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WOOD v. MERCEDES-BENZ OF OKLAHOMA CITY2014 OK 68Case Number: 108555Decided: 07/16/2014THE SUPREME COURT OF THE STATE OF OKLAHOMACite as: 2014 OK 68, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL 
RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. 

ERICA WOOD, Plaintiff-Appellant,v.MERCEDES-BENZ OF 
OKLAHOMA CITY, Defendant-Appellee.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I, ON 
APPEALFROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF 
OKLAHOMA, HONORABLE DANIEL L. OWENS

¶0 Plaintiff brought suit against Mercedes-Benz of Oklahoma City for injuries 
she suffered after she slipped and fell on ice that had accumulated on 
sidewalks, pavement, and grass surrounding the Defendant's automobile 
dealership. The icy conditions were caused by Defendant's sprinkler system which 
activated during freezing temperatures. The trial court granted summary judgment 
in favor of the Defendant. The Court of Civil Appeals affirmed. Plaintiff 
petitioned this Court for review of the decision. We granted certiorari and 
conclude summary judgment was improper.

COURT OF CIVIL APPEALS' OPINION VACATED;DISTRICT 
COURT'S JUDGMENT REVERSED; MATTERREMANDED FOR FURTHER 
PROCEEDINGS

Thomas K. Ventura, Law Offices of Daniel M. Davis, Oklahoma City, OK, 
for Plaintiff-AppellantRodney Ramsey, Michael Gray, Ramsey and Gray, 
P.C., Oklahoma City, OK, for Defendant-Appellee


GURICH, J.
Facts & Procedural History
¶1 Erica Wood was employed by Ned's Catering, Inc. On March 8, 
2008, Wood reported to Mercedes-Benz of Oklahoma City to assist with a catered 
event at the car dealer's facility. Upon arriving at the dealership, Wood drove 
around the parking lot searching for a place to park her vehicle. Wood noticed 
ice on the grass, pavement, and sidewalks surrounding the Mercedes-Benz 
facility. Wood testified in her deposition that "[t]he whole building was 
covered in ice, all the way around, all the sidewalks."1 Although the nighttime temperatures 
had been freezing, precipitation was not a factor in creating the icy 
conditions, and Wood did not encounter any ice on the roads while driving to the 
dealership. A sprinkler system, which had been serviced the day before, 
activated overnight, causing ice to cover surfaces throughout the entire 
property of the dealership.
¶2 After parking her car, Wood walked to the east entrance of the dealership. 
To reach the door, Wood had to cross grass and a sidewalk that were coated with 
ice. Wood was wearing common "food industry" non-slip shoes and claimed she was 
"very careful as she walked in." After entering the building, Wood was unable to 
locate her supervisor at Ned's Catering. She proceeded back outside to retrieve 
a cell phone from her vehicle to contact the supervisor.2 Wood testified that there was 
"an incline on the east side, on the grass, [like] a little hill" outside the 
entrance.3 
Wood "knew . . . it was important to be careful" because she had observed ice 
covering the entire area around the entrance and "honestly believe[d] [she] was 
as careful as [she] could be" traversing the ice.4 Nevertheless, Wood alleged she slipped 
on the ice, fell flat on her back, and sustained injuries. Subsequently, Wood 
discussed the accident with an employee of the dealership who acknowledged, 
"[y]eah, I should have [put salt down] when I got here."5
¶3 Wood sued Mercedes-Benz of Oklahoma City, alleging negligence based on the 
company's failure to maintain its premises in a reasonably safe condition. 
Mercedes-Benz denied liability and later filed a motion for summary judgment. 
The District Court granted summary judgment in favor of the dealership without 
specifying a basis for its decision. The Court of Civil Appeals affirmed, 
holding Mercedes-Benz owed no legal duty because "Wood readily acknowledges the 
ice presented a known danger." Wood sought review in this Court, and we granted 
certiorari to address the propriety of summary judgment.
Standard of Review
¶4 This appeal stems from a grant of summary judgment, which calls for de 
novo review. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Under the de 
novo standard, this Court is afforded "plenary, independent, and non-deferential 
authority to examine the issues presented." Harmon v. Cradduck, 2012 OK 80, ¶ 10, 286 P.3d 643, 648. When examining 
an order sustaining summary judgment, this Court must determine whether the 
record reveals disputed material facts. Sheffer v. Carolina Forge Co., 
L.L.C., 2013 OK 48, ¶ 11, 306 P.3d 544, 548. Even when basic 
facts are undisputed, motions for summary judgment should be denied, if from the 
evidence, reasonable persons might reach different inferences or conclusions. 
Id. All facts and inferences must be viewed in a light most favorable to 
the party opposing summary adjudication. Id.
Analysis
¶5 Traditionally, in premises liability cases we have applied the common 
law's tripartite classification system for assessing landowner liability for 
injuries sustained on the property. The initial determination to be resolved in 
these cases has been the "entrant's status-based classification under 
traditional common law terms--trespasser, licensee or invitee." Scott v. 
Archon Group, L.P., 2008 OK 
45, ¶ 18, 191 P.3d 1207, 
1211. We held that a property owner, as an invitor, owes the highest duty of 
care to an invitee.6 Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 10, 951 P.2d 1079, 1084. Our prior 
opinions obligate a landowner to "exercise reasonable care to keep the premises 
in a reasonably safe condition and to warn [an invitee] of conditions which 
[are] in the nature of hidden dangers, traps, snares or pitfalls." Martin v. 
Aramark Services, Inc., 2004 OK 
38, ¶ 5, 92 P.3d 96, 97.
¶6 Our opinions have generally eliminated a landowner's duty to protect a 
third-party for "dangers so 'open and obvious' as to reasonably expect others to 
detect them for themselves." Williams v. Tulsa Motels, 1998 OK 42, ¶ 6, 958 P.2d 1282, 1284. These cases 
have reasoned that an open and obvious hazard relates directly to the 
foreseeability of a danger, and therefore, affects a landowner's duty. 
See, e.g., Kastning v. Melvin Simon & Associates, Inc., 
1994 OK 68, ¶ 10, 876, P.2d 239, 
240.
¶7 However the open and obvious doctrine is not absolute under our case law. 
For claims predicated on negligence, the threshold question is the existence of 
a duty. Miller v. David Grace, Inc., 2009 OK 49, ¶ 11, 212 P.3d 1223, 1227. Whether a duty 
existed is a question of law. Id. The relevant inquiry for assessing the 
existence of a duty in negligence cases was described as follows:


