*1 J.C. 80OK Cоleman by this Court. dent review Co., P.2d 1158. Penney WELDON, Appellant, Marilyn Sue Hodges Stacy v. Bill 19 We said ¶ 11, Inc., Truck falling out 1313, 1317, employers “those DUNN, Individually, Charlene Charles pre immunity, as the Vertical chain’ side Shirley Smith, Individually, Dunn, Indi Act and defined 11 of the section scribed vidually, Dunn and Charlene Charles i.e., are neither those who
in section Shirley Smith, Poteau and or Dunn d/b/a worker, employer of the immediate Beauty College, Appellees. principal employer intermediate or nor the No. 88166. are not sec employer, injured worker’s compensation. for workers’ ondarily liable of Oklahoma. Neither, however, they immune from are liability.” law common July judge 20 The trial determined the Workers’ hable under defendant Act, law not under common
Compensation Rickey Bill find thаt defendant liability. We subject compensation to the workers’ is Thus, employer. principal § as a act judg- to enter error for under the work- the defendant against ment provide failure to compensation act for ers’ Plaintiffs compensation insurance. workers’ claim, simply court any, district against who is action one law tort
common pro- § 44 85 O.S. employer. Title not his may pursue a com- employee that an vides against parties who action third mon tort law employers under to be are not considered Accordingly, we §§ Title 85 O.S. finding the trial court’s reverse Rickey plaintiff as Bill liable to defendant com- the workers’ employer under principal act, remand to the district pensation judgment for enter with directiоns to liability under 85 Rickey alleged on the Mr. stay this Court § 11. The entered O.S. January dissolved. order WITH REMANDED AND REVERSED DIRECTIONS. V.C.J., SUMMERS, C.J., KAUGER, SIMMS, LAVENDER, HODGES, WILSON, JJ.,
OPALA, concur. ALMA ¶ WATT, J., in result. concurs *2 Berkowitz, Firm,
Lewis A. Berkowitz Law Inc., Tulsa, Appellant Marilyn for Sue Wel- don. Gudgel, Stauffer,
Tom H. III and Neal E. Stauffer, Rainey, Hathcoat, Tulsa, Gudgel & Appellees Charlene Dunn and Charles Dunn.
Jerry Fraley Holleman, Virginia C. Cathcart, Fraley, City, Gofton & Oklahoma Appellee Shirley Smith.
SUMMERS, Vice Chief Justice. Beauty college student claims to
have
helping
her back
a client return
sitting position
washing
the client’s
hair.
college
She sued the
and its owners
injuries.
District
only
Court
agreed
Appeals
5 The
of Civil
correctly
the trial court
is whether
question
summary judgment
proper
to her
for the defen-
summary judgment
ordered
did,
fiduciary duty, profes-
of breach
and affirm.
conclude that
We
dants.
liability,
products liability. How-
sional
suit,
alleg-
Marilyn
Weldon filed
Sue
*3
ever,
factual
the court held that there were
chair
injured
the salon
was
when
ing that she
remaining that could not be deter-
issues
a,
as
of the Poteau
operating
student
she was
law,
as a matter of
and reversed and
mined
properly. She
Beauty College failed to work
premises
regard to the
liabili-
remanded with
with the
the hair of a woman
had washed
theories. We
ty and failure-to-instruet
reclining position. The chair did
in a
chair
granted certiorari.
back,
previous injury
spring
and due to
not
question
first to
of
helped
upright
We look
to be
into
the client had
court
in its
injured
whether
the trial
was correct
claims to have
her-
position. Weldon
regard
professional liability
ruling with
positioning
upright.
the client
She
self while
fiduciary duty
of
theories. These
the chair
locatеd in close
and breach
claims that
was
table,
pled in
petition.
were not
the first
and that
proximity to manicure
admittedly
petition
was
un
maneuvering
table as she lifted
amended
around this
filed,
customer,
not
timely
She
and defendants did
consent
her back.
her
she twisted
adequate
recog
amendment.
trial court
given
not
to such
also claims that she was
petition
nized that the amended
was untime
lifting
person into an
instruction about
advisement,
ly,
the matter under
and
position. Defendants do not concede
took
upright
summary judgment under these the
alleged,
granted
for
she was
as
ruling
trial court’s
was correct.
we take
version as
ories. The
judgment purposes
her
Crane,
untimely
petition,
An
filed and filed
amended
true. Flanders
(Okla.1984).
op
or
of
withоut leave of court
consent
Echols,
nullity.
posing party, is a
Hunter
petition
3 In her
she stated three theo-
(Okla.1991).
