Kimble v. CR Operating Company et al

Filing 82

MEMORANDUM OPINION AND ORDER. Signed by Honorable Robin J. Cauthron on 5/21/18. (rmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANDREW KIMBLE,

)
)
Plaintiff,
)
)
v.
)
)
CR OPERATING COMPANY, INC., d/b/a )
APPLE CREEK ESTATES and/or
)
APPLE CREEK APARTMENTS, and
)
APPLE CREEK ESTATES, L.L.C.,
)
)
Defendants.
)

Case Number CIV-17-971-C

MEMORANDUM OPINION AND ORDER
Defendant, CR Operating Company, Inc. filed a Motion for Partial Summary Judgment
(Dkt. No. 55). Plaintiff filed a Brief in Opposition (Dkt. No. 58) and Defendant filed a Reply
(Dkt. No. 60). The matter is fully briefed and the motion is now at issue.
I. Background
In early 2015, Andrew Kimble moved into Apple Creek Estates and/or Apple Creek
Apartments (hereafter “Apple Creek Apartments”). Kimble continuously used his balcony to
smoke cigarettes and leaned against the balcony railing on multiple occasions without issue.
On January 25, 2016, Kimble leaned against the railing and fell to the ground. Kimble
suffered numerous injuries when he fell from the second story balcony including head, wrist,
and back injuries with the potential for future surgery to correct additional medical issues.
Kimble underwent multiple surgeries and missed months of work as a result of the fall.
Dr. Vinod Gupta owns Apple Creek Apartments through Apple Creek Estates, LLC.
Dr. Vinod Gupta and his wife, Chandra Gupta, are the only shareholders of CR Operating

Company, Inc., which is the management and operating company for Apple Creek Estates
and/or Apple Creek Apartments.
Plaintiff brought claims for negligence and gross negligence against Defendant, CR
Operating Company, Inc., d/b/a Apple Creek Apartments and Apple Creek Estates, L.L.C.
Plaintiff also seeks to recover punitive damages from Defendants. Plaintiff argues Defendants
recklessly disregarded Plaintiff’s rights from which malice and evil intent can be inferred.
Defendant CR Operating Company, Inc., seeks partial summary judgment on Plaintiff’s
claims for punitive damages.
II. Summary Judgment Standard
A key policy goal and primary principle of Fed. R. Civ. P. 56 is “to isolate and dispose
of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). Fed. R. Civ. P. 56 sets the standard for summary judgment:
A party may move for summary judgment, identifying each claim or defense—
or the part of each claim or defense—on which summary judgment is sought.
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.
Fed. R. Civ. P. 56(a).
Summary judgment is appropriate “after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp., 477 U.S. at 322. “[T]his standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material
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fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). It is also well
established that the “party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion . . . which it believes demonstrate[s]
the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 322. “As to
materiality, the substantive law will identify which facts are material. Only disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson, 477 U.S. at 248. “When the moving party has
carried its burden under Rule 56(c), its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(footnote omitted). “In its review, the Court construes the record in the light most favorable
to the party opposing summary judgment.” Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir.
1998).
III. Analysis
At the outset of this analysis, this Court notes that Defendant Apple Creek Estates,
LLC, is the owner of Apple Creek Apartments. CR Operating Co., Inc. is functioning as a
management company for the landowner, Defendant Apple Creek Estates, LLC. (Mem. Op.
and Order, Dkt. No. 61.) This Court will limit its inquiry to discuss whether there is competent
evidence from which a reasonable jury could find reckless disregard, sufficient to support an
inference of evil intent and malice on the part of moving Defendant.

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Punitive damages are “generally considered to be an element of recovery of the
underlying cause of action; it does not constitute a separate cause of action.” Rodebush v.
Okla. Nursing Homes, Ltd., 1993 OK 160, ¶ 21, 867 P.2d 1241, 1247. Under 23 Okla. Stat.
§ 9.1, “Plaintiffs seek punitive damages pursuant to 23 Okla. Stat. § 9.1 which allows such a
recovery where the jury finds by “clear and convincing evidence” that “the defendant has
been guilty of reckless disregard for the rights of others.” Dutton v. Merit Energy Co., LLC,
No. CIV-13-66-D, 2014 WL 2040615, at *3 (W.D. Okla. May 16, 2014) (quoting 23 Okla.
Stat. § 9.1).
Under the instant circumstances, this Court “must ‘review the summary judgment issue
bearing in mind the heightened evidentiary standard for a [punitive damage] claim under
Oklahoma law.’” Id. at *3 (quoting N. Tex. Prod. Credit Ass’n v. McCurtain Cnty. Nat’l
Bank, 222 F.3d 800, 815 (10th Cir. 2000)). “[T]he inquiry involved in a ruling on a motion
for summary judgment . . . necessarily implicates the substantive evidentiary standard of proof
that would apply at the trial on the merits.” Anderson, 477 U.S. at 252. “Under § 9.1, for
punitive damages to be allowed there must be evidence, at a minimum, of reckless disregard
toward another’s rights from which malice and evil intent may be inferred.” Badillo v. Mid
Century Ins. Co., 2005 OK 48 ¶ 66, 121 P.3d 1080, 1106. “One acts with reckless disregard
if he ‘was either aware, or did not care, that there was a substantial and unnecessary risk that
[his] conduct would cause serious injury to others.’” Therrien v. Target Corp., 617 F.3d 1242,
1259 (10th Cir. 2010) (quoting Okla. Unif. Civil Jury Instr. No. 5.6 (3d ed. 2008 & Supp.
2014)). The level of conduct “must have been unreasonable under the circumstances, and
also there must have been a high probability that the conduct would cause serious harm to
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another person.” Okla. Unif. Civil Jury Instr. No. 5.6 (3d ed. 2008 & Supp. 2014). “While
the proof for punitive damages will probably overlap with that of the underlying cause of
action, the plaintiff need not prove all elements of the underlying cause of action by clear and
convincing evidence.” Rodebush, 1993 OK 160, ¶ 23, 867 P.2d at 1247-48. The Tenth
Circuit further “interpret[ed] the clear language of the statute to mean that only those specific
types of conduct which would support an award of punitive damages must be shown by clear
and convincing evidence.” Id. at 1248.
Defendant argues that “punitive damages are reserved for cases of extreme and
outrageous behavior which shows a clear disregard for human life.” (Pl.’s Mot. for Summ.
J., Dkt. No. 55, p. 26) (emphasis omitted). Defendant argues that it is not an “insurer of the
Plaintiff’s safety.” (Id.) Defendant analogizes Therrin, 617 F.3d at 1246-47, and draws a
factual parallel between that case and the instant circumstances. In Therrin, the Tenth Circuit
affirmed that a department store’s policies and procedures did not create a “high probability
of serious harm to another person.” Id., 617 F.3d at 1259. The Court found that it would be
unreasonable to infer evil intent from mere negligence. Id. Defendant characterizes that,
similar to the instant circumstances, in Therrin the “plaintiff’s injury constituted an
unforeseen, albeit foreseeable, accident.” (Pl.’s Mot. for Summ. J., Dkt. No. 55, p. 27-28.)
Defendant cites multiple other cases where the level of conduct reached in the case only
involved negligence; here, Plaintiff is also claiming gross negligence. Defendant argues that
even though Gupta was responsible for making decisions regarding inspecting and
maintaining the Apple Creek Apartments, the fault lies with the independent contractor,
Armor Siding, LLC. Defendant spends the entirety of its brief arguing that CR Operating Co,
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Inc., and Gupta had no idea or notice of the danger posed by the removal of the wooden blocks
on Plaintiff’s balcony.
Plaintiff argues that it is not “required to prove reckless conduct. He must only show
this Court a piece of circumstantial or direct evidence that could create an inference of reckless
conduct.” (Pl.’s Brief in Opp. to Def. Mot. for Summ. J., Dkt. No. 58, p. 24.) Plaintiff argues
