Date: 08-04-2015

Case Style: Jesus Martinez and Kanda Martinez v. Angel Exploration, LLC

Case Number: 14-6086

Judge: Tymkovich

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma (Oklahoma County)

Plaintiff's Attorney: Rachel Bussett, Bussett Law Firm, P.C. (Jason C. Webster, The Webster Law
Firm, Houston, Texas, with her on the briefs), Oklahoma City, Oklahoma, for
Appellants.

Defendant's Attorney: Timothy L. Martin (Michael L. Darrah with him on the brief), Durbin, Larimore
& Bialick, Oklahoma City, Oklahoma, for Appellee.

Description: Jesus Martinez was working on a pump jack—the machinery that extracts
oil or gas from a producing underground well site—when the sleeve of his
sweatshirt became caught. As a result, Martinez’s hand was pulled into the
moving belts and his right thumb severed. The pump jack that injured Martinez,
owned by Angel Exploration, was not protected by safety guarding, something
Martinez contends was required at the time by federal regulations and industry
standards. He alleges Angel was negligent in its failure to maintain its premises
in a reasonably safe condition and, alternatively, that Angel intentionally created
a condition certain to cause harm.
On Angel’s motion, the district court granted summary judgment on the
premises liability claim because, under Oklahoma law, landowners owe no duty as
to open and obvious dangers and the unguarded pump jack was such a danger.
The court also concluded that Martinez’s intentional tort claim failed because no
evidence in the record supported an inference that Angel acted with the
knowledge that Martinez’s injury was substantially certain to occur.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm summary
judgment on the intentional tort claim, but vacate and remand on the premises
liability claim. While this case was pending on appeal, the Oklahoma Supreme
Court recognized an exception to the open and obvious danger doctrine relied on
by the district court. A determination that a condition is open and obvious may
no longer be an absolute bar to liability if the landowner should have reasonably
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foreseen the injury to the plaintiff. See Wood v. Mercedes-Benz, 336 P.3d 457
(Okla. 2014). Although we have no doubt the district court’s judgment was
correct at the time it was entered, we must remand for further proceedings in light
of this opinion.
I. Background
Angel owns and operates a number of wells in Oklahoma. The company
outsources the day-to-day management and servicing of its wells to Smith
Contract Pumping (SCP). SCP’s employees, called “pumpers,” check on the
wells routinely. Pumpers make sure the engines are running, monitor output, and
when necessary, tighten loose belts on the pump jack. But any needed repairs
beyond SCP’s responsibilities are handled by a second company, Natural Gas
Specialists (NGS).
Martinez had been working as a pumper for SCP for three months when he
arrived at one of Angel’s wells—“Woodbury 2-2”—and found the engine was not
running. Before that day, Martinez had been to Woodbury 2-2 between ten and
twenty times, and on those occasions he had noticed that the pump jack was not
covered by safety guards. He knew this because some of the other wells on his
route had guarding. The process of restarting a well requires pumpers to be in
close proximity to the belts, and in this case, to the unguarded belts. On the day
of the accident, Martinez successfully restarted Woodbury 2-2’s engine and
tightened the belts, which he had noticed were slipping. While he was waiting to
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be sure everything stayed in working order, he dropped a crescent wrench. As he
bent down to get it, the sweatshirt he was wearing became caught in the belt and
his thumb was severed. The thumb was later partially amputated.
Although Martinez received workers’ compensation from SCP, he also sued
Angel alleging that the lack of guarding was an unreasonably dangerous condition
and that Angel was negligent in its failure to make a reasonable inspection of its
property, to warn or take other precautions to protect Martinez, and to take action
to reduce the risk posed by the dangerous condition.1 During discovery, the
owner of SCP testified that Angel relied on SCP to be its eyes and ears and report
any needed repairs or adjustments to its wells. He also said that a lack of
guarding was the type of thing SCP should report to Angel. But he also testified
that SCP had no “books or classes or training” as to what guards should be used
on a pump jack. Supp. App. 209. Nor did SCP provide its pumpers with any
formal safety training. Angel’s managing member similarly testified that the need
for a guard is “something the pumpers and field people should know,” id. at 202,
but he also said that Angel never confirmed that SCP knew what was required by
safety regulations, including a federal OSHA regulation requiring guarding on
machinery. Martinez testified that although he was aware of the lack of guarding,
1 The Second Amended Complaint separately listed a claim for negligence
and gross negligence against Angel. The district court properly considered
Angel’s liability under Oklahoma premises liability law and not under ordinary
concepts of negligence. Martinez also sued NGS alleging negligence, but NGS is
not a party on appeal.
