Nichols v. Mid Continent Pipe Line Company

Nichols v. Mid Continent Pipe Line Company
1996 OK 118
933 P.2d 272
67 OBJ 3136
Case Number: 84130
Decided: 10/15/1996
Mandate Issued: 03/28/1997
Supreme Court of Oklahoma

TERRY NICHOLS, DONETA NICHOLS, TERRY BRETT NICHOLS, QUINTON DALE NICHOLS, and TYLER DANTON WAYNE KAUK, a minor, by and through his father and next friend, TONY EDWIN KAUK, Appellants (Counter-Appellees)/Plaintiffs,
v.
MID-CONTINENT PIPE LINE COMPANY, Appellee (Counter-Appellant)/Defendant.

ON CERTIORARI TO THE COURT OF APPEALS, DIV. 3.

¶0 Plaintiffs sued Barrett Pipeline Company [Barrett], Mid-Continent Pipe Line Company [Mid-Continent] and Exxon Corporation [Exxon] in the District Court, Dewey County, for damages caused by negligence and maintenance of a nuisance. Barrett settled before trial. After a two-stage trial before David P. Cullen, Judge, the jury returned verdicts which (1) assessed the comparative faults of plaintiffs, Mid-Continent, Exxon and Barrett for the negligent injury to plaintiffs' cattle, for which Mid-Continent and Exxon were found liable, (2) made Mid-Continent solely liable for the nuisance claim, and (3) awarded punitive damages against Mid-Continent alone. The trial court reduced the jury award for actual damages by the amount of the Barrett settlement proceeds and then also downsized the statutorily allowable punitive-damages award. The Court of Appeals affirmed the nisi prius judgment except for the punitive-damages award, which it increased to equal the full amount of the verdict for actual damages (sans any reduction by the Barrett settlement proceeds). On certiorari granted upon Mid-Continent's petition.

THE COURT OF APPEALS' OPINION IS VACATED, THE NISI PRIUS JUDGMENT IS REVERSED IN PART, AND THE CAUSE IS REMANDED WITH DIRECTIONS TO PROCEED IN A MANNER NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

Allan DeVore, Marjorie Ramana, The DeVore Law Firm, Oklahoma City, OK, Douglas E. Burns, Oklahoma City, OK, For appellants.

Jessie V. Pilgrim, Tulsa, OK, For appellees.

OPALA, J.

¶1 The issues presented on certiorari are: (1) Are the plaintiffs within the class of claimants who may maintain a common-law action to recover on a nuisance theory? (2) Was it an abuse of discretion for the trial court to admit evidence about the plaintiff's medical condition? (3) Was it reversible error to admit, during the punitive-damages stage of the trial, evidence of the financial condition of a defendant's (Mid-Continent Pipeline Company's [Mid-Continent]) parent corporation? (4) Was the trial court's refusal to declare a mistrial for intemperate remarks by plaintiffs' counsel reversible error? (5) Did the trial court correctly apply the Barrett settlement proceeds by reducing the jury's punitive-damages award? We answer the first question in the affirmative and the remaining queries in the negative.

I

THE ANATOMY OF LITIGATION

¶2 In late 1990 Terry Nichols, one of the plaintiffs, agreed with Jerry Myers to sublease the Barnes ranch - a 1300-acre tract of land in Dewey County - and took possession of it.

¶3 In January 1992 Nichols discovered that earlier buried substances from an Exxon Corporation [Exxon] reserve pit [used in drilling activities conducted on the Barnes ranch] had risen to the surface and that the plaintiffs' cattle were ingesting them. In February 1992 Nichols also discovered a leak in Barrett Pipeline Company's [Barrett] oil pipeline in an area where the plaintiffs' cattle had been grazing. Mid-Continent had sold to Barrett (in July 1991) the oil gathering system, which included the leaking pipeline in issue.

¶4 In early 1993 the plaintiffs brought an action (based on negligence and nuisance) for damages to their cattle and also for harm (by the defendants' pollution) to their possessory interest in the Barnes ranch.

¶5 After a bifurcated trial - the first phase to settle liability, the other to assess punitive damages - the jury (1) assessed comparative fault for the negligent injury to plaintiffs' cattle by allocating 10% of the $100,000 awarded in damages to the plaintiffs, 35% (or $35,000 in damages) to Exxon and 55% (or $55,000 in damages) to Mid-Continent; (2) completely exonerated Barrett of liability for harm to the cattle; (3) determined that Mid-Continent was solely liable on the nuisance claim in the amount of $150,000; and (4) assessed a $250,000 punitive-damages award against Mid-Continent alone.

