Date: 03-10-2014

Case Style: Randy Stine v. Bill Veazey's Party Store, Inc. and Tony Heriford

Case Number: CJ-2011-6753

Judge: Bill Graves

Court: District Court, Oklahoma county, Oklahoma

Plaintiff's Attorney: Bryce Johnson and Emily J. Biscone

Defendant's Attorney: Tim N. Cheek, D. Todd Riddles, Gregory D. Winningham and Tyler J. Coble

Description: COMES NOW the Plaintiff, Randy Stine and for his first cause of action against the Defendant, alleges and states as follows:

1. That Defendant Bill Veazey’s Party Store, Inc. is a corporation organized and existing under the laws of the state of Oklahoma. Their principle place of business is located in Oklahoma City.

2. This Court has proper jurisdiction and venue.

3. On August 21, 2010, Plaintiff was a business invitee of The Citizens of Potawatomi Nation Firelake Grand Casino located at 777 Grand Casino Boulevard, Shawnee; Oklahoma 74804, in the City of Shawnee, Potawatomi County, State of Oklahoma.

4. That Defendant Bill Veazey’s Party Store, Inc. ( Veazey’s ) was contracted by The Citizens of Potawatomi Nation dba Firelake Grand Casino to set up/install the party display specifically known as the Tiki Totem statue display for a V.I.P. party at the Firelake Grand Casino.

5. That on August 21, 2010, while Plaintiff Stine was a business invitee/guest at the V.I.P party, the Tiki Totem statue fell over striking him and injuring him causing personal injuries that required medical treatment.

6. That Defendant Veazey’s was by and through its agents, servants and/or employees negligent in their maintenance, oversight of, and installation of the Tiki Totem statue. Further, said Defendant was negligent in their training and supervision of their agents, servants, and/or employees. Said Defendant is liable for the negligence of their agents, servants, and/or employees under doctrine of Respondeat Superior. That such negligence of the Defendant is the direct and proximate cause of Plaintiffs’ injuries and damages.

7. Plaintiff, Randy Stine reserves the right to allege additional acts of negligence as the same may be discovered in the course of litigation.

8. As a direct result of the negligence of the Defendant, Plaintiff Randy Stine was seriously and permanently injured, has endured mental and physical pain and suffering and will likely endure future mental and physical pain and suffering, has incurred medical expenses and will likely incur future medical expenses, has incurred lost wages and will likely incur future lost wages, as well as other damages, all to his detriment. That as a direct result of the negligence of the Defendant, the Plaintiffs spouse, Tamara Stine has suffered loss of consortium and such damages associated therewith.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays for judgment against the Defendant for an amount in excess of $75,000.00, plus interest, costs, and whatever further relief as to this Court may seem just, proper and equitable.

ANSWER

COMES NOW the Defendant Bill Veazey’s Party Store, Inc., an Oklahoma Corporation for its Answer to the Plaintiff’s Petition alleges and states as follows:

1. This Defendant admits the allegations in Paragraphs 1 and 2 but is without sufficient information to admit or deny the allegations in Paragraph 3 and 5.

2. This Defendant admits the allegations in Paragraph 4, except that Defendant is unable to admit at this time who it was that contacted Defendant on behalf of the Casino.

3. This Defendant denies the allegations in Paragraphs 6 and 8 and cannot respond to the allegations in Paragraph 7. Defenses and Affirmative Defenses

1. Comparative negligence/Contributory negligence.

2. Negligence of third parties over whom Defendant had no control.

3. Supervening causation.

4. Failure to mitigate damages, if any.

5. Defendant disputes the alleged accident caused injury to the Plaintiffs.

6. Defendant disputes the nature and extent of Plaintiffs’ claimed injuries.

7. Defendant reserves the right to amend its Answer as discovery takes place.

Wherefore, premises considered, this Defendant prays Plaintiff take nothing by reason of their Petition and that this Defendant be granted its costs and such other and further relief as the Court deems just and proper.

Outcome: The above cause was tried to the Court, without a jury, on October 28 and 29, A.D. 2013, and November 1, A.D. 2013.

On August 21, A.D. 2010, Plaintiff Randy Stine suffered personal injuries while attending a “high roller” or V.I.P. party at the Firelake Grand Casino (“Firelake” or “the Casino”), which was owned and operated by the Citizen Potawatomi Nation Indian tribe at Shawnee, Oklahoma.1 Firelake is not a party to this case because the Oklahoma Supreme Court has held that in such cases Indian tribes may be sued only in tribal courts.2 Bill Veazey’s Party Store, Inc. (Veazey’s), an Oklahoma Corporation is the Defendant herein and rents out, delivers certain party materials and decorations.3 Plaintiffs assert that the Casino contracted with Veazey’s to set up certain party decorations that the Casino would use during a V.I.P event. Two of the aforesaid party decorations provided by Veazey’s were “Tiki Totem” displays which were used as the “beginning” and “end” of an entryivay corridor leading into the party. The Tiki had two columns on top of which an arch was placed. The display had been elevated by placing plastic egg crates beneath each column. Plaintiffs assert that they were standing near or under the second or “end” Tiki display which ultimately fell on Mr. Stine causing him injuries. Although Veazey’s contends that evidence shows that Tony Heriford, a very inebriated individual, intentionally shook or moved one of the Tiki’s two supporting columns causing the arch to fall causing Plantiffs’ injuries, Plaintiffs contend that Veazey’s was negligent in the way its employees assembled or directed the assembly of the Tiki display and that this negligence was the cause of Mr. Stine’s injuries. In defense, Veazey’s denies that it set up the Tiki display at issue but nevertheless contend that there is no evidence of negligence by Veazey’s in any setup. At the same time Veazey’s contends that even assuming that the said display was set-up negligently, Veazey’s negligence was not the cause of Mr. Stine’s injuries. Rather, Veazey’s contends that the aforementioned actions of Mr. Heriford was the proximate cause of Mr. Stine’s injuries and further asserts that had Mr. Heriford not acted as he did, the Tiki display would not have fallen and Mr. Stine would not have been injured.

I. FINDINGS OF FACT

The case was submitted for decision by this Court after all the evidence was heard by the Court and after the parties filed their findings of fact and conclusions of law. Accordingly, this Court FINDS and CONCLUDES as follows:

1. Plaintiffs Randy and Tamara Stine are husband and wife, respectively, and are citizens of the State of Oklahoma.

2. Defendant Bill Veazey’s Party Store, Inc. is a corporation formed and existing under the laws of the State of Oklahoma. Veazey’s principal place of business is located in Oklahoma City, Oklahoma.

3. Ms. Michelle O”Bright and Ms. Debbie Cook were the Casino employees coordinating the V.I.P. event.4 Ms. O’Bright, the Casino events manager contacted Veazey’s to rent the decorations Firelake would use for the event and selected the decorations from pictures e-mailed by Veazey’s. Veazey’s staff inquired as to the purpose of the decorations, but at the time Ms. O’Bright did not know how the displays would be used or where they would be placed.5 During the rental negotiations, there was no discussion regarding display set-up — Ms. O’Bright assumed Veazey’s would set-up the displays as part of the job.6 The Casino never contracted for Veazey’s to set up the rented decorations, but only to deliver them.7 In fact, Veazey’s treats set-ups as a separate service that carries an additional fee and had such arrangements been made Veazey’s invoice would have included a setup charge which it does not.8 The agreement did not include any terms under which Veazey’s agreed to set up any of the decorations delivered. Veazey’s policy is to charge a set-up fee if a set-up is contracted for and done,9 but here the Casino was not charged for a set-up.1°

4. Veazey’s employees Mr. Steve Houston and Mr. John Brooks delivered the requested decorations to Firelake at approximately 10:00 a.m. on August 21, 2010. Among those delivered were two “Tiki Totem” or “Mayan god” displays. The Tiki Totem displays were similar in construction, differing very little in appearance. Both were composed of three parts — two columns and a top (an arch) that sat upon the two columns.

