Hodges v. Wal-Mart Stores East, L.P. et al

Filing 24

OPINION AND ORDER by Judge John E Dowdell ; denying 15 Motion for Summary Judgment (JED1, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
REBECCA HODGES,
Plaintiff,
v.
WAL-MART STORES EAST, L.P. et al.,
Defendants.

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Case No. 16-CV-195-JED

OPINION AND ORDER
Before the Court is the Motion for Summary Judgment (Doc. 15) filed by the defendant,
Wal-Mart Stores East, L.P. Defendant argues that the hazardous condition that caused plaintiff’s
injuries was open and obvious, such that defendant had no duty to protect plaintiff from it or to
warn her of the condition. Plaintiff argues that the evidence presents an issue of fact as to whether
the dangerous condition was open and obvious.
I.

Background
On July 15, 2015, at approximately 4:00 p.m., the plaintiff, a 76-year-old woman, was

shopping with her husband at the Wal-Mart store in Bixby, Oklahoma. They were in the outdoor
garden center area, shopping for mulch. Plaintiff saw a large machine in the aisle near some mulch
that she wanted to view up close. The record evidence is conflicting as to whether plaintiff
understood at that time that the machine was a forklift, specifically, but it is undisputed that she
saw a large machine there. Plaintiff scooted between the forklift and the aisle to take a closer look
at the mulch. As she was “scooting back” down the aisle, she tripped on one of the forks of the
forklift – which were lowered to the pavement – and fell, fracturing her right humerus. She
testified that she did not see the forks of the machine before she fell.

The forklift was unattended, and its forks were not marked with any flag or other apparent
warning. Plaintiff has presented evidence supporting her assertions that the forklift forks were
gray, they were lowered to the gray concrete floor, and they were aligned with shadows on the
concrete. She therefore argues that the presence of the forks on the floor was not open and obvious.
II.

Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
courts thus must determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. The non-movant’s evidence is taken as true, and all justifiable and reasonable
inferences are to be drawn in the non-movant’s favor. Id. at 255. The Court may not weigh the
evidence and may not credit the evidence of the moving party and ignore the non-movant’s
evidence. Tolan v. Cotton, 572 U.S. ___, 134 S. Ct. 1861, 1866 (2014) (per curiam).
III.

Analysis
Defendant’s motion is premised entirely upon an argument that the forklift was an open

and obvious condition, such that defendant had no duty to warn or to protect plaintiff. Under
Oklahoma law, the courts in such cases first determine the plaintiff’s status, as a trespasser,
licensee, or invitee. Wood v. Mercedes-Benz of Okla. City, 336 P.3d 457, 459 (Okla. 2014).1 Here,

In this diversity suit, the Court is to “ascertain and apply [Oklahoma] law [and reach] the result
that would be reached by [an Oklahoma] court.” See Martinez v. Angel Exploration, LLC, 798
F.3d 968, 973 (10th Cir. 2015) (applying Oklahoma law in diversity premises liability action).
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it is undisputed that plaintiff enjoyed the status of an invitee while she was shopping at the Bixby
Wal-Mart. “[A] property owner, as an invitor, owes the highest duty of care to an invitee.” Wood,
336 P.3d at 459. With respect to an invitee, a property owner must “exercise reasonable care to
keep the premises in a reasonably safe condition and to warn of conditions which [are] in the nature
of hidden dangers, traps, snares, or pitfalls.” Id. (quoting Martin v. Aramark Servs., Inc., 92 P.3d
96, 97 (Okla. 2004)); see also Sholer v. ERC Mgmt. Group, LLC, 256 P.3d 38, 43 (Okla. 2011).
However, the owner “need not guard the invitee against dangers so apparent and readily observable
that the conditions should be discovered.” Sholer, 256 P.3d at 43. “In other words, a landowner
has no duty to render safe an ‘open and obvious’ danger.” Martinez, 798 F.3d at 975.
The Oklahoma Supreme Court has “rejected the ‘open and obvious defense’ in a number
of cases where the condition or defect was visible but unseen by the plaintiff.” Id. In doing so,
that court has reasoned:
A danger need not be totally or partially obscured from vision or withdrawn from
sight to be considered hidden. Rather, it may encompass a condition presenting a
deceptively innocent appearance of safety, cloaking a reality of danger. It may also
arise from circumstances diverting the plaintiff’s attention from the danger.
Therefore, not every “observable” condition is “open and obvious” as a matter of
law. Whether harm from an open and obvious defect may be actionable depends
on an objective due care standard, i.e., whether under similar circumstances a
prudent person would be able to see the defect and avoid being injured.
Nevertheless, it is well established in our jurisprudence that, where conflicting
evidence is presented on the issue of the open and obvious nature of a defect, the
question must be resolved by the trier of fact. What would normally be considered
an open and obvious danger may become a latent defect because of the conditions
existing at the time of injury.
Id. at 43-44. “All of the circumstances must be examined to determine whether a particular
condition is open and obvious to the plaintiff or not.” Zagal v. Truckstops Corp. of America, 948
P.2d 273, 275 (Okla. 1997). “[T]he characteristic of an item as being observable . . . cannot, by
itself, require that item to be declared as a matter of law an open and obvious danger.” Id.

