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Fuqua v. Deer Run Apartments, L.P.

United States District Court, N.D. Oklahoma

March 28, 2017

SHELLY FUQUA, Plaintiff,



         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.


         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.


         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 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 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.


         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 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 Mercedes-Benz 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 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 ...

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