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Date: 11-17-2015

Case Style: Tonieta Benson v. Norman Regional Hospital Authority

Case Number: CJ-2014-859

Judge: Thad Balkman

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: David Hasbrook and Clay Hasbrook

Defendant's Attorney: Glen Huff and Lindsey Parke

Description: Norman, OK - Tonieta Benson v. Norman Regional Hospital Authority on a medical negligence (medical malpractice) theory claiming:

1. The Norman Regional Hospital Authority is a public trust operating the Norman Regional Hospital in Norman, Oklahoma.
2. The Plaintiff is in actual or substantial compliance with the Governmental Tort Claims Act and this Petition is timely filed. A claim was filed on December 16, 2013, and was deemed denied as of March 16, 2014. This lawsuit is commenced within 180 days after the denial of the claim.
3. On December 19, 2012, Tonieta Benson was visiting a patient in the Norman Regional Hospital, when she tripped and fell and was severely injured as a direct result of Defendant’s negligence.
4. At all relevant times, Defendant’s employees, agents, and/or servants were acting within the scope or course of their employment with Defendant and Defendant is responsible for the negligent acts and/or omissions of its employees, agents, and/or servants.
5. Plaintiff was injured when she fell as a direct result of the Defendants’ negligence in creating a hazardous condition and then failing to warn the Plaintiff of the hazardous condition.
6. At all relevant times, the Defendant was responsible and was in the best position to maintain the premises in a proper and safe condition. A hazardous condition was created by Defendant’s employee who left a machine under the hospital bed with the wires or cords extending near the edge of the bed. This hazardous condition was unknown to Plaintiff and caused her to trip and fall.
7. As a direct and proximate result of the Defendant’s negligence, Plaintiff was injured and incurred lost wages and medical expenses, and has sustained physical pain and suffering, all of which entitle Plaintiff to recover an amount in excess of $75,000.00.

ANSWER

The Defendant, Norman Regional Hospital Authority, a public trust, dlb/a Norman Regional Hospital (“Hospital”) answers Plaintiffs Petition as follows:
1. Every allegation in the Petition is denied, unless specifically admitted in this answer.
2. With respect to the allegations in paragraphs 1 and 2 of the Petition, the Hospital
admits it is a Public Trust and a political subdivision pursuant to the Oklahoma Governmental Tort
Claims Act, 51 O.S. § 151, et seq, and that it received written notice of the Plaintiff’s claim. The
Hospital admits that Plaintiff’s claim is timely brought pursuant to the Oklahoma Governmental Tort
Claims Act.
3. With respect to the allegations in paragraph 3 of the Petition, the Hospital admits that Plaintiff was present in its facility on December 19, 2012. The Hospital denies the remainder of the allegations contained in paragraph 3 of the Petition.
4. Without further clarification of Plaintiff’s claims of agency, the Hospital is unable to admit or deny the allegations in paragraph 4 of Plaintiff’s Petition.
5. The allegations in paragraphs 5 through 7 of the Petition, together with the prayers for relief which follow, are specifically denied. Rather, the Hospital states that the premises were properly maintained at all times.
6. The Hospital specifically denies that it was in any manner negligent in maintaining its premises.
7. The Hospital denies all allegations not otherwise addressed above.
8. Since discovery has not begun, the Hospital reserves the right to amend its answer in any particular.
ADDITIONAL DEFENSES
1. Plaintiffs Petition fails to state a claim against the Hospital upon which relief can be granted, either in whole or in part.
2. Plaintiffs claims are barred by the doctrine of estoppel, either in whole or in part.
3. The Hospital specifically denies that the Plaintiff sustained any injury or suffered any damage by reason of any alleged negligence, act or omission on the part of the Hospital.
4. The Hospital denies that any act or failure to act on the part of any agent, servant, or employee of the Hospital caused and/or contributed to any injury to the Plaintiff.
5. Plaintiffs damages, if any, were proximately caused or contributed to by the negligence or other wrongful act or omission of the Plaintiff. In addition, and in the alternative, Plaintiffs damages, if any, were proximately caused or contributed to by the negligence of third parties over whom the Hospital exercised no control.
6. Plaintiff assumed the risk of the injury alleged.
7. The Plaintiffs injuries, if any, were caused by other, unrelated physical or mental or personal conditions of the Plaintiff, for which the Hospital is not responsible.
8. The Plaintiffs injuries, if any, were caused by a pre-existing or post-developing unrelated medical condition, disease, illness or infection for which the Hospital is not responsible.
9. Any damages allegedly suffered by the Plaintiff were caused by the underlying medical condition of the Plaintiff or were the result of unforeseeable or unavoidable complications due to Plaintiffs underlying condition, which was not caused by the acts of the Hospital.
10. The Plaintiffs injuries, if any, were caused by an open and obvious condition for which the Hospital had no duty to warn.
11. The injuries alleged to have been sustained by Plaintiff were the result of an intervening or supervening cause.
12. The Plaintiffs claims are subject to the provisions and limitations of 12 O.S. §
3009.1.
13. The Plaintiffs damages, if any, are limited by the provisions of 23 0. S. § 61.2.
14. The Plaintiffs injuries, if any, were caused by an open and obvious condition for which the Hospital had no duty to warn.
15. The Plaintiff failed to exercise reasonable care for her own safety.
16. For further answer or defense, the Hospital states that Plaintiffs damages claims are limited or restricted by the provisions of the Affordable Access to Health Care Act, 63 O.S. § 1- l708.1A et seq.
17. Plaintiffs claims are barred or otherwise subject to the limitations of the Oklahoma Governmental Tort Claims Act, Title 51 0.S. § 151 et seq.
WHEREFORE, having answered, the Defendant, Norman Regional Hospital Authority, a public trust, d/b/a Norman Regional Hospital, prays that Plaintiff take nothing and that it be awarded its costs and fees in this action and any further relief the Court finds to be equitable.

