Opinion
Case No. 116,886
10-25-2019
John Mack NORTON, Plaintiff/Appellant, v. SPRING OPERATING COMPANY, a Domestic For Profit Business Corporation, Defendant/Appellee.
Duke Halley, Daniel Talbot, HALLEY, TALBOT & SMITHTON, Oklahoma City, Oklahoma, for Plaintiff/Appellant Tim D. Cain, Roger K. Gofton, WILSON, CAIN & ACQUAVIVA, Oklahoma City, Oklahoma, for Defendant/Appellee
Duke Halley, Daniel Talbot, HALLEY, TALBOT & SMITHTON, Oklahoma City, Oklahoma, for Plaintiff/Appellant
Tim D. Cain, Roger K. Gofton, WILSON, CAIN & ACQUAVIVA, Oklahoma City, Oklahoma, for Defendant/Appellee
OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 In this premises liability action, John Mack Norton appeals from the trial court's entry of judgment upon a jury verdict in favor of Spring Operating Company claiming the trial court erred in giving certain jury instructions and in refusing to give certain requested instructions and in awarding costs to Spring Operating for legal and courtroom assistance. We affirm the journal entry of judgment entered on the jury verdict, but reverse, in part, the trial court's post-judgment order awarding certain costs to Spring Operating.
BACKGROUND
¶2 The following facts are uncontroverted. Mr. Norton, a truck driver, was employed by Enterprise Crude Oil. Enterprise, a non-party in this lawsuit, purchased crude oil from various suppliers including Spring Operating. Spring Operating stored its crude oil in tanks located on its property. Spring Operating placed steps on the tanks so drivers, like Mr. Norton, could go up to and down from the tank to test and measure the crude before loading the crude and hauling it away. Enterprise's drivers hauled the crude to Enterprise's storage tanks for delivery into its pipelines. Mr. Norton had been to the Spring Operating site and went up and down the steps in daylight and in the evening numerous times without incident. However, on his last trip to Spring Operating's tank—an evening trip—Mr. Norton fell and sustained serious injury as he descended the steps.
¶3 Mr. Norton testified the steps were a hazard and that he first reported them as dangerous sometime before he fell. Conflicting evidence was presented, among other issues, about whether the stairs were, in fact, defective, whether Spring Operating was informed about any danger, and whether Enterprise was notified of any danger.
¶4 The trial court instructed the jury. Mr. Norton had objected to several instructions the trial court gave and the trial court refused several of his requested instructions. The jury returned a white verdict form finding Mr. Norton 10% negligent, Spring Operating 0% negligent, and Enterprise 90% negligent.
¶5 Mr. Norton appeals contending the judgment entered on the jury verdict must be reversed because of legal errors the trial court made in giving erroneous instructions and refusing to give certain instructions and that a new trial should be granted. Mr. Norton also appeals from the trial court's order granting costs to Spring Operating for certain courtroom assistance.
STANDARD OF REVIEW
¶6 One of the issues raised on appeal is whether Spring Operating owed Mr. Norton a duty to take remedial measures to correct an open and obvious danger on its premises. The question of whether a duty exists is a question of law. Scott v. Archon Grp., L.P. , 2008 OK 45, ¶ 17, 191 P.3d 1207. Questions of law are subject to de novo review. Kluver v. Weatherford Hosp. Auth. , 1993 OK 85, ¶ 14, 859 P.2d 1081.
¶7 Also presented for review on appeal is whether the trial court committed reversible error in giving certain jury instructions and excluding certain instructions requested by Mr. Norton. The standard of review applied by an appellate court when reviewing jury instructions "considers the accuracy of the statement of law, the applicability of the instructions to the issues when the instructions are considered as a whole, and above all, whether the probability arose that jurors were misled and reached a different conclusion due to an error in the instruction." Cimarron Feeders, Inc., v. Tri-County Elec. Coop., Inc. , 1991 OK 104, ¶ 6, 818 P.2d 901 (footnote omitted). The appellate court will not reverse for error in the trial court's jury instructions unless it is persuaded the error "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." 20 O.S. 2011 § 3001.1 ; See also 12 O.S. 2011 § 78.
¶8 Further presented for this court's review is Mr. Norton's argument that the Occupational Safety and Health Administration (OSHA) regulation upon which he relied to show negligence per se applies to any employee in a given workplace. He therefore raises a question of statutory interpretation that calls for a de novo standard of review. Welch v. Crow , 2009 OK 20, ¶ 10, 206 P.3d 599 (Questions of statutory construction "are questions of law that we review de novo and over which we exercise plenary, independent, and non-deferential authority." (footnote omitted)).
¶9 Finally, Mr. Norton contends the trial court erred in awarding certain costs to Spring Operating under 12 O.S. 2011 § 942. The trial court has discretion in determining "the amount of cost awarded for items" listed under § 942, but it has "no discretion in determining whether a particular type of cost awarded in § 942 would be allowed." Atchley v. Hewes , 1998 OK CIV APP 143, ¶ 6, 965 P.2d 1012 (citation omitted). "An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591 (citation omitted).
ANALYSIS
¶10 Mr. Norton argues the judgment must be reversed because: (1) under the facts herein presented, the trial court gave an inapplicable open and obvious jury instruction; (2) the defective steps violated OSHA regulations, and the trial court therefore erred in refusing to give his instructions concerning negligence per se; (3) Spring Operating had a non-delegable duty to keep its premises in reasonably safe condition, and the trial court therefore erred in including Enterprise as a non-party tortfeasor and instructing the jury about the jury's ability to assign negligence to Enterprise; (4) the trial court erred in giving an assumption of the risk instruction; (5) the trial court erred in failing to give his requested instruction concerning the availability of a comparative negligence defense to willful and wanton or intentional misconduct; and (6) the trial court erred in awarding costs to Spring Operating for costs it incurred for legal and courtroom assistance.
I. Open and Obvious Danger
¶11 Mr. Norton argues the trial court erroneously gave unmodified Oklahoma Uniform Jury Instructions—Civil (OUJI) No. 11.10 (duty to maintain premises generally), No. 11.11 (hidden danger) and No. 11.12 (open and obvious danger) instead of his requested instruction, a modification of OUJI No. 11.10. When the OUJI contains an applicable instruction, the OUJI instruction "shall be used unless the court determines that it does not accurately state the law." 12 O.S. 2011 § 577.2. Mr. Norton's argument hinges on the legal question of whether Spring Operating owed him a duty to take remedial measures to correct the allegedly defective stairs about which he was aware. We conclude no duty to remediate was owed under the facts of this case.
