Lowery v. Echostar Satellite Corp.

• Citation: 160 P.3d 959,2007 OK 38
• Decision Date: 22 May 2007
• Docket Number: No. 102,606.,102,606.
• Parties: Jo Ann M. LOWERY, Appellant, v. ECHOSTAR SATELLITE CORP. d/b/a/ Dish Network, Appellee.
• Court: Supreme Court of Oklahoma

160 P.3d 959

2007 OK 38

Jo Ann M. LOWERY, Appellant, v. ECHOSTAR SATELLITE CORP. d/b/a/ Dish Network, Appellee.

No. 102,606.

Supreme Court of Oklahoma.

May 22, 2007.

On Writ of Certiorari to the Court of Civil Appeals, Division IV.

¶ 0 Jo Ann M. Lowery suffered injuries to her left leg and back when she attempted to repair the satellite dish on the roof of her garage. Lowery filed a negligence action against the satellite dish company, alleging the company is liable for her injuries because the company refused to repair its equipment and directed her to make the repairs. The defendant moved for summary judgment, arguing that it owed no duty to plaintiff arising from either a contract or the circumstances. In response, plaintiff argued that defendant assumed a duty of ordinary care when it repeatedly told her she would have to repair the satellite dish and offered to give her directions to effect the repair. The district court, the Honorable Edward C. Cunningham, presiding, granted summary judgment in favor of defendant. Plaintiff appealed. The Court of Civil Appeals concluded that defendant's offer to advise plaintiff during the repair of the satellite dish subjected it to liability and reversed the district court's summary judgment. We previously granted defendant/appellee's petition for writ of certiorari.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S SUMMARY JUDGMENT AFFIRMED.

E.W. Keller and Henry Dalton, Keller, Keller & Dalton, Oklahoma City, OK, for appellant.

Jeffrey W. Miller, Jennings Cook Hoisington & Teague, Oklahoma City, OK, for appellee.

TAYLOR, J.

¶ 1 On certiorari, Echostar Satellite Corporation d/b/a Dish Network, defendant/appellee (Dish Network), contends that it did not owe Jo Ann M. Lowery, plaintiff/appellant (Lowery), a duty of care under the facts and circumstances in this case and that it is entitled to judgment in this negligence action as a matter of law. We agree. We vacate the Court of Civil Appeals' opinion. We affirm the district court's summary judgment in favor of the defendant/appellee.

I. The Facts and Proceedings Below

¶ 2 The facts and circumstances giving rise to Lowery's allegations of negligence against Dish Network are established by the summary judgment filings. We glean the following undisputed facts from Lowery's answers to interrogatories and the portions of her deposition included in the appellate record.

¶ 3 Lowery owned her home in Union City, Oklahoma, where she and her boyfriend, John McCormack, resided. In February of 2003, McCormack purchased a satellite dish television system from Dish Network and had the dish installed on Lowery's garage roof. McCormack had a one-year limited warranty on the satellite dish. Lowery was not involved in the purchase of the satellite dish, and she was not financially responsible for the satellite dish television system.¹ In July of 2003, the satellite dish malfunctioned. Lowery telephoned Dish Network and reported the problem. Two days later, a package from Dish Network arrived at Lowery's residence. The package contained three screws. Lowery telephoned Dish Network to inquire about the package and talked with several Dish Network customer service employees and/or supervisors.

¶ 4 The following are the significant parts of Lowery's telephone conversations with Dish Network. Customer service advised that the problem with the satellite dish required a minor repair and the three screws were the parts needed for the repair. Lowery insisted that Dish Network send someone out to repair the satellite dish as provided in the warranty. Customer service advised that Dish Network would not send anyone out, that the limited warranty covered only necessary repair parts but not labor, and that Lowery would have to make the repairs. Lowery insisted that she should not have to repair the satellite dish because it was not her job, she was inexperienced, and she was concerned about climbing to the garage roof. When customer service advised that the repair would not be done by Dish Network, Lowery demanded that the satellite dish be removed from her garage.

