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Thomas v. E-Z Mart Stores11/2/2004
Norton-Stuart Pontiac-Cadillac of Enid, 405 P.2d at 113. Indemnity occurs when one party has a primary liability or duty that requires that party to bear the whole of the burden as between certain parties. Id. This primary liability is not the result of fault, but a matter of allocation of risk, which is established by law. Burke v. Webb Boats, Inc., 2001 OK 83, 37 P.3d 811. For example, in Burke we cited Porter for the proposition: "A master is entitled to indemnity from the servant where the negligence of the servant causes damage to a plaintiff but no fault is attributable to the master." Burke, at 10, 37 P.3d at 814.
E-Z Mart states that it sought to protect itself in the trial court by "joining in the action other parties who are potentially liable to the Appellant as joint tortfeasors." In Kirkpatrick v. Chrysler Corp., 1996 OK 136, 920 P.2d 122, we said that: 1. Tortfeasors are thought of as joint tortfeasors when there is some concerted action on their part causing injury --when there is some common purpose or design; 2. Tortfeasors are classified as concurrent tortfeasors when their independent acts concur to produce a single or indivisible injury; and 3. In the case of joint tortfeasors some type of concert of action (or omission) is required, while in the case of concurrent tortfeasors such concert is lacking, but a single or indivisible injury or harm is nonetheless produced. Id. 920 P.2d at 126-127.
E-Z-Mart appears to be arguing that it has potential partial liability for the injury to Thomas based upon a premises liability claim; that is, E-Z-Mart shares the status of tortfeasor with Core-Mark. On the other hand, in its motion for new trial E-Z-Mart also relied on authority discussing indemnification and its associated principles of primary and secondary liability. We have explained that, generally, "In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other." National Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 1989 OK 157, 784 P.2d 52, 55. (note omitted).
An invitor is not an insurer of the safety of others and is not required to prevent all injury occurring on the property. Taylor v. Hynson, 1993 OK 93, 856 P.2d 278, 281. In Taylor we said that "An invitor cannot be held responsible unless it be shown that he/she had notice or could be charged with gaining knowledge of the condition in time sufficient to effect its removal or to give warning of its presence." Id.
In this case, the trial judge explained to counsel that "This trial is about what the defendant knew or should have known up until October 22nd [the date of the injury]." Thomas sought to impose premises liability based upon what E-Z Mart knew, or should have known, about the mats it was receiving from Core-Mark. Testimony at trial revealed that E-Z Mart changed the type of mats it was using two to three weeks prior to the date of Thomas' injury. A former employee of E-Z Mart testified about people walking on the mat prior the date of Thomas' injury, " . . . people would walk on it, and it would kind of slip with them a little bit, just enough to make them go ooh or oops or whatever." Tr. at 211. This same witness testified that more than one customer had complained about the mats. She testified that she reported the incidents to her supervisor. Thomas di
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