RAMIREZ v. WAL-MART STORES EAST, LP

OSCN Found Document:RAMIREZ v. WAL-MART STORES EAST, LP RAMIREZ v. WAL-MART STORES EAST, LP 2026 OK 66 Case Number: 119184 Decided: 09/21/2026 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2026 OK 66 , __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MATTHEW RAMIREZ, Plaintiff/Appellee, v. WAL-MART STORES EAST, LP, a Foreign Limited Partnership, d/b/a WAL-MART SUPERCENTER No. 389, and/or, WAL-MART REAL ESTATE BUSINESS TRUST, a Foreign Real Estate Trust, Defendant/Appellant. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 Matthew Ramirez, Plaintiff, sued Wal-Mart Stores East, LP, Defendant, for negligence after he slipped in Wal-Mart's parking lot. At trial, Ramirez relied on the fall of a Wal-Mart employee, who had slipped on black ice roughly ten feet away almost an hour earlier, to establish that Wal-Mart had notice of the hazard he slipped upon. The district court admitted evidence of the earlier fall, denied Wal-Mart's motion for a directed verdict, and entered judgment on a jury verdict for Ramirez. The Court of Civil Appeals affirmed. We previously granted certiorari to consider whether the earlier fall was admissible to establish notice and whether Wal-Mart owed Ramirez a duty of care. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT REVERSED; CASE REMANDED WITH DIRECTIONS. Michael W. Brewer, Hiltgen & Brewer, P.C., Oklahoma City, Oklahoma, and Amelia A. Fogleman, GableGotwals, Oklahoma City, Oklahoma, for Wal Mart Stores East, LP, Defendant/Appellant. Joe E. White, Jr. and Charles C. Weddle, III, White & Weddle, P.C., Oklahoma City, Oklahoma, and Melissa S. Hedrick, Hedrick Law Firm, Oklahoma City, Oklahoma, for Matthew Ramirez, Plaintiff/Appellee. OPINION DARBY, J.: ¶ 1 The question before this Court is whether Wal-Mart Stores East, LP, owed Matthew Ramirez a duty to protect him from a patch of black ice Roper v. Mercy Health Center to establish notice because it did not occur at the same place. See Roper v. Mercy Health Ctr. , 1995 OK 82 903 P.2d 314 I. STANDARD OF REVIEW ¶ 2 Whether a defendant owes a duty of care to the plaintiff is a question of law, which we review de novo . Bray v. St. John Health Sys., Inc. , 2008 OK 51 187 P.3d 721 de novo . Comp. Pubs., Inc. v. Welton , 2002 OK 50 49 P.3d 732 Myers v. Mo. Pacific R. Co. , 2002 OK 60 52 P.3d 1014 de novo . Christian v. Gray , 2003 OK 10 65 P.3d 591 II. BACKGROUND AND PROCEDURAL HISTORY ¶ 3 On February 27, 2019, the temperature was approximately twenty-four degrees Fahrenheit. It was cloudy and overcast at the local Wal Mart Supercenter in Edmond, Oklahoma. Conditions were wet from ongoing precipitation. ¶ 4 At approximately 11:03 a.m., a Wal-Mart employee, Katie Bliss, slipped and fell on black ice as she was moving around her car in the store's parking lot. Bliss was parked in the closest parking spot on the aisle in front of the garden center, immediately next to the end-cap island. Bliss testified she had walked to her vehicle to take a short break ten to fifteen minutes earlier. Tr. vol. I, 188:11--22. When asked if she recollected walking on any ice on her way to her vehicle she responded, "I was just being careful, or trying to be, of it. It was wet and cold everywhere, so there was always a chance of ice." Tr. vol. I, 189:2--6. Bliss was asked if she thought it was going to be slick when she exited her vehicle after about ten minutes, and she answered, "No. Maybe I should have." Tr. vol. I, 189:11--13. When she exited her vehicle, Bliss walked through the gutter area between her car and the end-cap island. She then stood near the rear of her car for a few moments and as she stepped back toward the rear of the driver's side of her car, she stepped into the gutter along one side of the island, slipped, and fell. Bliss testified that ice seemed to only be around the gutter where she fell. Tr. vol. I, 197:13--22. ¶ 5 Between 11:13--14 a.m., a Wal Mart employee quickly walked up to where Bliss fell and thoroughly treated the area of her fall by applying salt or sand to the gutter between the driver's side of Bliss's car and the end-cap island. See Pl.'s Ex. 1 (Store Video) at 17:29--18:22. He also treated the gutter area between the side of the car and the end-cap island for the car in front of hers in the same aisle. Id. Then he treated the gutter area between the side of