¶12 Whether an ordinary negligence or a premises liability claim, "[i]t is fundamental that three elements must be shown in order to establish actionable negligence": proof of a duty, a breach of that duty, and causation. Scott v. Archon Grp., L.P. , 2008 OK 45, ¶ 17, 191 P.3d 1207. In a premises liability action, however, the duty a landowner or occupant of the land owes to invitees on the premises is "the duty to use ordinary care to keep [the] premises in a reasonably safe condition for the use of ... invitees" and "to remove or warn the invitee of any hidden danger on the premises" the landowner "either actually knows about, or that" the landowner "should know about in the exercise of reasonable care, or that was created by" the landowner "or any of" the landowner's "employees who were acting within the scope of their employment."
OUJI No. 11.10 (Amended 2016).
¶13 The duty a landowner owes in a premises liability action "varies with the status occupied by the entrant." Scott , ¶ 18. See also Sutherland v. St. Francis Hosp., Inc. , 1979 OK 18, ¶ 5, 595 P.2d 780. "[A] landowner owes to an invitee ... a duty to protect him from conditions which are in the nature of hidden dangers, traps, snares and the like." Pickens , 1997 OK 152, ¶ 10, 951 P.2d 1079. "Even vis-a-vis an invitee, to whom a landowner owes the highest duty ..., the law does not require that the landowner protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered." Id. ¶ 10 (footnote omitted). "[T]he invitor is not a guarantor of the safety of its invitees. If the hazard causing the fall was known or should have been observed by the invitee, the invitor has no duty to alter its premises or to warn." Dover v. W.H. Braum, Inc. , 2005 OK 22, ¶ 5, 111 P.3d 243 (citation omitted).
The Oklahoma Supreme Court has explained as follows:
It is well-settled premises liability law that the duty of care which an owner or occupier of land has toward one who comes upon his or her land and is injured because of the condition of the premises, varies with the status occupied by the entrant. The determination of the entrant's status-based classification under traditional common law terms—trespasser, licensee or invitee—is therefore essential in resolving the issue of the existence of a duty.
Scott, ¶ 18 (citation omitted). An invitee is "[o]ne who uses the premises of another for the purpose of a common interest and mutual advantage." Pickens v. Tulsa Metro. Ministry , 1997 OK 152, ¶ 10 n.12, 951 P.2d 1079 (citation omitted).
¶14 Mr. Norton argues, however, that in certain circumstances a landowner has a duty to take remedial measures to protect an invitee even from conditions that are not hidden and are open and obvious, citing Wood v. Mercedes-Benz of Oklahoma City , 2014 OK 68, 336 P.3d 457. In Wood , an employee of a catering company hired by defendant car dealership was injured when she slipped and fell on ice she observed surrounding defendant's property. The plaintiff sued the defendant alleging it failed to maintain its premises in a reasonably safe condition. The defendant denied liability and moved for summary judgment, which the trial court granted. On appeal, the Court of Civil Appeals affirmed holding the defendant did not owe the plaintiff a duty because she "readily acknowledges the ice presented a known danger." Id. ¶ 3. On certiorari review, the Oklahoma Supreme Court vacated the Court of Appeals' decision, reversed the district court judgment and remanded for further proceedings.
¶15 In Wood , a divided Court carved out an exception to the open and obvious defense in a premises liability case because the plaintiff
was not a customer of the [invitor], but was present to fulfill her employer's contractual duty to provide service for an event sponsored by the [invitor]. [The plaintiff's] presence and exposure to the hazardous icy condition was compelled to further a purpose of the [invitor].
Id. ¶ 5 n.6. "[U]nder the peculiar facts of [that] case," the Supreme Court held the defendant owed a duty to the injured plaintiff to take remedial measures to protect the plaintiff from an open and obvious danger of icy conditions surrounding the defendant's property. Id. ¶ 9. However, the Wood Court indicated that the open and obvious defense still applies "[i]n the typical case," where "the invitee can protect herself by leaving the premises when an open and obvious hazard is encountered or by avoiding the premises altogether." Id. ¶ 5 n.6. Mr. Norton argues the present case is not such a "typical case"; therefore, the trial court's instruction constitutes reversible error because it misled the jury. We disagree.
"The test of reversible error in giving jury instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered had the errors not occurred." Taliaferro v. Shahsavari , 2006 OK 96, ¶ 25, 154 P.3d 1240 (footnote omitted). Thus, even if the jury instruction correctly states the law, if the instruction is inapplicable to the facts of the cause, the instruction may warrant the grant of a new trial because the instruction misled the jury. See id. ¶ 26.
¶16 Mr. Norton argues that Enterprise came on to Spring Operating's well site "only when it was requested" to do so by Spring Operating, and Mr. Norton was "assigned to go to the well site on the night he was injured and was performing the duties of his employment." He argues these facts are comparable to those in Wood . In Wood , the plaintiff's employer was hired by the defendant to cater an event on the defendant's property. Plaintiff "reported to [defendant] to assist with" the catered event. Id. ¶ 1. The evening before plaintiff's arrival, a sprinkler system on defendant's property activated causing ice to cover surfaces throughout the entire property because nighttime temperatures dropped to freezing. When plaintiff arrived at defendant's property, she noticed "the whole building was covered in ice, all the way around, all the sidewalks." Id. (footnote omitted). She noticed ice on the grass, pavements and sidewalks. Nevertheless, plaintiff parked her vehicle and carefully navigated the icy grass and sidewalk to gain entry into defendant's building. Unable to locate her supervisor inside, plaintiff exited the building and walked back to her vehicle to retrieve her cell phone so she could call the supervisor. On the walk back, plaintiff slipped and fell, sustaining injuries. Plaintiff stated that in a subsequent conversation she had with one of defendant's employees, the employee "acknowledged, ‘[y]eah, I should have [put salt down] when I got here.’ " Id. ¶ 2.
¶17 Spring Operating argues the facts in the present case are distinguishable from those in Wood because Enterprise was a customer of Spring Operating and not present on its property to provide a service for Spring Operating, and because Mr. Norton was not required to perform his job for Enterprise in any circumstance where he felt he was placed in danger. Further, it argues, the evidence at trial was that no reprisals were taken by Enterprise against employees who refused to enter or work within premises they considered to be unsafe. Therefore, unlike the plaintiff in Wood , Mr. Norton could have avoided the known danger presented by the allegedly dangerous staircase at the well site.
¶18 Mr. Norton dismisses these factual differences because, he argues, Wood requires a duty to remediate a problem when it is foreseeable to a landowner that an invitee who enters its premises upon the landowner's request could be injured by a dangerous condition: "One can hardly imagine a more foreseeable event. There is no doubt that it was foreseeable that [he,] Enterprise's employee, ... would encounter the hazardous stairs created by [Spring Operating] and would likely proceed through the dangerous condition in furtherance of his employment."
