SAGONA v. SUN COMPANY, INC.

SAGONA v. SUN COMPANY, INC.
2002 OK CIV APP 93
57 P.3d 879
Case Number: 94701
Decided: 05/31/2002
Mandate Issued: 10/14/2002
DIVISION III
COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

JOANNE SAGONA, Plaintiff/Appellant,
v.
SUN COMPANY, INC., Defendant/Third Party Plaintiff/Appellee,
v.
DHA FACILITIES MANAGEMENT GROUP, INC., Third Party Defendant

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA

HONORABLE SHARRON M. BUBENIK, TRIAL JUDGE

REVERSED AND REMANDED

James R. Hicks, MORREL, WEST, SAFFA, CRAIG & HICKS, INC., Tulsa, Oklahoma, for Plaintiff/Appellant
Robert P. Redemann, Michael F. Smith, RHODES, HIERONYMOUS, JONES, TUCKER & GABLE, P.L.L.C., Tulsa, Oklahoma, for Defendant/Third Party Plaintiff/Appellee

OPINION

ADAMS, Judge:

¶1 Joanne Sagona appeals a trial court judgment accepting a jury verdict in favor of Sun Company, Inc. (Sun) in her action for damages arising out of injuries she allegedly sustained when the doors to an elevator in Sun's office building closed on her left wrist as she was attempting to keep the doors open.

¶2 The essential facts are not in dispute. Sun owned the building where the injuries occurred. Sagona was allegedly injured after she left her husband's office where she had come to meet him for lunch. Sagona's husband was admittedly Sun's tenant. Because he was in a meeting when she arrived, her husband asked her to wait for him downstairs. After she entered the elevator to descend from the ninth floor, on which her husband had his office, she stuck her hand against the elevator doors to keep them open because she believed she heard someone else approaching the elevators to get on. However, the doors closed anyway, trapping her hand and wrist.

¶3 Sagona presented evidence and argued at trial that the elevator was unsafe because the safety bumpers did not function properly and that Sun knew or should have known of that condition and corrected it or warned her about it. According to that evidence, the danger in the elevator was common knowledge to the building's tenants and those who worked in the building and Sun had not performed any tests on the safety bumpers for more than a year prior to this incident. Over Sagona's objection, the trial court told the jury that Sagona was a licensee and instructed the jury on Sun's duty of care by using OUJI-CIV 11.13.

¶4 Sagona asked the trial court to tell the jury that she was an invitee and instruct the jury on Sun's duty by using OUJI-CIV 11.10.

¶5 This significant difference between the standard by which the jury evaluated [57 P.3d 880] Sun's conduct under the trial court's instructions and the standard by which Sagona argues the jury should have evaluated that conduct, supports the conclusion that the trial court's decision to treat Sagona as a licensee rather than as an invitee, if incorrect, was prejudicial to Sagona and would be cause for reversal. See Bouziden v. Alfalfa Electric Cooperative, Inc.,

¶6 Sun premised its argument that Sagona was a mere licensee on undisputed evidence that she was there, not to conduct business with Sun, but to have lunch with her husband. This argument ignores the commercial purpose inherent in the landlord/tenant relationship between Sun and Sagona's husband.

¶7 English v. Thomas,

¶8 This view is also consistent with the status accorded the plaintiff in Ross v. Otis Elevator Company,

¶9 The Oklahoma Supreme Court discussed the distinction between a licensee and an invitee in McKinney v. Harrington,

An invitee is one who possesses an invitation to be upon the premises, express or implied. St. Louis-San Francisco Ry. Co. v. Williams, 176 Okl. 465,

¶10 The record contains no evidence of any express invitation by Sagona's husband. However, the only reasonable inference from the evidence is that Sagona was on Sun's premises for the mutual benefit of herself and her husband, and an invitation was implied.

¶11 Even the Restatement of Torts, 2d, which concludes in § 330(h) that an invited social guest is only a licensee, states in § 332 (k), p. 181:

A person may be a business visitor of a lessor of land although he is merely a gratuitous licensee of the lessee. Thus, the lessor of an apartment in an apartment house or of an office in an office building, who retains the control of the halls, stairways, and other approaches to the apartment or office, holds such parts of the premises open to any person whom his lessee may choose to admit, irrespective of whether the visit of such a person is for his own or the lessee's business purpose or whether he comes as a mere social guest of other licensee of the tenant.

¶12 Based on the undisputed evidence in this record, the trial court erred in concluding Sagona was a licensee and instructing the [57 P.3d 881] jury concerning Sun's duty in accordance with that erroneous conclusion.

REVERSED AND REMANDED

HANSEN, P.J., concurs;

MITCHELL, J., dissents with separate opinion.

FOOTNOTES

1Sun dismissed its third party claim against DHA Facilities Management Group, Inc. prior to trial.

2That instruction, which the trial court adapted to reflect Sagona's gender and Sun's status, provides:

The [owner/occupant] of premises has a duty to a licensee, whose presence on the premises is known or reasonably should be known, not to injure [him/her] 1) by a willful or wanton act, or 2) by needlessly exposing [him/her] to danger by a failure to warn of any hidden danger on the premises that is known to the [owner/occupant] and that the licensee is not likely to discover by [himself/herself]. This duty is limited to any hidden danger that the [owner/occupant] actually knows about, and the [owner/occupant] has no duty to inspect the premises for hidden dangers.

(Brackets in original).

3This instruction provides:

It is the duty of the [owner/occupant] to use ordinary care to keep [his/her/its] premises in a reasonably safe condition for the use of [his/her/its] invitees. It is the duty of the [owner/occupant] either to remove or warn the invitee of any hidden danger on the premises that the [owner/occupant] either actually knows about, or that [he/she/it] should know about in the exercise of reasonable care, or that was created by [him/her/it] [or any of [his/her/its] employees who were acting within the scope of their employment]. This duty extends to all portions of the premises to which an invitee may reasonably be expected to go.

(Brackets in original).

4Sun does not suggest that this trial court decision was insignificant to the outcome or might constitute "harmless error."

5Section 332 of the Restatement of Torts, 2d, which is entitled "Invitee Defined," also includes comment g, P.180, which states, in pertinent part:

It is not necessary that the visitor shall himself be upon the land for the purposes of the possessor's business. The visit may be for the convenience or arise out of the necessities of others who are on the land for such a purpose. Thus, those who go to a hotel to pay social calls upon the guests . . .are business visitors, since it is part of the business of the hotelkeeper . . . to afford the guest . . . such conveniences.

6Because we are bound by Oklahoma precedent, we need not consider Sun's argument that we should follow the cases it cites from other jurisdictions. However, we do note that each of those cases involved a visitor to someone alleged to be an employee of the defendant, and none involved a tenant's invitee.

DISSENTING OPINION

BAY MITCHELL, Judge:

¶1 I disagree with the majority. I believe Appellant was a licensee on the premises and the jury was correctly instructed.

¶2 The evidence reflects that Appellant was on Appellee's premises to pick up her husband, a tenant in Appellee's building, for lunch. There was no business or commercial interest or significance to Appellant being in the building. That being the case, Appellant does not qualify for invitee status.[57 P.3d 882]