Brown v. Nicholson, No. 86855

• Court: Supreme Court of Oklahoma
• Writing for the Court: OPALA; SUMMERS
• Citation: 1997 OK 32,935 P.2d 319
• Docket Number: No. 86855
• Decision Date: 18 March 1997
• Parties: Phyllis Paige BROWN, Appellant, v. Suzanne NICHOLSON, Glenda Pate, and Ken Spears, Appellees.

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935 P.2d 319 1997 OK 32 Phyllis Paige BROWN, Appellant,
v.
Suzanne NICHOLSON, Glenda Pate, and Ken Spears, Appellees. No. 86855. Supreme Court of Oklahoma. March 18, 1997.

Randall A. Breshears and Gayle Freeman Cook, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, for appellant.

Edwin F. Garrison, Looney, Nichols, Johnson & Hayes, Oklahoma City, for appellees Suzanne Nicholson and Glenda Pate.

Donald R. Wilson, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellee Ken Spears.

OPALA, Justice.

We are asked to decide today whether the evidentiary material tendered by defendants to support the trial court's summary judgment in their favor provides undisputed proof of: 1) plaintiff's status as a licensee when she was injured in a fall upon defendants' premises, and 2) the open and obvious character of the premises' defect, which the defendants urge. We answer in the negative.

Phyllis Paige Brown (Brown) sued Suzanne Nicholson, Glenda Pate, and Ken Spears, the owners of a downtown Oklahoma City office building (owners), alleging that owners were negligent in their maintenance of the building's parking ramp. While walking down that ramp to get to her office at the street level, Brown slipped, fell, and broke her leg. Owners sought and secured summary judgment. The Court of Civil Appeals affirmed. The issue framed on appeal was Brown's status as an entrant upon the property. The appellate court concluded her status was that of a licensee who had permission to park and was aware of the dangers posed by the ramp, of which owners had no duty to warn. Upon this status-based classification the appellate court affirmed the owners' summary judgment. Brown sought certiorari, claiming invitee status on the property. We hold that Brown's status as a licensee vel invitee presents a question of fact, as does the alleged actionability of the defect on the parking ramp.

THE ANATOMY OF LITIGATION

Between November 1993 and August 1994 Brown was employed as a legal secretary for Oklahoma City lawyer Ken Nicholson. She was told by her employer to park on the roof of a building co-owned by Nicholson's wife Suzanne, along with Glenda Pate and Ken Spears. The record does not clearly establish the ownership of the east and west sides of the building in question. It was apparently its east side that contained the rooftop parking area. Brown parked there daily and

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then descended on foot a steep ramp to the street level below.

Two to three months after Brown was hired by Ken Nicholson, his wife Suzanne started working in her husband's offices. Suzanne Nicholson also parked on the rooftop of her building, and personally "reaffirmed" to Brown her husband's permission to park there. Brown received these parking privileges without cost. She slipped on a few occasions before the event in contest while going up and down the ramp, and personally observed one woman fall on the slick asphalt surface. Owners were aware that several women had reported falling on the ramp. Brown mentioned the ramp's condition "half a dozen times" to her boss and two other employees of the law firm. Weather-stripping devices had been placed on the ramp, but the record is unclear when this precaution was installed. The strips had partially worn away by March 31, 1994 when Brown fell on the ramp and broke her leg. She was then wearing low-heeled shoes to assist her negotiation of the incline. At the time of the fall, she was standing on "what was remaining" of the weather strips. Claiming the ramp was negligently maintained, Brown sued owners.

Owners sought summary judgment, urging Brown could not recover because she was a licensee on the premises and owners had no duty to warn her of the ramp's condition because she had personal knowledge of its steep nature and of the prior accident. The trial court agreed with owners' position. The Court of Civil Appeals, noting Brown had been aware of the possible danger, determined, as a matter of law, that she was a licensee who "took the premises as she found them," and affirmed the summary judgment. On certiorari, Brown claims she was an invitee, entitled to a higher duty of care from owners. Because the trial court's disposition was effected by summary judgment, the issues on review stand before us for de novo examination. ¹

WHETHER OWNER OF PREMISES EXERCISED PROPER DUTY OF CARE TO VISITOR WHO WAS PERMITTED TO USE THE PREMISES AND WHOSE PRESENCE SHOULD HAVE BEEN ANTICIPATED PRESENTS A DISPUTED ISSUE OF FACT; WHERE FACTS ARE DISPUTED, SUMMARY ADJUDICATION IS INAPPROPRIATE.

A landowner's liability in negligence for a person's injury on the premises varies with the entrant's status. ² Brown's status is either that of an invitee or a licensee. Licensees are those who enter premises of another for their own benefit or pleasure by express or implied permission of the owner. ³ Those considered licensees are to be accorded by the owner a duty of care which extant jurisprudence terms "ordinary care. ⁴ " The owner owes to the licensee, at a minimum, the duty to disclose dangerous defects which are known to him (or her) but are unlikely to be discovered by the licensee. ⁵

An invitee, on the other hand, is considered to be one who uses the premises of another for the purpose of a common interest and mutual advantage. ⁶ The owner owes the invitee a duty of "reasonable care, ⁷"

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and an invitee who is a business visitor is entitled to that care which would make the premises...