One of the most important considerations in establishing a duty is 
    foreseeability. Foreseeability is critical as it determines (1) to whom a 
    duty is owed and (2) the extent of the duty. A defendant owes a duty of care 
    only to foreseeable plaintiffs. As for the extent of the duty, it too is 
    determined in great part by the foreseeability of the injury. Whenever the 
    circumstances attending a situation are such that an ordinarily prudent 
    person could reasonably apprehend that, as the natural and probable 
    consequences of his act, another person will be in danger of receiving an 
    injury, a duty to exercise ordinary care to prevent such injury 
  arises.
Weldon v. Dunn, 1998 OK 
80, ¶ 11, 962 P.2d 1273, 1276 
(citations omitted). Applying the foreseeability test in a premises liability 
case, we explained that a landowner "does have a duty to exercise ordinary care 
to prevent injury to another whenever the circumstances are such that the owner, 
as an ordinary prudent person, could reasonably foresee that another will be in 
danger of injury as a probable consequence of the owner's 
actions." Brown v. Alliance Real Estate Group, 1999 OK 7, ¶ 6, 976 P.2d 1043, 1045 (citation 
omitted and emphasis added).
¶8 More specifically, we have rejected the open and obvious doctrine for a 
hazardous accumulation of ice, caused or enhanced by a landowner, and determined 
the creation of such a dangerous condition would impose a legal duty on the 
owner to exercise care for the protection of third parties. Krokowski v. 
Henderson Nat. Corp., 1996 OK 
57, ¶¶ 7-8, 917 P.2d 8, 11.7 In 
Krokowski, an apartment tenant slipped and fell on an icy sidewalk while 
walking from the parking lot to his apartment. Id. ¶ 2, 917 P.2d at 10. 
The tenant claimed the landlord had installed a drain pipe in such a way that, 
when it rained, water would unnaturally pool around the pipe. Id. ¶ 1, 
917 P.2d at 11. Additionally, the tenant presented evidence that the pooling 
caused a hazard greater than what was normally present when natural freezing 
conditions occurred. Id. ¶ 7, 917 P.2d at 11. We found that evidence 
presented to the trial court could show that the condition "causing the tenant's 
injury may have resulted from an increased natural hazard brought about by the 
landlord's placement of the drain pipe." Id. "Because reasonable people 
could differ on whether the [tenant's] fall was caused by a natural accumulation 
of ice or by an increase in the natural hazard caused by the placement of the 
drain pipe," summary judgment was improper. Id. ¶ 8, 917 P.2d at 11.
¶9 We agree with Wood that under the peculiar facts of this case, 
Mercedes-Benz owed a duty to take remedial measures to protect her from the icy 
conditions surrounding the entry to its facility. The accumulation of ice 
throughout Mercedes-Benz' facility was caused by the activation of the 
dealership's sprinkler system during freezing temperatures; not by a natural 
condition. The dealership had notice of the icy conditions surrounding the 
entire building and knew that Ned's Catering was sending its employees to the 
facility to cater the business' scheduled event. As such, it was foreseeable 
that Ned's Catering employees would encounter the icy hazards created by the 
sprinkler system and would likely proceed through the dangerous condition in 
furtherance of their employment.8
Conclusion
¶10 We find that Mercedes-Benz had a duty to take precautionary measures for 
the employees of Ned's Catering. Further, we find there is a question of fact 
regarding whether Mercedes-Benz breached its duty toward Wood, requiring 
submission of this matter to a jury. Judgment of the trial court is reversed, 
the opinion of the Court of Civil Appeals is vacated, and the cause is remanded 
for further proceedings consistent with this opinion.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT 
COURT'S JUDGMENT REVERSED; MATTER REMANDED FOR FURTHER 
PROCEEDINGS

¶11 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, GURICH, JJ., concur.
¶12 KAUGER, WINCHESTER, TAYLOR (by separate writing), COMBS (by separate 
writing), JJ., dissent.

FOOTNOTES

1 
Deposition of Erica Wood, page 17, lines 6-25, cited in Defendant, Mercedes-Benz 
of Oklahoma City's Motion for Summary Judgment with Brief in Support.

2 This 
Court recognizes that the Appellee, Mercedes-Benz, maintains that Wood's 
retrieval of her cell phone was purely personal. For purposes of summary 
judgment, we view the facts in a light most favorable to the non-moving party. 
Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, ¶ 11, 306 P.3d 544, 548.

3 
Deposition of Erica Wood, Page 21, lines 21-25, cited in Defendant, 
Mercedes-Benz of Oklahoma City's Motion for Summary Judgment with Brief in 
Support.