¶19 While no published Oklahoma appellate court decisions have given further guidance about the reach of the duty recognized in Wood , several Oklahoma federal courts have. As discussed by Mr. Norton, the court in Martinez v. Angel Exploration, LLC , 798 F.3d 968 (10th Cir. 2015), applied Wood in reversing the trial court's grant of summary judgment to the defendant even though an unguarded pump jack that caused the plaintiff's injury was an open and obvious danger. The plaintiff, a "pumper," was employed by a company that was hired by the defendant to provide day-to-day management and servicing of its wells. The pumpers "check on the wells routinely" and "make sure the engines are running, monitor output, and when necessary, tighten loose belts on the pump jack." Id. at 972. Any needed repairs were made by another company the defendant hired to perform that work. The plaintiff had been to the well site on occasions prior to the day of his injury and had noticed that the pump jack in question was not covered by safety guards. On the day of his injury, the plaintiff had successfully restarted an engine and tightened its belts, but dropped a wrench. As he bent to retrieve it, his sweatshirt was caught in the belt and his thumb was severed and later amputated.
Wood has been cited in a number of Oklahoma decisions, but not for the rule with which we are concerned here. See, e.g., Logan Cnty. Conservation Dist. v. Pleasant Oaks Homeowners Ass'n. , 2016 OK 65, ¶ 12, 374 P.3d 755.
¶20 The plaintiff sued the defendant for negligence, alleging, among other things, that the defendant failed to take action to reduce the risk posed by the unguarded pump jack. The Martinez Court agreed that "under long-standing Oklahoma law," "a landowner has no duty to render safe an ‘open and obvious danger’ " because "under similar or like circumstances an ordinary prudent person would have been able to see the defect in time to avoid being injured." Id. at 974 & 975. The court determined, however, that the then-recently decided Wood case cast doubt on that rule.
¶21 The Martinez Court noted the Wood Court's conclusion that the defendant owed a duty to take remedial measures to protect the plaintiff in that case, but further observed "the [Oklahoma Supreme Court] emphasized the unique circumstances under which the plaintiff had encountered the open and obvious condition." Id. at 975. Addressing a concern of the four Justices who dissented in Wood , the Martinez Court observed that " Wood appears to represent a significant shift in Oklahoma premises liability law. Before Wood , the Oklahoma Supreme Court had consistently rejected attempts by plaintiffs to merge ordinary negligence principles with the common law of premises liability." Id. (citation omitted).
¶22 Characterizing the Oklahoma Supreme Court's decision in Wood as aligned "with an emerging majority of states to reconsider the open and obvious doctrine," id. at 976, the Martinez Court correctly noted the Wood Court did not refer to or explicitly adopt Restatement (Second) of Torts § 343A(1) (1965). However, the court recognized that the reasoning used in Wood was the same reasoning used by scholars in explaining part of comment f of the Restatement section. As discussed by the Martinez Court, those scholars explain the open and obvious defense will not apply where "the plaintiff must take the risk to fulfill an obligation or to carry out employment obligations," or where "the invitee is forced, as a practical matter, to encounter a known or obvious risk in order to perform his job." 798 F.3d at 977.
Section 343A(1) provides: "A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."
Comment f provides, in part:
There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
.... Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.
(Citation omitted.)
We note Wood conspicuously failed to cite to the Restatement or to any authority that adopted the Restatement section in support of the rule it recognized. Indeed, that the Oklahoma Supreme Court appears to have crafted a rule along the lines suggested in Martinez that is in line with part of one comment to § 343A, suggests even more strongly that the Supreme Court did not adopt all of the circumstances to which the foreseeability rule in § 343A might apply. Further, the Supreme Court explicitly limited the rule in Wood to the "particular" facts before it that involved an employee required to be on defendant's premises to fulfill her job responsibilities. While the Supreme Court may expand the rule to different contexts or adopt Restatement § 343A at some future time, we conclude the Court clearly signaled in Wood its intent to recognize a much more limited exception to the open and obvious defense.
¶23 Recognizing the "reach of Oklahoma's newly recognized exception to the open and obvious doctrine is yet to be determined," the Martinez Court concluded the new rule clearly applies to situations like those present in Wood
where a business invitee is "present to fulfill [his or] her employer's contractual duty to provide service," the invitee's "presence and exposure to the hazardous ... condition was compelled to further a purpose of the [defendant]," and the invitee was "required" to encounter "the hazardous condition in furtherance of [his or] her employment."
798 F.3d at 978 (citations omitted). The court, therefore, vacated the summary judgment as to the open and obvious defense and remanded the case to the trial court for reconsideration in light of Wood .
¶24 Contrary to Mr. Norton's assessment of Martinez , we agree with Spring Operating that the Martinez Court found it significant that the plaintiff was present on the defendant's property to fulfill his employer's contractual duty to provide service to the defendant, and was required to encounter the hazardous condition in furtherance of his employment as a pumper. Other courts have also found these fact differences, particularly whether the invitee was required to be present on the premises for purposes of his or her employment, to be determinative of whether the duty to remediate a dangerous condition recognized in Wood applies and, thus, negates the open and obvious defense.
Compare Husmann v. Sundance Energy, Inc. , Case No. CIV-14-1436-R, 2015 WL 9094936, *4 (Dec. 16, 2015, W.D. Okla.) (appeal dismissed 10th Cir. 16-6015, June 9, 2016) (The open and obvious defense was available because "[b]oth Wood and Martinez relied on the fact, absent here, that the injured party was required to be on the premises for purposes of employment."), with Hoagland v. Okla. Gas & Electric Co. , Case No. CIV-15-0751-HE, 2016 WL 3523755, *2 (W.D. Okla. June 22, 2016) (There the court denied summary judgment to the defendant on its claim that it did not owe a duty of care to plaintiff, the employee of an independent contractor, because there was "evidence that defendant required its loads to be tarped. [Plaintiff] indicates he was directed by [defendant's] worker to tarp his load outside the plant's gate, where the ground sloped down and away from the trailer, arguably increasing the risk to [plaintiff]." (emphasis added)).
More recently, in Shank v. WhitingTurner Contracting Company , Case No. 17-CIV-446-JED-FHM, 2018 WL 6422466 (N.D. Okla. Dec. 6, 2018), the district court, having discussed Wood and Martinez , denied summary judgment to the defendant where the plaintiff, an employee of a subcontractor employed to work on a project for the defendant, was injured when he tripped over Masonite panels that had been laid on the ground. The plaintiff admitted he had been aware of the fall hazard and filled out a "slip/trip potential identified," pointed out the problem to a safety supervisor, had once himself stumbled on the panels, and saw others stumble before he fell. The court explained that "[d]istrict courts asked to apply the Wood exception have generally considered it applicable where the owner could foresee the plaintiff's injury because there was evidence that plaintiff had no choice but to traverse an obvious and open danger ." Id. *3 (emphasis added) (citations omitted). While defendant argued plaintiff was not required to walk in the area of danger, the court found summary judgment was not appropriate because of factual issues about how widespread or unavoidable the danger was.
