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Tucker v. ADG9/21/2004
land Valley R.R. Co. v. Littlejohn, 1914 OK 388, 143 P. 1, we rejected a plaintiff's similar challenge to the virtually identical predecessor of this statutory provision as abrogating the common-law rule regarding a landowner's duty to trespassers and licensees. Plaintiff argued in Littlejohn that the common-law rule that a landowner owed no duty to a trespasser or licensee except to not intentionally or wantonly injure him was abrogated by the statutory provision, which appeared to create a legal responsibility or duty of care on "everyone" for ordinary acts of negligence. The Littlejohn Court determined in pertinent part as follows:
this statutory provision [has not been] regarded as more than a declaration of a general rule of the common law, which is limited by other common-law rules; and, notwithstanding its long standing in our statutes, our own court has repeatedly and uniformly held . . . following the common law, that a landowner owes a trespasser or mere licensee no duty except to not injure him intentionally or wantonly.
Id. at 3 (emphasis added).
Underlying the Court's determination in Littlejohn is the fundamental concept where there is no duty, there can be no negligence. Littlejohn clearly illustrates that this particular statutory provision does not operate to create a duty where one previously did not exist, but merely declares the general common-law rule, which is limited by other common-law rules such as the one at bar. Just as the common-law rule concerning the landowner's duty toward a trespasser or licensee is unmodified by this general declaratory statutory provision, the ballpark owner/operator's common-law duty --or lack thereof-- owed to a spectator/invitee likewise remains unmodified. Pursuant to the longstanding rule enunciated in Littlejohn and the repeatedly and uniformly held rule enunciated in Hull, the absence of a duty on the part of the owner or occupant of the premises to reconstruct or alter the premises so as to obviate known and obvious dangers remains unchanged despite the existence of the general common-law rule enunciated in 76 O.S. ยง 5(a).
C. Plaintiffs Argue Hull is Inconsistent With Other Supreme Court Cases Concerning Open and Obvious Conditions
The crux of Plaintiffs' argument appears to be the determination of what constitutes an open and obvious condition in any given premises liability case should be a fact question for the jury and not a determination of law for the court. In support of this assertion, Plaintiffs cite two cases, neither of which are factually on point, as neither involve injury to a spectator attending a sports event. See Jack Healey Linen Service Co. v. Travis, 1967 OK 213, 434 P.2d 924, 927-28 (slip and fall case) and Phelps v. Hotel Management, Inc., 1996 OK 114, 925 P.2d 891 (plaintiff's head injury by a glass bowl containing seasonal display extending behind bench into seating area of hotel lobby). Although in each of these cases, we concluded there were fact issues for the jury whether a defect on the premises was obvious and apparent or rather, in the nature of a hidden danger, it is clear that the particular facts and circumstances of these cases led to this conclusion in each case. The "facts of each particular case are controlling upon the question of negligence. . . ." Travis, 434 P.2d at 925 (Syllabus by the Court). Travis further provided:
If . . . conflicting inferences may be drawn from the facts and circumstances in evidence as to whether the offending hazard did have a 'deceptively innocent appearance', or its extent could not be anticipated, neither the trial court nor this court may declare that the peril was obvious and apparent and that recovery is pr
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