Shank v. Whiting-Turner Contracting Company

Filing 61

OPINION AND ORDER by Judge John E Dowdell ; denying 25 Motion for Summary Judgment (Re: State Court Petition/Complaint ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ARLON SHANK,
Plaintiff,
v.
WHITING-TURNER CONTRACTING
COMPANY,
Defendant.

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Case No. 17-CV-446-JED-FHM

OPINION AND ORDER
Before the Court is the Motion for Summary Judgment (Doc. 25) filed by the defendant,
Whiting-Turner Contracting Company (“Whiting-Turner”).

Defendant argues that because

Plaintiff was aware of the hazard that allegedly caused his injury, he has no basis for a premises
liability claim. Plaintiff, in turn, argues that Defendant’s duty to keep the premises in a reasonably
safe condition is not obviated by Plaintiff’s knowledge about the existence of the hazard.
I.

Background
The following facts are supported by evidence in the record and are construed in favor of

Plaintiff, the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
At the relevant time, Plaintiff was working as an employee of P1, a subcontractor of
defendant Whiting-Turner, on a project in Mayes County, Oklahoma. On May 5, 2015, while
Plaintiff was walking to retrieve a bushing from where the supplies were located, he tripped on
Masonite panels that had been laid on the ground. (Doc. 38 at 20-21 [Shank Dep., pp. 37, 41]).
He fell and injured his right shoulder. (Id. at 22 [Shank Dep., p. 46]).
The Masonite panels had been placed on the ground in order to protect the newly finished
floor underneath. (Id. at 20 [Shank Dep., p. 38]). The panels were initially taped together at the

seams; however, by February 2015, the tape had mostly torn, and the panels were separating from
each other. (Id. [Shank Dep., p. 39]). The corners of the panels had also begun to curl up. Plaintiff
asserts that, by the time of his fall, the panels were “scattered” and “strewn about.” (Id. [Shank
Dep., p. 38]).
Plaintiff admits that he first noticed the Masonite panels as being a potential hazard in
January 2015. (Doc. 25-2 at 9 [Shank Dep., p. 61]). In early March 2015, he put a checkmark by
“Slip/trip potential identified” on a Pre-Task Planning Card.1 (Doc. 25-5). He also wrote in “slips,
trips, [and] falls” as hazards associated with his work. (Id.). Similarly, he checked “Slip/trip
potential identified” and wrote “slips/trips” on a Pre-Task Planning Card on April 29, 2015. (Doc.
25-4). Plaintiff also pointed out the issue to a safety supervisor on April 21 and 28, 2015. (Doc.
38 at 27 [Shank Dep., p. 68]). He saw several different people stumble on the Masonite panels,
and he himself stumbled on the panels once before the accident at issue. (Doc. 25-2 at 9-10 [Shank
Dep., pp. 61-62]).
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.”

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P1 required its employees to fill out Pre-Task Planning Cards to review what work was to be
performed and identify any particular hazards associated with that work.
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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.
III.

Analysis
To establish a claim of negligence under Oklahoma law, a 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).2 “The threshold requirement in any case based on
negligence is to establish the existence of a duty, for there can be no negligence in the absence of
a defendant’s duty to plaintiff.” Id. To make this determination, courts must first analyze the
plaintiff’s status as a trespasser, licensee, or invitee. Id.; see also Wood v. Mercedes-Benz of Okla.
City, 336 P.3d 457, 459 (Okla. 2014). Here, it is undisputed that plaintiff enjoyed the status of an
invitee while he was working on the Whiting-Turner project. (See Doc. 25 at 5; Doc. 38 at 5).
“[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)) (alterations in original); see also Sholer v. ERC Mgmt. Group, LLC, 256 P.3d 38,
43 (Okla. 2011). Traditionally, Oklahoma courts have held that invitors “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, under long-standing Oklahoma law, a property owner had
no duty to render safe an “open and obvious” danger. Martinez v. Angel Expl., 798 F.3d 968, 975

