving the highest priority and young, healthy males receiving the lowest. Throughout the year, but especially during clement weather, more than sixty-five people came to the Day Center to sleep Those who did not receive spaces inside often slept outside of the Day Center. The Day Center insists that people were only permitted to sleep in the area by the front door where the Day Center's employees could see them. Signs prohibiting sleeping were placed at various spots on the building, but whether those signs were posted before or after Pickens' accident is not clear Despite this prohibition on sleeping anywhere other than by the front door, many homeless people sat, socialized, drank, and slept at other locations on the property. The Tulsa police expressed concern to representatives of TMM about the nightly activity occurring on its property after the Day Center locked its doors Security patrols by the Day Center ended outside by 10:30 p.m., and any efforts to remove people from prohibited locations ended at that time unless an altercation caused the employees to summon the police to remove someone. Drinking was also prohibited, but no evidentiary material was tendered which embodied this prohibition in written form and no employee could say that the Day Center had a policy to inform people of this rule upon their arrival at the Day Center.

¶ 4 Along the southern edge of the Day Center's property is a retaining wall. A grassy area abuts the retaining wall and a parking lot separates the grassy area from the Day Center building. The homeless who congregated on the property liked to socialize in this area because it was largely hidden from the view of the Day Center employees on the building side and from the police on the street side. The retaining wall was variously described as rising seven feet, eight feet, or nine feet from a sidewalk, which abutted the retaining wall from below. A grassy area then separated the sidewalk from the street. Before Pickens' accident, two other individuals had fallen off the retaining wall, suffering serious, but not life threatening injuries. Both of them were intoxicated at the time of their injury. Their falls were noted in the Day Center's log book. A homeless woman who used the Day Center at that time told the Day Center employees that a railing should be put along the wall to prevent people from getting out there. TMM did not post on its property any warning in writing specifically referring to any danger associated with the wall and did not warn Pickens verbally of any such danger.

¶ 5 Before, and within one week of, the evening of August 3, 1995, Pickens had slept outside the Day Center, by the front door, on at least a couple of occasions. He had been permitted inside the locked Day Center building to use the restroom after hours. He was not told of any rules prohibiting drinking, being intoxicated, or sleeping anywhere on the Day Center's property, and had not seen any posted signs setting forth the [951 P.2d 1082] prohibition against sleeping around the perimeter of the building.

¶ 6 On the evening of August 3, 1995, Pickens returned to the Day Center from his day job as a laborer. He intended to sleep outdoors in order not to miss the bus that would return him to his job the next morning. He did not eat dinner at the Day Center that evening nor did he receive any other services from the Day Center that day. He was reportedly seen by one witness on the property around 5:30 p.m. or 6:00 p.m. Pickens has no recollection of anything he did between the time he came back to the Day Center property and the time of his accident. He does not remember going to the retaining wall or falling off the retaining wall. Nelson Nails, a homeless person, is the only known witness to the accident. He came up to the Day Center property to drink, socialize, and sleep in the grassy area by the retaining wall. Two other persons were there drinking. Nails was approximately ten feet away from Pickens. He described Pickens as lying on the retaining wall asleep. Nails says that when he saw Pickens lying on the wall, he said to his companions that Pickens was going "to mess around and fall off the wall." At that moment, according to Nails, Pickens turned over in his sleep and rolled off the wall onto the sidewalk below. Pickens suffered massive head and spinal cord injuries and is paralyzed. Claiming that TMM was negligent in constructing and maintaining the retaining wall without guardrails or barriers and that Architect was negligent in designing the retaining wall, Pickens sued both.

¶ 7 TMM urged that based on Pickens' entry status on the property, it had no duty to warn him of, or protect him from, a condition which was open and obvious and of which he had personal knowledge. Architect urged that it had no duty of care toward Pickens, but, if it did have such a duty, it had not breached that duty because the condition of the wall was open, obvious and personally known to Pickens. The trial court agreed and summary judgment was granted for both defendants. On this appeal, Pickens claims that (a) his entry classification imposes a duty of care on TMM to make the premises safe for him, (b) the open and obvious character of the premises must be viewed in light of his intoxicated condition and, when viewed in this way, it was not open and obvious, and (c) Architect breached its duty to him when it designed the retaining wall and failed to take into account the fact that intoxicated and impaired homeless people regularly drank, socialized, and slept outside the Day Center and would foreseeably come to be on or near the retaining wall without perceiving its dangerous condition. Because the trial court's disposition was effected by summary judgment, the issues on review stand before us for de novo examination.