“there are numerous disputed material facts that support, at a minimum, an inference of gross
negligence, reckless conduct and/or willful disregard by CR Operating.” (Pl.’s Brief in Opp.
to Def. Mot. for Summ. J., Dkt. No. 58, p. 24.) Plaintiff focuses his argument on the lifethreatening danger that was created by the independent contractor, hired by Apple Creek
Estates, LLC, to complete renovations on the apartment complex.
In the instant circumstances, the parties do not dispute that Plaintiff leaned against the
balcony railing and fell through the balcony railing because Armor Siding, LLC, failed to
properly secure the railing. However, there is a genuine issue of fact regarding Defendant’s
knowledge about the independent contractor’s quality of work that could support an inference
of reckless conduct.
Q. So, if I understand your testimony, you said that in some of these
inspections, comments would be made about needing to replace wood that had
rotted?
A. Yes.
Q. And you’re now saying those comments didn’t have anything to do with
you choosing to do the renovation?
A. Sir, in their inspections, they would say, like, Building number six, we
noticed, you know, this wood in the far facia is bad, please replace it. So it’s
like piecemeal here, piecemeal there, whatever they suggest us, we would to
[sic] that.
(Pl.’s Mot., Dkt. No. 58-1, p. 98, ll. 3-14 .)
Q. Did you have any concerns about his workmanship?
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A. You know, it was like - - I personally never pointed any workmanship or
anything, but it was very obvious that he’s failing.
(Pl.’s Mot., Dkt. No. 58-1, p. 178, ll. 21-25)
Dr. Gupta also testified that there were issues with the contractor’s level of work and
work product “[the contractor] was not following anything, he was not supervising.” (Pl.’s
Mot., Dkt. No. 58-1, p. 178, ll. 4-5). Here, there is a lack of information and conflicting
testimony between Kayla Stone and Dr. Gupta regarding whether Defendant CR Operating
Co. knew whether the wooden trim was being removed from the balcony and the potential
consequences of removing the wood trim. Kayla Stone also made statements that the
independent contractor was not meeting certain workmanship standards. (Def.’s Mot., Dkt.
No. 55-6, p. 171 ll. 1-25, p. 172, ll. 1-25.)
Additionally, there are also disputed genuine issues of material fact regarding whether
notice about the balcony work was given to Plaintiff. The work on the balcony was completed
over a period of months and the work was potentially life-threatening.
Dr. Gupta testified:
A. And if I remember, when the balcony work started, that when we started
repairing all the balconies, all the notices were given to the tenants at that
time that we are working on your balconies and please refrain from going
to your balconies. So, we took all the precautions when the balcony work
started and we were repairing all the balconies.
(Pl.’s Mot., Dkt. No. 58-1, p. 83, ll. 9-15.)
Plaintiff Kimble testified:
Q. And when you got back was there a notice on your door that told you not to
go out on your balcony?
A. No, sir.
Q. You never saw that?
A. No, sir.
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Q. Did you ever see any notices that were put up saying, ‘dear residents, don’t
go out on your balcony because we’re doing work?’
A. No, sir.
(Pl.’s Mot., Dkt. No. 58-4, p. 150, ll. 10-19.)
Defendant relies solely upon the idea that Armor Siding, LLC, functioning as an
independent third contractor, is solely responsible for the project to secure the balcony’s wood
trim. Plaintiff has presented evidence that refutes the timeframe of the repairs, the quality of
the work, and whether proper notice was given, and that Defendant was generally aware that
the independent contractor was not meeting agreed upon workmanship standards. The
standard of proof to entitle Plaintiff to punitive damages is a high one. However, viewing the
current evidence in the light most favorable to Plaintaiff, this Court finds that there are genuine
issues of material fact that suggest a basis for Plaintiff’s punitive damages recovery.
IV. Conclusion
As a result of this analysis, Defendant, CR Operating Company, Inc.’s, Motion for
Partial Summary Adjudication of Plaintiff’s Claim for Punitive Damages (Dkt. No. 55) is
DENIED.
IT IS SO ORDERED this 21st day of May, 2018.

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