450, 452
OK
(2)
(1)
liability,
recovery:
premises
ries of
It must
treated as
it was never filed.
(3)
products liability
negligence. She
petition,
attempted
later
to file an amended
(1)
recovery
recovery
sought
un
of
Weldon also
stating as additional theories
liability
liability
and the
professional
breach of fidu-
der theories
College’s
give adequate
failure
in
ciary duty.
petition
Beauty
was not
This amended
court,
reversing
filed,
any
the trial
timely
the record is devoid
structions.
language
Appeals
relied on
granted by
trial court to- file it. Court
Civil
leave
petition
amended
rather than the
used
¶ 4
The trial court held that
cause
original petition. The court found that Wel
fiduciary duty
for
was not
action
breach
Beauty
alleged
College
had
don
filed,
timely
the cause of action for
duty
to the Plaintiff to warn
“owed
liability was in substance the
professional
prop
lifting requirements
and to
Plaintiff
fiduciary duty, and that
same as breach of
erly
the Plaintiff
lift so
to avoid
teach
otherwise,
existed.
no such cause of action
lifting requirement” and
of the
the hazards
premises liability, the
theory
As
recklessly
negligently
failed to
“wilfully or
(in
held that the claimed defect
trial court
Plaintiff how lift and warn
teach the
chair)
obvious,
open
barring
thus
Be
lifting requirements.”
Plaintiff of the
any recovery. The trial
held that Wel
court
appel
allegations
factual
cause of these
liability
products
don failed tо state
claim
late
reversed and remanded.
for failure to
and that her cause
action
1
¶ 8 Reliance on these factual asser
supported because there
instruct was not
petition
only
tions
the amended
duty
Sum
found
was no breach of
defendants.
unsup
allegations
pleading
in a
mary
granted and Plaintiff
error. Mere
judgment was
by evidentiary
response
ported
appealed.
liability theory,
regard
products
we do
party
with
resolution
1. Because neither
asserts error
Appeals’
it.
not address
trial court's or Court of Civil
instructor,
will
beauty college
motion
that as her
had
good.
duty
if it is otherwise
her
defeat the motion
instruct
on how to lift clients.
Stephens v.
Motor
Yamaha
¶ 11 Both of Weldon’s theories
(Okla.1981) (once party
career.
duty
The law casts on the invitor the
keep
prem-
exercise
reasonable care
remaining
10 Weldon’s
reasonably
ises in a
safe condition and to
recovery
negligence.
are based on
She
warn invitees of
conditions
are
part
beauty
snares,
claims
traps,
nature of
dangers,
hidden
college operator
ways.
pitfalls
occurred in two
the like.
All normal or ordi-
First,
invitor,
she claims that
an
nary
the beau
prem-
risks incident to the
use
ty collegе
dangers,
had a
to warn her
ises are assumed
the invitee. No liabil-
chair,
malfunctioning
such as the
ity
any injury
which were
arises
resulting from
Second,
open
not
and obvious.
dangers
apparent
she claims
readily
which are so
theory relating
tionship”
Both
are
Rogers
assertions
found
we said in
at P.
not one of
fiduciary duty.
to breach of
urged
dissenting opin-
master-servant as
ion.
parties [Beauty College
3. "The
student
beau-
undisputed
tician]
stand
an
invitorinvitee rela-
instance,
in this
reasonably ex-
chair malfunctioned
would
that one
observable
Moreover,
injury leaving
prior
the client had suffered
pect
to be discovered.
them
up
haz-
not
known but obvious
her in a
where she could
sit
to remove
condition
failure
together
or recоnstruction
All
factors
led
alteration
alone.
of these
ards
duty.
no breach
injury.
constitutes
Weldon’s
explain
what
on to
1034. We went
Id. at
of facts could
Such a combination
depends on the
danger
constitutes a hidden
reasonably pru-
by a
not have been foreseen
on the use made
surroundings and
physical
beauty college.
beauty college
ex-
dent
citing
injury.
time of the
of them the
ordinary
instructing
Weldon
care
ercised
Harris,
Henryetta Construction Co.
pressure of
career
cosmetolo-
about the
(Okla.1965);
see also
P.2d 522
OK
injury.
possibility
of back
We
gy and
Travis,
Healey Linen Serv. Co.
