Date: 12-31-2013

Case Style: William Clark Spray v. Sears Holdings Corporation, K Mart Corporation and Enid OK Retail, LLC

Case Number: CJ-2013-234

Judge: Paul K Woodward

Court: District Court, Garfield County, Oklahoma

Plaintiff's Attorney: Clint Claypole

Defendant's Attorney: Marcie James, Eugene Robinson and Kenneth M. Yates

Description: William Clark Spray sued Sears Holdings Corporation, K Mart Corporation and Enid OK Retail, LLC on a premises liability theory claiming:

JURISDICTION AND VENUE

1. That the Plaintiffs are residents of the State of Oklahoma and have been domiciled in Garfield County, Oklahoma at all times material herein.

2. That Defendant, Sears is an Illinois Corporation with its principal place of business being located in Illinois.

3. That Enid Retail is a Delaware Limited Liability Company with its principal place of business in Oklahoma.

4. That K Mart is a Michigan Corporation with its principal place of business located in Illinois.

5. That Defendants have been doing business in the State of Oklahoma and in Garfield County, Oklahoma at all times material herein.

6. That the acts and omissions giving rise to this lawsuit occurred in Garfield County, Oklahoma.

7. This Court has jurisdiction over the subject matter of all claims contained herein and personal jurisdiction over all parties.

8. Venue is properly lodged with this Court.

II.

OPERATIVE FACTS

9. On information and belief, K Marl is a wholly owned subsidiary or dlbla of Sears.

10. Plaintiff, William Clark Spray, is a certified residential licensed real estate appraiser.

11. Plaintiffs business requires use of both arms and hands.

12. That on or about October 22, 2011 the Plaintiff was an invitee present at the K Mart location located at 4010 W. Owen K. Garriott Road, Enid, Garfield County, Oklahoma (hereinafter “K Mart location”).

13. Enid, OK Retail, LLC owns the property on which the K Mart location is located and operated.

14. On or about October 22, 2011, Defendant, K Mart was performing normal operations at the Enid, Oklahoma location and was open to the public.

15. On or about October 22, 2011, the Plaintiff was injured when he slipped on a hanger that was left on the floor, falling as a direct result of the hanger being on the floor.

16. Plaintiff suffered extensive injuries requiring extensive medical treatment, loss of the use of his dominant hand, permanent disability, loss of income, loss of business opportunity and severe pain as a result of his fall.

Ill.

FIRST CAUSE OF ACTION

Premises Liability

17. Plaintiff incorporates by reference paragraphs 1 — 16 above as if specifically set forth herein.

18. Defendant, Enid, OK Retail, LLC owns the K Mart Location in Enid, Oklahoma.

19. Defendants, K Mart and Sears operate the K Mart location.

20. Defendant, K Mart, had failed to keep the floor clear of hazards on or about October 22, 2011.

21. On or about October 22, 2011 the Plaintiff was an invitee at K Mart and was injured when he slipped and fell a hanger on the floor of K Mart.

22.Defendants, and each of them, negligently failed to maintain a clean and safe premises in K Mart and failed to warn Plaintiff of or remove a hidden dangerous condition on the floor, even though Defendants knew or reasonably should have known of that condition.

23. As a result of Defendants’ negligence, Plaintiff has suffered and continues to suffer damages including but not limited to pain, suffering and injury for which Plaintiff has incurred expenses for medical attention and temporary and permanent physical impairment and a resulting loss of income and business.

24. That Defendants’ acts and omissions were in reckless disregard of their obligations to Plaintiff such that Plaintiff is entitled to punitive damages, in an amount to be determined by a jury, in order to ensure that Defendants are punished for their conduct and to serve as an example for other companies that may attempt the same conduct.

WHEREFORE, premises considered, Plaintiff prays for judgment against Defendants, and each of them, for actual and punitive damages, all in excess of $10,000, together with all attorneys’ fees, interest and costs, and for such additional relief as this court deems equitable and appropriate.

Ill.

SECOND CAUSE OF ACTION

Negligence

25. Plaintiff incorporates by reference paragraphs 1 — 24 above as if specifically set forth herein.

26.That the Defendants, and each of them, owed a duty of care to the Plaintiff to maintain a clean and safe floor and to adequately warn Plaintiff of any dangers that may exist.

27.That the Defendants, and each of them, knew or should have known of the dangerous condition that existed at K Mart at the time Plaintiff was injured.

28.That Defendants’ breach of their duty to Plaintiff was the direct and proximate cause of the injuries that Plaintiff sustained.

29.That Defendants, and each of them, failed to render any assistance whatsoever to Plaintiff once he was injured and clearly in pain.

30.As a result of Defendants’ negligence, Plaintiff has suffered and continues to suffer damages including but not limited to pain, suffering and injury for which Plaintiff has incurred expenses for medical attention and temporary and permanent physical impairment and loss of business and income.

31.That Defendants’ acts and omissions were in reckless disregard of their obligations to Plaintiff such that Plaintiff is entitled to punitive damages, in an amount to be determined by a jury, in order to ensure that Defendants are punished for their conduct and to serve as an example for other companies that may attempt the same conduct.

WHEREFORE, premises considered, Plaintiff prays for judgment against Defendants, and each of them, for actual and punitive damages, all in excess of $10,000, together with all attorneys’ fees, interest and costs, and for such additional relief as this court deems equitable and appropriate.

IV.

FOURTH CAUSE OF ACTION

Res Ipsa Loquitur

32. Plaintiff incorporates by reference paragraphs 1-31 above as if specifically set forth herein.

33. Plaintiffs injuries were caused by a hanger, an instrumentality which was under the exclusive control and management of the Defendants.

34.The event that caused the Plaintiffs injuries was of a kind that does not occur in the usual course of everyday conduct unless a person who controls the instrumentality fails to exercise due care.

35. Evidence that would shed light on the event that caused Plaintiff’s injuries is more accessible to the Defendants than the Plaintiff.

36.Therefore, Defendants’ negligence in this matter is presumed and they are strictly liable for Plaintiffs injuries.

WHEREFORE, premises considered, Plaintiff prays for judgment against Defendants, and each of them, for damages, in excess of $10,000, together with all attorneys’ fees, interest and costs, and for such additional relief as this court deems equitable and appropriate.

Outcome: Dismissed as to Sears Holding Corporation

Plaintiff's Experts:

Defendant's Experts:

Comments: