EVERS v. FSF OVERLAKE ASSOCIATES

EVERS v. FSF OVERLAKE ASSOCIATES
2003 OK 53
77 P.3d 581
Case Number: 97470
Decided: 05/20/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

HEATHER V. EVERS and DEREK EVERS, Plaintiffs/Appellants,
v.
FSF OVERLAKE ASSOCIATES, an Oklahoma Limited Partnership; D.G.M. OVERLAKE, INC., a suspended Delaware Corporation; TRUST PROPERTY MANAGEMENT, INC., an unincorporated or unregistered association, Defendants/Appellees.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II

¶0 Plaintiffs, Heather and Derek Evers, filed suit against the owners and managers of an apartment complex in Bethany, Oklahoma, as well as other unnamed defendants, who resided in the adjoining apartment during the operation of a methamphetamine drug lab. The Evers allege the methamphetamine and its components caused illness and residual physical injuries. Defendants, FSF Overlake Associates, D.G.M. Overlake, Inc. and Trust Property Management, moved for summary judgment, asserting they owed no duty to Plaintiffs, and even if a duty was owed the criminal acts of third parties acted as a supervening cause of the Plaintiffs' injuries. The trial court granted Defendants' summary judgment. The Court of Civil Appeals sustained the summary judgment, finding the Evers failed to establish a link between methamphetamine exposure and their alleged injuries. We find Defendants tendered undisputed facts cannot support summary judgment as a matter of law on the issues of duty or supervening cause. The opinion of the Court of Civil Appeals is vacated as it examined factors not considered in the summary process at the court below.

CERTIORARI PREVIOUSLY GRANTED.
OPINION OF THE COURT OF CIVIL APPEALS VACATED.
JUDGMENT OF THE TRIAL COURT REVERSED AND CAUSE REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

John D. Mashburn, Oklahoma City, Oklahoma, for Plaintiffs/Appellants,
Gary S. Chilton and Heidi Jo Long, Oklahoma City, Oklahoma, for Defendants/Appellees.

BOUDREAU, J.

¶1 Heather and Derek Evers filed suit against the owners and managers of an apartment complex in Bethany, Oklahoma, as well as other unnamed defendants, who resided in the adjoining apartment during the operation of a methamphetamine drug lab. The Evers' petition alleges that in March 2000, they along with other tenants began to notice strong smells in and around the apartment building. Shortly thereafter, the Evers and other tenants began to complain about the smells to the management and owners of the apartment complex.

¶2 After the advent of fumes, Heather Evers claims she became ill with headaches, dizziness and a variety of debilitating symptoms, which eventually made it impossible for her to go to work and resulted in her spending even more time in the apartment. In May 2000, approximately two months after the initial complaints began, Heather says she once again complained to the apartment staff. In response, an apartment security officer was sent to investigate the origin of the smell. The security company officer believed the smell to be the result of illegal drug activity. The police raided the apartment adjoining the Evers' apartment and discovered a methamphetamine drug lab in the bathroom, which shared a wall and ventilation system with the Evers' apartment. After the police raid, the Evers terminated their lease.

¶3 In their petition, the Evers assert that the materials used to manufacture the methamphetamine are highly toxic and carcinogenic. The Evers allege the owners and management personnel of the complex knew or should have known of the dangerous condition posed by the illegal manufacture of drugs in the adjacent apartment and negligently failed to warn or protect the tenants of the danger. The Evers claim these failures resulted in Heather becoming very ill, with residual reproductive complications and increased risk of future illness, such as cancer.

¶4 Defendants, FSF Overlake Associates, D.G.M. Overlake, Inc. and Trust Property Management, moved for summary judgment. In their summary judgment motion, Defendants argued they owed no duty to the Evers to maintain an apartment community free from criminal activity and even if a duty was owed, the criminal acts of third parties caused the Evers harm and not any negligence on the part of the property managers or owners.

