Lead Opinion
Russell Johnson, plaintiff below, appeals from, summary judgment entered in favor of defendant, Mid-South Sports, Inc. (Mid-South), in a negligence action based upon injuries Johnson received while attending
The Court of Appeals reversed the cause and remanded it for trial, holding that Johnson’s injuries were the result of the combined effects of being hit by the unknown spectator and sliding down the slippery ramp. We grant certiorari, vacate the opinion of the Court of Appeals and affirm the trial court.
We need only determine whether the evidentiary materials submitted to the trial court indicated a substantial controversy exists as to a material fact. Ross v. City of Shawnee, Okl.,
All of the evidence contained in the record comes from Johnson’s deposition, and the parties do not dispute the facts.
Because we find no substantial controversy as to any material fact, we hold that Mid-South was entitled to judgment as a matter of law.
Johnson, a 295-pound man, purchased a ticket to a wrestling event sponsored and promoted by Mid-South in which several wrestling matches were held. He has attended such events in the past, and because of his weight and his handicapped right arm which is cut off between the elbow and wrist, he always sits in the handicapped section so that he will not have to stand up to see the action in the ring as he says is often necessary at such events and which he has difficulty doing.
On this occasion, the handicapped section was full, so the ushers at the event had Johnson sit at the end of a row next to the handicapped access ramp. Throughout the preliminary matches, a group of “rowdy” spectators sitting on the same row as Johnson made several trips to the concession stands for beer. On their return trip, they spilled beer not only on the handicapped ramp, but on Johnson’s boots as well. Another patron sitting near Johnson voiced his annoyance with the “rowdy” group, and the group left the area before the final wrestling match began. After the main event concluded, Johnson remained in his seat, as was his custom, and waited for the other fans to leave so that it would be easier for him to get up from his seat and negotiate the stairs. While sitting in the seat, he noticed someone coming at him from the other end of the row so he moved his legs to let them through. However, the person came at Johnson “like a freight train,” hit him in the leg, and knocked him six feet into the air. Johnson testified on deposition that although he did not see who hit him, he thought that the person was one of the rowdy fans who was probably mad at him because they had to leave the area.
Johnson further testified that after being knocked into the air, he landed on the beer-soaked handicapped access ramp which had become slippery as a result of the beer. He then slid down the ramp and struck his handicapped arm against the floor fracturing the stub in several places. He brought this action claiming Mid-South was negligent in maintenance of the handicapped access ramp and in control of the crowd, particularly the rowdy group.
In their summary judgment pleadings the parties agreed that Johnson was a business invitee, and Mid-South argued below, as it does on appeal, that Johnson’s testimony failed to show that Mid-South breached its duty of ordinary care to keep the premises in reasonably safe condition for use by invitees. C.R. Anthony Co. v. Million, Okl.,
Johnson testified that when one of the rowdy fans repeatedly spilled beer, another patron told the rowdy fan to sit down and stop spilling beer. An usher apparently saw what was going on, and summoned a police officer to come to the area. Johnson never testified that he said anything to the rowdy fan, the bothered patron, the usher, or the officer, nor did he claim that he was threatened by anyone at the match. In fact, Johnson testified that the man who he thought hit him was not causing any trou
From our review of the evidence, it appears that the usher, an employee or agent of Mid-South, recognized that an argument between fans might erupt, and thus exercised ordinary care in calling over an officer to assist if any of the fans got out of hand. The group left without incident, and it appears that everyone just went back to watching the wrestling matches. The evidence is void of any indication that the rowdy fans intended to return in order to hurt Johnson, or that Mid-South knew or should have known that Johnson would be singled out to be attacked as he claims he was. The undisputed facts give no indication that Mid-South should have foreseen the post-match assault. Thus, Mid-South did all that, in our view, was necessary to protect Johnson since they were unaware of any potential attacks directed at him. Mid-South exercised ordinary and reasonable care in providing not only ushers, but also police officers to control the crowd.
Moreover, we find that the proximate cause of the injury was the unknown person hitting Johnson in the leg with enough force to knock him into the air and onto the ramp.