¶25 We agree with those federal courts that have restricted the reach of the foreseeability rule recognized in Wood to factual circumstances like those in Wood . Based on the Oklahoma Supreme Court's analysis in Wood , an owner or occupier of land owes a duty to invitees to take remedial measures to correct open and obvious dangers or dangers known by the invitee where the invitee was not a customer of the owner of the premises, but was present to fulfill his or her employer's contractual duty to provide service for the owner of the premises such that the invitee's presence and exposure to the dangerous condition was required to further a purpose of the owner of the premises. 2014 OK 68, ¶ 5 n.6, 336 P.3d 457. We also agree with the trial court's implicit finding in giving OUJI Nos. 11.10, 11.11, and 11.12, that under the facts of this case, Spring Operating did not owe a duty to take remedial measures to correct the allegedly dangerous steps.
¶26 As argued by Spring Operating, Mr. Norton was not present at its well site to perform any services to its wells or to collect its product for delivery to some other person or entity for Spring Operating's benefit. Enterprise is a multi-state corporation that buys and collects oil and gas products from companies like Spring Operating and then transports the product to its storage tanks for delivery through its pipeline. Mr. Norton, as Enterprise's employee, was Spring Operating's customer and on its premises to collect the oil for Enterprise's benefit. While it is true Mr. Norton was present on the property so he could collect the oil for his employer—that is, he was doing his job—unlike the plaintiff in Wood he was not required to enter any property he thought was dangerous. In other words, he had a choice as do invitees generally to avoid the dangerous condition about which he had knowledge.
¶27 Mr. Norton argues he was "faced with the same alternative" as the "tenant" in one of the illustrations to Restatement § 343A(1), cmt. f, "because [the tenant's] only alternative to being exposed to the risk was to forgo her employment." Even if the rule recognized in Wood is predicated on this illustration in comment f, Mr. Norton presented no evidence that he would forgo his employment with Enterprise if he refused to use Spring Operating's allegedly dangerous steps. He also argues Spring Operating "knew that Enterprise employees apparently felt compelled to encounter the danger, since they had continued to do so for months following the complaint Enterprise had lodged with [Spring Operating]." Thus, he argues, he "had the same choice that the Plaintiff in Wood had, which was the only choice or option, encounter the danger in pursuit of his employment." The trial testimony, however, does not demonstrate Mr. Norton's choices were limited.
Illustration 5 presents the following scenario:
A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.
¶28 Mr. Norton's supervisor testified that if a driver thinks there is an unsafe condition, the driver is supposed to fill out "a Lease Condition Report." The driver is supposed to leave a copy at the location in a jar where the run ticket is left (as a type of failsafe measure) and to give a copy to his supervisor. He testified Enterprise will then "get a hold of the producer and have the producer fix the problem before we go on the tank." He testified no Lease Condition Report was brought to Enterprise before Mr. Norton's fall. The supervisor testified that if a driver writes up a safety complaint, Enterprise contacts the producer to "make sure that it's fixed. And when it's fixed we can go back out and haul their oil." The supervisor, as well as another supervisor, testified that if a driver encounters an unsafe condition he has the right not to expose himself to it and no ramifications or threat from management will occur if the driver chooses to avoid the danger.
¶29 Mr. Norton testified that he had written a Lease Condition Report for the Spring Operating well about the hazardous condition of its stairs and left copies at the designated locations. He testified nothing was done as a result of his report, but he thought "[he]'d done [his] part," that he had "done everything that [he] could do about it and that's write it up." He further testified, however, that he knew oil fields were dangerous places, and that he had to watch out for his own safety. He agreed that not only was he to report dangers he encountered but that he did not "even have to go into the danger ...."
¶30 With respect to the written complaint Mr. Norton said he made and which Enterprise claimed it never received, Mr. Norton testified he could have filed another complaint. Although Mr. Norton testified he "felt like" he had to go up and down the unsafe steps, his own testimony was that he knew he was authorized to avoid a danger he encountered and he would not suffer reprisal from Enterprise if he did. Even if it is assumed his first complaint was lost or ignored by Enterprise, he acknowledged he could have written another complaint or otherwise refused to use the unsafe steps.
¶31 The factual differences between Mr. Norton's circumstances and those of the Wood plaintiff are significant. As an employee of Enterprise—Spring Operating's customer—Mr. Norton had a customer relationship with Spring Operating and had authority without reprisal to avoid a danger encountered in his work for Enterprise. These facts take his situation out of the non-typical invitee situation found in Wood .
¶32 We, therefore, conclude the trial court did not err as a matter of law in instructing the jury on open and obvious danger and did not err in refusing to give Mr. Norton's modified instruction.
II. Negligence Per Se
¶33 "When courts adopt statutory standards for causes of action for negligence, the statute's violation constitutes negligence per se." Howard v. Zimmer, Inc. , 2013 OK 17, ¶ 13, 299 P.3d 463 (footnote omitted). To establish negligence per se, the plaintiff must show that a statute or regulation was violated which caused the claimed injury, that the injury was of the type intended to be prevented by the statute, and that the plaintiff is one of a class of persons the statute or regulation was intended to protect. Id. In general, OSHA regulations establish duties for employers to protect employees from workplace injuries. Marshall v. Hale-Halsell Co. , 1997 OK 3, ¶ 7, 932 P.2d 1117 (citing 29 U.S.C.A. §§ 652, 654 ). In Marshall , the Oklahoma Supreme Court stated:
[Plaintiff] cites to no authority showing how this regulation applies to his action against [defendant] whom he admits was not his employer. Indeed, under 29 U.S.C.A. §§ 652 and 654, the duties mandated by OSHA regulations flow from an employer to an employee. [Plaintiff] points to no statute, regulation or case which indicates [defendant] owes the [regulation's] duty to train a lumper hired by an independent contractor. Federal regulations do not support [plaintiff's] claim against [defendant].
At best, [plaintiff] occupied the position of an invitee, i.e. "[o]ne going onto another's property ... as an independent contractor's employee." See Hatley [v. Mobil Pipe Line Co. , 1973 OK 42,] 512 P.2d [182,]185 (quoting 41 Am. Jur. 2d, Independent Contractors, § 27 ). The property owner, [defendant], was liable to [plaintiff], an invitee, only for:
"an injury occasioned by an unsafe condition of the premises encountered in the work, which is known to the property owner but unknown to the injured person." Id.
Marshall , ¶¶ 7-8.
