West v. Cajun's Wharf, Inc.

negligence leg- may unconstitutional act of the own through an which have concurred injury/electrocution. is void and effect and contributed to the branch islative This inception. situation serves to illustrate from its wisdom our constitutional founders portion of 63 O.S. 1981 984 The above § enacting 23, 6 of our Article Section State any prescribe person purports to com- Constitution, questions concerning wherein any feet of six electrical line within contributory negligence assumption or the risk conductor assumes as matter whatsoever n ” the risk “in cases are all liability incurred law for all owner questions of fact to determined by be physical or a result of operator as contact. jury, by legislative and not dictate. Ac- legislative prescription plainly in This cordingly, I hold the heretofore quot- 23, derogation of Article Section 6 of the 1981, portion ed of 63 O.S. 984 unconsti- § Oklahoma Constitution: tutional, therefore without effect. negligence of contributory “The defense shall, assumption or of in all risk whatsoever, question fact, cases be shall, times, at all be to the left jury.”

Thus, operators such owners and as here consideration, constitutionally cannot

under legal

be relieved of the burden to defen- sively prove, fact, as a matter whether WEST, Appellant, James (or injured/electroeuted person or not an principle) truly his assumed risk of WHARF, INC., Appellee. CAJUN’S physical high contact liability for with volt- age lines or conductors. Our State Consti- No. 64439. 23, 6, supra, pro- at Article Section tution Supreme Court of Oklahoma. legislative preclusion assump- hibits the anything risk as than a of the other 19, July 1988. question summarily It cannot of fact. Rehearing April Denied respect, deemed a matter of law. this challenged portion of 63 O.S. patently unconstitutional on its § dictates, law,

face, for it as a matter of person coming within feet any six high voltage

of an line or conduc- overhead liability risk of to the

tor assumes the (and operator or therefore assumes

owner electrocution) injury physical risk of particular cir-

regardless of the facts and operator/owner’s or the own

cumstances

negligence. case, though even it is present

In the operator that the owner and/or

established line did not electrical maintain height at the legal

line time of Mr. at the statute injury, under consid-

Woodall’s still deem Mr.

