Lewis v. Dust Bowl Tulsa, LLC

• Decision Date: 02 May 2016
• Docket Number: Case No. 114,090
• Parties: Timothy Lewis and Nancy Lewis, Plaintiffs/Appellants, v. Dust Bowl Tulsa, LLC, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

377 P.3d 166

2016 OK CIV APP 43

Timothy Lewis and Nancy Lewis, Plaintiffs/Appellants,

v.Dust Bowl Tulsa, LLC, Defendant/Appellee.

Case No. 114,090

Court of Civil Appeals of Oklahoma, DIVISION IV.

FILED MAY 2, 2016

Mandate Issued: June 27, 2016

Daniel E. Smolen, Lauren G. Lambright, Smolen, Smolen & Roytman PLLC, Tulsa, Oklahoma, for Plaintiffs/Appellants.

C. William Threlkeld, Brion B. Hitt, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Oklahoma, for Defendant/Appellee.

OPINION BY JANE P. WISEMAN, PRESIDING JUDGE:

¶ 1 Plaintiffs Timothy Lewis and Nancy Lewis appeal the trial court's grant of summary judgment in favor of Defendant Dust Bowl Tulsa, LLC, as well as the denial of the Lewises' motion for reconsideration and new trial. This appeal comes to us on the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36

, 12 O.S. Supp. 2015, ch. 15, app. 1, without appellate briefing. After review, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 This case arises out of injuries Plaintiff Timothy Lewis sustained while competing in a league bowling match at the Dust Bowl in Tulsa, Oklahoma, on June 4, 2013. Mr. Lewis and his wife, Nancy Lewis, filed this action on September 11, 2013, alleging that Mr. Lewis sustained injuries because the “Dust Bowl negligently failed to maintain a clean and safe floor in the bowling alley and failed to warn Mr. Lewis of a hidden and dangerous condition on the floor, even though the Dust Bowl knew or reasonably should have known of that condition.”

¶ 3 The Lewises brought suit against the Dust Bowl for negligence, gross negligence, and loss of consortium. Mr. Lewis claims damages for physical and mental pain and suffering, physical impairment, disfigurement, lost income, impairment of earning capacity, medical expenses, loss of enjoyment, punitive damages, and prejudgment interest. Mrs. Lewis sought damages for loss of consortium, resulting from the loss of companionship, comfort, and affection of her husband due to his injuries.

¶ 4 In its answer, the Dust Bowl denied the Lewises' claims and asserted several affirmative defenses. In its subsequent motion for summary judgment filed March 17, 2015, the Dust Bowl denied it breached any duty to the Lewises because it “neither knew nor should have known about the splinter in the approach area on lane one” that caused Mr. Lewis' injuries. In their response, the Lewises contended there were “questions of fact for the jury precluding summary judgment.” In particular, the Lewises claimed that there were “questions of whether the [Dust Bowl] sufficiently maintained, inspected, and removed hazards from the flooring of its lane approach area, sufficiently notified Plaintiff Timothy Lewis of risks and dangers associated with approaching the bowling lanes, and whether the [Dust Bowl] acted unreasonably.” In its reply, the Dust Bowl argued that summary judgment was proper because the Lewises “offered no evidence that [the] Dust Bowl created the splinter, knew about the splinter in sufficient time to remedy it, or should have [known] about the splinter prior to [Mr.] Lewis' accident.” Based on this reasoning, the Dust Bowl urged that it “breached no duty owed to [the Lewises] and is entitled to summary judgment.”

¶ 5 By notice to the parties on May 11, 2015, the trial court granted the motion for summary judgment and directed the Dust Bowl to prepare the order reflecting the court's ruling. The Lewises filed a motion for reconsideration and new trial on June 4, 2015, pursuant to “Rules for District Courts, Rule 17

and 12 O.S. § 651, et seq . ” The motion was based, in part, on evidence not submitted with their original summary judgment materials—the affidavit of Mr. Lewis' son, Chandler Lewis. The affidavit stated that approximately three weeks after Mr. Lewis' incident at the Dust Bowl, a Dust Bowl employee told Chandler Lewis that “management had been aware of a defect in the lane approach area prior to the incident.” The Lewises argued that this additional testimony “create[d] a question of fact regarding whether the [Dust Bowl] had actual or constructive knowledge of the defect at issue [making] the issue of whether the [Dust Bowl] met its duty of care to Mr. Lewis a question for a jury to decide.” Additionally, the Lewises claimed that “the issue of whether or not the [Dust Bowl] had actual or constructive knowledge of defects in the flooring of its lane approach area could not have been resolved on summary judgment” because discovery was not yet complete and additional discovery was needed to resolve the issue of notice.¹

¶ 6 The Dust Bowl filed a response to the Lewises' motion for reconsideration and new trial, contending that the Lewises failed to satisfy the requirements necessary to grant a new trial based on newly-discovered evidence.

