United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE.
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
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.
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.
Summary Judgment Standard
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).
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). Here, 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.
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
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
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
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 ...