eration here would Woodall employer totally his liable to the

and/or

owner/operator, meaning that Mr. Woodall employer assumed the risk of

and/or coming liability for within feet of

total six line, regardless owner/operator’s name,

give telephone firm address and number.” Defendant’s answer was: Logan Waldrup, “Yes. address un- known.” thereafter, probably in Sometime 1984, H., attorney as spring who attor- ney for the defendant had overseen the interrogatories, preparation of answers to Logan Waldrup by telephone. contacted Waldrup, retired policeman, a who was the regular guard, security defendant’s told at- torney H. that he remember did not incident, (1) and that Ed Dozier either one Seminole, appellant. Pyron, for Rob L. night (according had worked for him that Alden, F. Ronald R. Hudson and Charles (2) Waldrup) may to or have worked for III, Holloway, Dobson, Bach- Hudson & night (according attorney H.). him that to man, City, appellee. Oklahoma gave attorney Waldrup In either event H. phone (Waldrup Dozier’s also tes- number. SUMMERS, Justice. although he had an tified later unlisted Today’s case turns on a defen- whether he a phone number had filled out Form supplement response to to dant’s failure gave Cajun’s in which he W-4 Wharf interrogatories should serve as the basis along employer his address home with petition on granting a for new trial number, security his social number de- upon showing newly discovered evidence a pendents, etc. home address At that he by significant itself plaintiff prejudice and, his had received W-2 statement on one of such failure. We find that reason occasion, paycheck). Attorney H. then us the under the circumstances before Dozier, police called another retired officer. plaintiff of a new trial to the attorney eye- told H. an Dozier either appropriate sanction. employee/bouncer account witness plaintiff injured in alterca- The was an plaintiff stomping plaintiff as the fell 30, City on June at Oklahoma Dozier) (according the stairs or down Cajun’s restaurant and club as known (ac- he did not the incident remember alleging Wharf. was filed either will- Suit attorney H.). cording It uncontrovert- negligent physical by person ful or abuse supple- ed that defendant’s counsel did not (At employed by pretrial the defendant. response interrogatories ment the either plaintiff dropped the tort claim intentional furnishing phone address or number proceeded negligence.) Decem- On name, Logan Waldrup, or the address or 12,1983 plaintiff interrogatories ber served Jury phone number Ed Dozier. Interrogatory on defendant’s counsel. No. March was held 1985 and defendant’s as follows: was verdict was returned. 1, 1983, 30-July did Ca- “5. On June The above references to are Wharf, Inc. either a jun’s employee [sic] hearing May, plain- on from a held in provide se- 1985. security officer or firm to petition newly on tiff’s new trial based premises? Cajun’s If curity petition1 discovered evidence. was Wharf, employed offi- Inc. an individual plaintiff date, give April By filed then name officers cer or Dozier, employed, If a firm located Ed was was and address. provides: was rendered ... the verdict decision § 1. 12 O.S.1981 may application by petition filed in the made not with grounds for a new trial could "Where original diligence be- case....” have been discovered reasonable days than 10 after discovered more fore but are “E. for which SUPPLEMENTATION discovered OF RE- filed. trial was A responded SPONSES. who has request to a for discovery with a re- May 20 disclosed follow- sponse complete that was when it was sequence events. Ed Dozier had duty supplement made is under no night, security guard duty been response to include information there- covering Logan as he did sometimes for Waldrup. responsibility acquired, except His area of after as follows: lot, parking not the interior of the 1. A party duty is under a seasonably building. After the altercation he rendered supplement response with re- injured plaintiff, assistance to the who had spect any question directly ad- drinking. plaintiff been He told his name dressed to: (which remember), plaintiff didn’t and that a. The per- and location (which did). Prague he lived in sons having knowledge discover- In preparing for trial tried to matters, able “Logan Waldrup”, find the name defendant person expect- b. The of each given being guard security as the expert ed to called be as an witness at (Dozier) duty. guard The actual had told trial, subject the matter on which he is Prague, according him he in lived so to expected testify, to and the substance plaintiff he in concentrated his efforts testimony. of his Waldrup Prague search of and Lincoln party 2. A duty seasonably is under a County. prior response to amend a if he obtains trial, Finally, after he ran an ad in the upon information the basis of which: Prague newspaper Logan Waldrup. a. He course, response knows that the was Waldrup, of in lived unlisted Okla- made, incorrect when or City. Coincidentally, homa the ad seen was by Dozier’s son who knew his dad knew response, b. He knows that the which Logan Waldrup, and who told his dad made, longer was correct when is no plaintiff. about it. Dozier then contacted true and the circumstances are such Thus, petition on the that response a failure to amend the is came trial about. in knowing substance a concealment. That was denied the trial dutyA supplement responses may court, which reasoned that since court, imposed by agree- be order trial, found the after he “could parties, any prior ment of the or at time have discovered it” earlier. The trial court through requests supple- to trial holding in so a tradition that has followed prior responses.” (Empha- mentation of long discouraged for new trial motions added) sis evidence, newly discovered Hunt based Lawton, In 453 P.2d 1010 Gifford Hunter, 1020, (Okl. er v. 470 P.2d 1023 (Okl.1969) we set out the six traditional 1970), given trial courts broad discre requirements granting a new trial for ruling tion in on such motions. Richard newly discovered evidence: Davis, (Okl.1968). son v. 439 P.2d requirements “The are must have affirmed, Appeals Court but we trial; (2) discovered since the could been granted have certiorari. the case What not have been the trial discovered before presents opporutnity is an to re-examine diligence; exercise of due must be approach that time honored to new trials issue; (4) material to the must not be when it homes on a collision course with merely cummulative to the former evi- legal concept requires the newer that dence; (5) merely impeach must not be provide party to certain information to the evidence; (6) or contradict the former early stages other in the of a lawsuit. probably change must be such as will codified, concept Part of that newer grant- result in the event a new trial is alongside discovery provisions, other at 12 3203(E): Supp. O.S.1987 ed.” § appellate plaintiff’s peti- perhaps court noted that the de- court here denied trial fendant, discovering second element. after the existence of

