Norton v. Spring Operating Co.
| Decision Date | 25 October 2019 |
| Docket Number | Case No. 116,886 |
| Citation | 466 P.3d 598 |
| Parties | John Mack NORTON, Plaintiff/Appellant, v. SPRING OPERATING COMPANY, a Domestic For Profit Business Corporation, Defendant/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Duke Halley, Daniel Talbot, HALLEY, TALBOT & SMITHTON, Oklahoma City, Oklahoma, for Plaintiff/Appellant
Tim D. Cain, Roger K. Gofton, WILSON, CAIN & ACQUAVIVA, Oklahoma City, Oklahoma, for Defendant/Appellee
OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:
¶1 In this premises liability action, John Mack Norton appeals from the trial court's entry of judgment upon a jury verdict in favor of Spring Operating Company claiming the trial court erred in giving certain jury instructions and in refusing to give certain requested instructions and in awarding costs to Spring Operating for legal and courtroom assistance. We affirm the journal entry of judgment entered on the jury verdict, but reverse, in part, the trial court's post-judgment order awarding certain costs to Spring Operating.
BACKGROUND
¶2 The following facts are uncontroverted. Mr. Norton, a truck driver, was employed by Enterprise Crude Oil. Enterprise, a non-party in this lawsuit, purchased crude oil from various suppliers including Spring Operating. Spring Operating stored its crude oil in tanks located on its property. Spring Operating placed steps on the tanks so drivers, like Mr. Norton, could go up to and down from the tank to test and measure the crude before loading the crude and hauling it away. Enterprise's drivers hauled the crude to Enterprise's storage tanks for delivery into its pipelines. Mr. Norton had been to the Spring Operating site and went up and down the steps in daylight and in the evening numerous times without incident. However, on his last trip to Spring Operating's tank—an evening trip—Mr. Norton fell and sustained serious injury as he descended the steps.
¶3 Mr. Norton testified the steps were a hazard and that he first reported them as dangerous sometime before he fell. Conflicting evidence was presented, among other issues, about whether the stairs were, in fact, defective, whether Spring Operating was informed about any danger, and whether Enterprise was notified of any danger.
¶4 The trial court instructed the jury. Mr. Norton had objected to several instructions the trial court gave and the trial court refused several of his requested instructions. The jury returned a white verdict form finding Mr. Norton 10% negligent, Spring Operating 0% negligent, and Enterprise 90% negligent.
¶5 Mr. Norton appeals contending the judgment entered on the jury verdict must be reversed because of legal errors the trial court made in giving erroneous instructions and refusing to give certain instructions and that a new trial should be granted. Mr. Norton also appeals from the trial court's order granting costs to Spring Operating for certain courtroom assistance.
STANDARD OF REVIEW
¶6 One of the issues raised on appeal is whether Spring Operating owed Mr. Norton a duty to take remedial measures to correct an open and obvious danger on its premises. The question of whether a duty exists is a question of law. Scott v. Archon Grp., L.P. , 2008 OK 45, ¶ 17, 191 P.3d 1207. Questions of law are subject to de novo review. Kluver v. Weatherford Hosp. Auth. , 1993 OK 85, ¶ 14, 859 P.2d 1081.
¶7 Also presented for review on appeal is whether the trial court committed reversible error in giving certain jury instructions and excluding certain instructions requested by Mr. Norton. The standard of review applied by an appellate court when reviewing jury instructions "considers the accuracy of the statement of law, the applicability of the instructions to the issues when the instructions are considered as a whole, and above all, whether the probability arose that jurors were misled and reached a different conclusion due to an error in the instruction." Cimarron Feeders, Inc., v. Tri-County Elec. Coop., Inc. , 1991 OK 104, ¶ 6, 818 P.2d 901 (footnote omitted). The appellate court will not reverse for error in the trial court's jury instructions unless it is persuaded the error "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." 20 O.S. 2011 § 3001.1 ; See also 12 O.S. 2011 § 78.
¶8 Further presented for this court's review is Mr. Norton's argument that the Occupational Safety and Health Administration (OSHA) regulation upon which he relied to show negligence per se applies to any employee in a given workplace. He therefore raises a question of statutory interpretation that calls for a de novo standard of review. Welch v. Crow , 2009 OK 20, ¶ 10, 206 P.3d 599 .
