GRAHAM v. CROW

2023 OK CIV APP 49, 541 P.3d 218
CourtCourt of Civil Appeals of Oklahoma
DecidedNovember 17, 2023
Docket2023 OK CIV APP 49
StatusPublished

This text of 2023 OK CIV APP 49 (GRAHAM v. CROW) 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
GRAHAM v. CROW, 2023 OK CIV APP 49, 541 P.3d 218 (Okla. Ct. App. 2023).

Opinion

OSCN Found Document:GRAHAM v. CROW
  1. Previous Case
  2. Top Of Index
  3. This Point in Index
  4. Citationize
  5. Next Case
  6. Print Only

GRAHAM v. CROW
2023 OK CIV APP 49
Case Number: 121559
Decided: 11/17/2023
Mandate Issued: 12/13/2023
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III


Cite as: 2023 OK CIV APP 49, __ P.3d __

ANDREA GRAHAM, Plaintiff/Appellant,
v.
RICHARD J. CROW and NANCY CROW, Defendants/Appellees,
and
CODY TAYLOR, Defendant.

APPEAL FROM THE DISTRICT COURT OF
NOBLE COUNTY, OKLAHOMA

HONORABLE LEE TURNER, TRIAL JUDGE

REVERSED AND REMANDED

Dan L. Holloway, Josh J. Holloway, HOLLOWAY, BETHEA & OTHERS, P.L.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant,

Shanda McKenney, ANGELA D. AILLES & ASSOCIATES, Oklahoma City, Oklahoma, for Defendants/Appellees.

THOMAS E. PRINCE, PRESIDING JUDGE:

¶1 Appellant, Andrea Graham, appeals the District Court's grant of summary judgment in favor of Appellees, Richard and Nancy Crow. This case involves a negligence claim stemming from an automobile accident in which the automobile collided with a stray cow. The foremost issue in this appeal is whether genuine issues of material fact are present in the appellate record concerning the claim that the Crows failed to exercise due care in maintaining their fence and that the cow escaped due to the alleged negligence of the Crow's. Upon review of the summary judgment record and applicable law, we conclude that the trial court erred in granting summary judgment because the record contains conflicting evidence concerning the Crows' alleged breach of their duty to maintain their fence. Accordingly, we reverse and remand for further proceedings.

BACKGROUND

¶2 This case arises out of the personal injuries Appellant, Andrea Graham, sustained in an automobile accident on May 12, 2019, during which the automobile in which she was riding collided with a cow. Graham filed this case exactly two years later, i.e., on May 12, 2021. The Crows filed their Motion for Summary Judgment on or about March 31, 2022. Graham filed her Response and Objection on April 20, 2022.

¶3 The vast majority of the relevant facts are undisputed for purposes of the Crows' Motion for Summary Judgment. For example: it was undisputed that Graham was a front seat passenger in a vehicle driven by Cody Taylor traveling eastbound on Highway 64 from Perry, Oklahoma; that the accident occurred at approximately 11:00, p.m.; that the vehicle struck the cow in the middle of the roadway and that the cow was a black angus; that the impact damaged the vehicle and required that the cow be put down by the Crows; that neither Graham nor Taylor saw where the cow had come from the evening of the accident; that the cow belonged to the Crows; and, that Graham, who was 29 weeks pregnant, was transported to the emergency room complaining of pain to her abdomen, lower back, and upper body, and was subsequently admitted overnight to the hospital for evaluation.

¶4 The central dispute in the Motion for Summary Judgment involved the date of the nine photographs which were alleged to be of the Crows' fence line. Taylor testified1 that he returned to the scene of the accident the day after the accident to try to identify the location where the cow had escaped the fenced property. He testified that he took the various photos of the alleged damaged portion of the fence on May 13, 2019 (i.e., the day following the accident). The Court's review of the photos, while difficult to decipher due to the poor image quality, shows that some depict a portion of a fence which is weighed down, in part, by tree limbs and brush.2 The Court also observes that the various photos raise an apparent question as to whether they all were taken on the same date because it is notable that some of the photos show mostly dry conditions, while some of the other photos (which were taken from inside a vehicle) depict an obvious large pool of water that is under and on both sides of the fence. The presence of water in some of the photos also suggests to the Court that, at the very least, a weather event occurred between the time that some of the various photos were taken. The Court further notes that a reasonable person could conclude from the photos that show a large pool of water that debris had, in fact, piled up and damaged the fence because of the presence of the water. Taylor's testimony added that he followed a cow's set of hoofprints from the roadway to a fence line, where he identified a damaged section of a fence that he believed to be the cow's point of escape from the fenced property. The Crows attempted to discredit the veracity of Taylor's testimony concerning the date of the photos by pointing out that three of the nine photos are date-stamped with the date of March 30, 2020, which is approximately ten months after the accident (a date that also is only about two weeks before Taylor filed his lawsuit against the Crows).