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he was never told it was necessary or that he should report it. And despite
testimony from a NGS mechanic that there was no guarding on Woodbury 2-2 as
far back as 2003, there is no evidence in the record that this was ever reported to
Angel.
Anticipating that his suit may be barred by the Oklahoma Workers’
Compensation Act’s exclusive remedy provision, Martinez’s complaint
alternatively alleged his case fell within the Act’s intentional tort exception. As
relief, he sought actual and punitive damages, and his wife brought derivative
claims for loss of consortium and household services.
Angel moved for summary judgment on various grounds. The district court
found the danger of the unguarded belt was open and obvious and therefore Angel
had no duty to warn or otherwise remedy the condition. The court also found
that, even if the Oklahoma Workers’ Compensation Act applied, there was no
genuine issue of material fact as to whether Angel acted with knowledge that
Martinez’s injury was substantially certain to occur. Finally, because both of
Martinez’s claims failed, the court entered summary judgment on his wife’s
claims because they were derivative of his.
II. Analysis
Martinez argues the district court erred in granting summary judgment to
Angel. We review a district court’s grant of summary judgment de novo, and
because this is a diversity case, “we ascertain and apply [Oklahoma] law such that
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we reach the result that would be reached by [an Oklahoma] court.” McIntosh v.
Scottsdale Ins. Co., 992 F.2d 251, 253 (10th Cir. 1993).
A. Premises Liability
Martinez asserts four grounds on which we should reverse the district court
on the premises liability claim: (1) Angel’s failure to comply with an OSHA
regulation requiring safety guards constitutes negligence per se; (2) fact issues
exist as to whether the unguarded belt was an open and obvious danger because
circumstances existed distracting Martinez’s attention; (3) competing inferences
as to whether the unguarded belt had a deceptively innocent appearance and
whether Martinez fully appreciated the danger posed preclude a finding that the
belt was an open and obvious danger as a matter of law; and (4) even if the
danger was open and obvious, a duty nonetheless exists because Angel should
have anticipated the harm.
We conclude the first two arguments were not raised in the district court
and are forfeited. We also reject the third argument and affirm the district court’s
finding that reasonable minds could not differ as to the open and obvious nature
of the unguarded belt. We cannot dismiss the fourth argument, however, because
Oklahoma now recognizes an exception to the open and obvious doctrine where
the landowner should have reasonably foreseen the harm.
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1. Negligence Per Se
Martinez first contends that the district court erred in failing to consider
whether Angel’s failure to comply with an OSHA regulation that makes guarding
a general requirement for all machinery, see 29 C.F.R. § 1910.212(a)(1), was
negligence per se. This theory was inadequately raised in the district court and is
therefore forfeited on appeal.
The Second Amended Complaint alleged Angel was negligent, in part, for
failing to comply with OSHA regulations, but the complaint never identified
which regulations or gave any indication Martinez intended to proceed on a
negligence per se theory. And we can hardly fault the district court for failing to
discern a negligence per se argument. OSHA protections flow from employer to
employee and Martinez’s negligence claims were expressly predicated on the
assertion that Angel was not his employer. See Howard v. Zimmer, Inc., 299 P.3d
463, 467 (Okla. 2013) (requiring that a plaintiff “be one of the class intended to
be protected by the statute” to establish negligence per se); Marshall v. Hale-
Halsell Co., 932 P.2d 1117, 1119 (Okla. 1997) (rejecting claim that OSHA
regulations set the duty owed by a premises owner to an invitee where the invitee
was an independent contractor and not the defendant’s employee because “the
duties mandated by OSHA regulations flow from an employer to an employee”).
Nor do general references to statutory or regulatory violations always signal a
negligence per se argument. OSHA violations, for instance, may be cited as
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general evidence of negligence. See Claborn v. Plains Cotton Coop. Ass’n, 211
P.3d 915, 919 (Okla. Civ. App. 2009) (citing Orduna v. Total Constr. Servs., Inc.,
713 N.W.2d 471, 478–79 (Neb. 2006)) (noting that in a case brought by a nonemployee
third party OSHA violations may be considered as general evidence of
negligence).
There was likewise no hint of a negligence per se argument in Martinez’s
response to Angel’s no-duty argument on summary judgment.2 We generally do
not consider theories raised for the first time on appeal, and because Martinez
makes no argument for how he can satisfy the plain error standard of review, we
go no further. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir.