It is well settled that proximate cause is an essential element of an action in negligence. Loper v. Austin, Okl.,
The proximate cause of an event is that “which in a natural and continuous sequence, unbroken by an independent cause, produces the event and without which the event would not have occurred.” Gaines v. Providence Apartments, Okl.,
In coming to this conclusion, we note that negligence, if any, by Mid-South in allowing the ramp to become slippery merely furnished a condition which reacted with the independent act of the spectator to cause Johnson’s injury. As such, it was a remote cause and not a proximate cause of the injuries. See generally, Gaines, supra; Thompson v. Presbyterian Hospital, Inc., Okl.,
Johnson’s injury resulted from the unforeseeable act of the unknown patron, and under the facts stated, Mid-South did not violate any duty owed to Johnson, nor was there any showing that Johnson’s injury was proximately caused by any negligent act of Mid-South.
Finding no substantial controversy as to any material fact, we hold that Mid-South is entitled to judgment as a matter of law.
The judgment of the trial court is AFFIRMED.
Dissenting Opinion
with whom DOOLIN, Justice, joins, dissenting:
I dissent from the majority’s assessment that there is no substantial controversy concerning the material facts in the instant cause. It remains the duty of the jury, not this tribunal, to determine whether the fol
1) failing to provide handicapped seating to a patron who requested the special seating and who was obviously physically impaired — carrying excessive weight, walking with a cane and having an amputated arm;
2) seating a physically handicapped patron in a make-shift seat temporarily placed at the end of an existing aisle;
3) selling beer to fans who allegedly were intoxicated and who were seated in close proximity to the handicapped patron;
4) failing to take affirmative action when the security guard and the usher became aware of the crowd’s unruly behavior;
5) failing to clear the exit ramp of spilled beer within a reasonable time despite the usher’s knowledge that the ramp was wet;
and 6) failing to provide the handicapped patron, who had been seated in the aisle by the management, assistance in leaving the non-handicapped seating zone.
Neither can I agree that, as a matter of law, the wrestling event promoter did not violate any duty owed to the injured patron or that the patron’s injury was not proximately caused by the promoter. The majority does not address the possibility of the foreseeability of an intervening cause or of the combined negligence of the unknown spectator and the promoter. Although I consider these omissions unfortunate, I dissent because of questions which must be resolved by the trier of fact — the existence of material questions of fact, the resolution of the issues of negligence and the degrees thereof.
FACTS
On April 22, 1984, the appellant, Russell Johnson (Johnson/patron), went to a wrestling match at the Fairgrounds Pavilion in Tulsa, Oklahoma. Because of his physical impairments — the need to walk with a cane and the amputation of his right arm — Johnson requested seating in the handicapped seating area. Johnson testified that along with his other disabilities, his weight made it difficult to get up and down stairs and out of his chair.
A group of fans seated in the same aisle as Johnson were unruly during the wrestling match. They had allegedly consumed a large quantity of beer. On a return trip from purchasing the beer, a member of the group spilled beer on the handicapped exit ramp and on Johnson’s boots. The group was conspicuous enough that one of the ushers asked a security guard to stand by the row. The security guard took up the requested position, but he did not ask the group to leave. Another irritated fan did ask the group to leave, and several of the fans complied with his request. Johnson testified that both the usher and the police officer saw the slippery ramp, but that no attempt was made to clean up the beer or to dry the ramp.
Johnson brought suit against the appel-lee, Mid-South Sports, Inc. (Mid-South Sports/promoter), to recover for his damages. Mid-South Sports filed a motion for summary judgment. Finding that the promoter was not negligent, the trial court sustained the motion. Johnson appealed. The Court of Appeals reversed the cause and remanded it for trial.
THE EXISTENCE OF MATERIAL FACTS MILITATES AGAINST THE ENTRY OF SUMMARY JUDGMENT IN THE INSTANT CAUSE.
A.
The seating of a handicapped person in non-handicapped, temporary seating, may be negligent.
This is a jury question.
The question of
In Lawson v. Clawson,
In Lawson, Parker, and Hayward, the respective courts found a duty by each of the respective promoters to provide reasonably safe seating. This duty existed even though the proprietors were only required to exercise ordinary care to ensure that the premises were safe for their patrons.
B.
Selling beer to allegedly intoxicated fans may constitute negligence.
This is a jury question.
The patron testified that the group sitting next to him was drinking heavily. He saw a member of the group, who he thought was obviously intoxicated, purchase numerous beers.
