Thomas v. E-Z Mart Stores, Inc.

only strip involved ation because

three feet wide. Therefore, respectfully I dissent.

T 3

2004 OK 82

Mary THOMAS, Plaintiff/Appellant, E. STORES, INC.,

E-Z MART ty Defendant/Third Par Plaintiff/Appellee, International, Inc., and Company,

Aramark Uniform Party

Third Defendants. 98,979.

No.

Supreme of Oklahoma. Court 2, 2004.

Nov. Dahnke,

Kayce Gisinger, George L. W. Abowitz, Dahnke, P.C., & Timberlake Okla- OK, City, Plaintiff/Appellant. homa Nester, Parrish, Tracy Harry Pierce A. Walker, Jackman, Pray, Williamson & Mar- OK, lar, City, Third Oklahoma for Defendant Party Plaintiff/Appellee. EDMONDSON,J. presented

1 The issue for our review on certiorari is whether the trial court was cor- determining prem- rect the context of ises lawsuit that a business invitor's against party claims a third its claim party that the third caused the invitee's infu- ry jury determining should be heard of the invitor to the invitee. unequivocally That issue not an- in this case. The trial court did not swered consider whether the third was an invitor, independent contractor of the claim whether the invitor's the third was based vicarious liability of invitor for act of an inde- contractor, separate pendent or whether the simultaneously claims could be considered jury using proper without instructions causing confusion. Thomas, invitee, against E-Z a business could not be dele- brought an action T 2 Thomas Core-Mark, gated to (E-Z Mart), Stores, alleged Inc. was an contractor to Mart. mat in the store slipped on a floor

that she granting subsequent The court reversed the order a new in her fall and which resulted trial, sought and E-Z Mart certiorari. We petition against a injury. E-Z Mart filed (Aramark) Appeals agree the of Civil Company and with Court Aramark Uniform (Core-Mark), International, Inc., premises liability delegated, could not be Core-Mark liability may agree premises that a floor mat. and we suppliers of the distributors and to an con- Ara- not be transferred alleged that and E-Z Mart Core-Mark upon theories of ei- injury-causing mark were liable based of tractor when the condition of indemnity. is within the control ther contribution or granting invitor. We reverse the order that; 1. alleges The petition E-Z Mart's quest trial E-Z Mart's new trial new because by Aramark and mat was manufactured floor herein, explain as we and the was insufficient Core-Mark; by 2. The supplied to E-Z Mart question on a of law. trial court erred defective; mat was not the was 8. The mat by was type of mat that Core-Mark Review I. Standard of Mart; 4. supply to E-Z agreement an §5 negligent supplying proceeding appeal in a de- is an from Core-Mark judgment granting asked for a an of a trial court a new trial. fective mat. order sums, if The trial and the motion for new trial were against Aramark and Core-Mark adjudged judge. any, ap E-Z Mart would be liable heard before the same When an pellant challenges granting a Aramark and Core-Mark were an order new to Thomas. pro- stronger showing of error must granted their motion to bifurcate trial a be solely challenging deny an order ceedings, jury and a trial commenced made than when ing a motion for new trial. Dominion Bank E-Z Mart. against Masterson, Tenmesseev. 1996 OK Middle of E- jury against a verdict T3 The returned Bartlett, 99, 291, Sligar v. 1996 928 P.2d $350,000, Z Mart the amount 1883, 144, P.2d 1887. OK 916 in accordance judgment was then entered no The attributed the verdict. with parties 16 The issue contested negligence to Thomas. E-Z-Mart filed trial court was correct is whether argued that new trial. E-Z Mart motion for against claim E-Z Mart combining Thomas' necessary trial because the a new trial was with E-Mart's claim present allow E-Z Mart court did not consolidating one trial. The issue either alleged negligence of third- evidence on the bifurcating sepa trial or claims into one (Core-Mark) requested E-Z Mart's or 2018(C) by § governed, part, rate trials third-party. negligence of a instruction on the (D) A Pleading Code.1 of the Oklahoma & {4 by the trial court Appeals clear abuse of discretion appeal the Court of Civil On 2018(C) (D) § & must be vicariously applying lia- when that E-Z Mart is determined appellant to reverse the trial appel- shown an The ble for the acts of Core-Mark. order.2 court's that E-Z Mart's late court concluded claim, any 2018(C) (D): any separate 0.$.2001 or of issue or § &