¶6 At the conclusion of phase I, the court credited Exxon and Mid-Continent each with $50,000 of the Barrett settlement proceeds and reduced accordingly their respective proportionate liability (on the jury awards). When phase II came to be concluded, the trial court reduced the punitive-damages award against Mid-Continent from $250,000 to $155,000,

¶7 Mid-Continent alone sought certiorari.

II

PLAINTIFFS' NUISANCE CLAIM LIES FOR THE HARM OCCASIONED TO THEIR POSSESSORY INTEREST IN THE BARNES RANCH

¶8 The statutory definition of nuisance - in 50 O.S. 1991 § § 1 et seq.

¶9 Mid-Continent, which characterizes the plaintiffs as trespassers on the Barnes Ranch, denies that they possess any rights (or interests) in the land. While there might be a legal question about the validity of the plaintiffs' sublease [an issue we need not reach today],

¶10 Mid-Continent's status is that of a tortfeasor. The trustees of the Barnes Ranch, the lessors, never sought re-entry (or otherwise attempted to interfere with the plaintiffs' possession of the leased premises) at any time before the acts in this litigation had occurred. The trial court's ruling that the plaintiffs - as possessors of the land

¶11 We adopt today the national common-law norms found in the Restatement (Second) of Torts § 821D

III

THE ADMISSION OF EVIDENCE SHOWING SUN COMPANY'S (MID-CONTINENT'S PARENT CORPORATION) FINANCIAL CONDITION, IF IN ERROR, WAS HARMLESS

¶12 During the punitive-damages phase of the trial the plaintiffs sought to introduce evidence of Sun Company's [Sun] financial condition. Mid-Continent - a wholly owned subsidiary of Sun objected. The trial judge ruled that there was an identity (between Mid-Continent and Sun) sufficient to permit the proof's admission.

¶13 The record amply demonstrates that Mid-Continent was financially capable of paying the damages assessed against it without destroying its ability to conduct business in futuro.

IV

THE TRIAL JUDGE'S DECISION NOT TO DECLARE A MISTRIAL FOR ALLEGED MISCONDUCT BY PLAINTIFFS' COUNSEL IS NOT REVERSIBLE ERROR IN VIEW OF HIS FIRMNESS AND CONTROL IN DEALING WITH THE ARGUABLY PREJUDICIAL REMARKS

¶14 In order for counsel misconduct to effect a judgment's reversal, substantial prejudice must have resulted from the remarks and the jury must have been influenced to the material detriment of the appealing party.

V

BECAUSE THE JURY EXONERATED BARRETT OF NEGLIGENCE-RELATED LIABILITY AND MID-CONTINENT FAILED TO OBJECT TO THE VERDICT FORM, WHICH DID NOT CALL FOR A FINDING OF NON-PARTY LIABILITY ON THE NUISANCE CLAIM, IT WAS ERROR FOR THE TRIAL COURT TO REDUCE THE PUNITIVE-DAMAGES AWARD BY THE AMOUNT OF SETTLEMENT PROCEEDS FROM BARRETT

¶15 Mid-Continent claims that under the provisions of 12 O.S. 1991 § 832H 27 (Oklahoma's version of the Uniform Contribution Among Tortfeasors Act [UCATA]) the trial court misapplied the Barrett settlement proceeds28 and by so doing miscalculated the amount of punitive damages Mid-Continent must satisfy. The trial court evenly divided the total of the Barrett settlement proceeds ($100,000) between Exxon and Mid-Continent and credited that amount upon the jury award assessed against each of these defendants for the negligent injury to plaintiffs' cattle.29

¶16 In its argument for downsizing the punitive-damages award, Mid-Continent urges that Barrett's contribution towards payment for the same harm is not mere "credit" upon the amount due the plaintiffs under their judgment but rather calls for reduction of the jury award for actual damages, which in turn entitles Mid-Continent to a corresponding diminution of the punitive-damages amount by the coercive force of 23 O.S. 1991 § 9 .