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Applying Oklahoma law and considering all of the circumstances identified in the record,
summary judgment is not appropriate in this case. The record evidence, drawn in plaintiff’s favor
as is required at this stage, presents a genuine dispute of material fact as to whether the forks of
the forklift were open and obvious. Plaintiff testified that, although she saw a large machine and
scooted past it to get a closer look at the brown mulch, she did not see the protruding forks of the
forklift on the ground before she tripped over one of them and was injured. There is additional
evidence that the sun was shining, causing shadows from the forklift to align with and obscure the
gray forks which were on the ground and not otherwise obviously marked or visible. (See Doc.
18-2, 20-1; see also Doc. 18-5 at 2-3).
Numerous Oklahoma decisions support the denial of summary judgment under these
circumstances. See, e.g., Zagal, 948 P.2d at 274-75 (summary judgment improper where plaintiff
was injured after tripping on a large box, which she claimed she did not see because it was partially
hidden from view); Roper v. Mercy Health Center, 903 P.2d 314 (Okla. 1995) (issue for jury as to
whether small light fixture in sidewalk, which plaintiff allegedly did not see and then tripped over,
could be considered hidden); Spirgis v. Circle K Stores, Inc., 743 P.2d 682 (Okla. Civ. App. 1987),
approved for pub. by Okla. Sup. Ct. (issue of fact as to whether a pothole was hidden because of
traffic); Phelps v. Hotel Mgmt., Inc., 925 P.2d 891 (Okla. 1996) (although glass bowl on which
plaintiff hit her head was visible, its allegedly dangerous position relative to the seating area was
not necessarily, as a matter of law, open and obvious); Sholer, 256 P.3d at 42-44 (issue of fact
precluding summary judgment as to whether the danger of diving head first into a pool was open
or obvious where there was evidence that the pool lighting created shadows in the pool, and other
conditions existed, which caused the depth of the water to be deceptive); Hansen v. Academy, 136
P.3d 725 (Okla. Civ. App. 2006), cert. denied (issue of fact as to whether boat trailer tongue

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protruding from a displayed boat was open and obvious where plaintiff testified that she did not
see it and was distracted by the display).2
The defendant’s motion for summary judgment (Doc. 15) is denied.
SO ORDERED this 30th day of April, 2017.

Plaintiff further argues that Wood, 336 P.3d at 459-60, abrogated the open and obvious
danger doctrine as to invitees like her. However, the court in Wood expressly stated that its
“opinion should not be construed as abrogating the open and obvious defense in all cases.” Id. at
460, n.8. “The reach of Oklahoma’s newly recognized exception to the open and obvious doctrine
is yet to be determined, but it clearly applies in situations like Wood where a business invitee is
‘present to fulfill [his or] her employer’s contractual duty to provide service,’ the invitee’s
‘presence and exposure to the hazardous . . . condition was compelled to further a purpose of the
[defendant],’ and the invitee was ‘required to encounter ‘the hazardous condition in furtherance of
[his or] her employment.’” Martinez v. Angle Exploration, LLC, 798 F.3d 968, 978 (10th Cir.
2015). District courts asked to apply the Wood exception have generally considered it applicable
only to situations where the owner could foresee the plaintiff’s injury because the plaintiff had no
choice but to traverse an obvious and open danger. See, e.g., Fuqua v. Deer Run Apts., 16-CV318-CVE, 2017 WL 1193061 (N.D. Okla. Mar. 29, 2017) (“In Wood, the Oklahoma Supreme
Court created an exception to the open and obvious doctrine based on foreseeability, and in that
case the plaintiff’s injury was foreseeable because she needed to cross the dangerous ice to perform
her job. . . . Here, Wood applies because it was foreseeable that plaintiff would go down the dark
staircase despite its obvious danger because it was the only way to exit her apartment building
after dark.”); Bower v. Donley-Kirlin Joint Venture, CIV-16-308-M, 2017 WL 95406 at *2, n.5
(W.D. Okla. Jan. 10, 2017) (“Plaintiff also asserts that defendant owed her a duty regardless of
whether the hazard was open and obvious based upon Wood. . . .The Court finds the facts of this
case do not fit within the narrow exception created in Wood as . . . it would not be likely that she
would ‘proceed through the dangerous condition in furtherance of [her] employment.’”).
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The facts of the instant case do not fit within the Wood exception. Plaintiff was a typical
customer of the store who could protect herself, either by avoiding any open and obvious hazard
that she may have encountered or by leaving altogether. Wood did not abrogate the open and
obvious defense as to typical customers in such circumstances. See Wood, 336 P.3d at 459-60,
nn.6, 8. As noted, there is a genuine dispute of material fact – to be determined by the jury – as to
whether the condition was in fact open and obvious, precluding summary judgment.
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