¶ 5 Customer service advised Lowery more than once that she could make the minor repair to the dish. A customer service employee offered to stay on the line to guide Lowery through the repair process, and then, forty-four year old Lowery proceeded to make the repair. With a cordless telephone in hand and Dish Network's customer service on the line, Lowery climbed the ladder to her garage roof. Lowery fell from the roof before she began the repair. A neighbor came to Lowery's rescue. The neighbor repaired the satellite dish with instructions from the Dish Network's customer service. Lowery testified that when she fell, she broke her left leg and injured her left knee, left ankle, and the left side of her lower back.

¶ 6 In July of 2004, Lowery filed her petition in the district court in Canadian County, Oklahoma, seeking monetary damages from Dish Network. Lowery alleged that her bodily injuries were directly and proximately caused by Dish Network's carelessness and negligence and by Dish Network's failure to perform its duty under its warranty. Dish Network moved for summary judgment, asserting that there is no dispute as to the material facts and that it is entitled to judgment as a matter of law.

¶ 7 Dish Network contended that it cannot be liable for negligence because it owed no duty of care to Lowery to prevent the harm she suffered. Dish Network argued that it had no duty to protect Lowery where she voluntarily climbed to the roof and that no inference of a duty to protect Lowery from the harm she suffered can be drawn from the customer service employee's offer to advise Lowery on repairing the satellite dish. Dish Network also argued that it owed no contractual duty to Lowery to repair the equipment her boyfriend purchased. In response, Lowery asserted that Dish Network exposed her to foreseeable harm when it refused to repair the satellite dish at the request of a member of the purchaser's household. Lowery argued that Dish Network is liable for her injury caused by its reckless urging, encouraging and advising an inexperienced person to repair the satellite dish equipment. Lowery relied on the general common law principle that a person owes a duty of care to all persons who are foreseeably endangered by his or her conduct with respect to all risks which make the conduct unreasonably dangerous.² Lowery also asserted that any contributory negligence on her part is a fact question constitutionally rested in a jury and that disputed material facts prevented summary judgment.

¶ 8 The district court granted Dish Network's motion for summary judgment. Lowery timely appealed. In her issues on appeal, Lowery asserted error in the summary judgment because 1) material facts are disputed, 2) Dish Network, by encouraging Lowery to repair the satellite dish, assumed a duty to avoid foreseeable harm that could occur and breached that duty, and 3) Lowery's contributory negligence and assumption of the risk must be left to the jury.

¶ 9 The Court of Civil Appeals concluded that Dish Network may be liable for negligence where its customer service not only told Lowery to make the repairs but also offered to instruct and direct the repairs. The Court of Civil Appeals observed that the "good Samaritan rule" applies to the giving of advice as well as the rendering of medical assistance and found that Dish Network may have assumed a duty of care in relation to Lowery when its employee offered to direct the repair of the satellite dish. The Court of Civil Appeals recognized that modern customer service and tech support offered over the telephone generally is not dangerous activity but found that the customer service in this case is an exception. The Court of Civil Appeals reversed the summary judgment and remanded for further proceedings to resolve the issues of whether Dish Network exercised reasonable judgment and whether Lowery caused or contributed to her injuries.

¶ 10 Dish Network timely petitioned for certiorari review, arguing that the Court of Civil Appeals erroneously applied the "good Samaritan rule" and that it, Dish Network, had no duty to protect Lowery from the open and obvious risks associated with climbing up to her garage roof. Lowery responded that the Court of Civil Appeals did not actually apply the "good Samaritan rule," but rather, the appellate court determined that Dish Network assumed a duty to Lowery by giving technical advice and that the reasonableness of Dish Network's conduct should be left to the trier of fact. We previously granted Dish Network's petition for writ of certiorari.

II. Standard of Review

¶ 11 Summary judgment is not a procedure to substitute a trial by affidavit for a full-blown trial. Myers v. Lashley, 2002 OK 14, ¶ 18, 44 P.3d 553, 561-562. It is a pretrial procedure available where the evidentiary materials, such as affidavits, admissions, answers to interrogatories, and depositions, establish each and every material fact necessary to support a judgment as a matter of law, Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455-456, and where there is no dispute as to the material facts and the inferences that may be drawn from the undisputed material facts. Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082. Summary judgment settles only questions of law. Id. The standard of review of the questions of law is de novo. Id. Where a controversy is resolved by summary judgment, the appellate courts review the entire summary judgment record independently and without deference to a lower court. Id. Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. Summary judgment will be reversed if the appellate court determines that reasonable men might reach different...