tion for want of the trial, morning witnesses many reviewed Although we have times brought have the matter to at- should court’s discretion of a lower exercise Nevertheless, court. tention of it a new trial evi- only held not violated trial, have not discovered after we dence rules, spirit discovery the letter of the but newly do so where the had occasion to highly that the evidence was so relevant discovered evidence reasonably it could have served readily to the have been available verdict, change the and that correctly plantiff earlier had defendant interrogatory “[wjhere in- review material evidence amended answer clearly quiring and whereabouts of a after trial indi- name discovered litiga- justice potential eyewitness the event was not cates substantial done, non-prevailing party tion. and where the dilatory in failing was not to discover attorney's It is axiomatic that knowl- trial, proper such evidence before mo- edge requiring supplementation facts granted.” for new trial should discovery response imputed Id. at 538. Stratmoen, 250 Minn. client. Lundin v. (1957). 85 N.W.2d 828 Co., Ry. v. Penn. F.2d Seaboldt (3d Cir.1961) judge the trial ordered out discovery Since the statute set close- attorneys pretrial immediately at “to ex- 26(e), ly Rule Federal Rules Civil tracks change all medical information.” It devel- Procedure, guidance in we find the deci- oped plaintiff that had earlier been treated Discovery by the courts. sions of federal by chiropractor. a certain Plaintiff’s coun- in interrogatory requires respond- candor previously sel had advised defendant’s ing. Mfg., F.2d Long Dollar v. 561 he counsel that did not know the nor name (5th Cir.1977). supplement duty The to chiropractor, of whereabouts such but as existence, response, a it comes into once hearing it result of a later clear to became continuing obligation. a v. Chrysler Weiss plaintiff’s the that did in court counsel fact (2nd Cir.1975). F.2d Corp., Motor chiropractor’s name and lo- know both (8th Finley, In 312 F.2d 533 Edgar Subsequent testimony by the cation. chiro- Cir.1963) plaintiff, response to inter- practor plaintiff had indicated he treated rogatories seeking names and locations of for a “chronic” back ailment. The defen- witnesses, objected, admitting knowledge dant moved for Plaintiff a trial. ar- after” “just of “a” arrived witness who gued of of prejudice lack and lack due accident, claiming the information was but diligence. rejected The Third Circuit Court privileged plain- it because was received granted both and the motion for new trial. attorney attorney upon from another tiff’s statutory E Subdivision of the Oklahoma promise (plaintiff’s the “condition (as provision comparable well as the Feder- attorney) not disclose the same to 26) impose al continuing Rule does not attorneys.” or her the defendant herein litigants update on discovery burden to re- objec- plaintiff’s The court sustained sponses except expressly provided. as The proceeded. On the morn- case Advisory of the Committee on right foot; able to walk on his that the tiff. force,” used bouncer “excessive and was always The defendant has main “highly enjoyed inflicting excited. He plaintiff tained that used less than due (Tr. pain.” p. 64). Having also reviewed diligence locating Having in the witness. testimony the from the trial we are of the guard by duty been told at the scene the opinion testimony that the of Dozier officer Prague, in that his home was we find the probability a that establishes fair a differ plaintiff reasonably confined his search for ent result would occur from a new trial. “Logan Waldrup” Logan to that area. lived, wrong guard, Waldrup, policy the we now There are reasons for treat know, City. in Oklahoma Plaintiff looked motions for trial on new discov phone Logan Waldrup litigation for in the book for ered evidence with disfavor— Prague, inquired directory ending place. of assistance for some must have There County, policy deterring Lincoln and even went to the Po are also for reasons abuse Department Prague. discovery integrity in It lice was after and of the —fairness Prague paper litigation that he ran an in the itself. trial ad See Rozier v. Ford Motor finding