Byford v. Town of Asher, 75849

• Citation: 874 P.2d 45,1994 OK 46
• Decision Date: 10 May 1994
• Docket Number: No. 75849,75849
• Parties: Harve A. BYFORD, Appellant, v. TOWN OF ASHER, Oklahoma, Appellee.
• Court: Supreme Court of Oklahoma

Page 45

874 P.2d 45

1994 OK 46

Harve A. BYFORD, Appellant, v. TOWN OF ASHER, Oklahoma, Appellee.

No. 75849.

Supreme Court of Oklahoma.

May 10, 1994.

Certiorari to the Court of Appeals, Division III.

Plaintiff fell and was injured when crossing defendant's alley. Hon. Marshall D. Basham, Judge of the District Court of Pottawatomie County, sustained defendant's demurrer to the evidence, finding that plaintiff assumed the risk as a matter of law. The Court of Appeals affirmed. We hold that under the Okla. Constitution, Art. 6 § 23, a jury question is presented.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; REVERSED AND REMANDED.

Elvin J. Brown, Norman, for appellant.

Ed Cadenhead, Elsener & Cadenhead, Seminole, for appellee.

SUMMERS, Justice:

On a Christmas night Plaintiff Harve Byford fell and broke his ankle in a deeply rutted, poorly maintained alley behind his home in Asher. He sued the Town for his damages, alleging compliance with the Governmental Tort Claims Act, 51 O.S. 1991 § 151 et. seq. The Town did not contest Plaintiff's allegations of compliance with that Act. The case went to trial, and at the conclusion of Plaintiff's evidence the trial court sustained the Town's demurrer, ruling that as a matter of law Plaintiff had assumed the risk of his injury. The Court of Appeals affirmed. We reverse and send the case back for resolution by a jury.

Plaintiff's house is separated from his father's by the alley in question. Plaintiff was disabled by a prior injury which had required many surgeries, and which left his right leg several inches shorter than the left. He walked with a cane and wore a leg brace. That night he needed to use his father's telephone, and crossed the alley for that purpose. Finding his father's home dark he returned toward his own. He knew generally Plaintiff testified that he had on at least two occasions spoken with town officials and workmen about repairing the alley. A town councilman confirmed receiving Plaintiff's complaints and reported them, but said it had not been repaired. A town maintenance worker testified that the condition of the alley had worsened over the last few years since the Town's installation of a sewer pipe in the alley. The evidence showed that the Town had occasionally tended to the alley and mowed it, but had never done any extensive work to repair the ruts and gullies. Two witnesses testified they would not attempt to drive their vehicles through the alley. Byford stated that the only light for the alley was one he installed, and for which he paid the electricity bill

of the state of disrepair of the alley, and proceeded cautiously, but stepped into a rut or hole he asserts was more than a foot deep, breaking the ankle on his bad leg. The bones would not mend, and a few months later the leg was amputated below the knee.

After the presentation of plaintiff's evidence, the Town demurred to the evidence. The trial court sustained the demurrer, stating that even if it was the Town's responsibility to maintain the alley, the conditions were open and obvious, and Byford had assumed the risks of walking in the alley at night. The trial court thus determined that reasonable men could not differ in its conclusion that Plaintiff had fully assumed the risks of crossing the alley. The Court of Appeals agreed and affirmed. We view it differently and reverse.

In order for a trial court to correctly sustain a demurrer to the evidence all evidence and reasonable inferences therefrom which favor the party opposing the motion (the plaintiff) must be taken as true. Blood v. R & R Engineering, Inc., 769 P.2d 144, 145 (Okla.1989); Messler v. Simmons Gun Specialties, 687 P.2d 121, 130 (Okla.1984). Any conflicting evidence which is favorable to the movant (the defendant) is disregarded. Id. If there is any evidence which tends to show a right to recover, the demurrer is overruled and the case allowed to proceed. Id., citing Austin v. Wilkerson, 519 P.2d 899 (Okla.1974); Jack Healey Linen Serv. v. Travis, 434 P.2d 924, 926 (Okla.1967). With these standards in mind we must now review the trial court's decision.

OKLAHOMA CONSTITUTION ART. 23, § 6

AND ITS EXCEPTIONS

The Oklahoma Constitution provides in Article 23, Section 6, that "[t]he defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." We have honored the plain meaning of these words, and have repeatedly required the issue of assumption of risk to be submitted to the jury. Foster v. Harding, 426 P.2d 355 (Okla.1967); C.R. Anthony Co. v. Williams, 185 Okla. 564, 94 P.2d 836 (1939); Joy v. Pope, 175 Okla. 540, 53 P.2d 683 (1936); Cosden Pipe Line Co. v. Berry, 87 Okla. 237, 210 P. 141 (1922); Dickinson v. Cole, 74 Okla. 79, 177 P. 570 (1919).