the car and the end-cap island in the next aisle over. Id. At 11:17 a.m., another Wal-Mart employee walked through the area of the gutter between Bliss's car and the end-cap island and appeared to throw a handful of a similar substance in the specific area where Bliss slipped. See Store Video at 21:36--21:54. ¶ 6 Ramirez drove his vehicle to the same Wal Mart after leaving work almost three miles away at 11:45 or 11:50 a.m. Tr. vol. II, 372:14--373:17. Ramirez testified that while driving he encountered no slick spots on the roads or the Wal Mart parking lot, and no ice formed on his windshield. Tr. vol. II, 373:15--376:14. Ramirez parked, and while walking toward the Wal Mart entrance he noticed an ambulance in the parking lot but had no knowledge of why it was present. Tr. vol. II, 378:7--14. In fact, the ambulance crew had been summoned to assist the Wal Mart employee, Bliss, who had slipped and fallen earlier. ¶ 7 At approximately 11:56 a.m., fifty-three minutes after Bliss fell, and about forty minutes after the area of her fall was last treated, Ramirez slipped and fell approximately ten feet from where Bliss had fallen. Ramirez slipped after stepping onto the edge of the gutter area located around the corner and on a different side of the end-cap island from where Bliss had fallen earlier. The same ambulance took Bliss and Ramirez to the emergency room where they were both treated for injuries sustained from falling. Ramirez broke his right tibia and fibula (lower leg) and his right distal radius (wrist) when he fell. These injuries required surgery and recovery time. ¶ 8 No evidence showed that Wal Mart was notified before Ramirez fell of the existence of any icy patch in the entire parking lot other than the one where Bliss fell. There was also no evidence that the alleged patch of black ice on which Ramirez fell existed at the time of Bliss's fall. In the interval between the two falls, security footage showed numerous people traversing the lot without difficulty. Nine people crossed within two to three feet of the exact spot where Ramirez later fell, only one of whom appeared to have any difficulties with balance. That person who appeared to start to slip and then caught themself also appeared to step on the exact spot where Ramirez would fall a little over seven minutes later. Compare Pl.'s Ex. 1 (Store Video) at 53:34--38, with Store Video at 101:03--06. Between that person beginning to slip and Ramirez falling, another person walked by stepping approximately one foot further from the gutter while pushing a shopping cart and appeared to have no issue with slipping. See Store Video at 59:31--38. ¶ 9 Ramirez sued Wal Mart for negligence and claimed Wal Mart failed to exercise ordinary care to keep its premises in a reasonably safe condition for invitees. Ramirez alleged the black ice where he fell was not open and obvious. He further claimed that Wal Mart knew or should have known about the black ice which caused his fall but failed to warn him of this hidden danger. In his prayer for relief, Ramirez did not ask for an award of money for medical expenses; Ramirez sought only a money judgment for his pain and suffering. Wal Mart attempted to introduce evidence of the medical expenses at trial. Ramirez objected, and the trial court sustained the objection and excluded any evidence pertaining to the dollar amount of medical expenses and bills. Over Wal Mart's objection, the district court admitted evidence of Bliss's earlier fall and denied Wal Mart's motion for a directed verdict. ¶ 10 The jury heard testimony from several witnesses and viewed portions of a two-hour video recording captured by a Wal Mart security camera which showed the relevant portion of the parking lot. The recording showed both Bliss and Ramirez falling. The trial court admitted the recording into evidence and furnished the jury with a device to view the full footage during deliberations. ¶ 11 The jury returned a verdict in favor of Ramirez against Wal Mart and awarded damages for pain and suffering from his broken leg and broken wrist in the amount of $850,000. The jury further found Wal Mart 95% negligent and Ramirez 5% contributorily negligent. Accordingly, the trial court entered a final judgment amount of $807,500 for pain and suffering plus $23,447.02 for prejudgment interest. ¶ 12 The Court of Civil Appeals affirmed, holding