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2009 OK CIV APP 81
225 P.3d 6
Case Number: 106249
Decided: 06/03/2009
Mandate Issued: 10/08/2009

LATRICIA D. LEWIS, individually and on behalf of her minor child, TREY LEWIS, Plaintiff/Appellant,
WAL-MART STORES EAST, L.P., Defendant/Appellee.




Gaylon C. Hayes, HAYES LEGAL GROUP, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant
Michael W. Brewer, HILTGEN & BREWER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee


¶1 Latricia Lewis appeals from the district court's order granting summary judgment. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp. 2008, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Based on our review of the record on appeal and applicable law, we find that there are material issues of fact that preclude summary judgment and, therefore, reverse and remand for further proceedings.


¶2 On September 2, 2005, Lewis's five-year-old son went to the Chandler, Oklahoma, Wal-Mart with his aunt and sister. While there, he went into the men's restroom. His aunt waited outside the restroom door for him. Inside the restroom, the child was sexually assaulted by Steven Knudson. Knudson pled guilty and was convicted of the crime. Knudson was not a Wal-Mart employee but was on the premises apparently for the purpose of soliciting donations for the New Life Church.

¶3 Lewis sued Wal-Mart based on a premises liability theory of negligence, alleging that Wal-Mart (1) breached its duty to maintain its premises in a reasonably safe condition; (2) knew or should have known of the risk of harm created by Knudson's presence on the property; and (3) failed to protect her son from a known danger. Wal-Mart moved for summary judgment, asserting that the molestation incident was "an intervening criminal act of a third party," that it had no control over or duty to prevent. Following a hearing, the district court granted summary judgment to Wal-Mart. Lewis appeals.


¶4 We review a trial court's grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears "an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant." Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. The summary process requires that we determine whether the record reveals only undisputed material facts supporting only a single inference that favors the movant's motion for summary judgment. Id. Further, when considering a motion for summary judgment, the evidentiary materials and the inferences to be drawn from them must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55. "Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor." Copeland, 2000 OK 36 at ¶ 8, 4 P.3d at 699.

¶5 The burden of producing "acceptable evidentiary material" to support every material fact is on the movant, Okla. Dist. Ct. R. 13(b), 12 O.S. Supp. 2007, ch. 2, app., and the trial court has the burden "to insure that the motion is meritorious." Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). If evidentiary materials have not been submitted to support each material fact, the motion should be denied. Id. Further, the opposing party need not respond to or challenge material facts asserted by the moving party that are not supported by acceptable evidentiary material. Id. at ¶ 9, 743 P.2d at 684.


I. The Child's Entry Status On The Property

¶6 "Duty is the threshold question in any negligence action." Bray v. St. John Health Sys. Inc., 2008 OK 51, ¶ 6, 187 P.3d 721, 723. The duty of care a property owner must exercise "expands or contracts based on the entrant's status." Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 10, 951 P.2d 1079, 1083. It is undisputed that Lewis's son, his aunt and his sister were business invitees.1 An invitee is entitled to that level of care "which would make the premises safe for his reception." Brown v. Nicholson, 1997 OK 32, ¶ 7, 935 P.2d 317, 322 (footnote omitted). Consequently, Wal-Mart was required to use ordinary care to keep its premises in a reasonably safe condition for Lewis's son. Pickens, 1997 OK 152 at ¶ 10, 951 P.2d at 1084. The Oklahoma Supreme Court has described the nature of that duty as follows:

Those cases wherein liability has been held to attach recognize the presence of some physical fact or circumstance occasioned by an act or omission of the storekeeper which, although obvious and not dangerous within itself, forms an integral part of an eventuality out of which injury arose.

J.J. Newberry Co. v. Lancaster

II. Whether Wal-Mart Demonstrated Entitlement
To Judgment As a Matter of Law

¶7 In the statement of undisputed facts in its motion for summary judgment, Wal-Mart asserted that it "had no prior knowledge of Knudson or of any similar criminal activity on its premises." Wal-Mart supported this assertion with the January 2008 affidavit of the Chandler store's current manager, Chris Nelson,

¶8 In her response to the motion for summary judgment, Lewis disputed Wal-Mart's asserted lack of prior knowledge. Lewis contended that Wal-Mart knew or should have known of Knudson's potential for harm, and she relied on several evidentiary sources to support her contention. Lewis attached to her response the statement of Phyllis Stockholm, a former personnel manager at the Chandler Wal-Mart. Stockholm stated that while she was employed at Wal-Mart she placed the New Life Church on a list of groups that were not to be allowed at the store because of "behavior issues."

