Fuqua v. Deer Run Apartments, L.P. et al

Filing 33

OPINION AND ORDER by Judge Claire V Eagan ; denying 18 Motion for Summary Judgment (Re: State Court Petition/Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

SHELLY FUQUA,

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Plaintiff,
v.
DEER RUN APARTMENTS, L.P.,

Defendant.

Case No. 16-CV-0318-CVE-TLW

OPINION AND ORDER
Now before the Court is Defendant’s Motion for Summary Judgment (Dkt. # 18). Defendant
asks the Court to grant summary judgment in its favor, arguing that the danger that allegedly caused
plaintiff’s injuries was open and obvious. Dkt. # 18, at 1. Plaintiff responds that this case falls into
the exception to the open and obvious doctrine recognized by the Oklahoma Supreme Court in
Wood v. Mercedes-Benz of Okla. City, 336 P.3d 457 (Okla. 2014). Dkt. # 31, at 1. Defendant replies
that Wood created a narrow exception that does not apply in this case. Dkt. # 32, at 1.
I.
For the purpose of summary judgment, the facts of this matter are largely undisputed. Dkt.
# 18, at 1; Dkt. # 31, at 1. Plaintiff and her husband have lived in one of defendant’s apartment units
since January 2012. Dkt. # 18, at 2; Dkt. # 31, at 2-3. Plaintiff’s apartment is on the second floor,
which is accessible by only one set of stairs. Dkt. # 18, at 2; Dkt. # 31, at 4. There are safety lights
at the top and bottom of the stairs. Dkt. # 18, at 2; Dkt. # 31, at 4. Plaintiff asserts that the light at
the top of the stairs has not worked since she moved in and that the light at the bottom of the stairs
may have worked at one point, but later stopped working. Dkt. # 18, at 2; Dkt. # 31, at 4. Plaintiff

asserts that, even without the lights on the stairs, there is typically enough light to see the stairs from
surrounding porch lights and a pole light located in the nearby parking lot. Dkt. # 18, at 3; Dkt. #
31, at 4.
On August 16, 2014 at approximately 12:10 a.m., plaintiff left her apartment to pick up some
necessities from the store. Dkt. # 18, at 3; Dkt. # 31, at 5. Plaintiff went down the stairs, but a few
steps from the bottom, she mistakenly thought she had reached the ground and fell to the bottom of
the stairs, injuring her ankle. Dkt. # 18, at 3; Dkt. # 31, at 5. Plaintiff asserts that the porch lights,
stair lights, and pole light were either turned off or not working when she fell. Dkt. # 18, at 3; Dkt.
# 31, at 6. Plaintiff subsequently brought this suit against defendant, alleging that defendant acted
negligently by failing to use ordinary care to keep its premises safe, by failing to repair a hidden
danger it knew about or should have known about, and by failing to warn plaintiff of a danger it
knew about, should hav eknown about, or was created by its employees. Dkt. # 2, at 6. Defendant
now moves for summary judgment. Dkt. # 18.
II.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate where
there is no genuine dispute as to any material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain
language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof at
trial. Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a

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disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
are designed ‘to secure the just, speedy, and inexpensive determination of every action.’” Id. at 327
(quoting Fed. R. Civ. P. 1).
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the [trier of fact] could reasonably
find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that the party must prevail as a matter of law.” Id. at 251-52. In its review, the Court
construes the record in the light most favorable to the party opposing summary judgment. Garratt
v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
Defendant argues that the Court should not to consider plaintiff’s affidavit (Dkt. # 31-1). The
affidavit contains the following sentence: “It also states in my lease agreement that Defendant is
responsible for maintaining and fixing the light fixtures in the outside common areas.” Dkt. # 31-1,
at 2. Defendant argues that the Court should not consider the affidavit because “[p]laintiff’s
characterization of the contents of a document not in evidence is not admissible testimony.” Dkt.
# 32, at 6 n.1. “At the summary judgment stage, the parties need not submit evidence in a form
admissible at trial; however, the content or the substance of the evidence must be admissible.”
Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (citing Hardy v. S.F. Phosphates

