Young v. Bob Howard Automotive, Inc., 95,849.

• Decision Date: 23 July 2002
• Docket Number: No. 95,849.,95,849.
• Citation: 52 P.3d 1045,2002 OK CIV APP 80
• Parties: Carroll YOUNG and Alvin Young, Individually and as Co-Administrators of the Estate of Ataienza Alvin Young, Deceased, Plaintiffs/Appellants, v. BOB HOWARD AUTOMOTIVE, INC., an Oklahoma corporation, d/b/a Bob Howard Mitsubishi, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

52 P.3d 1045

2002 OK CIV APP 80

Carroll YOUNG and Alvin Young, Individually and as Co-Administrators of the Estate of Ataienza Alvin Young, Deceased, Plaintiffs/Appellants, v. BOB HOWARD AUTOMOTIVE, INC., an Oklahoma corporation, d/b/a Bob Howard Mitsubishi, Defendant/Appellee.

No. 95,849.

Court of Civil Appeals of Oklahoma, Division No. 4.

July 23, 2002.

Roland V. Combs, III, Roland V. Combs & Associates, Oklahoma City, OK, for Plaintiffs/Appellants.

Reggie N. Whitten, Kent R. McGuire, Derrick T. DeWitt, Whitten, Nelson, McGuire, Wood, Terry, Roselius & Dittrich, Oklahoma City, OK, for Defendant/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4. Opinion by JOE C. TAYLOR, Presiding Judge.

¶ 1 Plaintiffs, Carroll and Alvin Young (Parents), appeal an order of the trial court granting summary judgment to Defendant, Bob Howard Automotive (Bob Howard). In this negligence action arising out of the death of Parents' son, Ataienza Alvin Young (A.J.), the issue is whether the uncontroverted facts show that Bob Howard owed a duty to protect A.J. from the criminal acts of a third party. We find that they do not and affirm the trial court's order.

FACTS

¶ 2 Bob Howard contracted with Golden Eagle Security, Inc., for security services to be provided at its automobile dealership. Golden Eagle provides three different types of security service: unarmed officers, armed officers, and patrol service. Bob Howard chose the first type of service, two unarmed officers. Bob Howard chose unarmed security officers because it wanted them to be present at the dealership lot, patrol the lot, and contact police in the event of trouble.

¶ 3 A.J. was employed by Golden Eagle Security as a security guard and was assigned to one of the unarmed posts at Bob Howard's dealership. On the night of August 24, 1996, A.J. was working his assigned night shift when an intruder, who came onto Bob Howard's premises to steal cars, murdered A.J. His parents brought this negligence action against Bob Howard. Bob Howard moved for summary judgment, arguing that it did not owe a duty to protect A.J. from the criminal acts of third parties. The trial court granted summary judgment to Bob Howard, and Parents appeal.

ANALYSIS

¶ 4 In a negligence action, "the first prerequisite must be to establish the existence of a legally cognizable duty." First Nat'l Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, ¶ 17, 54 P.3d 100

(petition for rehearing pending). Whether one person owes a duty to another is a question of law and often depends on the relationship of the parties. Id. "The court decides whether a defendant stands in such a relationship to a plaintiff that the defendant owes an obligation of reasonable conduct for the benefit of the plaintiff." Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 7, 913 P.2d 1318, 1320-21. We review questions of law de novo; meaning, we have "plenary, independent, and non-deferential authority to re-examine the [trial court's] legal rulings." Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, ¶ 14, 16 P.3d 450, 456.

¶ 5 "Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law." Allen v. Lynn Hickey Dodge, Inc., 2001 OK 93, ¶ 5, 39 P.3d 781, 783. The summary judgment process "is a search for undisputed material facts that would support but a single inference which favors the movant." Shamblin v. Beasley, 1998 OK 88, ¶ 9, 967 P.2d 1200, 1208. Our standard of review on an appeal from a summary judgment is clear. Although a trial court considers factual matters when deciding whether summary judgment is appropriate, its ultimate decision is purely legal: whether one party is entitled to judgment as a matter of law because there are no material disputed facts. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, our standard of review on appeal is de novo. Id.; see also Copeland v. The Lodge Enter., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699

. "Like a trial court, an appellate court examines the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact and, as in the trial court, all inferences and conclusions arising from the evidentiary materials are viewed in a light most favorable to the non-moving party." Cranford v. Bartlett, 2001 OK 47, ¶ 2, 25 P.3d 918, 920 (citation omitted).

