Markwell v. Whinery's Real Estate, Inc.

• Decision Date: 22 February 1994
• Docket Number: No. 79840,79840
• Citation: 1994 OK 24,869 P.2d 840
• Parties: Lorain MARKWELL, Appellant, v. WHINERY'S REAL ESTATE, INC., d/b/a Whinery's Off Airport Parking, Appellee.
• Court: Oklahoma Supreme Court

Page 840

869 P.2d 840

1994 OK 24

Lorain MARKWELL, Appellant, v. WHINERY'S REAL ESTATE, INC., d/b/a Whinery's Off Airport Parking, Appellee.

No. 79840.

Supreme Court of Oklahoma.

Feb. 22, 1994.

Certiorari to the Court of Appeals, Division II; Jack R. Parr, Trial Judge.

The appellant, Lorain Markwell (Markwell/passenger), sued alleging injury while she was a business invitee of the appellee, Whinery's Real Estate, Inc., d/b/a Whinery's Off Airport Parking (Whinery's/carrier). Whinery's moved for summary judgment arguing that it had no duty to warn a business invitee of obvious dangers. Markwell countered insisting that Whinery's was a carrier for hire and that it owed her the duty to exercise the utmost care and diligence. The trial judge, Honorable Jack R. Parr, granted summary judgment to Whinery's. The Court of Appeals disposed of the appeal on a procedural issue, affirming the trial court without reaching the merits. We find that: 1) The petition in error was sufficient to preserve the allegations of error; and 2) Pursuant to 13 O.S.1991 § 32, carriers for hire are required to exercise the utmost care for the safety of their passengers. The determination of what constitutes "utmost care" within the meaning of § 32 is a question to be resolved by the trier of fact. The entry of summary judgment was improper.

Certiorari Previously Granted; Court Of Appeals Opinion Vacated; Trial Court Reversed.

Charles M. Laster Shawnee, for appellant.

Kenneth D. Upton, Jr. Oklahoma City, for appellee.

KAUGER, Justice.

Two issues are presented: 1) whether, under the facts presented, the allegations in the petition in error were sufficient to preserve the personal injury issue; and 2) whether the entry of summary judgment was improper. We find that: 1) The petition in error was sufficient to preserve the allegations of error; and 2) Pursuant to 13 O.S.1991 § 32, ¹ carriers for hire are required to exercise the utmost care for the safety of their passengers. The determination of what constitutes "utmost care" within the meaning of § 32 is a question to be resolved by the trier of fact. The entry of summary judgment was improper.

FACTS

Lorain Markwell, a sixty-six year old bank teller (appellant/Markwell/passenger) left her car at Whinery's Off Airport Parking (appellee/Whinery's/carrier) during the 1990 Christmas holidays. When she returned on Christmas Eve, a Whinery's employee met her at the airport and drove her to its parking lot. After Markwell paid her bill, she was told by the cashier that her car was outside. Although Whinery's had retrieved her car, started it, and left it running, it was parked approximately fifty feet away from the door and the covered canopy. The weather was cold, and snow and ice had accumulated on the ground. Even though Whinery's had cleared its pavement, Markwell slipped and fell on a small patch of ice on the way to her car. After being assisted to her feet by a Whinery's employee, she drove to the bank where she worked. Because she was in pain, she was unable to finish her shift. Markwell consulted an orthopedist, and she discovered that she had broken her kneecap.

Subsequently, Markwell sued Whinery's alleging that she was a business invitee, and that her injuries were caused because of Whinery's negligence and lack of care. Whinery's moved for summary judgment relying on Buck v. Del City Apartments, Inc., 431 P.2d 360, 365 (Okla.1967) for the premise that mere slipperiness of snow and ice in its natural state and accumulations does not give rise to liability, and that a business invitor has no duty to warn or protect from obvious dangers.

Markwell countered in her response to the motion for summary judgment that hers was not the ordinary slip and fall case; that she had not sued Whinery's for being merely negligent in permitting ice to accumulate on the sidewalk at the parking lot; and that her petition did not so allege. Rather her position was that Whinery's was a carrier for hire, and as such pursuant to 13 O.S.1981 § 32 ² it owed a duty to Markwell to use the utmost care and diligence for her safety. She also relied on Oklahoma Ry. Co. v. Austin, 201 Okla. 567, 207 P.2d 769, 771 (1949) to support her contention that if there is any evidence tending to show, or from which it may be reasonably inferred that a common carrier failed to use the utmost care for the safety of a passenger, the question of the carrier's negligence must be left to the jury. Markwell alleged both in her response and in her sworn affidavit that because she was traveling alone in cold and inclement weather, she had relied on Whinery's advertised promises--delivery of airline passengers to its carport followed by delivery of the patron's car to the protective canopy to avoid bad weather or other unsafe factors--and that Whinery's had breached its contractual, statutory, and common law duties to her.