In Bishop v. Fair Lanes Ga. Bowling, Inc.,
If the trier of fact found that Mid-South Sports neglected a duty to Johnson, our case law would support an award for damages. In Brigance v. Velvet Dove Restaurant, Inc.,
“We, thus, hold that one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. It is not unreasonable to expect a commercial vendor who sells alcoholic beverages for on the premises consumption to a person he knows or should know from the circumstances is already intoxicated, to foresee the unreasonable risk of harm to others who may be injured by such person’s impaired ability ...”11
The Eleventh Circuit was correct in its assessment in Bishop that altercations by
The trier of fact must determine whether the promoter acted negligently in selling beer to the allegedly intoxicated fans. It is also for the trier of fact to determine whether it was reasonable to foresee that an intoxicated person might knock another patron down at a wrestling match causing him/her injury.
C.
The promoter may have been negligent in failing to control allegedly intoxicated fans which may have resulted in fan violence.
This is a jury question.
The operator of a place of business must use reasonable care to protect his/her invitees against injury through the negligent or wrongful acts of other invitees on the premises where he/she has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.
In Lee v. National League Baseball Club,
Knowledge by the proprieter of prior rowdiness by attendees was also found sufficient in Stillwell v. City of Louisville,
D.
Failure to clean up beer, spilt on a public walkway, may be negligent.
This is a jury question.
Here, the patron alleges that both the usher and the security officer saw the slippery ramp and that no one attempted to clean up the spilled beer. In Begin v. Georgia Championship Wrestling, Inc.,
“It cannot be said as a matter of law that the defendant exercised ordinary care in inspecting the premises and not observing the alleged defect, and if they should have observed it, in not rectifying the defect or warning the plaintiff of its existence. The evidence does not demand a finding as a matter of law that no actionable negligence appears.” (Citations omitted)
In Lingerfelt v. Winn-Dixie Tex., Inc.,
“In past ‘slip and fall’ cases involving self-service markets we have steadfastly refused to make the store an insurer of its customers, but have required proof of an act of negligence on its part, such as lack of due diligence in watching for and/or cleaning up spillages, which led to the condition which caused the accident. Our decision today does not alter that rule.”
The promoter is not an insurer of the patron’s safety. However, there is evidence that both the security guard and usher may have been aware that the handicapped ramp was wet. The evidence is uncontroverted that nothing was done to remedy the unsafe condition. Although the promoter here may not have been under a duty to take extraordinary care to keep the floor completely dry,
E.
The trier of fact might determine that seating the handicapped patron in a makeshift seat constitued the event leading to a foreseeable injury.
This is a jury question.
Causation traditionally lies within the
“The general rule is that an intervening force which could reasonably have been foreseen or which is a normal occurence of the risk created will not suffice to relieve an original tortfeasor of liability. A person who has received an injury due to the negligence of another is entitled to recover all damages proximately traceable to the primary negligence including subsequent aggravation which the law regards as a sequence and natural result likely to flow from the original injury even though there may have been some intervening cause contributing to the result. Where there is an intervening responsible agency which directly produces an injury the question whether the original negligence is to be regarded as the proximate cause of the injury, or only as a condition, is to be determined by ascertaining whether the agency which intervened was of such character and the circumstances under which it occurred were such that it might have been reasonably expected that an injury similar to the one caused might actually happen. If, under the circumstances, the intervention of such an agency in the manner in which it occurred might reasonably have been expected to happen, then the chain of causation extending from the original wrongful act to the injury is not broken by the independent intervening agency, and the original wrongful act is treated as the proximate cause thereof. Foreseeability is an essential element of proximate cause in Oklahoma, and it is the standard by which proximate cause, as distinguished from the existence of a mere condition, is to be tested.”
Here, a jury might find that although another patron ran into Johnson and knocked him down that the chain of events leading to his injury began when the promoter seated him in make-shift seating. Likewise, it is not unlikely that a jury might also determine that in any crowded event that there is going to be pushing and shoving. The jury might also determine that especially in the case of a handicapped patron the activity might lead to injury that the promoter could have foreseen. It is just as likely that the jury might find no negligence on the part of the wrestling promoter. That determination lies within the realm of the trier of fact.
In Camp v. Rex,
We recognized concurrent negligence in Brigance v. Velvet Dove Restaurant,
“Tortfeasors are classified as ‘concurrent tortfeasors’ where their independent acts*1116 concur to produce a single or indivisible injury. In a case such as this the commercial vendor’s act of selling or furnishing an intoxicating beverage for on the premises consumption to a noticeably intoxicated person concurs with the acts of the intoxicated drive to produce the single or indivisible injury resulting from the automobile collision_Where liability is joint and several, the injured party may institute several suits against the multiple tortfeasors, but satisfaction of a judgment against one of the tortfeasors bars a judgment against the other tort-feasors.” (Citations omitted)
Any one of the independent acts of the promoter — putting Johnson in a make-shift seat, selling beer to intoxicated individuals, failing to control fan violence, not providing a dry exit ramp — could combine with the unknown spectator’s act of running into Johnson to .produce his injury. The trier of fact must determine the issue of liability.