2011) (“[T]he failure to argue for plain error and its application on appeal[]
surely marks the end of the road for an argument for reversal not first presented to
the district court.”).
2 When asked at oral argument where there is evidence in the record of a
negligence per se argument below, Martinez referred the court to the “discussions
of OSHA regulations throughout [his] primary briefing.” Oral Argument at 4:01.
Aside from references to OSHA in Martinez’s statement of undisputed facts,
which relate primarily to Angel’s and SCP’s lack of knowledge of OSHA
regulations, Martinez’s summary judgment response brief mentions OSHA one
time and only then in the Statement of the Case. Supp. App. 137 (“According to
the [OSHA] regulations . . . the well should have the proper guarding to prevent
injuries such as Plaintiff’s.”).
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2. The Open and Obvious Doctrine
a. Legal Background
Under Oklahoma law, all negligence claims require proof of a duty, a
breach of that duty, and causation. Scott v. Archon Grp., L.P., 191 P.3d 1207,
1211 (Okla. 2008). The existence of a duty—a legal obligation to a third
person—is a threshold question of law. Id. In a premises liability action, a
landowner’s duty varies according to the plaintiff’s status on the land. Sutherland
v. Saint Francis Hosp. Inc., 595 P.2d 780, 781 (Okla. 1979). With respect to
invitees, like Martinez,3 landowners must “exercis[e] reasonable care to keep the
premises in a reasonably safe condition for the reception of the visitor.” Scott,
191 P.3d at 1212. But the duty to keep the premises in a reasonably safe
condition only extends “to conditions or defects in the nature of hidden dangers,
traps, snares or pitfalls that are not known or readily observed by the invitee.”
McKinney v. Harrington, 855 P.2d 602, 604 (Okla. 1993). It does not extend to
“dangers which are so apparent and readily observable that one would reasonably
expect them to be discovered.” Scott, 191 P.3d at 1212. In other words, a
landowner has no duty to render safe an “open and obvious” danger.
3 Martinez and Angel agreed for purposes of summary judgment that
Martinez was an invitee. In Oklahoma, “[a]n invitee is one who possesses an
invitation to be upon the premises, express or implied.” McKinney v. Harrington,
855 P.2d 602, 604 (Okla. 1993). Trespassers and licensees are the other classes
of entrants on land.
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Thus, under long-standing Oklahoma law, a determination that “under similar or
like circumstances an ordinary prudent person would have been able to see the
defect in time to avoid being injured” was dispositive of a landowner’s duty. Id.
That rule is now in doubt. Finding that the open and obvious danger
doctrine is “not absolute,” the Oklahoma Supreme Court recently concluded that
even where an invitee is injured by an open and obvious condition, a landowner
may still have a duty to warn of or otherwise protect the invitee from the
dangerous condition if the injury suffered was reasonably foreseeable to the
landowner. Wood v. Mercedes-Benz, 336 P.3d 457, 459–60 (Okla. 2014). In
Wood, the plaintiff was a catering employee who had been sent to a car dealership
to assist with an event. The night before her arrival, the dealership’s sprinklers
activated in freezing temperatures, leaving a layer of ice on the grass, pavement,
and sidewalks surrounding the dealership. The plaintiff testified that she saw the
ice, was aware of the danger it posed, and knew to be very careful in navigating
her way in and out of the dealership. Despite her caution, she slipped and was
injured. Afterwards, an employee of the dealership told her that he should have
put salt down when he got to work.
The Oklahoma Court of Civil Appeals held the dealership did not owe the
plaintiff a duty because the ice was an open and obvious danger. The Supreme
Court reversed. Finding the plaintiff’s injury caused by the icy conditions was
foreseeable, the court concluded the dealership had a duty to take remedial
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measures. In reaching this conclusion, the court emphasized the unique
circumstances under which the plaintiff had encountered the open and obvious
condition. The court explained,
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 [the
plaintiff]. 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.
[Plaintiff’s] presence and exposure to the hazardous icy
condition was compelled to further a purpose of the
dealership.
Id. at 459 n.6. And later, as the majority cautioned that its opinion “should not be
construed as abrogating the open and obvious defense in all cases,” it again
reasoned that “[t]he 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.” Id. at 460 n.8 (emphasis added). That is
different than “a random customer appearing at the dealership” because the
dealership “knew that employees of Ned’s Catering would be arriving and would
be required to enter the building.” Id.
