Annotate this Case

2002 OK 87
61 P.3d 891
Case Number: 97046
Decided: 11/12/2002


EDWARD SMEDSRUD, Plaintiff-Appellant
CECIL POWELL d/b/a PAPPY'S CORNER, Defendant-Appellee


¶0 In an action to recover damages for bodily injuries sustained upon the premises of a convenience store owned by defendant, the District Court, Comanche County, C. Allen McCall Jr., trial judge, summarily ruled in favor of the owner. The Court of Civil Appeals affirmed. On certiorari granted upon the plaintiff's petition,


Randy P. Conner, Randy P. Conner P.C., Oklahoma City, Oklahoma, for appellant
Mark D. Brown, Margo M. Brown, Oklahoma City, Oklahoma, for appellee

¶1 The dispositive issue on certiorari is whether the Court of Civil Appeals [COCA] erred in affirming summary judgment for the defendant? We answer in the affirmative.



¶2 Edward Smedsrud [Smedsrud] brought an action to recover for injuries he sustained upon the premises of Cecil Powell d/b/a/ Pappy's Corner [Owner]. This is Smedsrud's certiorari quest upon his second appeal for review of the trial court's second summary judgment and of its postjudgment decision on a new-trial motion. COCA affirmed the trial court's second summary disposition for Owner.

The First Appeal - Smedsrud I

¶3 This controversy arose when Smedsrud was walking from Owner's car wash toward his convenience store along a pathway parallel to the store. A note at the car-wash change machine directed customers to go inside the store for needed coins. Smedsrud hit the top of his head on a wooden awning protruding from the side of the store. He sued Owner to recover damages for his injuries. Owner moved for summary adjudication, arguing that the danger posed by the awning was open and obvious and that Smedsrud's injuries were caused by his own negligence or inattention. He characterized the lawsuit as a "relatively simple premises case."

¶4 Smedsrud countered that several fact questions required his cause's submission to the jury, namely, (a) whether the overhang posed an open-and-obvious danger, (b) whether Owner used ordinary care to prevent a hazardous condition on the premises after being timely warned of its presence, (c) whether Owner exercised ordinary care to correct the hazard after he knew (or should have known) of its existence, (d) whether Owner was negligent in placing and designing the overhang and (e) whether he failed to maintain his premises in a safe condition.

¶5 The trial court gave summary judgment to Owner, ruling that the "awning was open and obvious" and the accident occurred because Smedsrud failed "to exercise due care" and "watch where he was going." In his later quest for new trial, Smedsrud argued that while the overhang was visible, it [61 P.3d 893] presented a deceptively innocent appearance of safety, which cloaked a reality of danger.3

The Second Appeal - Smedsrud II

¶7 Upon COCA's remand, Owner once again moved for summary judgment, this time resting his quest on COCA's inviting footnote about the § 109 time bar's availability. According to Owner, Smedsrud's claim is not predicated on premises liability but rests on the design of the pathway, including the awning, the protruding pipes and the concrete parking stops, which were installed in 1982 when the building was initially constructed. Because these improvements upon the real property had remained unchanged up until the time of the 1995 accident and Smedsrud's action was brought more than 10 years after their completion, Owner argued that by the terms of § 109 the cause became time-barred. To show Smedsrud's postremand reliance on a construction-and-design-defect theory of liability, Owner directs us to statements in Smedsrud's response6 to Owner's first (pre-appeal) motion for summary adjudication as well as to arguments pressed in his first (pre-appeal) motion for new trial.7

¶9 After the trial court once again gave summary judgment to Owner on his § 109 defense, Smedsrud moved for new trial, arguing that the cited section neither applies to known hidden dangers nor defeats an owner's duty towards invitees to exercise reasonable care to keep the premises in a reasonably safe condition and to warn them of conditions in the nature of hidden dangers. Owner then responded that Smedsrud's claim and his alleged injury are so inextricably intertwined with allegations of negligence per se (based on violation of a city building ordinance) and design-and-construction deficiencies that it is barred by the § 109's statute of repose. He also argued that Smedsrud failed to produce any evidentiary material to establish an essential element of his claim - that Owner had advance notice of any hidden defect which allegedly caused his injury.



¶11 Owner explains that the § 109 defense was not pressed by him in Smedsrud I because there he preferred to urge what he then believed to be the stronger theory - his defenses against premises liability. For the notion that Smedsrud's claim is based on construction-and-design deficiencies, Owner directs us to Smedsrud's own allegations in his response to the first summary judgment motion and in the new-trial motion (that immediately followed the first summary judgment).15 Owner urges upon us extant jurisprudence that indicates common-law liability will be defeated by the statute of repose if the action is based on design-and-construction defects.16 He asserts that § 109 operates to bar Smedsrud's claim because his [61 P.3d 895] pressed theory of liability is inextricably intertwined with allegations of negligent design and construction.17



¶13 Where, on the judgment's reversal, a cause is remanded, it returns to the trial court as if it had never been decided, save only for the "settled law" of the case.