A. Bob Howard's duty to protect A.J. from the criminal acts of a third party.

¶ 6 An independent contractor doing work on another's premises is an invitee. McKinney v. Harrington, 1993 OK 88, ¶ 8, 855 P.2d 602, 604. As the invitor, the owner owes the independent contractor and its employees "a duty to keep the premises reasonably safe for the performance of the work." Id. at ¶ 9, 855 P.2d at 604. "This duty applies only to conditions or defects in the nature of hidden dangers, traps, snares or pitfalls that are not known or readily observed by the invitee." Id. The invitor is liable for injuries to its invitees if the invitor knew or should have known of the dangerous condition but failed to warn the invitee. Id. The invitor is not, however, an insurer of the safety of its invitees and is not required to prevent all injury occurring on the property. Taylor v. Hynson, 1993 OK 93, ¶ 16, 856 P.2d 278, 281.

¶ 7 Generally, an invitor does not have a duty to protect invitees from criminal acts by third persons. Id. at ¶ 17. However, the Oklahoma Supreme Court has recognized an exception to this general rule in "unique" or "exceptional circumstances." Id. at ¶¶ 19-20, 856 P.2d at 281-82. Exceptional circumstances are found where "the invitor knows or has reason to know `that the acts of the third person are occurring, or about to occur.'" Id. at ¶ 17, 856 P.2d at 281 (quoting Restatement (Second) of Torts § 344 cmt. f (1965)). In other words, "[t]he invitor will not be responsible for injury unless the invitor has notice or could be charged with gaining knowledge of the situation in time to remove it or to give warning of its presence." McClure v. Group K Enter., Inc., 1999 OK CIV APP 29, ¶ 4, 977 P.2d 1148, 1150.

¶ 8 The record is devoid of any evidence showing that Bob Howard knew that "the acts of the [intruder] were occurring or were about to occur." The evidence presented to the trial court showed that the incident occurred at night, when none of Bob Howard's employees were present. One of Golden Security's employees discovered A.J.'s body, but the assailant, Anthony Bush, had already left. Parents have simply failed to present any evidence that Bob Howard knew that the attack on A.J. was occurring or about to occur.

¶ 9 By focusing on the history of car thefts at Bob Howard's dealership, Parents attempt to show that Bob Howard knew or should have known that A.J. would be attacked. However, Parents fail to show that Bob Howard knew or should have known that this particular incident was occurring or about to occur. See Folmar v. Marriott, Inc., 1996 OK CIV APP 51, ¶ 5, 918 P.2d 86, 88

("A review of Oklahoma Supreme Court cases has found that a duty on the part of proprietors only arises when the situation involved an immediate event which the proprietor knew was occurring or about to occur.").

¶ 10 Moreover, Parents presented no evidence of criminal history foreshadowing this type of violent criminal activity. Although Bob Howard had experienced crimes such as car theft, vandalism, and embezzlement (involving someone taking a car with permission and not returning it) at its lot, it had not experienced violent crimes on the premises. In particular, prior to A.J.'s murder, no security guard had been harmed by confronting anyone on the property. Bob Howard also presented evidence of limited criminal activity in the area surrounding the dealership, and a particularly low incidence of violent criminal activity. There is no evidence in the record to show that Bob Howard knew or should have known of the criminal activity of Anthony Bush that led to A.J.'s murder.

¶ 11 McMillin v. Barton-Robison Convoy Co., 1938 OK 241, 78 P.2d 789, is instructive on the issue of Bob Howard's duty to protect A.J. from the criminal acts of a third party. In McMillin, the defendant's employee was murdered on the defendant's premises by robbers who were engaged in stealing an automobile. The defendant's premises were located within a town that allegedly had a high crime rate. Because cars had been stolen from the defendant's premises, the defendant hired guards to protect it. The Oklahoma Supreme Court refused to impose liability on the defendant, finding that (1) an employer does not have a general duty to protect its employees from the assaults of criminals, and (2) there were "no exceptional circumstances" surrounding the employee's death which would give rise to such a duty. Id. at ¶ 10, 78 P.2d at 790.

¶ 12 Parents also argue that Bob Howard increased A.J.'s risk of homicide by providing A.J. and the other security guards with access to all the vehicles on the lot. In particular they focus on the fact that Anthony Bush had worked for Golden Security and knew that the security guards at Bob Howard had access to the vehicles. Parents, however, fail to link this fact with the fact of the homicide — there is no evidence that Anthony Bush knew A.J. and other Golden Security employees had access to the cars, that Anthony Bush stole cars by using A.J.'s key, or that the access caused A.J.'s murder.

B. Bob Howard's duty to provide A.J. with a reasonably safe place to work.

¶ 13 Parents argue that Bob Howard breached its duty to provide A.J. with a reasonably safe place to work. Generally, a hirer of an independent contractor will be liable to the independent contractor and its employees "for an injury occasioned by an unsafe condition of the premises encountered in the work, which is known to the property owner...