Weldon v. Dunn

• Decision Date: 14 July 1998
• Docket Number: No. 88166,88166
• Citation: 962 P.2d 1273,1998 OK 80
• Parties: 129 Ed. Law Rep. 485, 1998 OK 80 Marilyn Sue WELDON, Appellant, v. Charles DUNN, Individually, Charlene Dunn, Individually, Shirley Smith, Individually, Charles Dunn and or Charlene Dunn and or Shirley Smith, d/b/a Poteau Beauty College, Appellees.
• Court: Oklahoma Supreme Court

Page 1273

962 P.2d 1273

129 Ed. Law Rep. 485, 1998 OK 80

Marilyn Sue WELDON, Appellant, v. Charles DUNN, Individually, Charlene Dunn, Individually Shirley Smith, Individually, Charles Dunn and or Charlene Dunn and or Shirley Smith d/b/a Poteau Beauty College, Appellees.

No. 88166.

Supreme Court of Oklahoma.

July 14, 1998.

Certiorari to the Oklahoma Court of Civil Appeals, Division 2.

¶0 The District Court of Leflore County, Hon. George McBee presiding, granted summary judgment to Beauty College in suit by student. Certiorari granted to review the opinion of the decision of the Court of Civil Appeals which held summary judgment was improper. We hold that there were no material facts in dispute and summary judgment was proper.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; JUDGMENT OF TRIAL COURT AFFIRMED.

Lewis A. Berkowitz, Berkowitz Law Firm, Inc., Tulsa, for Appellant Marilyn Sue Weldon.

Tom H. Gudgel, III and Neal E. Stauffer, Stauffer, Rainey, Gudgel & Hathcoat, Tulsa, for Appellees Charlene Dunn and Charles Dunn.

Jerry Fraley and Virginia C. Holleman, Cathcart, Gofton & Fraley, Oklahoma City, for Appellee Shirley Smith.

SUMMERS, Vice Chief Justice.

¶1 Beauty college student claims to have injured her back helping a client return to a sitting position after washing the client's hair. She sued the college and its owners in District Court for her injuries. The only ¶2 Marilyn Sue Weldon filed suit, alleging that she was injured when the salon chair she was operating as a student of the Poteau Beauty College failed to work properly. She had washed the hair of a woman with the chair in a reclining position. The chair did not spring back, and due to previous injury the client had to be helped into an upright position. Weldon claims to have injured herself while positioning the client upright. She claims that the chair was located in close proximity to a manicure table, and that in maneuvering around this table as she lifted her customer, she twisted her back. She also claims that she was not given adequate instruction about lifting a person into an upright position. Defendants do not concede she was injured as alleged, but for summary judgment purposes we take her version as true. Flanders v. Crane, 1984 OK 88, 693 P.2d 602, 605 (Okla.1984).

question is whether the trial court correctly ordered summary judgment for the defendants. We conclude that it did, and affirm.

¶3 In her petition she stated three theories of recovery: (1) premises liability, (2) products liability and (3) negligence. She later attempted to file an amended petition, stating as additional theories of recovery (1) professional liability and (2) breach of fiduciary duty. This amended petition was not timely filed, and the record is devoid of any leave granted by the trial court to file it.

¶4 The trial court held that the cause of action for breach of fiduciary duty was not timely filed, that the cause of action for professional liability was in substance the same as breach of fiduciary duty, and that otherwise, no such cause of action existed. As for the theory of premises liability, the trial court held that the claimed defect (in the chair) was open and obvious, thus barring any recovery. The trial court held that Weldon failed to state a claim for products liability ¹, and that her cause of action for failure to instruct was not supported because there was no breach of duty by defendants. Summary judgment was granted and Plaintiff appealed.

¶5 The Court of Civil Appeals agreed that summary judgment was proper as to her theories of breach of fiduciary duty, professional liability, and products liability. However, the court held that there were factual issues remaining that could not be determined as a matter of law, and reversed and remanded with regard to the premises liability and failure-to-instruct theories. We granted certiorari.

¶6 We look first to the question of whether the trial court was correct in its ruling with regard to the professional liability and breach of fiduciary duty theories. These theories were not pled in the first petition. The amended petition was admittedly untimely filed, and defendants did not consent to such amendment. The trial court recognized that the amended petition was untimely, took the matter under advisement, and granted summary judgment under these theories. The trial court's ruling was correct. An amended petition, untimely filed and filed without leave of court or consent of the opposing party, is a nullity. Hunter v. Echols, 1991 OK 114, 820 P.2d 450, 452 (Okla.1991). It must be treated as if it was never filed. Id. at 453.