Jack
given
materials and instruction
note that the
(Okla.1967).
Beauty College
that the
to Weldon establish
general circum-
familiarity with the
student’s
informed its studеnts as
and its owners
automatically
transform
does
stances
dangers
posture and back strain.
of bad
defect;
open
and obvious
danger
into
Information for enrollment
Admission
by objective,
judged
the condition
rather
*5
she received said:
subjective,
not
standards.
Cosmetology
Disadvantage
Careers
¶
Here,
was not a
shampoo
chair
mentally
physically
Cosmetology is a
Weldon,
she
danger as to
because
hidden
profession
requires
that
dex-
demanding
work all the time.
that the chair did not
knew
always the
patience. There
terity and
placement of
that
Weldon asserts
foot,
allergies,
leg
possibility of chemical
a
proximity
to manicure table
chair
close
problems.
back
However,
dangerous
сreated a
condition.
pitfall.
condition
this was not
hidden
foreseeability
possible
strain is
back
close to the
manicure table was
She knew the
warning.
clear,
subject of a
and was the
in-
premises
had been
shampoo chair.
¶
Ordinary
degree
is that
of care
care
to be
spected a
and were found
month before
“prudent persons engaged in the same
reasonably
in a
condition.
safe
usually exercise under simi
kind of business
¶
As
second asser
for Weldon’s
Phillips
Co.
lar
Petroleum
circumstances.”
beauty college
negligent
tion that the
(Okla.
Price,
lifting of
give
about the
failing to
instruction
1956).
College
ordi
Beauty
exercised
customers,
concept of
again look to the
we
instructing
possibility
nary
on
care
аuthority impos
duty.
us to no
Weldon cites
posture.
teaching good
back strain and
upon
such as this
ing
duty
a defendant
such
beauty colleges
authority holding
no
findWe
one,
any.
uncover
nor
our research
does
warranting
further
higher
to a
standard
particular circum
that
Plaintiff claims
arising
possible
to all
events
instruction as
shampoo
intermittently working
stances —an
of circum
an infinite combination
under
injured
foresee
an
client —were
chair and
stances.
able,
duty
had
and that the defendants
¶
authority which
Having found no
how to handle such
instruct
about
her
place
on this defendant
would
situation.
up
sit
an
client
as to how to
instruct
¶
simplifi-
disagree with Weldon’s
15 We
circumstances,
in the ab-
under these
undisputed facts
facts. The
cation
nature
defect of hidden
sence of
intermittently working
that while the
show
injury, we
contributing to the
causing or
previously injured
shampoo chair and the
correctly grant-
the trial court
conclude that
injury,
her
these were
contributed to
client
re-
judgment
the Plaintiffs
ed
contributing
The undis-
factors.
only
not the
maining
as well.
chose the
puted
that Weldon
facts show
¶
va-
opinion is
malfunction,
Appeals’
chair,
she
19 The Court
that
knowing of
the District Court
location,
judgment of
and the
cated.
of the manicure table’s
knew
County
table,
is affirmed.
of Leflore
manicure
she
not move the
did
¶
SUMMERS, V.C.J.,
HODGES,
shampooing
tion after
hair.
The salon
JJ.,
LAVENDER,
WATT,
using
chair she was
HARGRAVE and
defective. When
back,
spring
failed to
Weldon twisted her
concur.
body in an effort
to lift the chair. That
¶
SIMMS, J.,
concurs
result.
precipitated
movement
injury.
a serious back
C.J.,
KAUGER,
and ALMA
Evidentiary material indicates that
stu-
other
WILSON, J.,
part,
in part.
concur in
dissent
beauty college
dents at the
experi-
also had
problems
enced similar
with the same mal-
OPALA, J.,
dissents.
functioning chair.