Logan Co., (9th Cir.1978). with a reward for 573 F.2d 1346 $50.00 saw, Waldrup, (being Ed in which Dozier’s son and federal courts cautious the trials) granting required started the events which resulted in the have a new petition showing significant prejudice on the for trial. to meet new We H., attorney supplement reprehensible. In fairness to of the less version failure Nonetheless, much phone learning plaintiff right call to Dozier resulted in the who had know Dozier, duty night duty even if on was not an was on and make his own choice as to who event, eyewitness to the which would make his to call as witnesses. set in discovered evidence are forth new trial for reason for a the burden Gifford Lawton, Okl., (1969) and discovery response. 453 P.2d 1010 supplement failure Co., “(6) Sawyer grounds Fruit must be Refrigerator v. the sixth these is: Lewis Cir.1983). (6th Dozier’s testi- probably change as will result F.2d such the testimo- departure from the mony granted.” (empha- is such the event trial is new employees that we other ny opinion of defendant’s from supplied) Today’s departs sis significant shown plaintiff has find that by teachings requiring that of Gifford Dozier’s being officer prejudice only significant prejudice shown to the presenting when his case moving party, requiring rather than facts. trier of probably showing the result will different in the new trial. be obtained timely filed mo We believe that petition for new trial should be tion or grounds statutory enumeration of (1) identity location granted if and/or v. Her- is exclusive. Clark or its withheld of a witness was bert, (1928). The 270 P. 132 Okl. rules of attorney contrary to the laws or extra-statutory and majority creates a new discovery; that witness’s trial, i.e., as a ground new moving par have been such would supplementing answers sanction not significant prejudice by its ab ty suffered stage. To interrogatories discovery at sence; moving party exercised and me, extremely this sanction of new trial is part to trial. diligence prior on his own due plaintiff harsh where the record shows case the circumstances this knowledge actual of the existence opinion has met his burden. The plaintiff trial; in fact on long prior the witness vacated, Appeals of the Court of night the occurrence. The record aside, jury verdict is set judgment night alleged of the shows case remanded new trial. and the act, witness furnished tortious Dozier plaintiff with his name and address. DOOLIN, C.J., HODGES, and pre-trial At was en- the time the order OPALA, ALMA WILSON and Dozier, tered, plaintiff did not list either JJ., KAUGER, concur. guard Waldrup, security as a wit- any V.C.J., HARGRAVE, plaintiff. to be in behalf of ness called SIMMS, JJ., dissent. LAVENDER court, defendant, nor the Neither SIMMS, Justice, dissenting: call such aware that intended to any person at trial. Nor did make I respectfully must dissent. I obtaining at effort true Appeals deny the Court of certiorari he knew to exist. address witness affirming the trial court’s refusal thereby prayed plaintiffs grant a new trial as knowledge Armed with the of such a trial. absence, none witness and his seeking went a con theless to trial single before this Court issue granted a tinuance. “A will not be trial its appeal is whether the court abused ground newly discover new trial plaintiff’s discretion knowing ed evidence where he went to trial evidentiary trial after absence, steps proper of its he took unless thereon below. continuance, omitted)” (citations for a predicated ruling upon court The trial Lawrence, al., Okl., 159 v. et Lawrence diligence, finding plaintiff, with due (1945). P.2d of a could have discovered whereabouts witness, prior A if Dozier called as a named Dozier to trial. Even were witness only impeaching or has discretion on whether could trial court wide evidence, contradictory perhaps grant grounds trial of other or not to a new ma- These do not meet the test newly evidence. As the cumulative. discovered v. out, require- newly evidence. See: Lucas jority points the six traditional discovered Hockett, Okl., (1970). P.2d 237 ments for a case where counsel knew of This not of a witness which was un-