¶5 The trial court granted Defendants' motion for summary judgment. Plaintiffs moved for a new trial. This motion was denied and Plaintiffs appealed. The Court of Civil Appeals, determined the Evers failed to provide sufficient evidence of injury and failed to adequately link any alleged injuries to exposure to methamphetamine or its components. As a result, the Court of Civil Appeals determined the trial court did not err in granting the summary judgment. The Evers sought certiorari to this Court, asserting that the Court of Civil Appeals affirmed Defendants' summary judgment based upon an issue not tried or raised at the court below, namely the extent and cause of the Evers' physical injuries.

I. Standard of Review

¶6 We note this case comes on appeal from Plaintiffs' motion for a new trial. The standard of review on appeal in examination of the trial court's denial of a new trial motion is abuse of discretion. Jones, Givens, Gotcher & Bogan v. Berger,

II. Content of Defendants' Summary Judgment Motion

¶7 FSF Overlake Associates, D.G.M. Overlake, Inc. and Trust Property Management, Inc., the Defendants, owners and managers of the apartment complex, filed their motion for summary judgment arguing that 1) they owed no duty to the Evers to maintain a crime-free apartment environment, 2) even if they owed a duty, the Evers' injuries were caused by the intentional crimes of third parties, which was a supervening cause of any alleged injuries, and 3) they could not be liable for misrepresentation, because Plaintiffs did not rely on any allegedly false statements by any of the Defendants.

¶8 In support of this motion, Defendants set out the following "uncontroverted facts":

1.In May 2000, the Overlake Apartments, located at 7902 N.W. 21

2. In May 2000, the Overlake Apartments were managed by Trust Property Management, Inc.;

3. The Plaintiffs resided in Unit E-20 at the Overlake Apartments from July 1999 through May 22, 2000;

4. Unit E-19, the apartment adjacent to Unit E-20, was raided by the Bethany Police on May 18, 2000, and an illegal methamphetamine laboratory was discovered;

5. The parties arrested in connection with the methamphetamine laboratory did not have prior criminal records;

6. Following the police raid, the plaintiffs immediately gave notice of termination of lease and moved from the Overlake Apartments;

7 After the police raid, the plaintiffs resided in a different apartment unit until they were able to physically move from the Overlake Apartment community;

8. Beginning December 1, 1999, at the latest, Overlake requested all residents to sign a "Lease Addendum for Drug-Free Housing".

III. Defendants' Motion Does Not Entitle Them to
Judgment Through Summary Process

¶9 A motion for summary judgment is a request for an adjudication on the merits of the case. It is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and the party moving for summary judgment is entitled to judgment as a matter of law. Markwell v. Whinery's Real Estate, Inc.,

¶10 In arguing they are entitled to summary judgment, Defendants assert that they owed no duty to the Evers to maintain a crime-free apartment environment. They contend that the obligation to keep a unit "safe" is not intended to make the landlord the guarantor of the tenant's safety and does not create an obligation on the landlord to insure against criminal attack.

¶11 In their petition, Plaintiffs claim that Defendants have retained control over a portion of the leased premises, specifically the ventilation system (heat and air), for use in common with other tenants. They claim that Defendants knew or should have known of a dangerous condition affecting the ventilation system posed by the manufacture of drugs in the adjacent apartment. They argue that Defendants breached their respective duties to use reasonable care to maintain the ventilation system by failing either to remove or to warn Plaintiffs of the dangerous condition posed by the system.

¶12 Whether a negligent defendant stands in such a relationship to a plaintiff that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff is a question for the court. Wofford v. Eastern State Hosp.,

¶13 Second, in examining Defendants supervening cause argument, we note a supervening cause is a legal mechanism that breaks the chain of causation between an original actor and the injury to a plaintiff. A supervening cause effectively shields the original actor from liability, because it renders the original actor's breach of duty incidental or inoperatively remote or one which the original actor could not reasonably have foreseen or anticipated. The test for supervening cause is threefold: 1) the supervening act must be independent of the original act; 2) the supervening act must be adequate of itself to bring the result; and 3) the supervening act must not be reasonably foreseeable. See Thompson v. Presbyterian Hosp., Inc.,