¶7 Weldon also sought recovery under theories of premises liability and the Beauty College's failure to give adequate instructions. In reversing the trial court, the Court of Civil Appeals relied on language used in the amended petition rather than the original petition. The court found that Weldon had alleged that the Beauty College "owed a duty to the Plaintiff to warn the Plaintiff of lifting requirements and to properly teach the Plaintiff to lift so as to avoid the hazards of the lifting requirement" and "wilfully or recklessly or negligently failed to teach the Plaintiff how to lift and or warn the Plaintiff of the lifting requirements." Because of these factual allegations the appellate court reversed and remanded.

¶8 Reliance on these factual assertions found only in the amended petition was error. Mere allegations in a pleading unsupported by evidentiary material in response to ¶9 We must now determine whether the documents properly in the record, and before the trial court for its consideration, set forth any material facts which remain disputed. The following facts are uncontroverted. Weldon was a student receiving instruction from the Beauty College. She had used the chair in question on prior occasions, and knew the chair malfunctioned on an intermittent basis. With that knowledge she chose the chair for this job. A manicure table was in close proximity to the chair. When the chair malfunctioned Weldon attempted to lift a woman into the upright position. At the time of her injury there was no instructor standing with her. Approximately one month before the incident, the Beauty College had been inspected by an inspector from the Oklahoma State Board of Cosmetology, and the chairs and shampoo bowls were found to be in satisfactory condition. In the application Weldon had been informed of the physical demands of having a cosmetology career.

                a motion for summary judgment will not defeat the motion if it is otherwise good.  Stephens v. Yamaha Motor Co., 1981 OK 42, 627 P.2d 439 (Okla.1981) (once party asserting the motion for summary judgment shows there is no material controversy, the party opposing motion cannot rely solely on pleading but must present evidentiary material.)   Further, these allegations are located only in the amended petition. 2  As stated in Hunter, an amended petition filed out of time and without consent of court or the opposing party must be considered as if it were never filed.  Id
                

¶10 Weldon's remaining theories of recovery are based on negligence. She claims negligence on the part of the beauty college operator occurred in two ways. First, she claims that as an invitor, the beauty college had a duty to warn her of dangers, such as the malfunctioning chair, which were not open and obvious. Second, she claims that as her instructor, the beauty college had a duty to instruct her on how to lift clients.

¶11 Both of Weldon's theories hinge on a duty owed by the beauty college, either to warn her of hidden dangers or to give her proper instruction. One of the most important considerations in establishing a duty is foreseeability. Delbrel v. Doenges Bros. Ford Inc., 1996 OK 36, 913 P.2d 1318 (Okla.1996). Foreseeability is critical as it determines (1) to whom a duty is owed and (2) the extent of the duty. A defendant owes a duty of care only to foreseeable plaintiffs. See Haas v. Firestone Tire and Rubber Co., 1976 OK 178, 563 P.2d 620, 625 (Okla.1977). As for the extent of the duty, it too is determined in great part by the foreseeability of the injury. Bradford Securities Processing Serv. v. Plaza Bank & Trust, 1982 OK 96, 653 P.2d 188 (Okla.1982). "Whenever the circumstances attending a situation are such that an ordinarily prudent person could reasonably apprehend that, as the natural and probable consequences of his act, another person will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises." Id. at 190.

¶12 In Rogers v. Hennessee, 1979 OK 138, 602 P.2d 1033 (Okla.1979), we discussed premises' owner's duty in the setting of a beauty school. There, a student brought a negligence suit, alleging that the owner of the school was responsible for injuries received when she slipped and fell in a puddle by the shampoo bowls. We agreed that the status between the parties was invitor-invitee. ³

The law casts on the invitor the duty to exercise reasonable care to keep the premises in a reasonably safe condition and to warn invitees of conditions which are in the nature of hidden dangers, traps, snares, pitfalls and the like. All normal or ordinary risks incident to the use of the premises are assumed by the invitee. No liability arises for any injury resulting from dangers which are so apparent or readily Id. at 1034. We went on to explain that what constitutes a hidden danger depends on the physical surroundings and on the use made of them at the time of the injury. Id. citing Henryetta Construction Co. v. Harris, 1967 OK 213, 408 P.2d 522 (Okla.1965); see also Jack Healey Linen Serv. Co. v. Travis, 1967 OK 88, 434 P.2d 924, 927 (Okla.1967). The student's familiarity with the general circumstances does not automatically transform a danger into an open and obvious defect; rather the condition is judged by objective, not subjective, standards. Id.

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