MCCATHERN v. CITY OF OKLAHOMA CITY

MCCATHERN v. CITY OF OKLAHOMA CITY
2004 OK 61
95 P.3d 1090
Case Number: 98735
Decided: 07/06/2004
As Corrected: July 13, 2004
THE SUPREME COURT OF THE STATE OF OKLAHOMA

DEBORAH MCCATHERN, Plaintiff-Appellant,
v.
CITY OF OKLAHOMA CITY, Defendant-Appellee,

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III

¶0 Plaintiff alleged bodily injury when she tripped on a raised sprinkler head located adjacent to the sidewalk at city hall. She sought to recover from the city. The District Court, Oklahoma County, Vickie L. Robertson, Judge, gave summary judgment to the city. The Court of Civil Appeals, Division III, affirmed. Certiorari was granted earlier and the cause remanded to COCA for its reconsideration in light of the most recent applicable law on premises liability. Upon remand, COCA reversed its earlier decision. On certiorari previously granted upon the city's petition,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE TRIAL
COURT'S SUMMARY JUDGMENT IS REVERSED AND
THE CAUSE REMANDED FOR FURTHER PROCEEDINGS TO BE
CONSISTENT WITH TODAY'S PRONOUNCEMENT.

Rex D. Brooks, Oklahoma City, for Appellant,
William R. Burkett, Municipal Counselor, Orval Edwin Jones, Assistant Municipal Counselor, and Jami Jarnigan, Assistant Municipal Counselor, Oklahoma City, for Appellee.

¶1 This certiorari presses two questions for our decision: (1) Did the terms of 51 O.S. Supp. 1984 § 155(13), the Governmental Tort Claims Act (GTCA), which is urged to have enlarged the range of government's immunity from liability for negligent inspections, also alter the common-law principles of liability that bind the government? and (2) Did the trial judge err by giving summary judgment to the city? We answer the first question in the negative and the second in the affirmative.

I.
ANATOMY OF THE LITIGATION

¶2 Deborah McCathern (McCathern or appellant) alleges injuries sustained from a fall on 20 March 2001 when she tripped over an irrigation-system sprinkler head located adjacent to a sidewalk on the lawn of city hall, a government building owned by Oklahoma City (city or appellee).2 She filed a negligence-based claim urging the city failed to maintain its premises with due care. McCathern asserts that although the irrigation system was not in use at the time of her injury, its head had not receded and was protruding two or three inches above the lawn. The sprinkler head is located immediately adjacent to a sidewalk corner. A type of decorative grass, commonly called "monkey grass or Liriope," surrounds the sprinkler head. McCathern presented proof (by evidentiary materials) that the ornamental grass was last cut back approximately three weeks earlier and that the city had performed repairs on the irrigation system around the same time.3

¶4 The Court of Civil Appeals (COCA), Div. III, concluded the city was immune from liability and affirmed the trial court's summary judgment. Its opinion was bottomed on an earlier COCA pronouncement, Reynolds v. Union Public Schools.

¶5 During the pendency of her certiorari we promulgated Moran v. City of Del City.

¶6 COCA refused to authorize additional briefs, concluding the trial tribunal's summary judgment was improper (based on the urged post-1984 § 155(13) exemption). The city's two additional arguments, presented at nisi prius but not reviewed earlier, were then examined. COCA (1) rejected the city's argument that the protruding sprinkler head constituted a "trivial defect" and (2) ruled the evidentiary materials provided to the trial court tendered a disputed issue of whether the protruding sprinkler head could have been readily seen. Vacated was COCA's earlier decision affirming summary judgment and the cause was remanded for further proceedings to be consistent with the second opinion. The city's certiorari petition was then granted.

II.
ARGUMENTS ON CERTIORARI

¶7 The city contends that the trial court's summary judgment in its favor was proper because (1) an examination of antecedent § 155(13) legislation reveals the 1984 amendment enlarged the inspection immunity by diminishing a municipality's proprietary duty to inspect for defects in its own premises, (2) the city had no notice that the sprinkler head had not receded, and it was hence under no common-law duty to repair the defect or warn the public of its existence and (3) the defect, if it did exist as McCathern claims, is trivial, and the city is therefore relieved from any liability for the occasioned harm.

