Williams v. Tulsa Motels , 958 P.2d 1282 ( 1998 )

HODGES, Justice.

¶ 1 The issue before this Court is whether the trial court’s grant of summary judgment was proper. We find that summary judgement was proper.

I. FACTS

¶ 2 The plaintiff, Glenn C. Williams, was a guest at the Holiday Inn Holidome in Tulsa, Oklahoma. The Holidome is owned by the defendants. While leaving the Holidome, Williams descended a staircase. At the bottom of the stairs, Williams had to make a turn to exit the Holidome. About three or four steps after the turn, a maid was mopping the floor with her service cart placed beside her and in front of an ice machine. When Williams started to pass between the cart and the ice machine, he slipped and fell, injuring himself.

¶ 3 Williams filed suit against the owners of the Holidome for his injuries resulting from this fall. The trial court rendered summary judgment in favor of the defendants, finding that the danger from the wet floor was open and obvious. The Court of Civil Appeals reversed, relying on a statement in Williams’ deposition that the maid saw Williams coming down the stairs and moved so that he could pass between the service cart and the ice machine; a fact not relied on by Williams in the trial court. Further, Williams did not assert that the maid’s stepping aside mislead him as to the condition of the floor. Williams did not even allege that the maid’s actions lead him to believe the floor was dry.

¶ 4 The Court of Civil Appeals held that “reasonable persons might conclude that while Motel’s employee, standing with a mop in hand, should alert a patron to the possibility of a wet floor, the fact the employee ‘moved to the side of the cart to make a pathway’ so Williams could pass might be construed as a signal by the employee that the area was safe to traverse, thus masking the hazard.” The defendants filed a petition for certiorari. In the petition for certiorari, the defendants assert that the Court of Civil Appeals erred in addressing the issue of the effect of the maid’s stepping aside to let Williams pass because Williams did not assert in the trial court that he was misled by the maid’s stepping aside.

II. SUMMARY JUDGMENT

¶ 5 Summary judgment is proper when there is no genuine issue of material fact. Okla. Stat. tit. 12, ch. 2, app. 1, rule 13 (1991). The moving party is charged with showing that no genuine issue of material facts exist. Id It is then incumbent on the party opposing the motion to submit a written statement accompanied by evidentiary material as to material facts which the party contends are in dispute. Id; Fowler v. Norman Municipal Hospital, 1991 OK 30, ¶ 6, 810 P.2d 822, 824. On appeal, the party opposing the motion cannot “rely on appeal on any fact or material that is not referred to or included in the written statement.” Okla. Stat. tit. 12, ch. 2, app. 1, rule 13(b) (1991).

III. ANALYSIS

¶ 6 It is undisputed that Williams was a business invitee. See McKinney v. Harrington, 1993 OK 88, ¶ 8, 855 P.2d 602, 604. The duty of the invitor is to “exercise reasonable care to prevent injury to a business invitee.” Taylor v. Hynson, 1993 OK 93, ¶ 16, 856 P.2d 278, 280. The invitor has no duty to protect against open and obvious dangers. McKinney, 1993 OK 88, ¶ 9, 855 P.2d at 604. The rule, long ago set out in the case of City of Tulsa v. Harman, 1931 OK -, 148 Okla. 117, 299 P. 462, and reaffirmed in C.R. Anthony Co. v. Million, 1967 OK 231, ¶ 6, 435 P.2d 116, 117, provides:

The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is [not] liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care.

¶ 7 It is clear from the evidentiary material that Williams knew or should have known that the floor was wet. Williams testified: “I turned away from the stairwell and started walking toward the outside door, you know, it’s close enough proximity to the end of the stairs that there was room to take three or four steps, and obviously I could see her and the cart and, you know, there was a path between that area, and I was going to head to that area, hit a wet spot and went down.” Williams then testified: “I think I saw her actually mopping in the area that we were about to walk through....” In Williams’ deposition testimony, he stated that he saw the maid step aside so that he could pass. Before falling, Williams saw the cart and the maid who was holding a mop. Williams even thinks he saw the maid actually mopping the floor. If Williams saw the maid step aside, he must have seen her before he fell. Thus, Williams either knew or should have known of the dangerous condition of the floor. ■

¶ 8 It is clear that the danger of the wet floor was open and obvious and Williams knew of the danger when he chose to walk on the wet floor. The defendants were not liable to Williams for an injury resulting from a danger which was obvious or should have been observed in the exercise of ordinary care. McClendon v. McCall, 1971 OK 123, ¶ 13, 489 P.2d 756, 758. Thus, summary judgment was proper for the defendants.

¶ 9 Even though the trial court was correct in rendering judgment for the defendants, the Court of Civil Appeals reversed. The Court of Civil Appeals surmised, that by the maid’s moving aside, Williams could have been misled into believing that the floor was safe. In the trial court, Williams did not even infer that he was deceived by the maid’s stepping aside. Williams did not rely on this fact or this part of his deposition in his written statement responding to the defendants’ motion for summary judgment to show that a substantial controversy existed. A review of the record before this Court shows that the danger was open and obvious. Further, the record on appeal does not support a finding that there is a genuine issue of material fact as to whether Williams was misled by the maid’s stepping aside.

¶ 10 The Court of Civil Appeals reversed relying on a faet not in dispute — whether Williams was deceived by the maid’s stepping aside. Because Williams’ written statement .in opposition to the motion for summary judgment did not rely on or refer to this fact, it was not a proper basis on which the Court of Civil Appeals to base its decision. Okla. Stat. tit. 12, eh. 2, app. 1, rule 13(b) (1991). Based on the record on appeal, there is no genuine issue of material fact, and summary judgment for the defendants was proper. See id

IV. CONCLUSION

¶ 11 The defendants did not breach a duty to Williams to warn against the wet floor, an open and obvious danger. The trial court correctly rendered judgment in favor of the defendants. The Court of Civil Appeals erred in finding a controversy based on the maid’s moving aside to allow Williams to pass because Williams did not rely on this faet in his statement opposing the motion for summary judgment. Further based on the record on appeal, there was no genuine issue of material faet. The opinion of the Court of Civil Appeals is vacated, and the judgment of the trial court is affirmed.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT’S JUDGMENT AFFIRMED.

¶ 12 HODGES, LAVENDER, SIMMS, HARGRAVE and WATT, JJ., concur. ¶ 13 KAUGER, C.J., and WILSON, J., concur in part; dissent in part. ¶ 14 SUMMERS, V.C.J., “I join Justice Opala insofar as his opinion relates to Oklahoma summary judgment jurisprudence. I, too, would deny certiorari.”, Opala, J., dissent.