¶9 Nothing in the record indicates how long Knudson and Moses were on the premises. It may be that Knudson and Moses were not given permission to solicit on the Chandler Wal-Mart premises, or that Wal-Mart officials did not know the two men were associated with the New Life Church. Wal-Mart's summary judgment materials do not address these issues. Nonetheless, viewed in the light most favorable to Lewis, the evidentiary materials of record support a contrary inference favorable to Lewis. As the party opposing summary judgment, Lewis is entitled to that inference. Hargrave,

¶10 There is an additional reason why the store manager's narrowly focused affidavit fails to support Wal-Mart's claimed entitlement to judgment as a matter of law. In its motion for summary judgment, Wal-Mart asserted that it had "no legal duty to accompany each minor child on its premises to the restroom to confirm that a sexual predator is not in the restroom," and that it "could not have foreseen [the sexual molestation] occurring." It was not necessary, however, for Lewis to show that Wal-Mart was specifically aware of, or could have foreseen, the exact crime or the specific location on its premises where patrons might be injured by the tortious acts of third persons. The Oklahoma Supreme Court has declined to adopt such a limited scope of foreseeability. Bray v. St. John Health Sys. Inc.,

¶11 It is true, as Wal-Mart argued to the district court, that a business owner is not "an insurer against criminal attack." Cordes v. Wood,

¶12 To determine the foreseeability issue, the Oklahoma Supreme Court has adopted the approach of the Restatement (Second) of Torts § 344 (1965). Bray at ¶ 12, 187 P.3d at 724. Section 344 provides, at comment f:

Duty to police premises

Restatement (Second) of Torts § 344 cmt. f (1965)(emphasis added). Thus, if a landowner knows or has reason to know from past experience that it should reasonably anticipate criminal activity on its premises, the landowner may be required to afford reasonable protection to its business invitees. See Bray,

¶13 Wal-Mart's summary judgment motion does not address the material issue of its knowledge of previous criminal incidents on the premises. The store manager's affidavit addresses only the specific crime of sexual molestation and does not mention any other type of predatory or violent crime directed against store patrons. Further, the affidavit is limited to the Chandler store. It does not address Wal-Mart's general corporate knowledge regarding such matters.

III. Assumption Of The Risk And/Or Contributory Negligence

¶14 In the third undisputed fact set forth in its summary judgment motion, Wal-Mart asserted that Lewis's son was allowed to go into the restroom "unattended."

Plaintiff assumed all normal or ordinary risks incident to the use of the premises which included allowing a five year old child use the restroom unattended. Defendant Wal-Mart is under no legal duty to accompany each minor child on its premises to the restroom to confirm that a sexual predator is not in the restroom or will not assault the child. The adult invitee with the child must assume that responsibility, if anyone.

To the extent that Wal-Mart may have intended by this assertion to argue that the aunt was negligent in allowing the child to enter the restroom by himself, not only are the facts susceptible of conflicting inferences, but also contributory negligence is a question of fact for the jury, and cannot be resolved on summary judgment. Okla. Const. art. 23, § 6 ("The defense of contributory negligence or of assumption of the risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."). Further, a young child (under age 7) cannot be guilty of contributory negligence. Strong v. Allen,


¶15 "Every civil case subject to summary proceedings must be grounded and considered upon its own peculiar pleadings, affidavits, exhibits, admissions, depositions, and the like, and if reasonable persons in the exercise of fair and impartial judgment might reach different conclusions on consideration of the same, summary judgment must be denied." Spirgis,


GABBARD, P.J., and RAPP, J., concur.


1 In its summary judgment motion, Wal-Mart did not dispute the child's status.

2 It is not clear from the record when Nelson became the store's manager.

3 The nature of these "behavior issues" is not identified in the record.

4 Also material to the issue of duty, and not addressed in its summary judgment motion, is whether Wal-Mart had general corporate policies or procedures related to the safety of its store patrons and, if so, the extent to which the management at the Chandler store did or did not conform to those policies.

5 Lewis disputed this contention, pointing out that the child's aunt was standing outside of the restroom.