Date: 12-20-2013

Case Style: Rebecca J. Harris v. McClary Enterprises, Inc. d/b/a Sure Shot Pest & Weed Control

Case Number: CJ-2013-2168

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Kelsey Quillian and Chad C. Taylor

Defendant's Attorney: Robert William Hendeson and Davide K. McPhail

Description: Rebecca J. Harris, individually and as parent and next friend of D. Harris, C. Harris and T. Smith sued McClary Enterprises, Inc. d/b/a Sure Shot Pest & Weed Control on negligence theories claiming:

1. Plaintiffs, Rebecca J. Harris and her children, are residents of the City of Oklahoma, Oklahoma County, Oklahoma.

2. Defendant McClary Enterprises, Inc. d/b/a Sure Shot Pest & Weed Cont ol (“Sure Shot”) is a domestic for profit business corporation incorporated in the State of Oklahoma.

3. The incident giving rise to Plaintiffs’ claims occurred in the City of Oklahoma City, Oklahoma County, Oklahoma.

FACTS AND LIABILITY

1. Plaintiff Rebecca Harris is the record owner of the real property located at 4708 SE 45th St., Oklahoma City, OK.

2. On or about March 28, 2012, as a condition of closing, Sure Shot perfort wd a termite perimeter treatment at Plaintiffs’ residence.

3. Subsequently to the treatment performed by Sure Shot, Plaintiffs encoun Lered a spider problem. Plaintiffs then contacted Mid-Del Exterminators to perform the treatment. Plaintiffs were informed by Mid-Del Exterminators that the termite treati nent performed by Sure Shot had been done incorrectly. Plaintiffs communicated this ml ormation to Defendant, yet Defendant did not take remedial action.

4. Plaintiffs contacted the Department of Agriculture, who validated that Thfendant Sure Shot did not perform the treatment correctly. Ralph Tyler, with the Department of Agriculture, performed an inspection on June 26, 2012.

5. On or about July 26, 2012, the Department of Agriculture sent a Letter o [Warning to Defendant, notifying it of a potential violation of Oklahoma Combined Pesticide Law PMC-12-142. The Department of Agriculture’s inspection revealed that ireas around the structure were not drilled at 12” intervals, some areas did not appear to have been trenched and treated, the soil sample revealed 4.65 ppm Fipronil, and evidence of termites was found along the east side of the house. The Department of Agriculture until August 26, 2012 to correct the “substandard work.”

6. On or about August 17, 2012, Defendant returned to Plaintiffs’ residencu to perform a second termite treatment.

7. Shortly after the treatment, Plaintiff Rebecca Harris noticed wet sand akng a wall in her son’s bedroom and contacted the Department of Agriculture.

8. Defendant Sure Shot negligently applied the perimeter treatment of the clemical Fipronil to the residence. The chemical was over applied and drilled into the interior of the home which contaminated the bedroom in the Plaintiffs’ home.

9. Defendant Sure Shot sent out a carpet cleaning company, however, the cntipany did not remove the carpet, and the chemical was still present in the home.

10. The Department of Agriculture informed Plaintiffs that the chemical was still present and posed a danger, and informed Defendant that further cleanup was needec to correct the problem.

11. The Defendant’s negligence caused harm to the family. The hazardous aplication of the chemical caused the Plaintiffs to become ill and to suffer the following adverse reactions:
skin lesions, skin rash, skin irritation, coughing, and sinus issues. PlaintiTs were instructed by a physician and Poison Control on September 7,2012 to stay away from the residence and dispose of any food items to minimize further possible corLtact with the chemical until it could be properly cleaned. Plaintiff Rebecca Harris ope ated a bakery out of her home, and was forced to dispose of baking supplies.

12. As a result of Defendant’s negligence, Plaintiffs incurred medical expenses resulting from the treatments, medications, and other medical care needed by Plaintiffs.

13. Plaintiffs informed Defendant that the chemical had made them sick and they had to leave the house. Despite this knowledge, Defendant failed to take any re: riedial action.

14. Plaintiffs were displaced from the home for approximately forty five (45) days. During this time, Plaintiffs stayed at a hotel and also lived in their garage. Plaini ifs incurred utility bills and other expenses and hardship during this time.

15. In order to return to living safely in their home, Plaintiffs ultimately had i.o remedy the situation themselves, by removing the carpet and padding, and taking other cleaning measures.

COUNT I. NEGLIGENCE

16. Plaintiffs herein incorporate by reference all previous allegations.

17. Defendant had a duty to perform the perimeter treatment with reasonable care. Defendant breached this duty by incorrectly applying the exterminating chemical, ai Ld causing Plaintiffs’ residence to become toxic.