¶34 Mr. Norton argues that although he is not Spring Operating's employee, Spring Operating is nevertheless required to comply with OSHA's safety standards pursuant to 29 U.S.C. § 654(a)(2), a subsection, he argues, the Marshall Court's reasoning "overlooked" when § 654 is considered in its entirety. He concedes § 654(a)(1) specifically applies to employees, but argues subsection (a)(2) "does not limit its compliance directive to the employer's own employees but requires employers to implement the Act's safety standards for the benefit of all employees, in a given workplace, even employees of another employer," quoting Universal Construction Company, Inc. v. Occupational Safety and Health Review Commission , 182 F.3d 726, 728 (10th Cir. 1999). Mr. Norton relies on Universal Construction and cases cited therein and others for his further argument that whether violation of OSHA regulations is negligence per se is determined case by case and "the determining factor" is who had control of the workplace. He argues that because Spring Operating had control of the workplace and the hazardous stairs and that hazard is allegedly an OSHA violation, Spring Operating's violation is negligence per se; consequently, the trial court erred in failing to give the negligence per se instruction he requested.
Section 654 provides:
(a) Each employer—
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this chapter.
¶35 We disagree with Mr. Norton's interpretation of who falls within the protected class in § 654(a)(2) and conclude he is not a member of the protected class. We find particularly persuasive the court's reasoning in Universal Construction , wherein the Tenth Circuit joined "the majority of circuits and adopt[ed] the multi-employer doctrine." Id. at 728. The court explained:
In Universal Construction , a general contractor for a construction project was cited for serious violations of OSHA requirements that were committed by employees of subcontractors on the job site. The citation was justified by the contractor's "ability to control the hazardous conditions that led to the violations." Id. at 727. "[A]n administrative law judge upheld the citation, concluding [the contractor] was properly cited under the multi-employer doctrine because it controlled the worksite and had authority to direct a subcontractor to abate any hazardous conditions created by the subcontractor." Id.
The court explained:
The multi-employer doctrine provides that an employer who controls or creates a worksite safety hazard may be liable under [OSHA] even if the employees threatened by the hazard are solely employees of another employer. The doctrine has its genesis in the construction industry where numerous employers, often subcontractors, work in the same general area, and where hazards created by one employer often pose dangers to employees of other employers. The Secretary has imposed liability under the doctrine since the 1970's and has steadfastly maintained the doctrine is supported by the language and spirit of the Act. The Secretary's interpretation has been accepted in one form or another in at least five circuits, and rejected outright in only one.
Id. at 728 (citations omitted). The court further explained:
The Secretary construes § 654(a)(1) & (2) as imposing two distinct duties. First, (a)(1) requires employers to protect their own employees from hazards in the workplace. The employer's duty under (a)(1) flows only to its employees, as indicated by the language specifically limiting the employer's obligation to maintain a hazard-free workplace to "his employees." Second, (a)(2) requires employers to comply with the Act's safety standards. Unlike (a)(1), it does not limit its compliance directive to the employer's own employees, but requires employers to implement the Act's safety standards for the benefit of all employees in a given workplace, even employees of another employer. OSHA issues citations based on the multi-employer doctrine under (a)(2).
Id .
The multi-employer doctrine is particularly applicable to multi-employer construction worksites, and in fact has been limited in application to that context. The nature of construction requires that subcontractors work in close proximity with one another and with the general contractor at the same worksite. In this situation, a hazard created and controlled by one employer can affect the safety of employees of other employers on the site.
Id. at 730 (citations omitted) (internal quotation marks omitted). The court reiterated, "As noted, a general contractor is responsible under § 654(a)(2) for safety standard violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity , regardless of whether it created the hazard or whether its employees were exposed to the hazard." Id. at 732 (emphasis added). Indeed, while several courts, in the cases upon which Mr. Norton relies, used sweeping language that § 654(a)(2) applies to "all employees" and that "Congress' purpose [was to assure] so far as possible every working man and woman in the Nation safe and healthful working conditions," those courts found that an OSHA violation under § 654(a)(2) could be a basis for negligence per se against contractors as well as property owners only for injuries incurred in multi-employer construction worksites.
E.g., Arrington v. Arrington Bros. Const., Inc. , 116 Idaho 887, 781 P.2d 224, 228 (1989) (emphasis omitted) (internal quotation marks omitted) (quoting Teal v. E.I. DuPont de Nemours and Co. , 728 F.2d 799 (6th Cir. 1984) ).
E.g., Teal , 728 F.2d at 804-05 (negligence per se instruction should have been given where employee of independent contractor hired by defendant plant owner to perform work on the plant owner's site was allegedly injured as a result of plant owner's violation of OSHA regulations under § 654(a)(2) ); Arrington , 781 P.2d at p. 228 (violation of OSHA standards may establish negligence per se when the injured worker is a subcontractor on a multi-contractor site).
¶36 Because we agree that § 654(a)(2) is limited in its application to multi-employer construction worksites, it is inapplicable to the facts of this case. Moreover, Mr. Norton may have been engaged in his work for Enterprise and required to be on Spring Operating's premises to undertake that employment responsibility, but he was not an independent contractor working for Spring Operating, nor did Spring Operating exercise any supervisory control over Mr. Norton's work on behalf of Enterprise.
The Oklahoma Supreme Court's reasoning in Marshall is supportive of this conclusion. There the Court no doubt did not directly discuss the multi-employer doctrine because the facts before it did not concern a multi-employer construction worksite. The Court did state, however,
This duty [to provide a reasonably safe place to work] is qualified, however, by the rule that one who engages an independent contractor to do work for him, and who does not himself undertake to interfere with or direct that work, is not obligated to protect the employees of the contractor from hazards which are incidental to or part of the very work which the independent contractor has been hired to perform.
Id. ¶ 10 (emphasis added) (citation omitted). As to Mr. Norton's contention that Marshall is distinguishable because the type of OSHA violation involved there and here are not the same, we agree with the observation made by the federal district court in Estes v. Airco Service, Inc. , Case No. 11-CV-776-GKF-FHM, 2012 WL 1899839 (N.D. Okla. May 24, 2012), wherein the court reasoned:
Plaintiff argues Marshall is inapplicable because the alleged OSHA violations in that case were for failure to train and this case involves unsafe conditions. However, in Marshall , the court relied upon OSHA's general definition statute, 29 U.S.C. § 652, and its statutory description of duties of employers to employees, 29 U.S.C. § 654, to conclude the duties mandated by OSHA regulations flow from the employer to employees. Those statutes are applicable [to] all duties imposed on employers and not, as plaintiff asserts, only the duty to train.