1. 12 counterclaims, claims, cross-claims, number When actions involv- C. CONSOLIDATION. issues, claims, always preserving third-party or pend- ing question or fact are a common of law right by jury. of trial inviolate court, joint hearing may ing it order a before the any issue in the or all the matters in or trial Landrum v. National 2. The standard is stated in actions; may actions consolidat- order all the 328, 324, Co., OK 912 P.2d Union Ins. 1996 ed; concerning may orders and it make such 2018(D) applied § and relied on when the court proceedings tend to avoid unnec- therein Co., Ry. Faulkenberry City Southern v. Kansas essary delay. costs or cert. den. 464 661 P.2d court, TRIALS. in fur- D. SEPARATE (1983), S.Ct. 78 L.Ed.2d prejudice, U.S. or to avoid therance of convenience predated § opinion 2018. In Puckett v. an which expedi- separate will conducive to trials when separate economy, trial of 723, another order tion and Cook, 1978 OK applied § predates the court opinion that or third- claim, cross-claim, counterclaim, any invitee, using A an To an an owner owes the additional review abuse dis appellate exercising keep cretion standard includes exami reasonable care reasonably in a nation of both fact and law issues. Tibbetts safe condition Centers, reception for the Sight'n Appliance visitor. Even vis- Sound 72, ¶3, 1042, 1046; invitee, Chris a-vis an to whom a landowner owes 10, ¶43, Gray, highest duty in this tian v. trichotomous clas- system, require The fact involves sification the law does not issue whether ruling protect reviewed is without rational basis the landowner the invitee support against dangers apparent the evidence to the decision. Tibb which are so readily observable that one reason- etts, ¶3, would at 1046. The law issue ably ruling expect involves whether the is based them to be discovered. words, legal apply conclusion. Id. We a other a landowner to an invi- erroneous owes tee, licensee, duty a de novo and non-deferential review when an as well as to a to assigned protect law. him from which in error is one of Id. conditions are P.3d at 1046. dangers, traps, the nature of hidden snares and the like. granted The trial court the motion T8 Pickens, 1083-1084, 951 P.2d at upon for new trial that based determination (notes omitted). entitled, law, EZ-Mart is as matter to party disputes No that Thomas has the sta- introduce additional evidence at trial and of an tus invitee. submit an instruction on the of, alleged negligence indemnity relat and/or argues E-Z T10 Thomas Mart's to, ing Core-Mark.3We examine that deter invitor, duty, may delegated by as an not be mination. E-Z In Mart to Core-Mark. this case E-Z Core-Mark, delegated agree Mart to an Liability II. The Premises Claim ment, responsibility maintaining one brought T an 9 Thomas action based aspect ingress egress E-Z to Mart's is, liability;" liability "premises on property, supplying maintaining floor owner/occupier prem- E-Z Mart as the of the mats used at the entrance to the store. E-Z injury where her ises occurred. argues that its claim is not about dele liability explained actions we have that a invitor, rather, duty gating its as an but its duty landowner's varies with the status of right jury apportion liability to have the Metropolitan the entrant. Pickens v. Tulsa wrong-doer. Core-Mark as the actual Ministry, 1997OK 1083- {11 explained We have that whether a Nicholson, Brown OK duty non-delegable question is is a of law. Pickens, example, 321. For in we Inc., Co-op., Bouziden v. Elec. Alfalfa said: ¶ 50, 12, agree 455-456. We trespasser, To a landowner owes that, Thomas, respect with Thomas with common law status-based classification (ultimate legal responsibility) system only duty injuring to avoid him Thomas, duty which is owed to as an licensee, wilfully wantonly. To an invitee, delegated by cannot be Mart. duty owner owes a to exercise reasonable {12 recently nondelegable We discussed him care to disclose to the existence of Copeland Lodge Enterprises, duties in owner, dangerous defects known to the but 36, 4 P.3d 695. unlikely the licensee. be discovered duty Although ordinarily extends to conditions and instru- a hirer cannot negligence mentalities which are the nature hid- be held liable for the of an contractor, independent the rule of non- snares, dangers, traps, den and the like. reviewing