Thomas v. EZ Mart Stores, Inc., 98979

• Decision Date: 02 November 2004
• Docket Number: No. 98979,98979
• Citation: 2004 OK 82,102 P.3d 133
• Parties: MARY E. THOMAS, Plaintiff/Appellant, v. E-Z MART STORES, INC., Defendant/Third Party Plaintiff/Appellee, v. CORE-MARK INTERNATIONAL, INC., and ARAMARK UNIFORM COMPANY, Third Party Defendants.
• Court: Oklahoma Supreme Court

2004 OK 82

102 P.3d 133

MARY E. THOMAS, Plaintiff/Appellant, v. E-Z MART STORES, INC., Defendant/Third Party Plaintiff/Appellee, v. CORE-MARK INTERNATIONAL, INC., and ARAMARK UNIFORM COMPANY, Third Party Defendants.

No. 98979

Supreme Court of Oklahoma

Decided: November 2, 2004

Kayce L. Gisinger, George W. Dahnke, Abowitz, Timberlake & Dahnke, P.C., Oklahoma City, Oklahoma for Plaintiff/Appellant.

Tracy Pierce Nester, Harry A. Parrish, Pray, Walker, Jackman, Williamson & Marlar, Oklahoma City, Oklahoma for Defendant Third Party Plaintiff/Appellee.

EDMONDSON, J.

¶1 The issue presented for our review on certiorari is whether the trial court was correct in determining in the context of a premises liability lawsuit that a business invitor's claims against a third party and its claim that the third party caused the invitee's injury should be heard by the jury determining the liability of the invitor to the invitee. That issue may not be unequivocally answered in this case. The trial court did not consider whether the third party was an independent contractor of the invitor, or whether the invitor's indemnity claim against the third party was based upon vicarious liability of an invitor for the act of an independent contractor, or whether the separate claims could be simultaneously considered by a jury using proper instructions without causing confusion.

¶2 Thomas brought an action against E-Z Mart Stores, Inc. (E-Z Mart), and alleged that she slipped on a floor mat in the store which resulted in her fall and subsequent injury. E-Z Mart filed a petition against Aramark Uniform Company (Aramark) and Core-Mark International, Inc., (Core-Mark), distributors and suppliers of the floor mat. E-Z Mart alleged that Core-Mark and Aramark were liable based upon theories of either contribution or indemnity.

E-Z Mart's petition alleges that: 1. The floor mat was manufactured by Aramark and supplied to E-Z Mart by Core-Mark; 2. The mat was defective; 3. The mat was not the type of mat that Core-Mark was required by an agreement to supply to E-Z Mart; and 4. Core-Mark was negligent in supplying a defective mat. E-Z Mart asked for a judgment against Aramark and Core-Mark for sums, if any, that E-Z Mart would be adjudged liable to Thomas. Aramark and Core-Mark were granted their motion to bifurcate the proceedings, and a jury trial commenced solely against E-Z Mart.

¶3 The jury returned a verdict against E-Z Mart in the amount of $350,000, and a judgment was then entered in accordance with the verdict. The jury attributed no negligence to Thomas. E-Z-Mart filed a motion for new trial. E-Z Mart argued that a new trial was necessary because the trial court did not allow E-Z Mart to present evidence on the alleged negligence of a third-party (Core-Mark) or E-Z Mart's requested instruction on the negligence of a third-party.

¶4 On appeal the Court of Civil Appeals determined that E-Z Mart is vicariously liable for the acts of Core-Mark. The appellate court concluded that E-Z Mart's duty to a business invitee, Thomas, could not be delegated to Core-Mark, and that Core-Mark was an independent contractor to E-Z Mart. The court reversed the order granting a new trial, and E-Z Mart sought certiorari. We agree with the Court of Civil Appeals that the premises liability could not be delegated, and we agree that a premises liability may not be transferred to an independent contractor when the injury-causing condition of the premises is within the control of the invitor. We reverse the order granting a new trial because E-Z Mart's new trial quest was insufficient as we explain herein, and the trial court erred on a question of law.

I. Standard of Review

¶5 This proceeding is an appeal from an order of a trial court granting a new trial. The trial and the motion for new trial were heard before the same judge. When an appellant challenges an order granting a new trial a stronger showing of error must be made than when challenging an order denying a motion for new trial. Dominion Bank of Middle Tennessee, 1996 OK 99, 928 P.2d 291, 294; Sligar v. Bartlett, 1996 OK144, 916 P.2d 1383, 1387.