ALA, Justice, dissenting.
OP
¶ 5
gave summary judg-
The trial court
today
1 The court vacates
the Court of ment
to the
opinion
defendants. COCA’s
Appeals’
opinion
[COCA]
Civil
and affirms
dispositive
pressed
reversed. The
issue now
prius summary judgment
nisi
for the defen-
on certiorari is whether the
ma-
dants in a
case. COCA’s reversal
terial before us will
inference
of that
rests on its conclusion that
injury.
the defective chair caused the
Be-
disputed
certain
issues
the case could
I
sup-
cause
am convinced that
the record
view,
рorts
dealt
I
Basing
with as matters
law.
COCA’s
deny
would
certiorari.
pronouncement
today’s
independent
on an
II
record,
analysis of the
the court holds that
by relying
COCA erred
on assertions of fact
¶ 6 THE EVIDENTIARY MATERIAL
only
petition.
found
in the amended
CLEARLY SHOWS THAT THERE
¶ 2 I
from the
recede
court’s view. Our
MAY HAVE BEEN A BREACH OF
sole
opinion
task here
to review
THE
COCA’s
MASTER’S COMMON-LAW
*6
DUTY
THE
conformity to the
TO
PLAINTIFF
appli-
record and to the
WHO
THE
WAS
BEAUTY
cable
SHOP’S
law. Adverse
is
relief
APPRENTICE-SERVANT
due
the adversary
movant’s
when
fails to
respond by providing
prius
the nisi
court
A.
with
undisputed
reference to some
critical
STUDENTS,
fact divinable from the
material offered
LIKE MEDIEVAL
APPRENTICES,
party.
prius
either
IN
Just as the nisi
STAND
is
do,
enjoined
THE SAME COMMON-LAW
appellate
to
so too
tribunals
TO
STATUS
THE
bear
MASTER
duty (prescribed by
an affirmative
AS SERVANTS
Stores, Inc.1)
Spirgis
standards of
K
v. Circle
test all
¶7
in
tendered
apprentiсe-master bond,
The
a com-
summary process
legal sufficiency
for its
relation,
mon-law
variant of master-servant
sought
the relief
the movant.
is an
Anglo-American
ancient institution of
law which is far from alien to the Oklahoma
¶
Summary process
does not autho-
legal system. My search of the case law
rize
judges
abridge
party’s
trial
either
yields
authority
no Oklahoma
in which either
right
by jury
constitutional
ato
or to
the ancient form of apprenticeship or its
modify the essence of a
negli-
common-law
counterpart
judicial
modern
ever
ex-
received
gence claim.
It is for these
that I
reasons
position.
institution,
em-
firmly
which is
today’s opinion
am
unable
accede to
and to
law,
statutory
given recog-
bedded
our
judgment.
court’s
nition in Hillcrest v. State Industrial Court.2
inapplicable
There the court held it
because
I
injured
compensation
student-nurse —a
THE ANATOMY OF LITIGATION
any
found not
occupy
claimant —was
sta-
person against
tus vis-á-vis the
whom she
[Weldon],
Marilyn
plain-
Sue Weldon
pressed her claim.
below,
tiff
while
student at a
beauty
¶8
college.
who,
Weldon was
student,
One
as a
rendering
is
assisting
posi-
a customer into an upright
teaching
services to a
institution for
lat-
(approved
1. 1987 OK CIV APP
3.
v. Wilson Memoriаl
On Torts
Keeton, Dobbs, Keeton,
(1976);
(W.
91,
225,
D.
& D. Owen 5th
N.C.App.
R.
226
226
Galli
S.E.2d
N.Y.,
ed.1984)
by
these words
gan
Hospital
28 A.D.2d
the author defines
v. St. Vincent's
886,
(1967);
592,
Heget
negligence:
liability
to the
master’s
servant
279 N.Y.S.2d
615,
189, A.2d
Hospital,
Christ
26 N.J.Misc.
specific common
and Servant: The
"Master
(1948).
protection of
for the
law duties
the master
commonly
fol-
classified as
his servants were
Inc.,
Pie,
4.