¶5 The Crows' Motion for Summary Judgment set out, as alleged, undisputed fact No. 6, in part, that "[t]he only photographs of the area where the cow allegedly got out were taken on or after May 20, 2019, after a torrential rainfall caused flooding in that area, which damaged the fence." Alleged, undisputed fact No. 6, as written, infers that the photos in question may be reasonably interpreted to depict damage to a fence line which had occurred at some point in time and further show that the damage had been caused by "torrential rainfall [which] caused flooding in that area, which damaged the fence." In response to alleged, undisputed fact No. 6, Graham answered "Denied" and added that "Plaintiff took photos of the area the following day, May 13, 2019."3 Graham's response also attached the photos in question, along with excerpts from Taylor's deposition. In the Reply filed on May 26, 2022, the Crows argued, in part, that Graham's "'beliefs' regarding where the cow came from constitute inadmissible speculation . . . [and that] the photographs claimed to have been taken the day after the accident are clearly stamped '3/20/2020.' More than ten months after the accident at issue."

¶6 In further support of their Motion for Summary Judgment, the Crows submitted Richard Crow's sworn affidavit and their Interrogatory Responses. In Mr. Crow's Affidavit, he attested to visiting the pasture in the early afternoon on the date of the accident and did not notice any damage to the fencing. Mr. Crow maintained that he regularly monitored the condition of the fence and made necessary repairs to ensure it sufficiently contains the livestock. Mr. Crow also attested to the fact that, upon returning to the scene of the accident the following day, he was unable to identify any area where the cow could have escaped his property, nor has he ever been put on notice about his cows escaping until the accident at issue. The Crows' written discovery responses reiterated that Mr. Crow regularly monitors the condition of the fence surrounding the pasture, including the afternoon the accident occurred as well as the day following the accident.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Parklane Hosiery Co. v. Shore
439 U.S. 322 (Supreme Court, 1979)
Carmichael v. Beller
1996 OK 48 (Supreme Court of Oklahoma, 1996)
Shuck v. Cook
1972 OK 25 (Supreme Court of Oklahoma, 1972)
Brown v. Oklahoma State Bank & Trust Co.
1993 OK 117 (Supreme Court of Oklahoma, 1993)
Carver v. Ford
1979 OK 26 (Supreme Court of Oklahoma, 1979)
Kirkpatrick v. Chrysler Corp.
1996 OK 136 (Supreme Court of Oklahoma, 1996)
Malson v. Palmer Broadcasting Group
1997 OK 42 (Supreme Court of Oklahoma, 1997)
Bird v. Coleman
939 P.2d 1123 (Supreme Court of Oklahoma, 1997)
Sperling v. Marler
1998 OK 81 (Supreme Court of Oklahoma, 1998)
N.C. Corff Partnership, Ltd. v. OXY USA, Inc.
1996 OK CIV APP 92 (Court of Civil Appeals of Oklahoma, 1996)
Cities Service Co. v. Gulf Oil Corp.
1999 OK 14 (Supreme Court of Oklahoma, 1999)
Flowers v. Stanley
1957 OK 237 (Supreme Court of Oklahoma, 1957)
Plano Petroleum, LLC v. GHK Exploration, L.P.
2011 OK 18 (Supreme Court of Oklahoma, 2011)
Atkinson, Haskins, Nellins, Holeman, Phipps, Brittingham & Gladd v. Vector Securities, Inc.
2011 OK CIV APP 42 (Court of Civil Appeals of Oklahoma, 2011)
Barnes v. Oklahoma Farm Bureau Mutual Insurance Co.
2000 OK 55 (Supreme Court of Oklahoma, 2001)
Bittle v. Oklahoma City University
2000 OK CIV APP 66 (Court of Civil Appeals of Oklahoma, 2000)
Jackson v. Lankford
1998 OK CIV APP 174 (Court of Civil Appeals of Oklahoma, 1998)
Fargo v. Hays-Kuehn
2015 OK 56 (Supreme Court of Oklahoma, 2015)
Tiger v. Verdigris Valley Elec. Coop.
410 P.3d 1007 (Supreme Court of Oklahoma, 2016)
Benedetti v. Cimarex Energy Co.
415 P.3d 43 (Supreme Court of Oklahoma, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
2023 OK CIV APP 49, 541 P.3d 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-crow-oklacivapp-2023.