advisory opinions hypo- an abuse of discretion standard when does not issue or answer consolidating an order cases for trial. questions. thetical We thus need not determine the correctness of the trial order if the court's support- 3. E-Z Mart's motion for new trial and claim Aramark was considered. ing do briefs not mention Aramark. This Court explained 1 13 One court has the follow- apply where the hirer does not may ing why manner landowners not dele- duty performance of a for the contracts gate legal liability ultimate to others. Hence, innkeep- imposed by law. while nondelegable duty property may independent contractor er hire an exception premised principles nondelegable duty, owners perform the former's (or she) policy of basic fairness as well as consider indepen- pass not off to an he relating ations to allocation of the risk. legal responsi- contractor the ultimate dent vicariously An liable owner be held bility proper performance of for the negligence independent for the of its con rule, duty nondelegable duty. Under possession tractor because the owner vicariously innkeeper may held liable premis control over has retained failure to for an contractor's responsibility es.... This affirmative if inn- care even exercise reasonable general consistent with an owner's keeper has himself exercised due care. all cireum- reasonable care under ¶ 12, 36, at 4 P.3d at Copeland, 2000 OK. (see Miller, stances Basso v. 40 N.Y.2d omitted). (emphasis and notes 868). 386 N.Y.S.2d 352 N.E.2d Clearly inequitable permit would be describing this We are not alone liability by property escape owner nondelegable. an invitee as merely delegating obligation repair the out, points courts As one commentator premises indepen or maintain the to an duty posses- generally agree that the of a Moreover, underly dent contractor. the keep possessor's premis- sor of land to the ing policies public safety building of and reasonably in a safe condition for busi- es responsibility provide owner a reasonable duty. nondelegable W. ness invitees is (see imposing liability basis for Thomassen al., Page Prosser and Keeton on Keeton et Diner, 426-427, supra K 152 v. J & 71, (5th § at 511-12 the Law Torts 421, 416, citing of A.D.2d 549 N.Y.S.2d ed.1984). Indepen- 41 also Am.Jur.2d See Stores, Koepke Hawley v. Hale 140 Carter 46, (1968); § at 815 dent Contractors 420, 425; Ariz. see also Prosser Miller, Annotation, Storekeep- E. Thomas ). Keeton, § ed] and Torts 71 at 509 [5th Injury Liability Personal to Cus- er's for application The of the nondele- broadest by Independent tomer Caused Contractor's gable duty exception has been those Negligence Performing Alterations or cases, here, such as where the owner owes Work, 1213, Repair A.L.R.3d [1980 96 WL higher duty particular of care to a class (1979). noted, As one court has 130877] persons special rela because of some "nondelegable duty" in this con- the term tionship imposed by statute or at common text is somewhat of a misnomer because (see Asch, 77, 83, v. 198 N.Y. law Sciolaro delegate duty free to "the owner is 263; Harrington v. 615 West 91 N.E. another, cannot but he performance 482, 106, Corp., supra at 161 N.Y.S.2d 141 thereby delegate the risk of non- avoid or 602; Ltd. Partner N.E.2d Ft. Lowell-NSS duty." Rowley, performance of the 305 100, 962; ship Kelly, supra at P.2d v. 800 466, Md. at 505A.2d at 499. Keeton, § at 511-512 Prosser and Torts 71 ed]; Torts, § 422{e] Restatement [5th ). Stores, Inc., 537 NW.2d Kragel v. Wal-Mart appeal, As is relevant to the issues on this (Iowa 1995). 699,703 long imposed a New York courts have non-delegable is not new. "It keep special duty property owners to obligation generally agreed that the as to the passageways public the entrances and premises impor- tenants, visitors, condition of the is of such building their and safe for delegated, people it cannot be and employees, tance all classes of who their occupier negligence reasonably premises will be liable for for come onto the (see eg. Murphy to whom he v. independent purposes of an contractor foreseeable Co., 692, Prosser, A.D. repair." Broadway Improvement and 189 entrusts maintenance Torts, (dth ed.1971), 860; 61, Eyck, 245 § Hume v. Ten Law at 895 178 N.Y.S. (citations omitted). 794, Ancess v. Tre A.D. 280 N.Y.S. 138 Co., argued that Realty A.D.2d 238 1965 OK

buhs alleged negligence of was an N.Y.S.2d 16 N.Y.2d affd. 318). to Thomas that 213 N.E.2d issue should determine. Citibank, N.A., 299 A.D.2d Backiel 506-507, 492, 495, Slip. N.Y. 751 N.Y.S.2d recently explained 1 17 We Porter John (N.Y.A.D. (material 2002), Op. Dept., Center, Inc., son v. Hillcrest Health omitted). and citations 16, 70 P.3d 811. well, ingress egress In Oklahoma as involved an suit between Porter to an invitee must provided a landowner dealership a car and an instrument manu- satisfy the landowner's to such entrants. injury dealership's facturer for the Travis, Healey Linen Jack Service Co. in- employee While an customer. 924, 928; Pruitt v. working manufacturer was on a strument Timme, 349 P.2d 5-6. car, the car lurched forward and ran over the customer. The customer sued the opinions argues 114 E-Z Mart dis- dealership negli- manufacturer cussing non-delegable a landowner's duties recognized regard- gence. The Court so, apply invitees do not to E-Z Mart. This is dealership failed to less whether argues, third-party negligence because 1. maintain a safe or failed to warn a defense to a claim and 2. customer, injury the sole cause of the independent contrac- Core-Mark was not employ- was the act of the manufacturer's argues tor. E-Z Mart also that Core-Mark moving gear ee selector from neutral "supplier" is a and not an con- Porter, dealership's ... drive tractor. any, negligence, if was so far removed pro T 15 Core-Mark is the business negli- from the causal nexus between its viding products floor other to busi mats and gence and the instrument manufacturer's nesses such as E-Z Mart. Once a week negligence, that the Court held that it replaced E-Z Mart's soiled floor Core-Mark merely by furnished condition which the mat, mat with a clean and retrieved the injury possible subsequent act was and a away cleaning soiled mat for at a location injury. caused the p. E-Z Tr. from Mart. Trial at 854-855. Center, Johnson v. Hillcrest Health provides pursuant Core-Mark the clean mats at n. to a contract with E-Z Mart. E-Z Mart's petition that states An examination of Porter must include the suit; is, negligent substituting indemnity "Core-Mark was fact that it was an that defective, place right mat in the of undersized door Porter involved the vindication of a previously equitable indemnity. important those door mats which had been be- Petition, provided." Third-Party liability may Amended cause the allocation of ultimate changed party pur- at 7. the motion for new trial E-Z O.R. On different for the indemnity. pose Mart relied Keel v. Titan Construction of Corporation, 1981 OK Porter, Porter, Grayson employ- argued and that "Core-Mark's breach of con premises ee of Sun Electric was on the negligence." tract is also Norton-Stuart, dealership, car while and providing to customers Porter was services general prop 116 We have noted the injury dealership car he caused an may predicate osition a tort defendant them, explained: one Frank Smith. We non-party's negligence. its defense on a Franklin, relationships parties PFL Ins. Co. v. So far as the Life Smith, concerned, it is that as n. 164. This is known as are clear "ghost liability. E-Z Mart Porter, tortfeasor" Id. negligence whose actual caused the this, accident, agent, authority, on similar in its was the servant or em- relied and ployee presence His motion for new trial. then com of Norton-Stuart. ghost theory bined the tortfeasor with Porter by was authorized Norton- Enid, v. Norton-Stuart Pontiac-Cadillac doing and he was the work which Stuart At Norton-Stuart had offered to Smith. that "Dolese and defendants have been accident, working time of he was jointly injuries liable for the sustained." Id. express at on the Smith automobile 511 P.2d at 1092. court also cited Porter shop direction of the Norton-Stuart fore- and discussed contribution between tortfea- concerned, man. So far as Smith was sors and when one defendant is constructive- right of control over Porter rested with ly pursuant liable to the of respondeat rule Norton-Stuart. was Norton-Stuart there- superior. Id. fore liable to Smith under the doctrine of respondeat superior. Indemnity right pos is a by