P.2d
Brewer v. Bama
1)
place
duty
provide
a safe
lows:
502;
Cameron,
OK
Hinson
work.; 2)
appliances,
provide
safe
Graveson, Status
32;
see
557 n.
...”
tools for
work
59.
51 and
Common
Law,
IV sought. upon Spirgis Nor does call a non- ¶ 14 NEITHER UNDER THE CODE OF identify movant which CIVIL PROCEDURE NOR UNDER summary judgment is Spir- resisted. What THE PRESENT PLEADING CODE gis require independent does is an sua REQUIRED THE IS PLAINTIFF sponte judicial probative examination of the TO IDENTIFY SUPPORTING THEORIES OF LIABILITY deciding material with a view whether disputed present. plaintiff fact issues are No undisputed 15 The critical in Wel (upon don’s which is required theory upon to name the procеdural regimes 11.Neither of the two Texas 192 Okl. *8 statutory English the (see followed abolition of the syllabus by the court no. 4 137 P.2d system writ of Code Civil Procedure which 935); Slusher, 53, at v. Silver —the OK 770 P.2d governed Pleading us until 1984 and the Code 878, teachings Spirgis, supra 881. Under the which has stood in force since that time—has 684, prius 1 at judge’s note it was the nisi func required plaintiff plead theory ever the that evidentiary to test tion the material to decide liability apply sought that will to the claim to be theory, any, support plaintiff’s what if would theory's vindicated. No can ever be with- benefit claim when its essence and breadth have been party pleading plaintiff held whose identi- from probative measured documents submitted pretrial At none. conference at or some fies so, in the сase. Had the trial court it would done procedural stage may other the court ask that the compelled have been to conclude that the eviden- pleader disclose what theories are relied on to tiary disputed demonstrates cause of who, press must, party plaintiff the claim. A as one action in for master’s breach responded judge's has to a call for disclo- provide appliance to the servant with a safe may sure then be to the theories chosen confined for work. the claim. This was not done in this case and for plaintiff any theory. remains uncommitted to § 12. 12 O.S.1991 688. regime legal respon- It is the substantive-law sibility theory, any, that determines what will proof. Royalty fit the Spirgis, supra adduced Oil Doss Cо. v. note 1 684. 13. issues, defeating ble not a device for sought.14 enough It to state fact relief is is opponent’s by jury. Only to right did not trial general nature of the claim. Weldon evidentiary entirely explicitly have to state —either material which elimi- briefs on the defen 'pleadings testing by she relied all nates trial some or mate- —that from duty. dant’s of a master’s provide legitimate sup- breach rial issues will relief, port prius summary nisi use of ¶ respond to at nisi 16 Weldon’s failure part. or in All inferences to be drawn whole prius by precise trial refer- giving the court evidentiary from material must be viewed parts probative materi- critical ence light nonmoving in the most favorable to enough is supported her claim not al that party.17 The function is plea judgmеnt sans movants’ sustain the affidavit, stage not to set the for trial but evaluating plea for When a defendant’s trial. summarily terminating to afford a method of duty- judge summary judgment, is (or eliminating a case from trial some of its independent make an examination bound to issues) only questions when of law remain.18 evidentiary content the record presence of nontriable facts determine very governs 18 The same test the claim. that defeat summary adjudication process Oklahoma’s applies also when the entertains a de-
V plaintiffs evidence.19 fendant’s demurrer demurrer, passing on defendant’s When STATE PROCESS SUMMARY evidence; weigh plaintiffs cannot summary process 17 In state the focus conflicting proof disregarded all is be plaintiff be might is not on facts а able accepted plaintiffs must evidence be true. (i.e., prove legal sufficiency of at trial proof support disputed If there adduced), rather evidence that could but claim, plaintiffs must be elements submit- material, on whether the viewed jury.20 ted to a (a) whole, undisputed facts on as a shows (b) issues, some all material facts
support single that favors the inference VI quest Summary pro- movant’s for relief.15 special procedural track to be con- cess—a ¶ 19 FEDERAL SUMMARY acceptable probative with the aid of ducted JUDGMENT PROCESS undisputed ma- substitutes16 —is a search Gauged by the federal single but a terial facts would by the “trilo- in the movant’s favor. It is a standards —refined inference up of U.S. Court’s identifying isolating gy” nontria- made method for 112, Hоspital, explanation why plaintiff v. OK Oklahoma Memorial 14. For an need 35; Holman, 765, liability plead any theory Gray v. for the claim that P.2d 773 n. pressed, supra (quoting see note 11. from OK 909 P.2d 781 n. Inc., Seitsinger Dockum Pontiac Leitner, 1077, 1080-81); Hulsey v. Ins. Mid-America Davis Preferred n. An OK 777 P.2d order that 782 P.2d 926-27. solely disposes grants summary relief of law questions. de It is hence reviewable novo. An Better, 17. Carmichael *9 indepen plenary, appellate court itself claims for 1051, 1053. authority to re-examine dent and nondeferential legal rulings. Kluver v. Weather a court’s Com’rs, County v. Carter Russell Board of 18. Auth., 85, 1081, Hospital 1993 OK 859 P.2d ford 492, 80, 503; County, OK 952 P.2d Bowers 1997 pro summary adjudication 1084. Oklahoma’s 312, 316; 24, Wimberly, v. that cess is but not identical to followed similar Co., 128, Young Stuckey Explor. 586 v. 1978 Regina judicial system. the See Salve in federal 726, P.2d 730. 231, Russell, 225, College S.Ct. 499 U.S. 111 1217, 1221, (1991). L.Ed.2d 190 113 27, 769 Ins. Roach v. Atlas Life 19. 158, 163. ‘Acceptable probative substitutes' are those 16." 'evidentiary may in be used materials’ 20.Roach, supra at summary process adjudication.” 19 163. note the lackson 1282 Catrett,21 Corp. jury in Celotex could rea- teachings judge inquire whether a Inc.,22 Lobby, Liberty and Mat sonably “clearly
Anderson
the evidence
convinc-
find
v. Zenith Radio
sushita Electric Industrial
particular
ing” as to a
issue. The Court
might
Corp.23
claim
rejected the notion that a nonmovant could
—Weldon’s
pass
not
muster
up
and
hence end
summary judgment and
its
avoid
meet
bur-
summary judgment for the defendant.
process
by showing
den
the mere
dispute
¶21
existence of “some” factual
between
trilogy
1986
announced
Court’s
nonmoving
Rather,
party
the
precise
parties.
the
determining
for
the exis-
standards
Matsushita,
identify
dispute
genu-
must
a
that is
genuine
fact issue.
tence of
factual
opened
trilogy,
the
the
to a
first
the
door
ine and involves a material
issue. Under-
degree of
in han-
much-increased
discretion
not all
scored was the notion that
Lib-
summary judgment.24,
dling quests for
“genuine” disputes
conflicts
constitute
erty Lobby
further
that latitude
extended
parties
Nonmoving
fact.27
can
establish
allowing the directed-verdict
standard
as-
probative
genuine
by tendering
issue of fact
determining
genuine
sist in
existence of a
“rea-
material
that would be sufficient
Liberty Lobby
In both
material
issue.25
jury”
sonable
to return a verdict in favor of
Matsushita Court made it
more
nonmoving party.28
nonmoving party
having
for a
difficult
—
¶22
persuasion
at
Commentators have noted
burden
trial —to meet
its
jurisprudence
probative
summary judgment pro-
trilogy’s
the aftermath of the
onus
opinion requires
post-1986
cess.26
The former
the trial
federal
317, 321,
2548, 2552,
Liberty Lobby
21.
U.S.
106 S.Ct.
25.
In
Court stated that
(1986).
L.Ed.2d 265
Celotex marked a shift
"judge’s
weigh
function is
himself to
proof
summary practice.
the burden of
in federal
evidence and determine the
truth of
matter
There, a
widow sued manufacturer
for the
genuine
determine whether there is a
issue
asbestos-related death of her husband. The Cel-
22,
249,
Supra
trial.”
note
477 U.S. at
Corporation
summary judgment
otex
moved for
words,
at
S.Ct.
2510-2511.