Estes , *7 n.5
In this regard, Mr. Norton's reliance on Hargis v. Baize , 168 S.W.3d 36 (Ky. 2005) is unpersuasive. As explained by the Kentucky Supreme Court in Auslander Properties, LLC v. Nalley, 558 S.W.3d 457 (Ky. 2018) :
We recognized in Hargis v. Baize that an employer subject to [Kentucky]OSHA regulations for the protection of its own employees is also bound to comply with the same regulations for the benefit of an independent contractor performing on the employer's premises the same work as the employer's employees . 168 S.W.3d at 43. Consequently, in Hargis , a lumber mill operator was negligent per se for failing to provide KOSHA protections to an independent contractor performing the same job of hauling and unloading logs as its own employees. Hargis rests largely upon the rationale expressed by the Sixth Circuit Court of Appeals in [Teal ] holding that the OSHA (or KOSHA) regulations applicable to an employer's own employees are equally applicable to employees of independent contractors working on the premises doing the same kind of work . Hargis added that protections owed to employees of an independent contractor under Teal are also owed to the independent contractor himself.
Id . at 465 (emphasis added).
¶37 We conclude that even if Spring Operating was in violation of OSHA regulations pertaining to the condition of its stairs, such violation is not a basis for negligence per se under § 654(a)(2) for the injuries Mr. Norton incurred because Mr. Norton was not in the class of persons the statute was intended to protect. Consequently, the trial court did not err in refusing to give Mr. Norton's requested negligence per se jury instruction.
III. Comparative Negligence of Non-Party Enterprise
¶38 Mr. Norton argues the trial court erred in giving OUJI No. 22, Comparative Negligence: Non-Party Involved, and OUJI Nos. 27 and 29 explaining the verdict forms used for the comparative negligence instruction and the circumstances under which they are to be used. He does not argue the instructions given incorrectly state the law of comparative negligence.
¶39 By statute,
In all actions hereafter brought ... for negligence resulting in personal injuries[,] ... contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage.
23 O.S. 2011 § 13. The Oklahoma Supreme Court has explained "the negligence of non-parties, or ‘ghost tortfeasors,’ should be considered in assessing proportionate fault in comparative negligence cases ... in order properly to apportion the negligence of the parties." Bode v. Clark Equip. Co. , 1986 OK 21, ¶ 10, 719 P.2d 824 (citations omitted). "The cornerstone of comparative negligence is founded on attaching liability in direct proportion to the fault of each entity whose negligence caused the damage." Id. ¶ 12 (footnote omitted).
See, e.g., PFL Life Ins. Co. v. Franklin , 1998 OK 32, ¶ 17 & n.22, 958 P.2d 156 ("The blame of a ‘ghost tortfeasor,’ not uncommon in comparative negligence, may be assessed in its absence from the action as a party defendant." "Any tort defendant can predicate its defense on a non-party's negligence. This is known as ‘ghost tortfeasor’ liability." (citations omitted)). As noted in a recent federal case:
The Oklahoma Supreme Court has made clear that "the negligence of tortfeasors not parties to the lawsuit should be considered by the trial jury in order to properly apportion the negligence of those tortfeasors who are parties." Myers v. Missouri Pacific R. Co. , 52 P.3d 1014, 1030 (Okla. 2002) (internal quotes omitted). This rule exists "to reduce [a defendant's] potential liability where the negligence of one or more ‘ghost tortfeasors’ contributed to the plaintiff's damages." Id. ; see also Thomas v. E-Z Mart Stores, Inc. , 102 P.3d 133, 138 (Okla. 2004) (acknowledging the "general proposition that a tort defendant may predicate its defense on a non-party's negligence").
Loos v. SaintGobain Abrasives, Inc. , Case No. CIV-15-411-R, 2016 WL 5017335, *6 (W.D. Okla. Sept. 19, 2016).
The precise question raised in Bode concerned the degree of fault of the plaintiff relative to any other tortfeasor, party and/or non-party. The Court determined that because comparative negligence is premised on the fault of each entity whose negligence caused the damage,
and taking into consideration our decisions in Laubach [v. Morgan , 1978 OK 5, 588 P.2d 1071 ], Paul [v. N.L. Industries, Inc. , 1980 OK 127, 624 P.2d 68 ], and Gaither [v. City of Tulsa , 1983 OK 61, 664 P.2d 1026 ], as well as the express language of 23 O.S. 1981 [now 2011] § 13, we reach the unavoidable conclusion that the negligence of a party defendant must be combined with the percentage of negligence attributable to non-party tortfeasors in order to determine if the degree of fault charged to the plaintiff is greater than that owing to all persons, firms or corporations causing such damage.
Bode , ¶ 12.
¶40 Mr. Norton's argument appears to be that Enterprise cannot be a ghost tortfeasor because the only basis for such fault would be an impermissible delegation by Spring Operating of its duty to maintain its premises in a reasonably safe condition. He relies upon Thomas v. E-Z Mart Stores, Inc. , 2004 OK 82, 102 P.3d 133, for this argument. As argued by Spring Operating, we conclude the issues presented in Thomas are inapplicable to the present case.
In Thomas , a premises liability action, the defendant invitor brought contribution and indemnity claims against the manufacturer and supplier of mats used in the defendant's store and upon which the plaintiff slipped and fell sustaining injury. Upon a jury verdict in favor of plaintiff, the defendant moved for a new trial on the ground that it should have been permitted to present evidence of the supplier's negligence and the jury should have been instructed on the negligence of the third party supplier. On certiorari review of the trial court's grant of a new trial to the defendant, the Oklahoma Supreme Court stated:
The issue presented for our review on certiorari is whether the trial court was correct in determining in the context of a premises liability lawsuit that a business invitor's claims against a third party and its claim that the third party caused the invitee's injury should be heard by the jury determining the liability of the invitor to the invitee. That issue may not be unequivocally answered in this case. The trial court did not consider whether the third party was an independent contractor of the invitor, or whether the invitor's indemnity claim against the third party was based upon vicarious liability of an invitor for the act of an independent contractor, or whether the separate claims could be simultaneously considered by a jury using proper instructions without causing confusion.
Id. ¶ 1. The court declined to make those first instance determinations. Id. ¶ 28.
¶41 The Thomas Court agreed with the plaintiff that "the liability (ultimate legal responsibility) of that duty which is owed to [the plaintiff], as an invitee, cannot be delegated by [the defendant]." Id. ¶ 11. The Court explained:
Moving for a new trial, [the defendant] 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, [the defendant] has a duty the performance of which it may not delegate to escape risk of liability to an invitee.
Id. ¶ 28. In reversing the trial court's order granting the defendant's motion for new trial, the Court concluded:
[The defendant'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 [the plaintiff] 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.
Id. ¶ 29.
¶42 Spring Operating argues it did not contract with Enterprise to maintain its premises or delegate its responsibility for the stairs on its premises to Enterprise. Mr. Norton agrees, arguing: Spring Operating "admitted it had retained control of the premises, including the defective stairs. It admitted that it would not permit Enterprise to correct or repair the stairs and that all Enterprise could do was advise Spring [Operating] the steps were dangerous and ask Spring [Operating] to correct it." Spring Operating argues the circumstances in Thomas are different from the circumstances here because the evidence presented was sufficient to show Enterprise was at fault in causing Mr. Norton's injuries.