5. The Casino decided to use the two Tiki displays as the “beginning”(Tiki I) and “end”(Tiki II) of an entrance corridor leading to the V.I.P. party’s registration table inside the Casino’s event center.

6. Mr. Houston assisted Firelake employees with the assembly of the first “beginning” Tiki display (Tiki I), which was assembled in front of the doorway to the casino’s event center where a luau was to take place. He testified that he and Mr. Brooks were directed by the Casino as to where and how the Tiki was set up which is what they did.11 He further testified that his job description is to do what the customer asks me to do.12 During that assembling, the Casino produced plastic milk crates and directed that the Tiki’s columns be set on the plastic crates. Mr. Houston voiced concerns about using the milk crates which he said would make the display unstable. The Casino did not heed his concerns.

7. Neither Mr. Houston nor any other Veazey’s employee assembled or assisted with the assembly of Tiki II which served as the “end” of the entrance corridor. Instead, when the decorations were first delivered, Veazey’s employees carried Tiki II into the Casino and set it off the side along the wall. When the Veazey’s employees left the Casino, the second Tiki (II) remained in that position.

8. When the V.I.P. party began the evening of August 21, 2010, Tiki II had been assembled and (like Tiki I) its columns were set up on top of milk crates. Tiki II was positioned as the “end” of the party’s entrance corridor, and Tiki I was positioned as the “beginning.”

9. Plaintiffs Randy and Tamara Stine, husband and wife, attended the V.I.P. party at the casino the night of August 21, 2010. After playing on slot machines, the Stines entered the corridor to attend the party.

10. While the Stines were standing near Tiki II in the corridor, Mr. Heriford came upon Tiki II’s columns and shook it. When Heriford shook the column, the top part of Tiki II — the arch — fell on Mr. Stine. The arch weighed over 22 pounds.

11. Mr. Heriford was admittedly intoxicated (which he admitted)13 at the time of this incident and had been drinking beer with a group of friends approximately 6-7 hours before arriving at the Casino.

12. Mr. Heriford intentionally shook Tiki II’s column, causing the arch to fall on Mr. Stine. Had he not shaken Tiki II’s column , the display would not have fallen on Mr. Stine.14

13. To its representatives knowledge, Veazey’s had never experienced any situation where one of the decorations injured another person. Likewise, before this incident, Veazey’s had never had any problems with their Tiki displays falling over.

14. Veazey’s, through its representaives, did not expect that an intoxicated Casino patron would come upon and intentionally shake or move one of the Tiki’s columns.

15. A reasonable person in Veazey’s position would not have expected an intoxicated Casino patron to come upon and intentionally shake or move one of Tiki II’s columns.

16. Mr. Stine suffered injury when the Tiki display’s 22 1/2-pound arch fell on him.

17. There was a conflict of testimony as to what part, if any, Veazey’s employees played in setting up the displays. Firelake never contacted or contracted with Veazey’s to set-up the rented decorations, but only to deliver them.15 Ms. O’Bright assumed that Veazey’s would set-up the decorations as part of the job.16 Ms. O’Bright testified that when Mr. Houston and Mr. Brooks left the second Tiki (the one by which Plaintiff was injured) had been placed on egg crates to make it taller.17 Ms. O’Bright testified that Veazey’s assembled the second Tiki (by which Plaintiff was injured).18 Yet, Ms. O’Bright had to be reminded on cross-examination that in her Deposition she testified to the very opposite saying that when Messrs. Houston and Brooks left, Tiki Totem II was in fact not on egg crates, thus clearly indicating that Casino employees, not Veazey’s, placed the display on egg crates.’9 Mr. Houston testified he did not set up the second Tiki Totem or even witness its being set up.2° In fact, he testified that when the Veazey’s employees left Firelake Tiki II had been placed along a nearby wall and had not been set up yet.21 Moreover, Mr. Houston consistently warned Ms. O’Bright that placing the Tiki on egg crates made it unstable.22 Yet, even though she agreed,23 she testified that the Tiki was set on egg crates at her direction.24 If Ms. O’Bright herself thought the Tiki display was unstable or unsafe, she had the authority to take it down.25

