Weatherall v. Yorktown Homeowner's Ass'n Inc., 77711

• Decision Date: 30 March 1993
• Docket Number: No. 77711,No. 1,77711,1
• Citation: 852 P.2d 815,1993 OK CIV APP 59
• Parties: 1993 OK CIV APP 59 Marilyn WEATHERALL, Appellant, v. YORKTOWN HOMEOWNER'S ASSOCIATION, INC., Defendant, and Real Estate Control Corporation, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 815

852 P.2d 815

1993 OK CIV APP 59

Marilyn WEATHERALL, Appellant, v. YORKTOWN HOMEOWNER'S ASSOCIATION, INC., Defendant and Real Estate Control Corporation, Appellee.

No. 77711.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 1.

Court of Appeals of Oklahoma Division No. 1.

March 30, 1993.

Appeal from the District Court of Oklahoma County; James Gullett, Judge.

AFFIRMED.

Keith P. Connell and Michael H. Brady, Oklahoma City, for appellant.

Mark E. Bialick and Regena K. McNeill, Durbin, Larimore & Bialick, Oklahoma City, for appellee.

MEMORANDUM OPINION

ADAMS, Presiding Judge:

Marilyn Weatherall fractured her ankle when she fell on the ice and snow accumulated on the sidewalk outside her apartment. Weatherall sued Yorktown Homeowner's Association, Inc. (Yorktown) and Real Estate Control Corporation (REC) which entities she alleged owned and operated the apartment complex, and claimed their negligence cause her injuries. REC moved for summary judgment, contending it had no duty concerning an open and obvious hazard like snow and ice accumulation. The trial court agreed and entered judgment in favor of REC. Weatherall appeals. ¹

Weatherall argues summary adjudication was inappropriate because the trial court failed to recognize that the Oklahoma Residential Landlord and Tenant Act, 41 O.S.1991 § 101, et seq., imposed a higher duty on REC than the common law. She also claims there were unresolved questions of fact whether the ice on which she slipped was an open and obvious condition.

As noted by Weatherall, 41 O.S.1991 § 118(A)(1) requires a landlord of residential property, other than a single family residence, to "keep all common areas of his building, grounds facilities and appurtenances in a clean, safe and sanitary condition." Relying on Bokis v. Champion Financial Corp., 608 F.Supp. 585 (W.D.Okla.1985), Weatherall argues this section abrogated the common law rule applied in Turner v. Rector, 544 P.2d 507 (Okla.1975). According to Turner, a landlord has no duty to the tenant concerning natural accumulations of ice and snow. Bokis, which was not an snow and ice case, concluded § 118(A)(1) imposed a higher duty on a landlord than the common law duty.

However, the common law remains in full force and effect unless a statute explicitly provides to the contrary. Tate v. Browning-Ferris, Inc., 833 P.2d 1218 (Okla.1992). Bokis overlooks this rule of statutory construction, but we may not do so. Nothing in this section explicitly indicates a landlord's duty to maintain common areas in a "safe" condition requires anything more than fulfilling the common law duty. The trial court did not err in considering REC's liability to be limited by the common law rule stated in Turner.

In addressing Weatherall's claim that summary adjudication was inappropriate even if the common law rule applies, we must...