Copeland v. Lodge Enterprises, Inc.

• Decision Date: 09 May 2000
• Docket Number: No. 92785.,92785.
• Citation: 2000 OK 36,4 P.3d 695
• Parties: Joyce Kathleen COPELAND and Patrick Copeland, Appellants, v. The LODGE ENTERPRISES, INC., an Oklahoma Corporation, and Sharon Andrews, Appellees.
• Court: Oklahoma Supreme Court

4 P.3d 695

2000 OK 36

Joyce Kathleen COPELAND and Patrick Copeland, Appellants, v. The LODGE ENTERPRISES, INC., an Oklahoma Corporation, and Sharon Andrews, Appellees.

No. 92785.

Supreme Court of Oklahoma.

May 9, 2000.

Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, Oklahoma, for Appellants.

Gregory D. Nellis, Galen L. Brittingham, and Margaret A. Nunnery, Atkinson, Haskins, Nellis, Boudreaux, Holeman, Phipps & Brittingham, Tulsa, Oklahoma, for Appellees.

OPALA, J.

¶ 1 The dispositive issue on certiorari is whether the trial court erroneously entered summary judgment for defendants. We answer in the affirmative.

I ANATOMY OF LITIGATION

¶ 2 In November of 1992, Joyce Kathleen Copeland ("Copeland") was working as a pharmaceutical sales representative. While on a business trip, she spent the night as a paying guest at the Days Inn Motel in Muskogee, Oklahoma, a roadside hotel owned by The Lodge Enterprises, Inc. and operated by Sharon Andrews ("defendants"). Sometime during the night, she was allegedly bitten by a brown recluse spider. A search of Copeland's room several days later failed to turn up the offending arachnid. Copeland alleged the spider bite caused her to suffer severe, permanent, and disfiguring injuries.

¶ 3 Copeland originally sought recompense for her injuries in Workers Compensation Court, but her claim was denied. On appeal, the Court of Civil Appeals affirmed the ruling, holding that Copeland's injury did not arise out of her employment.¹ While the workers compensation claim was pending, Copeland and her husband, Patrick (jointly "plaintiffs") brought this action in the District Court, Muskogee County, alleging that the defendants were grossly negligent in failing to provide Copeland with a safe premises, free of "varmints, critters and harmful insects," or in the alternative, to warn of their presence.² Copeland sought damages for her injuries, and her husband for loss of services, society, companionship and consortium.

¶ 4 Defendants moved for summary judgment, in which they argued that (1) they had fulfilled their duty of care—owed to invitees —to maintain the premises in a reasonably safe and suitable condition, (2) their duty of care did not encompass protecting Copeland from injury from the bite of a brown recluse spider because the particular risk of harm from the presence of a brown recluse spider was not foreseeable; (3) they were not the insurers of the safety of motel guests; and (4) their conduct did not create or worsen any risk of harm, but rather prevented or lessened any such risk.

¶ 5 In support of their motion, defendants submitted copies of monthly invoices from Admiral Pest Control Co. ("Admiral") showing a continuous program of pest control services at the Days Inn from August 1989 through February 1993, including the time period in which Copeland suffered her injury here in suit.³ Defendants also tendered portions of Sharon Andrews' deposition. Andrews, who was the Days Inn manager at the time of Copeland's injury, testified that she was trained in motel management, including pest control, she had engaged Admiral to spray the motel premises for insects and other pests, she had given Admiral oral instructions that all pests were to be eliminated from the property, she sometimes personally watched as the pest control chemical was applied, she had terminated the services of the previous extermination company because it had failed to eradicate a roach infestation, she had never had to call Admiral because of a problem with any type of spider, and she had never received any complaints from customers other than Copeland about the presence of spiders. Andrews also testified in her deposition that on Monday or Tuesday morning after Copeland's incident the previous Wednesday, she and Admiral's exterminator searched for spiders in the room in which Copeland had stayed as well as several other rooms. Although no spiders were found, they nonetheless sprayed the rooms. According to her deposition, the Days Inn received two or three annual, unannounced inspections by the Oklahoma Department of Health and had not been cited for any deficiencies during her tenure as manager.⁴

