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Tucker v. ADG9/21/2004
sponse to Defendants' Motions to Dismiss included an express acknowledgment in paragraph one as follows:
his is an unusual case in that ultimately, all the Defendants will be entitled to have either Motions to Dismiss or, more probably, Motions for Summary Judgment, sustained. This is so because this case seeks to raise the issue whether the Oklahoma Supreme Court will change the old rule of Hull v. Oklahoma City Baseball Co., that a fan who sits in the unscreened portion of the bleachers at a baseball game cannot recover if hit by a ball.
Plaintiffs' Response further included Plaintiffs' dismissal "in its entirety Plaintiff's claims against [Defendant ADG, Inc.]." Additionally, Plaintiffs announced their dismissal of the breach of contract and breach of express or implied warranty claims against the remaining Defendants S.M.G. and Redhawks.
Redhawks filed their Amended Motion to Dismiss and Brief in Support, in which Redhawks expressly withdrew their Motion to Dismiss on the basis of statute of limitations. Redhawks argued the remaining negligence claims should be dismissed upon the basis that the Redhawks had no legal duty to warn Plaintiff, a spectator at a baseball game, of the obvious, well-known and natural risk of being struck by a baseball, nor do they have a legal duty to protect Plaintiff from such a risk. Additionally, Redhawks argued Plaintiffs' claims were barred by the doctrine of implied primary assumption of the risk. S.M.G. later filed a Motion for Summary Judgment and Brief in Support essentially raising the same legal arguments.
Plaintiffs' Response to Redhawks' Amended Motion to Dismiss reiterates their concession that pursuant to existing Oklahoma law as enunciated in the Hull case, " he trial court should sustain the pending Motion to Dismiss so as to present that issue to the Supreme Court." Plaintiffs argue Hull should be overruled on the basis that the OKLA. CONST. art. 23, § 6 is absolute on its face that the defense of contributory negligence or assumption of risk shall go to the jury rather than be decided as a question of law by the court. Additionally, Plaintiffs urge the overruling of Hull on the basis that the rule in Hull runs afoul of the Good Samaritan Act, 76 O.S. 2001 § 5, and further argue that Hull is inconsistent with other Oklahoma Supreme Court case law concerning open and obvious defects. Plaintiffs' Response to S.M.G.'s Motion for Summary Judgment concedes the material facts are uncontroverted and reiterates that " he trial court should sustain the pending Motion for Summary Judgment so as to present that issue to the Supreme Court. The Supreme Court should then reverse Hull."
Subsequent to hearing, the trial court entered a Journal Entry of Judgment on January 30, 2003 sustaining Defendants' motions in their entirety and entered judgment for Defendants The Sports Management Group and OKC Athletic Club, Limited Partnership, a/k/a Oklahoma City Athletic Club, a/k/a or d/b/a Oklahoma Redhawks against Plaintiffs R. Keith Tucker and Pam Tucker. Plaintiffs filed their Petition in Error with this Court on February 21, 2003 and a Motion to Retain on the same date. Defendants/Appellees thereafter filed responses indicating consent to Plaintiffs' Motion to Retain. We previously granted Plaintiffs' Motion to Retain this appeal.
II. THE TRIAL COURT CORRECTLY DETERMINED DEFENDANTS WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW PURSUANT TO HULL V. OKLAHOMA CITY BASEBALL CO., 1945 OK 194, 163 P.2d 982 AND ITS PROGENY
As a starting point, we note that "summary judgment is appropriate only when it appears [from the pleadings, affidavits, depositions, admissions or other evidentiary materials]
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