Johnson v. Mid-South Sports, Inc., MID-SOUTH

• Decision Date: 26 February 1991
• Docket Number: MID-SOUTH,No. 68391,68391
• Citation: 1991 OK 17,806 P.2d 1107
• Parties: Russell JOHNSON, Appellant, v.SPORTS, INC., Appellee.
• Court: Oklahoma Supreme Court

Page 1107

806 P.2d 1107

1991 OK 17

Russell JOHNSON, Appellant, v. MID-SOUTH SPORTS, INC., Appellee.

No. 68391.

Supreme Court of Oklahoma.

Feb. 26, 1991.

Certiorari to the Court of Appeals, Division 2, Appeal from the District Court of Tulsa County; Robert E. Caldwell, District Judge.

Appeal from summary judgment entered in favor of defendant, a wrestling event promoter, in action brought by appellant, a patron of the wrestling event, alleging defendant was negligent in failing to protect plaintiff from injuries sustained when he was knocked from his seat by another patron and fell on wheelchair ramp which was slippery from beer having been spilled on it. The Court of Appeals reversed finding questions of material fact as to defendant's duty owed to plaintiff and the proximate cause of the injury.

CERTIORARI PREVIOUSLY GRANTED. COURT OF APPEALS OPINION VACATED. JUDGMENT OF DISTRICT COURT AFFIRMED.

Gene M. Kelly, Tulsa, for appellant.

Michael J. Masterson, M. Christina Romero, Wilburn, Masterson & Holden, Tulsa, for appellee.

SIMMS, Justice:

Russell Johnson, plaintiff below, appeals from summary judgment entered in favor of defendant, Mid-South Sports, Inc. (Mid-South), in a negligence action based upon injuries Johnson received while attending The Court of Appeals reversed the cause and remanded it for trial, holding that Johnson's injuries were the result of the combined effects of being hit by the unknown spectator and sliding down the slippery ramp. We grant certiorari, vacate the opinion of the Court of Appeals and affirm the trial court.

wrestling matches sponsored by Mid-South.

We need only determine whether the evidentiary materials submitted to the trial court indicated a substantial controversy exists as to a material fact. Ross v. City of Shawnee, Okl., 683 P.2d 535, 536 (1984). In making this determination, we are to examine the pleadings and evidentiary material submitted to the trial court and view all inferences and conclusions that can be drawn therefrom in the light most favorable to the party opposing the motion, namely Johnson.

All of the evidence contained in the record comes from Johnson's deposition, and the parties do not dispute the facts.

Because we find no substantial controversy as to any material fact, we hold that Mid-South was entitled to judgment as a matter of law.

Johnson, a 295-pound man, purchased a ticket to a wrestling event sponsored and promoted by Mid-South in which several wrestling matches were held. He has attended such events in the past, and because of his weight and his handicapped right arm which is cut off between the elbow and wrist, he always sits in the handicapped section so that he will not have to stand up to see the action in the ring as he says is often necessary at such events and which he has difficulty doing.

On this occasion, the handicapped section was full, so the ushers at the event had Johnson sit at the end of a row next to the handicapped access ramp. Throughout the preliminary matches, a group of "rowdy" spectators sitting on the same row as Johnson made several trips to the concession stands for beer. On their return trip, they spilled beer not only on the handicapped ramp, but on Johnson's boots as well. Another patron sitting near Johnson voiced his annoyance with the "rowdy" group, and the group left the area before the final wrestling match began. After the main event concluded, Johnson remained in his seat, as was his custom, and waited for the other fans to leave so that it would be easier for him to get up from his seat and negotiate the stairs. While sitting in the seat, he noticed someone coming at him from the other end of the row so he moved his legs to let them through. However, the person came at Johnson "like a freight train," hit him in the leg, and knocked him six feet into the air. Johnson testified on deposition that although he did not see who hit him, he thought that the person was one of the rowdy fans who was probably mad at him because they had to leave the area.

Johnson further testified that after being knocked into the air, he landed on the beer-soaked handicapped access ramp which had become slippery as a result of the beer. He then slid down the ramp and struck his handicapped arm against the floor fracturing the stub in several places. He brought this action claiming Mid-South was negligent in maintenance of the handicapped access ramp and in control of the crowd, particularly the rowdy group.

In their summary judgment pleadings the parties agreed that Johnson was a business invitee, and Mid-South argued below, as it does on appeal, that Johnson's testimony failed to show that Mid-South breached its duty of ordinary care to keep the premises in reasonably safe condition for use by invitees. C.R. Anthony Co. v. Million, Okl., 435 P.2d 116 (1967).

