Pickens v. Tulsa Metropolitan Ministry

• Decision Date: 16 December 1997
• Docket Number: No. 89540,89540
• Parties: Eric PICKENS, Plaintiff-Appellant, v. TULSA METROPOLITAN MINISTRY, an Oklahoma Corporation; and Olsen Coffey Architects, an Oklahoma Corporation, Defendants-Appellees.
• Court: Oklahoma Supreme Court

Page 1079

951 P.2d 1079

1997 OK 152

Eric PICKENS, Plaintiff-Appellant, v. TULSA METROPOLITAN MINISTRY, an Oklahoma Corporation; and Olsen Coffey Architects, an Oklahoma Corporation Defendants-Appellees.

No. 89540.

Supreme Court of Oklahoma.

Dec. 16, 1997.

M. Scott Ash, The Ash Law Firm, Tulsa, for Plaintiff-Appellant.

Truman B. Rucker, Law Office of Truman B. Rucker, Tulsa, for Defendant-Appellee Tulsa Metropolitan Ministry.

Harry M. Crowe, Law Office of Harry M. Crowe, Tulsa, for Defendant-Appellee Olsen Coffey Architects.

OPALA, Justice.

¶1 We are asked to decide today whether the evidentiary material tendered by TMM and Architect to support the trial court's summary judgment in their favor provides undisputed proof of the open and obvious character of the premises' condition, which will support but a single inference that favors nonliability. We answer in the affirmative.

¶2 Eric Pickens (Pickens) sued Tulsa Metropolitan Ministry (TMM), an Oklahoma Corporation, the owner of The Tulsa Day Center for the Homeless (the Day Center), a day center and nighttime shelter for the homeless in Tulsa, alleging that TMM was negligent in constructing and maintaining on its premises a retaining wall without guardrails or barriers. Pickens also sued Olsen Coffey Architects (Architect), alleging that Architect negligently designed the retaining wall. Pickens himself has no memory of how he came to be injured. He was found on the sidewalk at the foot of the retaining wall. A witness gave a deposition that Pickens was asleep on the retaining wall and fell off as he rolled over in his sleep. Pickens had been

                drinking and at a minimum had consumed six cans of beer.  TMM and Architect sought and secured summary judgment.  The trial court found that "the condition or defect complained of was open and obvious."   Pickens appealed claiming that:  1) whether the defect was open and obvious is a question of fact for a jury, 2) whether the condition was open and obvious must be viewed in light of Pickens' inebriated condition, and 3) the open and obvious defense is not available to an architect in a suit for damages for defective design.  We hold that (a) the condition of the retaining wall was open and obvious as a matter of law, (b) Pickens' inebriated condition does not bear on the determination of what is an open and obvious defect or condition, and (c) an architect is not liable for a patent design defect or condition
                

I THE ANATOMY OF LITIGATION

¶3 The Tulsa Day Center for the Homeless opened its doors on January 9, 1995. Previously, it had operated the same type of facility at a location approximately one block away. During the daytime, the Day Center offered food, clothing, shelter, showers, and various social services to the homeless of Tulsa. At night, the Day Center provided sixty-five spaces for homeless people to sleep indoors. The sixty-five indoor spaces were allotted on a priority system, women and children receiving the highest priority and young, healthy males receiving the lowest. Throughout the year, but especially during clement weather, more than sixty-five people came to the Day Center to sleep. Those who did not receive spaces inside often slept outside of the Day Center. The Day Center insists that people were only permitted to sleep in the area by the front door where the Day Center's employees could see them. Signs prohibiting sleeping were placed at various spots on the building, but whether those signs were posted before or after Pickens' accident is not clear. Despite this prohibition on sleeping anywhere other than by the front door, many homeless people sat, socialized, drank, and slept at other locations on the property. The Tulsa police expressed concern to representatives of TMM about the nightly activity occurring on its property after the Day Center locked its doors. Security patrols by the Day Center ended outside by 10:30 p.m., and any efforts to remove people from prohibited locations ended at that time unless an altercation caused the employees to summon the police to remove someone. Drinking was also prohibited, but no evidentiary material was tendered which embodied this prohibition in written form and no employee could say that the Day Center had a policy to inform people of this rule upon their arrival at the Day Center.