4
Id. Page 24, , lines 7-8.

5
Id. Page 35, lines 2-7.

6 An 
invitee is defined as one who uses the premises of another for the purpose of a 
common interest and mutual advantage. Brown v. Nicholson, 1997 OK 32, ¶ 6, 935 P.2d 319, 321. In the typical 
case, the invitee can protect herself by leaving the premises when an open and 
obvious hazard is encountered or by avoiding the premises altogether. In this 
case, neither of these choices was available to Wood. She was not a customer of 
the dealership, but was present to fulfill her employer's contractual duty to 
provide service for an event sponsored by the dealer. Wood's presence and 
exposure to the hazardous icy condition was compelled to further a purpose of 
the dealership.

7 Our 
cases generally recognize a distinction between hazards occurring naturally 
versus those which are created or aggravated through some action of the 
landowner. See, e.g., Dover v. W.H. Braum, Inc., 2005 OK 22, ¶¶ 7-8, 12, 111 P.3d 243, 245-246 (affirming 
summary judgment for landowner where no evidence demonstrated store had 
knowledge of icy conditions and "no act on the part of [store]. . .[created] a 
greater hazard than that brought about by natural causes").

8 Our 
opinion should not be construed as abrogating the open and obvious defense in 
all cases. The icy condition is not dispositive of Mercedes-Benz' duty in this 
case because Wood was required to cross the hazardous condition in furtherance 
of her employment. As opposed to a random customer appearing at the dealership, 
Mercedes-Benz knew that employees of Ned's Catering would be arriving and would 
be required to enter the building.