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 Expl., LLC, 798 F.3d 968,
973 (10th Cir. 2015) (applying Oklahoma law in diversity premises liability action).
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(10th Cir. 2015). “[A] determination that ‘under similar or like circumstances an ordinary prudent
person would have been able to see the defect in time to avoid being injured’ was dispositive of a
landowner’s duty.” Id. (quoting Scott, 191 P.3d at 1212).
However, the Oklahoma Supreme Court recently held in Wood v. Mercedes-Benz of
Oklahoma City that the open and obvious danger doctrine was “not absolute.” Wood, 336 P.3d at
459. Instead, “even where an invitee is injured by an open and obvious condition, a landowner
may still have a duty to warn of or otherwise protect the invitee from the dangerous condition if
the injury suffered was reasonably foreseeable to the landowner.” Martinez, 798 F.3d at 975.
In Wood, the plaintiff was a catering employee who was sent to a car dealership to assist
with an event there. Wood, 336 P.3d at 458. Upon her arrival, she noticed that there was ice on
the grass, pavement, and sidewalks surrounding the dealership. Apparently, a sprinkler system
had activated overnight and left ice on surfaces throughout the property. Although the plaintiff
testified that she saw the ice and tried to be careful walking in and out of the dealership, she still
slipped and sustained injuries. After the fall occurred, a dealership employee acknowledged that
he should have put salt down when he got to work.
The Oklahoma Supreme Court held that “under the peculiar facts of this case,” the
dealership “owed a duty to take remedial measures to protect [the plaintiff] from the icy conditions
surrounding the entry to its facility.” Id. at 460. The Court noted that the accumulation of ice was
caused not by natural precipitation, but by the dealership’s sprinkler system. Id. The Court also
noted that the dealership had notice of the icy conditions and knew that the catering company was
sending its employees to the facility. Id. “As such,” concluded the Court, “it was foreseeable that
[the catering company’s] employees would encounter the icy hazards created by the sprinkler

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system and would likely proceed through the dangerous condition in furtherance of their
employment.” Id.
District courts asked to apply the Wood exception have generally considered it applicable
where the owner could foresee the plaintiff’s injury because there was evidence that plaintiff had
no choice but to traverse an obvious and open danger. See, e.g., Fuqua v. Deer Run Apartments,
Case No. 16-CV-318-CVE-TLW, 2017 WL 1193061 (N.D. Okla. Mar. 29, 2017) (“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.”); Hoagland
v. Okla. Gas & Elec. Co., Case No. CIV-15-0751-HE, 2016 WL 3523755 (W.D. Okla. June 22,
2016) (applying Wood where plaintiff was contracted to pick up a load for delivery and fell while
tarping the load, as required by the employer).
In reviewing the Wood case, the Tenth Circuit acknowledged that the reach of this new
exception to the open and obvious doctrine “is yet to be determined.” Martinez, 798 F.3d at 978
(remanding for the district court to determine whether Wood applied where an employee was
injured by a pump jack that he knew lacked safety guards). However, the circuit court surmised
that the exception “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.’” Id. at 978 (alterations in original) (quoting Wood, 336 P.3d at 459 n.6, 460).
Defendant’s first argument for why Wood is inapplicable to the present case is that Plaintiff
was not required to walk in the areas where he had seen the Masonite panels lifted off the floor.
Defendant asserts that Plaintiff had “full ability to navigate around any hazard.” (Doc. 49 at 2-3).

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Defendant reasons that because Plaintiff made a note of the “slip/trip potential” on his April PreTask Planning Card, he must have known exactly where the hazard was located. Yet, there is
evidence to support the idea that the trip hazard was not limited to a few, identifiable (and, thus,
avoidable) places. First of all, there is evidence that other workers had stumbled on the panels
before Plaintiff’s fall on May 5, 2015, which would tend to show that the hazard was not easily
avoidable. (Doc. 38 at 26 [Shank Dep., pp. 61-62]). Moreover, Plaintiff testified that the Masonite
panels had separated from each other throughout the area, they were “no longer laid in square and
flat,” their corners were “sticking up,” and people working in the area on the day of the accident
had further moved the panels around. (Id. at 20, 27 [Shank Dep., pp. 39, 67-68]). This further
suggests that the trip hazard may have been widespread and difficult to avoid. Ultimately, it will
be up to the jury to determine whether Defendant should have anticipated Plaintiff’s injury in spite
of the open and obvious condition of the Masonite panels. See Martinez, 798 F.3d at 981.
Defendant also argues that the panels could not be foreseen as likely to cause serious
injury—in contrast to the ice in Wood or the pump jack in Martinez. (Doc. 49 at 3). The Court
declines to make such a factual determination; instead, the jury will decide whether the Plaintiff’s
injury was foreseeable here.
Finally, Defendant asserts that the instant case is distinguishable from the cases cited by
Plaintiff because Defendant took measures to remedy the hazard. This argument goes to whether
Defendant exercised reasonable care to protect Plaintiff from the alleged dangerous condition—a
fact question for the jury.
Because the Court finds that material questions of fact remain in dispute, Defendant’s
Motion for Summary Judgment (Doc. 25) is denied.

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SO ORDERED this 6th day of December, 2018.

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