The majority makes much of the fact that the person who impacted with Johnson is an “unknown person.” The problem of the “ghost tortfeasor” was disposed of in Paul v. N.L. Indus., Inc.,
CONCLUSION
Even when the basic facts are undisputed, a motion for summary judgment should be denied, if under the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts. Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue of any material fact, and that the moving party is entitled to judgment as a matter of law.
I express no view as to whether the patron here is entitled to recovery or whether any one of the promoter’s acts created the risk or combined with the unknown spectator’s act to cause the patron’s injuries. However, summary judgment was not appropriate in the face of the existing material questions of fact. All we have before us are the parties’ pleadings and Johnson’s deposition. Every civil case subject to summary proceedings must be grounded and considered upon its own peculiar pleadings, affidavits, exhibits, admissions, depositions, and the like, and if reasonable persons in the exercise of fair and impartial judgment might reach different conclusions upon consideration of the same,
Notes
."Due care” may be either ordinary care or a high degree of care, according to the circumstances of the particular case. Stills v. Mayor,
"Slight care or diligence is such as persons of ordinary prudence usually exercise about their own affairs of slight importance; ordinary care or diligence is such as they usually exercise about their own affairs of ordinary importance; and great care or diligence is such as they usually exercise about their own affairs of great importance."
. Issues of negligence and the degrees thereof are questions for the trier of fact. Fox v. Oklahoma Memorial Hosp.,
. Johnson weighs in excess of 295 pounds.
. Parker v. Warren,
. Tulsa Exposition & Fair Corp. v. Joyner,
. Criterion Theatre Corp. v. Starns, Id.
. Hayward v. Downing,
. The testimony indicates that Johnson, unquestionably a handicapped person, was seated in the aisle while people without any impairment may have been occupying the handicapped section.
. See, Lawson v. Clawson, see note 7 at
. The patron testified in his deposition on page 34 that:
“Well, I was sitting down there, and this guy was going out, and he was stumbling, and he was going to get two of the big twelve glasses of — cartons of beer, and come back and spilt beer on the plywood that they have on the steps for the wheelchairs to go up to the — the ramp."
.Violation of an ordinance is to be deemed negligence per se if the injury complained of: 1) was caused by the ordinance’s violation, 2) was of a type intended to be prevented by the ordinance, and 3) the injured party was one of a class meant to be protected by the ordinance. Boyles v. Oklahoma Natural Gas Co.,
Title 37 O.S.Supp.1989 § 537 provides in pertinent part:
"A. No person shall:
... Sell, deliver or knowingly furnish alcoholic beverages to an intoxicated person or to any person who has been adjudged insane or mentally deficient ..."
Title 37 O.S.Supp.1989 § 538 provides in pertinent part:
"... Any person who shall knowingly sell, furnish or give alcoholic beverage to an insane, mentally deficient, or intoxicated person shall be guilty of a felony ...”
."Fighting Fan Violence; Some NFL Teams are Limiting Beer Sales, Training Employees to Identify Rowdies and Giving Designated Drivers Free Soft Drinks to Try to Control Crowds”, The Los Angeles Times, Part C, Page 1 (October 2, 1990).
. See Brigance v. Velvet Dove Restaurant, Inc.,
. Lee v. National League Baseball Club, 4 Wis.2d 168,
. Diker v. City of St. Louis Park,
. Stillwell v. City of Louisville,
. See, "Fighting Fan Violence; Some NFL Teams are Limiting Beer Sales, Training Employees to Identify Rowdies and Giving Designated Drivers Free Soft Drinks to Try to Control Crowds”, see note 12 supra.
. Id.
. Lee v. National League Baseball Club, see note 14, supra.
. Perry v. Macon County Greyhound Park, Inc.,
.Atherton v. Devine,
. Pryor v. Lee C. Moore Corp.,
. Id.
. Smith v. Davis,
. See, Plesko v. City of Milwaukee,
. Buckner v. General Motors Corp.,
. Gay v. Akin,
. Buckner v. General Motors Corp., see note 26, supra.
. Spirgis v. Circle K Stores, Inc.,