TAYLOR, J., dissenting:
¶1 I respectfully dissent to the Court's decision rendered today. The Court 
ignores our long-standing laws regarding the open-and-obvious doctrine and the 
duty in a premises-liability action in order to obtain the result it 
reaches.
¶2 The facts are undisputed. On March 8, 2008, the plaintiff was an employee 
of a catering company hired by the defendant to assist with an event at 
defendant's business. The plaintiff drove to the defendant's business, arriving 
about 8:45 a.m. When she arrived, the plaintiff drove around the building 
looking for a parking place. As she drove around, the plaintiff noticed ice on 
the street, grass, and sidewalks around the building, including those on the 
east side. The ice was localized to the building, and there was no ice on the 
public streets that morning. The plaintiff parked her car on the east side of 
the building and walked into the building, having traversed over grass and a 
sidewalk that were icy. Because of the ice, the plaintiff was cautious and 
careful. The plaintiff could not locate her supervisor in the building, and she 
started back to her car to retrieve her cell phone. When the plaintiff left the 
building, she was as "careful as she could be" because of the ice, but she 
slipped and fell in spite of her caution. The plaintiff later learned that the 
sprinkler had been on earlier that morning.
¶3 It is undisputed that the plaintiff drove up to the building and observed 
the ice everywhere. She got out of her car and walked across the ice the first 
time and somehow survived the journey without mishap. The plaintiff admitted 
that after surviving one journey over the ice, she made the choice to go back 
for more. She knew of the dangerous, icy conditions; and this time she fell 
down. The second journey over the ice was her choice and at her peril and was 
not required by the defendant, according to the facts presented in the record 
before this Court. Nothing in the facts show the plaintiff was required to 
return to her car for her cell phone rather than use the defendant's business 
phone or some other phone to contact her boss. It is folly to suggest that the 
only phone she could use was the phone on the other side of the open and obvious 
ice. No one but the plaintiff is responsible for the consequences of her 
decision. There is nothing about her status as an employee of the catering 
company that exempts her from this Court's decades of adherence to the 
open-and-obvious doctrine or changes her status as an invitee.
¶4 The Court's decision shows a lack of judicial restraint as well as 
disrespect for this Court's long-standing jurisprudence and the rule of law. 
Grounded in the common law, this Court has long recognized actionable negligence 
has three elements: (1) a duty owed by the defendant to the plaintiff, (2) the 
defendant's failure to perform the duty, and (3) an injury to the plaintiff 
caused from the defendant's failure to perform the duty. Faurot v. Okla. 
Wholesale Grocery Co., 1908 OK 
85, ¶ 9, 95 P. 463, 465. "The 
threshold question in any negligence action is whether the defendant has a duty 
to the plaintiff." Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, ¶ 11, 256 P.3d 38, 43. The lack of any 
one element, including a duty owed by the defendant, defeats a claim for 
actionable negligence. Id. This rule remains as vital today as it was in 
1908. Id.; Scott v. Archon Group, L.P., 2008 OK 45, ¶ 1, 191 P.3d 1207, 1208; Tucker v. 
ADG, Inc., 2004 OK 71, ¶ 17, 
102 P.3d 660, 667 ("In the first 
instance, there is no need for any defense at all because where there is no duty 
or negligence there can be no liability.")
¶5 As early as 1931, this Court recognized the common-law rule of premises 
liability that an owner or occupant "is under no legal duty to reconstruct or 
alter premises so as to obviate known and obvious dangers" and 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." City of Tulsa v. 
Harman, 1931 OK 73, ¶ 37, 299 P. 462, 463. Until today, this 
Court has consistently adhered to this premises-liability rule. Sholer, 
2011 OK 24, ¶ 2, 256 P.3d at 40; 
Archon Group, 2008 OK 45, 
¶ 21, 191 P.3d at 1212; Tucker, 2004 OK 71, ¶ 13, 102 P.3d at 
666; Kastning v. Melvin Simon & Assoc., Inc., 1994 OK 68, ¶¶ 6, 10, 876 P.2nd 239, 
240; Turner v. Rector, 1975 OK 
172, ¶ 10, 544 P.2d 507, 509 
(citing Jackson v. Land, 1964 
OK 102, 391 P.2d 904 
(Syllabus by the Court)); Nicholson v. Tacker, 1973 OK 75, ¶ 18, 512 P.2d 156, 159 ("The presence of 
an open and obvious danger is akin to the defendant nailing a 'Danger' sign on 
the premises."); C.R. Anthony Co. v. Million, 1967 OK 231, ¶¶ 7-8, 435 P.2d 116, 118; Rogers v. Cato 
Oil & Grease Co., 1964 OK 
152, ¶¶ 21-22, 396 P.2d 1000, 
1004-05; Jackson, 1964 OK 
102, ¶ 0, 391 P.2d 904 
(Syllabus by the Court, No. 3); City of Drumright v. Moore, 1946 OK 203, ¶¶ 9-14, 170 P.2d 230, 233.
¶6 This Court has refused to limit the open-and-obvious doctrine whenever it 
has come under attack. Tucker, 2004 OK 71, ¶ 17, 102 P.3d at 667; 
Buck v. Del City Apartment, Inc., 1967 OK 81, ¶ 23, 431 P.2d 360, 366; see
Lohrenz v. Lane, 1990 OK 
18, ¶ 16, 787 P.2d 1274, 1276 
("Appellant [a trespasser] argues that this is the modern view and that to 
follow the common law would be to maintain an 'ancient and archaic citadel of 
class privilege' which is out of step with current trends of Tort Law."); 
Midland Valley R.R. v. Graney, 1919 OK 315, ¶ 3, 185 P. 1088, 1088 ("[W]here there is 
no evidence reasonably tending to show that the defendant is guilty of 
negligence, it is error for the trial court to submit the issue to the 
jury.").
¶7 In Tucker, this Court declined to change the common-law rule 
regarding open-and-obvious dangers and recognized that the rule is consistent 
with article 23, section 6 of the Oklahoma Constitution. 2004 OK 71, ¶ 17, 102 P.3d at 667. 
This Court found that the defenses of assumption of the risk and contributory 
negligence need not be submitted to a jury where an invitee was injured from an 
open-and-obvious danger "because where there is no duty or negligence there can 
be no liability." Id. Tucker remains the law today regarding an 
open-and-obvious danger. Scott, 2008 OK 45, ¶¶ 1, 21, 191 P.3d at 
1208, 1212 (finding no duty to warn invitee of open-and-obvious danger); see 
Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, 256 P.3d 38 (finding whether a 
danger is open and obvious may be a question for a jury and reaffirming the rule 
that there is no duty to warn of an open-and-obvious danger).
¶8 The Court's reliance on Krokowski v. Henderson National Corp., 1996 OK 57, 917 P.2d 8, is misplaced. We have 
never, in Krokowski or any other case, "rejected the open and obvious 
doctrine for a hazardous accumulation of ice, caused or enhanced by a 
landowner." In Krokowski, the plaintiff asserted that the invitor 
increased the risk of danger from a naturally occurring accumulation of ice and 
that a drain pipe's placement increased the natural hazard. Nothing in 
Krokowski indicates that the increased hazard was open and obvious or 
that the plaintiff in the case recognized the risk of walking on the increased 
hazard when he was injured. Krokowski did not address the invitor's 
liability for an increased hazard which was open and obvious.
¶9 The Court relies on Weldon v. Dunn, 1998 OK 80, 962 P.2d 1273, for its new rule of 
law that any foreseeable risk creates a duty of care. This new rule of law has 
no support in Weldon; rather, the Court takes language out of context to 
bolster its position. The particular language states: "Whenever the 
circumstances attending a situation are such that an ordinarily prudent person 
could reasonably apprehend that, as the natural and probable consequences of his 
act, another person will be in danger of receiving an injury, a duty to exercise 
ordinary care to prevent such injury arises." Id. ¶ 11, 962 P.2d at 1276 
(citing Bradford Sec. Processing Serv. v. Plaza Bank & Trust, 1982 OK 96, ¶ 6, 653 P.2d 188, 190). An invitor would 
not foresee that an invitee would be injured by open-and-obvious dangers "which 
are so apparent or readily observable that one would reasonably expect them to 
be discovered." Id. ¶ 12, 962 P.2d at 1276-77. In Weldon, this 
Court found that the invitor owed no duty to the invitee even though the risk 
was foreseeable because the danger was open and obvious.
¶10 Today's decision abandoning the open-and-obvious doctrine and changing 
the duty in premises-liability actions has far-reaching implications. If, for 
example, a pile of bananas falls in the middle of a grocery store floor, a 
customer sees the banana pile and is aware of the risk of slipping on the 
bananas, and the customer walks back and forth over the bananas until the 
customer finally falls and is injured, the store may now liable under the 
Court's new rule. I cannot abide a new rule of law that would allow an invitee 
to recover when she ignores an open-and-obvious risk merely because the risk was 
foreseeable. Surely the banana pile would pose a foreseeable risk but not create 
a duty which gives rise to liability for an injury incurred from a slip and 
fall. Under today's pronouncement, an invitor has a duty to warn against any 
foreseeable danger, no matter how absurd the result.
¶11 I would point out that this is not a worker's compensation claim and that 
the defendant is not the plaintiff's employer. I would urge my fellow members of 
the Court to exercise restraint in this matter. As this Court stated in 
Lohrenz, 1990 OK 18, ¶ 9, 
787 P.2d 1274, 1277:


As judges, we are accountable for interpreting the law according to 
    precedent and sound public policy. We are not afforded the luxury of 
    indulging in sympathetic tendencies at another's 
expense.
The duty of an invitor is based on the proper balance between an invitor's 
rights and the rights of those coming upon the property. Id. The Court 
has failed to articulate any valid reason for shifting the balance to favor an 
invitee. As in Lohrenz, we should follow our precedents in the absence of 
sound public policy for abandoning the current rule of law.