Johnson testified that when one of the rowdy fans repeatedly spilled beer, another patron told the rowdy fan to sit down and stop spilling beer. An usher apparently saw what was going on, and summoned a police officer to come to the area. Johnson never testified that he said anything to the rowdy fan, the bothered patron, the usher, or the officer, nor did he claim that he was threatened by anyone at the match. In fact, Johnson testified that the man who he thought hit him was not causing any trouble From our review of the evidence, it appears that the usher, an employee or agent of Mid-South, recognized that an argument between fans might erupt, and thus exercised ordinary care in calling over an officer to assist if any of the fans got out of hand. The group left without incident, and it appears that everyone just went back to watching the wrestling matches. The evidence is void of any indication that the rowdy fans intended to return in order to hurt Johnson, or that Mid-South knew or should have known that Johnson would be singled out to be attacked as he claims he was. The undisputed facts give no indication that Mid-South should have foreseen the post-match assault. Thus, Mid-South did all that, in our view, was necessary to protect Johnson since they were unaware of any potential attacks directed at him. Mid-South exercised ordinary and reasonable care in providing not only ushers, but also police officers to control the crowd.

himself even though he was with the group of rowdy fans. There is no evidence that any complaint was made by anyone to Mid-South or its employees concerning the rowdy fans sitting near Johnson. Eventually, this group left the area prior to the start of the final match, even though no testimony indicated that the usher or the officer asked or directed the group to leave.

Moreover, we find that the proximate cause of the injury was the unknown person hitting Johnson in the leg with enough force to knock him into the air and onto the ramp.

It is well settled that proximate cause is an essential element of an action in negligence. Loper v. Austin, Okl., 596 P.2d 544, 546 (1979); Rush v. Mullins, Okl., 370 P.2d 557, 559 (1962). Furthermore, where the facts are undisputed as they are here, proximate cause is a question for the court. Pepsi-Cola Bottling Company of Tulsa v. Von Brady, Okl., 386 P.2d 993, 996 (1964).

The proximate cause of an event is that "which in a natural and continuous sequence, unbroken by an independent cause, produces the event and without which the event would not have occurred." Gaines v. Providence Apartments, Okl., 750 P.2d 125, 126-27 (1988). Were it not for the actions of the unknown spectator, the injuries would not have occurred. Thus, the unknown spectator's actions were the proximate cause of the injuries.

In coming to this conclusion, we note that negligence, if any, by Mid-South in allowing the ramp to become slippery merely furnished a condition which reacted with the independent act of the spectator to cause Johnson's injury. As such, it was a remote cause and not a proximate cause of the injuries. See generally, Gaines, supra; Thompson v. Presbyterian Hospital, Inc., Okl., 652 P.2d 260, 264 (1982); Hunt v. Firestone Tire & Rubber Co., Okl., 448 P.2d 1018, 1023 (1968); Pepsi-Cola Bottling Company of Tulsa v. Von Brady, Okl., 386 P.2d 993, 996-97 (1964); and City of Altus v. Wise, 193 Okl. 288, 143 P.2d 128, 131 (1943).

Johnson's injury resulted from the unforeseeable act of the unknown patron, and under the facts stated, Mid-South did not violate any duty owed to Johnson, nor was there any showing that Johnson's injury was proximately caused by any negligent act of Mid-South.

Finding no substantial controversy as to any material fact, we hold that Mid-South is entitled to judgment as a matter of law.

The judgment of the trial court is AFFIRMED.

OPALA, C.J., HODGES, V.C.J., and LAVENDER, HARGRAVE and SUMMERS, JJ., concur.

DOOLIN, ALMA WILSON and KAUGER, JJ., dissent.

KAUGER, Justice, with whom DOOLIN, Justice, joins, dissenting:

I dissent from the majority's assessment that there is no substantial controversy concerning the material facts in the instant cause. It remains the duty of the jury, not this tribunal, to determine whether the following

material questions of fact could result in a finding that the promoter acted without due care ¹ and negligently by:

1) failing to provide handicapped seating to a patron who requested the special seating and who was obviously physically impaired--carrying excessive weight, walking with a cane and having an amputated arm;

2) seating a physically handicapped patron in a make-shift seat temporarily placed at the end of an existing aisle;

3) selling beer to fans who allegedly were intoxicated and who were seated in close proximity to the handicapped patron;

4) failing to take affirmative action when the security guard and the usher became aware of the crowd's unruly behavior;

5) failing to clear the exit ramp of spilled beer within a reasonable time despite the usher's knowledge that the ramp was wet;

and 6) failing to provide the...