 

II

PLAINTIFF'S ENTRY STATUS DETERMINES

THE DUTY OF CARE OWED TO HIM

¶ 8 In any case based upon negligence, the threshold question is whether the defendant had a duty to the particular plaintiff alleged to have suffered injury.

III

TMM DID NOT BREACH A DUTY OF CARE TO PICKENS

¶ 9 Entrants onto real property fall into three categories: trespasser, licensee, and invitee. The parties in this case do not agree on Pickens' entry status. TMM contends that Pickens is either a trespasser or, at best, a licensee. Pickens contends that he is an invitee or, at worst, a licensee.

¶ 10 The terms trespasser, licensee, and invitee denote a graduated ranking representing the degree of beneficial interest a property owner has in another person's presence on his property. 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.

 

¶ 11 Having reviewed the applicable law, we find it unnecessary to resolve the question of Pickens' precise entry status. Even if, as Pickens argues, he was an invitee, we hold that TMM breached no duty to him. The evidentiary materials tendered in this case fail to show that the retaining wall from which Pickens fell posed a hidden danger, trap, snare, or the like. It did not have a "deceptively innocent (or harmless) appearance," cloaking a reality of danger. Photographs show that it was not totally or even partially obscured from vision.

[951 P.2d 1085]

¶ 12 Pickens denies that the photographs of the wall accurately depict the property as it would have appeared on the night of his accident because the photographs were taken in daylight and his accident occurred at night. Although Pickens did not fall off the wall until sometime around 1:00 a.m., he was unable to provide any evidence as to what time he approached the wall. In early August, sufficient natural light exists until quite late. There being no way to know when he approached the wall, it cannot be said that natural light was not still available to illuminate the area. Even if he approached the wall after dark, the only evidentiary material relating to the issue of light in the vicinity of the retaining wall indicates that the area is illuminated by sufficient artificial light to reveal the presence of the wall.

[951 P.2d 1086]

¶ 13 As we view the evidentiary materials, (a) they provide undisputed proof of the open and obvious character of the premises condition involved in Pickens' injuries, and (b) all inferences from the probative materials are consistent with defendants' nonliability. Although Pickens' knowledge of the condition of the property is not fatal to his recovery, whether his foreknowledge should have prevented the harm is to be measured by the objective standard of a reasonable person.

¶ 14 Pickens cites our most recent pronouncement on the open and obvious doctrine, Brown v. Nicholson,

¶ 15 Pickens argues that TMM is not an ordinary landowner, but a landowner who operates a facility which provides services to people with impaired mental faculties, including people who are severely intoxicated. As such, Pickens argues, TMM owed him an elevated duty of care, proportional to his incapacity for self-protection due to intoxication. We do not agree. This court held in Brigance v. Velvet Dove Restaurant, Inc.,

¶ 16 Plaintiff also urges this court to recognize a special relational duty of care by a homeless shelter to persons coming onto its property, whether actually partaking of its services or not. Instances where a heightened duty of care is imposed on a landowner for the safety of persons coming onto the landowner's property generally involve custodial situations where someone is charged specifically with the duty of caring for another person's safety. Plaintiff cites a number of cases in which such a specialized duty of care is imposed on a hospital for the safety of its patients.

IV

AN ARCHITECT MAY BE HELD LIABLE TO THIRD PARTIES

IN NEGLIGENCE, BUT ARCHITECT IN THIS CASE

BREACHED NO DUTY OF CARE TO PICKENS

¶ 17 Plaintiff urges this court to hold that an architect can be held liable to a third party

¶ 18 In the area of negligence, the privity of contract requirement was abolished early in the twentieth century in the landmark case of MacPherson v. Buick Motor Co., in which it was held that a manufacturer has a duty to those who may foreseeably be expected to use his products or to be in the vicinity of such usage to exercise reasonable care in the design and manufacture of those products.

 

¶ 19 In Oklahoma, the MacPherson approach was adopted in products liability cases in Crane Co. et al. v. Sears,

¶ 20 It is unnecessary for us to decide today whether the accepted work doctrine has outlived its usefulness. Applying that doctrine to the facts of this case or applying the principles applicable to products liability cases, we must arrive at the same result. In either case, a contractor is not liable where the condition or defect alleged is patent, open, and discoverable on reasonable inspection.