The trial court entered summary judgment for Whinery's. Markwell appealed and the Court of Appeals, citing Kirschstein v. Haynes, 788 P.2d 941, 954-55 (Okla.1990), held that the sole allegation in Markwell's petition in error "whether the trial court erred in sustaining defendant's motion for summary judgment and granting defendant judgment" was insufficient to support a claim of error. We granted certiorari on January 3, 1994.

I.

THE PETITION IN ERROR IS SUFFICIENT TO PRESERVE THE

ALLEGATIONS OF ERROR.

A petition in error is in the nature of a pleading, and generally it must comply with the requirements of the statute and the rules of court insofar as it concerns form and contents. However, although the specifications or assignment of error should designate the allegations of error clearly so that the court and opposing parties may ascertain the issues raised, substantial compliance is sufficient, and mere technical and formal defects should be disregarded. Rules of pleading both at the trial and the appellate levels have been liberalized to allow courts to focus attention on substantive merits of the dispute rather than upon procedural niceties. ³

A pleading should be construed in its entirety. Here, although Markwell stated in her Exhibit C to the petition in error that the issues and errors proposed to be raised on appeal were whether the trial court erred in sustaining Whinery's motion for summary judgment and granting Whinery's judgment, the summary of the case set forth in Exhibit B clarified the issues. It specifically provides that: 1) Markwell was a business invitee of Whinery's; and 2) Whinery's, acting in its capacity as a carrier for hire, breached its contractual and common law duties by failing to deliver her car under the covered parking area. ⁴

The failure to raise an error for appeal by inclusion in the petition in error is fatal to its consideration. ⁵ We have by rule ⁶ and by appellate decision ⁷ stated that "shotgun" allegations, designed to cover a gambit of errors, are not sufficient to preserve error. However, the once rigid rule was modified by our adoption in 1969 of Rule 1.17 ⁸ allowing amendments to petitions in error at any time before the brief in chief is filed and, thereafter, with permission of the Court. ⁹ The filing of a timely brief amends deficiencies, if any, of the petition in error. ¹⁰ Amendment is not required if the issues briefed are fairly comprised within the assertions of error alleged. ¹¹

Nilsen v. Tenneco Oil Co., 614 P.2d 36, 38-39 (Okla.1980) is helpful in determining whether the single allegation made here--"Whether the trial court erred in sustaining defendant's Motion for Summary Judgment and granting defendant judgment"--is sufficient to preserve the merits of the cause for review. In Nilsen, the appellees asserted that the appeal should be dismissed because the petition in error was too indefinite with respect to its assignments of error. The appellants alleged that: 1) the judgment was not sustained by sufficient evidence, and 2) the trial court erred in overruling the appellants' demurrer to the evidence. Nilsen involved a quiet title action relating to surface and mineral rights. The subsidiary issues involved included accretion of a river and ownership by adverse possession. The cause raised questions pertaining to the rights of severed mineral interests. Because the issues briefed in Nilsen were fairly comprised within the assertions of error, we held that the petition was sufficient to preserve the merits of the cause for review and that amendment was unnecessary. ¹²

Here, both the summary of the case attached to the petition in error and the issues briefed adequately informed the Court why Markwell believed summary judgment was improperly entered in Whinery's favor. ¹³ Like the situation presented in Nilsen, the issues briefed here are fairly comprised within Markwell's assertion of error. We find that the petition in error is sufficient to preserve the allegations of error. ¹⁴

II.

PURSUANT TO 13 O.S.1991 § 32

, CARRIERS FOR HIRE ARE REQUIRED TO EXERCISE THE UTMOST CARE

FOR THE SAFETY OF THEIR PASSENGERS. THE DETERMINATION OF

WHAT CONSTITUTES "UTMOST CARE" WITHIN THE MEANING OF § 32

IS A QUESTION TO BE RESOLVED BY THE TRIER OF FACT. ENTRY

OF SUMMARY JUDGMENT WAS IMPROPER.

Markwell asserts that Whinery's is a carrier for hire and that, pursuant to 13 O.S.1991 § 32, ¹⁵ the carrier owed her the utmost care in ensuring her safe passage. She insists that the entry of summary judgment was improper in light of the conflicting material facts relating to the issue of the care necessary to meet the standard imposed by § 32. Whinery's does not dispute that it acted as a carrier for hire in transporting Markwell to and from the airport. ¹⁶ Instead, the carrier argues that its relationship to Markwell as a carrier for hire terminated when she returned from the airport and alighted from its vehicle under the protective canopy. Because Whinery's argument is not supported by our jurisprudence, ¹⁷ and because the determination of whether utmost...