COMBS, J., with whom KAUGER, J., joins, dissenting:
¶1 The central issue of this cause is whether a property owner owes a duty of 
care to protect third parties from ice that is open and obvious when the actions 
of the landowner created or enhanced the hazard. The majority determines that 
the open and obvious doctrine does not apply and a duty is owed in such 
circumstances. Because this Court has long held that landowners have no duty to 
guard against open and obvious hazards, including ice an entrant is aware of, I 
must respectfully dissent from the majority's departure from this Court's 
precedent and the settled principles of the common law of Oklahoma.
I.
The Open and Obvious Doctrine Concerns the Existence of a 
Legal Duty onthe Part of the Defendant, and Where There is no Duty 
There Can Be noLiability.
¶2 Any actionable claim for negligence requires three fundamental elements: 
1) the existence of a duty on the part of the defendant to protect the plaintiff 
from injury; 2) a breach of that duty by the defendant; and 3) injury to the 
plaintiff proximately resulting therefrom. Berman v. Lab. Corp. of 
America, 2011 OK 106, ¶16, 
268 P.3d 68; Smith v. 
Hines, 2011 OK 51, ¶12, 261 
P.3d 1139; Scott v. Archon Group, L.P., 2008 OK 45, ¶17, 191 P.3d 1207. The threshold 
question in any negligence action is whether the defendant has a duty to the 
plaintiff. Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, ¶11, 256 P.3d 38; Scott, 2008 OK 45, ¶17; Pickens v. 
Tulsa Metro. Ministry, 1997 OK 
152, ¶8, 951 P.2d 1079. The 
reason for this threshold question is that there can be no negligence in the 
absence of a defendant's duty to the plaintiff. Scott, 2008 OK 45, ¶17; Tucker v. ADG, 
Inc., 2004 OK 71, ¶21, 102 P.3d 660; City of Tulsa v. 
Harmon, 1931 OK 73, ¶37, 299 P. 462. The question of whether 
a duty exists is properly a question of law for the court. Bray v. St. John 
Health Sys., Inc., 2008 OK 
51, ¶6, 187 P.3d 721; 
Scott, 2008 OK 45, 
¶17.
¶3 In the specific context of premises liability, the question of what duty 
is owed is answered in part by the status of the entrant - a question that is 
the direct result of the complicated interplay between the historical rights of 
landowners and the evolution of the nascent common law of torts. As this Court 
stated in Sutherland v. Saint Francis Hosp., Inc., 1979 OK 18, ¶5, 595 P.2d 780 (footnotes 
omitted):


[l]and possessor's liability in negligence for harm occurring upon the 
    premises varies with the status of the entrant complaining of injury. 
    Definition of duty that marks out the limit of protection afforded an 
    entrant broadens or narrows with the beneficial interest of the possessor in 
    the presence of the other upon the land. This has been the common law 
    approach ever since landlord's sovereignty and immunity for acts done within 
    the boundaries of his land gradually gave away to present-day civil 
    accountability. When modern tort law finally incorporated possessor's 
    liability, the concept of negligence came to be applied within the 
    restrictive framework of relational, status-based duties. In short, the 
    common law has never seen fit to extend its principles of general negligence 
    (as they came to be fashioned in the last century) to govern harm occasioned 
    on the premises of others.
¶4 The result of the evolution described above is the existence of the three 
classes of entrant discussed briefly by the majority: trespasser, licensee, and 
invitee. Sholer, 2011 OK 
24, ¶11, 256 P.3d 38; 
Scott, 2008 OK 45, ¶18. 
In Scott, this Court restated a concise explanation of the classes of 
entrant and what duty each is owed by a landowner:


"To a trespasser, a landowner owes . . . only a duty to avoid injuring 
    him wilfully or wantonly. To a licensee, an owner owes a duty to exercise 
    reasonable care to disclose to him the existence of dangerous defects known 
    to the owner, but unlikely to be discovered by the licensee. This duty 
    extends to conditions and instrumentalities which are in the nature of 
    hidden dangers, traps, snares, and the like. To an invitee, an owner owes 
    the additional duty of exercising reasonable care to keep the premises in a 
    reasonably safe condition for the reception of the visitor. Even 
    vis-a-vis an invitee, to whom a landowner owes the 
    highest duty in this trichotomous classification system, the law does not 
    require that the landowner protect the invitee against dangers which are so 
    apparent and readily observable that one would reasonably expect them to be 
    discovered. In other words, a landowner owes to an invitee, as well as 
    to a licensee, a duty to protect him from conditions which are in the nature 
    of hidden dangers, traps, snares and the like. A hidden danger within this 
    rule of liability need not be totally or partially obscured from vision or 
    withdrawn from sight; the phrase is used to describe a condition presenting 
    a deceptively innocent appearance of safety 'which cloaks a reality of 
    danger.' Furthermore, failure to remove known but obvious hazards by 
    alteration or reconstruction of the premises is not a breach of the 
    landowner's duty even to an invitee."
Scott, 2008 OK 
45, ¶19 (quoting Pickens, 1997 OK 152, ¶10) (emphasis 
added).
¶5 Of the three classes of entrant, the invitee is entitled to the greatest 
protection. Sholer, 2011 OK 
24, ¶12; Scott, 2008 OK 
45, ¶21. However, as the above discussion of the types of entrants 
indicates, even invitees are not owed a duty by landowners to guard against open 
and obvious hazards on the premises. Sholer, 2011 OK 24, ¶12; Scott, 2008 OK 45, ¶2. This rule is the 
essence of what has become known as the open and obvious doctrine within the 
common law, and which this Court has applied consistently since at least 1931.1 Importantly, 
this Court has routinely applied this doctrine and found no duty even in 
situations where the hazard was in some way created by the property owner.2 This Court 
stated the rule very clearly in Nicholson v. Tacker, 1973 OK 75, ¶11, 512 P.2d 156 (emphasis added): 
"[j]ust because the defendant has created a risk which harmed the plaintiff 
that does not mean that, in the absence of some duty to the plaintiff, the 
defendant will be held liable."
II. 
The Majority's Reliance on Brown v. Alliance Real 
Estate Group and Krokowski v. Henderson Nat. 
Corp. is Misplaced Because Wood Was Aware of the Ice and 
the Danger it Presented.
¶6 The majority's assertion that Defendant Mercedez-Benz of Oklahoma City 
owed a duty to Plaintiff Erica Wood to take remedial measures to protect her 
from the icy conditions surrounding its facility rests on two main points. 
First, quoting Brown v. Alliance Real Estate Group, 1999 OK 7, ¶6, 976 P.2d 1043, the majority asserts 
that a landowner does have a duty to exercise ordinary care to prevent injury to 
another whenever the circumstances are such that the owner, as an ordinary 
prudent person, could reasonably foresee that another will be in danger of 
injury as a probable consequence of the owner's actions. Second, citing 
Krokowski v. Henderson Nat. Corp., 1996 OK 57, ¶¶7-8, 917 P.2d 8, the majority asserts that 
this Court has rejected the open and obvious doctrine for a hazardous 
accumulation of ice caused or enhanced by the landowner, and determined that the 
creation of such a dangerous condition would impose a duty on the owner to 
exercise care for the protection of third parties.
¶7 Both Brown and Krokowski rely extensively on another 
decision of this Court, Buck v. Del City Apartments, Inc., 1967 OK 81, 431 P.2d 360, and a firm 
understanding of this Court's determination in Buck is essential for 
understanding why the majority's reliance on Brown and Krokowski 
is misplaced. In Buck, a plaintiff sued a motel owner after injuring 
herself in a fall on ice, that had accumulated on the porch steps and that 
she did not see. 1967 OK 81, 
¶18. After discussing application of the open and obvious doctrine, this Court 
determined that the plaintiff could not recover because:


It is clear from the evidence that the wife knew or should have known 
    of the general weather conditions. The dangers from them are 
    universally known and were equally as apparent to her as they were to the 
    motelkeepers. There is no evidence here that the usual hazard from the 
    icy condition was in any way increased by an act of the motelkeepers. Where 
    there is no act on the part of the owner or occupant of the premises 
    creating a greater hazard than that brought about by natural causes, dangers 
    created by the elements, such as the forming of ice and the falling of snow, 
    are universally known, and all persons on the property are expected 
    to assume the burden of protecting themselves from 
them.
Buck, 1967 OK 81, ¶22. 
This Court determined that the landowner in Buck did not owe a duty 
because the injured person should have known of the general weather conditions 
and the dangers from them, i.e. ice, were universally known and were as apparent 
to her as they were to the motelkeepers. Buck, 1967 OK 81, ¶22. The Court's 
determination was therefore in keeping with its application of the long standing 
rule of the open and obvious doctrine, which it reiterated:


[t]he law does not require the owner or occupant of land to warrant that 
    the invitee shall suffer no injury upon the premises; his duty is discharged 
    when reasonable care is taken to prevent the invitee's exposure to dangers 
    which are more or less hidden, and not obvious.
Buck, 1967 OK 81, 
¶21.
¶8 In Brown, 1999 OK 7, 
this Court clarified the principles set out in Buck. Notably, this Court 
clarified that Buck did not declare that under no circumstances may a 
premises liability claim be maintained for an accident attributable to a natural 
accumulation of snow and ice. Brown, 1999 OK 7, ¶4. In other words, the 
Buck ruling does not mean that natural accumulations of snow and ice are 
never open and obvious as a matter of law. However, "Buck reasoned 
that perceptible hazards created by the elements, such as the accumulation of 
ice and snow, are universally appreciated by all reasonable people using due 
care and circumspection. Buck teaches that an accumulation of 
ice or snow, visible upon due care and circumspection, does not constitute a 
hidden danger such that the premises owner is under a duty to give warning." 
Brown, 1999 OK 7, ¶4.
¶9 The majority quotes a single point from Brown concerning 
foreseeability, but ignores the factual underpinnings of the case. Brown, 
1999 OK 7, ¶6 reads in 
full:


The summary judgment evidentiary material tends to show not only that 
    the pavement in front of the real estate office had a deceptively innocent 
    appearance, but also that the premises owner was on notice of the dangerous 
    patch of invisible ice because of another accident that occurred earlier the 
    same day. Consistent with Buck, a premises owner does have a duty 
    to exercise ordinary care to prevent injury to another whenever the 
    circumstances are such that the owner, as an ordinary prudent person, could 
    reasonably foresee that another will be in danger of injury as a probable 
    consequence of the owner's actions.
In other words, the owner had a duty to protect the plaintiff in Brown 
from the black ice because 1) it was not an ordinarily perceptible hazard (nor 
did the particular plaintiff see it) and 2) the owner knew it was there and 
dangerous because it had already caused an accident. Brown, 1999 OK 7, ¶¶5-6. The owner in 
Brown had specific knowledge of a non-obvious danger that might injure 
someone on the property. Under those facts, the potential harm to others and the 
likelihood that others would fail to perceive it was foreseeable. Central to the 
entire determination in Brown, and its application of Buck, is the 
fact that the black ice was not something a visitor could be expected to see or 
appreciate the danger of.
¶10 The majority's reliance on Krokowski is also misplaced. In 
Krokowski, this Court applied the core holding of Buck to a 
plaintiff who claimed to have slipped on ice allegedly caused not by natural 
weather conditions, but by the placement of a landlord's drain pipe. The Court 
in Krokowski determined that an issue of fact existed as to whether the 
plaintiff's injury was due to natural accumulation of ice, or by an increase in 
the natural hazard caused by the placement of the drain pipe. Krokowski, 
1996 OK 57, ¶8.
¶11 The majority reads Krokowski to hold that a landlord owes a duty 
to guard against any harm caused by an unnatural icy hazard whether the injured 
party was aware of the hazard or not. This is not the case. Krokowski 
relies upon and quotes a specific passage from Buck:


". . . It is clear from the evidence that the wife knew or should have 
    known of the general weather conditions. The dangers from them are 
    universally known and were equally as apparent to her as they were to the 
    motelkeepers. There is no evidence here that the usual hazard from the 
    icy condition was in any way increased by an act of the motelkeepers. 
    Where there is no act on the part of the owner or occupant of the 
    premises creating a greater hazard than that brought about by natural 
    causes, dangers created by the elements, such as the forming of ice and the 
    falling of snow, are universally known, and all persons on the property are 
    expected to assume the burden of protecting themselves from them . . 
  ."
Krokowski, 1996 OK 57, 
¶6 (quoting Buck, 1967 OK 
81, ¶22).
This entire passage indicates that a duty may exist in situations where a 
property owner increases the hazard caused by natural weather conditions beyond 
what a visitor could be assumed to be aware of, because while the natural 
dangers of ice are known, extra ice caused by the landlord's actions may not be 
something a visitor expects. Remember that the visitor in Buck slipped on 
ice she did not see. The landlord owed no duty because she should have known of 
the natural dangers of ice even if she was subjectively unaware of its 
presence.
¶12 In this cause, there is no question whatsoever that Wood was aware of the 
ice surrounding the dealership. As the majority states, she knew it was 
important to be careful because she observed ice covering the entire entrance 
area. This is not a situation analogous to Krowkowski or Brown 
where the owner's actions created an enhanced danger beyond the normal danger of 
ice, or where there was hidden black ice of which the property owner had prior 
notice. Even though the ice was formed by sprinklers and not natural 
precipitation, Wood recognized the ice for what it was and was aware of the 
danger it presented. This is not a question of what Wood should have known. It 
is a question of what she did know. By attempting to carve out an exception to 
the open and obvious doctrine, the majority would erode the clear rule that a 
property owner owes no duty as a matter of law to guard against dangers that are 
open and obvious to visitors. This court summed up the rule clearly in 
Buck, and nothing within this Court's holding in Krokowski or 
Brown has altered it:


¶20 The owner or person in charge of the premises has no obligation to 
    warn an invitee, who knew or should have known the condition of a property, 
    against patent and obvious dangers. The invitee assumes all normal or 
    ordinary risks incident to the use of the premises, and the owner or 
    occupant is under no legal duty to reconstruct or alter the premises so as 
    to remove known and obvious hazards, nor is he liable to an invitee for an 
    injury resulting from a danger which was obvious and should have been 
    observed in the exercise of ordinary care.
¶21 The duty to keep premises in a reasonably safe condition 
    for the use of the invited public applies solely to defects or 
    conditions which may be characterized as in the nature of hidden dangers, 
    traps, snares, pitfalls, and the like - things which are not readily 
    observable. The law does not require the owner or occupant of land to 
    warrant that the invitee shall suffer no injury upon the premises; his duty 
    is discharged when reasonable care is taken to prevent the invitee's 
    exposure to dangers which are more or less hidden, and not obvious. In the 
    absence of a duty neglected or violated, there can be no actionable 
    negligence
Buck, 1967 OK 81, 
¶¶20-22 (emphasis added).
Conclusion
¶13 Actionable negligence requires breach of a duty on the part of the 
defendant. Berman, 2011 OK 
106, ¶16; Smith, 2011 OK 
51, ¶12; Scott, 2008 OK 
45, ¶17. In premises liability, the duty owed by the defendant is determined 
by the classification of the entrant, but regardless of the entrant's 
classification, the defendant owes no duty to guard against hazards that are 
open and obvious. Sholer, 2011 OK 24, ¶12; Scott, 2008 OK 45, ¶21; Buck, 1967 OK 81, ¶20.
¶14 The rule of Buck, Krokowski, and Brown is this: a 
property owner owes no duty to safeguard an invitee from dangers created by ice, 
even ice the property owner has created, if the danger was, under the facts, 
open and obvious to the invitee. Those cases were concerned with what visitors 
should know or should be assumed to know, whereas this cause concerns what a 
visitor did know. Without question, the facts indicate that Wood was aware of 
the ice and the risk it presented. The actions of Mercedes-Benz did not create a 
hidden danger. Summary judgment was proper, as under the facts of this case, 
Mercedes-Benz owed no duty to Wood.