However, discharges duty by sessed one who owed as between Norton-Stuart Electric, clearly and Porter was Sun which, party, party but as between that agent, employee servant or of Sun Elec- another, discharged by should have been present purpose tric. He was for the the other. Porter v. Norton-Stuart Pontiac- demonstrating equipment, Electric Sun Enid, Cadillac 405 P.2d at 113. Indemni attempting agency to sell it. This ty occurs when one primary has a by pleadings admitted Sun Electric in its requires indemnity Being corpora- action. bear the whole of the burden as between tion, only through Sun Electric could act parties. primary liability certain Id. This agents, employees, its servants or fault, not the result of but a matter alloca literally therefore the act of Porter was risk, tion of which is established law. If, instance, act of Electric. Sun Smith Boats, Inc., Burke v. Webb had not been on the when Porter example, P.3d 811. For in Burke we cited forward, caused the to lurch automobile proposition: Porter for the "A master is enti injury and the had been confined to dam- tled to from the servant where the age Norton-Stuart, property to the negligence damage of the servant causes to a there can be no doubt that Sun Electric plaintiff but no fault is attributable would have been liable to Norton-Stuart Burke, ¶10, master." 37 P.3d at 814. respondeat superior. under doctrine of 121 E-Z sought Mart states that We hold that under the facts in this case, right Norton-Stuart has a to indem- protect "joining itself the trial court nity from parties Sun Electric. the action potentially other who are joint Appellant liable to the tortfeasors." Porter, 114-115, (emphasis 405 P.2d at in Kirkpatrick In Chrysler Corp., v. original). we said that: 1. Tortfea- that landowner/occupier, We said Nor- thought joint sors are of as tortfeasors when (car dealership), ton-Stuart was lable part there is some concerted action on their Smith, invitee, an for Porter's act. car The causing injury-when there is some common dealership exercised control over Porter and purpose design; or 2. Tortfeasors are classi- injured. its at the time was Smith fied as in- concurrent tortfeasors when their hand, On the other as between the car deal- dependent produce single acts coneur to a Electric, ership and Porter's act Sun was injury; joint In indivisible and 8. the case of that of Electric and not that of car Sun (or type tortfeasors some of concert of action dealership. omission) required, in while the case of E-Z Employers Mart also relied on concurrent such concert is lack- tortfeasors Casualty Company Company, v. Ideal Cement ing, single injury but a or indivisible or harm 511 P.2d 1090. In this case 1 produced. is nonetheless Id. 920 P.2d at Employers Casualty brought an action seek 126-127. ing paid indemnification for a settlement it appears arguing that E-Z-Mart be Davis, injured person, injuries Arvel for potential partial liability injury it has for the caused Ideal on the Cement upon premises liability to Thomas a plant. Dolese's concrete based Court de- tortfeasors, claim; is, joint seribed and stated dicta E-Z-Mart shares the status than one the oth same witness testified that more of tortfeasor with Core-Mark.4 On hand, trial E-Z- er its motion new complained had about the mats. customer authority discussing in Mart also relied on reported testified that she the incidents She principles its demnification and associated supervisor. to her Thomas did not seek to secondary liability. primary and We have upon impose on E-Z Mart based that, explained generally, "In the case of theory respondeat superior or some other tortfeasors, joint having no concurrent or liability. sought judg- vicarious Thomas another, them legal relation to one each of upon E-Z Mart knew or ment based what injured owing party, the same it should have known about the floor mat in an in which the and involved accident using premises. on its occurs, unanimity injury complete there is everywhere among the authorities that no adjudication €25 On of the motion for right of exists on behalf of either trial, argued new E-Z Mart that a invitor/de- other; case, in such a there is law, always, as a entitled fendant matter only primary a common and not put third-party's negli- before a one, secondary though even one gence as the cause of condition of the invi- very negligent than have been much more property plaintiff's tor's resulted v. the other." National Union Fire Ins. Co. injury. pointed have out that a landown- We . Skyways, A.A.R. Western duty may delegated not in the sense er's be omitted). (note 55. that an invitor be held liable for certain $23 An invitor is not insurer acts of its contractors. Alloca- safety not others and is placed tion of risk is on the invitor who is prevent injury occurring property. all on the