DEFENDANT NORMAN REGIONAL HOSPITAL AUTHORITY’S
MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT
COMES NOW the Defendant, Norman Regional Hospital Authority, a public trust, d/b/a Norman Regional Hospital (“Hospital”), and pursuant to 12 O.S. §2056 and Rule 13 of the Rules for District Courts of Oklahoma, moves this Court for entry of summary judgment in its favor. Plaintiff’s negligence claim fails as a matter of law. Defendant submits the following brief in support of its Motion for Summary Judgment:
I. INTRODUCTION
On December 19, 2012, Plaintiff Tonieta Benson tripped and fell while visiting her brother at the Hospital. Plaintiff claims to have tripped over “wires” at the foot of her brother’s hospital bed while she was walking around it. She believes the wires were attached to a machine normally kept at the foot of the bed [a sequential compression pump used for compression hose/stockings]. Plaintiff’s brother had been in the hospital a couple of weeks prior to this incident, and Plaintiff had visited him on a daily basis during that time.
Immediately after her fall, Plaintiff was taken to the Hospital ER, where she was diagnosed with a fractured shoulder. She did not require surgery, but saw an orthopedist several times and received physical therapy sessions. By April 9,2013, the orthopedist noted Plaintiff’s fracture had healed, and that she was able to functionally perform all activities of daily living at that time.
Surnrnaryjudgment is appropriate because Defendant owed no duty to warn Plaintiff of wires that could easily be seen by Plaintiff in the exercise of ordinary care for her own safety. Plaintiff has failed to identify any type of hazard, defect or unreasonably dangerous condition which could not be observed by a reasonably prudent person in the exercise of ordinary care, and which would have triggered a duty of care.
II. UNDISPUTED MATERIAL FACTS
1. Plaintiff’s Petition alleges the Hospital was negligent in “creating a hazardous condition and then failing to warn the Plaintiff of the hazardous condition.” (Exhibit A, Plaintiffs Petition, ¶ 5).
2. Plaintiffs Petition alleges a hazardous condition was created by a Hospital employee who left a machine under the hospital bed, with wires “extending near the edge of the bed.” (Exhibit A, ¶ 6).
3. Plaintiff alleges the hazardous condition caused by the wires, which was unknown to her, caused her to trip and fall. (Exhibit A, ¶ 6).
4. Plaintiffs Petition further alleges that the Hospital was responsible for maintaining the premises in a “proper and safe condition.” (Exhibit A, ¶ 6).
5. Plaintiff visited her brother “almost every day” he was in the Hospital, had been to his room in the ICU numerous times, and was very familiar with it. (Exhibit B, deposition testimony of Plaintiff Tonieta Benson, p. 47, line 9-p. 49, line 25).
6. Plaintiff testified that she actually saw the machine at issue, which had previously hung on the foot of the bed, being placed under the bed:
5 Q Well, if— I’m just interested in what you
6 know and remember.
7 A I don’t know if they disconnected the wires
8 from the machine or if they stuck them under there
9 together. They -- they put them under the bed from the
10 south side of his bed. I was sitting on his north side.
11 And the -- the -- the machine was right here (indicating)
12 kind of catty cornered, and they just stuck that machine
13 and the wires underneath the besi I saw them do that
(Exhibit B, p. 58, lines 5-13).
7. The “wires” were open and obvious to Plaintiff:
14
Q What color were the wires, toyour knowledge?
15
A Black or brown, I suppose. rm -- I couldn’t
1 6
swear to that.
17
Q When you looked down 041 the floor, you could
18
seethem,though. Right? -
19
A Oh,yeah.
(Exhibit B, p. 73, lines 14-19).
8. The lighting in the Hospital room was adequate for Plaintiff:
Page 76
1 Q Theroomwasthtoodarktoseethewires,was
2 it?
3 A Well,no. Isawthewires,solguesstdhave.
4 tosaynotothat.
(Exhibit B, p. 76, lines 1-4).
9. Nothing prevented Plaintiff from looking down and seeing the open and obvious wires:
16 Q Right. And what I’m saying is or what I’m
17 asking is, there’s nothing that prevented you from seeing
18 them. It’sjustthatyoudidn’tseethen
19 A Well, no. I’m sure they weren’t hiding them
20 from anyone, but --
21 Q Okay Right
22 A ButI—Iwasnotlookingdowa Iwas going
23 for the water. But when I turned that corner, I believe
(Exhibit B, p. 76, lines 16-23).
III. ARGUMENT AND AUTHORITY

