Turner v. Rector
| Decision Date | 23 December 1975 |
| Docket Number | No. 47536,47536 |
| Citation | 1975 OK 172,544 P.2d 507 |
| Parties | Dwayne E. TURNER, Appellant, v. A. K. (Tony) RECTOR, dba A. K. Rector Enterprises, Appellee. |
| Court | Oklahoma Supreme Court |
O. A. Cargill, Jr., Oklahoma City, for appellant.
B. J. Cooper, Cooper, Stewart, Elder & Abowitz, Oklahoma City, for appellee.
The issue presented in this appeal concerns what, if any, duty is owed a tenant by his landlord to protect the tenant from potential danger created by the natural accumulation of ice and snow on common walkway of an apartment complex.
Appellant, plaintiff below, brought this action to recover for personal injuries he sustained on December 13, 1972, when he fell on ice and snow which had naturally accumulated in front of his apartment. Appellee, defendant below, owned the Oklahoma City apartment complex.
The trial court sustained defendant's demurrer to plaintiff's petition and allowed plaintiff to amend. Subsequently, plaintiff filed his amended petition to which defendant demurred. Finding that plaintiff had failed to state a cause of action, the trial court sustained defendant's demurrer and dismissed plaintiff's suit. This appeal arises from that ruling of the trial court. The Court of Appeals Reversed the ruling of the trial court and Appellee seeks Certiorari. Certiorari Granted. Court of Appeals Opinion Vacated. Trial Court Affirmed.
To determine the sufficiency of a petition, the general rule is that the demurrer admits the truth of all facts well pleaded together with all inferences which may be reasonably drawn therefrom. But a demurrer does not admit facts which are not pleaded or conclusions of fact or law which are not supported by the allegations of the petition. Mohoma Oil Co. v. Ambassador Oil Co., Okl., 474 P.2d 950 (1970).
The pertinent portions of Appellant's amended petition alleged that:
'. . . he slipped and fell directly in front of his apartment on a portion of the premises over which appellee had exclusive control, possession and dominion and which was used in common by all tenants. Appellant further alleged that appellee 'was guilty of one or all of the following acts of carelessness and negligence,' to wit:
'(1) Failing to keep the ingress and egress passages along the walkways in front of said Apartments which was in the sole and exclusive possession and control and dominion of defendant, free and clear of ice, snow and slippery conditions, so as to afford a reasonably safe ingress and egress to the tenants in said Apartment Complex, and in particular, this plaintiff.
(2) Failing to properly inspect said walkway used as ingress and egress to said Apartments which was in the exclusive control, possession and dominion of the defendant, to determine the reasonably safe condition thereof.
(3) Allowing said snow and ice and slippery conditions to remain along said passageways of ingress and egress, which was in the exclusive control, possession and dominion of the defendant for a long period of time without having the same removed, or at least having said passageways which was in the sole control, possession and dominion of the defendant either cleared of said snow, ice or slippery conditions or to place sand, rocks or other matting over said slick places and the failure of the defendant to do so was careless and negligence (sic).
(4) Failing to warn plaintiff of the dangerous condition existing in front of Apartment No. 51, occupied by plaintiff, knowing that the same was covered with snow, ice and slippery substances so as to give plaintiff a chance to be aware of the dangerous incident, to (sic) going to and from Apartment No. 51, over such dangerous surfaces."
Appellant further alleged that his damage occurred as a 'direct and proximate result of the above and foregoing acts of carelessness and negligence on the part of (appellee).'
Appellant contends that the ruling of the trial court sustaining Appellee's demurrer was erroneous in that Appellee had a duty to exercise reasonable care to keep the common walkway safe and that Appellee breached this duty by failing to remove the naturally accumulated ice and snow.
Appellant contends that Appellee's duty of reasonable care to protect invitees such as himself from danger extends to those dangers that are open and obvious as well as to hidden defects in the nature of snares and pitfalls. In support of this contention Appellant relies on Arnold v. Walters, 203 Okl. 503, 224 P.2d 261 (1950), where we sustained a landlord's liability for plaintiff tenants' fall on a wooden walkway. The walkway had boards which were 'loose, some were off entirely, so that there were holes in said walk, and many of the boards were warped and uneven.'
Appellant's argument that Arnold, supra, is controlling here must fail as the holding in Arnold was obviously modified by our later decision of Jackson v. Land, Okl., 391 P.2d 904 (1964). In Jackson, supra, we held that plaintiff tenant failed to establish actionable negligence against her landlord for her fall as she failed to establish any duty owing to her. The plaintiff's fall in Jackson, supra, occurred in a driveway which was chipped and cracked, presenting an open and obvious danger similar to that of the walkway in Arnold, supra.
The Court's syllabus in Jackson, supra, serves as an efficient means to outline the general law in Oklahoma regarding the duty of a landowner to warn and protect invitees from danger, and is here set forth:
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...Oscar Rose, Etc., 1978 OK 129, ? 7, 586 P.2d 1098. 91. Box v. State Election Bd. of Oklahoma, 1974 OK 104, 526 P.2d 936; Turner v. Rector, 1975 OK 172, 544 P.2d 507; Perforators v. Hilligoss, 1964 OK 244, ? 38, 397 P.2d 113; Eckels v. Traverse, 1961 OK 139, ? 2, 362 P.2d 683. See also, Shor......
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