¶14 Smedsrud I clearly settled for this case (a) the claim's parameters as a cause of action in negligence pressed in the framework of premises liability, (b) the sufficiency of the basic facts (then before the court) to support the claim and (c) the triable (fact-based) character of the open-and-obvious condition of the harm-dealing danger.




The Postremand Summary Proceedings Are Inconsistent With the Court's Mandate

¶16 At the postremand stage, i.e., after this court's mandate has been transmitted and spread of record, the trial court is duty-bound to comply with its terms by a careful consideration of the opinion on which it is based.25 If the trial court should fail to do so, the mandate's enforcement may be sought from this court by an original proceeding for a writ of mandamus to compel scrupulous obedience at nisi prius.26


In Post-Remand Proceedings A Plaintiff Could Not Be Forced
to Abandon His Law-Settled Theory

¶18 Owner cannot prevail here on a theory of liability not advanced by Smedsrud in the post-remand process. So long as a plaintiff (or third-party plaintiff or counterclaimant) maintains a legal basis for the claim not eliminated from the purview of postremand proceedings, the adversary will not be allowed to reach for another theory to foist it upon an unwilling plaintiff (or third-party plaintiff or counterclaimant).32 [61 P.3d 897] If there is proof to support multiple theories, all must be submitted under proper instructions.33 Not until all proof has been adduced may the trial court eliminate from submission theories unsupported by evidence. Here, the choice was made for the plaintiff before (a) any proof was adduced and (b) while the case was still under consideration in summary process on remand for proceedings to be consistent with COCA's Smedsrud I pronouncement (and with this court's mandate).

¶19 To change a plaintiff's law-settled liability theory on remand, there must be a record showing of the plaintiff's postremand abandonment or withdrawal of that theory, a postappeal reliance on facts totally inconsistent with the earlier-tendered legal predicate for the claim, or the earlier theory's elimination by settled law.34


The § 109 Statute of Repose


Postjudgment Proceedings On Smedsrud's Motion For New Trial Cured
The Trial Court's Error In Totally Failing To Consider Smedsrud's Premises-Liability Theory At The Postremand Summary-Process Stage

¶22 After certiorari was granted this court directed the parties to show cause why the appeal should not be dismissed for want of jurisdiction. This had to be done because it appeared that the trial judge rested the post-Smedsrud I summary judgment solely on the § 109 time bar, leaving utterly unresolved the premises-liability issue .37 It was not until the parties' show-cause briefs were filed that it became clearly apparent the premises-liability theory was in fact injected into the case in postjudgment stages and then seemingly resolved against Smedsrud in the course of postjudgment rulings upon his new-trial motion. In those postjudgment proceedings, Owner's response to the motion challenged for the first time on remand Smedsrud's legal basis for his premises-liability claim by injecting Owner's want of notice (of the harm-dealing condition on the premises).38 The trial court's denial of Smedsrud's new-trial motion leaves for us a clear record-trail indication that both the motion and Owner's argument were indeed reached for consideration. By its denial the trial court had in factruled out as unsupportive of Smedsrud's claim both theories of liability - that advanced by the plaintiff and that pressed for him by Owner - and left no unresolved issues . Albeit at a postjudgment stage, the trial judge did consider Owner's challenge to premises liability before denying Smedsrud's new-trial quest. The appeal hence comes here from a "judgment"39 rather than from an intermediate order. It is hence invulnerable to dismissal as falling short of disposing of all tendered prejudgment issues.40



¶23 Owner pressed upon the court (in postjudgment proceedings on Smedsrud's new-trial motion) that Smedsrud's claim must fail, insofar as it was sought to be rested on premises liability, because of Owner's lack of notice (of the alleged danger at locus in quo ). This new legal issue, sought to be injected on remand at the eleventh hour, stood clearly eliminated by [61 P.3d 899] the settled law of Smedsrud I. This is so because:

¶24 (1) The sufficiency of Owner's advance notice stands settled by Smedsrud I as a fact issue.41

¶25 (2) The probative material relied on in Smedsrud I to show (a) the open-and- obvious character of the defect in the premises also demonstrates (b) Owner's constructive knowledge of the hazard.42 Smedsrud I settles the law upon both issues. It declares that these two issues present disputed facts to be determined by the trier. Nothing on this postremand record changes the legal characteristics of the earlier settlement in Smedsrud I.