¶8 McCathern responds: (1) the city's argument dealing with earlier legislation presents a matter of first impression, and because it was not raised at nisi prius it may not be reached by this court, (2) the GTCA is the exclusive remedy regardless of whether the offending activity is governmental or proprietary,7 (3) the city had sufficient notice of the malfunctioning sprinkler head to be charged with its knowledge and for liability to attach, and (4) the trial court's summary judgment is devoid of support in the submitted evidentiary material. Because the trial court's disposition was effected by summary judgment, the issues on review stand before us for de novo examination.8

III.
A.
WHEN IT AMENDED THE TERMS OF 51 O.S. 1981 §155(13), THE
LEGISLATURE DID NOT ABROGATE THE DUTY OF CARE THAT A
MUNICIPALITY - QUA LANDOWNER - OWES UNDER THE COMMON-
LAW RULES OF PREMISES LIABILITY

¶9 The city urges that a review of the pre-1984 §155(13) inspection immunity is necessary to understand the legislature's intent when drafting the 1984 exception. A consideration of statutory intent in light of antecedent legislation, according to the city, merits reconsideration or perhaps modification of the court's Moran pronouncement.

¶10 McCathern first contends that because the city's legislative-intent argument was never presented to the trial court it is not reviewable here.9 Today's cause reaches us on certiorari.10 Review of a COCA opinion by certiorari presents a matter of judicial discretion.11 It is granted by a majority of the court when there are special and important reasons.12 We granted certiorari and permitted supplemental briefing in order to pass upon the city's legislative-intent argument.

¶11 In the course of the review process the city did not know that the antecedent of §155(13) would become an issue. It arose after McCathern first petitioned for certiorari and was necessitated by the court's intervening pronouncement in Moran. The district court could not have known about this change in jurisprudence until after its summary judgment for the city. Before its re-examination of Moran, COCA chose not to allow supplemental briefs and, in accordance with our direction, reviewed its earlier decision in this case by the standards of Moran. This concatenation of events created, in essence, an issue not correctable by any other tribunal. The ensuing process thrusts on the city an element which militates in favor of permitting it to present the legislative-intent argument for the first time before an appellate tribunal. We hence accept supplemental briefs in support of this argument. To do less would impair a litigant's opportunity to meet a new issue and limit the city's right to be heard.13

¶14 The city's argument is, in essence, that the duty of care it owes an individual must turn on our construction of the legislature's intent when amending § 155(13) in 1984.

¶15 The common-law doctrine of sovereign immunity was abrogated in 1983 by Vanderpool v. State.

¶16 The city's argument is unconvincing. Our review of the statutory texts show no intent to reduce the duty of care that is to be exercised by a political unit qua landowner.

¶17 The central principle embodied by the GTCA is that private tort law is neither abridged nor enlarged by that act.

¶18 Neither do we see a jurisprudential basis for modifying the common-law premises liability to lower municipal responsibility for substantial defects. The city's advanced argument for seeking relief - that the burden of having "constructive notice" of defects will have a detrimental impact on city operations and "actual notice" will provide a better, more workable standard - reflects a policy the city prefers but not that which we may divine as established by the GTCA. If the common law is to be abrogated or modified, it must be done by creation of clearly expressed legislative immunity, not by the court's fiat. In sum, the standard of care to which a municipality is to be held in premises liability remains unaltered by the 1984 version of the GTCA.

B.
AN IRRIGATION-SYSTEM SPRINKLER HEAD LOCATED ADJACENT
TO A SIDEWALK DOES NOT, AS A MATTER OF LAW, CONSTITUTE A
TRIVIAL DEFECT

¶19 The city urges that COCA erred by limiting application of the "trivial defects" doctrine to paved areas such as sidewalks. It contends that slight defects are not actionable under premises liability standards regardless of where they occur.