Four justices dissented from the court’s holding, saying the new exception
announced by the majority “ignore[d] . . . long-standing laws regarding the openand-
obvious doctrine and the duty in a premises-liability action.” Id. at 461
(Taylor, J., dissenting). That seems correct. Wood appears to represent a
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significant shift in Oklahoma premises liability law. Before Wood, the Oklahoma
Supreme Court had consistently rejected attempts by plaintiffs to merge ordinary
negligence principles with the common law of premises liability. See, e.g., Scott,
191 P.3d at 1213 (“We are not persuaded by plaintiffs’ attempt to change a
landowner’s duty to an invitee with respect to open and obvious dangers by
characterizing the issue as one of ordinary negligence and urging application of
concepts of ordinary negligence.”); Sutherland, 595 P.2d at 781; see also Gobble
v. Chesapeake Energy Corp., 311 P.3d 454, 457 (Okla. Civ. App. 2013) (rejecting
plaintiff’s foreseeability argument in a pre-Wood decision because “[d]efining a
duty based on foreseeability is a principle of general negligence which does not
govern when the harm occurs on the premises of others”).
But a review of the legal literature also reveals that Wood aligns Oklahoma
with an emerging majority of states to reconsider the open and obvious doctrine.
Although Wood does not cite the Restatement, many states have adopted the
Second Restatement’s formulation of the doctrine. As the Restatement puts it, “A
possessor of land is not liable to his invitees for physical harm caused to them by
any activity or condition on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite such knowledge or
obviousness.” Restatement (Second) of Torts § 343A(1) (1965) (emphasis
added); see also Michalski v. Home Depot, Inc., 225 F.3d 113, 119 (2d Cir. 2000)
(calling it the “clear trend” among states to “reject[] the traditional [open and
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obvious] rule that had provided a full defense to landowners subject to premises
liability”); Dan B. Dobbs et al., Dobbs’ Law of Torts § 276 (2d ed. 2014) (“In
recent years, this view has commanded substantial acceptance where it has been
expressly considered.”).
Historically, the rule at common law and reflected in the First Restatement
was consistent with Oklahoma’s pre-Wood jurisprudence: no landowner liability
for an injury caused by a dangerous condition if the entrant knew of the condition
and realized the risk posed by the condition—no exceptions. See Restatement
(First) of Torts § 340 (1934); see also Dobbs, supra, § 276; 5 Fowler V. Harper et
al., Harper, James and Gray on Torts § 27.13, at 277 n.29 (3d ed. 2008). But this
absolute bar to liability came under fire in the 1950s as courts and commentators
reconsidered tort law in light of modern economic conditions and the rise of
premises liability insurance. See Harper, supra, § 27.13, at 279 (“[T]he orthodox
theory had become a pretty feeble reed for defendants to lean on by the time of
the second Restatement.”); see, e.g., Fleming James, Jr., Tort Liability of
Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L.J. 605, 628
(1954) (“The Restatement view is wrong in policy.”); Page Keeton, Personal
Injuries Resulting from Open and Obvious Conditions, 100 U. Pa. L. Rev. 629,
642–43 (1952). To soften the rule, the Second Restatement created an exception
allowing liability where a landowner should anticipate the harm despite the open
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and obvious nature of the condition.4 See W. Page Keeton, Prosser and Keeton on
the Law of Torts § 61, at 427 (5th ed. 1984) (“In any case where the occupier as a
reasonable person should anticipate an unreasonable risk of harm to the invitee
notwithstanding his knowledge, warning, or the obvious nature of the condition,
something more in the way of precautions may be required.”).
A comment to Section 343A of the Second Restatement provides two
examples of when this exception might apply. First, a duty may extend “where
the possessor has reason to expect that the invitee’s attention may be distracted,
so that he will not discover what is obvious, or will forget what he has
discovered, or fail to protect himself against it.” Restatement (Second) of Torts
§ 343A cmt. f. Oklahoma previously recognized this principle, but incorporates it
at the first step of the analysis in determining whether a condition is open and
obvious. Oklahoma courts say an otherwise observable condition may be
considered a hidden or latent condition because of the presence of “circumstances
diverting the plaintiff’s attention.” Sholer v. ERC Mgmt. Grp., LLC, 256 P.3d 38,
43 (Okla. 2011); see also Roper v. Mercy Health Ctr., 903 P.2d 314, 314–15
(Okla. 1995); Spirgis v. Circle K Stores, Inc., 743 P.2d 682, 685 (Okla. Civ. App.
