                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 29 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    VONNA SIMPSON,

                Plaintiff-Appellee,

    v.                                                   No. 99-5082
                                                  (D.C. No. 98-CV-235-K(J))
    WAL-MART STORES, INC.,                               (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Wal-Mart Stores, Inc., appeals from the denial of its motion for

judgment as a matter of law. Plaintiff Vonna Simpson brought this diversity tort


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
action to redress injuries sustained when she fell over a cone in the doorway of

one of defendant’s premises. Defendant moved for summary judgment, arguing

that the cause of plaintiff’s fall was an “open and obvious” danger for which no

liability may be imposed.       See Zagal v. Truckstops Corp. of Am.   , 948 P.2d 273,

274 (Okla. 1997) (holding “owner is under no legal duty to warn an invitee of a

danger which is obvious”). The district court denied the motion, and the case

went to trial. The jury returned a verdict for plaintiff, though its damage award

was reduced to account for a finding of 49% comparative negligence on the part

of plaintiff. Defendant moved for judgment notwithstanding the verdict, relying

again on the “open and obvious” danger defense. The district court denied the

motion. We review the district court’s decision, and the determination of state

law it incorporates, de novo,     see Taylor v. Cooper Tire & Rubber Co.    , 130 F.3d

1395, 1398, 1399 (10th Cir. 1997), and affirm for substantially the reasons stated

by the district court.

       Whether a condition is open and obvious “is a fact question that should be

submitted to the jury to decide,” and, thus, where “reasonable minds could

differ,” judgment as a matter of law is improper.      Phelps v. Hotel Management,

Inc. , 925 P.2d 891, 894 (Okla. 1996);     see also Spirgis v. Circle K Stores, Inc.,

743 P.2d 682, 685 (Okla. Ct. App. 1987)        (holding summary judgment improper

where “the facts before the court do not conclusively demonstrate the obvious


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nature of the defect”). Defendant contends it was entitled to judgment on this

defense because (1) the cone plaintiff tripped on was visible and (2) the only

reason she did not see and avoid it was that her view was obscured by an infant

carrier she held in front of her. As the district court recognized, these points are

not legally conclusive.

       In essence, defendant “argues that the [cone] was observable on the floor

and thus ipso facto an obvious danger. But this is not the test.”   Zagal , 948 P.2d

at 275. “The characteristic of an item as being observable . . . cannot, by itself,

require that item to be declared as a matter of law an open and obvious danger.”

Id. ; see also Spirgis , 743 P.2d at 685 (holding fact that “hazard was in an open

place” is not determinative);    Roper v. Mercy Health Ctr. , 903 P.2d 314, 315

(Okla. 1995) (following    Spirgis ). Rather, “[a]ll of the circumstances must be

examined to determine whether a particular condition is open and obvious to the

plaintiff or not.”   Zagal , 948 P.2d at 275; see also Weldon v. Dunn , 962 P.2d

1273, 1276-77 (Okla. 1998) (noting “what constitutes a hidden danger depends on

the physical surroundings and on the use made of them at the time of the injury,”

and emphasizing critical significance of foreseeability of injury).

       Testimony by defendant’s employees acknowledged the danger inherent in

the disruption of its entryway, where heavy foot traffic of customers, foreseeably

laden with packages, is expected. Oklahoma courts have cited these and similar


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considerations to reject the open-and-obvious danger defense in several cases

involving visible, but unseen, conditions.      See, e.g. , Zagal , 948 P.2d at 274-75

(cardboard box left on aisle floor of truck stop);      Roper , 903 P.2d at 315 (light

fixture protruding above surface of sidewalk);        Spirgis , 743 P.2d at 684-85

(pothole in parking lot). The district court correctly placed this case in the same

category.

       Decisions cited by defendant illustrating application of the defense in

circumstances which did not preclude the plaintiff’s observation or knowledge of

the operative condition, such as    Weldon , 962 P.2d at 1277; Williams v. Tulsa

Motels , 958 P.2d 1282, 1285 (Okla. 1998);         Kastning v. Melvin Simon & Assocs.    ,

876 P.2d 239, 240 (Okla. 1994); and      Billings v. Wal-Mart Stores, Inc.   , 837 P.2d

932, 933 (Okla. Ct. App. 1992), are clearly not relevant.        Safeway Stores, Inc. v.

McCoy , 376 P.2d 285, 286-87 (Okla. 1962), which held an unobserved curb to be

open and obvious, is more to the point, but we agree with the district court’s

reconciliation of this older decision with its analysis here under more recent

Oklahoma authorities:

              Defendant also cites Safeway Stores, Inc. v. McCoy , 376 P.2d
       285 (Okla. 1962), in which a shopper left a store carrying a large bag
       of groceries which partially obscured her vision. She fell over a curb
       between the store and the parking lot. The Supreme Court of
       Oklahoma held that the danger was open and obvious, despite the
       bundle in plaintiff’s arms. Id. at 287. However, the court
       emphasized that the curb was a “permanent installation” and that
       plaintiff had traded at the store several years. The caution cone

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      involved in the case at bar was clearly not a permanent installation.
      Even a regular shopper at this particular Wal-Mart store could not
      have anticipated its presence.

Appellant’s App. at 232 (footnote omitted).

      Finally, with respect to the charge of personal culpability implicit in the

second prong of defendant’s argument, i.e., that plaintiff caused the accident by

obstructing her own vision while entering the store, the following comments of

the district court should suffice:

             In the Court’s view, under the authorities cited, defendant may
      be subjected to liability for negligence because it placed the cone in
      the doorway to an entrance where it was foreseeable that large
      numbers of people, some carrying bundles, would pass. The
      plaintiff’s testimony that the “only reason” she did not see the cone
      was because of carrying the infant does not negate the defendant’s
      negligence under the “open and obvious” doctrine. Rather, it goes to
      the calculation of comparative negligence, along with the evidence of
      purported admissions by Wal-Mart employees. Judgment as a matter
      of law in defendant’s favor is not appropriate.

Id. at 232-33.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Senior Circuit Judge


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