Brewer v. Murray

Citation292 P.3d 41
Decision Date19 November 2012
Docket NumberReleased for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,No. 109,282.,109,282.
PartiesAshley A. BREWER, Plaintiff/Appellant, v. Jerry Leon MURRAY, Defendant, and Vicky Dyanne Jackson, Defendant/Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

OPINION TEXT STARTS HERE

Appeal from the District Court of Payne County, Oklahoma; Phillip C. Corley, Trial Judge.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Barry R. Davis, Atkins & Markoff, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Rodney D. Stewart, Stewart Law Firm, Oklahoma City, Oklahoma, for Defendant/Appellee.

JOHN F. FISCHER, Chief Judge.

¶ 1 Ashley Brewer appeals the district court's order granting the motion for summary judgment filed by Vicky Jackson in Brewer's negligence claim. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S.2011, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Because we find that Jackson owed Brewer a duty of care and that there are disputed issues of fact concerning whether Jackson breached that duty and whether any breach caused Brewer's injury, we reverse the judgment entered in favor of Jackson and remand for further proceedings.

BACKGROUND

¶ 2 Brewer was thirteen years old at the time the incident occurred on which her claim is based. Jackson's daughter was fourteen. Brewer was invited to spend the night in Jackson's home. Brewer's mother contacted Jackson to confirm the invitation and to provide certain rules that her daughter was to follow. From this conversation, Brewer's mother understood that Jackson agreed to those rules and would be at home to supervise the girls. After Brewer's father dropped her off at the Jackson home, Jackson went to the lake and decided to remain there overnight, leaving the two girls alone and unsupervised. Jackson did not inform Brewer's parents that she decided to leave the girls alone. Later in the evening, Jackson's daughter called her mother and confirmed that Jackson would not return home that night. The girls then drank alcohol that they found in Jackson's home and made plans to invite some older male acquaintances of Jackson's daughter to come over. The young men, who were in their late teens and early twenties, brought more alcohol to the home. The girls became inebriated and had sexual intercourse with two of the men. Jerry Murray, the man with whom Brewer had intercourse, was nineteen at the time and was subsequently convicted of statutory rape.

¶ 3 Within one year of turning eighteen, Brewer sued Murray and Jackson. Brewer alleged three theories of recovery against Murray based on the sexual assault. In her claim against Jackson, Brewer alleged that Jackson “was grossly negligent” in leaving Brewer and Jackson's daughter “completely unsupervised.” She further alleged that Jackson's conduct “put [Brewer] at risk and was a direct cause of her sexual assault and resulting damages which could have been prevented by Jackson's timely intervention.”

¶ 4 Jackson sought summary judgment arguing, in essence, that she did not have a duty to protect Brewer from criminal conduct and that Brewer's injuries were caused by her own intentional conduct and Murray's criminal conduct rather than by any of Jackson's acts or omissions. The district court found in favor of Jackson in both respects. Brewer appeals that ruling.1

STANDARD OF REVIEW

¶ 5 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment. A motion for summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Id. We review the district court's grant of summary judgment de novo.Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, this Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. The evidence and the inferences to be drawn from the evidentiary material must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co–op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 (approved for publication by the Oklahoma Supreme Court). Consistent with the holding in Spirgis,section 2056 now provides in subparagraphs C and E that even absent dispute regarding the material facts, summary judgment may only be granted if “the movant is entitiled to judgment as a matter of law” and “if appropriate.” “Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.” Copeland, 2000 OK 36, ¶ 8, 4 P.3d at 699. [T]o avoid trial for negligence, defendants must establish through unchallenged evidentiary materials that, even when viewed in a light most favorable to plaintiffs, no disputed material facts exist as to any material issues and that the law favors defendants.” Iglehart v. Bd. of County Comm'rs of Rogers County, 2002 OK 76, ¶ 9, 60 P.3d 497, 501 (emphasis in original).

ANALYSIS

¶ 6 Most of the material facts in this case are not disputed. Brewer was invited by Jackson's daughter to spend the night at Jackson's home. Jackson knew of and approved the invitation. Brewer's parents instructed her not to spend the night at a friend's house unless a parent was present, not to stay in a home where boys were present without adult supervision and not to drink alcohol. Brewer's parents had no knowledge of any prior incident when Brewer violated these rules. Brewer's mother conveyed these rules to Jackson, who agreed the rules would be followed while Brewer was in her custody. Prior to this incident, Jackson had no knowledge that her daughter had drunk alcohol or was sexually active. Prior to this incident, Jackson did not know her daughter had any interest in boys, other than a crush on a boy her age, and did not know her daughter knew any older men. Jackson was present when Brewer was dropped off but left later that evening and spent the night at her lake house without telling Brewer's parents that she was leaving the girls alone. Jackson was available by cell phone and could have called a neighbor or relative living nearby to check on the girls. There was alcohol in Jackson's liquor cabinet that the girls consumed, and as a result became intoxicated. During the evening, Jackson's daughter called to make sure Jackson would not be returning home and told Jackson everything was fine. After this call, Jackson's daughter called a twenty-year-old male she knew and invited him over. He and several friends arrived, including Murray, and provided the girls more alcohol. After drinking this alcohol, the girls went into the back yard and jumped on a trampoline while topless. Later, both girls had sexual intercourse.

¶ 7 In her motion for summary judgment, Jackson asserted that, as a general rule and absent some special relationship, she had no duty to protect Brewer from Murray's criminal conduct. Jackson further asserted that there was no special relationship between herself and Brewer justifying an exception to the general rule. Based on these assertions Jackson concluded, and the district court found, that a special relationship did not exist and that she owed no duty to Brewer to protect her from Murray's criminal conduct.

¶ 8 The dispositive issues in this case are whether a person who takes temporary custody of a child has any duty to protect that child from the wrongful conduct of third parties and, if so, the scope of that duty. The Oklahoma Supreme Court has not previously decided these issues. Nonetheless, it has decided issues sufficiently similar to convince us that the answer to the first question is yes. For the reasons discussed in this Opinion, we find that Jackson was not entitled to judgment as a matter of law based on either the lack of duty regarding a third party's wrongful conduct or the lack of a special relationship with Brewer.

I. Duty

¶ 9 As stated, Brewer's theory of recovery against Jackson is based on negligence. Any claim of negligence depends on the existence of a duty and the breach of that duty. See Wofford v. Eastern State Hosp., 1990 OK 77, ¶ 8, 795 P.2d 516, 518. “Whether a duty exists is a question of law....” Id. ¶ 22, 795 P.2d at 521. The general statement of one's duty is set out in 76 O.S.2011 § 1: “Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights.” Further, Oklahoma has:

long recognized that without regard to the relationship of the parties, a person owes a duty of care to another person whenever the circumstances place the one person in a position towards the other person such that an ordinary prudent person would recognize that if he or she did not act with ordinary care and skill in regard to the circumstances, he or she may cause danger of injury to the other person.

Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 13, 160 P.3d 959, 964 (citing Lisle v. Anderson, 1916 OK 92, 159 P. 278). “Whenever a person is placed in such a position with regard to another that it is obvious that if he did not use due care in his own conduct he will cause injury to the other, the duty at once arises to exercise care commensurate with the situation in order to avoid such injury.” Union Bank of Tucson v. Griffin, 1989 OK 47, ¶ 13, 771 P.2d 219, 222 (citing Bradford...

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