Davis v. City of Tulsa

2004 OK CIV APP 28, 87 P.3d 1106, 75 O.B.A.J. 1215, 2004 Okla. Civ. App. LEXIS 6, 2004 WL 728880
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 24, 2004
DocketNo. 99,075
StatusPublished
Cited by6 cases

This text of 2004 OK CIV APP 28 (Davis v. City of Tulsa) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. City of Tulsa, 2004 OK CIV APP 28, 87 P.3d 1106, 75 O.B.A.J. 1215, 2004 Okla. Civ. App. LEXIS 6, 2004 WL 728880 (Okla. Ct. App. 2004).

Opinion

Opinion by

BAY MITCHELL, Presiding Judge.

[1 Plaintiff/Appellant Linda Davis (Davis) filed an action against Defendant/Appellee The City of Tulsa-Rogers County Port Authority (Port Authority) after being exposed to a release of arsine gas that originated at Tulsa's Port of Catoosa.1 Davis alleges Port Authority is liable under public and private nuisance law for maintaining a hazardous condition. She further asserts Port Authority was negligent and is strictly Hable for failing to protect her from the harm she suffered as a result of the arsine gas release. Port Authority defended, asserting Davis's public and private nuisance claims fail under Oklahoma landlord/tenant law and her remaining causes. of action are barred by Oklahoma's Governmental Tort Claims Act (GTCA). The trial court granted Port Authority's motion for summary judgment. We affirm.2

12 On appeal, Davis's sole proposition is whether it was proper for the trial court to hold her claims barred by the GTCA despite language in 82 O.S.2001 § 1102(a) stating "Itlhe exercise by such port authority of the powers conferred upon it shall be deemed to be essential governmental functions of the State of Oklahoma, but no port authority shall be immune from liability by reason - thereof."

1 3 We will affirm the trial court's grant of summary judgment if no genuine controversy exists as to any material fact and the movant is entitled to judgment as a matter of law. 12 O.S.2001, Ch. 2, App.1, Rule 18. If a legitimate dispute does exist as to a material fact, however, or if reasonable minds could draw different conclusions from the undisputed facts, summary judgment is not appropriate. Brown v. Prudential Properties of Oklahoma, 1999 OK 7, ¶ 7, 976 P.2d 1043, 1045. In evaluating the trial court's grant of summary judgment on appeal, we must view the evidence in the light most favorable to the nonmovant. Vance v. Fed. Nat'l Mtg. Ass'n, 1999 OK 73, ¶ 6, 988 P.2d 1275, 1278.

T4 Port Authority manages a 2,000 acre industrial complex at the Port of Catoosa. [1108]*1108In 1996, Port Authority leased certain real property at that location to Solkatronic Chemical, Incorporated for the purpose of constructing a facility to produce, package, and distribute industrial chemicals and gases. On July 11, 2001, a Solkatronic employee failed to bleed a tank of arsine, causing the valve to blow and the gas to release into the air. Arsine, a gas manufactured by Solka-tronic for use in the semiconductor industry, is a priority pollutant as defined by the Environmental Protection Agency (EPA) that is very harmful to humans. Given the prevailing weather conditions, the gas cloud traveled north after its initial release. Davis was driving on a highway just north of the port at the time, and proceeded to spend an hour out-of-doors consulting with a client in open air that was, unbeknownst to Davis, contaminated with the arsine gas. Several hours later, Davis suffered lung irritation, headaches, diarrhea, vomiting, and pain in her legs and back and was transported to St. Francis hospital She claims to remain in need of medical attention and/or monitoring as a result of her arsine exposure.

15 At some point after the release-too long afterward, Davis argues-Port Authority closed and secured the Port of Catoosa, preventing all persons except medical and emergency personnel from entering. Davis argues Port Authority knew or should have known the release of arsine gas posed an unreasonable risk to humans who might come into contact with it but failed to adequately warn or evacuate people in the affected areas, including those outside the port. She further alleges Port Authority was under a duty to inspect and monitor the safety risks at the Port of Catoosa but failed to do so.

T6 The common-law doctrine of sovereign immunity was abrogated in 1983 by the Supreme Court's decision in Vanderpool v. State of Oklahoma ex rel. Oklahoma Historical Society, 1983 OK 82, ¶ 19, 672 P.2d 1153, 1156-57. The Legislature responded by adopting the GTCA the following year, which codified sovereign immunity for the state, its political subdivisions, and their employees acting within the scope of employment. 51 0.98.2001 § 152.1(A).3

T7 Port Authority is an agency of the State of Oklahoma. 82 O.S.2001 § 1102(a) ("There is hereby established in each incorporated city and town and in each county of the state a public body corporate and politic which shall be an agency of the state of Oklahoma and shall be known as the 'port authority' of the city or town or of the county") (emphasis added). Under section 152 of the GTCA, state agencies are among the political subdivisions subject to the protections of the GTCA. 51 O.S.2001 § 152(10).

T8 Davis argues her tort actions against Port Authority are not barred by the GTCA because The Port Authorities Act, 82 0.8. 2001 §§ 1001 et seq. states "[t]he exercise by such port authority of the powers conferred upon it shall be deemed to be essential governmental functions of the State of Oklahoma, but no port authority shall be immune from liability by reason thereof." 82 O.S. 2001 § 1102(a). When the Legislature promulgated the Port Authorities Act in 1959, and last amended it in 1963, the common-law doctrine of sovereign immunity remained in force.

919 In deciding whether the GTCA supersedes the Port Authorities Act on the issue of immunity from liability, we will not presume "the legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms," Mustain v. Grand River Dam Authority, 2003 OK 43, ¶ 23, 68 P.3d 991, 999 (emphasis in original). In enacting the GTCA,

[the legislature could not have been clearer in expressing its intent that the GTCA form the sole, comprehensive plan for compensating those injured in their person or property by tortious acts of the state, a political subdivision, or of their employees. Section 153 of the Act expressly provides that liability "shall be exclusive and in place of all other hability of the state, a political subdivision or employee at com[1109]*1109mon law or otherwise." Its Section 170 mandates "[this act is exclusive and supersedes all home rule charter provisions and special laws on the same subject. heretofore, and all acts or parts of acts in conflict herewith are repealed.

Mustain v. Grand River Dam Authority, 2003 OK 43, ¶ 24, 68 P.3d 991, 999-1000 (emphasis in original) (holding statute authorizing tort actions against dam authority, enacted prior to GTCA, was superseded by GTCA). The same reasoning applies here. The trial court properly held the GTPCA overrides 82 O.S.2001 § 1102(a) to the extent the earlier statute authorized tort actions against Port Authority.

110 Accordingly, Port Authority's sovereign immunity is waived only to the extent and in the manner provided by the GTCA, with the Act providing the exclusive remedy for tort actions against it. See Fuller v. Odom, 1987 OK 64, ¶ 4, 741 P.2d 449, 452. Section 155 of the GTCA enumerates thirty-two exemptions from liability. Port Authority contends several of these exemptions apply, immunizing it from Davis's negligence allegations.

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Bluebook (online)
2004 OK CIV APP 28, 87 P.3d 1106, 75 O.B.A.J. 1215, 2004 Okla. Civ. App. LEXIS 6, 2004 WL 728880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-city-of-tulsa-oklacivapp-2004.