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Ltd., 185 F.3d 1076, 1082 n.5 (10th Cir. 1999)). Plaintiff’s statement goes to the content of her lease
agreement, and defendant gives no reason why the lease agreement would not be admissible.
Because the lease agreement would be admissible at trial, her statement about the lease agreement
may be considered here. In any case, plaintiff’s characterization of her lease agreement in her
affidavit is not dispositive of the Court’s ruling herein.
III.
To establish a claim of negligence, plaintiff must show: “(1) existence of a duty on the part
of the defendant to protect plaintiff from injury; (2) defendant’s breach of the duty; and (3) injury
to plaintiff proximately resulting therefrom.” Scott v. Archon Grp., L.P., 191 P.3d 1207, 1211 (Okla.
2008). Whether a duty exists is a question of law. Id. (citing Sutherland v. St. Francis Hosp., Inc.,
595 F.2d 780, 783-84 (Okla. 1979)). “It is well-settled premises liability law that the duty of care
which an owner or occupier of land has toward one who comes upon his or her land and is injured
because of the condition of the premises, varies with the status occupied by the entrant.” Id. The
parties agree that plaintiff was an invitee. Dkt. # 18, at 6-7; Dkt. # 31, at 2 n.1. A landowner is
obligated to “exercise reasonable care to keep the premises in a reasonably safe condition and to
warn [an invitee] of conditions which [are] in the nature of hidden dangers, traps, snares or pitfalls.”
Wood, 336 P.3d at 459 (quoting Martin v. Aramark Serv., Inc., 92 P.3d 96, 97 (Okla. 2004))
(alterations in original).
Defendant argues that it did not have a duty to plaintiff to fix the lights in and around the
stairway because the lack of light on the stairs was open and obvious. Oklahoma has long held that
a landowner has no duty to render safe an open and obvious danger. See, e.g., Sholer v. ERC Mgmt.
Grp., LLC, 256 P.3d 38, 43 (Okla. 2011). However, the Oklahoma Supreme Court recently held in

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Wood that the open and obvious doctrine is not absolute. In Wood, the plaintiff was an employee
of a catering company hired to cater an event at Mercedes-Benz of Oklahoma City. Wood, 336 P.3d
at 458. When the plaintiff arrived at the building, she noticed that the grass, pavement, and
sidewalks surrounding the building were covered in ice. Id. The ice was caused by the defendant’s
sprinkler system. Id. The plaintiff fell on the ice, injuring herself, and subsequently sued MercedesBenz of Oklahoma City, alleging negligence based on the company’s failure to maintain its premises
in a reasonably safe condition. Id. at 458-59. The trial court granted summary judgment for the
defendant, and the Oklahoma Court of Civil Appeals affirmed, holding that the defendant owed no
duty to the plaintiff because the ice was an open and obvious danger. Id. at 459.
The Oklahoma Supreme Court reversed the appellate court’s decision, holding that the key
inquiry for assessing the existence of a duty in negligence cases is foreseeability. Id. The court
explained that “a landowner ‘does have a duty to exercise ordinary care to prevent injury to another
whenever the circumstances are such that the owner, as an ordinary prudent person, could
reasonably foresee that another will be in danger of injury as a probable consequence of the owner’s
actions.’” Id. at 460 (quoting Brown v. Alliance Real Estate Grp., 976 P.2d 1043, 1045 (Okla.
1999)) (emphasis omitted). Thus, in Woods, the open and obvious doctrine did not apply because
“it was foreseeable that [the catering company’s] employees would encounter the icy hazards created
by the sprinkler system and would likely proceed through the dangerous condition in furtherance
of their employment.” Id.
The Tenth Circuit has described Wood as Oklahoma adopting the open and obvious doctrine
set out in the Restatement (Second) of Torts, which states that “[a] possessor of land is not liable to
his invitees for physical harm caused to them by any activity or condition on the land whose danger