18. As a direct and proximate cause of Defendant’s negligence, Plaintiffs suffered personal injuries resulting in the following damages: pain and suffering, skin lesions, skin rashes, skin irritation, coughing and sinus problems, inconvenience, trauma, and medical expenses.

COUNT II. NEGLIGENCE PER SE

19. Plaintiffs herein incorporate by reference all previous allegations.

20. Defendant’s conduct violated Oklthoma Combined Pesticide Law, speciically OAC
35:30-17-69.1 and 35:30-17-69.2, pertaining to perimeter termite treatmnts and exceptions to minimum standards. The Department of Agriculture’s inve 3tigation revealed that areas around the structure were not drilled at 12” intervals, ome areas did not appear to have been trenched and treated, the soil sample revealed 4.65 ppm Fipronil, and evidence of termites was found along the east side of the house

21. The violations of these regulations caused Plaintiffs’ injuries. The hazarc ous application of chemical to Plaintiffs’ residence caused the adverse reactions, including skin lesions and bleeding, endured by the Plaintiffs.

22. As consumers, the Plaintiffs are members of the class the regulation is trying to protect. The Oklahoma Combined Pesticide Law is contained in the “Consumer Protection” section of the Oklahoma Department of Agriculture regulations, and is ai ‘ned at preventing injuries such as those sustained by Plaintiffs.

COUNT III. GROSS NEGLIGENCE

23. Plaintiffs herein incorporate by reference all previous allegations.

24. The Defendant acted with reckless disregard for the Plaintiffs. Despite Dfendant’s awareness of Plaintiffs’ hazardous situation and displacement from the home, Defendant failed to mitigate or remedy the problem.

25. Defendant’s conduct exhibits a wanton and reckless disregard for the Plaintiffs’ health and safety, and rises to the level of gross negligence, warranting an award of punitive damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court them judgment against the Defendant, in an amount in excess of $10,000, exemplary and punitive damages, together with ini.erests and costs, and for all other relief deemed just and reasonable by this Court.

I.

Every allegation in Plaintiffs’ Petition is denied, unless specifically admitted in this Answer.

II.

With regard to the paragraphs contained within the “PARTIES, JURISDICTION. AND VENUE” portion of Plaintiffs’ Petition, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained in paragraph I of Plaintiffs’ Petition. Defendant admits the allegations contained in paragraphs 2 and 3.

III.

With regard to the paragraphs contained with the “FACTS AND LIABILITY” portion of Plaintiffs’ Petition, defendant is without sufficient knowledge or information to either admit or deny the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, and the same are therefore denied.

IV.

With regard to the paragraphs contained within the “COUNT I. NEGLIGENCE” portion of Plaintiffs’ Petition, Defendant denies the allegations contained within paragraphs 16, 17, and 18.

V.

With regard to the paragraphs contained within the “COUNT II. NEGLIGENCE PER SE” portion of Plaintiffs’ Petition, Defendant denies the allegations contained within paragraphs 19, 20, 21, and 22.

VI.

With regard to the paragraphs contained with the “COUNT III. GROSS NEGLIGENCE” portion of Plaintiffs’ Petition, Defendant denies the allegations contained within paragraphs 23, 24, and 25, including the prayer for relief which follows.

VII.

Since discovery has not yet begun, Defendant reserves the right to amend its answer in any particular.

ADDITIONAL DEFENSES

1. Plaintiffs have failed to state a claim upon which relief can be granted, either in whole or in part.

2. Defendant was not negligent, and performed its services in a reasonable, ordinary manner, within the custom and practice of the industry.

3. Defendant denies that any act or failure to act on the part of its agents, servants or employees caused or contributed to any damages allegedly suffered by plaintiffs.

4. Any damages allegedly suffered by plaintiffs pre-existed or were unrelated to Defendant’s treatment of plaintiffs’ property.

5. Any damages allegedly suffered by plaintiffs were caused by other unrelated conditions or the result of unforeseeable condition of plaintiffs’ property, for which Defendant is not responsible.

6. Defendant asserts the applicability and limitations of 12 O.S. §3009.1 to this action.

7. Defendant denies that it is liable for any punitive and/or exemplary damages. Defendant denies any act or failure to act on the part of any agent, servant or employee of Defendant in relation to the Plaintiffs sufficient to warrant the imposition of punitive damages.

8. Defendant asserts that to allow punitive damages to be assessed against Defendant in this case would violate the law as pronounced by the United States Supreme Court in Phillip Morris v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 166 L. Ed. 2d 940 (2007); State Farm v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed. 2d 585 (2003); Cooper Industries. Inc. v. Leatherman Tool Group. Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L. Ed. 2d 674 (2001); and BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L. Ed. 2d 809 (1996).