A

THE NEGLIGENCE-RELATED AWARD

¶17 Allowing either Exxon or Mid-Continent to credit the Barrett proceeds against these defendants' individual liability for the negligence-related damages adjudged in the plaintiffs' favor was clearly error. By its verdict the jury exonerated Barrett of liability. During the trial Mid-Continent attempted to ascribe to Barrett the sole responsibility for polluting the Barnes Ranch. Its defense strategy was rejected by the verdict which allocated no liability on the negligence claim to non-parties. Under the provisions of § 832H a claim to settlement proceeds' credit must be rested on the existence of other tortfeasors who are liable for the same injury as the settling party.

¶18 Since the jury has specifically found Barrett not liable in tort for the same injury as that attributed to Mid-Continent, the availability of Barnett's contribution would hinge here on the settlement agreement's text. Its language (a) not only specifically excludes from discharge the other tortfeasors who were sued for the same injury but also (b) clearly evinces the parties' intent not to treat the settlement proceeds as full compensation for the plaintiffs' damages.

B

THE NUISANCE-RELATED AWARD

¶19 A judgment debtor's § 832H claim to settlement proceeds' credit is conditioned upon the settling party's liability in tort for the same injury. After the plaintiffs settled with Barrett and dismissed that defendant from the case, Mid-Continent, if it wished to pursue the now-claimed § 832H credit, was required to press for a jury assessment of Barrett's "ghost-tortfeasor" liability in both negligence and nuisance.34

¶20 Barrett's liability for nuisance was not submitted to the triers. Barrett's exclusion from jury consideration as a nuisance co-actor was never challenged. Although Mid-Continent's counsel attempted during trial to convince the jury of Barrett's fault for the Barnes Ranch pollution, he did not interpose either (1) a pre-submission objection to the trial court's form of verdict on the nuisance claim (which excluded Barrett), or (2) a post-submission objection - before the jury's discharge - when the verdict was brought into the courtroom but before its acceptance by the trial judge.

¶21 Absent any liability ascription to Barrett as a non-party co-actor, Mid-Continent stands relegated to the language of the Barrett settlement agreement. The settlement agreement's terms offer no legal warrant for extending its benefits to Mid-Continent.

[29] In short, because Mid-Continent cannot satisfy the statutory requirements in § 832H, it is not entitled to claim the Barrett settlement's proceeds as a credit upon the awards adjudged against it.

C

THE PUNITIVE-DAMAGES AWARD

¶22 The trial court allowed both Exxon and Mid-Continent one-half of the Barrett settlement proceeds as a § 832H credit and offset that amount against their respective percentage of the jury award for negligence-related damages. The court reasoned the offsets reduced the plaintiffs' total actual damages to $155,000. It then capped the punitive-damages award at $155,000 by applying the provisions of 23 O.S. 1991 § 9 .

VI

THIS COURT CANNOT REACH FOR RELIEF TO THE PLAINTIFFS THAT PORTION OF THE COURT OF APPEALS' OPINION WHICH SUSTAINED THE TRIAL COURT'S CREDIT FOR THE BARRETT SETTLEMENT PROCEEDS AGAINST THE NEGLIGENCE-RELATED ACTUAL DAMAGES AWARD

¶23 Extant jurisprudence

¶24 Although the plaintiffs were unsuccessful before the Court of Appeals, they did not seek certiorari. The settled-law-of-the-case doctrine bars from relitigation issues (a) finally settled in the process of review or (b) those that the aggrieved party has failed timely to raise in the course of the appellate contest.

VII

SUMMARY

¶25 The verdict for negligence- and nuisance-related damages is sustainable because (1) the plaintiffs are within the class of persons authorized to bring such claims and (2) any reversible errors which did occur would have inured to the plaintiffs' benefit if they had been preserved for review by certiorari.

¶26 The trial court erred in the manner in which it applied the Barrett settlement proceeds to reduce the negligence-related and punitive-damages award. Because Barrett was exonerated of liability for the negligent injury (to the plaintiffs' cattle) and Mid-Continent acquiesced in the jury's failure to assess Barrett's liability for the nuisance-related harm, the Barrett settlement proceeds should not have been credited under the provisions of § 832H against the jury award.

¶27 Because credit for the Barrett settlement proceeds was not Mid-Continent's due under the provisions of § 832H, the nisi prius reduction in the amount of compensatory damages (the $250,000 award) was error. Mid-Continent is not entitled to any credit on the punitive-damages award; plaintiffs, who did not seek certiorari, are bound by the reduction in the actual damages award affirmed by the Court of Appeals.

¶28 On certiorari granted upon Mid-Continent's petition,

¶29 THE COURT OF APPEALS' OPINION IS VACATED, THE NISI PRIUS JUDGMENT IS REVERSED IN PART, AND THE CAUSE IS REMANDED WITH DIRECTIONS TO PROCEED IN A MANNER NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

¶30 KAUGER, V.C.J., and LAVENDER, HARGRAVE, OPALA, AND WATT, J.J., concur; WILSON, C.J., concurs in part and dissents in part;

¶31 HODGES, SIMMS, and SUMMERS, J.J., dissent.

Footnotes:

1 It is undisputed that neither Terry Nichols nor his family lived on the Barnes ranch.

2 The cows experienced prolapses, aborted or had premature calves, demonstrated weight loss and/or died. Tr. trans. pp. 1464-66.

3 It is uncontroverted that (a) in the original Myers' lease of the Barnes ranch the lessors (trustees) reserved the right to approve any subleases and (b) the trustees never gave their approval for the Nichols sublease.

4 Under the Barrett settlement's terms the plaintiffs were to receive $100,000 - $50,000 in cash and the balance in the form of an unsecured note. After settlement Barrett declared bankruptcy.

5 The trial court granted credit (to each of the two affected defendants - Mid-Continent and Exxon) of one-half of the Barrett settlement proceeds ($50,000) against the negligence-related damages award. The net effect of the nisi prius action was to reduce the compensatory damages due from Exxon to -0- and those due from Mid-Continent to $155,000 ($5,000 for negligence and $150,000 for nuisance). The reduced amount of actual damages was then used by the trial court as the 23 O.S. 1991 § 9 cap on the amount of the allowable punitive damages. [For the pertinent terms of § 9, see infra note.]

6 The pertinent terms of 50 O.S. 1991 § 1 are:

"A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or

* * *

Fourth. In any way renders other persons insecure in life, or in the use of property . . . ."

The pertinent terms of 50 O.S. 1991 § 2 are:

"A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal." [Emphasis added.]

The pertinent terms of 50 O.S. 1991 § 3 are:

"Every nuisance not included in the definition of the last section is private." [Emphasis added.]

7 For a discussion of the history of common-law nuisance, see Bradford A. Wyche, A Guide To The Common Law Of Nuisance In South Carolina, 45 S.C. L. Rev. 337, 339-41 (1993).

8 By force of 12 O.S. 1991 § 2 the common law remains in full force unless a statute explicitly provides to the contrary. Its relevant terms are:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma. . . ."

 
The common law's legislative abrogation may not be effected by mere implication. Tate v. Browning-Ferris, Inc., Okl., 833 P.2d 1218, 1225-26 (1992); Silver v. Slusher, Okl., 770 P.2d 878, 884 (1989); Ricks Exploration Co. v. Okl. Water Resources Bd., Okl., 695 P.2d 498, 504 (1985); Roxana Petroleum Co. v. Cope, 132 Okl. 152, 269 P. 1084, 1085 (1928) (the court's syllabus § 3); Reaves v. Reaves, 15 Okl. 240, 82 P. 490, 495 (1905); State Mut. Life Assur. Co. of Amer. v. Hampton, Okl., 696 P.2d 1027, 1034, 1036 (1985) (Opala, J., concurring). It must be clearly and plainly expressed. Fuller v. Odom, Okl., 741 P.2d 449, 451 (1987); McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 (1980). A presumption favors the preservation of common-law rights. In this State's legal system the common law forms "a dynamic and growing" body of rules that changes with the conditions of society. Wright v. Grove Sun Newspaper Co., Inc., Okl., 873 P.2d 983, 987 (1994); Brigance v. Velvet Dove Restaurant, Inc., Okl., 725 P.2d 300, 303 (1986).

9 See Restatement (Second) of Torts, § 821D cmt. a (1977); see also Restatement of Torts Ch. 40 pp. 215-225 (1939); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 86, at 616-618, and § 87, at 619, 621-622 (1984); R.F.V. Heuston, Salmond on the Law of Torts § 22, at 83-84 (1965).

10 Restatement (Second) of Torts § 821D, cmt. a (1977); Restatement of Torts ch. 40, at 218 (1939).

11 See supra note for this purported problem's genesis.

12 The Restatement (Second) of Torts § 328E (1965) defines "possessor of land" as:

"(a) a person who is in occupation of the land with intent to control it . . . ."