1987).
4 The Third Restatement follows the Second, “except it extends this rule
not only to invitees but to all entrants onto land, except non-flagrant trespassers.”
Dobbs, supra, § 276.
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The second circumstance extending duty is “where the possessor has reason
to expect that the invitee will proceed to encounter the known or obvious danger
because to a reasonable man in his position the advantages of doing so would
outweigh the apparent risk.” Restatement (Second) of Torts § 343A cmt. f. The
illustration of this circumstance provides:
A owns an office building, in which he rents an office for
business purposes to B. The only approach to the office is
over a slippery waxed stairway, whose condition is visible
and quite obvious. C, employed by B in the office, uses
the stairway on her way to work, slips on it, and is injured.
Her only alternative to taking the risk was to forgo her
employment. A is subject to liability to C.
Id. cmt. f, illus. 5; see also Dobbs, supra, § 276 (explaining that landowners may
foresee that the invitee will encounter the obvious danger because “the plaintiff
must take the risk to fulfill an obligation or to carry out employment
obligations”); W. Page Keeton, Prosser and Keeton on the Law of Torts § 61, at
69 (5th ed. Supp. 1988) (“Nor may the obvious danger bar recovery where the
invitee is forced, as a practical matter, to encounter a known or obvious risk in
order to perform his job.”). Notably, this is the same reasoning the Wood court
employed to take the otherwise obvious danger of the ice out of the general noduty
category of open and obvious dangers.
In sum, after Wood, the open and obvious doctrine is no longer a complete
bar to liability in Oklahoma. A landowner’s duty to keep the premises in a
reasonably safe condition for invitees extends to both latent dangers and at least
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some obvious dangers with foreseeable harms to a class of visitors required to be
on the premises.
With this framework in mind, we turn to Martinez’s arguments regarding
the open and obvious doctrine.
b. Application of Wood
We have no doubt that the district court was correct under then-existing
Oklahoma law to stop its analysis of Angel’s duty after determining Martinez was
injured by an open and obvious condition. But we must now consider how Wood
changes that determination.5 Martinez contends Angel should have anticipated
the harm from an unguarded pump jack and thus owed him a duty to warn or
otherwise remedy the danger in spite of the fact that it was open and obvious.
The reach of Oklahoma’s newly recognized exception to the open and
obvious doctrine is yet to be determined, but it clearly applies in situations like
5 We must apply the state law in effect at the time of our decision even if
the district court’s decision was correct when entered. See Vandenbark v. Owens-
Illinois Glass Co., 311 U.S. 538, 543 (1941) (“[T]he dominant principle is that
nisi prius and appellate tribunals alike should conform their orders to the state
law as of the time of the entry. Intervening and conflicting decisions will thus
cause the reversal of judgments which were correct when entered.”); Jones v.
Hess, 681 F.2d 688, 695 n.9 (10th Cir. 1982) (“Generally an appellate court must
apply the law in effect at the time it renders its decision where a change in law
occurs while a case is on direct appeal, although there may well be an exception
to this rule to prevent manifest injustice.”); 19 Wright & Miller, Federal Practice
& Procedure § 4507 (2d ed.). There is no prejudice to Angel in our consideration
of Wood. Angel had notice of the decision from Martinez’s citation in his reply
brief, and a significant portion of Angel’s oral argument time was devoted to
discerning its position on Wood’s potential impact.
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Wood where a business invitee is “present to fulfill [his or] her employer’s
contractual duty to provide service,” the invitee’s “presence and exposure to the
hazardous . . . condition was compelled to further a purpose of the [defendant],”
and the invitee was “required” to encounter “the hazardous condition in
furtherance of [his or] her employment.” 336 P.3d at 459 n.6, 460 n.8; cf. Weaver
v. Celebration Station Props., Inc., No. H-14-2233, 2015 WL 1932030, at *5
(S.D. Tex. Apr. 28, 2015) (finding Wood inapplicable where the plaintiff “was
under no obligation to expose herself” to the danger). Viewing the evidence in
the light most favorable to Martinez, we see no way to distinguish the Wood
plaintiff’s position with respect to the open and obvious icy condition from
Martinez’s with respect to the open and obvious unguarded pump jack.