¶20 A municipality will not be liable for every defect or obstruction in its public ways.

C.
BECAUSE THE CITY COULD HAVE RAISED AT NISI PRIUS (BUT DID
NOT DO SO) LACK OF NOTICE OF THE MALFUNCTIONING
SPRINKLER HEAD, WE REFRAIN FROM REVIEWING THIS ISSUE

¶22 The city's final argument is that it lacked notice of the malfunctioning sprinkler head. Lack of notice is an on-the-merits defense against the claim. It may be raised by pleadings, by argument presented at a hearing or by tendering appropriate evidentiary material. Here it was neither pled nor called to the trial court's attention as a disputed issue on the merits during the court's summary process of adjudication. Because this issue, unlike the city's legislative-intent argument, could and should have been raised before the trial court, we decline to depart from our usual course to permit its review here.52

IV.
SUMMARY

¶23 The city's argument - that the legislature's 1984 enlargement of the GTCA's §155(13) inspection immunity to include all property inspected by and qua governmental units also altered the common-law standards of premises liability then applicable to these cases - is hollow. Abrogation of the common law must be explicit, unambiguous and the government's immunity conferred by doubt-free language. Our review of the tendered statutory text reveals no divinable indicia of intent to reduce the duty of care imposed upon municipal landowners by the common law. Neither do we find validity in the city's contention that a raised sprinkler head adjacent to a sidewalk constitutes, as a matter of law, a slight or trivial defect for which the city bears no liability to one injured by the part's failure to recede.

¶24 On certiorari previously granted upon the city's petition, the Court of Civil Appeals' opinion is vacated; the trial court's summary judgment is reversed and the cause remanded for further proceedings to be consistent with today's pronouncement.

¶25 WATT, C.J., OPALA, V.C.J., HODGES, KAUGER, BOUDREAU and EDMONDSON, JJ., concur.

¶26 LAVENDER, HARGRAVE and WINCHESTER, JJ., dissent.

FOOTNOTES

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

2 McCathern was en route to a proceeding in city hall when the accident occurred. The parties do not dispute that she stood in the status of an invitee.

3 The city's records indicate that on 5 February, 20 February and 6 March of 2001 either some installations or repairs were made to the irrigation system located on the city hall lawn. The records do not reflect the nature of the installation or repairs nor on which specific portion of the irrigation system the work was performed. Indicated by the records is bed maintenance on 26 February, 5 March and 23 March of that year. The city's maintenance supervisor's affidavit shows that the monkey grass was scalped in early March 2001.

4 The terms of 51 O.S. 2001 § 155 (13), the statute in effect at the time of McCathern's injury, provide:

"The state or a political subdivision shall not be liable if a loss or claim results from:
13. Inspection powers or functions, including failure to make an inspection, review or approval, or making an inadequate or negligent inspection, review or approval of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety, or fails to conform to a recognized standard; ***"

5 Reynolds v. Union Public Schools, 1998 OK CIV APP 101, 976 P.2d 557. Reynolds held a municipality was exempt from liability under the GTCA's inspection exemption when a trim ring on a public school's overhead light fixture fell on and injured Reynolds - despite plaintiff's attempts to define her case as one of negligent maintenance rather than negligent inspection. Although published, Reynolds did not receive precedential effect.

6 Moran v. City of Del City, 2003 OK 57, 77 P.3d 588. Moran teaches maintenance of city property differs from its § 155(13) inspection power and function; irrespective of its inspection immunity a municipality may be liable for negligent maintenance of its own property.

7 Appellant anticipated this argument from the city and addressed it in her brief. Because the city did not raise this issue, we do not need to discuss it here.

8 Mustain v. Grand River Damn Authority, 2003 OK 43, ¶ 8, 68 P.3d 991, 994. De novo review is utterly nondeferential. It ascribes no deference to a lower tribunal's findings or conclusions. Meyers v. Missouri Pacific Railroad Co., 2002 OK 60, ¶ 9, 52 P.3d 1014, 1019.

