McCathern v. City of Oklahoma City, 2004 OK 61 (OK 7/13/2004)

• Decision Date: 13 July 2004
• Docket Number: Case Number: 98735
• Citation: 2004 OK 61
• Parties: DEBORAH McCATHERN, Plaintiff-Appellant, v. CITY OF OKLAHOMA CITY, Defendant-Appellee,
• Court: Oklahoma Supreme Court

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2004 OK 61

DEBORAH McCATHERN, Plaintiff-Appellant, v. CITY OF OKLAHOMA CITY, Defendant-Appellee,

Case Number: 98735

Supreme Court of Oklahoma

Decided: July 6, 2004

As Corrected: July 13, 2004

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III.

¶0 Plaintiff alleged bodily injury when she tripped on a raised sprinkler head located adjacent to the sidewalk at city hall. She sought to recover from the city. The District Court, Oklahoma County, Vickie L. Robertson, Judge, gave summary judgment to the city. The Court of Civil Appeals, Division III, affirmed. Certiorari was granted earlier and the cause remanded to COCA for its reconsideration in light of the most recent applicable law on premises liability. Upon remand, COCA reversed its earlier decision. On certiorari previously granted upon the city's petition,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE TRIAL COURT'S SUMMARY JUDGMENT IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS TO BE CONSISTENT WITH TODAY'S PRONOUNCEMENT.

Rex D. Brooks, Oklahoma City, for Appellant.

William R. Burkett, Municipal Counselor, Orval Edwin Jones, Assistant Municipal Counselor, and Jami Jarnigan, Assistant Municipal Counselor, Oklahoma City, for Appellee.¹

OPALA, V.C.J.

¶1 This certiorari presses two questions for our decision: (1) Did the terms of 51 O.S. Supp. 1984 § 155(13), the Governmental Tort Claims Act (GTCA), which is urged to have enlarged the range of government's immunity from liability for negligent inspections, also alter the common-law principles of liability that bind the government? and (2) Did the trial judge err by giving summary judgment to the city? We answer the first question in the negative and the second in the affirmative.

I. ANATOMY OF THE LITIGATION

¶2 Deborah McCathern (McCathern or appellant) alleges injuries sustained from a fall on 20 March 2001 when she tripped over an irrigation-system sprinkler head located adjacent to a sidewalk on the lawn of city hall, a government building owned by Oklahoma City (city or appellee).² She filed a negligence-based claim urging the city failed to maintain its premises with due care. McCathern asserts that although the irrigation system was not in use at the time of her injury, its head had not receded and was protruding two or three inches above the lawn. The sprinkler head is located immediately adjacent to a sidewalk corner. A type of decorative grass, commonly called "monkey grass or Liriope," surrounds the sprinkler head. McCathern presented proof (by evidentiary materials) that the ornamental grass was last cut back approximately three weeks earlier and that the city had performed repairs on the irrigation system around the same time.³

¶3 The city moved for summary judgment urging (1) it is immune by the terms of 51 O.S. 2001 §155(13),⁴ the GTCA, from liability for failure properly to inspect its property to determine if it contains a safety hazard, (2) the sprinkler head which may have failed to retract and hence protruded two or three inches is a "trivial defect" which relieves the government from any liability and (3) the extended object is an "open and obvious" danger which the city has no duty either to correct or warn the public of its existence. The trial court gave summary judgment to the city. McCathern appealed.

¶4 The Court of Civil Appeals (COCA), Div. III, concluded the city was immune from liability and affirmed the trial court's summary judgment. Its opinion was bottomed on an earlier COCA pronouncement, Reynolds v. Union Public Schools.⁵ Reynolds teaches that the government is exempt from liability where negligent maintenance is rested on the city's §155(13) failure to discover by inspection the offending defect upon the premises — the so-called negligent-inspection exemption. McCathern sought certiorari.

¶5 During the pendency of her certiorari we promulgated Moran v. City of Del City.⁶ Moran disapproved of Reynolds as an incorrect exposition of the applicable law insofar as the latter extended what we will refer to as the inspection immunity of § 155(13) to include within its ambit exemption of liability based on constructive or actual knowledge of defects upon the city's own property. When a petition for rehearing was pending in Moran, the city moved to consolidate this case with Moran and requested leave to file supplemental briefs. The rehearing petition and the city's motion were denied. McCathern's certiorari petition was granted. Her cause was remanded to COCA for reconsideration of its earlier pronouncement in light of Moran. Whether to accept supplemental briefs was to be left up to COCA.

