 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Tucker v. ADG9/21/2004
there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law." Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602, 605; Carris v. John R. Thomas & Assoc., 1995 OK 33, 896 P.2d 522, 530; 12 O.S. Ch.2 App., Dist. Ct.R. 13(d). An order granting summary relief disposes solely of law questions and is reviewable by a de novo standard. Copeland v. Lodge Enterprises, Inc., 2000 OK 36, 8, 4 P.3d 695, 699; Brown v. Nicholson, 1997 OK 32, 5, 935 P.2d 319, 321. Additionally, our review of a trial court's dismissal for failure to state a claim upon which relief can be granted likewise involves a de novo consideration as to whether the petition is legally sufficient. Indiana Nat'l Bank v. State Dep't of Human Services, 1994 OK 98, 880 P.2d 371, 375. "Generally, a petition may be dismissed as a matter of law for two reasons (1) lack of any cognizable legal theory, or (2) insufficient facts under a cognizable legal theory." Id.
This case is unique in that Plaintiffs repeatedly have conceded in their Response briefs submitted below that the trial court should grant Defendants' respective motions and enter judgment in Defendants' favor as a matter of law pursuant to the rule in Hull, thereupon Plaintiffs would pursue the overruling of Hull on appeal to this Court. We note that despite Plaintiffs' repeated concessions of the propriety of granting Defendants' motions (and acknowledgment that the material facts of this case are uncontroverted), Plaintiffs, nevertheless, in their Response to Redhawks' Amended Motion to Dismiss as well as the Petition in Error, attempt to raise factual skirmishes concerning whether Plaintiff was seated in an unscreened or screened portion of the stadium and/or assert that this case is distinguishable from the facts in Hull such that Redhawks' Motion to Dismiss should be denied. We reject Plaintiffs' later-raised factual contentions to the extent we find they are immaterial to the determination at issue in this case and to the extent that they are inconsistent with Plaintiffs' earlier concessions in their earlier filed Response Briefs. "Oklahoma case law has long allowed admissions in the brief to be regarded as a supplement to the appellate record." Brennen v. Aston, 2003 OK 91, 4, 84 P.3d 99, 100 n.3; Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84, 86, n. 3 (citation omitted). In accordance with Plaintiffs' admissions and the uncontroverted material facts of this case, the trial court properly granted Defendants' respective Motions and entered judgment in Defendants' favor as a matter of law pursuant to the rule in Hull.
In Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 P.2d 982, this Court set forth the rule applicable in personal injury actions filed by spectators who, while seated in an unscreened portion of a baseball stadium, are struck and injured by a baseball during a baseball game. The Hull Court's Syllabus provides in pertinent part as follows:
The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care.
Id. at 982. With respect to defendants' alleged duty to warn, Hull set forth the general rule as follows:
Generally speaking, the possessor of land is liable to a visitor only if he knows of or should have known of a dangerous condition and realizes that it involves unreasonable risk and has no reason to believe that the plaintiff will discover the co
Page 1 2 3 4 5 6 7 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|