the existence opposing counsel and his client

known intentionally withheld this information purpose

from the other side. of these

discovery procedures prevent is to “trial whacking” I see no “bush

ambush”.

present this case.

I am authorized to state that Vice Chief

Justice HARGRAVE and Justice LAVEN- join expressed

DER me the views herein. WILLS, Petitioner,

Danny L. FREIGHTLINES,

ELLSWORTH MOTOR

INC., Company, Shamrock Coal and/or Fund, Respondents. Insurance State

No. 64482.

Supreme Court of Oklahoma.

Feb. 1989.

Rehearing April Denied Venters,

Christopher City, W. Oklahoma petitioner. McGivern, McGivern, Scott, Michael W. McGivern, Tulsa, respondent Gilliard & Freightlines, Ellsworth Motor Inc. Nicholas, Jr., Schneider, Fred John R. City, respondents Oklahoma Shamrock Coal Co. and/or the Ins. Fund. State HARGRAVE, Chief Justice. Before us for review is an order of the Compensation Workers’ en sus- Court banc taining authority’s the trial order determin- employee that claimant was not an Inc., Freightlines, either Ellsworth Motor Company, being or Shamrock Coal instead contractor, independent Notes Feder- plaintiff ing of trial defendant learned that dealing exceptions al Rules with same in fact had names and addresses of provide: eyewitnesses to the three accident that exception identity never been furnished the defendant. On “An is made as to the appeal having knowledge persons the Circuit Court made short work of of discover- matters, claim, “privilege” holding of the im- lower able because obvious incorrect, ruling clearly carefully portance knowing all but ana- each side wit- lyzed request for new trial based on the nesses and because information about incorrectly interrogatories. routinely The witnesses come to each law- answered plaintiff diligence. yer's Many The asserted lack attention. decisions continuing diligence on the issue of a burden have do not believe that requires due party by way in fact concerned the witness- offer a reward newspa- per es. advertisement in order to check the validity response of a interrogatory. to an for new trial for plaintiff’s diligence lack of due the trial exception Another is made for the situa- applied court pre-Discovery Code stan- party, frequently tion which a or more dards, giving effect to the new lawyer, knowledge his actual obtains statutory requirements updating infor- prior response that a is incorrect. This mation on names and whereabouts of wit- exception impose duty does not requirements on which the other accuracy prior response, check the nesses— but party should reasonably rely. be able to prevents knowing it concealment was, effect, The trial court’s bottom line attorney.” wrong to fix the blame on party. case, We believe the evidence in this Finally, question as there is the favorably prej even viewed most to the def endants,2 udice. indicates Would Dozier’s comply a failure to have made a difference? requiring supplements only with the statute event wit response. plaintiff favorably nesses that testified was entitled to himself, brother, were know name and whereabouts of the one other woman customer security guard, if the at the restaurant. Dozi defendant or its at torney er’s at the gave knew. The defendant a name new trial was retired, police that he was a but said “address unknown.” The defen disabled offi cer, duty attorney person night, dant’s then for the located that defendant that he observed the by phone. employee and talked to him Based on that bouncer/ attorney “propelling defendant Mr. conversation the learned who the West down stomped the stairs and he guard duty night probably true him as he was was, (Tr. 56); going p. down the by phone. and then talked to him Yet stairs” that he (Dozier) response supplemented right assisted because his was never swelling rapidly ankle provide any plain of this and he was un information

Case Details

Case Name: West v. Cajun's Wharf, Inc.

Court Name: Supreme Court of Oklahoma

Date Published: Jul 19, 1988

Citation: 770 P.2d 558

Docket Number: 64439

Court Abbreviation: Okla.