For instance, evidence in the record supports the proposition that to do his
job as a pumper, Martinez had to be in and around the unguarded pump jack. In
his deposition, SCP’s owner agreed that regardless of whether or not Martinez
ever dropped his wrench, his job responsibilities required that he put his hands
near the pulley system to restart an engine. An NGS mechanic also testified that
to restart a well a pumper must work close to pinch points. Martinez also
provided an affidavit from an expert stating that it was “foreseeable that people
would be working around the nip points and belts on the Woodbury 2-2 well.”
App. 257.
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But a wrinkle remains. A distinction between Wood and this case is that
the dealership had actual notice of the icy condition before the caterer was
injured; here, Martinez has conceded that there is no evidence that Angel had
actual notice of the lack of guarding. See Oral Argument at 5:28. And the Wood
majority listed the fact of the dealership’s prior notice before concluding the
injury was foreseeable:
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.
336 P.3d at 460 (emphases added). One might argue that Martinez’s case falls
outside of the exception crafted in Wood because there was no actual notice. But
doing so would require us to reconcile Oklahoma premises liability law on the
notice required to hold a landowner liable to an invitee.
As a general matter, at least prior to Wood and outside the context of open
and obvious hazards, Oklahoma landowners are not liable to an invitee injured by
a dangerous condition on the premises absent prior notice of the condition.
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Notably, however, a landowner has a duty as to an invitee not only with respect to
those conditions of which he has actual notice, but also those that, by the exercise
of reasonable care, he should discover. See McKinney, 855 P.2d at 605 (“[C]ourts
will not impose upon a landowner the duty to warn a business invitee of a hidden
danger when there is no evidence that the landowner knew or should have known
of the danger.” (emphasis added)); see also Phelps v. Hotel Mgmt., Inc., 925 P.2d
891, 893 n.1 (Okla. 1996); Taylor v. Hynson, 856 P.2d 278, 281 (Okla. 1993);
Rogers v. Hennessee, 602 P.2d 1033, 1035 n.10 (Okla. 1979) (“Duty could evolve
here, only from notice, actual or imputed.”); Restatement (Second) of Torts § 343
(1965) (stating that “[a] possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only if, he . . . knows or
by the exercise of reasonable care would discover the condition” (emphasis
added)); Glen Weissenberger et al., The Law of Premises Liability § 4.05[2], at 4-
54 (4th ed. 2014) (“The invitee . . . need establish only that the exercise of due
care would have led the possessor to discover the hazard.”).
For this reason, as to invitees, landowners are said to have “the affirmative
duty of care to discover conditions of the premises that may be unreasonably
dangerous for the invitee.” Restatement (Second) of Torts § 343 cmt. b; see also
Pickens v. Tulsa Metro. Ministry, 951 P.2d 1079, 1083 (Okla. 1997) (“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.”
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(emphasis added) (footnote omitted)); Harper, supra, § 27.12, at 256; Keeton,
supra, § 61, at 426 (stating that the occupier must “act reasonably to inspect the
premises to discover possible dangerous conditions of which he does not know”).6
So while the notice in Wood was essential to finding a duty existed there, as in
any premises liability action, it is unclear whether the lack of actual notice in this
case is dispositive in determining whether this newly recognized exception to the
open and obvious doctrine applies.7 We may still have to consider whether Angel
6 By contrast, as “[t]o a licensee [such as a social guest], 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.” Scott,
191 P.3d at 1211 (emphasis added) (quoting Pickens, 951 P.2d at 1083); see also
Keeton, supra, § 60, at 417 (“As to passive conditions on the land, it is still the
settled rule that the possessor is under no obligation to the licensee with respect
to anything that the possessor does not know. He is not required to inspect his
land for unknown dangers, nor, of course, to disclose their existence or take
special precautions against them.”).
7 The Wood majority extracted the language for its exception to the open
and obvious doctrine from Brown v. Alliance Real Estate Group, 976 P.2d 1043
(Okla. 1999). A close reading of Brown supports the Wood dissent’s criticism of
the majority opinion. That is, the majority lifted the foreseeability language from
Brown and used it acontextually to support a new rule. See Wood, 336 P.3d at
466 (Combs, J., dissenting).
Although Brown dealt with icy conditions, unlike the icy conditions in
Wood and the pump jack here, the danger was not open and obvious. The Brown
court concluded summary judgment on duty was inappropriate because the danger
was hidden and the premises owner was on notice of the hidden danger. Only
after deciding that the danger was not open and obvious did the court go on to say
what has now become the exception to the open and obvious doctrine, “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
(continued...)
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was on constructive notice of, or whether by the exercise of due care, would have
discovered, the lack of guarding. That is not a question we could answer on the
summary judgment record before us.