In other
produce
on the
based
widow’s failure to
evidence
sufficiency
must evaluate the
of the evidence
prod-
exposed
that her husband had been
to its
credibility.
weighing
without
Id. 477
аt
U.S.
company argued
ucts. The
response
the widow’s
255,
1283 constitution, they in the can- judiciary’s into enshrined state clearly intrusion constitutes (impaired abridged) by abrogated not be exclusive- formerly viewed as almost an area judicial action32 legislative or According to province.29 ly jury’s within the Liberty Lobby writer, expansive the one ¶25 system, to Oklahoma’s In contrast about civil teachings grave raise concerns gov- right jury to a in federal courts is right jury to a trial.30 litigant’s cоnstitutional by to the erned the Seventh Amendment standards say it to that these primary purpose The Suffice Constitution.33 U.S. apply to do not state- Supreme U.S. the Seventh Amendment quite is not discussed the reasons be court cases keep § as of Art. 2 19. It is to same in Part VII. infra effect the common-law line demarcation those of the duties of court and
between
VII
Except
by
jury.
as modified
the federal
itself,
right
by jury
to trial
constitution
RIGHT
23 THE CONSTITUTIONAL
English
as
stood in the 1787
was frozen
IN A
TRIAL BY JURY
CIVIL
TO
jurisprudence.
trilogy’s
1986 reformula-
LAW
UNDER OKLAHOMA
CASE
judgment proce-
tion
traditional
significant
judgment analysis
departure
marks a
from the
Today’s summary
24
dure
judicial
past
impermissible
inter-
Court’s
Seventh-Amend-
an
U.S.
constitutes
juris-
While the latter’s
process.
fact-finding
in the
It vio- ment construction.34
vention
prudence
upon
binding
is indeed
right
plaintiffs
lates the
fundamental-law
federal
courts,
sum-
it does not
2
jury
of Art.
by
under the standards
affect
adjudication
mary
applied
be
in the state
19,
keeps
§
“invi-
Const.31 That section
Okl.
Because the Seventh Amendment is
courts.
drawing
olate” the common-law norms for
them,
against
re-
states
is a
at which submission
the triers
line
unenforceable
utterly
are main
restraints.35
party’s
Because these standards
due.
free from
Hazard,
Comment,
functionality.
Holsenpiller,
F.
&
Anderson v.
James G.
29. Dan W.
Civil
Pro-
8.2, 8.3,
(3rd ed.1985);
Lobby,
§§
8.11
5 C.
Liberty
Decision or
Inc.: Federal Rules
cedure
U.Colo.L.Rev.933,
Miller,
Case,
Wright & A.
First
59
Amendment
Federal
Practice And Proce-
(or
§
312.
its historical
92 at
If
claim
953-55.
dure
law,
jury
analogue)
at
in 1791 was one
right.
generally available to the
as of
claimant
Hotsenpiller, supra
at
note 29
953-54.
30.
412, 418,
States,
v.
481 U.S.
107 S.Ct.
Tull United
1831, 1835,
(1987).
the claim
movant in the
unless the
independently
has
examined the
of
record and determined an absence materi-
jury.
al fact issues submissible to the
Under
ents a servant’s against claim for negligence master failing provide appliance a safe for her use
at work.
¶ 27 prius ap- Because Weldon’s nisi pellate presence reliance on the of material amply fact issues supported by the case probative legally record’s material and is suf- ficient a basis for COCA’s reversal of summary judgment, deny I would certiorari. provided Weldon claims she was a defective appliance chair —an whose malfunction caused her harm. Her claim that the master knew or have should known about this condi-
tion
unrefuted
the defendants’ еviden-
tiary documents.37
record,
28 On
this
is clear that the
Appeals
Civil
did not err when it
explanation why
plaintiff
36. For an
dealing
need
force is neither an
bar
recov-
absolute
identify theory
liability
support
that will
ery
nor
barrier to the court’s submission of a
claim,
pressed
supra
see
note 11.
jury’s
claim for
evaluation of the
Nicholson,
legal responsibility.
actors’
Brown
plaintiff's knowledge
As for
that the chair
319, 322; Byford
935 P.2d
v. Town
using
she was
court invokes
was indeed defective—which the
Asher,
45, 54,
J.,
(Opala,