9 Appellant contends first-instance determinations of law or fact are the province of the trial court. Dyke v. St. Francis Hosp. Inc., 1993 OK 114, ¶ 11, 861 P.2d 295, 299-300; Hadnot v. Shaw, 1992 OK 21, ¶ 15, 826 P.2d 978, 983. An appellate court cannot on review take notice of any material that was not properly before the trial court. Hart v. McVay, 1992 OK 47, ¶ 14, 832 P.2d 822, 825; McGhee v. McAllister, 1970 OK 152, ¶ 5, 474 P.2d 940, 941.

Appellant acknowledges that certiorari review is discretionary but nonetheless urges that examination of today's case is not in conformance with the rules that govern Supreme Court review. She urges that COCA's decision on remand has not departed from the law settled by Moran and our review is unnecessary. The text of Rule 1.178(a)(4), Review by the Supreme Court, provides:

"(a) Reasons for Certiorari.
A review of an opinion of the Court of Civil Appeals in the Supreme Court on writ of certiorari . . . is a matter of sound discretion . . . and will be granted only when there are special and important reasons and a majority of the justices direct that certiorari be granted. The following, while neither controlling nor fully measuring the Supreme Court's discretion, indicate the character of reasons which will be considered.
***(4) Where the Court of Civil Appeals has so far departed from the accepted and usual course of judicial proceedings or so far sanctioned such procedure by a trial court as to call for the exercise of this Court's power of supervision.***" (Emphasis supplied)

10 For the terms of Rule 1.178, Oklahoma Supreme Court Rules, see supra note 9.

11 For the terms of Rule 1.178, Oklahoma Supreme Court Rules, see supra note 9.

12 For the terms of Rule 1.178, Oklahoma Supreme Court Rules, see supra note 9.

13 The core element of due process is the right to be heard. Booth v. McKnight, 2003 OK 49, ¶ 18, 70 P.3d 855, 862 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L.Ed 865 (1950)).

14 Appellee's supplemental brief on certiorari, p. 8.
The text of 51 O.S. Supp. 1984 §155(13) provides:
The state of a political subdivision shall not be liable if a loss or claim results from:
***13. Inspection powers or function, including failure to make an inspection, or making an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety;" (Emphasis supplied)

15 The text of 51 O.S. Supp. 1981 §155(13) - that enactment in force prior to the 1984 amendments and titled the Political Subdivision Tort Claims Act (PSTCA) - provides:
"A political subdivision or an employee acting within the scope of his employment shall not be liable if a loss results from:
*** 13. Inspection powers or functions, including failure to make an inspection, or making an inadequate or negligent inspection, of any property other than the property of the political subdivision to determine whether the property complied with or violates any law or contains a hazard to health or safety;" (Emphasis supplied)

16 City's supplemental brief, p. 7. For the terms of 51 O.S. Supp. 1981 §155(13) see supra note 15.

17 For a comparison of the 1984 and pre-1984 §155(13) texts, see supra notes 14 and 15.

18 Appellee urges that in Moran what is described as a landowner's obligation - to be familiar with its property - is actually a business owner's obligation. The general property owner has no duty to inspect. (Appellee's petition for certiorari, p. 9) The city urges that an exemption for liability that requires the government to exercise the duty of care applied to land owners as opposed to that applied to business owners hardly presents an end to government liability across the board. (Appellee's supplemental brief, p.10)

19 Appellee's supplemental brief, p.10

20 Appellee's supplemental brief, p.10.

21 In Moran and the instant case, contends the city, plaintiffs were fighting an obsolete battle - whether the municipality had breached its "ministerial" duty to mow the grass on its own property and thus to discover alleged property hazards. (Appellee's supplemental brief, p 10) It buttresses its argument by noting the heavy burden the Moran decision places on the city and urges that actual notice is a more workable standard for local governments when dealing with premises liability cases. Appellee compares the § 155(13) text with the duty-to-inspect language found in § 155(16) (that deals with roadway markings and traffic signals) and notes the latter is clearly imposed vis-a-vis legal terms of art in contrast to the § 155(13) text. (Appellee's supplemental brief, p. 11)

22 Appellee's supplemental brief, p. 10.

23 Appellee's supplemental brief, p. 12.

24 Byford v. Town of Asher, 1994, OK 46, ¶ 8, 874 P.2d 45, 52 (Opala, J., concurring).

25 Rider v. City of Norman, 1970 OK 200, ¶ 5, 476 P.2d 312, 313; Evans v. City of Eufaula, 1974 OK 116, ¶ 25, 527 P.2d 329, 332, Byford, supra note 24, at ¶ 8 at 52.