The Restatement of Property § 7 (1936) states:

"A possessory interest in land exists in a person who has (a) a physical relation to the land of a kind which gives a certain degree of physical control over the land, and an intent so to exercise such control as to exclude other members of society in general from any present occupation of the land . . . ."

13 A lease clause which restricts the lessee's right to sublease is for the lessor's exclusive benefit. Chilson v. Cavanagh, 61 Okl. 98, 160 P. 601 syl. 1, 603-604 (1916); Jones v. Moncrief-Cook Co., 25 Okl. 856, 108 P. 403 syl. 1, 405 (1908).

14 The pertinent provisions of Restatement (Second) of Torts § 821E are:

"For a private nuisance there is liability only to those who have property rights and privileges in respect to the use and enjoyment of the land affected, including:

(a) possessors of the land . . . ." [Emphasis added.]

15 Restatement (Second) of Torts § 821D, cmt. a (1977); Restatement of Torts ch. 40, at 218 (1939). The pertinent terms of § 821D state:

"A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land."

The relevant parts of Comment a to § 821D state:

"It is obvious from the history of the action for private nuisance that the interests originally protected were interests in the use and enjoyment of land . . . . [T]he plaintiff may recover not only for harm arising from acts that affect the land itself and the comfortable enjoyment of it, but also for harm to members of his family and to his chattels." [Emphasis added.]

16 Oklahoma City v. Tytenicz, 171 Okl. 519, 43 P.2d 747 syl. 2, 748 (1935); City of Weatherford v. Rainey, 151 Okl. 183, 3 P.2d 153, 154 (1931).

17 Mid-Continent has not assailed, either on appeal or on certiorari, the assessed amount of the punitive-damages award as "grossly excessive" punishment when measured by the Due Process Clause of the U.S.Const. amend. XIV. We hence need not, and do not, discuss the impact of BMW of North America, Inc. v. Gore, §§§ U.S. §§§, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996); Honda Motor Co. v. Oberg, 512 U.S. 415, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993); or of Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), on the correctness of the punitive-damages award in this case.

18 See Tr. trans. p. 3437.

19 See Frazier v. Bryan Memorial Hosp. Authority, Okl., 775 P.2d 281, 288 (1989), for the law's test to determine if a subsidiary corporation is controlled by its parent.

20 The record reflects that at 1993's year-end Mid-Continent had but $8,000 in its cash accounts on earned revenues of $18,000,538. Tr. trans. pp 3588-3594. The explanation offered, without objection, was that Mid-Continent's cash disbursements were handled to a large degree by Sun. Tr. trans. p. 3588. The record also reflects that in 1993 Sun received from Mid-Continent $4,000,000 in dividends. Tr. trans. p. 3590.

21 Ramirez v. Baran, Okl., 730 P.2d 515, 518 (1986); Fawcett Publications, Inc. v. Morris, Okl., 377 P.2d 42, 43 syl. 6, 53 (1962).

22 See supra note.

23 Teel v. Gates, Okl., 482 P.2d 602, 604 (1971); Key v. British American Oil Producing Co., 196 Okl. 663, 167 P.2d 657, 660 (1946).

24 During the progress of his closing remarks, plaintiffs' counsel: (1) accused the defendant's witnesses of lying and committing perjury [see Tr. trans. pp. 3281, 3294 ("These people have no respect for the Oath, for the Lord, or for people."), 3326, 3329]; (2) accused the defendants of hiding evidence [see Tr. trans. pp. 3292, 3323, 3756]; (3) accused the defendants of threatening witnesses with suit if they testified at trial [see Tr. trans. pp. 3707, 3756]; (4) said that plaintiffs had to get a court order to enable Mr. Cole to testify [see Tr. trans. p. 3756]; and (5) blamed the court for preventing the jury from seeing the terms of the Barrett settlement agreement [see Tr. trans. p. 3757].

25 See Tr. trans. pp. 3326, 3327 3383, 3385.

26 See Faulkenberry v. Kansas City Southern Ry. Co., Okl., 602 P.2d 203, 208 (1979).

27 The pertinent provisions of 12 O.S. 1991 § 832H are:

"When a release, covenant not to sue, or a similar agreement is given in good faith to one of two or more persons liable in tort for the same injury . . .:

1. [I]t reduces the claim against the others to the extent of any amount stipulated by the release or covenant, or in the amount of the consideration paid for it, whichever is the greater;

. . . ."

