Mitchell v. Cox

1997 OK 139, 948 P.2d 317, 68 O.B.A.J. 3614, 1997 Okla. LEXIS 127, 1997 WL 691397
CourtSupreme Court of Oklahoma
DecidedNovember 4, 1997
Docket88664
StatusPublished
Cited by9 cases

This text of 1997 OK 139 (Mitchell v. Cox) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. Cox, 1997 OK 139, 948 P.2d 317, 68 O.B.A.J. 3614, 1997 Okla. LEXIS 127, 1997 WL 691397 (Okla. 1997).

Opinions

WATT, Justice.

¶ 1 Plaintiff Mitchell sued Defendant Cox IGA for damages arising from an accident occurring on Cox’s premises on July 8, 1993. Mitchell, an employee of Farm Fresh, Inc., had unloaded about 130 cases of milk from the bed of his delivery truck onto the platform of a hydraulic lift that was attached to the outside of the Cox IGA building, located in Newkirk, Oklahoma. The lift was designed to lower cargo from the level of the truck bed from which it had been unloaded to the ground. Mitchell and a Cox employee, who was operating the lift, were standing on its platform. While Cox’s employee lowered the lift, two chains that were part of its mechanism parted, causing the platform to fall approximately three feet to the ground and injure Mitchell.

FACTS AND PROCEDURAL HISTORY

¶ 2 The lift was a part of Cox’s grocery store operation and was owned and maintained by him. Learning Construction and Manufacturing Company installed it for Cox’s predecessor, C & B IGA, in 1981. Learning modified a fork lift’s lift mechanism for C & B and attached it to the side of C & B’s building. While C & B had the store, Learning repaired damage caused by trucks having struck the lift on three or four occasions. Cox bought the store in August 1992. Between Cox’s acquisition of the store and the Mitchell accident Learning worked on the lift on only one occasion, to replace a hydraulic pump that failed.

¶3 Following Mitchell’s accident, Learning Construction and Manufacturing repaired the lift for Cox. The Learning employee who did the repair work disposed of the chains that had failed after he replaced them.

¶4 Mitchell retained an expert, William R. Coleman, who prepared an affidavit and [319]*319testified in a deposition taken by Cox’s lawyers. Coleman’s testimony revealed that he was a Registered Professional Engineer, employed as a Consulting Engineer with Associated Metallurgists, located in Norman, Oklahoma. He had studied the design, operational characteristics, and failure modes of lifting equipment. Coleman testified that he had reviewed the depositions of Mitchell, Cox, and two of Cox’s employees, as well as the affidavit of Les Learning, who had installed and serviced the lift. He also consulted with Learning concerning the capabilities of the lift, inspected the lift, and reviewed photographs. of it taken after Mitchell’s accident. Although the photographs Coleman referred to are not part of the record here, he testified that they revealed damage to the structural framework and cargo bed of the lift, which showed that the lift was in a state of disrepair. Coleman also concluded that Cox had negligently failed to maintain the lift, and that it should have been retired from service.

ISSUE

¶ 5 The sole issue here is whether the trial court erred in granting Cox’s motion for summary judgment? We answer “yes” to the question.

DISCUSSION

¶6 In deciding whether the trial court erred in granting Cox’s motion for summary judgment, we must examine a sub-issue:

Based on the record, may it be said that, as a matter of law, an instruction on res ipsa loquitur would be inappropriate at a trial of this case?

We answer “no.”

¶ 7 Preliminary to our discussion of the specific issue we note the standard of review when considering the propriety of a trial court having granted a motion for summary judgment:

... all inferences and conclusions to be drawn from the underlying facts contained in the record should be viewed in the light most favorable to the party opposing the motion for summary judgment.

Rose v. Sapulpa Rural Water Co., 1981 OK 85, 631 P.2d 752, 754.

An Instruction on The Res Ipsa Loquitur Doctrine May Be Appropriate if the Proof at Trial Were Consistent With Record Here.

¶ 8 In Qualls v. U.S. Elevator Corp., 1993 OK 135 ¶ 7, 863 P.2d 457, 460 we described res ipsa loquitur:

Res ipsa loquitur is a pattern of proof which may be applied to an injury that does not occur in the usual course of everyday conduct unless a person who controls the instrumentality likely to produce injury fails to exercise due care to prevent its occurrence- The fundamental element of this evidentiary process is “the control of the instrumentality” which caused the damage.

[Footnotes omitted.] There we held that a res ipsa loquitur instruction was proper in a case where a passenger was injured when an automatic elevator in a hospital had failed. We held that because the plaintiff had no control over the elevator’s mechanisms after she pressed the button to put it into operation, it was within the exclusive control of the defendant elevator maintenance company that had a maintenance contract on the elevator.

¶ 9 When applied by the trier of fact, the res ipsa loquitur doctrine gives the plaintiff the benefit of an inference that the defendant’s negligence was the cause of the failure of an instrumentality if (1) the instrumentality was within defendant’s exclusive control when it failed, and (2) failure of such an instrumentality ordinarily does not occur “when due care is exercised in the appliance’s construction, installation, and maintenance by the person charged with those responsibilities.” Qualls, 863 P.2d at 460. The reason for the rule is that, even after examination by plaintiffs experts following an accident, it is often difficult to develop evidence concerning negligence. Under such circumstances it is fairer to require the- party who controlled and was responsible for the instrumentality to come forward with proof of the reason for the instrumentality’s failure than [320]*320to require the plaintiff, who had no control over it, to do so.

¶ 10 Here Mitchell alleges that the lift was within the exclusive control of Cox’s employees; Mitchell was a passenger who had to rely on Cox and his employees for his safety while he was on the lift. These facts alone show that it would be inappropriate to say as a matter of law that Mitchell would not be entitled to a res ipsa loquitur instruction.

¶ 11 The Court of Civil Appeal’s opinion relied on the fact that the lift was outside instead of enclosed as had been the elevator in Qualls as a justification for its conclusion that res ipsa loquitur was not available to Mitchell. The opinion also relied on deposition testimony that delivery truck drivers had, at other times, operated the lift themselves, and that Cox’s employees regularly inspected the lift and oiled its chains. These factors are insufficient to deprive Mitchell of a right to have the jury instructed on the issue, they are instead for the trier of fact to consider in deciding whether to apply res ipsa loquitur.

¶ 12 The lift was a heavy, complex, and potentially dangerous, piece of industrial machinery. It was owned by Cox and he and his employees were responsible for its safe operation. Mitchell was unable to protect himself while he was on the lift. He had to rely on Cox and his employees to preserve his safety. Under the circumstances it is fair to allow submission of the res ipsa loquitur pattern of proof here. We stress that the doctrine affords but an option for the jury. The Uniform Instruction on res ipsa loquitur

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Cite This Page — Counsel Stack

Bluebook (online)
1997 OK 139, 948 P.2d 317, 68 O.B.A.J. 3614, 1997 Okla. LEXIS 127, 1997 WL 691397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-cox-okla-1997.