Martinez’s complaint is suggestive, however. It alleges both that Angel
was on constructive notice of the lack of guarding and that Angel was negligent in
its failure to conduct a reasonable inspection of its property to discover dangerous
conditions of which it did not know. And nothing in the record suggests it would
have been infeasible or prohibitively costly for Angel to inspect the well or that
the defect would not have been discovered upon inspection. As Angel points out,
the lack of guarding would have been obvious to anyone looking at the pump
jack. See Smedsrud v. Powell, 61 P.3d 891, 900 n.42 (Okla. 2002) (“The openand-
obvious defect defense presupposes that quantum of advance notice to the
owner/occupier which is generally shared in common with the public.”).
Moreover, some of Angel’s other wells did have safety guarding at the time of the
accident, and there was testimony that the Woodbury 2-2 pump jack lacked
guarding as far back as 2003.
7(...continued)
probable consequence of the owner’s actions.” Brown, 976 P.2d at 1045 (footnote
omitted).
One way to reconcile the Wood majority’s reference to notice is that it also
comes from Brown. But Brown is not useful in determining the reach of this new
exception to the open and obvious doctrine because, as we have just discussed,
Brown did not recognize the exception attributed to it by the Wood majority.
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Nor does the fact that Angel relied on SCP and NGS to report needed
repairs on its wells and that neither company reported the lack of guarding to
Angel resolve the issue. The general rule is that liability cannot be imposed on a
landowner for injuries caused by the negligence of independent contractors. But
an exception arises where a landowner attempts to delegate the duty to keep the
premises in a reasonably safe condition.7 See Thomas v. E-Z Mart Stores, Inc.,
102 P.3d 133, 137 (Okla. 2004); Copeland v. Lodge Enters., Inc., 4 P.3d 695, 700
(Okla. 2000). Under Oklahoma law, that duty is non-delegable and “the occupier
will be liable for the negligence of an independent contractor to whom he entrusts
maintenance and repair.” Thomas, 102 P.3d at 137 (quoting William L. Prosser,
Law of Torts § 61, at 395 (4th ed. 1971) and collecting cases); see also Keeton,
supra, § 71, at 511–12; Weissenberger, supra, § 4.07[2], at 4-65 to 4-66.
This is all to say that Angel’s lack of actual notice might be an insufficient
ground on which to distinguish Wood and affirm the district court’s no-duty
holding. Because (1) Martinez was required to encounter the unguarded belt as
part of his job responsibilities, (2) Angel knew SCP’s pumpers would be working
on the well, and (3) evidence suggests that by the exercise of ordinary care, Angel
7 This, of course, assumes NGS and SCP were independent contractors,
rather than employees of Angel whose knowledge of the condition may be
imputed to Angel. At the time of Martinez’s injury, there were no contracts in
place governing the relationship between Angel and SCP or Angel and NGS.
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would have known of the dangerous condition, the exception recognized in Wood
might still apply.
In the end, we do not resolve this question here. Given the posture of this
case, we conclude it better for the parties on remand to brief and argue the scope
of Wood and how Oklahoma courts might resolve the notice question. Absent a
finding that summary judgment is appropriate for this or other reasons,8 it will be
for a jury to decide whether Angel should have anticipated the injury in spite of
the open and obvious nature of the danger.
c. Remaining Open and Obvious Arguments
While we must remand because of the intervention of Wood, two other
arguments raised by Martinez can be quickly rejected. He contends both
arguments establish the district court erred in concluding as a matter of law that
the unguarded pump jack was an open and obvious danger.
First, he argues that the district court was wrong to conclude the unguarded
belt was an open and obvious danger because the distraction caused by dropping
the wrench created a fact issue as to whether, under the circumstances, the
condition was open and obvious. We find this theory forfeited.
8 Angel moved for summary judgment on six grounds: (1) Angel owed no
duty as to an open and obvious danger on its premises; (2) Martinez assumed the
risk; (3) the suit is barred by the doctrine of election of remedies; (4) Martinez’s
sole and exclusive remedy is workers’ compensation; (5) the evidence does not
establish an intentional tort; and (6) there is no support for a claim of punitive
damages. The district court only reached the first and fifth issues.