9. Defendant asserts that any claim for punitive damages is preempted by the statutory and regulatory scheme related to defendant’s licensure. Pursuant to the Excessive Fines Clause of the Eighth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendment of the United States Constitution, Plaintiffs claim for punitive damages is specifically limited to the amount of any applicable fine which may be imposed on Defendant by the State of Oklahoma, and/or any other governmental or quasi-governmental agency, commission, or body.

10. Defendant asserts Plaintiffs’ claim for punitive damages violates provisions of the
Oklahoma and U.S. Constitutions. For example, the imposition of punitive damages under
Oklahoma law would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the
U.S. Constitution in each of the following ways:

(a) Oklahoma law permits the imposition of unlimited punitive damages that are vastly disproportionate to any acts or compensatory injury thereby violating the Fourteenth Amendment of the U.S. Constitution.

(b) Disproportionate punitive damages constitute an arbitrary and capricious taking of property which is unjustified by any rational governmental interests, thereby violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

(c) The award of punitive damages without specific standards to guide the jury’s discretion in determining the amount of damages is contrary to due process under the Fourteenth Amendment of the U.S. Constitution.

ascertainable, fail to give Defendant prior notice of the conduct for which punitive damages may be imposed, and the severity of the penalty that may be imposed, and are “void for vagueness” under the Fourteenth Amendment of the U.S. Constitution.

(f) Oklahoma law fails to provide a clear, objective and consistent appellate standard for post-verdict review of punitive damages thus violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

(g) Oklahoma law permits civil punishment upon a standard of proof less than required for the imposition of criminal sanctions.

(h) Oklahoma law permits multiple awards of punitive damages for the same alleged act or omission.

(i) Oklahoma law and procedures governing Plaintiff’s punitive damage claim violates the Fifth Amendment guarantee against self-incrimination under the U.S. Constitution because said claim is penal in nature, while defendant is required to disclose documents and/or other evidence against its interests under the rules of discovery and evidence.

11. Defendant asserts that any award of punitive damages in this case would be violative of Defendant’s procedural and substantive due process rights because circumstances in this case are insufficient to support the reasonableness of an award of punitive damages and there are inadequate legal and procedural constraints imposed on the fact finder’s discretion to impose such awards. The standard for punitive damages lacks sufficiently objective criteria and procedural safeguards to give a jury adequate criteria on an appropriate range of proportionality regarding punitive damages and inappropriately allows consideration of lawful conduct by a defendant outside the forum state and harm to non-parties rather than limiting the analysis to conduct by the defendant occurring within the forum state only and only involving parties to the litigation. Furthermore, post-trial procedures and standards for trial court scrutiny of punitive damages awards and standards for appellate review of punitive damages awards are insufficient, and, therefore,
violate Defendant’s right to due process of law.

12. Defendant asserts that Plaintiffs’ claims for punitive damages against Defendant cannot be sustained, because an award of punitive damages under Oklahoma law which allows Plaintiffs to prejudicially emphasize the corporate status of Defendant violates Defendant’s due process and equal protection rights guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, the Oklahoma Constitution, and would be improper under the common law and public policy of Oklahoma.

13. Defendant asserts that Plaintiffs’ claims for punitive damages against Defendant cannot be sustained because any award for punitive damages made under a process which fails to fully bifurcate the issue of punitive damages from the remaining issues would violate Defendant’s due process rights guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, the

0) The procedural standards for imposing punitive damages are unduly vague and do not furnish the jury sufficient guidance in determining whether and how much to award punitive damages for the alleged tortious acts of the defendants and thereby permits arbitrary and capricious taking of property in violation of the due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.

(d) Oklahoma does not provide a reasonable limit on the amount of any punitive damages award, thus violating the Fourteenth Amendment of the U.S. Constitution.

(e) The substance of standards of liability under which punitive damages are sought in this case are ambiguous, subjective, and not reasonably Oklahoma Constitution, and would be improper under the common law and public policy of Oklahoma.

14. Defendant asserts that as applied, 23 O.S. §9.1 is unconstitutionally vague and violates this Defendant’s right of procedural and substantive due process under the U.S. Constitution because Section 9.1 permits punishment for conduct that reasonable people could conclude was lawful.

15. Defendant asserts the applicability of the punitive damages cap statute with respect to Plaintiffs’ alleged punitive damages claim.

16. Defendant asserts that Plaintiffs are not entitled to a trial by jury on the issue of punitive damages under the United States Supreme Court decision in Cooper Industries. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L. Ed. 2d 674 (2001).

17. Whereas discovery has not yet begun, Defendant reserves the right to plead additional defenses as information is made known to it.

WHEREFORE, having answered, Defendant McClary Enterprises, Inc. d/b/a Sure Shot Pest and Weed Control prays that plaintiffs take nothing by way of their Petition, and for all other relief that this Court may deem just and appropriate.

Outcome: Settled with court approval for $17,000 and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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