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Thomas v. E-Z Mart Stores11/2/2004
__ P.3d __
The issue presented for our review on certiorari is whether the trial court was correct in determining in the context of a premises liability lawsuit that a business invitor's claims against a third party and its claim that the third party caused the invitee's injury should be heard by the jury determining the liability of the invitor to the invitee. That issue may not be unequivocally answered in this case. The trial court did not consider whether the third party was an independent contractor of the invitor, or whether the invitor's indemnity claim against the third party was based upon vicarious liability of an invitor for the act of an independent contractor, or whether the separate claims could be simultaneously considered by a jury using proper instructions without causing confusion.
Thomas brought an action against E-Z Mart Stores, Inc. (E-Z Mart), and alleged that she slipped on a floor mat in the store which resulted in her fall and subsequent injury . E-Z Mart filed a petition against Aramark Uniform Company (Aramark) and Core-Mark International, Inc., (Core-Mark), distributors and suppliers of the floor mat. E-Z Mart alleged that Core-Mark and Aramark were liable based upon theories of either contribution or indemnity.
E-Z Mart's petition alleges that: 1. The floor mat was manufactured by Aramark and supplied to E-Z Mart by Core-Mark; 2. The mat was defective; 3. The mat was not the type of mat that Core-Mark was required by an agreement to supply to E-Z Mart; and 4. Core-Mark was negligent in supplying a defective mat. E-Z Mart asked for a judgment against Aramark and Core-Mark for sums, if any, that E-Z Mart would be adjudged liable to Thomas. Aramark and Core-Mark were granted their motion to bifurcate the proceedings, and a jury trial commenced solely against E-Z Mart.
The jury returned a verdict against E-Z Mart in the amount of $350,000, and a judgment was then entered in accordance with the verdict. The jury attributed no negligence to Thomas. E-Z-Mart filed a motion for new trial. E-Z Mart argued that a new trial was necessary because the trial court did not allow E-Z Mart to present evidence on the alleged negligence of a third-party (Core-Mark) or E-Z Mart's requested instruction on the negligence of a third-party.
On appeal the Court of Civil Appeals determined that E-Z Mart is vicariously liable for the acts of Core-Mark. The appellate court concluded that E-Z Mart's duty to a business invitee, Thomas, could not be delegated to Core-Mark, and that Core-Mark was an independent contractor to E-Z Mart. The court reversed the order granting a new trial, and E-Z Mart sought certiorari. We agree with the Court of Civil Appeals that the premises liability could not be delegated, and we agree that a premises liability may not be transferred to an independent contractor when the injury -causing condition of the premises is within the control of the invitor. We reverse the order granting a new trial because E-Z Mart's new trial quest was insufficient as we explain herein, and the trial court erred on a question of law.
I. Standard of Review
This proceeding is an appeal from an order of a trial court granting a new trial. The trial and the motion for new trial were heard before the same judge. When an appellant challenges an order granting a new trial a stronger showing of error must be made than when challenging an order denying a motion for new trial. Dominion Bank of Middle Tennessee, 1996 OK 99, 928 P.2d 291, 294; Sligar v. Bartlett, 1996 OK144, 916 P.2d 1383, 1387.
The issue contested by the parties is whether the trial court was correct in combining Thomas' claim against
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