SUMMARY

¶ 21 The evidentiary material in the record presents no disputed questions of fact which cannot be decided as a matter of law via summary adjudication. The record establishes that, whatever Pickens' entry status, neither TMM nor Architect breached a duty of care owing to him. This is so because the retaining wall on TMM's property from which Pickens fell and the fact that no guardrails or barriers were in place around it were patent premises conditions, open and obvious, which were discoverable on reasonable inspection by an ordinary prudent person. Moreover, Pickens had actual personal knowledge of the retaining wall, of its location, and of its unguarded condition. Summary judgment was hence the defendants' due.

¶ 22 Judgment is affirmed.

¶ 23 KAUGER, C.J., SUMMERS, V.C.J., and HODGES, LAVENDER, HARGRAVE, OPALA, WILSON, and WATT, JJ., concur;

¶ 24 SIMMS, J., concurs in judgment.

FOOTNOTES

1 Brown v. Nicholson, Pate, and Spears, 1997 OK 32 , ¶5, 935 P.2d 319 , 321. Issues of law are reviewable by a de novo standard. An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings. Kluver v. Weatherford Hospital Authority, 1993 OK 85 , ¶14, 859 P.2d 1081 ,1083; see also Salve Regina College v. Russell, 499 U.S. 225 ,231; 111 S. Ct. 1217,1221; 113 L. Ed. 2d 190 (1991).

2 Hargrave v. Canadian Valley Electric Coop., 1990 OK 43 , ¶14, 792 P.2d 50 , 55.

3 Grover v. Superior Welding, Inc., 1995 OK 14 , ¶5, 893 P.2d 500 , 502; Rose v. Sapulpa Rural Water Co., 1981 OK 85 , ¶17, 631 P.2d 752 , 756.

4 Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 , 563-564 (1968); Kenney v. Grice, 171 Colo. 185, 465 P.2d 401 , 403 (1970); Mile High Fence Company v. Radovich, 175 Colo. 537, 489 P.2d 308 , 313 (1971).

5 In Sutherland v. Saint Francis Hospital, Inc., 1979 OK 18 , ¶5, 595 P.2d 780 , 781, this court stated:

"Land possessor's liability in negligence for harm occurring upon the premises varies with the status of the entrant complaining of injury. . . . This has been the common law approach ever since landlord's sovereignty and immunity for acts done within the boundaries of His land gradually gave away to present-day civil accountability. When modern tort law finally incorporated possessor's liability, the concept of negligence came to be applied within the restrictive framework of relational, status-based duties. In short, the common law has never seen fit to extend its principles of general negligence (as they came to be fashioned in the last century) to govern harm occasioned on the premises of others. . . . Although questioned in some literature and even repudiated by isolated case-law pronouncements in at least two states, the common - law approach has continued to command our unswerving commitment."

Byford v. Town of Asher, 1994 OK 46 ¶5, 874 P.2d 45 , 51 (Opala, J., concurring) (referring to the general negligence approach in premises liability cases as the "California madness".)

6 Supra, note 1.

7 Byford, supra, note 5 at ¶4, at 51(Opala, J., concurring).

8 Woodis v. Oklahoma Gas & Electric Co., 1985 OK 62 , n10, 704 P.2d 483 , 490 n.10 (Opala, J., dissenting); Byford, supra, note 5 at n.4 (Opala, J. concurring).

9 One who enters onto property of another for his own benefit or pleasure by express or implied permission of the landowner. Brown, supra, note 1 at ¶6, at 321.

10 Brown, supra, note 1 at ¶6, at 321; Henryetta Construction Co., v. Harris, Okl. 408 P.2d 522 , 531-532 (1965).

11 Brown, supra, note 1 at ¶11, at 322.

12 One who uses the premises of another for the purpose of a common interest and mutual advantage. Brown, supra, note 1 at ¶7, at 321.

13 Henryetta Construction Co., supra, note 10 at 532; Rogers v. Hennessee, 1979 OK 138 , ¶3, 602 P.2d 1033 , 1034.

14 Henryetta Construction Co., supra, note 10 at 531; Sutherland, supra, note 5 at ¶18, at 783 (duty to use ordinary care to maintain premises in a reasonably safe condition "does not require that an invitee be warned of or otherwise protected from perils that are open and obvious.").

15 Henryetta Construction Co., supra, note 10 at 531.

16 Rogers, supra, note 13 at ¶3, at 1034; Buck v. Del City Apartments, Inc., Okl., 431 P.2d 360 , 365 (1967).

17 Byford, supra, note 5 at ¶6, at 52 (Opala, J., concurring); Henryetta Construction Co., supra, note 10 at 531; Jack Healy Linen Service Co. V. Travis, Okl., 434 P.2d 924 , 927 (1967).

