Date: 10-09-2012
Case Style: Daniel Lee Sparks v. Trident Group, LLC
Case Number: CJ-2010-3656
Judge: Linda G. Morrissey
Court: District Court, Tulsa County, Oklahoam
Plaintiff's Attorney: Jeremy D. Looper
Defendant's Attorney: James K. Secrest II and Eric L. Clark
Description: Daniel Lee Sparks sued Trident Group, LLC and Brandywine Fund, LLC d/b/a Brandywine Apartments and Case & Associates, Inc. on premises liability theories claiming to have been injured while on the premises of the Brandywine Apartments in Tulsa County, Oklahoma.
This lawsuit arises out of a simple slip and fall, or trip and fall, while Plaintiff was descending stairs at Brandywine Apartments. Discovery is now over. This motion for summary judgment addresses a single element of Plaintiff’s cause of action proximate cause. Plaintiff admits that he does not know what step he allegedly fell on. Accordingly, even assuming negligence by Defendants, it would be mere speculation or conjecture that any negligence of Defendants was the proximate cause of Plaintiffs alleged injuries. Under such circumstances, summary adjudication in favor of Defendants is required.
After discovery was completed, Defendants moved for summary judgment asserting the following:
II. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
Based upon evidentiary material filed with this brief, there is no substantial controversy (solely for purposes of this Motion for Summary Judgment) as to the following material facts:
1. Plaintiff “Admitted” the request for admission asking that he: “Admit that you do not know what step you allegedly fell from.” (Plaintiffs Answers to Second Request for Admissions, Answer No. 13, attached as Exhibit “A.”)
III. ARGUMENT AND AUTHORITIES
Plaintiff’s Admission of Lack of Proximate
Cause is Fatal to His Negligence Action
Plaintiff has admitted he does not know on which step he allegedly fell. Accordingly, it would be mere speculation and conjecture that he fell on the one step which was allegedly loose. “A finding of proximate cause must be based on something more substantial than mere speculation and conjecture.” Worsham v. Nix, 2006 OK 67, ¶ 32, 145 P.3d 1055, 1065.
While absolute certainty is not required, mere possibility of causation is insufficient. When the matter is one of pure speculation or conjecture or the probabilities evenly balanced, it is the duty of the court to direct a verdict for defendant because a party will not be permitted to recover from another whose acts, however wrongful, are not the proximate cause of the injury suffered”
FN1O. The Court made clear in the First Syllabus by the Court in Phillips Petroleum Co. v. Robertson, 1952 OK 60, 247 P.2d 501: “[i]n a suit for damages for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown was the proximate cause of the injury complained of, no recovery can be had on account of such negligence.”
Id. at ¶ 32, 145 P.3d 1066 (emphasis added) (citation omitted).
Plaintiffs burden on the element of proximate cause is consistent with his overall burden in responding to summary adjudication. “The ruling on motions for summary judgment is to be made on the record the parties have actually presented and not on a record which is potentially possible.” Weeks v. Wedgewood Village, Inc., 19760K 72, ¶ 12, 554 P.2d 780, 784.
“In opposing a motion for summary judgment a party must attach affidavits or other admissible evidentiary materials to show a dispute of fact exists. The party cannot rely on the allegations in his pleadings alone to demonstrate a dispute offact. Additionally, a summary judgment motion must be decided on the record actually presented, not on a record which is potentially possible; a party opposing summary judgment therefore must present evidence, not mere contentions, justi1’ing a trial on the merits.”
Adams v. Moriarty, 2005 OK CIV APP 105, ¶ 10, 127 P.3d 621, 624 (citations omitted).
Plaintiff admits he does not know on which step he fell. In other words, Plaintiff admits he does not know if the allegedly loose step caused his fall. It is merely a possibility that such step caused Plaintiffs fall. Because the “mere possibility of causation is insufficient,”“it is the duty of the court to direct a verdict for defendant.” Worsham, ¶ 32, 145 P.3d 1066. Plaintiff cannot be allowed to proceed to trial based on mere speculation and conjecture relating to proximate cause, Summary adjudication in favor of Defendants is required.
WHEREFORE, Defendants, Trident Group, LLC, and Brandywine Fund, LLC dlb/a Brandywine Apartments, respectfully request the Court to sustain their Renewed Motion for Summary Judgment and dismiss Plaintiffs First Amended Petition with prejudice and grant them such other and further relief the Court deems just and equitable.
Outcome: Settled and dismissed with prejudice.
Plaintiff's Experts:
Defendant's Experts:
Comments:
