Armer v. Golden Corral Corporation
Filing
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ORDER denying 12 defendant's Motion for Summary Judgment (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 8/21/2013. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RITA ARMER, as personal representative, )
of the ESTATE OF MARGARET
)
PHILLIPS,
)
)
Plaintiff,
)
)
vs.
)
)
GOLDEN CORRAL CORPORATION,
)
)
Defendant.
)
Case No. CIV-12-1351-M
ORDER
This case is scheduled for trial on the Court’s September 2013 trial docket.
Before the Court is defendant’s Motion for Summary Judgment, filed July 1, 2013. On July
22, 2013, plaintiff filed her response. On July 30, 2013, defendant filed its reply. Based upon the
parties’ submissions, the Court makes its determination.
I.
Introduction
On October 10, 2010, Margaret Phillips (“Ms. Phillips”), along with her pastor, Dan
Kesterson (“Dan”), and his wife, Cynthia Kesterson (“Cynthia”), visited Golden Corral Restaurant
(“Golden Corral” or “defendant”) in Shawnee, Oklahoma. Upon arriving at Golden Corral’s parking
lot, Ms. Phillips exited from the passenger side of Dan’s vehicle. Dan was driving at that time.
While in the parking lot, Ms. Phillips allegedly tripped over a piece of rebar protruding out of the
parking stop and fell. As a result, Ms. Phillips suffered compound fractures to both her ankles and
a small fracture to her hip. At the time of the accident, Cynthia was walking behind Ms. Phillips and
Dan was getting out of the driver side of his car.
Immediately after the accident, an ambulance took Ms. Phillips to Unity North Hospital
where she remained from October 12, 2010 to October 22, 2010. Subsequently, Ms. Phillips was
admitted to: Solara Rehabilitation Center from October 22, 2010 to November 9, 2010; Sunset
Estates Nursing Home from November 9, 2010 to November 9, 2011; Lexington Nursing Home
from November 9, 2011 to January 31, 2012; and finally, Purcell Hospital where she died on
February 2, 2012. Upon Ms. Phillips’ death, plaintiff, Rita Armer, sister of Ms. Phillips, was
appointed as the personal representative of the estate of Ms. Phillips.
Plaintiff has brought a negligence claim asserting that defendant negligently failed to use
ordinary care to keep its premises in a reasonably safe condition for the use of its invitees and
negligently failed to remove or warn its invitees of any dangerous conditions on the ground, such
as a rebar protruding from the parking curb. Plaintiff alleges that as a result of defendant’s
negligence, Ms. Phillips suffered serious personal injuries; incurred medical expenses; was
prevented from transacting her business; and suffered pain of mind and body, which ultimately lead
to her death. Defendant now moves for summary judgment.
II.
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.
1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
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of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
quotations omitted).
III.
Discussion
Plaintiff asserts that Ms. Phillips fell as a result of an allegedly hazardous condition existing
on defendant’s premises. To prevail on a premises liability negligence claim, a plaintiff must
establish by preponderance of the evidence: (1) a duty owed by the defendant to the plaintiff; (2) a
breach of that duty; and (3) an injury proximately caused by such breach. See Phelps v. Hotel
Mgmt., Inc., 925 P.2d 891, 893 (Okla. 1996).
Defendant contends that there is insufficient evidence showing proximate cause.1
Specifically, defendant asserts that plaintiff relies solely on non-admissible hearsay evidence to
prove proximate cause thereby failing to meet her burden of proving causation. Under Oklahoma
law, a “proximate cause of an event or injury must be that which in a natural and continuous
sequence, unbroken by an independent or supervening cause, produces the event or injury and
without which the event or injury would not have occurred.” Gaines–Tabb v. ICI Explosives, USA,
Inc., 995 F. Supp. 1304, 1312 (W.D. Okla. 1996). “Ordinarily, what constitutes the proximate cause
of an injury is a question of fact . . . [h]owever, the question of proximate cause becomes a question
of law when the facts are undisputed and there is no evidence from which a jury could reasonably
1
For purposes of summary judgment only, defendant concedes that a dangerous condition
existed and that defendant breached a duty by allowing such condition to remain on its property.
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find a causal connection between the allegedly wrongful act and the injury.” Eck v. Parke, Davis
& Co., 256 F.3d 1013, 1023 (10th Cir. 2001) (quoting Lefthand v. City of Okmulgee, 968 P.2d 1224,
1226 (Okla.1998)). Plaintiff, therefore, has the burden of producing sufficient admissible evidence
that would allow a reasonable jury to find that it is more likely than not the rebar was a cause which,
in natural and continuous sequence, led to Ms. Phillips falling and injuring herself and without
which her injury would not have occurred.
At the summary judgment stage, while evidence need not be submitted in a form that would
be admissible at trial, nonetheless, the content or substance of the evidence must be admissible.
Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). The Federal
Rules of Evidence (“FRE”) prohibit the admission of hearsay evidence unless allowed under an
exception. Fed. R. Evid 802. Hearsay evidence “is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). Rule 803(1) of the FRE provides an exception to the general rule
against hearsay for a present sense impression, defined as any statement “describing or explaining
an event or condition made while the declarant was perceiving the event or condition, or
immediately thereafter”.
The Court has carefully reviewed the parties’ briefs and evidentiary submissions. Viewing
the evidence in the light most favorable to plaintiff and viewing all reasonable inferences in
plaintiff’s favor, the Court finds plaintiff has presented sufficient evidence to create a genuine issue
of material fact as to whether Ms. Phillips injuries were proximately caused by defendant’s breach
of duty, specifically whether Ms. Phillips injuries were caused by her tripping and falling on the
piece of rebar allegedly protruding out of the yellow parking stop. Among other evidence, plaintiff
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has provided recorded statements and affidavits of Dan and Cynthia, both present at the time of the
accident, stating they saw Ms. Phillips on the ground immediately after the fall and that when Dan
rushed to Ms. Phillips and asked her what happened, Ms. Phillips pointed to the rebar and said “I
fell on that”. While Ms. Phillips’ conduct and verbal statement is offered to prove the matter
asserted, that she actually did trip and fall over the rebar sticking out, it is admissible evidence
because Ms. Phillips was describing an event that just happened to her seconds ago as she was lying
there. In addition, Cynthia states “[Ms. Phillips] had mark on her ankle . . . . And it looked like
where the bar had hit it”. The above is circumstantial evidence that a reasonable jury could rely on
to find that Ms. Phillips did in fact fall on the rebar.
Defendant argues that these statements are hearsay and not admissible under the present
sense impression exception because these statements were not made as the fall was occurring i.e.
these are non-contemporary statements made after the fall. However, the purpose in requiring
substantial contemporaneity of the event is to substantially minimize the likelihood of fabrication
on the part of the declarant and to greatly reduce the likelihood that the declarant will have
inaccurately remembered the event in question. See Fed.R.Evid. 803(1) Adv. Comm. Notes (1975);
United States v. Manfire, 368 F.3d 83, 840 (8th Cir. 2004). Rule 803(1) “recognizes that in many,
if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable”.
Fed.R.Evid. 803(1) Adv. Comm. Notes (1975). Here, we have the statements of Ms. Phillips made
within seconds of falling while she is still on the ground, corroborated by the statements of Cynthia,
who was right behind Ms. Phillips during the fall, and Dan, although is handicapped and have
trouble walking, who was just on the driver side of the car as Ms. Phillips is falling. These
instantaneous remarks and observations made within seconds after the fall can hardly be called an
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opportunity for Ms. Phillip to fabricate a story or sufficient delay of time to greatly reduce the
likelihood that she will have recalled the event inaccurately. Thus, the Court finds that plaintiff has
submitted sufficient evidence, through the recorded statements and affidavits of Dan and Cynthia,
and the inferences that can be drawn from Ms. Phillips’ statement and the circumstantial evidence
presented, to create a genuine issue of material fact as to whether Ms. Phillips’ injuries were
proximately caused by defendant’s breach of duty.
Accordingly, the Court finds that defendant’s Motion for Summary Judgment should be
denied.
IV.
CONCLUSION
For the reasons set forth above, the Court DENIES defendant’s Motion for Summary
Judgment [docket no. 12].
IT IS SO ORDERED this 21st day of August, 2013.
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