While Ms. O’Bright’s testimony is inconsistent and contradictory, Mr. Houston’s testimony is consistent with no contradictions. Ms. O’Bright had an interest in protecting herself and her employer Firelake Casino. Contrary to Ms. O’Bright, Deborah Cook of the Casino testified that she had no involvement in setting up Tiki II, was not present when it was set-up and never saw Veazey’s set it up.26 Moreover, she had concerns about the Tiki not being stable27 which was Ms. O’Bright’s job.28 On the other hand, Mr. Houston consistently voiced concern about setting the Tiki on egg crates because of his belief that it would make the Tiki unstable29 and denied setting up the second Tiki II. Mr. Houston had no motive to conceal or alter the truth. Moreover, at the time of his video Deposition (which was admitted into evidence), Mr. Houston was no longer a Veazey employee having been, he said, unjustly fired by Veazey’s. Had Mr. Houston had any kind of motive to alter the truth, it would not have been in a way favorable to Veazey’s defense. Thus, the Court FINDS that notwithstanding his record,3° Mr. Houston’s testimony is more credible than that of Ms. O’Bright.

18. Mr. Heriford has been dismissed as party, but the Court finds as between Plaintiffs and Veazey’s, his action in shaking the Tiki was a direct and proximate cause of Mr. Stine’s injuries. Since this Court has been informed that a case involving this incident herein has been filed against Firelake Grand Casino in the Indian Court, this Court makes no findings of facts or Conclusions of Law as to the liability or non- liability of Firelake herein although as owner of the premises some concurrent liability may possibly attach to Firelake in the Indian court.31 Moreover, since Mr. Stine was an invitee, Firelake owed him a high duty as to his safety.32

II. CONCLUSIONS OF LAW

Defendant Bill Veazey’s was legally served with summons and the Plaintiff’s Petition and actively participated in this action since commencement. Thus, the Court has personal jurisdiction over the parties to decide this case. Venue for this action is proper herein because Veazey’s is a domestic corporation situated within Oklahoma County, Oklahoma.

To succeed herein Plaintiffs must prove each of the following elements by the greater weight of the evidence,”: (1) that Veazey’s owed Plaintiffs a duty of care to protect them from injury; (2) that Veazey’s failed to perform that duty (or was “negligent”), and (3) that Plaintiffs’ injuries were proximately caused by Veazey’s failure to meet their duty and exercise due care.

A. Veazey’s Did Not Assemble Tiki II

Based on the evidence, this Court has found that Veazey’s did not assemble Tiki II which injured Mr. Stine when Mr. Heriford shook the display. To hold Veazey’s liable for Mr. Stine’s it must at least be shown that the action or inaction of Veazey’s was the direct and proximate cause of the injury. “Causation” in a negligence action is defined as “a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened.”33 It was held in Akin v. Mo.

Pacific R.R. Co., 1998 OK 102, ¶38, 977 P.2d 1040, 1054, that “(t)he proximate cause of an injury is the efficient cause, i.e., the agency which produces the effect. It must be the cause which sets in motion the chain of circumstances leading to the injury.” While a plaintiff need not prove causation with absolute certainty, the “mere possibility of causation is insufficient.”34 Accordingly, when causation is a matter of “pure speculation or conjecture” the verdict must be entered for the defendant.”35

Thus, this Court holds that Plaintiff herein has failed to prove, by the greater weight of the evidence, that any negligence alleged against Veazey’s was the proximate cause of Mr. Stine’s injury. This Court holds that Veazey’s alleged negligence was not the “cause which set in motion the chain of events leading to Mr. Stine’s injury. In view of the fact Mr. Heriford had to first shake or move the Tiki display before it would fall, the facts instead show that Veazey’s alleged negligence, at best, was merely a remote cause or “mere condition” which is insufficient to attach liability.”36 Thus, Plaintiffs fail to prove Veazey’s actions or inactions were the proximate cause of Mr. Stine’s injury.