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is known or obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness.” Martiniez v. Angel Expl., LLC, 798 F.3d 968, 976 (10th Cir. 2015)
(quoting Restatement (Second) of Torts § 343A(1) (1965)) (emphasis omitted). Harm is foreseeable
“where the possessor has reason to expect that the invitee will proceed to encounter the known or
obvious danger because to a reasonable man in his position the advantages of doing so would
outweigh the apparent risk.” Restatement (Second) of Torts § 343A cmt. f; see also Martinez, 798
F.3d at 977. Thus, harm is not foreseeable in the “typical case” because “the invitee can protect
herself by leaving the premises when an open and obvious hazard is encountered or by avoiding the
premises altogether.” Wood, 336 P.3d at 459 n.6. But harm is foreseeable where, like in Wood, the
hazardous condition must be faced in order to carry out one’s job responsibilities. See id. at 460 n.8
(noting that the defendant had a duty because the plaintiff “was required to cross the hazardous
condition in furtherance of her employment.”); Restatement (Second) of Torts § 343A cmt. f, illus.
5 (example of foreseeable harm where employee had to take slippery waxed stairway, whose
condition was visible and obvious, to access his office).
Here, there is undisputed evidence that the dark stairway was an open and obvious hazard.
Dkt. # 18-1, at 20 (Q: There was nothing hidden about the fact that the stairway was dark. Correct?
. . . A: Yes. Q: And when you walked out the door it’s open and obvious to you that the stairway is
dark? A: Yes.”). However, as in Wood, defendant could reasonably foresee that plaintiff would be
in danger of injury as a probable consequence of its actions. Defendant argues that Wood does not
apply where the plaintiff was not on the property pursuant to employment obligations. Dkt. # 32, at
2-5. But defendant misunderstands Wood and what the Oklahoma Supreme Court means by
foreseeability in a premises liability case. The Wood exception applies when it is foreseeable that

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an invitee will be in danger of injury as a probable consequence of the landowner’s actions despite
the open and obvious nature of the hazard. In other words, for a risk to be foreseeable, a reasonably
prudent person would have to foresee that a reasonable person would recognize an open and obvious
danger and proceed anyway. In Wood, it was foreseeable that the plaintiff would see the hazardous
ice and walk across it anyway because she had to get in the building as a part of her job. In contrast,
it would not be reasonably foreseeable that a random customer would appear at the dealership, see
the open and obvious danger, and walk across it anyway because the customer did not have a
compelling reason, such as an employment obligation, to be there.
This case involves a tenant descending a staircase even though it is obviously dark because
it the only way to leave her apartment. Just as it is foreseeable that an employee would walk over
obviously dangerous ice to get to her job, it is foreseeable that a tenant will walk down an obviously
dangerous stairway to exit her apartment building. Defendant argues that nothing was compelling
plaintiff to go down the staircase in the dark, and she could have waited until dawn to leave her
apartment. Dkt. # 32, at 5. But the question is not whether defendant had to go down the stairs, but
whether it was reasonably foreseeable that she would. Any argument that it is not reasonably
foreseeable that a tenant will use the stairway that is the only means of exiting her apartment
building after dark is ludicrous. A reasonably prudent person would not expect a tenant to leave her
apartment only during the daylight.
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. Wood is limited by foreseeability; it is not
limited to cases where the employee was on the premises as a part of her employment. Here, Wood

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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.1
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Dkt.
# 18) is denied.
DATED this 28th day of March, 2017.

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In its reply (Dkt. # 32), defendant also argues that it was not defendant’s duty to maintain
plaintiff’s porch light because it is not part of the “common area.” Defendant’s summary
judgment motion (Dkt. # 18) is based entirely on the open and obvious doctrine, and the
porch light issue was first raised in defendant’s reply. Courts generally do not consider
arguments or evidence first raised in a reply because it would be unfair to the nonmoving
party, who has no opportunity to respond, and unfair to the Court, who would have to decide
the issue without the benefit of the adversarial process in clarifying the issue. See Pinnacle
Packaging Co. v. One Equity Partners (Europe) GmbH, No. 12-CV-537-JED-TLW, 2016
WL 6638621, at *1 (N.D. Okla. May 4, 2016) (quoting Headrick v. Rockwell Int’l Corp.,
24 F.3d 1272, 1278 (10th Cir. 1998)). Because defendant first raised the argument in its
reply, the Court declines to address it.
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