¶4 Along the southern edge of the Day Center's property is a retaining wall. A grassy area abuts the retaining wall and a parking lot separates the grassy area from the Day Center building. The homeless who congregated on the property liked to socialize in this area because it was largely hidden from the view of the Day Center employees on the building side and from the police on the street side. The retaining wall was variously described as rising seven feet, eight feet, or nine feet from a sidewalk, which abutted the retaining wall from below. A grassy area then separated the sidewalk from the street. Before Pickens' accident, two other individuals had fallen off the retaining wall, suffering serious, but not life threatening injuries. Both of them were intoxicated at the time of their injury. Their falls were noted in the Day Center's log book. A homeless woman who used the Day Center at that time told the Day Center employees that a railing should be put along the wall to prevent people from getting out there. TMM did not post on its property any warning in writing specifically referring to any danger associated with the wall and did not warn Pickens verbally of any such danger.

¶5 Before, and within one week of, the evening of August 3, 1995, Pickens had slept outside the Day Center, by the front door, on at least a couple of occasions. He had been permitted inside the locked Day Center building to use the restroom after hours. He was not told of any rules prohibiting drinking, being intoxicated, or sleeping anywhere on the Day Center's property, and had not seen any posted signs setting forth the prohibition ¶6 On the evening of August 3, 1995, Pickens returned to the Day Center from his day job as a laborer. He intended to sleep outdoors in order not to miss the bus that would return him to his job the next morning. He did not eat dinner at the Day Center that evening nor did he receive any other services from the Day Center that day. He was reportedly seen by one witness on the property around 5:30 p.m. or 6:00 p.m. Pickens has no recollection of anything he did between the time he came back to the Day Center property and the time of his accident. He does not remember going to the retaining wall or falling off the retaining wall. Nelson Nails, a homeless person, is the only known witness to the accident. He came up to the Day Center property to drink, socialize, and sleep in the grassy area by the retaining wall. Two other persons were there drinking. Nails was approximately ten feet away from Pickens. He described Pickens as lying on the retaining wall asleep. Nails says that when he saw Pickens lying on the wall, he said to his companions that Pickens was going "to mess around and fall off the wall." At that moment, according to Nails, Pickens turned over in his sleep and rolled off the wall onto the sidewalk below. Pickens suffered massive head and spinal cord injuries and is paralyzed. Claiming that TMM was negligent in constructing and maintaining the retaining wall without guardrails or barriers and that Architect was negligent in designing the retaining wall, Pickens sued both.

against sleeping around the perimeter of the building.

¶7 TMM urged that based on Pickens' entry status on the property, it had no duty to warn him of, or protect him from, a condition which was open and obvious and of which he had personal knowledge. Architect urged that it had no duty of care toward Pickens, but, if it did have such a duty, it had not breached that duty because the condition of the wall was open, obvious and personally known to Pickens. The trial court agreed and summary judgment was granted for both defendants. On this appeal, Pickens claims that (a) his entry classification imposes a duty of care on TMM to make the premises safe for him, (b) the open and obvious character of the premises must be viewed in light of his intoxicated condition and, when viewed in this way, it was not open and obvious, and (c) Architect breached its duty to him when it designed the retaining wall and failed to take into account the fact that intoxicated and impaired homeless people regularly drank, socialized, and slept outside the Day Center and would foreseeably come to be on or near the retaining wall without perceiving its dangerous condition. Because the trial court's disposition was effected by summary judgment, the issues on review stand before us for de novo examination. ¹ In reviewing any summary adjudication order, the court may consider, in addition to the pleadings, such items as depositions, affidavits, admissions, answers to interrogatories, and other evidentiary materials submitted to the trial court by the parties and view all facts and inferences in the light most favorable to the non-movant. Only where the court concludes that there is no substantial controversy as to any material facts which would justify a trial is the movant entitled to summary judgment as a matter of law. ²

II

PLAINTIFF'S ENTRY STATUS DETERMINES THE DUTY OF CARE OWED TO HIM

¶8 In any case based upon negligence, the threshold question is whether the defendant had a duty to the particular plaintiff alleged to have suffered injury. ³ In this

                case, Pickens was injured while on real property owned and operated by TMM.  TMM argues that its duty to Pickens is restricted by the entry classification system employed in premises liability cases.  Pickens urges this court to reject the use of an injured party's entry status in determining the duty of care owed to an injured party by a property owner.  Pickens cites cases from California (and some other states) which have abolished the

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