The Dust Bowl argued that the Lewises were not entitled to a new trial pursuant to 12 O.S.2011 § 651

because they “failed to exercise due diligence with regard to the testimony of Chandler Lewis.”

¶ 7 On June 15, 2015, a journal entry of judgment was filed, pursuant to the court's May 11, 2015, ruling, granting the Dust Bowl's motion for summary judgment “as a matter of law,” noting that “[t]here [was] no evidence that the [Dust Bowl] had actual or constructive notice of the condition.”² An order denying the Lewises' motion for reconsideration and new trial was filed on August 3, 2015.

¶ 8 The Lewises appeal both the grant of summary judgment and the denial of their motion for reconsideration and new trial.

STANDARD OF REVIEW

¶ 9 Summary judgment is properly granted “when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Davis v. Leitner , 1989 OK 146, ¶ 9, 782 P.2d 924

. When reviewing a grant of summary judgment, we must view all inferences and conclusions to be drawn from the evidence in a light most favorable to the party opposing the motion. Id.

¶ 10 Although a trial court considers factual matters in deciding a summary judgment motion, its ultimate decision is purely legal: “whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions.” Carmichael v. Beller , 1996 OK 48, ¶ 2, 914 P.2d 1051

. Our standard of review on appeal is therefore de novo . Id.

¶ 11 “A trial court's denial of a motion for new trial is reviewed for abuse of discretion.” Reeds v. Walker , 2006 OK 43, ¶ 9, 157 P.3d 100

. “Where, as here, our assessment of the trial court's exercise of discretion in denying [ ] a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness.” Id.

ANALYSIS

¶ 12 The Lewises argue that it was error to grant summary judgment and to deny their motion for reconsideration and new trial because there is a question of fact regarding whether the Dust Bowl had actual or constructive notice of the defect in the flooring in the approach area in lane one.

¶ 13 “It is axiomatic that the mere fact that an injury occurs carries with it no presumption of negligence.” Gillham v. Lake Country Raceway , 2001 OK 41, ¶ 7, 24 P.3d 858

. To establish a prima facie case of negligence, a plaintiff must show: “1) a duty owed by the defendant to protect the plaintiff from injury; 2) a failure to perform that duty; and 3) injuries to the plaintiff which are proximately caused by the defendant's failure to exercise the duty of care.” Smith v. City of Stillwater , 2014 OK 42, ¶ 22, 328 P.3d 1192.

¶ 14 In premises liability cases, the duty a defendant landowner owes a plaintiff is determined by his entry status. It is undisputed that Mr. Lewis was at the Dust Bowl's premises as an invitee, that is: “[o]ne rightfully upon another's premises for purposes in which the owner has some beneficial interest” or “a mutuality of business interest.” Foster v. Harding , 1967 OK 46, ¶ 18, 426 P.2d 355

. Toward an invitee, a property owner has a “duty to exercise ordinary care to keep its premises in a reasonably safe condition for use of its invitees and a duty to warn invitees of dangerous conditions upon premises that are either known or should reasonably be known by the owner.” Phelps v. Hotel Mgmt. Inc. , 1996 OK 114, ¶ 6, 925 P.2d 891 ; see also Oklahoma Uniform Jury Instructions Civil (OUJI-CIV) No. 11.10. This duty “applies to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like which are not known to the invitee and would not be observed by him in the exercise of ordinary care.” Southerland v. Wal–Mart Stores, Inc. , 1993 OK CIV APP 12, ¶ 4, 848 P.2d 68 (citing Beatty v. Dixon , 1965 OK 169, ¶ 9, 408 P.2d 339 ); see also

Phelps , 1996 OK 114, ¶ 6, 925 P.2d 891 ; OUJI–CIV Nos. 11.10, 11.11.

¶ 15 “The invitor is not, however, an insurer of the safety of its invitees and is not required to prevent all injury occurring on the property.” Young v. Bob Howard Auto., Inc. , 2002 OK CIV APP 80, ¶ 6, 52 P.3d 1045

(citing Taylor v. Hynson , 1993 OK 93, ¶ 16, 856 P.2d 278 ); see also

Copeland v. The Lodge Enters., Inc. , 2000 OK 36, ¶ 11, 4 P.3d 695. “[T]he basis of the invitor's liability rests on the owner's superior knowledge of the danger.” Southerland , 1993 OK CIV APP 12, ¶ 4, 848 P.2d 68. '“An invitor cannot be held responsible unless it be shown that he/she had notice or could be charged with gaining knowledge of the condition in time sufficient to effect its removal or to give warning of its presence.” Taylor , 1993 OK 93, ¶ 16, 856 P.2d 278 (quoting Rogers v. Hennessee , 1979 OK 138, ¶ 9, 602 P.2d 1033 ). “Knowledge of the dangerous condition will be imputed to the [invitor] if he knew of the dangerous condition, or if it existed for such time it was his duty to know of it, or if the condition was created by him, or by his employees acting within the...