that Bliss's fall was admissible to show notice because "the circumstances [were] reasonably similar and occurred just 10 feet apart," and that Wal Mart owed Ramirez a duty because it "was on notice of a dangerous area of black ice due to a previous fall and because the black ice had a deceptively innocent appearance," such that danger of injury to another was foreseeable. Ramirez v. Wal-Mart Stores East, LP , No. 119,184, slip op. at ¶¶ 20, 22 (COCA Div. II Aug. 15, 2023)(published), cert. granted (Okla. Sup. Ct. Mar. 11, 2024). Wal Mart petitioned for certiorari on four grounds: 1) Wal-Mart did not owe a duty because the weather made the risk for ice apparent; 2) Bliss' prior fall was inadmissible under Roper ; 3) Plaintiff's medical bills should have been admitted; and 4) Counsel's comments during rebuttal were prejudicial. III. ANALYSIS A. Earlier Fall Not Admissible to Establish Notice ¶ 13 We first address whether the district court properly admitted evidence of the prior fall that day to establish notice. In Roper v. Mercy Health Center , we stated that a party who seeks to prove a dangerous condition and the defendant's knowledge of it through a prior accident must show that the earlier accident "happened at the same place, while it was in the same condition, under circumstances of a similar nature to those of the accident in litigation." Roper v. Mercy Health Ctr. , 1995 OK 82 903 P.2d 314 quoting Perry v. City of Okla. City , 1970 OK 66 470 P.2d 974 St. Louis--San Francisco Ry. v. Powell , 1963 OK 209 385 P.2d 465 See St. Louis--San Francisco Ry. v. Powell , 1963 OK 209 385 P.2d 465 and while it was in the same condition and that the accidents were of a similar nature to the one involved in suit.") (emphasis added). Terms "expressed in conjunctive rather than disjunctive language" require that "both," or all in this case, be met. See Thomas v. Keith Hensel Optical Labs , 1982 OK 120 653 P.2d 201 See Perry , 1970 OK 66 ¶ 14 The Court of Civil Appeals found the earlier fall admissible because "the circumstances [were] reasonably similar and occurred just 10 feet apart." Ramirez , slip op. at ¶ 20. COCA arrived at this outcome by applying a prior COCA opinion where it found admissible evidence of prior accidents that occurred on the same bridge due to the same missing guardrails. COCA held the circumstances only needed to be similar, not identical. See Cooper v. Brd. of Cty. Comm'rs of Grady Cty. , 1996 OK CIV APP 85 921 P.2d 376 Roper analysis. COCA collapsed the "same place" and "same condition" requirements into the third inquiry of "circumstances of similar nature," and by doing so it read the first two requirements out of Roper . See Roper , 1995 OK 82 ¶ 15 The two falls in this case were not merely a distance apart, they occurred on different faces of an end-cap island that physically separated the two locations. Bliss fell on a discrete patch of black ice in the gutter next to her car and Wal-Mart employees treated that patch of black ice twice. Ramirez fell nearly an hour later, in the gutter along a different side of the island, on a separate patch of black ice almost ten feet away, that no one had observed or reported, that nine intervening pedestrians had crossed without falling, and that the evidence does not show existed when Bliss fell. Two of the nine occurrences of people walking over the area where Ramirez later fell were Wal-Mart employees crossing it to apply sand or salt to the location where Bliss fell. Bliss and Ramirez did not slip and fall in the same place. ¶ 16 Nor were the two falls shown to have occurred while the separate fall locations were in the same condition. The evidence did not show conditions in the parking lot were static. Freezing rain continued to fall, and the pavement remained exposed to sub-freezing temperatures, throughout the fifty-three minutes separating the two falls. A fall on one patch of black ice is therefore not reliable evidence that the same condition existed at a different location, nearly an hour later to establish Wal-Mart had notice. Those variances in conditions further substantiate that it was error to admit evidence of the earlier fall in a different location to establish notice of the second patch of black ice almost an hour later. ¶ 17 Ramirez's own arguments in the district court illustrate the point. Ramirez argued that two