* * *
B. DEFENDANT OWES NO DUTY TO PLAINTIFF, WHO SHOULD HAVE OBSERVED THE WIRES IN THE EXERCISE OF REASONABLE, ORDINARY CARE.
An invitee in Oklahoma 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 the owner or occupant 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. See, e.g., Turner v. Rector, 1975 OK 172 ¶13,544 P.2d 507; and Safeway Stores, Inc. v. McCoy, 19620K 194 ¶8,376 P.2d 285, (citing City of Tulsav. Harman, 1931 OK 73,{ 37, 148 Okia. 117).
As the Oklahoma Supreme Court stated in Nicholson v. Tacker, 1973 OK 75 ¶25, 512 P.2d 156, the standard is objective: would a reasonable person, in the exercise of due diligence for their own safety, discover the danger that was open and obvious? If the danger is readily apparent to the plaintiff, the defendant has not breached a duty to the plaintiff. See also, Southerland v. Wal-Mart Stores, Inc., 1993 OK CIV APP 12 ¶4, 848 P.2d 68. In Nicholson, the plaintiff was walking along a fishing dock, tripped at the point where two sections of the fishing dock joined, and injured her knee. Nicholson at ¶4. In remanding the case with instructions to enter judgment for the Defendant, the Nicholson Court applied the objective standard, and noted that the plaintiffwas generally familiar
with the type of fishing dock at issue, and was aware of the danger presented by a floating boardwalk. Nicholson at ¶23. The Court further stated:
This is the type of danger that the plaintiff is deemed to have knowledge of considering her infirmities, her age, her experience with fishing docks, and her familiarity with this particular walkway. This evidence does not go to prove that plaintiff assumed the risk, but to show that the condition was open and obvious. It is of little moment, therefore, whether the fluctuation in the surface of the walkway was 3 inches or 6 inches. Put simply, plaintiff stubbed her toe, and it is presumed that a person in her position would appreciate the danger of stubbing her toe on a floating fishing dock.
Nicholson at ¶25. [emphasis added].
In Southerland, supra, the plaintiff sued Wal-Mart after she tripped over an orange extension cord extending across the tile floor in her path of travel. Southerland at ¶2. The trial court sustained Wal-Mart’ s Motion for Summary Judgment, holding that the extension cord constituted an open and obvious hazard which was readily ascertainable to reasonable people in the exercise of ordinary care. Southerland at ¶3. Wal-Mart’s Motion for Summary Judgment included a picture of the site of the accident and the cord involved. The Court of Civil Appeals affirmed the trial court’s ruling, noting that the open and obvious nature of the extension cord was patently apparent in the photograph in evidence:
The trial court viewed the photographs and correctly concluded reasonable people could not differ over the fact that the “bright orange” cord was easily visible (despite the allegation of blinding light), and patently obvious to any person walking toward it along the lighting fixture aisle. In so ruling, the trial court did not err.
Southerland, 1993 OK CIV APP 12 at ¶4.

