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Premises Liability in Oklahoma

Landowner Premises Liability        

            “Premises liability” refers to the “liability . . . of the owner/occupier of the premises where [an] injury occurs.”  Thomas v. E-Z Mart Stores, Inc., 102 P.3d 133, 136 (Okla. 2004).  An action against a landowner for premises liability sounds in tort for negligence whereby a plaintiff must establish four foundational elements: (1) a duty owed to the plaintiff by the defendant landowner; (2) a breach of that duty; (3) damages; and (4) causation—the damages must result from the breach of the duty owed. 

            The threshold question to be addressed in any landowner premises liability action is what duty a landowner owes to the plaintiff.  Under Oklahoma law, a landowner’s duty to an entrant is determined by and dependent upon a three-tiered classification system.  Fortunately, the three-tiered classification system and landlord liability under Oklahoma law may be summed up succinctly in a single paragraph:

            “To a trespasser, a landowner owes in the common law status-based classification system only a duty to avoid injuring him willfully 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 for the visitor. Even vis-à-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 could reasonably expect them to be discovered. . . . A hidden danger within this rule of liability need not be totally or partially obscured from vision or withdrawn from sight; the phrase is used for a condition presenting a deceptively innocent appearance of safety ‘which cloaks a reality of danger.’”  Pickens v. Tulsa Metro. Ministry, 951 P.2d 1079, 1083-84 (Okla. 1997) (emphases added). 

            Under the above-described classification system, a “licensee” is one who enters onto property of another for his own benefit for pleasure by express or implied permission of the landowner.  Brown v. Nicholson, 953 P.2d 319, 321 (Okla. 1997).  A typical example of a licensee is a social guest.  In contrast, an “invitee” is one who uses the premises of another for the purpose of a common interest and mutual advantage.  Id.  A common example of an invitee is a customer of a business coming onto the business’s property. 

            Importantly, the “ordinary care” afforded to a licensee and the “reasonable care” afforded to an invitee have variable meanings—they are not fixed standards.  Both duties are “dependent upon the particular visitor’s frequency upon the premises, her knowledge of the conditions of the premises, and the extent of the permission granted by the owner.”  Id. at 322. 

Landlord Premises Liability

            In the landlord-tenant context, the landlord’s duty to warn the tenant of certain hazards is governed by the law of premises liability, generally.  Herren v. Bonham, 825 P.2d 1321, 1322 (Okla. 1992).  Oklahoma endorses the view espoused by the Restatement (Second) of Property, § 17.1, which provides:

“(1) A landlord who conceals or fails to disclose to his tenant any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the leased property and which exists when the tenant takes possession, is subject to liability to the tenant and others upon the lease property with consent of the tenant or his subtenant for physical harm caused by the condition after the tenant has taken possession, if:

(a) the tenant does not know or have reason to know of the condition or the risk involved; and

(b) the landlord knows or has reason to know of the condition, realizes or should realize the risk involved, and his reason to expect that the tenant will not discover the condition or realize the risk involved, and has reason to expect that the tenant will not discover the condition or realize the risk.

(2) If the landlord actively conceals the condition, the liability stated above continues until the tenant discovers it and has reasonably opportunity to take effective precautions against it. Otherwise the liability continues only until the tenant has had reasonable opportunity to discover the condition and to take those precautions.”

            Moreover, a landlord’s premises liability may extend to protect tenants against the criminal acts of third-persons in certain limited circumstances.  While the general rule in this area is that a landlord is not an insurer against the criminal acts of third-persons, the Oklahoma Supreme Court has carved out circumstances in which a landlord must take reasonable actions to protect his or her tenants against a third-person’s criminal acts.  As such, a landlord has a “duty to use reasonable care to maintain the common areas of the premises in such a manner as to insure that the likelihood of criminal activity is not unreasonably enhanced by the condition of those common premises.”  Lay v. Dworman, 732 P.2d 455, 458 (Okla. 1986).  Additionally, when a landlord retains “control over aspects of the premises such as doors and window locks or alarm devices which directly relate to security, the landlord faces potential liability when the circumstances are such that a reasonable man would realize that a failure to act would render one relying on those actions susceptible to criminal acts.”  Id. at 459.

            The cornerstones of a landlord’s liability for the criminal acts of third-persons are (1) foreseeability and (2) exclusivity of control.  Cordes v. Wood, 918 P.2d 76, 78-79 (Okla. 1996).  To be liable for the criminal acts of others, the criminal act must be the type of act which the landlord could reasonably be expected to prevent.  Id. at 79.  A very strong indicator of foreseeability is the landlord’s knowledge and awareness of prior criminal acts.  Id.  However, the landlord must exercise exclusive control over the ineffective device or the premises for him to be liable.  Id. at 80.