¶26 (3) The postremand notice-of-danger controversy does not tender in law a new fact to be proved. The permanent nature of the harm-dealing condition was already among the record facts.43



¶29 The law settled in the first appeal entitled Smedsrud to press his premises-liability claim on all the facts revealed by the probative materials before the court at the remand stage. Nothing in the postremand proceedings indicates the plaintiff abandoned this theory or that he now relies on some other legal predicate of liability. In the postremand summary process neither the trial court nor the defendant could force upon the plaintiff a theory of recovery different from, and inconsistent with, that which stands protected to him against nisi prius elimination by the settled law of his claim.

¶30 On certiorari granted upon the plaintiff's petition, the Court of Civil Appeals' [61 P.3d 900] opinion is vacated, the trial court's summary judgment is reversed and the cause is remanded for further proceedings to be conducted on a theory consistent with today's pronouncement.


¶32 HARGRAVE, C.J., WATT, V.C.J., LAVENDER andWINCHESTER, JJ., dissent. [61 P.3d 901]


1 Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

2 Because of the awning's size, Owner argued that any danger it posed should be deemed open and obvious to anyone walking nearby. He claimed he is not liable for Smedsrud's injuries because a land occupier has no duty to correct, or warn invitees about, open-and-obvious hazards. Owner asserted that Smedsrud's contentions about duty to warn, placement and design of overhang and Owner's failure to maintain are based on hearsay and bare assertions. According to Owner, Smedsrud was attempting to support the notion that the structure is dangerous by tendering inadmissible "double hearsay" - i.e ., an alleged conversation he had with a store clerk who no longer works there and could not then be found.

3 Smedsrud claimed his attention was diverted from the awning by obstacles in the pathway. These obstacles impaired his ability to appreciate the presence of danger from the overhang, thus masking the hazard and making it neither open nor obvious. He also argued that Owner was negligent per se because the 6' overhang did not meet the Lawton Building Code requirement that a fixed awning be 7' above the sidewalk. Owner initially responded by arguing that Smedsrud's new-trial motion was untimely (because it was brought more than 10 days after summary judgment's entry). He claimed that if one were to concede the building code's applicability as well as his own failure to build the awning according to code requirements, the defect, if any, was merely a "condition" and not the "cause" of Smedsrud's accident.

4 Smedsrud v. Powell [Smedsrud I] (No. 93,699, unpublished opinion of Court of Civil Appeals, Div. III, handed down 10 July 2000)

5 The terms of 12 O.S.2001 § 109 provide that an action may not be commenced against any person performing or furnishing the "design, planning, supervision or observation of construction or construction of an improvement to real property" more than 10 years after the improvement has been substantially completed. For the definition of a statute of repose, see infra note 35.

6 For Smedsrud's response to the first (pre-appeal) summary judgment, see Part I, ¶ 4, supra .

7 For Smedsrud's arguments in his first (pre-appeal) new-trial motion, see Part I, ¶ 5, supra .

8 According to Smedsrud's postremand response [to Owner's second (postappeal) motion for summary adjudication],there are several material fact issues: (a) whether the overhang was an open-and-obvious condition, (b) whether Owner provided invitees a safe ingress and egress to and from his store, (c) whether Owner used ordinary care to prevent a hazardous condition on his property after he was duly warned about its dangerous features, (d) whether Owner exercised ordinary care to correct it after he knew, or should have known, of its existence, (e) whether Owner failed to maintain the premises in a safe condition, (f) whether Owner directed his invitees to pursue a dangerous path to his store, (g) whether Owner's actions in giving directions to invitees were negligent, and (h) whether Owner was negligent in failing to alter the directed course of the traffic and in repairing the change machine.

9 Attached to Owner's nisi prius brief in response to the new-trial motion was an affidavit of Owner's former employee in which she denied telling Smedsrud she was aware of a problem with the awning or that she had expressed concern to anyone about the safety of customers approaching the awning at locus in quo . Smedsrud brought an appeal after nisi prius denial of his motion.

10 For the pertinent terms of 12 O.S.2001 § 109, see supra note 5.

11 COCA examined Gorton v. Mashburn, 1999 OK 100, 995 P.2d 1114, and Abbott v. Wells, 2000 OK 75, ll P.3d 1247.

12 See Part III, infra .

13 See Parts III and V, infra.

14 See Part IV(A) and (B), infra.

15 For Smedsrud's (a) response to the first pre-appeal summary judgment motion and (b) his first new-trial motion, see Part I, ¶¶ 4-5, supra .