The plaintiff in Sourherland argued the extension cord was not open and obvious, because it had a deceptively innocent appearance. The factual basis for the argument was that the cord may have been moved at the time the plaintiff tripped upon it. Southerland at ¶5. The Court stated:
“However, Appellant fails to point to any evidence in the record which supports this hypothesis, and the fact remains that she admits she did not see the cord at all. This fact removes the case from the entirely different situation where one sees an obvious danger which presents a deceptively innocent appearance.” Id.
In this case, applying the objective standard required by Nicholson, a person in Ms. Benson’s position is deemed to have knowledge of the conditions of the hospital room. It is undisputed that Ms. Benson visited her brother numerous times in the ICU room in which she later fell. She knew to anticipate equipment and machines in the hospital room, particularly given that her brother was undergoing dialysis during his stay. Moreover, Plaintiff testified that she actually saw the machine and wires being placed under the bed. Based on the Oklahoma Supreme Court’s decision in Nicholson, Oklahoma Law presumes a person in Ms. Benson’s position would appreciate the nature of her surroundings and exercise due care for her own safety.
Oklahoma Law does not require a subjective standard, because if a subjective standard was required, then Defendants would be required to account for Plaintiffs particular circumstances, which would be imreasonable and impossible. Here, Plaintiffs particular circumstances involve the following undisputed facts: Plaintiff, while visiting her brother in a room she admittedly had been in many times, observed someone place a machine with wires underneath her brother’s bed. Shortly thereafter, Plaintiff rose to get some water from across the room, and allegedly tripped on the wires
and fell. Plaintiff has admitted she was not looking below eye level and could have seen the wires if she had looked down.
Defendant is not required to account for these particular circumstances. Put simply, as in Nicholson, Plaintiff walked while not looking or paying attention, and tripped on the wires. It is presumed that she would appreciate the danger of stumbling and falling while walking around a busy hospital room, knowing there may be various equipment in use, particularly the machine with wires that she saw being stored under the bed. Under these circumstances, Defendant in this case does not owe a duty to Ms. Benson, and her negligence case fails as a matter of law. Moreover, as in Southerl and, Plaintiff has failed to prove any set of facts showing that the premises of the hospital room were dangerous to the ordinary, prudent person. Summary judgment was appropriate in Southerland even when the plaintiff claimed she could not see the cord because of “blinding light.” Here, Ms. Benson admits she could see the wires, she simply did not see them “soon enough.” Therefore, just as in Southerland, this is not a situation where Ms. Benson can argue that the wires were an obvious danger which presented a deceptively innocent appearance. Plaintiff cannot create a factual question and survive summary judgment with such an allegation, or only “potentially admissible” evidence.
TV. CONCLUSION
Stated simply, Plaintiff could have avoided the accident by exercising due care and looking out for her safety. Defendant owes Plaintiff no duty, and her negligence claim fails as a mailer of law.
WHEREFORE, Defendant requests summary judgment in its favor.

