FILED

United States Court of Appeals

Tenth Circuit

August 4, 2015

Elisabeth A. Shumaker

Clerk of Court

 PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESUS MARTINEZ and KANDA

MARTINEZ,

Plaintiffs - Appellants,

v. No. 14-6086

ANGEL EXPLORATION, LLC,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. 5:13-CV-00352-F)

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.

Timothy L. Martin (Michael L. Darrah with him on the brief), Durbin, Larimore

& Bialick, Oklahoma City, Oklahoma, for Appellee.

Before TYMKOVICH, GORSUCH, and BACHARACH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Appellate Case: 14-6086 Document: 01019470326 Date Filed: 08/04/2015 Page: 1 
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. HaleHalsell 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. OwensIllinois 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. 

III. Conclusion

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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