¶6 The issue contested by the parties is whether the trial court was correct in combining Thomas' claim against E-Z Mart with E-Mart's claim against Core-Mark in one trial. The issue of either consolidating claims into one trial or bifurcating for separate trials is governed, in part, by § 2018(C) & (D) of the Oklahoma Pleading Code.¹ A clear abuse of discretion by the trial court when applying § 2018(C) & (D) must be shown by an appellant to reverse the trial court's order.²

¶7 A review using an abuse of discretion standard includes an appellate examination of both fact and law issues. Tibbetts v. Sight'n Sound Appliance Centers, Inc., 2003 OK 72, ¶ 3, 77 P.3d 1042, 1046; Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608. The fact issue involves whether the ruling reviewed is without a rational basis in the evidence to support the decision. Tibbetts, at ¶ 3, 77 P.3d at 1046. The law issue involves whether the ruling is based upon an erroneous legal conclusion. Id. We apply a de novo and non-deferential review when an assigned error is one of law. Id. at ¶ 4, 77 P.3d at 1046.

¶8 The trial court granted the motion for new trial based upon a determination that EZ-Mart is entitled, as a matter of law, to introduce additional evidence at trial and submit to the jury an instruction on the alleged negligence of, and/or indemnity relating to, Core-Mark.³ We examine that determination.

II. The Premises Liability Claim

¶9 Thomas brought an action based upon on "premises liability;" that is, the liability of E-Z Mart as the owner/occupier of the premises where her injury occurred. In premises liability actions we have explained that a landowner's duty varies with the status of the entrant. Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, 951 P.2d 1079, 1083-1084; Brown v. Nicholson, 1997 OK 32, 935 P.2d 319, 321. For example, in Pickens, we said:

To a trespasser, a landowner owes in the common law status-based classification system only a duty to avoid injuring him wilfully or wantonly. To a licensee, an owner owes a duty to exercise reasonable care to disclose to him the existence of dangerous defects known to the owner, but unlikely to be discovered by the licensee. This duty extends to conditions and instrumentalities which are in the nature of hidden dangers, traps, snares, and the like. To an invitee, an owner owes the additional duty of exercising reasonable care to keep the premises in a reasonably safe condition for the reception of the visitor. Even vis-a-vis an invitee, to whom a landowner owes the highest duty in this trichotomous classification system, 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. In other words, a landowner owes to an invitee, as well as to a licensee, a duty to protect him from conditions which are in the nature of hidden dangers, traps, snares and the like.

Pickens, 1997 OK 152, 951 P.2d at 1083-1084, (notes omitted).

No party disputes that Thomas has the status of an invitee.

¶10 Thomas argues that E-Z Mart's duty, as an invitor, may not be delegated by E-Z Mart to Core-Mark. In this case E-Z Mart delegated to Core-Mark, by an agreement, the responsibility for maintaining one aspect of ingress and egress to E-Z Mart's property, supplying and maintaining floor mats used at the entrance to the store. E-Z Mart argues that its claim is not about delegating its duty as an invitor, but rather, its right to have the jury apportion liability to Core-Mark as the actual wrong-doer.

¶11 We have explained that whether a duty is non-delegable is a question of law. Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, ¶ 12, 16 P.3d 450, 455-456. We agree with Thomas that, with respect to Thomas, the liability (ultimate legal responsibility) of that duty which is owed to Thomas, as an invitee, cannot be delegated by E-Z Mart.

¶12 We recently discussed nondelegable duties in Copeland v. Lodge Enterprises, Inc., 2000 OK 36, 4 P.3d 695.

¶ 12 Although a hirer ordinarily cannot be held liable for the negligence of an independent contractor, the rule of non-liability does not apply where the hirer contracts for the performance of a duty imposed by law. Hence, while an innkeeper may hire an independent contractor to perform the former's nondelegable duty, he (or she) may not pass off to an independent contractor the ultimate legal responsibility for the proper performance of that duty. Under the nondelegable duty rule, an innkeeper may be held vicariously liable for an independent contractor's failure to exercise reasonable care even if the innkeeper has himself exercised due care.

Copeland, 2000 OK 36, at ¶ 12, 4 P.3d at 700, (emphasis and notes omitted).

We are not alone in describing this duty to an invitee as nondelegable.

As one commentator points out, courts generally agree that the duty of a possessor of land to keep the possessor's premises in a reasonably safe condition for business invitees is a nondelegable duty. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984). See also 41 Am.Jur.2d Independent Contractors § 46, at 815 (1968); Thomas E. Miller, Annotation, Storekeeper's Liability for Personal Injury to Customer Caused by Independent Contractor's Negligence in Performing Alterations or Repair Work, 96 A.L.R.3d 1213 (1979). As one court has noted, the term "nondelegable duty" in this context is somewhat of a misnomer because "the owner is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of nonperformance of the duty." Rowley, 305 Md. at 466, 505 A.2d at 499.

Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 703 (Iowa 1995).

This non-delegable duty is not new. "It is generally agreed that the...