FOOTNOTES

1
See, e.g., Sholer, 2011 OK 24, 256 P.3d 38; Scott, 2008 OK 45, ¶10-14, 191 P.3d 1207 (defendant has no 
duty to guard against open and obvious hazards, but whether a hazard is open and 
obvious may be a question of fact for the jury); Tucker, 2004 OK 71, 102 P.3d 660; Kastning v. Melvin 
Simon & Assoc., Inc., 1994 OK 
68, ¶6, 876 P.2d 239 ("It is 
well established that a landowner has no duty to warn of dangers that are open 
and obvious."); Turner v. Rector, 1975 OK 172, ¶10, 544 P.2d 507 ("There is no 
obligation to warn an invitee, who knew the condition of a property, against 
patent and obvious dangers, and there is no actionable negligence in the absence 
of a duty neglected or violated.") (quoting Jackson v. Land, 1964 OK 102, ¶0, 391 P.2d 904); Nicholson v. 
Tacker, 1973 OK 75, ¶19, 512 P.2d 156 ("the fact that the 
danger is open and obvious nullifies duty of defendant to plaintiff."); C.R. 
Anthony Co. v. Million, 1967 OK 
231, ¶¶7-8, 435 P.2d 116 (An 
"owner or occupant is under no legal duty to reconstruct or alter the premises 
so as to obviate known and obvious dangers, nor is he liable for injury to an 
invitee resulting from a danger which was obvious or should have been observed 
in the exercise of ordinary care.") (quoting Safeway Stores v. McCoy, 1962 OK 194, ¶8, 376 P.2d 285); Jackson, 1964 OK 102, ¶0 ("there was no 
obligation to warn an invitee, who knew the condition of a property, against 
patent and obvious dangers, and there was no actionable negligence in the 
absence of a duty neglected or violated.") (citing Long Const. Co. v. 
Fournier, 1942 OK 83, ¶10,
123 P.2d 689); City of 
Tulsa v. Harman, 1931 OK 73, 
¶37, 299 P. 462 ("an injured 
party will not be permitted to recover damages where he did in fact fully 
appreciate the peril; so, in respect of such perils as may be said to be patent 
or obvious, there is no obligation to give any sort of warning.")

2 See, 
e.g., Scott, 2008 OK 45, ¶21 
(clearance beam on owner's property was an open and obvious hazard); 
Nicholson, 1973 OK 75, ¶11 
(defective fishing dock was an open and obvious hazard); Pickens, 1997 OK 152, ¶11 (retaining wall was 
an open and obvious hazard).

Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 1990 OK 18, 787 P.2d 1274, 61 OBJ        571, Lohrenz v. LaneDiscussed at Length 1994 OK 68, 876 P.2d 239, 65 OBJ        2144, Kastning v. Melvin Simon & Associates, Inc.Discussed at Length 1997 OK 32, 935 P.2d 319, 68 OBJ        992, Brown v.  NicholsonDiscussed 1946 OK 203, 170 P.2d 230, 197 Okla. 306, CITY OF DRUMRIGHT v. MOOREDiscussed 1919 OK 315, 185 P. 1088, 77 Okla. 54, MIDLAND VALLEY R.R. CO. v. GRANEYDiscussed 1962 OK 194, 376 P.2d 285, SAFEWAY STORES, INC. v. McCOYDiscussed 1908 OK 85, 95 P. 463, 21 Okla. 104, FAUROT v. OKLAHOMA WHOLESALE GROCERY CO.Discussed 1964 OK 102, 391 P.2d 904, JACKSON v. LANDDiscussed at Length 1964 OK 152, 396 P.2d 1000, ROGERS v. CATO OIL & GREASE CO.Discussed 1967 OK 81, 431 P.2d 360, BUCK v. DEL CITY APARTMENTS, INC.Discussed at Length 1967 OK 231, 435 P.2d 116, C.R. ANTHONY COMPANY v. MILLIONDiscussed at Length 1931 OK 73, 299 P. 462, 148 Okla. 117, CITY of TULSA v. HARMANDiscussed at Length 1973 OK 75, 512 P.2d 156, NICHOLSON v. TACKERDiscussed at Length 2004 OK 38, 92 P.3d 96, MARTIN v. ARAMARK SERVICES, INC.Discussed 2004 OK 71, 102 P.3d 660, TUCKER v. ADG, INC.Discussed at Length 2005 OK 22, 111 P.3d 243, DOVER v. W. H. BRAUM, INC.Discussed 1996 OK 48, 914 P.2d 1051, 67 OBJ        1173, Carmichael v. BellerDiscussed 1996 OK 57, 917 P.2d 8, 67 OBJ        1521, Krokowski v. Henderson National Corp.Discussed at Length 2008 OK 45, 191 P.3d 1207, SCOTT v. ARCHON GROUP, L.P.Discussed at Length 2008 OK 51, 187 P.3d 721, BRAY v. ST. JOHN HEALTH SYSTEM, INC.Discussed 2009 OK 49, 212 P.3d 1223, MILLER v. DAVID GRACE, INC.Discussed 2011 OK 24, 256 P.3d 38, SHOLER v. ERC MANAGEMENT GROUP, LLCDiscussed at Length 2011 OK 51, 261 P.3d 1129, SMITH v. HINESDiscussed 2011 OK 106, 268 P.3d 68, BERMAN v. LABORATORY CORPORATION OF AMERICADiscussed at Length 2012 OK 80, 286 P.3d 643, HARMON v. CRADDUCKDiscussed 2013 OK 48, 306 P.3d 544, SHEFFER v. CAROLINA FORGE COMPANY, L.L.C.Discussed at Length 1975 OK 172, 544 P.2d 507, TURNER v. RECTORDiscussed at Length 1979 OK 18, 595 P.2d 780, SUTHERLAND v. SAINT FRANCIS HOSPITAL, INC.Discussed 1997 OK 152, 951 P.2d 1079, 68 OBJ        4087, PICKENS v. TULSA METROPOLITAN MINISTRYDiscussed at Length 1982 OK 96, 653 P.2d 188, Bradford Securities Processing Services, Inc. v. Plaza Bank and TrustDiscussed 1998 OK 42, 958 P.2d 1282, 69 OBJ        1779, WILLIAMS v. TULSA MOTELSDiscussed 1998 OK 80, 962 P.2d 1273, 69 OBJ        2630, Weldon v. DunnDiscussed at Length 1999 OK 7, 976 P.2d 1043, 70 OBJ        530, Brown v. Alliance Real Estate GroupDiscussed at Length 1942 OK 83, 123 P.2d 689, 190 Okla. 361, LONG CONSTR. CO. v. FOURNIERDiscussed