18 See discussion infra.

19 See discussion infra.

20 Pickens' knowledge of the existence and attributes of the wall is shown in the following excerpt from his deposition:

Q. Well, when's the first time you knew that wall was there?

A. I knew it was there.

Q. The first time you ever went to their property?

A. Yes.

Q. And that would have been a couple of days before their - - your accident?

A. Yes.

Q. Okay. When you first saw it were you aware it was - - I think you said eight or nine feet high?

A. Yeah.

Q. You were aware where the location of it was - -

A. Yeah.

Q. - - at that time?

A. Yes.

Q. Was there anything about that wall that - - that you've later come to find out that was hidden?

A. I don't understand what you mean.

Q. Okay. Now, on the night of this accident did you know that the wall was - - the retaining wall was present on the Day Center facility?

A. What you mean on the night of the accident?

Q. Well, on the evening - - let's start off with the evening before your accident. When you - - when you got back to the Day Center from work - - is that where you went to after you got off work, at the Day Center?

A. Yes.

Q. When you got back there did you know that retaining wall was there?

A. Yes.

Q. Did you know it was eight to nine feet high?

A. Yes.

Q. Was there anything about it that you didn't know at the time that you do now?

A. I don't understand the question.

Q. Okay. Well, was there anything hidden about that wall that you've later found out about, any - - anything that's - - was dangerous about that wall that you - - you didn't know about at the time that you got to the Day Center following your work on August 3rd?

A. I don't understand the question.

Q. All right. I - -I - - I appreciate you telling me. When you got to the Day Center on August 3rd after work was there anything about that wall that was changed from the - - the previous couple days that you'd seen that wall?

A. No.

Q. It was exactly the same, wasn't it?

A. Yes.

Q. It's pretty easy to see that wall, isn't it?

A. Yes.

Q. It's pretty easy to see that it's roughly eight or nine feet tall?

A. Yes.

Q. Is that wall dangerous in any way?

A. Yes, yes.

Q. In what way?

A. How do you mean?

Q. Well, I'm just asking you. I asked you if the wall was dangerous in any way and you said, "Yes," and I'm trying to find out how you think it's dangerous.

A. Because it's a wall, you know. I don't - - I don't understand the term how it's dangerous. I don't - -.

21 The following answers by Pickens in his deposition reveal that inadequate lighting was not a factor:

Q. Can you recall whether you were able to observe people on all parts of the Day Center property . . .

A. Yes.

Q. after dark?

A. Yes.

Q. Was there enough lighting to be able to do that?

A. Yes.

Q. Even at the outer edges?

A. Yes.

Q. If somebody were sitting or laying on the retaining wall we've been talking about after dark, would there be enough light for someone to - -to see them?

A. Uh-huh.

Q. Would --

A. Yes.

Q Would there be enough light for them to see the retaining wall?

A. Yes.

Q. In your opinion were there any problems with the lighting on the - - on the facilities --

A. No.

Q. Are you - - are you aware of whether any problem with the lighting had anything to do with your accident?

A. I don't know.

Q. Has anybody told you it has?

A. No.

Q. Can you - -knowing what the lighting condition was as you've described it to me, can you in any way envision that the lighting would have been a problem for you ?

A. No.

22 Byford, supra, note 5 at ¶15, at 54 (Opala, J., concurring).

23 Supra, note 1.

24 1986 OK 41 , 725 P.2d 300 (rehearing denied).

25 1991 OK 54 , 813 P.2d 508 .

26 Id. at ¶13, at 511; Brigance, supra, note 24 at ¶11, at 303.

27 "Lifting the causal barrier for claims by tipsy drinkers against their liquor suppliers is not likely to foster safer consumer habits nor exhort the public to moderation. Legal liability that can be shared with or shifted to another tends to diminish an individual's sense of personal responsibility for the consequences of his (or her) own conduct. That in turn poses danger to the public." Todd, supra, note 25 at ¶14, at 518 (Opala, C.J., concurring).

28 Esther v. Wiemer, 1993 OK CIV APP 145 , 859 P.2d 1140 (property owner owed common law duty of care to intoxicated person who fell down wet steps to his death).

29 See, e.g., Pierce v. Mercy Health Center, Inc. 1992 OK CIV APP 110 , 847 P.2d 822 ; Sutherland, supra, note 5 at ¶20, at 783-784 ("To them [patients] the degree of care the hospital owes is much higher. It is commensurate and consistent with their physical or mental debility.").