separate Wal-Mart employees treated the area where Bliss fell with sand or salt, demonstrating both a lacking response on the part of Wal-Mart and impeaching a witness who denied salting the parking lot. At the same time, Ramirez claims that he fell in the "same vicinity" as Bliss's fall in order to attempt to meet the Roper standard that the two falls happened in the same place. He cannot have it both ways. If, as the undisputed evidence shows, Ramirez fell on a patch of black ice that had not been salted, then Ramirez necessarily fell at a different location due to a different hazard. The treatment of the location of Bliss's fall shows that Wal-Mart addressed the only hazard of which it had received notice; it is not evidence of notice of the distinct, untreated patch of black ice that injured Ramirez. Further, Wal-Mart employees walked over the area of Ramirez's fall in order to salt where Bliss fell and no evidence showed they encountered any ice in the same place where Ramirez would later fall. ¶ 18 Ramirez is correct that COCA did not create a "close enough" standard in its opinion; it simply conflated the three elements of Roper . In order to properly consider all of Roper and also admit the evidence of the prior fall, this Court would have to do exactly what Ramirez says this case does not and create a nebulous evidentiary standard for how close two different locations in the parking lot is close enough. We would also need to determine how that new standard would apply to future cases: would it simply be an exception for accidents that occur in parking lots or would it apply to all negligence cases regardless of location? We decline to create such a nebulous standard today. ¶ 19 The district court erred in admitting evidence of the prior fall in conflict with Roper . The ruling admitting that evidence was thus a misapplication of the governing legal standard. We reverse the district court on this issue. B. Absent Notice of the Hazard, Wal-Mart Owed No Duty ¶ 20 Walmart is an invitor and therefore has a duty to exercise ordinary care not to injure invitees who come to its place of business. See Dover v. W.H. Braum, Inc. , 2005 OK 22 111 P.3d 243 includes 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. There is no duty to warn the invitee of any defect or danger which is as well-known to the invitee as to the owner or occupant or which is obvious or which should be observed by the invitee in the exercise of ordinary care. Dover , 2005 OK 22 Beatty v. Dixon , 1965 OK 169 408 P.2d 339 also citing 65 C.J.S., Negligence, § 50. The general rule in negligence is reasonableness, which is determined by the circumstances of the case. See Lowery v. Echostar Satellite Corp. , 2007 OK 38 160 P.3d 959 ¶ 21 In Buck v. Del City Apartments, Inc. , the plaintiff slipped and fell on ice upon steps in front of a cabin operated by defendant motel and in which she was a guest. 1967 OK 81 431 P.2d 360 Id. , ¶ 22, 431 P.2d, at 365 . We summarized, that ". . . mere slipperiness of snow or ice in its natural state and accumulations does not give rise to liability." Buck , 1967 OK 81 ¶ 22 "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." Buck , 1967 OK 81 Ibid. Where the dangers created by the elements are universally known and equally apparent to the invitee, and the owner has done nothing to increase the natural hazard, there is no liability. Buck , 1967 OK 81 ¶ 23 Black ice, even though almost impossible to see, is not always considered a hidden danger which requires the invitor to remedy or warn. This is demonstrated by Brown v. Alliance Real Estate Group , 1999 OK 7 976 P.2d 1043 Dover v. W.H. Braum, Inc ., 2005 OK 22 111 P.3d 243 Brown did not displace the rule from Buck ; Brown applied the rule. The plaintiff in Brown fell on black ice on a day the sidewalk leading to defendant's place of business appeared to be dry, and the weather conditions were cold and dry. The weather gave no warning of ice, yet the premises owner had been told of "the same patch of 'black ice'" that later injured the plaintiff, but did nothing to remedy it or warn. Brown , 1999 OK 7 976 P.2d 1043 Ibid. The duty in Brown thus turned on the owner's actual, specific knowledge of the very hazard that caused the injury. ¶ 24 In Dover , the plaintiff entered a Braum's store on a day when the weather was dry and cold, and there was