Moran v. City of Del City

• Decision Date: 03 June 2003
• Docket Number: No. 97,346.,97,346.
• Citation: 77 P.3d 588,2003 OK 57
• Parties: Joshua MORAN and Ruth Moran, as parents and next friends of D. M., a minor, Plaintiffs/Appellants, v. The CITY OF DEL CITY, a municipal corporation, Defendant/Appellee.
• Court: Oklahoma Supreme Court

77 P.3d 588

2003 OK 57

Joshua MORAN and Ruth Moran, as parents and next friends of D. M., a minor, Plaintiffs/Appellants, v. The CITY OF DEL CITY, a municipal corporation, Defendant/Appellee.

No. 97,346.

Supreme Court of Oklahoma.

June 3, 2003.

As Corrected June 17, 2003.

Rehearing Denied September 15, 2003.

Gary C. Bachman, Kenyatta R. Bethea, Holloway, Dobson & Bachman, Oklahoma City, OK, for Plaintiffs/Appellants.

Robert M. Anthony, Robert S. Lafferrandre, Pierce, Couch, Hendrickson, Baysinger & Green, Oklahoma City, OK, for Defendant/Appellee.

SUMMERS, J.

¶ 1 The primary issue on certiorari is whether an exemption from tort liability in the Governmental Tort Claims Act, 51 O.S. Supp.2000 § 151 et seq., shields a political subdivision from liability based upon an allegation that the subdivision did not maintain its real property in a safe condition. We conclude that the "inspection powers or functions" exemption of the Governmental Tort Claims Act is not so broad as to include any act of a political subdivision that is designed to obtain knowledge of a condition or circumstance of its real property.

¶ 2 Two children were crossing a vacant lot when one fell into an uncovered sanitary sewer manhole. The other child went to an adjacent home to obtain help from adults. After one adult was unable to reach the outstretched arms of the child, another adult, Mr. Smart, used a rope to pull the child from the hole.

¶ 3 Mr. Smart described what he saw for the purpose of an affidavit used by Del City:

I noticed that the manhole lid and rim were gone, and that the concrete column of the manhole had been smashed down so that it was almost flush with the ground.

A young boy (who was later identified to me as D.... M ....) was standing at the bottom of the manhole. He was chest-deep in sewer water, which smelled terrible.

This manhole is located in a vacant grassy lot that is owned and maintained by Del City. The lot is near athletic facilities used by children.

¶ 4 The parents of the child brought an action against the City of Del City. Del City filed a motion for summary judgment with a brief and affidavits. Del City argued that 1) the City was not negligent because the cause of the child's injuries was the intentional act of an unknown vandal, and 2) that the cause of action against the City was barred by the Governmental Tort Claims Act, (GTCA), 51 O.S.2001 § 151 et seq. Parents responded with their brief and affidavits. Del City responded and challenged affidavits submitted by the parents. The District Court granted Del City's motion for summary judgment without stating the specific grounds upon which the judgment was based.

¶ 5 The parents appealed and urged as error that questions of fact existed so as to preclude summary judgment. They included under this alleged error various assertions relating to whether Del City violated certain standards of care. The Court of Civil Appeals concluded that "The competing summary judgment materials and affidavits demonstrate substantial controversy over material facts concerning Morans' cause of action based upon the City's negligence." The appellate court concluded that the City's defense of supervening cause¹ could not be the basis of summary judgment because of disputed facts on what the City knew, or should of known, about the condition of the manhole prior to the child's injuries. But the appellate court concluded that summary judgment was nevertheless proper, because the claim that the City negligently failed to inspect and maintain the manhole was barred by 51 O.S.Supp.2000 § 155(13) of the GTCA. The parents then sought certiorari in this Court, claiming that Del City failed to properly maintain the lot and that their claim for relief was not barred by the GTCA.

¶ 6 Governmental immunity of a subdivision of the State is waived only to the extent and in the manner provided in the GTCA. Salazar v. City of Oklahoma City, 1999 OK 20, 976 P.2d 1056, 1066, quoting, 51 O.S.1991 § 152.1(B). A political subdivision shall be liable for loss resulting from its torts or the torts of employees committed within the scope of employment where private persons or entities would be liable under the laws of this state. Walker v. City of Moore, 1992 OK 73, 837 P.2d 876, 878, citing, 51 O.S.1991 § 153(A). However, the GTCA makes certain exemptions from this liability. 51 O.S.Supp.2000 § 155.² Included therein is the one urged by Del City and applied by the Court of Appeals.