inju- premises, including in control of its Taylor Hynson, 1998OK 856 thereon, ry-causing condition when the invi- Taylor "An invitor we said that tor either knew or should have known of its responsible cannot be held unless it be shown Boats, Inc., supra; existence. Burke v. Webb charged had notice or could be he/she Porter v. Norton-Stuart Pontiac-Cadillac gaining knowledge with of the condition Enid, supro; Taylor Hynson, supra. give time to effect its removal or to sufficient warning presence." of its Id. 126 A trial court has broad discretion consolidating proceedings they trial when case, judge explained 1 24 In this the trial questions involve common of law or fact. 12 to counsel that "This trial is about what the 2018(C).5 § 0.9.2001 We have indicated up defendant knew or should have known jury may when it simulta injury]." confused until 22nd [the October date sought impose premises liability neously involving addresses different claims Thomas knew, requires based what or should the same defendants and one claim known, receiving have about the mats was negligence a determination of and other does Testimony from Core-Mark. at trial re- Keuchel, 6, not. Graham 1998 OK changed type that E-Z Mart vealed 342, above, in explained 357. As we prior using mats it was two to three weeks liability demnification shift to a different injury. to the date of A former Thomas' party. par On the motion for new trial the employee peo- of E-Z Mart testified about address, trial ties did not nor did the court ple walking prior on mat the date decide, appropriate jury whether instructions injury, people "... Thomas' would walk on prevent such confusion. could it, slip and it would with them a kind {27 E-Z bit, Mart maintains on certiorari just enough go little to make them ooh independent an contrac- oops or whatever." Tr. at 211. This Core-Mark is not or statute, Although application a contribution 814. See also Sisk v. J.B. Hunt Transport, here, 0.$.2001 § we note is not issue (holding Inc., 2003 OK n. 81 P.3d "joint not stated). that use of the term tortfeasor" Burke appropriate describing party vicariously when applying § and 832. Burke v. liable another supra. 5. See note 1 Boats, Inc., 83, ¶¶9-12, Webb 37 P.3d independent said that "An tor.6 We have E-Z sor and Mart's claim that it was entitled agrees perform a indemnity, appropriate contractor is one who or jury whether control, supervi prevent jury certain service without could being instructions from sion, employer or direction of his all mat confused on Hability both claims when performance ters connected with the of the Thomas was to parties be decided. The did except product the result or service not address whether new trial was warrant- Co-op., work." Bouziden v. Elec. liable, vicariously ed E-Z Mart was and Alfalfa if if 50, 112, 16 P.3d 455. E so, whether the vicarious nature of its liabili- upon Page Hardy, Z Mart relies 1958 OK ty either or unnecessary made ¶10, 782, 784, and states that it lability new trial on E-Z Mart's to Thomas. 3 must be followed to determine whether We decline to make these determinations independent someone is an contractor. E-Z appeal. the first on instance argues applying Page Mart on certiorari A129 motion for new trial factors, parties such as whether the believe granted will not be on appeal reversed unless they creating relationship are of master the court "erred its view of some unmixed servant, and shows that Core-Mark is not an question of law and that the new trial was independent contractor. These factors are granted because of such erroneous view Page used to determine whether a Claiborne, the law." Claiborne v. contractor, employee independent or an 157, 158, quoting, Hillcrest Med entirely applicable present and are not Wier, ical Center v. 1962 Ok example, case. For E-Z mart whether argument 47. E-Z Mart's for a new trial intended to into a enter master- was that its claim of a third-party's negli- (employer-employee) relationship servant genee involved with injury-causing condi does not address whether Core-Mark is tion on its showing was a sufficient independent apart contractor from the cre liability to warrant a new trial as to its employer-employee relationship. ation of an Thomas and for the to hear its contribu (28 trial, Moving E-Z new Mart tion/indemnity claim. This is an erroneous claimed that it had a defense to granting view and the order the motion for jury. claim that was not heard new trial is reversed. defense, put succinetly forward certiorari, third-party, is that a with whom it WATT, C.J., OPALA, V.C.J., 1 30 special relationship (eg., does not have a LAVENDER, WINCHESTER contractor), employee caused TAYLOR, JJ., Concur. said, negligence. E-Z As we have HARGRAVE, JJ., KAUGER, Concur performance has a of which it in result. delegate escape not risk of to an