26 Rider, supra note 25, at ¶ 5 at 313; Byford, supra note 24, at ¶ 8 at 52.

27 Rider, supra note 25, at ¶ 5 at 313; Evans, supra note 25, at ¶ 26 at 332; Byford, supra note 24, at ¶ 8 at 52 (Opala, J., concurring).

28 Byford, supra note 24 at ¶ 7 at 52 (Opala, J., concurring).

29 Vanderpool v. State of Oklahoma Historical Society, 1983 OK 82, ¶ 19, 672 P.2d 1153, 1156-57 (vitalized by the enactment of the Governmental Tort Claims Act, 51 O.S. Supp. 1984 et seq.).

30 The text of 51 O.S. 2001 §152.1(B) provides:
"The state, only to the extend and in the manner provided in this act, waives its immunity and that of its political subdivisions.***"

31 The terms of 51 O.S. 2001 §153 provide:
"A. The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state.***"

The terms of 51 O.S. 2001 §152(11) define a tort as:

"***'Tort' means a legal wrong, independent of contract, involving violation of a duty imposed by general law or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment."

32 The city is both a governmental unit and a landowner. The 1984 amendment dealt with the city as a governmental unit that exercises powers and functions of property inspection, whereas we are dealing in this lawsuit, as well as we did in Moran, with the city as a landowner. Without clear legislative direction, these two capacities cannot be intermixed.

33 Nelson v. Pollay, 1996 OK 142, ¶ 6, 916 P.2d 1369, 1373 (citing Anderson v. Eichner, 1994 OK 136, ¶ 11, 890 P.2d 1329, 1336 n.15); So-Lo Oil Company, Inc. v. Total Petroleum, Inc., 1992 OK 71, ¶ 8, 832 P.2d 14, 18; Humphrey v. Denney, 1988 OK 69, ¶ 8, 757 P.2d 833, 835; Matter of Phillips Petroleum Co., 1982 OK 112, ¶ 5, 652 P.2d 283, 285; Lancaster v. State, 1967 OK 84, ¶ 6, 426 P.2d 714, 716; State v. Dinwiddie, 1939 OK 406, ¶ 10, 95 P.2d 867, 869 (1939).

34 The terms of 12 O.S. 2001 § 2 state:
"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; . . ."

35 The common law forms "a dynamic and growing" body of rules that changes with the conditions of society and hence may be modified from time to time. Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, ¶ 11, 725 P.2d 300, 303; State v. One 1965 Red Chevrolet Pickup, 2001 OK 82, ¶ 13, 37 P.3d 815, 820; State Mut. Life Assur. Co. Of America v. Hampton, 1985 OK 19, ¶ 3, 696 P.2d 1027, 1036 (Opala, J., concurring); Brashier v. Farmers Ins. Co., Inc., 1996 OK 86, ¶ 8, 925 P.2d 20, 24 (overruled in part on another issue); Reaves v. Reaves, 1905 OK 32, ¶ 14, 82 P. 490, 494, 15 Okl. 240.

36 Brashier supra note 36, at ¶ 8 at 24; Tate v. Browning-Ferris, 1992 OK 72, ¶ 11, 833 P.2d 1218, 1225-26; Silver v. Slusher, 1988 OK 53, ¶ 10, 770 P.2d 878, 884; Hampton, supra note 35, at ¶ 3 at 1036 (Opala J., concurring); Ricks Exploration v. Okl. Water Resources Bd., 1984 OK 73, ¶ 12, 695 P.2d 498, 504.