We did recognize two exceptions to this constitutional rule in Flanders v. Crane Co., 693 P.2d 602 (Okla.1984), and again acknowledged them in Anderson v. Northwestern Elec. Co-op., 760 P.2d 188 (Okla.1988). First, the defense of assumption of risk need not be submitted to the jury if the plaintiff fails to present evidence showing primary negligence on the part of the defendant. Flanders, 693 P.2d at 606; Anderson, 760 P.2d at 191. Second, the defense need not be submitted to the jury where there are no disputed material facts and reasonable people exercising fair and impartial judgment could not reasonably reach differing conclusions. Flanders, 693 P.2d at 606; Anderson, 760 P.2d at 191.

A. THE "LACK OF PRIMARY NEGLIGENCE" EXCEPTION

The Town first urges that Byford failed to present evidence which tended to show primary negligence by the Town. ¹ Although called an "exception" to the constitutional The Town relies on Town of Quapaw v. Holden, 96 Okla. 281, 222 P. 680 (1924) as authority for the proposition that maintenance is not required if the alley is not used by the public. In Quapaw, an alley was dedicated and shown on the town plat, but had never been used by the town. A woman was injured in the platted alley and sued the town. The Court held that there was no duty on the part of the town to maintain the alley since it had never been used by the town or been opened to the public.

provision, in reality it is a fundamental premise underlying all suits in negligence--without the primary negligence there can be no liability. The Town urges that it had no duty to maintain the alley, as it was not used by the public. However, the testimony showed that the Town had placed various power and utility lines and pipes in the alley. At times the Town had performed slight maintenance on the alley. The alley, while used primarily by Byford and his family, was accessible to the public and to the various town workers who installed the sewer pipe and performed maintenance.

Quapaw is not controlling as to the present case, because here there was testimony that the dedicated alley was open to the public, although rarely used by it. The alley had also been used by the Town for the purpose of locating sewer and other utility lines, and had been subject to some maintenance by the Town. Furthermore, we have held in Bannister v. Farmers Alliance Mut. Ins. Co., 630 P.2d 1279, 1281 (Okla.1981) that a city has a primary non-delegable duty to maintain its streets in a reasonably safe condition for the public. The test to determine whether the city was negligent is "whether or not such municipality, in the exercise of reasonable care and prudence, could have or should have, anticipated danger and damages to the traveling public using the way." Rider v. City of Norman, 476 P.2d 312, 313 (Okla.1970). The same standard of reasonable care on behalf of the municipality must extend also to alley ways.

The Town also urges that the conditions causing Plaintiff's injury were open and obvious. It relies on cases affirming judgments for defendant cities where plaintiffs fell on sidewalks. Evans v. City of Eufaula, 527 P.2d 329 (Okla.1974); Rider v. City of Norman, supra. In each of those cases, however, the Court pointed out that the plaintiff's view was clear, unobstructed, and in broad daylight. In Evans the crack in the sidewalk 1 to 1 1/2 inches deep was held "trivial." Here we are unable to conclude from the record that the plaintiff's light bulb was so positioned that the depth of the ruts were open and obvious to him. Further, the ruts were deep enough that two witnesses testified they would not attempt to put their vehicles through the alley.

"The test of a municipality's negligence in a case such as here is whether or not such municipality, in the exercise of reasonable care and prudence, could have or should have, anticipated danger and damages to the traveling public using the way." Rider, 476 P.2d at 313. We find that, under the standard of review for demurrers to the evidence, construing reasonable inferences in favor of the plaintiff, Byford has presented evidence sufficient to show primary negligence on the part of the Town.

B. THE "REASONABLE MINDS CAN NOT DIFFER" EXCEPTION

It is the second exception which was relied on by the trial court. The court, in ruling in favor of the Town of Asher, stated that reasonable minds could not differ as to Byford's assumption of the risk. The defense of assumption of risk may arise in one of three situations. Thomas v. Holliday, 764 P.2d 165, 168-69 (Okla.1988). The first is where a plaintiff expressly agrees that the defendant will not be held accountable for plaintiff's well being or lack thereof. The second is where the two parties stand in some sort of voluntary relationship by which the plaintiff assumes such a risk so as to destroy any duty which defendant might owe the plaintiff. The third involves voluntarily exposing oneself to a known danger, even though not negligent in so doing. In this situation he is deemed to have assumed the risk of his injury, but the defense here requires "a subjective standard in...