¶9 Finally, Mr. Norton contends the trial court erred in awarding certain costs to Spring Operating under 12 O.S. 2011 § 942. The trial court has discretion in determining "the amount of cost awarded for items" listed under § 942, but it has "no discretion in determining whether a particular type of cost awarded in § 942 would be allowed." Atchley v. Hewes , 1998 OK CIV APP 143, ¶ 6, 965 P.2d 1012 (citation omitted). "An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591 (citation omitted).
ANALYSIS
¶10 Mr. Norton argues the judgment must be reversed because: (1) under the facts herein presented, the trial court gave an inapplicable open and obvious jury instruction; (2) the defective steps violated OSHA regulations, and the trial court therefore erred in refusing to give his instructions concerning negligence per se; (3) Spring Operating had a non-delegable duty to keep its premises in reasonably safe condition, and the trial court therefore erred in including Enterprise as a non-party tortfeasor and instructing the jury about the jury's ability to assign negligence to Enterprise; (4) the trial court erred in giving an assumption of the risk instruction; (5) the trial court erred in failing to give his requested instruction concerning the availability of a comparative negligence defense to willful and wanton or intentional misconduct; and (6) the trial court erred in awarding costs to Spring Operating for costs it incurred for legal and courtroom assistance.
¶11 Mr. Norton argues the trial court erroneously gave unmodified Oklahoma Uniform Jury Instructions—Civil (OUJI) No. 11.10 (), No. 11.11 (hidden danger) and No. 11.12 () instead of his requested instruction, a modification of OUJI No. 11.10. When the OUJI contains an applicable instruction, the OUJI instruction "shall be used unless the court determines that it does not accurately state the law." 12 O.S. 2011 § 577.2. Mr. Norton's argument hinges on the legal question of whether Spring Operating owed him a duty to take remedial measures to correct the allegedly defective stairs about which he was aware. We conclude no duty to remediate was owed under the facts of this case.
¶12 Whether an ordinary negligence or a premises liability claim, "[i]t is fundamental that three elements must be shown in order to establish actionable negligence": proof of a duty, a breach of that duty, and causation. Scott v. Archon Grp., L.P. , 2008 OK 45, ¶ 17, 191 P.3d 1207. In a premises liability action, however, the duty a landowner or occupant of the land owes to invitees on the premises is "the duty to use ordinary care to keep [the] premises in a reasonably safe condition for the use of ... invitees" and "to remove or warn the invitee of any hidden danger on the premises" the landowner "either actually knows about, or that" the landowner "should know about in the exercise of reasonable care, or that was created by" the landowner "or any of" the landowner's "employees who were acting within the scope of their employment."1
¶13 The duty a landowner owes in a premises liability action "varies with the status occupied by the entrant." Scott , ¶ 18.2 See also Sutherland v. St. Francis Hosp., Inc. , 1979 OK 18, ¶ 5, 595 P.2d 780. "[A] landowner owes to an invitee ... a duty to protect him from conditions which are in the nature of hidden dangers, traps, snares and the like." Pickens , 1997 OK 152, ¶ 10, 951 P.2d 1079. "Even vis-a-vis an invitee, to whom a landowner owes the highest duty ..., the law does not require that the landowner protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered." Id. ¶ 10 (footnote omitted). Dover v. W.H. Braum, Inc. , 2005 OK 22, ¶ 5, 111 P.3d 243 (citation omitted).
¶14 Mr. Norton argues, however, that in certain circumstances a landowner has a duty to take remedial measures to protect an invitee even from conditions that are not hidden and are open and obvious, citing Wood v. Mercedes-Benz of Oklahoma City , 2014 OK 68, 336 P.3d 457. In Wood , an employee of a catering company hired by defendant car dealership was injured when she slipped and fell on ice she observed surrounding defendant's property. The plaintiff sued the defendant alleging it failed to maintain its premises in a reasonably safe condition. The defendant denied liability and moved for summary judgment, which the trial court granted. On appeal, the Court of Civil Appeals affirmed holding the defendant did not owe the plaintiff a duty because she "readily acknowledges the ice presented a known danger." Id. ¶ 3. On certiorari review, the ...
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