37 Tate, supra note 36, at ¶ 11 at 1226; Reaves, supra note 35 at ¶ 14 at 495.

38 Hughey v. Grand River Dam Authority, 1995 OK 56, ¶ 5, 897 P.2d 1138, 1141.

39 Hughey, supra note 38, at ¶ 5 at 1141; Jarvis v City of Stillwater, 1983 OK 88, ¶ 10, 669 P.2d 1108, 1111 (statutorily abrogated on other grounds).

40 Unless explicitly immunized by law, a political subdivision is liable in tort. Jarvis, supra note 39, at ¶ 10 at 1111. We will not presume municipal immunity from a legislative text that is silent, doubtful or ambiguous. Jarvis, at ¶ 10 at 1111.

41 Jarvis, supra note 39, at ¶ 10 at 1111.

42 The city further urges the trivial defects "doctrine actually arises as another description of the duty of care." "In other words, only defects that are not trivial are actionable." (Appellee's supplemental brief, p.13) Appellee's definition of a legal "duty of care" is not well taken.

43 Rider, supra note 25, at ¶ 5 at 313; Evans, supra note 25, at ¶ 26 at 332; Byford, supra note 24, at ¶ 9 at 52-53 (Opala, J., concurring).

44 Rider, supra note 25, at ¶ 5 at 313; Evans, supra note 25, at ¶ 25 at 332; Byford, supra note 24, at ¶ 9 at 52-53 (Opala, J., concurring).

45 Rider, supra note 25, at ¶ 5 at 313; Evans, supra note 25, at ¶ 26 at 332; Byford, supra note 24, at ¶ 9 at 52-53 (Opala, J., concurring).

46 Rider, supra note 25, at ¶ 5 at 313; Evans, supra note 25, at ¶ 27 at 332; Byford, supra note 24, at ¶ 9 at 52-53 (Opala, J., concurring).

47 Rider, supra note 25, at ¶ 5 at 313; Evans, supra note 25, at ¶ 28 at 332; Byford, supra note 24, at ¶ 9 at 52-53 (Opala, J., concurring).

48 A sidewalk hole approximately three inches deep and ten inches wide was not held, as a matter of law, to be a slight defect. City of Tulsa v. Lewis, 1941 OK 275, ¶¶ 12-13, 117 P.2d 784, 786. A hole in a sidewalk one-inch deep and three to eight inches wide was held a slight or trivial defect. City of Marietta v. Bigham, 1945 OK 282, ¶ 7, 162 P.2d 999, 1000. The trial court did not err in refusing to apply the trivial defects doctrine to a protruding meter box on an unpaved, well-beaten pathway known by the city to be used by pedestrians. Oklahoma City v. Marshall 1946 OK 195, ¶ 4, 169 P.2d 1020, 1021, 197 Okl. 302. A defect in steps created by earth and grass roots causing the steps to vary in depth three to six inches was not a trivial defect. City of McAlester v. Nelson, 1960 OK 262, ¶ 8, 357 P.2d 995, 996.

49 The city, in its certiorari materials, did not contest COCA's ruling that the sprinkler head in contest here constituted a question of fact as to whether the nature of the defect was "open and obvious." An issue tendered and decided on appeal but not reasserted by petition or counter-petition for certiorari stands abandoned. See the provision of Rule 1.180 (b), Supreme Court Rules, 12 O.S. 2001, Ch. 15, App.1; Hough v. Leonard, 1993 OK 112, ¶¶ 15-16, 867 P.2d 438, 445-46.

50 City of Holdenville v. Tally, 1952 OK 34, ¶ 13, 240 P.2d 761, 763 (citing City of Muskogee v. Roberts, 1943 OK 235, ¶ 20, 141 P.2d 100, 102-03; Oklahoma City v. Stewart, 1932 OK 108, ¶ 7, 8 P.2d 30, 32, 155 Okl. 37).

51 Tally, supra note 50, at ¶ 13 at 763.