30 Wilson v. City of Kotzebue, 627 P.2d 623 (Alaska 1981).

31 Sutherland, supra, note 5 at ¶20, at 783-784.

32 I.e., one other than the person with whom the architect is in privity of contract with respect to the design of the condition which allegedly caused injury.

33 Horton v. Goldminer's Daughter, 785 P.d. 1087, 1089 (Utah 1989).

34 Lynch v. Norton Construction, Inc., 861 P.2d 0.1 1095, 1097 (Wyo. 1993); Pennington v. Cecil N. Brown Co., Inc., 187 Ga. App. 621, 371 S.E.2d 106, 107 (1988); McKinstry v. County of Cass, 228 Neb. 733, 424 N.W.2d 322, 328-29 (1988).

35 10 M & W 109, 11 L.J.Ex. 415, 152 Eng.Rep. 402 (1842).

36 Slavin v. Kay, 108 S.2d 462 (Fla. 1959); see also, Hanna v. Fletcher, 97 U.S.App.D.C. 310, 231 F.2d 469, 58 A.L.R.2d 847 (1956), cert.den.sub. nom. Gichner Iron Works, Inc. v. Hanna, 351 U.S. 989 , 76 S. Ct. 1051, 100 L. Ed. 1501 ( 1956) (analyzing and rejecting the various rationales for the accepted work doctrine).

37 217 N.Y. 382, 11 N.E. 1050 (Ct. App.1916).

38 Relying upon MacPherson, the United States District Court of Appeals for the District of Columbia in 1956 rejected the privity requirement in a case against a building contractor in the case of Hanna v. Fletcher, supra, note 36. This was followed by the application of the MacPherson rule to architects in Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 143 N.E.2d 895, 164 N.Y.S.2d 699 (1957) (architect was not liable because the defect was not latent.).

39 As early as 1934, in the Restatement of the Law of Torts, vol II, §385 at 1030, it was said that one who is involved in building or creating a condition of real property is:

" . . . subject to liability to others within or without the land for bodily harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor under the same rules as those . . .determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others."

40 Lynch, supra, note 34 at 1097; Slavin v. Kay, supra note 36; C.T. Drechsler, Annotation, Negligence of Building or Construction Contractor as Ground of Liability upon his Part for Injury or Damage to Third Persons Occurring After Completion and Acceptance of the Work, 58 A.L.R.2d 865, 870 (1958)

41 Strakos v. Gehring, 360 S.W.2d 787, 791 (Tex. 1962) ("We believe that outright rejection of this oft-repudiated and emasculated doctrine would restore both logic and simplicity to the law.")

42 William L. Prosser, Handbook of the Law of Torts, §99 at 695 (3rd Ed. 1964):

"By now, however, there has been a general overthrow of the ancient approach, and it is in full retreat. The analogy of MacPherson v. Buick Motor Co. has been persuasive, and finally has been accepted. A series of decisions have applied it to building contractors, placing them upon the same footing as sellers of goods, and holding them to the general standard of reasonable care for the protection of anyone who might foreseeably be endangered by their negligence, even after acceptance of the work. This is now the majority rule, not only as to contractors doing original construction work, but also as to those doing repair work or installing parts, as well as supervising engineers and architects."

See also

"The layout is one which provides many spatial illusions. The elevation changes on the site are not prominent because the building height appears to remain unchanged at all angles. The parking lot and exterior grass areas are flat and all seem to be at the same elevation. . . . I went to the areas near the electrical box and walked to the edge of the grassy areas and was startled when I looked down and saw nothing indicting the retaining wall was there. I then walked down a slight incline and walked around to the sidewalk, it was then that I realized the true height of the retaining wall. I noticed several trees near the sidewalk and noted that when these trees are in full bloom the tree leaves could be misleading about the relationship of the tree to the retaining wall."

Mr. Neely's observations, standing alone, suggest the possibility that the retaining wall may have presented a latent defect or condition, one which exhibited a "deceptively innocent appearance." His observations would have probative value only if they were demonstrably connected to the actual circumstances under which Pickens' injury occurred. Establishing this connection in light of the plaintiff's inability to recall any of the circumstances of his accident may be a difficult task for him, but it is one which he cannot sidestep. Plaintiff fails to tie the conditions observed by Mr. Neely, which bear on the perception of spatial relationships which persons on the property may experience, to the conditions in existence at the locus in quo at the date and time of plaintiff's accident. It is for this reason that Mr. Neely's affidavit cannot alter our conclusion, based as it is on all the evidentiary materials, that the premises condition was not hidden, but open, obvious, and easily discernible.