16 For this notion Owner directs us to Abbott, supra note 11, at ¶ 4, at 1248.

17 For this argument Owner cites Abbott, supra note 11, and Gorton, supra note 11.

18 Seymour v. Swart, 1985 OK 9, ¶¶ 8-9, 695 P.2d 509, 512-513; Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 35, 952 P.2d 492, 504.

19 Handy v. City of Lawton, 1992 OK 111, ¶ 13, 835 P.2d 870, 873; Jones v. Medlock, 1948 OK 188, ¶ 7, 202 P.2d 212, 214; Morrow Dev. Corp. v. American Bank & Trust Co., 1994 OK 26, n.2, 875 P.2d 411, 413, n.2; Mobbs v. City of Lehigh, 1982 OK 149, n.5, 655 P.2d 547, 549, n.5; Panama Processes v. Cities Service Co., 1990 OK 66, n.27, 796 P.2d 276, 283, n.27.

20 Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 22, 987 P.2d 1185, 1195.

21 In other words, the law settled for this case by Smedsrud I is (a) the presence of all the critical elements required in a cause of action on premises liability and (b) the alleged open-and-obvious character of danger presented by the awning at locus in quo tenders an issue of fact.

22 See supra note 9.

23 The trial court erred in failing to recognize that the settled law of the case(a) protected Smedsrud's premises-liability claim against elimination and (b) assured him of the claim's continued quality of submissibility in postremand proceedings. This is so because neither Smedsrud nor Owner succeeded on remand in changing the basic facts on which Smedsrud I settled the law governing this premises-liability claim.

24 The defense of an open-and-obvious defect often presents a question for the jury. Brown v. Nicholson, 1997 OK 32, ¶ 12, 935 P.2d 319, 323; Jack Healey Linen Service Co. v. Travis, 1967 OK 213, ¶ 9, 434 P.2d 924, 927-28; Henryetta Construction Co. v. Harris, 1965 OK 88, ¶11, 408 P.2d 522, 526.

25 The "mandate" is this court's postopinion order commanding the trial court to comply with the appellate pronouncement. Berland's Inc. of Tulsa v. Northside Village Shopping Center, Inc., 1968 OK 136, ¶ 7, 447 P.2d 768, 696; Gilliland v. Bilby, 1916 OK 340, ¶¶ 4-5, 156 P. 299, 300, 53 Okl. 309.

26 Chronic Pain Associates, Inc. v. Bubenik, 1994 OK 127, ¶ 12, 885 P.2d 1358, 1362; Parks v. Hughes, 1957 OK 132, ¶17, 312 P.2d 435, 437-38; Harris v. Chambers, 1926 OK 566, ¶¶ 4-6, 247 P. 695, 696, 121 Okl. 75.

27 See Part I, ¶ 6, supra.

28 See Part I, ¶ 7, supra.

29 The trial court disobeyed the mandate when it was distracted by Owner's diversionary strategy choices from submitting the case to the jury on the premises-liability claim.

30 For the terms of the settled law, see Part III, supra.

31 See Part IV(B), infra.

32 The pleader of a claim may invoke and advance all affordable theories in a single trial. 12 O.S.2001 § 2008(E)(2); Howell v. James, 1991 OK 47, ¶¶ 6-14, 818 P.2d 444, 446-448. With Oklahoma's adoption of the federal notice-pleading regime, no plaintiff (or third-party plaintiff or counterclaimant) may be compelled to make a choice among multiple theories pressed in prosecuting a single claim. See American Intern. Adjustment Co. v. Galvin, 86 F.3d 1455, 1460 (7th Cir. 1996)(Fed.R.Civ.P. 8(e)(2) abolished the doctrine of election of remedies in federal courts).

33 A plaintiff who states a claim and proves its facts is entitled to any relief affordable by law. Howell, supra note 32 at ¶ 11, at 446-48; Chandler v. Denton 1987 OK 38, ¶ 11 n.13, 741 P.2d 855, 862 n. 13. At the submission stage, the court must charge the jury on all the theories of recovery the evidence may support. Great Plains Federal Sav. and Loan Ass'n v. Dabney, 1993 OK 4, ¶ 3, 846 P.2d 1088, 1096 (Opala, J., concurring).

34 A judgment must determine all issues raised by the pleadings except those which are waived, abandoned at trial or eliminated by pretrial order. Eason Oil Co. v. Howard Engineering, Inc., 1988 OK 57, ¶ 1 n.1, 755 P.2d 669, 670 n.1.

