Beatty v. Dixon

• Decision Date: 02 November 1965
• Docket Number: No. 40732,40732
• Citation: 408 P.2d 339,1965 OK 169
• Parties: Wanda BEATTY, Plaintiff in Error, v. O. L. DIXON and Mrs. O. L. Dixon, Defendants, in Error.
• Court: Oklahoma Supreme Court

Page 339

408 P.2d 339

1965 OK 169

Wanda BEATTY, Plaintiff in Error, v. O. L. DIXON and Mrs. O. L. Dixon, Defendants, in Error.

No. 40732.

Supreme Court of Oklahoma.

Nov. 2, 1965.

Syllabus by the Court

1. Facts of each particular case are controlling upon question of negligence in respect of dangerous condition upon the premises, and ordinarily question as to whether owner or occupant has been negligent in that respect toward person whom he has invited upon premises is to be decided by jury; but if there is no dispute as to facts and only one conclusion can be drawn from evidence, court can decide question as a matter of law.

2. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious and should have been observed in the exercise of ordinary care.

3. The duty to keep premises reasonably safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care.

4. There is no obligation to warn an invitee, who knew the condition of a property, against patent and obvious dangers, and there is no actionable negligence in the absence of a duty neglected or violated.

5. Actionable negligence may be established by circumstantial evidence, but inference of negligence or causal connection to be adopted must be based on something more than mere speculation and conjecture; and it is not enough to show a state of circumstances consistent with a mere possibility and to leave other possibilities of equal force and reason; and theory to be adopted must be the more probable and more reasonable and cannot itself furnish an element that is missing in the evidence.

Appeal from District Court of Oklahoma County; Clarence Mills, Judge.

Action by Wanda Beatty, as plaintiff, against O. L. Dixon and Mrs. O. L. Dixon, as defendants, to recover damages for personal injuries sustained when she slipped and fell in the back doorway of defendants' home. From a judgment sustaining defendants' demurrer to plaintiff's evidence and judgment for defendants, plaintiff appeals. Affirmed.

Jack L. Freeman, Oklahoma City, for plaintiff in error.

Donald F. Gust, Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, for defendants in error.

HALLEY, Chief Justice.

This action was instituted by Wanda Beatty, hereinafter referred to as plaintiff, against her parents, O. L. Dixon and Mrs. O. L. Dixon, hereinafter referred to as defendants, to recover damages for personal injuries sustained when the plaintiff slipped and fell down in the back doorway of the defendants' home. At the conclusion of all the testimony and evidence offered by the plaintiff, the trial court sustained defendants' demurrers to the evidence and judgment was entered that plaintiff take nothing.

Plaintiff contends that the evidence was sufficient to establish a prima facie case of negligence and that the case should have been submitted to the jury. On the issue of negligence there were but three witnesses called by the plaintiff to testify: the plaintiff and both defendants.

The plaintiff testified that she and her family were invited by the defendant, Mrs. O. L. Dixon, to take shelter in the defendants' storm callar on May 21, 1961, because of a tornado alert. That the plaintiff and her family, the defendant Mrs. O. L. Dixon, and the plaintiff's sister with her family entered the storm cellar while it was raining quite heavily at about 7:00 p.m., but that the defendant, O. L. Dixon, stayed in the house. The storm cellar was located about twenty feet from the back doorway of the defendants' home, which opened directly to the outside from the kitchen. The kitchen floor was constructed of asphalt tile and there was a wooden threshold, one concrete walk leading from the back doorway of the defendants' house to the storm cellar. The back doorway was on the north side of the house. The plaintiff testified further that her husband and brother-in-law left the cellar first; that the defendant, Mrs. O. L. Dixon, and the plaintiff's sister left next; and that she followed with the children about fifteen or twenty minutes thereafter. That she came up the cellar steps, walked up the concrete walk to the house, stepped up onto the back step, then stepped into the kitchen, which was wet and slippery, and 'fell half in and half out of the house.' She also testified that her father, O. L. Dixon, later told her that 'the back door flew open while we were in the cellar and the wind blew the rain in and he swept it out with a broom but he didn't mop it up.'

