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Thomas v. E-Z Mart Stores11/2/2004
d not seek to impose liability on E-Z Mart based upon respondeat superior or some other theory of vicarious liability. Thomas sought a judgment based upon what E-Z Mart knew or should have known about the floor mat it was using on its premises.
On adjudication of the motion for a new trial, E-Z Mart argued that a invitor/defendant is always, as a matter of law, entitled to put before a jury a third-party's negligence as the cause of condition of the invitor's property that resulted in a plaintiff's injury . We have pointed out that a landowner's duty may not be delegated in the sense that an invitor may be held liable for certain acts of its independent contractors. Allocation of the risk is placed on the invitor who is in control of its premises, including the injury-causing condition thereon, when the invitor either knew or should have known of its existence. Burke v. Webb Boats, Inc., supra; Porter v. Norton-Stuart Pontiac-Cadillac of Enid, supra; Taylor v. Hynson, supra.
A trial court has broad discretion in consolidating proceedings for trial when they involve common questions of law or fact. 12 O.S.2001 ยง 2018 (C). We have indicated that a jury may be confused when it simultaneously addresses different claims involving the same defendants and one claim requires a determination of negligence and other does not. Graham v. Keuchel, 1993 OK 6, 847 P.2d 342, 357. As we explained above, indemnification may shift liability to a different party. On the motion for new trial the parties did not address, nor did the trial court decide, whether appropriate jury instructions could prevent such confusion.
E-Z Mart maintains on certiorari that Core-Mark is not an independent contractor. We have said that "An independent contractor is one who agrees to perform a certain service without the control, supervision, or direction of his employer in all matters connected with the performance of the service except the result or product of the work." Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, 12, 16 P.3d 450, 455. E-Z Mart relies upon Page v. Hardy, 1958 OK 283, 10, 334 P.2d 782, 784, and states that it must be followed to determine whether someone is an independent contractor. E-Z Mart argues on certiorari that applying Page factors, such as whether the parties believe they are creating the relationship of master and servant, shows that Core-Mark is not an independent contractor. These factors are used in Page to determine whether a party is an employee or an independent contractor, and are not entirely applicable to the present case. For example, whether E-Z mart and Core-Mark intended to enter into a master-servant (employer-employee) relationship does not address whether Core-Mark is an independent contractor apart from the creation of an employer-employee relationship.
Moving for a new trial, E-Z Mart claimed that it had a defense to a premises liability claim that was not heard by the jury. This defense, as put forward succinctly on certiorari, is that a third-party, with whom it does not have a special relationship (e.g., employee or independent contractor), caused the negligence. As we have said, E-Z Mart has a duty the performance of which it may not delegate to escape risk of liability to an invitee. The motion for new trial did not address the evidence relating to whether the alleged defective mat was within the control of E-Z Mart or Core-Mark for the purpose of E-Z Mart providing ingress and egress for its customers. The trial court did not consider whether Core-Mark was an independent contractor. On the motion for new trial, E-Z Mart did not distinguish between its claim that Core-Mark was a joint tortfeasor and E-Z Mart's claim that it was entitled to inde
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