B. Mr. Heriford’s Action Constituted “Intervening Cause”

Veazey’s contends that assuming arguendo that it was somehow negligent in this cause as to Mr. Stine, Mr. Heriford’s action in shaking the Tiki was an intervening cause absolving Veazey’s of any liability. In Long v. Ponca City Hospital, Inc., 1979 OK 32, 593 P.2d 1081, the tort liability of the defendant hospital was predicated upon the placement of a catheter in the rectum of a patient, rather than in her bladder, while being prepared for surgery. The hospital attempted to avoid liability, although admitting negligence, by proving that the actions of the surgeon involved, which they characterized as negligent, superseded the hospital’s liability, and that their negligence merely furnished a condition and was not the cause of the injuries alleged. The Supreme Court held that the major distinction between a cause and a condition is foreseeability, and found that the trial court’s instructions submitted the question of foreseeability to the jury and affirmed the decision of the trial court. The jury held for the defendant hospital after which the Court of Appeals reversed. However, the Supreme Court on appeal upheld the trial court’s instruction to the jury and upheld the decision for the hospital. In so doing, the Court declared:

“The general rule is that the causal connection between an act of negligence and injury is broken by the intervention of a new, independent and efficient cause, which was neither anticipated nor reasonably foreseeable In such case the negligence of the original wrongdoer is not actionable because it is only the remote, rather than the proximate, cause of the injury Thus where a negligent act merely creates a condition making an injury possible, and a subsequent independent act causes the injury, the original act of negligence is not ordinarily the proximate cause thereof.”

The Supreme Court in Long held that to relieve the one guilty of the first act of negligence of responsibility, the intervening cause must entirely supersede the original negligence and the intervening cause must have been reasonably foreseeable. The Court reversed the Court of Appeals and upheld the trial court judgment. It was held in Hardy, supra, that while a plaintiff need not prove causation with absolute certainty, the “mere possibility of causation is insufficient.” Thus, Hardy held that when causation is a matter of “pure speculation or conjecture” the verdict must be entered for the defendant.

In this case, Mr. Heriford’s intentional act of shaking the Tiki’s column was the supervening, proximate cause of Mr. Stine’s injury, and Plaintiffs’ arguments that Veazey’s caused Mr. Stine’s injury rest on noting more than “pure speculation or conjecture.” It was held in Thompson v. Presbyterian Hosp., Inc., 1982 OK 87, 652 P.2d 260, 264 that a true supervening cause exists when three prongs are met: (1) the intervening act is independent of the original act, (2) the intervening act is “adequate of itself to bring about the result,” and (3) the intervening act was not reasonably foreseeable by the defendant. Thus, this Court concludes and holds that Mr. Stine’s injuries were proximately caused by Mr. Heriford’s intentional acts, i.e., shaking the Tiki display which served as a supervening cause that severed any causal link between Veazey’s actions and Mr. Stine’s injury. Mr. Heriford’s foolish actions which tragically resulted in Mr. Stine’s injuries were independent of any of Veazey’s actions and were adequate in themselves to bring about Mr. Stine’s injury. At worst, Veazey’s actions in providing the Tiki to Firelake only provided an “opportunity” for injury to occur and were not the proximate cause of Mr. Stine’s injuries.

IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED by the Court that Defendant Veazey’s is awarded judgment on and against Plaintiffs’ Petition which is hereby dismissed with prejudice as to Veazey’s.

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