¶6 COCA refused to authorize additional briefs, concluding the trial tribunal's summary judgment was improper (based on the urged post-1984 § 155(13) exemption). The city's two additional arguments, presented at nisi prius but not reviewed earlier, were then examined. COCA (1) rejected the city's argument that the protruding sprinkler head constituted a "trivial defect" and (2) ruled the evidentiary materials provided to the trial court tendered a disputed issue of whether the protruding sprinkler head could have been readily seen. Vacated was COCA's earlier decision affirming summary judgment and the cause was remanded for further proceedings to be consistent with the second opinion. The city's certiorari petition was then granted.

II. ARGUMENTS ON CERTIORARI

¶7 The city contends that the trial court's summary judgment in its favor was proper because (1) an examination of antecedent § 155(13) legislation reveals the 1984 amendment enlarged the inspection immunity by diminishing a municipality's proprietary duty to inspect for defects in its own premises, (2) the city had no notice that the sprinkler head had not receded, and it was hence under no common-law duty to repair the defect or warn the public of its existence and (3) the defect, if it did exist as McCathern claims, is trivial, and the city is therefore relieved from any liability for the occasioned harm.

¶8 McCathern responds: (1) the city's argument dealing with earlier legislation presents a matter of first impression, and because it was not raised at nisi prius it may not be reached by this court, (2) the GTCA is the exclusive remedy regardless of whether the offending activity is governmental or proprietary,⁷ (3) the city had sufficient notice of the malfunctioning sprinkler head to be charged with its knowledge and for liability to attach, and (4) the trial court's summary judgment is devoid of support in the submitted evidentiary material. Because the trial court's disposition was effected by summary judgment, the issues on review stand before us for de novo examination.⁸

III.

A. WHEN IT AMENDED THE TERMS OF 51 O.S. 1981 §155(13), THE LEGISLATURE DID NOT ABROGATE THE DUTY OF CARE THAT A MUNICIPALITY — QUA LANDOWNER — OWES UNDER THE COMMON-LAW RULES OF PREMISES LIABILITY

¶9 The city urges that a review of the pre-1984 §155(13) inspection immunity is necessary to understand the legislature's intent when drafting the 1984 exception. A consideration of statutory intent in light of antecedent legislation, according to the city, merits reconsideration or perhaps modification of the court's Moran pronouncement.

¶10 McCathern first contends that because the city's legislative-intent argument was never presented to the trial court it is not reviewable here.⁹ Today's cause reaches us on certiorari.¹⁰ Review of a COCA opinion by certiorari presents a matter of judicial discretion.¹¹ It is granted by a majority of the court when there are special and important reasons.¹² We granted certiorari and permitted supplemental briefing in order to pass upon the city's legislative-intent argument.

¶11 In the course of the review process the city did not know that the antecedent of §155(13) would become an issue. It arose after McCathern first petitioned for certiorari and was necessitated by the court's intervening pronouncement in Moran. The district court could not have known about this change in jurisprudence until after its summary judgment for the city. Before its re-examination of Moran, COCA chose not to allow supplemental briefs and, in accordance with our direction, reviewed its earlier decision in this case by the standards of Moran. This concatenation of events created, in essence, an issue not correctable by any other tribunal. The ensuing process thrusts on the city an element which militates in favor of permitting it to present the legislative-intent argument for the first time before an appellate tribunal. We hence accept supplemental briefs in support of this argument. To do less would impair a litigant's opportunity to meet a new issue and limit the city's right to be heard.¹³

¶12 The city urges that an examination of the §155(13) language reveals that in 1984 "[t]he governmental function of safety inspection was expressly enlarged to include [added immunity for the city's] breach of the duty to inspect the public's own property."¹⁴ Under §155(13)'s pre-1984 language a city was liable solely for negligent inspection of its own property.¹⁵ This exemption, according to the city, was clearly not a landowner exemption because it included only premises "other than the property of the political subdivision."¹⁶ The 1984 enactment (which renamed the act as the GTCA) altered the §155(13) language to expand the city's immunity by including its own property.¹⁷ Because of this textual change, we are urged, governmental negligence in the inspection of the city's own premises (which would have resulted in liability before 1984) would now be immunized and require a judgment against the plaintiff under the revised post-1984 text of §155(13). According to the city, Moran — which abridges the range of a municipality's immunity — incorrectly returns governmental entities to their pre-1984 position.¹⁸ We are told that maintenance functions are not the issue in these premises liability cases.¹⁹ The...