PLAINTIFF’S RESPONSE AND OBJECTION TO
DEFENDANT NORMAN REGIONAL HOSPITAL AUTHORITY’S MOTION FOR SUMMARY JQDGMENT AND BRIEF IN SUPPORT
For her response and objection to Defendant, Norman Regional Hospital Authority’s Motion for Summary Judgment, Plaintiff, Tonieta Benson, states as follows:
I. INTRODUCTION
This claim arises from a trip and fall injury suffered by Tonieta Benson at the Norman Regional Hospital on Porter Avenue on December 19, 2012. Hospital employees, in the course and scope of their employment, negligently and improperly left a machine under a hospital bed with the wires extending near the edge of the bed. The placement of the machine and wires created a hazard which was a hidden danger unknown to Ms. Benson.
Ms. Benson was visiting her brother, who was a patient in the hospital, and she tripped and fell as a result of this hazardous and dangerous condition. She never saw the wires until she fell after walking around the corner of the bed. Ms. Benson had walked around the bed on many other occasions and had never seen wires on the floor. She suffered injuries to her shoulder and neck, and sustained a fracture to her humerus.
II. STATEMENT OF FACTS
A. Response to Defendant’s Undisputed Facts
1. Plaintiffs Petition alleges the Hospital was negligent in ‘creating a hazardous condition and then failing to warn the Plaintiff of the hazardous condition.’ (Defendant’s Exhibit A, Plaintiffs Petition, ¶ 5).
Response to Np. 1: Admitted
2. Plaintiff’s Petition alleges a hazardous condition was created by a Hospital employee who left a machine under the hospital bed, with wires “extending near the edge of the bed.” (Defendant’s Exhibit A, 1 6).
Response to No. 2: Admitted
3. Plaintiff alleges the hazardous condition caused by the wires, which was unknown to her, caused her to trip and fall. (Defendant’s Exhibit A, ¶ 6).
Response to No. 3: Admitted
4. Plaintiff’s Petition further alleges that the Hospital was responsible for maintaining the premises in a “proper and safe condition.” (Defendant’s Exhibit A, 116).
Response to No. 4: Admitted
5. Plaintiff visited her brother “almost every day” he was in the Hospital, had been to his room in the ICU numerous times, and was very familiar with it. (Defendant’s Exhibit B, deposition testimony of Plaintiff Tonieta Benson, p. 47, line 9 - p. 49, line 25).
Response to No. 5: Admitted
6. Plaintiff testified that she actually saw the machine at issue, which had previously hung on the foot of the bed, being placed under the bed:
Q Well, if— I’m just interested in what you know and remember.
A I don’t know if they disconnected the wires from the machine or if they stuck them under there together. They--they put them under the bed from the south side of his bed. I was sifting on his north side. And the — the — the machine was right here (indicating) kind of catty cornered, and they just stuck that machine and the wires underneath the bed. I saw them do that.
(Defendant’s Exhibit B, p. 58 , lines 5-13).
ResDonse to No.6: Admitted. However, Plaintiff also stated that the machine had been hanging on the foot of the bed on previous days (Plaintiff’s Exhibit A, deposition testimony of Tonieta Benson, 58:16-59:8; 72:10-12).
7. The “wires” were open and obvious to Plaintiff:
Q What color were the wires, to your knowledge?
A Black or brown, I suppose. I’m -- I couldn’t swear to that.
0 When you looked down on the floor, you could see them, though.
Right?
A Oh, yeah.
(Defendant’s Exhibit B, p. 73 , lines 14-19).
Response to No. 7: Disputed. At the time Plaintiff fell the wires were not open and obvious to her. The testimony at 73:14-19 is accurate, but Plaintiff did not see the wires until after she fell. (Plaintiffs Exhibit A, 73:17-22). The Plaintiff could not see the wires before she walked around the corner of the bed. (Plaintiffs Exhibit A, 142:7-8; 144:17-20)
8. The lighting in the Hospital room was adequate for Plaintiff:
0 The room wasn’t too dark to see the wires, was it?
A Well, no, I saw the wires. So I guess I’d have to say no to that. (Defendant’s Exhibit B, p. 76, lines 1-4).
Response to No. 8: Admitted, except Plaintiff was unable to see the wires before she walked around the corner of the bed. (Plaintiff’s Exhibit A, 76:1-77:2). She did not see the wire before she tripped. (Plaintiffs Exhibit A, 142:7-10; 144:17-20)
9, Nothing prevented Plaintiff from looking down and seeing the open and obvious wires:
Q Right. And what I’m saying is or what I’m asking is. There’s nothing that prevented you from seeing them. Pt’s just that you didn’t see them.
A Well, no. I’m sure they weren’t hiding them from anyone, but --
Q Okay. Right.
A But I -- I was not looking down. I was going for the water, But when I turned that corner, I believe
(Defendant’s Exhibit B, p. 76, lines 16-23).
Response to Np. 9: Admitted in part. The testimony at 76:16-23 is accurate. However, Plaintiff disputes that the wires were “open and obvious” to her before she fell (Plaintiff’s Exhibit A, 76:1-77:1). As soon as she turned the corner her feet got tangled in the wires. She did not know the wires were sticking out until she stepped right in to them when she turned the corner. (Plaintiff’s Exhibit A, 53:5-14; 144:17-20)
B. Plaintiff’s Statement of Additional Facts Which Preclude Summary Judgment
1. The Plaintiff did not see the wires before she tripped and fell. (Plaintiff’s Exhibit A, 53:2-13; 142:7-8; 144:17-20)
2. Plaintiff has never seen the wires on the machine. (Plaintiff’s Exhibit A,
136:3-5)
3. Plaintiff had never seen the wires on the floor before the day she fell. (Plaintiff’s Exhibit A, 140:8-14)
4. From where Plaintiff was sitting or standing, she could not see the floor where the wires and machine were under the bed. (Plaintiff’s Exhibit A,
133:12-18; 139:2-5; 144:17-20)
5. Plaintiff could not see the wire until after rounding the corner of the bed. (Plaintiff’s Exhibit A, 73:17-21; 139:16-18; 142:7-8; 144:17-20)
6. The machine was not placed under the bed, to her knowledge, on any other occasions. The machine was attached to the foot of the bed. (Plaintiff’s Exhibit A, 58:7-22; 71:8-72:13)
Ill. ARGUMENT AND AUTHORITIES
A. Summary Judgment Standard
Summary judgment is appropriate only where the attached evidentiary materials, viewed in the light most favorable to the non-movant, support but a single inference in movant’s favor. Vance v Federal National Mortgage Ass’n., 1990 OK 7311 6, 988 P2d 1275, 1278. It isa tool for identifying non-triable fact issues, not a device for defeating a party’s right to trial, not to force trial by affidavit Id. (or deposition First National Bank and Trust Co. of Vinita v. Kissee, 1993 OK 96 ¶J7, 859 P.2d 502, 505). The movant bears a heavy burden; every bit of conflicting evidence offered by the movant is ignored; Byford v. Town of Asher, 1994 OK 46 ¶5, 874 P,2d 45, 47. The non-movant is then granted the benefit of every favorable inference. Kissee, 1993 OK 96 ¶7, 859 P.2d 502, 505. The motion is sustained only where, reasonable minds might conceivably conclude only one thing; movant is entitled to judgment as a matter of law. Crockett v. McKenzie, 19940K 3, ¶3, 867 P.2d 463,464; see, also, Williams v. Tulsa Motels, 1998 OK 42 ¶flJ14-22, 958 P.2d 1282, 1288-1290 (Opala, J., dissenting (discussing difference between state and federal summary process-the state court judge Is not to weigh the evidence).
B. The Wires Were Not an “Open and Obvious” Hazard.
It is well settled law in Oklahoma that the owner of the premises owes the duty to warn the invitee of any danger thereon of which the owner knows, or ought to know, and which is unknown to the invitee. Foster v. Harding, 1967 01<46, P.2d 355 Supra, N.1. Oklahoma courts repeatedly uphold this principle. For example, in Spirgis t Circle K Stoms, Inc., Plaintiff stepped into a pothole located in front of Defendant’s store. Spfrgis v. Circle K Stores, Inc., 1987 OK CIV APP 45 ¶ 2, 743 P.2d 682, 683 (Ordered published by the Supreme Court). The Court of Civil Appeals held, while the pothole may have been in an open place, inferences could differ whether it was an open and obvious condition. Id., ¶ 14 at 685. The fact that the pothole was located in a parking lot, where it was likely to be concealed by traffic, proved most determinative. Id., ¶ 12, at 685.
In Anderson a man was repairing windmills near a power line. His truck’s”gin poles” contacted power lines, starting a fire. He jumped safely off the truck but was shocked when he reached back in to shut the valve on a propane tank. The Court held assumption of risk was for the jury — despite his awareness of the potential danger posed by the electrical lines. Anderson v. Northwestern Electric Cooperative, 1988 OK 81, ¶10, 760 P.2d 188 at 191.
