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Thomas v. E-Z Mart Stores11/2/2004
mnity, or whether appropriate jury instructions could prevent a jury from being confused on both claims when liability to Thomas was to be decided. The parties did not address whether a new trial was warranted if E-Z Mart was vicariously liable, and if so, whether the vicarious nature of its liability either required or made unnecessary a new trial on E-Z Mart's liability to Thomas. We decline to make these determinations in the first instance on appeal.
A motion for new trial that was granted will not be reversed on appeal unless the court "erred in its view of some unmixed question of law and that the new trial was granted because of such erroneous view of the law." Claiborne v. Claiborne, 1970 OK 48, 467 P.2d 157, 158, quoting, Hillcrest Medical Center v. Wier, 1962 Ok 158, 373 P.2d 45, 47. E-Z Mart's argument for a new trial was that its claim of a third-party's negligence involved with the injury -causing condition on its premises was a sufficient showing to warrant a new trial as to its liability to Thomas and for the jury to hear its contribution/indemnity claim. This is an erroneous view and the order granting the motion for new trial is reversed.
WATT, C.J., OPALA, V.C.J., LAVENDER, WINCHESTER, DMONDSON, TAYLOR, JJ. - Concur
HARGRAVE, KAUGER, JJ. - Concur in result
OPALA, V.C.J., concurring.
I accede to the court's opinion and to the disposition made of this case. I write in concurrence to explain that analysis which persuades me to join today's pronouncement.
1) The critical and dispositive issue here is whether the trial court's grant of new trial is rested on a "pure error of law." I agree that it is and that it must be reversed.
2) The trial court perceived that its refusal to allow the defendant to offer evidence of a third party's negligence was fatally erroneous. In this view the trial judge was clearly mistaken for two reasons:
a) Qua land possessor, the defendant owed the injured invitee an ex delicto duty that is non-delegable. The possessor's indivisible liability may not be apportioned based upon the percentage of harm a nonparty actor may have inflicted upon the invitee in the same injurious event. In short, in this invitee's tort suit brought solely against the land possessor, the latter's premises liability cannot be subjected to comparison with that of any other actor or co-actor. Whether pressed in the same action or elsewhere, the land possessor's own claim against one alleged to have been a third-party actor in the very same occurrence may be prosecuted - after settlement or recovery by the invitee - in common-law indemnity, for statutory contribution, or upon either or both of these theories.
b) Even if erroneous, the evidentiary exclusion of a third party's negligence was never preserved by a formal ruling fit for appellate review. In the course of trial the land possessor failed to make the required proffer of facts showing a third party's negligence. Neither an in limine ruling nor any other nisi prius exclusionary action will ever preserve for appellate review an error in rejecting evidence tendered or sought to be adduced unless proof is offered in the course of trial, which is followed by an objection that stands sustained, and proffer of the excluded facts then follows for the record. Moreover, the courtroom scenario of the entire occurrence must be shown in the transcript of oral proceedings incorporated into the record for appeal.
Put more simply, a party aggrieved by any nisi prius exclusionary ruling, whether in limine, tentative, formal or informal, must first seek to elicit the evidence judicially deemed as excludable and, wh
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