35 For the definition of a statute of repose see Reynolds v. Porter, 1988 OK 88, ¶¶ 6-7, 760 P.2d 816, 819-20; Smith v. Westinghouse Elec. Corp., 1987 OK 3, ¶ 6, n.11, 732 P.2d 466, 468-69. A statute of repose, which restricts potential liability by limiting the time during which a cause of action can arise, targets the discovery rule. The latter allows limitations in tort cases to be tolled until the injured party knows or, in the exercise of reasonable diligence, should have known of its injury. Reynolds, supra, at ¶ 6, n. 8, at 820. The discovery rule does not apply to the facts of this premises-liability claim. It is hence outside the issues here.

36 In Abbott, supra note 11, at ¶ 4, at 1248, the court held that the plaintiff's claim was "based on common-law negligence for failure to warn an invitee of a hidden danger, not liability, statutory or otherwise, based on design and construction defects" and was hence not barred by the § 109 statute of repose. Id. at ¶ 4 at 1248 (emphasis added). The court also (1) noted that the plaintiff's certiorari petition had clearly rejected a construction-defect theory for the claim and (2) distinguished Abbott from Gorton, supra note 11, where § 109 barred the plaintiff's claim predicated on a defectively-designed-and-constructed bridge. In Gorton the plaintiff had also advanced a negligent-maintenance theory for the purpose of establishing a building-code violation. This, the court held, demonstrated that the claim was based, not on premises liability, but on a construction-and-design defect. Smedsrud, like the plaintiff in Abbott, has firmly and consistently rejected (in all postremand proceedings) any notion that his claim may also be pressed on a construction-and-design defect.

37 Before summary judgment may be given, the trial court is "not only authorized but [indeed] required to rule out all theories of liability fairly comprised within the evidentiary materials before [it]." Hadnot v. Shaw, 1992 OK 21, ¶ 25, 826 P.2d 978, 987; Silver v. Slusher, 1988 OK 53, ¶¶ 6-7, 770 P.2d 878, 881-82 (the court eliminated several theories of recovery, holding only one applicable to the case); Akin v. Missouri Pacific R. Co.,1998 OK 102, ¶ 9, 977 P.2d 1040, 1044 (to prevail as movant for summary relief, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff's theory (or theories) of recovery or (b) prove each essential element of an affirmative liability-defeating defense by showing in either case that, as a matter of law, the plaintiff has no viable cause of action). An order that summarily eliminates but a single theory of liability out of at least two known (or possible) theories advanced does not rise to the status of a judgment in the 12 O.S.2001 § 681 sense. It is nothing more than an intermediate order. See 12 O.S.2001 § 952; City of Lawton v. International Union of Police Associations, 2002 OK 1, ¶ 5, 41 P.3d 371, 374; King v. Finnell, 1979 OK 155, ¶¶11-12, 603 P.2d 754, 756 (in a mortgage foreclosure action the order tendered for review fell short of a judgment because only one of several issues in the claim had been resolved). See also Eckels v. Traverse, 1961 OK 138, ¶ 4, 362 P.2d 680, 682, where the court excused the trial court's failure to dispose of a liability theory that was plainly time-barred.

38 See Part I, ¶ 9, supra.

39 12 O.S.2001 § 681.

40 Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, ¶¶6-7, 820 P.2d 1338, 1341; King, supra note 37, at ¶¶ 11-12, at 756.

41 See Part III, supra.

42 The open-and-obvious defect defense presupposes that quantum of advance notice to the owner/occupier which is generally shared in common with the public. In Williams v. J.J. Butler, Inc., 558 S.E.2d 449, 451 (Ga.App. 2001), the court held that if a permanent, patent, dangerous condition exists on the premises, the owner/occupier is deemed to have constructive knowledge of the hazardous condition through the passage of time. Constructive knowledge can be established by circumstantial evidence showing that the condition existed for such a length of time that the defendant should have known of its presence. Wal-Mart Stores, Inc. v. Reggie, 714 So. 2d 601, 603 (Fla.App.1998); Silver Springs Moose Lodge No. 1199 v. Orman, 631 So. 2d 1119, 1121 (Fla.App.1994). See also Lingerfelt v. Winn-Dixie Texas, Inc., 1982 OK 44, ¶ 28, 645 P.2d 485, 489, where this court dispensed with the notice requirement because there was evidence connecting to an occupier's agent the presence of a harm-dealing piece of slippery fruit that fell off a negligently stacked display in a grocery store.

43 COCA noted in Smedsrud I that the awning may have been constructed in 1982 and remained unchanged until after the time of the incident. COCA's observation was based on Owner's affidavit, tendered in Smedsrud I (and later in II), which described the permanent condition of the awning.