The record indicates Mr. Norton filed a workers' compensation claim against Enterprise for the injuries he sustained in the fall.
¶43 Relying on Angel v. Cornell Construction Co. , 1992 OK CIV APP 65, 841 P.2d 1163, Spring Operating argues that "[a]lthough an employer's exclusive liability under the Workers' Compensation Act bars further indirect liability for contribution or indemnification, when an injured employee elects to sue a third-party tortfeasor, that tortfeasor can claim ‘ghost-tortfeasor’ liability against the employer as a defense to the injured worker's suit." Although in his appellate brief, Mr. Norton asserts "[u]nder the uncontroverted facts[,] Enterprise" did apprise Spring Operating of the dangerous steps and asked Spring Operating to correct the danger, the testimony from Mr. Norton and that of Enterprise's employees was controverted about what Enterprise knew and whether it ever asked Spring Operating to correct the condition. Thus, the jury had evidence from which it could determine that Enterprise was negligent in its handling of Mr. Norton's alleged complaint (e.g., losing or misplacing it or never following up on it) and in continuing to assign him to Spring Operating's wells.
Although concerned with contribution actions by tortfeasors who may have acted jointly or concurrently with the State in causing a claimant's "loss," the Angel Court analogized the exclusive liability of the State under the Governmental Tort Claims Act to the exclusive liability of employers under the Workers' Compensation Act:
An employer's exclusive liability under the Workers' Compensation Act bars further indirect liability for contribution or indemnification where an injured employee elects to sue a third-party tortfeasor. Harter Concrete Products, Inc. v. Harris , 592 P.2d 526 (Okla. 1979). In the place of contribution, the court recognized that the tortfeasor could claim responsibility on the part of the employer as a defense to the injured worker's suit. Id. at 529. This is known as "ghost-tortfeasor" liability. Paul v. N.L. Industries, Inc. , 624 P.2d 68 (Okla. 1980).
1992 OK CIV APP 65, ¶ 2, 841 P.2d 1163.
For example, as previously discussed herein, Mr. Norton testified that he filled out a Lease Condition Report the first time he encountered the stairs on Spring Operating's premises and left a copy of the form at Spring Operating and at the location specified by Enterprise. He testified nothing was done about that complaint. Enterprise's supervisors testified no such complaint was ever received by Enterprise. Spring Operating's employee testified someone from Enterprise complained about the stairs at some point.
¶44 We, therefore, conclude the trial court did not err in instructing the jury on the comparative negligence of Enterprise and in refusing Mr. Norton's requested instructions.
IV. Assumption of the Risk
¶45 Mr. Norton claims it was error for the trial court to have instructed the jury on assumption of the risk because "[t]here is no suggestion [he] consented to harm in this instance."
OUJI No. 9.14 provides:
[Plaintiff] assumed the risk of injury resulting from [Defendant's] negligence if [he/she] voluntarily exposed [himself/herself] to injury with knowledge and appreciation of the danger and risk involved. To establish this defense, [Defendant] must show by the weight of the evidence that:
1. [Plaintiff] knew of the risk and appreciated the degree of danger;
2. [Plaintiff] had the opportunity to avoid the risk;
3. [Plaintiff] acted voluntarily; and
4. [Plaintiff]'s action was the direct cause of [his/her] injury.
¶46 As argued by Mr. Norton, the Oklahoma Supreme Court has emphasized that assumption of risk is a defense distinct from contributory negligence. In Thomas v. Holliday ex rel. Holliday , 1988 OK 116, 764 P.2d 165, the Supreme Court explained, "The touchstone of the assumption-of-risk defense is consent to harm and not heedlessness or indifference." Id. ¶ 8. Assumption of the risk requires either "an express agreement, a pre-existing status between the defendant and plaintiff, or an element of consent to the harm that is known and appreciated by the plaintiff." Id. ¶ 10. Assumption of the risk doctrine has been held applicable in premises liability cases. Byford v. Town of Asher , 1994 OK 46, ¶ 14 n.3, 874 P.2d 45 (citations omitted).
¶47 The Byford Court explained,
The Oklahoma Constitution provides in Article 23, Section 6, that "[t]he defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." We have honored the plain meaning of these words, and have repeatedly required the issue of assumption of risk to be submitted to the jury.
Id. ¶ 6 (citations omitted). The Court stated it has recognized two exceptions to this constitutional rule:
First, the defense of assumption of risk need not be submitted to the jury if the plaintiff fails to present evidence showing primary negligence on the part of the defendant. Second, the defense need not be submitted to the jury where there are no disputed material facts and reasonable people exercising fair and impartial judgment could not reasonably reach differing conclusions.
Id. ¶ 7 (citations omitted). Mr. Norton appears to rest his argument on the second exception to the constitutional rule because he asserts "[t]here is no suggestion [he] consented to harm in this instance." However, he does not argue there was no evidence presented from which the jury could have reached the conclusion that he was aware of the danger of the defective steps, appreciated the danger of the defective steps, yet proceeded to use them anyway although not required to do so by his employer, Enterprise.
¶48 We conclude the trial court did not err in instructing the jury on assumption of the risk.
V. Clear and Convincing Evidence: Wanton and Willful Conduct
¶49 Mr. Norton argues the trial court erred in refusing to give his requested burden of proof instruction of clear and convincing evidence pertaining to Spring Operating's wanton and willful conduct. He argues evidence of wanton and willful conduct was presented for the jury's consideration because, he asserts, the evidence shows Spring Operating's conduct in installing the defective steps and then not repairing the steps though put on notice of the danger was unreasonable under the circumstances and there was a high probability of serious harm because at least one Spring Operating employee said the steps were bad. Spring Operating points to other testimony that refutes Mr. Norton's view of the evidence.
¶50 Even assuming the trial court erred in not giving the jury the requested instruction, in our view, the error, if any, was harmless. The jury's verdict placed 0% liability on Spring Operating. That is, the jury found Spring Operating exercised ordinary care under the circumstances of this case. That determination makes it highly unlikely the jury was misled by the absence of the requested instruction and reached a conclusion different from the conclusion it would have reached had that instruction been given. We are not persuaded the error "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." 20 O.S. 2011 § 3001.1 ; See also 12 O.S. 2011 § 78.
¶51 We conclude the refusal to give the requested jury instruction is not a basis for reversal and the grant of a new trial.