In Byford v. Town of Asher, 19940K 46, 874 P.2d 45 a man broke his ankle while walking through a badly rutted alley between his and his father’s homes. The man had walked through the alley on several occasions and had even twice complained of the dangerous condition of the alley. The town demurred to the man’s evidence saying the man was aware of the danger presented by the alley and thus assumed the risk. The trial court granted the demurrer. The Court of Civil Appeals affirmed.
On certiorar4 the Court first noted the “standards” (applicable to this motion as well as to the demurrer in Byford): “all evidence and reasonable inferences therefrom which favor the party opposing the motion. . . must be taken as true. . . Any conflicting evidence
which is favorable to the movant. . . is disregarded . . . if there is any evidence which tends to show a right to recover, the [motion] is overruled and the case allowed to proceed.” Byford, 19940K ¶5, 874 P.2d at 47. The Court reversed “because reasonable minds could differ” whether the Plaintiff assumed the risk: Id. ¶17, 874 P.2d at 49 (citing Anderson, 760 P.2d 188).
The defense of an open-and-obvious defect often presents a question for the jury. Brown v. Nicholson, 19970K 32, ¶ 12, 935 P.2d 319, 323; JackHealey Linen Service Co.
v. Travis, 1967 OK 213, ¶ 9, 434 P.2d 924, 927-28; Heniyetta Construction Co. v Hauls, 19650K 88, ¶ 11 408 P.2d 522, 526. Open and obvious provides a defense as a matter of law only where, “upon the undisputed facts, reasonable people exercising fair and impartial judgment could not reasonably reach different conclusions.”
The Defendant created a dangerous condition when it placed the wires and the machine under the bed. The Plaintiff was unaware of the danger. She was seated at the other end of the bed and could not see the location of the wires. Although she observed the hospital employee place the machine and the wires under the bed, she did not know they were a hazard. She had no reason to believe there was any danger. She was unaware of any wire in a position along the edge of the bed that could cause her to trip and fall. Before that day Plaintiff had always observed the machine attached to the foot of the bed. The Defendant’s employee created this hazardous condition. Plaintiff was unaware of any danger. As she walked down the side of the bed she could not see the wires, She could not see the wires until she walked into them as she turned around the cqrner of the bed.
Zagal v. Tnickstops Corp. of America, 1997 OK 75, ¶ 3 948 P.2d 273, 274, is controlling in our case. There a woman tripped and fell in a truck stop that she had been to “many, many” times before. As she rounded a corner she walked through an area where a box boy was stocking shelves and tripped over a large cardboard box that was in
the aisle, completely unobstructed. The woman even agreed that she would have seen the box had she been paying attention, but that she was not looking down at the floor as she walked. The trial court granted the truck stop summary judgment; the COCA affirmed. On certiorari, however, our Supreme Court reversed. It was important, said the Court, that though “observable,” the box was not actually observed by the woman. Id. ¶ 17, at 274. Observability alone does not transform a hazard into an open and obvious condition as a mailer of law. Rather, “all of the circumstances must be examined to determine whether a particular condition is open and obvious to the Plaintiff or not.” Id. ¶ 9, at 275.
IV. CONCLUSION
The facts of this case do not provide a basis for summary judgment. Whether the wire Ms. Benson tilpped on was an “open and obvious” hazard or a “hidden danger” is a question of fact that should be decided by a jury. There are many material disputed facts in this case. The motion should be denied.


Outcome: JOURNAL ENTRY
On the 22nd day of October, 2015, this matter came on for hearing on Defendant Norman Regional Hospital Authority’s Motion for Summary Judgment. Plaintiff appeared by and through counsel of record T. David Hasbrook. Defendant appeared by and through counsel of record Steven J. Johnson. After reviewing the briefs of the parties, hearing the argument of counsel, and being otherwise fully advised in the premises of Defendant’s Motion, the Court finds that Defendant’s Motion for Summary Judgment is hereby GRANTED. Judgment in favor of Defendant is therefore entered in this matter in its entirety.

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