invitee. The motion for new trial did not OPALA, V.C.J., concurring. relating address the evidence to whether the opinion 1 I accede to the court's and to alleged mat defective was within the control disposition I made of this case. write purpose Mart or Core-Mark for the explain analysis concurrence to which providing ingress egress of E-Z Mart join persuades today's pronouncement. me to for its customers. The trial court did not 1) dispositive consider whether Core-Mark was an inde- T2 The critical and issue pendent grant contractor. for On the motion new here is whether the trial court's of new trial, distinguish "pure E-Z Mart did not between trial is rested on a error of I law."1 joint agree its claim that Core-Mark was a tortfea- that it is and that it must be reversed. "supplier" 6. The term occurs in various statutes case, not show based on the facts in this why, See, supplier may possess legal jurisprudence. of not also the status and has various uses in tort contractor. e.g., Co., Duane v. & Elec. Oklahoma Gas 1992 (discussed 97, 284, 286, OK 833 P.2d a supplier's duty dangers ordinary to in the judge's grant warn known 1. When a new-trial is rested on an product). supplier's pro- resolving "pure, simple, use of the E-Z Mart error in unmixed law," general question Bishop's vides a definition for the term but does it must be reversed. 142 by ruling preserved fit for 2) never a formal its perceived court

T3 The trial appellate evi- of trial the to offer review. In the course to allow the defendant refusal fatal- party's negligence was dence of a third possessor failed to make the land 7 judge the trial ly In this view erroneous. showing party's negligence.8 proffer facts a third clearly reasons: mistaken for two was ruling nor Neither an in limine exclusionary action will any prius nisi other a) Qua possessor, the defendant T4 land an error preserve appellate for review injured ever invitee an ex delicto owed the sought indi to nondelegable.2 possessor's rejecting tendered or that is evidence liability may apportioned not be visible proof is offered adduced unless be nonpar percentage of harm a upon the based trial, objec by an which is followed course may upon the invitee ty actor have inflicted sustained, proffer of the that stands tion short, injurious in the same event.3 record. facts then follows for the excluded solely against brought this invitee's tort suit Moreover, the en the courtroom scenario of premises the latter's possessor,4 the land in the tran- tire occurrence must be shown liability subjected comparison cannot be proceedings incorporated into seript of oral any actor or co-actor. with that of other appeal.9 for the record action or else pressed in the same Whether where, simply, party aggrieved claim possessor's own Put more the land 6 any exclusionary ruling, a third- alleged prius one to have been whether nisi very occurrence informal, actor same limine, tentative, or must formal recovery or prosecuted-after settlement judicially to elicit the evidence first seek indemnity,5 by the invitee-in common-law and, objection deemed as exeludable when contribution,6 statutory upon either or sustained, interposed and admission is its both of these theories. proffer that outlines must then make proof have been adduced had b) erroncous, evidentiary Even if T5 would objectionnot been sustained.10 party's negligence was exclusion of a third 777, 782; Blanchard, Whomble, Restaurants, Hudson v. 1956 1960 OK 298 P.2d Inc. Tulsa v. 563; Davis, 8, 554, Taylor P.2d v. 1947 OK 294 ¶ 6, 560, 355 P.2d 563. 44, 445. 301, 260, 444, OK 199 Okl. possessor is liable for all defects 2. A land exercise reasonable the land because its Regier, 7; note 7; Hudson, 8. note supra supra safety nondelegable. Evipence care for the of an invitee is Wicmore, 7; § Taylor, supra 20a note 1 36, Copeland Lodge Enterprises, v. 2000 OK Evipznce (Tillers rev.1983); § 51, McCormick on 1 695, 700; ¶ Boyles 4 v. Oklahoma Natu P.3d al., ed.1999). (John Strong et 5th at 215-17 W. Co., 163, ¶21, P.2d ral Gas 1980 OK 619 (the "independent possessor land has an Co., Myers OK 9. v. Missouri R. Pacific nondelegable duty" prevent danger from its 66; ¶36, n. 1033 n. Braden sidewalk). persons Nondele- 1348-49; Hendricks, gable the Restatement duties are addressed in ¶ Teegarden ¶8-9, CR State, (Second) §§ 416-425. of Torts (though the motion in limine trial, argued properly before the mov- made and invoked, nondelegability principle 3. If the appellate preserve review ant failed to error for case, was done in this the land possessor's again object did not once because he clearly is indivisible. to the invitee trial). testimony A in limine is elicited at motion preclude prej generally pretrial device used to possessor Having herself chosen the land questions which have no udicial statements adver- imposition as her lone of action, proper bearing case and on the issues in the plaintiff may sary not be barred in the which, jury, would interfere with if heard invoking targeted defendant's nondele- from Braden, supra impartial at 1348- a fair and trial. (indivisible) duty gable to the invitee. Teegarden, at 662. supra 5. Porter v. Norton-Stuart Pontiac-Cadillac aggrieved by court's in who is a trial 10. A Enid, 405 P.2d 109. proof sought ruling suppresses to be limine must, proceeding, during the trial 0.$.2001 introduced § 832. 6. 12 proof through a witness from elicit the desired Dictionary ed.1979) (5th de- 7. Brack's Law and, be adduced when the whom the facts sustained, as, tender, objection question the is made and "proffer" the "offer or fines a as jury- hearing party of the of the that must-out production and offer of the same of a document outlining proffer proffer. make a The consists Regier Hutchins, OK v. 1956 in evidence." genee 3) proof is error free. If of that negli- possessor's brought own claim Land action, the third in this if in genee proffered during had been trial-after actionable, regarded sepa deed is to be objection by plaintiff-the the exclusion rate, from, by ary ruling would not have been an error.15 I distinct unaffected by pressed clearly the invitee. The latter conclude, compelled am hence as the court tort,11 lies the former be viewed as in today, prius does grant the nisi new trial perhaps statutory as one for pure rests on a error of law. It cannot be contribution.13 allowedto stand.16