¶14 Again, Defendants' statement of material facts, alleged to be undisputed, does not offer any facts upon which the defense of supervening cause can be decided as a matter of law. In fact, a review of Plaintiffs' petition casts doubt on whether the Defendants can be considered original actors for purposes of applying the defense. In the petition, Plaintiffs' make factual allegations against Defendants in which Defendants' actions are subsequent and secondary to the criminal acts which occurred in the adjoining apartment. These include allegations that Defendants failed to investigate, detect or repair the methamphetamine release in the air vents or breeze-ways. Defendants' statement fails to address how the defense of supervening cause can be applied in circumstances where their alleged negligence is not an original act, but one which is secondary to the advent of the criminal activity.

¶15 Even in those alleged circumstances where Defendants' negligence arguably precedes the methamphetamine production, where for example Plaintiffs allege Defendants improperly screened prospective tenants, Defendants' statement does not present uncontroverted facts sufficient to address the three-prong test that shields an original actor from liability. There is simply not enough information in the "uncontroverted facts" offered to support a finding that the criminal activity of the adjoining tenants was an effective supervening cause that shields the Defendants from liability.

¶16 As a final argument, Defendants contend that Plaintiffs did not rely on any alleged misrepresentations made by the Defendants.

¶17 Summary process provides a method of summarily terminating a case, or eliminating from trial some of its issues on the merits of a claim, where only questions of law remain. Myers v. Lashley,

IV. Court of Civil Appeals Decision

¶18 In reviewing a judgment entered through the summary process, "appellate tribunals must equally bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant." Manley v. Brown,

¶19 The Court of Civil Appeals upheld Defendants' summary judgment based upon its analysis that Plaintiffs did not support their claims of injury and failed to establish a sufficient link between exposure to methamphetamine or its components and their injuries. However, factual issues regarding the nature, cause and existence of Plaintiffs' injuries were not addressed by the motion for summary judgment or considered by the trial court below. The trial court simply did not examine whether Plaintiffs suffered injuries and whether they are the result of methamphetamine exposure. Therefore, the appellate court should not have engaged in such an examination in the first instance.

¶20 The Court of Civil Appeals opinion in essence affirmed the summary judgment on a theory not before the trial court. Accordingly, we must vacate the opinion. See Bivins,

V. Conclusion

¶21 The trial court erred when it entered summary judgment in favor of Defendants. The summary judgment motion offered by Defendants in this case falls short of demonstrating that only questions of law remain to be decided in this case.

¶22 The Court of Civil Appeals erred when it examined matters outside the record and outside those considered by the trial court. Accordingly, the opinion of the Court of Civil Appeals is vacated.

¶23 CERTIORARI PREVIOUSLY GRANTED. OPINION OF THE COURT OF CIVIL APPEALS VACATED. JUDGMENT OF THE TRIAL COURT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

WATT, C.J., HODGES, LAVENDER, KAUGER, and BOUDREAU, JJ., CONCUR.

OPALA, V.C.J., CONCURS IN PART and DISSENTS IN PART.

HARGRAVE, SUMMERS, WINCHESTER, JJ., DISSENT.

FOOTNOTES

1 It is only after the moving party meets this burden that the non-moving party must then demonstrate the existence of a material fact that would justify a trial of that issue. Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138, 1143; Bowers v. Wimberley, 1997 OK 24, 933 P.2d 312, 315. There is considerable latitude given a non-moving party and, in fact, the party against whom a summary judgment motion is directed can use the movant's own evidentiary materials to establish the existence of a controverted fact. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 984-85.

2 A landlord has a basic duty to "[m]ake all repairs and do whatever is necessary to put and keep the tenant's dwelling unit and premises in a fit and habitable condition" and "[m]aintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by him[.]" 41 O.S. 2001, §118(A)(2)-(3). This Court determined that keeping a unit "safe" is not intended to make the landlord the guarantor of the tenant's safety and does not create an obligation on the landlord to insure against criminal attack. Cordes v. Wood, 1996 OK 68, 918 P.2d 76, 78-79; Mengal v. Rosen, 1987 OK 23, 735 P.2d 560, 562.