Thomas v. E-Z Mart Stores11/2/2004
are to a particular class of persons because of some special relationship imposed by statute or at common law (see Sciolaro v. Asch, 198 N.Y. 77, 83, 91 N.E. 263; Harrington v. 615 West Corp., supra at 482, 161 N.Y.S.2d 106, 141 N.E.2d 602; Ft. Lowell-NSS Ltd. Partnership v. Kelly, supra at 100, 800 P.2d 962; Prosser and Keeton, Torts § 71 at 511-512 [5th ed]; Restatement of Torts, § 422 ). As is relevant to the issues on this appeal, New York courts have long imposed a special duty on property owners to keep the entrances and passageways of a public building safe for tenants, their visitors, and their employees, all classes of people who come onto the premises for reasonably foreseeable purposes (see e.g. Murphy v. Broadway Improvement Co., 189 A.D. 692, 178 N.Y.S. 860; Hume v. Ten Eyck, 245 A.D. 794, 280 N.Y.S. 808; Ancess v. Trebuhs Realty Co., 18 A.D.2d 118, 238 N.Y.S.2d 560, affd. 16 N.Y.2d 1031, 265 N.Y.S.2d 909, 213 N.E.2d 318).
Backiel v. Citibank, N.A., 299 A.D.2d 504, 506-507, 751 N.Y.S.2d 492, 495, N.Y. Slip. Op. 08719 (N.Y.A.D. 2 Dept., 2002), (material and citations omitted). In Oklahoma as well, the ingress and egress provided by a landowner to an invitee must satisfy the landowner's duty to such entrants. Jack Healey Linen Service Co. v. Travis, 1967 OK 213, 434 P.2d 924, 928; Pruitt v. Timme, 1959 OK 276, 349 P.2d 4, 5-6.
E-Z Mart argues that opinions discussing a landowner's non-delegable duties to invitees do not apply to E-Z Mart. This is so, it argues, because 1. third-party negligence is a defense to a premises liability claim and 2. Core-Mark was not an independent contractor. E-Z Mart also argues that Core-Mark is a "supplier" and not an independent contractor.
Core-Mark is in the business of providing floor mats and other products to businesses such as E-Z Mart. Once a week Core-Mark replaced E-Z Mart's soiled floor mat with a clean mat, and retrieved the soiled mat for cleaning at a location away from E-Z Mart. Trial Tr. at p. 354-355. Core-Mark provides the clean mats pursuant to a contract with E-Z Mart. E-Z Mart's petition against Core-Mark states that "Core-Mark was negligent in substituting a defective, undersized door mat in the place of those door mats which had been previously provided." Amended Third-Party Petition, O.R. at 7. On the motion for new trial E-Z Mart relied upon Keel v. Titan Construction Corporation, 1981 OK 148, 639 P.2d 1228, and argued that "Core-Mark's breach of contract is also negligence."
We have noted the general proposition that a tort defendant may predicate its defense on a non-party's negligence. PFL Life Ins. Co. v. Franklin, 1998 OK 32, n. 22, 958 P.2d 156, 164. This is known as "ghost tortfeasor" liability. Id. E-Z Mart relied on this, and similar authority, in its motion for new trial. E-Z Mart then combined the ghost tortfeasor theory with Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 1965 OK 18, 405 P.2d 109, and argued that the alleged negligence of Core-Mark was an issue for liability to Thomas that a jury should determine.
We recently explained Porter in Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, 70 P.3d 811.
Porter involved an indemnity suit between a car dealership and an instrument manufacturer for the injury to the dealership's customer. While an employee of the instrument manufacturer was working on a car, the car lurched forward and ran over the customer. The customer sued the dealership and the manufacturer for negligence. The Court recognized that regardless of whether the dealership failed to maintain a safe premises or failed to warn the customer, the sole cause of the injury was the act of the manufacturer's employee moving the gear selecto
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