Plaintiff testified on cross-examination that her parents, O. L. Dixon and Mrs. O. L. Dixon, had resided in their same home for approximately ten years; that she had used their storm cellar as many as twenty times altogether; that she was completely familiar with the storm cellar, the concrete walk, the back entry into the house; and that when she came out of the storm cellar, it was more or less sprinkling. The walkway was wet, her shoes were wet, and the wooden threshold was wet, which she knew. That she held a plastic raincoat over her head as she opened the back door, but she didn't look at the floor as she stepped into the house. She further testified on cross-examination as follows:

'Q. These people, whoever they were, would have had to have walked from the storm cellar on the wet concrete driveway and then into the kitchen?

'A. Yes, sir.

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'Q. Now, when they walked into the house, from their wet feet, they could have made tracks on the floor?

'A. Yes, sir.

'A. I didn't stop to think about it.'

The defendant, O. L. Dixon, called as a witness by the plaintiff, did not remember the kitchen floor getting wet at any time while he was in the house, nor whether the back door as a matter of fact did blow open during the storm. He did not remember whether he did or did not sweep water off the kitchen floor. He did not remember the conversation as testified to by the plaintiff, but he testified that water always blew on the kitchen floor when someone went in or out the back door during a rain storm and the wind was out of the north. He also testified on cross-examination as follows:

'Q. If that door is open as you say, would people,--with the wind blowing from the north, she would also know water would come in through there?

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'Q. She would know as much about it as you would, that's my question, she was there many times and she seen it when it was raining and she was in the storm cellar and she knew as much about your place as you did, isn't that right?

'A. Well, she ought to.'

The defendant, Mrs. O. L. Dixon, called as a witness by the plaintiff, testified that she and her eldest daughter and a grand-daughter came out of the storm cellar at about the same time and went into the house through the back door to start supper. She did not notice water on the floor at that time. She also testified that the plaintiff came out of the storm cellar about fifteen or twenty minutes thereafter, and that as 'she came to the door and just as she got to the door she just lunged and fell.' She testified further as follows:

'Q. What did you notice at that time?

'A. Well, the floor was wet when Wanda came in because the door had been opened so many times and the wind and the rain was coming from the north and it did blow in, the floor was wet.

'Q. When did you first notice that?

'A. Well, I don't particularly know just when I noticed it, when she came in it was wet because you see we had all come in before her and the door being open the wind blew the rain in.'

The facts of each particular case are, of course, controlling upon the question of negligence in respect of a dangerous condition upon the premises, and ordinarily the question whether an owner or occupant has been negligent in this respect toward a person whom he has invited upon the premises is to be decided by a jury. In such cases, as in other cases, however, if there is no dispute as to the facts and only one conclusion can be drawn from the evidence, the court can decide the question as a matter of law. 38 Am.Jur., Negligence §§ 102 and 356; and Pruitt v. Timme, Okl., 349 P.2d 4.

It is the settled rule in Oklahoma that the owner of premises owes the duty to an invitee thereon to exercise ordinary care not to injure him. This includes the duty to warn the invitee of any danger thereon of which the owner knows, or ought to know, and which is unknown to the invitee. Clinkscales v. Mundkoski et al., 183 Okl. 12, 79 P.2d 562. An invitation to enter upon the property of another may be either express or implied. In this case plaintiff was an invitee since she was expressly invited by the defendant, Mrs. O. L. Dixon, to enter upon their premises to take shelter in the defendants' storm cellar. Clinkscales v. Mundkoski et al., supra; Pruitt v. Timme, supra.

However, we think the correct rule in this case is set out in 65 C.J.S. Negligence § 50, wherein it is stated:

'The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers. * * *

'The basis of the inviter's liability for injuries sustained by the invitee on the premises rests on the owner's superior knowledge of the danger, and as a general rule he is not...