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Thomas v. E-Z Mart Stores11/2/2004
E-Z Mart with E-Mart's claim against Core-Mark in one trial. The issue of either consolidating claims into one trial or bifurcating for separate trials is governed, in part, by § 2018(C) & (D) of the Oklahoma Pleading Code. A clear abuse of discretion by the trial court when applying § 2018(C) & (D) must be shown by an appellant to reverse the trial court's order.
A review using an abuse of discretion standard includes an appellate examination of both fact and law issues. Tibbetts v. Sight'n Sound Appliance Centers, Inc., 2003 OK 72, 3, 77 P.3d 1042, 1046; Christian v. Gray, 2003 OK 10, 43, 65 P.3d 591, 608. The fact issue involves whether the ruling reviewed is without a rational basis in the evidence to support the decision. Tibbetts, at 3, 77 P.3d at 1046. The law issue involves whether the ruling is based upon an erroneous legal conclusion. Id. We apply a de novo and non-deferential review when an assigned error is one of law. Id. at 4, 77 P.3d at 1046.
The trial court granted the motion for new trial based upon a determination that EZ-Mart is entitled, as a matter of law, to introduce additional evidence at trial and submit to the jury an instruction on the alleged negligence of, and/or indemnity relating to, Core-Mark. We examine that determination.
II. The Premises Liability Claim
Thomas brought an action based upon on "premises liability;" that is, the liability of E-Z Mart as the owner/occupier of the premises where her injury occurred. In premises liability actions we have explained that a landowner's duty varies with the status of the entrant. Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, 951 P.2d 1079, 1083-1084; Brown v. Nicholson, 1997 OK 32, 935 P.2d 319, 321. For example, in Pickens, we said:
To a trespasser, a landowner owes in the common law status-based classification system only a duty to avoid injuring him wilfully or wantonly. To a licensee, an owner owes a duty to exercise reasonable care to disclose to him the existence of dangerous defects known to the owner, but unlikely to be discovered by the licensee. This duty extends to conditions and instrumentalities which are in the nature of hidden dangers, traps, snares, and the like. To an invitee, an owner owes the additional duty of exercising reasonable care to keep the premises in a reasonably safe condition for the reception of the visitor. Even vis-a-vis an invitee, to whom a landowner owes the highest duty in this trichotomous classification system, the law does not require that the landowner protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered. In other words, a landowner owes to an invitee, as well as to a licensee, a duty to protect him from conditions which are in the nature of hidden dangers, traps, snares and the like.
Pickens, 1997 OK 152, 951 P.2d at 1083 - 1084, (notes omitted). No party disputes that Thomas has the status of an invitee.
Thomas argues that E-Z Mart's duty, as an invitor, may not be delegated by E-Z Mart to Core-Mark. In this case E-Z Mart delegated to Core-Mark, by an agreement, the responsibility for maintaining one aspect of ingress and egress to E-Z Mart's property, supplying and maintaining floor mats used at the entrance to the store. E-Z Mart argues that its claim is not about delegating its duty as an invitor, but rather, its right to have the jury apportion liability to Core-Mark as the actual wrong-doer.
We have explained that whether a duty is non-delegable is a question of law. Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, 12, 16 P.3d 450, 455 - 456. We agree with Thomas that, w
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