VI. Costs
¶52 Mr. Norton also argues the trial court erred in awarding Spring Operating $4,000 in costs under 12 O.S. 2011 § 942 because the items for which those costs were awarded—legal and courtroom assistance—are not of the type listed in § 942. Relying on Fuller v. Pacheco , 2001 OK CIV APP 39, 21 P.3d 74, he argues that for a cost to be recoverable under § 942, the costs must be specifically listed. The Fuller Court explained:
See, e.g. , State ex rel. Dep't of Trans. v. Cedars Grp., L.L.C. , 2017 OK 12, ¶ 21, 393 P.3d 1095 ("Every party is responsible for its own litigation costs unless provided by statute." (citation omitted)).
Included in the cost award for [defendant] was a fee of $31 for an enlarged copy to be used as an exhibit at trial. Since this
type of expense is not specifically listed in section 942, we must determine whether it is recoverable under section 1101.1, which provides for the recovery of reasonable litigation costs. However, neither section 1101.1 nor Oklahoma case law has defined what "reasonable litigation costs" entails. We, therefore, must examine the ways in which federal authorities have defined litigation costs.
Title 26 of the United States Internal Revenue Code defines reasonable litigation costs as: (1) reasonable court costs; (2) the reasonable expenses of expert witnesses; (3) "the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case"; and (4) reasonable attorney fees. 26 U.S.C.A. § 7430(c)(1) (West Supp. 2000). Similarly, a federal court recently interpreted the phrase "reasonable litigation costs" to include such things as "copying, expert witnesses, transcripts, deposition fees, on-line research, travel and meals, postage and delivery services, subpoena service, and witness fees and telephone." See Cullen v. Whitman Med. Corp. , 197 F.R.D. 136, 151 (E.D. Pa. 2000). We conclude that, pursuant to the foregoing definitions of reasonable litigation costs, [defendant's] cost for the exhibit is recoverable as a cost of litigation under section 1101.1.
12 O.S. 2011 § 1101.1 provides for an award of attorney fees when the plaintiff has rejected a valid offer of judgment and then loses at trial or recovers less than the amount of the offer of judgment.
12 O.S. 2011 § 1101.1 provides for an award of attorney fees when the plaintiff has rejected a valid offer of judgment and then loses at trial or recovers less than the amount of the offer of judgment.
Id. ¶¶ 29-30. As argued by Mr. Norton, neither § 1101.1 nor any other basis for the award of costs other than § 942 was referenced by the trial court or by Spring Operating for the cost of the demonstrative evidence Mr. Norton challenges.
¶53 While § 1101.1 references "reasonable litigation costs," none of the bases for the award of costs in § 942 references "reasonable litigation costs." Spring Operating makes its argument for costs under § 942(7), which provides, "[a]ny other expenses authorized by law to be collected as costs," and relies on federal cases that discuss the award of costs "reasonably necessary to litigation of the case." However, the award of costs in those cases was based on 28 U.S.C.A. § 1920.
Section 1920 provides, in part, as follows:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
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¶54 The appellate court in In re Williams Securities Litigation-WCG Subclass , 558 F.3d 1144 (10th Cir. 2009), determined the trial court's award of costs for "exemplification and the costs of making copies of any materials" pursuant to § 1920(4) was not an abuse of discretion. It was in the context of the statutory language that the court reasoned that "[t]he standard is one of reasonableness. If ‘materials or services are reasonably necessary for use in the case,’ even if they are ultimately not used to dispose of the matter, the district court ‘can find necessity and award the recovery of costs.’ " Id. at 1148 (citations omitted).
¶55 Similarly, in BP America Production Company v. Chesapeake Exploration, LLC , Case No. CIV-10-519-M, 2013 WL 6002832 (W.D. Okla. Nov. 12, 2013), another case upon which Spring Operating relies, the district court determined that BP satisfied its burden of showing that demonstrative exhibits used during the non-jury trial were reasonably necessary for use in the case pursuant to § 1920(4). Id. *3 (discussing In re Williams ). The court further explained that " ‘[e]xemplification’ under § 1920(4) has been interpreted to include a variety of demonstrative evidence, including models, charts, photographs, illustrations, and other graphic aids." Id. at *3 (citation omitted). ¶56 As reasoned by the Fuller Court, it may be appropriate to reference federal statutes and decisional law when our state statutes use language similar to such law. Here, no showing is made that § 1920(4) is comparable to any provision of § 942, including subsection 7. Thus, because the costs for the demonstrative evidence Spring Operating sought is not set forth in § 942 and no other basis for such an award has been identified, we conclude the trial court abused its discretion in awarding those costs to Spring Operating and reverse that portion of the trial court's award of costs to Spring Operating.
CONCLUSION
¶57 For the reasons discussed herein, we conclude the trial court did not abuse its discretion in giving the jury instructions it did and in refusing to give other instructions requested by Mr. Norton. We further conclude, however, the trial court erroneously awarded $4,000 in costs to Spring Operating for demonstrative evidence used during trial because that cost is not among the costs set forth in 12 O.S. 2011 § 942. Accordingly, we affirm the journal entry of judgment entered upon the jury's verdict in favor of Spring Operating, and reverse in part the court's post-judgment order awarding certain costs to Spring Operating.
¶58 JUDGMENT AFFIRMED AND ORDER AWARDING COSTS REVERSED IN PART .
RAPP, J., concurs, and WISEMAN, V.C.J., concurs specially.
WISEMAN, V.C.J., concurring specially:
¶1 I write specially to continue to urge that Oklahoma law does not permit assessing percentages of comparative negligence when the jury is asked to consider premises liability and determine the nature of the condition, that is, whether hidden or open and obvious. The Majority is correct in rejecting Mr. Norton's analogy to Wood v. Mercedes-Benz of Oklahoma City, 2014 OK 68, 336 P.3d 457 —the facts, as the Majority holds, will not support that argument.
¶2 The exception in Wood to the established Oklahoma common law of premises liability pertaining to open and obvious dangers is not present here. If it were, this might constitute the rare instance in which comparing a plaintiff's and a defendant's percentages of negligence could be legally appropriate in a premises liability case. This is conceivable only because Wood allows liability to attach to a defendant for failing to protect a plaintiff from an open and obvious danger under Wood 's unique circumstances. Because both parties would then have a duty regarding the open and obvious condition, the jury would be entitled to assess the parties' relative percentages of negligence, if any, in reaching their verdict.
¶3 But, unlike Wood , this is not the case here as the Majority concludes. And I continue to maintain that it is not legally or factually possible in a premises liability verdict to reconcile a finding of a hidden danger (triggering a defendant's potential liability) with a plaintiff's failure to discern/avoid an open and obvious condition (contributory negligence). Allowing a fact-finder to compare the parties' percentages of negligence for their mutually exclusive conduct, which must be accepted to find both parties negligent, cannot be the law in Oklahoma.
¶4 Although it was error for the trial court to instruct on comparative negligence— Wood not being applicable—the jury found Spring Operating was not negligent and there is no error to correct. I concur specially with the Majority's Opinion.