28 Exxon settled with the plaintiffs after the review process was initiated. In its petition for certiorari Mid-Continent claims as credit on the award the entire amount of proceeds which the plaintiffs were to receive under the Barrett settlement agreement's terms because it is now the only non-settling defendant. Application of the Barrett settlement proceeds in light of the Exxon settlement agreement presents a post-judgment issue which the trial court has not yet considered. It would be improper for this court to act upon this issue as a tribunal of first instance. Toxic Waste Impact Group, Inc. v. Leavitt, Okl., 890 P.2d 906, 913 (1995); Dyke v. St. Francis Hospital, Okl., 861 P.2d 295, 300 n. 13 (1993); Teel v. Teel, Okl., 766 P.2d 994, 999 n. 19 (1988); American Ins. Ass'n v. Indus. Com'n, Okl., 745 P.2d 737, 740 n. 15 (1987); Sandpiper North Apartments v. Am. Nat. Bank, Okl., 680 P.2d 983, 993 (1984); Matter of Estate of Bartlett, Okl., 680 P.2d 369, 377 (1984); Davis v. Gwaltney, Okl., 291 P.2d 820, 824 (1955).

29 The trial judge predicated the settlement proceeds' division upon the holding of Price v. Southwestern Bell Telephone Co., Okl., 812 P.2d 1355 (1991). His reliance was misplaced. Unlike in Price, the plaintiffs here are not faultless. Id. at 1359.

30 The pertinent terms of 23 O.S. 1991 § `9 are:

"A. In any action for the breach of an obligation not arising from contract . . ., the jury, in addition to actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. . . ." [Emphasis added.]

31 See Shadden v. Valley View Hosp., Okl., 915 P.2d 364, 369 (1996), for the holding that § 832H requires the presence of a common liability among multiple tortfeasors for the injury sustained by the plaintiff. Absent these elements, § 832H is not invocable.

32 The Barrett settlement agreement provides in pertinent part:

"[T]he release applies only to the parties specifically named above as being released and shall in no way release, discharge or otherwise affect Nichols' claims as against any other persons, including without limitation, Mid-Continent Pipe Line Company, Exxon Corporation or their officers, directors, insurers, agents, servants, employees or affiliated companies."

33 See Moss v. City of Oklahoma City, Okl., 897 P.2d 280, 286 (1995), where the court held that a release discharges from liability only those who are specifically identified by its text. See also, Hoyt v. Ryan, Okl., 921 P.2d 350, 357 (1996).

34 See Paul v. N.L. Industries, Inc., Okl., 624 P.2d 68, 69 (1981). There the court held that the negligence of tortfeasors who are not parties to the lawsuit ("ghost" tortfeasors) should be considered by the jury. Id. at 69. See also, Angel v. Cornell Const. Co., Inc., 841 P.2d 1163, 1165 (Okla. App. 1992), cert. den. Nov. 24, 1992.

35 Rodebush v. Oklahoma Nursing Homes, Ltd, Okl., 867 P.2d 1241, 1245 n. 2 (1993); Morgan v. Oklahoma Nat. Gas Co., Okl., 561 P.2d 1363, 1364 (1977); Bunch v. Perkins, 198 Okl. 517, 180 P.2d 664 syl. 3, 666 (1947); Eoff v. Alexander, 62 Okl. 12, 161 P. 807 (1916).

36 See Osburn v. Bendix Home Systems, Inc., Okl., 613 P.2d 445, for a comparable procedural outcome.

37 For the pertinent terms of 23 O.S. 1991 § 9 , see supra note.

38 Hough v. Leonard, Okl., 867 P.2d 438 (1993).

39 Hough, supra note at 445.

40 Jackson v. Jones, Okl., 907 P.2d 1067, 1074 n. 37 (1995); Morrow Dew. v. American Bank and Trust, Okl., 875 P.2d 411, 413 (1994); Panama Processes v. Cities Service Co., Okl., 796 P.2d 276, 283 N. 27 (1990); Reeves v. Agee, Okl., 769 P.2d 745, 756 n. 46 (1989); Mobbs v. City of Lehigh, Okl., 655 P.2d 547, 549 n. 5 (1982).

41 For the pertinent terms of 12 O.S. 1991 832H , see supra note.