no ice on the sidewalk or steps. Dover , 2005 OK 22 Ibid. When entering the Braum's, the plaintiff observed "de-icer" on the sidewalk and in front of the door to the store, but not on the steps. Dover , 2005 OK 22 Dover also knew that an ice storm had been predicted for that day. Ibid. ¶ 25 The plaintiff sued Braum's for negligence for failure to exercise ordinary care to protect invitees from injury. We held in Dover that: In the case at bar, the danger, equally obvious to both plaintiff and defendant, was that an ice storm had been predicted and plaintiff observed that it was misting when she left the store. Where there is no dispute as to facts and only one conclusion can be drawn from evidence, the court can decide the question as a matter of law. Beatty v. Dixon, 408 P.2d 339 Dover , 2005 OK 22 ¶ 26 The plaintiff in Dover argued that Brown v. Alliance Real Estate Group , 1999 OK 7 976 P.2d 1043 Dover we determined Brown was distinguishable "because the invitor/realty company specifically knew of a black ice hazard in front of its door that already had caused someone to fall that day. Dover , 2005 OK 22 Brown is therefore confined to cases of the owner's "specific knowledge of the black ice" on which the plaintiff fell. The settled rule remains that liability rests on the owner's superior knowledge of the danger. Dover , 2005 OK 22 ¶ 27 As discussed before, Wal-Mart had no such specific knowledge here. Its only notice was of the black ice at the location of Bliss's fall, a hazard it identified and treated twice. Notice that black ice had formed at one spot, which the invitor then salted, is not notice that a separate patch would later form ten feet away on the other side of the island. Nothing in the record shows that the patch of black ice that Ramirez slipped on existed long enough, or was observable enough, to charge Wal Mart with discovering it in time to remedy or warn as required by Brown for a duty to exist. On the other hand, knowledge that ice may form on wet, cloudy days with temperatures well below freezing is the general knowledge chargeable to every invitee; it is not the type of superior, hazard-specific knowledge that gives rise to a duty. The risk of ice, including black ice was equally apparent to all given the freezing temperature and ongoing precipitation; dangers created by the elements are universally known and there is no duty to warn an invitee. See Dover , 2005 OK 22 ¶ 28 On review of the denial of a directed verdict, we take as true all evidence and reasonable inferences favorable to Ramirez and disregard the evidence favorable to Wal-Mart, and we may direct a verdict only where there is an "entire absence of proof on a material issue." Comp. Publ'ns, Inc. , 2002 OK 50 Roper to establish notice of the hazard that injured Ramirez. Once it is set aside, the record contains no competent evidence, viewed in whatever light, that Wal-Mart knew or should have known of the specific patch of black ice on which Ramirez fell. ¶ 29 Duty is the threshold element of a negligence claim; without it, the claim fails as a matter of law. Bray , 2008 OK 51 ¶ 30 We find that Wal-Mart was entitled to a directed verdict. In so holding, we do not reweigh the evidence or substitute our viewing of the security video for the jury's. The issue in this case is not one of evidentiary weight but of an "entire absence of proof" on the notice element that any duty here would require. See Comp. Publ'ns, Inc. , 2002 OK 50 See Rogers v. Hennessee , 1979 OK 138 602 P.2d 1033 IV. CONCLUSION ¶ 31 Evidence of Bliss's earlier fall was not admissible under Roper to establish Wal Mart's notice of the hazard that injured Ramirez, because it did not occur in the same place. Roper , 1995 OK 82 Bray , 2008 OK 51 COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT REVERSED; CASE REMANDED WITH DIRECTIONS. Rowe, C.J., Kuehn, V.C.J., Winchester, Darby, Kane, and Jett, JJ., concur Edmondson, Combs, and Gurich, JJ., dissent FOOTNOTES Brown v. Alliance Real Estate Group , black ice "is not an ordinarily perceptible hazard," it is "virtually transparent," "a thin glaze of clear ice that is invisible and one of the most hazardous conditions." Brown v. Alliance Real Estate Grp. , 1999 OK 7 976 P.2d 1043 See Okla. Dep't of Corr. v. Byrd , 2023 OK 97 see also Am. Biomedical Grp., Inc. v. Techtrol, Inc. , 2016 OK 55 374 P.3d 820