¶ 6 In response, plaintiffs offered an affidavit from a (self-described) licensed, experienced exterminator, who stated that (1) brown recluse spiders are common and indigenous to eastern Oklahoma and (2) if reasonable care were exercised in the pest control treatment of a facility, brown recluse spiders would be eradicated. They also tendered a letter of apology from defendant Andrews, acknowledging that Oklahoma is known for spiders. Finally, plaintiffs offered copies of certain rules of the Oklahoma State Department of Health pertaining to lodging establishments, which condition licensure to operate a motel on compliance with the state's health and safety regulations.⁵ Among these regulations is one requiring "effective methods of vermin control."⁶

¶ 7 On this record, the trial court entered summary judgment for the defendants, and plaintiffs appealed. The Court of Civil Appeals, Div. III, affirmed, holding that plaintiffs' tendered evidentiary material only "addressed the standard for exterminators, but did not speak to the standard of care of the innkeepers in devising an extermination program, or the knowledge of Lodge Enterprises." Hence, plaintiffs, having failed to tender "something" tending to prove that defendants breached their duty of care, left undisputed the latter's tendered proof that the motel had met its duty of care to keep the premises in a reasonably safe and suitable condition. Plaintiffs sought and were granted certiorari. We now reverse.

II STANDARD OF REVIEW

¶ 8 Summary process—a special pretrial procedural track pursued with the aid of acceptable probative substitutes⁷—is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process.⁸ To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials, which are offered by the parties in acceptable form.⁹ Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary adjudication.¹⁰ Summary relief issues stand before us for de novo examination.¹¹ All facts and inferences must be viewed in the light most favorable to the nonmovant.¹² Just as nisi prius courts are called upon to do, so, too, the appellate tribunals bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.¹³ 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.¹⁴

III THE NISI PRIUS SUMMARY JUDGMENT UNDER REVIEW IS ERRONEOUS

¶ 9 The question to be answered here is whether the evidentiary materials tendered by plaintiffs were sufficient to place disputed material (on the merits) facts in issue and hence to defeat defendants' motion for summary judgment. While the mere contention that material facts are in dispute is not sufficient to defeat a plea for summary judgment, neither is the nonmovant to be held to the standard of producing forensic evidence.¹⁵ The nonmovant must merely "present something which shows that when the date of trial arrives, he will have some proof to support his allegations."¹⁶ For an item of evidentiary material to be insufficient to defeat a motion for summary judgment, it must either facially lack probative value or be incapable of conversion at trial to admissible evidence.¹⁷

¶ 10 The affidavit of plaintiffs' licensed exterminator is not facially lacking in probative value, nor is it incapable of conversion at trial to admissible evidence. The elements of negligence are: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure properly to exercise or perform that duty, and (3) an injury to plaintiff proximately caused by the defendant's breach of that duty.¹⁸ Plaintiffs' licensed exterminator's affidavit speaks to the elements of duty and breach of duty by raising an issue of material fact as to the liability of defendants for the alleged negligence of the their extermination contractor. This provides a sufficient evidentiary basis to defeat defendants' quest for summary judgment.

¶ 11 An innkeeper in Oklahoma continues to have a status-based, common-law duty of care to a guest.¹⁹ This duty remains unaltered by inspection and licensing statutes enacted under the police power of the state.²⁰ The owner or operator of a motel is not an insurer of his guests' personal safety.²¹ Often described as a duty to maintain the premises in a reasonably safe and suitable condition,²² the innkeeper's common-law responsibility applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like— things which are not readily observable.²³ The duty is fulfilled when reasonable care is taken to prevent the invitee's exposure to dangers which are more or less hidden, not obvious.²⁴

¶ 12 Although a hirer ordinarily cannot be held liable for the negligence of an independent contractor, the rule of non-liability does not apply where the hirer contracts for the performance of a duty imposed by law.²⁵ Hence, while an innkeeper may hire an independent contractor to perform the former's nondelegable duty, he (or she) may not pass off to an independent contractor the ultimate legal responsibility for the proper performance of that duty.²⁶ Under the nondelegable duty rule, an innkeeper may be held vicariously liable for an independent contractor's failure to exercise reasonable care even if the innkeeper has himself exercised...