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Martinez’s argument below was that the unguarded belt was not open and
obvious because Martinez could not fully appreciate the danger posed and thus it
presented a deceptively innocent appearance. Although his summary judgment
brief included a block quote from an Oklahoma Supreme Court opinion that
referenced the availability of a distraction argument, Martinez did not go on to
develop such an argument. Nor does our review of the summary judgment record
reveal any evidence or testimony suggesting that Martinez was distracted by the
falling wrench or that it was foreseeable that dropping a tool would divert his
attention or prevent him from seeing the danger. This conclusion is confirmed by
the fact that the only record cite in Martinez’s brief on appeal is to the portion of
his affidavit recounting the dropping of the wrench. While Martinez characterizes
the affidavit as “evidence of a predictable distraction,” Aplt. Br. at 23, there is no
assertion in the affidavit that he was distracted.
In the absence of an argument for plain error, we decline to reach this
newly raised theory.
Martinez did raise, and the district court rejected, his second argument that
the unguarded belt presented a deceptively innocent appearance. He contends that
he “knew that an unguarded pulley and belt posed a hazard, [but] the mechanism
by which he was injured was not open and obvious” and therefore the question of
whether it was open and obvious was for a jury to decide. Id. at 21. The
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distinction he asks us to draw is between the obvious danger of sticking one’s
hand in the belt and the allegedly hidden danger of being pulled into the belt.
While conflicting inferences as to whether a plaintiff had a full
appreciation of the risk at the time of injury can preclude summary judgment, see
Jack Healy Linen Serv. Co. v. Travis, 434 P.2d 924, 927 (Okla. 1967), the
evidence here does not support the inference that the unguarded belt had a
deceptively innocent appearance that cloaked the reality of danger or that
Martinez did not appreciate the extent of the danger posed. Martinez testified
that the accident happened during daylight hours on a sunny and dry day; there
was nothing interfering with his ability to observe the equipment; there was
nothing hidden in the way the equipment was set up; the lack of a guarding was
obvious and would have been obvious to anyone; he knew from looking at it that
it posed a danger; and he knew not to stick his fingers in the pulley where they
could get caught, Supp. App. 112 (“Yeah, I love my life.”); id. at 118 (referring to
it as “common sense”). And fatal to his argument is his testimony that he knew
one should not stand too close to the pulley because clothes or body parts could
become caught. That is precisely the danger that resulted in his thumb being
severed.
Accordingly, we affirm the district court’s finding that reasonable minds
could not differ as to the open and obvious nature of the unguarded machinery.
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B. Workers’ Compensation
Finally, Martinez resists Angel’s contention that, at the time of his injury,
he was a statutory employee of Angel whose exclusive remedy is workers’
compensation. He argues that even if Angel is right, he falls within the exception
to the exclusive remedy rule because his injury was not the result of an accident,
but instead of an intentional tort. The district court rejected this alternative
theory of liability.
Oklahoma workers’ compensation law has undergone several significant
legislative overhauls in recent years, but the parties agree that the issue of
whether Angel’s conduct amounted to an intentional tort is governed by the
Oklahoma Supreme Court’s decision in Parret v. UNICCO Service Company, 127
P.3d 572 (Okla. 2005), superseded by statute, Okla. Stat. tit. 85, § 302 (2011).
Parret instructed that “[i]n order for an employer’s conduct to amount to an
intentional tort, the employer must have (1) desired to bring about the worker’s
injury or (2) acted with the knowledge that such injury was substantially certain
to result from the employer’s conduct.” Id. at 579. It is the second substantial
certainty prong on which Martinez relies.
We have previously said:
Under the . . . substantial certainty test, the employer must
have intended the act that caused the injury with
knowledge that the injury was substantially certain to
follow. More than knowledge and appreciation of the risk
is necessary. Even recklessness or wantonness is not
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enough. There must be more than knowledge of
foreseeable risk, high probability, or substantial
likelihood; there must be knowledge of the substantial
certainty of injury.
Monge v. RG Petro-Mach. (Grp.) Co. Ltd., 701 F.3d 598, 605 (10th Cir. 2012)
(internal quotations, citations, and alterations omitted) (quoting Parret, 127 P.3d
at 579); see also Price v. Howard, 236 P.3d 82, 90 (Okla. 2010).
After a careful review of the summary judgment record and for the reasons
explained by the district court, we agree that the record is bare of any evidence
suggesting Angel had knowledge of a substantial certainty of injury to Martinez.
Accordingly, we affirm the grant of summary judgment to Angel on Martinez’s
intentional tort theory.

Outcome: For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment on Martinez’s Parret claim, but VACATE the grant of
summary judgment on the premises liability claim and REMAND for
reconsideration in light of Wood.

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