Rowell v. El Reno Junior College Foundation, Inc.

1993 OK 170, 910 P.2d 962, 65 O.B.A.J. 20, 1993 Okla. LEXIS 195, 1993 WL 527409
CourtSupreme Court of Oklahoma
DecidedDecember 21, 1993
DocketNo. 75428
StatusPublished
Cited by2 cases

This text of 1993 OK 170 (Rowell v. El Reno Junior College Foundation, Inc.) 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
Rowell v. El Reno Junior College Foundation, Inc., 1993 OK 170, 910 P.2d 962, 65 O.B.A.J. 20, 1993 Okla. LEXIS 195, 1993 WL 527409 (Okla. 1993).

Opinion

HARGRAVE, Justice.

The issue before us is whether the trial court erred in granting summary judgment to defendants on the grounds that plaintiff Beamard Rowell was a trespasser and that Rowell’s own actions were the cause of his injury. We find that the trial court properly granted summary judgment.

Plaintiff Beamard Rowell was employed by Mark Stevenson to help convert a former railroad office building into an apartment building. Plaintiff went onto defendants’ property1 to remove three or four old telegraph poles because his employer found them unsightly. The land in question had been acquired by the Oklahoma Department of Transportation on August 26, 1982, upon the bankruptcy of Chicago, Rhode Island and Pacific Railroad. On October 4, 1982 the Department of Transportation entered into a Lease-Purchase & Operating Agreement with Oklahoma, Kansas and Texas Railroad Co. (Railroad) covering the Rock Island general office building in El Reno and a parcel of land surrounding the building. This property was adjacent to the railroad’s main line through El Reno. The telegraph poles were located within fifty (50) feet of the railroad’s main line.

On July 1, 1985, Railroad leased the building and an area surrounding the building, covering a total of approximately 56,810 square feet, to El Reno Junior College Foundation (Foundation) for maintenance of a student dormitory, married student housing and other auxiliary enterprises. Later the Foundation purchased the fee interest in the building and a small portion of the land surrounding it (approximately 22,000 square feet). The land purchased did not include that portion of the lease upon which the telegraph poles were located. The Foundation built a fence on its boundary between the Railroad’s main line and the leased premises. The Foundation did not renovate the office building and on February 6, 1987, Foundation sold the building and land, totaling approximately 22,000 square feet, to Mark Randall Stevenson, who planned to convert the Rock Island office building into apartments for the elderly. Mr. Stevenson hired Bearnard Rowell as a laborer on the project.

On May 21, 1987, Rowell and his job-site supervisor, Don Stevenson, went onto the premises owned or leased by appellees to remove three or four “unsightly” telegraph poles. The poles were not located on Stevenson’s property, and defendants were never informed of any intent to remove or otherwise interfere with their poles. Mr. Stevenson testified that, as to the pole in question, the wires were taut and the pole appeared to be fine. Mr. Rowell volunteered to climb the pole (Mr. Stevenson testified that he used a ladder) and began cutting the approximately twelve to fourteen wires on the north side of the pole. When the last wire was cut, the pole fell and Mr. Rowell was very seriously injured and remains so. It is undisputed that the pole was not on Mark Stevenson’s property and that neither Foundation nor Railroad had notice or knowledge of Stevenson’s decision to remove the pole; Don Stevenson testified that he just decided to remove the poles that day and set about doing so.

Based on the above facts, the trial court granted the Railroad’s and Foundation’s motions for summary judgment on the grounds that Bearnard Rowell was a trespasser on the defendants’ property and that Rowell’s own actions were the proximate cause of his injuries. A lawyer-staffed panel of the Court of Appeals reversed, finding that fact issues remained.

Plaintiff first argues that because the defendants knew and approved of the construction and conversion project, there was an “implied invitation” to Rowell to enter their [964]*964property and remove their pole. Secondly, plaintiff argues that the trespass defense is not available where defendants allegedly violated the National Health and Safety code by failing to inspect and maintain the poles and violated other city ordinances and state statutes covering nuisance. Thirdly, plaintiff advances the theory that, as to the leasehold between Foundation and Railroad, each assumed particular duties as to maintenance and upkeep of the property and that they failed to do so, and Rowell is a third-party beneficiary of the lease provisions.

We find that the trial court correctly granted summary judgment for defendants, based on the undisputed facts. The facts urged by appellant as “disputed” are irrelevant to a determination whether defendants were negligent in this case. First, the undisputed facts establish that Rowell was a trespasser. Plaintiffs argument that because defendants knew and approved of the remodeling project there was, therefore, an implied invitation to enter their property and remove their poles is without merit. We said in Miller v. Oklahoma Power and Water Co., 194 Okl. 193, 148 P.2d 980, 981 (1944) that an invitation may be implied where there is a common interest or mutual advantage exist ing and enjoyed by the parties. It stretches credulity to contemplate that mere knowledge of a remodeling project by the owner of adjacent property constitutes an implied invitation to go onto that property and remove the owner’s personal property. See, Atchison, Topeka and San Francisco Railway Co. v. Phillips, 158 Okl. 141, 12 P.2d 908 (1932).

In Miller v. Oklahoma Power and Water Co., supra, the defendant owned a transformer pole and equipment that serviced, among others, a neighboring farm. The farmer traded one line on which the current had been cut off to one Walker, who directed his employee to remove the dead cable from the transformer. The employee mistakenly cut a live cable and was killed by electric shock when he attempted to reconnect the line. Even though Walker owned one of the cables connected to the transformer, we found that there was no joint-user of the pole in question and no express or implied invitation to Walker or his employees to use the pole. Because the decedent was not an invitee, we found that his presence on the pole was not to be anticipated by defendant and that defendant owed him no greater duty than not to wantonly or wilfully injure him.

There was no express invitation to Stevenson or his employees to come onto defendants’ property and the facts do not raise an inference of implied invitation. Plaintiff showed no facts to establish that any common interest existed between the defendants and Stevenson and his employees, nor was there any showing that the pole was employed to the mutual advantage of the parties. In the case at bar, even if the possibility that Stevenson’s employees might cross the defendant’s property in the course of their work were considered, we cannot find that this knowledge constitutes implied authorization to the workers to destroy defendants’ property without permission. The essence of establishing the existence of a duty is foreseeability of the consequences of a breach of the alleged duty. Trett v. O.G. & E., 775 P.2d 275, 279 (Okla.1989).

Plaintiff next argues that the trespass defense is not available because a violation of the National Health and Safety Code (or other codes) occurred. Plaintiff relies on Woodis v. O.G. & E., 704 P.2d 483 (Okla.1985) for the proposition that where failure to observe a safety requirement is the proximate cause of the injury, the question of status of the injured party cannot be raised. In Woodis, we found that the plaintiff was a trespasser and that no duty of care was owed other than a duty not to wilfully or wantonly injure.

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1993 OK 170, 910 P.2d 962, 65 O.B.A.J. 20, 1993 Okla. LEXIS 195, 1993 WL 527409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowell-v-el-reno-junior-college-foundation-inc-okla-1993.