SUMMARY sum, In appeal,

T8 the record for this clearly

which so falls short of demonstrating evidentiary

a flawed in-trial ruling in the nisi

prius party's negligence, exelusion of third

gives unequivocal support for the trial

court's commission of a reversible error

granting the defendant a new trial.14

T judge's 9 The trial exclusion of evidence party's negli- would have shown a third for the record the nature of the evidence that plaintiff's here no record trail of either the for- given by would have been the witness had objection attempted mal she/he to an admission or of a question been allowed to answer the to which the proffer by the defendant of evidence deemed objection was sustained. It is in this manner excludable. opportunity that the trial court is afforded an ruling upon make its in-trial the issue in conten- See, eg., Boyles, supra 11. note 2. tion. The last link in the chain be followed in preservation-of-error process transcript is a eg., See, 12. Porter, note 5. supra proceedings incorporated of the trial court into appeal. qua the record for These are the sine 0.$.2001§ 13. 12 832. preserving non for review an requirements short, exclusionary ruling. appellate court excluding will not review error in evidence un- Bishop's, supra 14. note at1 563. appeal necessary less the record for reflects all steps quest were taken for the of corrective relief. proffer 15. Even aif had been made and the plaintiff/invitee's The trial court considered the ruling ap- evidence barred reviewable on request inquiry-outside presence for an peal, there would have been here no error. The jury-on admissibility third-party neg- nondelegable pos- nature of the defendant/land ligence. plaintiff any moved to exclude testi- plaintiffinvitee sessor's vis-a-vis the re- (or counsel) mony argument by showing that a presence appor- moves from the case the of an party supplied third a defective mat to floor liability. tionable tort defendant's store. The motion resisted on ground if the mat was defective, judge's given 16. When a mid-trial error testimony would show a third failed to support grant appellate new-trial and the his/her provide quality mat and that the defendant court decides there was error, no the new-trial knowledge dangerous lacked condition. Bishop's, supra order must be reversed. note 1 proffer No followed when the court sustained the at 563; Thomas v. 116, ¶11, OK request excluding proof Holliday, in-trial of a third party's negligence. 23; 171 n. v. steps Dodson Henderson None of the the defen- lawyer qualifies 71, ¶5, dant's took here as a substitute Properties, Conversely, 1065-1066. when the record dis for, of, or functional evi- equivalent ground legal closes a tenable for the trial dentiary proffer. court's action, granting its order a new trial must imposed The burden stood on the defendant land possessor proffer affirmed. Barnhart International Harvester the excluded evidence course of trial. After the trial court's initial 1968 OK 49, 1004- Company, ruling Tiger, that excluded evidence, tendered Chapman proffer. defendant's was to make There is

Case Details

Case Name: Thomas v. E-Z Mart Stores, Inc.

Court Name: Supreme Court of Oklahoma

Date Published: Nov 2, 2004

Citation: 102 P.3d 133

Docket Number: 98,979

Court Abbreviation: Okla.