Nider v. Republic Parking, Inc.
Decision Date | 10 September 2007 |
Docket Number | No. 103,441. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,103,441. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. |
Citation | 169 P.3d 738,2007 OK CIV APP 95 |
Parties | Angela NIDER, Plaintiff/Appellant, v. REPUBLIC PARKING, INC., Defendant/Appellee. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Vicki L. Robertson, Trial Judge.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
Stacy S. Bateman, John A. Alberts, Abel, Musser, Sokolosky, Mares & Kouri, Oklahoma City, OK, for Plaintiff/Appellant.
Shawn E. Arnold, Law Offices of Ann Fries, Oklahoma City, OK, for Defendant/Appellee.
¶ 1 Plaintiff Angela Nider appeals from the Trial Court's grant of summary judgment in favor of parking garage operator Defendant Republic Parking, Inc. in her premises liability action. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp.2004, ch. 15, app. 1. Based on our review of the record on appeal and applicable law, we reverse and remand for further proceedings.
¶ 2 On the morning of December 4, 2003, Nider fell as she was walking down the ramp of a downtown Oklahoma City parking garage operated by Defendant Republic Parking, Inc. At the time of her fall, Nider was on her way to work.
¶ 3 Nider filed this action against Republic seeking damages for injuries she sustained as a result of her fall. Nider alleged in her petition that she was an invitee on Republic's premises and had been proceeding slowly and carefully down the ramp before her fall. She further alleged that Republic was negligent in failing to keep and maintain the ramp in a safe and proper condition.1 Republic denied that Nider was an invitee and asserted as affirmative defenses: (1) contributory negligence, (2) open and obvious condition, and (3) lack of proximate cause.
¶ 4 In its summary judgment motion, Republic argued that the condition of the ramp was open and obvious and that, because the garage had been built more than ten years earlier, Nider's action was barred by the limitation period set forth in 12 O.S.2001 § 109. The Trial Court granted Republic's motion for summary judgment without a hearing. Okla. Dist. Ct. R. 13(f), 12 O.S. Supp.2005, ch. 2, app. 1 ("A court may decide a motion for either a summary judgment or a summary disposition without a hearing, and where this is done, the court shall notify the parties of its ruling by mail."). Nider filed a combined "Motion for New Hearing" and "Motion to Reconsider" pursuant to 12 O.S.2001 §§ 653 and 990.2.2 The Trial Court denied the motions on May 10, 2006. Nider timely appeals.
¶ 5 This Court reviews a trial court's denial of a motion for new trial for abuse of discretion. Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 6, 77 P.3d 581, 584. Where the correctness of a trial court's exercise of discretion in denying a party's motion for new trial rests on the propriety of the grant of summary judgment, "the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness." Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106-07.
¶ 6 Review of a trial court's order granting summary judgment requires this Court to examine the pleadings and evidentiary materials submitted by the parties to determine whether one party is entitled to judgment as a matter of law because there are no disputed material factual questions. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On de novo review, this Court exercises its independent judgment as to the legal effect of the undisputed facts disclosed by the summary judgment record. Id. We have "an affirmative duty" to test the evidentiary material tendered to the Trial Court for its legal sufficiency to support the relief sought by the moving party. Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 ( ).3
¶ 7 In its motion for summary judgment, Republic asserted two grounds. First, Republic argued that it owed no duty to Nider because the injury-causing hazard was open and obvious. Absent a duty, Republic was entitled to prevail on Nider's negligence claim. Second, Republic argued that because Nider's theory of recovery was based on design defects in the construction of the ramp and handrail, it was barred by 12 O.S. 2001 § 109. In response, Nider argued that she was an invitee and that Republic had a duty to maintain the ramp and walkway in a safe and proper condition, which it breached causing her injuries. Because we find that Republic is not entitled to summary judgment, we first discuss the issue of Nider's status.
¶ 8 "Entrants onto real property fall into three categories: trespasser, licensee and invitee." Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 9, 951 P.2d 1079, 1083. Nider contends that she was an invitee, while Republic argues that she was a licensee. "The determination of entry status is critical in a premises liability case because the duty of care the property owner [or occupier] must exercise expands or contracts based on the entrant's status." Id. at ¶ 10, 951 P.2d at 1083.
¶ 9 In order to assign Nider licensee status, as urged by Republic, the record must show that Nider was on the premises for her own benefit, for purposes in which Republic had no business, commercial or other interest. Foster v. Harding, 1967 OK 46, ¶ 18, 426 P.2d 355, 360. The record does not support Republic's contention. Nider had entered into a month-to-month contract with Republic to use its parking garage, pursuant to which Republic required her to pay a $25 monthly fee. These undisputed facts require assigning invitee status to Nider. An invitee is one who possesses an invitation to be upon the premises, for the purpose of a common interest and mutual advantage. Brown v. Nicholson, 1997 OK 32, ¶ 7, 935 P.2d 319, 321. Republic thus owed Nider "a duty of `reasonable care,'" and because she was "a business visitor [she was] entitled to that care which would make the premises safe for [her] reception." Id., 935 P.2d at 322 (footnote omitted).
¶ 10 In Proposition I of its motion for summary judgment Republic argued that it did not have any duty to Nider regarding the condition that caused her injury. Republic correctly observed that it had neither a duty to keep its premises "accident-free" nor a duty to protect Nider from "open and obvious" dangers. Nonetheless, Nider's negligence claim requires us to examine the nature and extent of Republic's duty to her as an invitee.
¶ 11 The law applicable in this case is clear and well settled. As the owner of the garage, Republic had a duty of "reasonable care" to make the premises safe for Nider's reception. Brown, 1997 OK 32 at ¶ 7, 935 P.2d at 321 ( ). As to invitees like Nider, Republic was required "to use ordinary care to keep [the] premises in a reasonably safe condition." See Oklahoma Uniform Jury Instructions-Civil (OUJI-CIV) No. 11.10.4 The Oklahoma Supreme Court has described the nature of that duty as follows:
The cases denying liability of the [owner] all disclose the presence of a physical fact or circumstance not occasioned by, or within the possible control of the storekeeper or owner of the premises .... Those cases wherein liability has been held to attach recognize the presence of some physical fact or circumstance occasioned by an act or omission of the storekeeper which, although obvious and not dangerous within itself, forms an integral part of an eventuality out of which injury arose.
J.J. Newberry Co. v. Lancaster, 1964 OK 21, ¶ 22, 391 P.2d 224, 228 ( ).
¶ 12 The photograph that Republic attached to its motion for summary judgment provided a reasonably detailed view of the ramp's condition and was relevant to Republic's common law duty of reasonable care.5 The photograph showed a handrail along the side of the ramp adjacent to the wall of the garage. The handrail did not extend along the ramp's full length. Instead, the handrail ended at the building wall approximately three feet from the bottom of the ramp and the adjoining sidewalk. At the end of the handrail, the slope of the ramp increased significantly. On the portion of the parking garage ramp adjacent to the handrail, some strips of non-skid material had been intermittently placed. The strips were approximately two to three feet wide and extended from the handrail toward the center of the garage. The words "watch your step" appeared to have been painted on a large section of the non-skid material extending from the end of the handrail up the ramp into the garage. The words were somewhat faded and placed on the non-skid material so as to be read by a person walking up the ramp into the garage. A rectangular piece of the non-skid material was missing from the outside middle of this large section.
¶ 13 It appears from the discoloration of the ramp...
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