§ 155. Exemptions from liability

The state or a political subdivision shall not be liable if a loss or claim results from:

... 13. Inspection powers or functions, including failure to make an inspection, review or approval, or making an inadequate or negligent inspection, review or approval of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety, or fails to conform to a recognized standard;

51 O.S.Supp.2000 § 155(13).

On certiorari the parents make a distinction between inspection powers performed by Del City and "maintenance of the vacant lot" owned by Del City. Parents are correct.

¶ 7 We first note that § 155(13) makes no reference to a political subdivision's maintenance of property. But § 155 does expressly include exemptions from liability for claims arising from the "maintenance" of a prison, jail, correctional facility, juvenile detention facility, or state highway system. 51 O.S.Supp.2000 § 155(24), (25), (30).³ The interpretation of Del City is that the language of § 155(13): "failure to make an inspection, review or approval, or making an inadequate or negligent inspection" must include acts of maintenance that would, or should, result from inspections performed by a political subdivision.

¶ 8 A statute must be read to render every part operative and to avoid rendering parts thereof superfluous or useless. In re Baby Girl L., 2002 OK 9, ¶ 21, 51 P.3d 544, 554. We construe the parts of the GTCA as consistent parts of a whole. Pellegrino v. State ex rel. Cameron University ex rel. Board of Regents of State, 2003 OK 2, ¶ 16, 63 P.3d 535, 540. Del City's construction of § 155(13) so as to include maintenance functions within the rubric of "inspection powers and functions" would make the "maintenance" provisions of § 155(24), (25), and (30) to be superfluous. Thus, the phrase "[i]nspection powers or functions" does not include the maintenance of property.

¶ 9 Del City relies upon Brewer v. Independent School District No. 1, 1993 OK 17, 848 P.2d 566, for the proposition that the "inspection exemption" from liability applies when a political subdivision fails to keep its property in a reasonably safe condition. In Brewer two of the allegations were that the school district negligently failed to keep its premises in a reasonably safe condition, and that it failed to inspect its premises at proper intervals. Id. 848 P.2d at 570. We said that no liability could be predicated on the latter allegation relating to inspection because of § 155(13). Id. However, summary judgment on the former allegation of keeping the premises in a safe condition was not addressed in the opinion as barred by § 155(13). Instead, the parties and the Court addressed the condition of the property as it related to the injured person's status as a trespasser, licensee or invitee. Id. 848 P.2d at 571. We said

Even in the absence of the attractive nuisance doctrine, the School still had a duty to Kristin either as a trespasser, licensee or invitee. Different duties are owed depending on the status of the injured person. See Good v. Whan, 335 P.2d 911 (Okla.1959)

.

The School concedes that Kristin was a licensee. Brief of Appellee, at 7. Licensee status is accorded to those individuals who enter onto another's land for his or her own benefit, interest or pleasure under such circumstances that the landowner is presumed to be aware of the person's presence there. Good, 335 P.2d at 913, 914. An owner is charged with exercising ordinary care to avoid injuring a licensee, which is that degree of care a person of ordinary prudence would exercise under the facts and circumstances of the particular case. Good at 914. As a licensee, the School owed Kristin the duty to use ordinary care with regard to any defects or conditions in the nature of hidden dangers which were known or should have been known to the School. Id. at 913; see also Henryetta Constr. Co. v. Harris, 408 P.2d 522, 525 (Okla.1965).

Brewer, 848 P.2d at 571, emphasis added.

Thus, while we said that a claim couched in the language of a "failure to inspect" the premises was barred by § 155(13), we nevertheless considered potential liability based upon what the defendant knew or should have known about the premises. The political subdivision's premises liability in tort is not controlled solely by the "failure to inspect" exemption.

¶ 10 Del City also relies upon an opinion of our Court of Civil Appeals that cites Brewer, Reynolds v. Union Public Schools, 1998 OK CIV APP 101, 976 P.2d 557. The Reynolds court concluded that "if the negligent maintenance is based on the failure to discover (inspect) or negligent inspection, then the school is exempt from liability." Reynolds, at ¶ 7, 976 P.2d at 558. That court reasoned that if the maintenance personnel should have discovered the dangerous condition and did not do so, then the plaintiff's claim was one for negligent inspection, and must fail due to § 155(13). But maintenance of property is not the same thing as inspection of property for § 155(13). A landowner may be liable for negligent maintenance of property irrespective of its inspection powers or functions. We now disapprove of Reynolds insofar as it would extend an inspection power or function in § 155(13) to include the simple act of a landowner in acquiring or not acquiring knowledge of the landowner's property.

¶ 11 The concept of a person's duty to discover facts, and to...