THOMAS v. E-Z MART STORES, INC.

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THOMAS v. E-Z MART STORES, INC.
2004 OK 82
102 P.3d 133
Case Number: 98979
Decided: 11/02/2004

THE SUPREME COURT OF THE STATE OF OKLAHOMA

MARY E. THOMAS, Plaintiff/Appellant,
v.
E-Z MART STORES, INC., Defendant/Third Party Plaintiff/Appellee,
v.
CORE-MARK INTERNATIONAL, INC., and ARAMARK UNIFORM COMPANY, Third Party Defendants.

ON CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION I

¶0 Plaintiff fell on the business premises of Defendant. The jury attributed no fault to Plaintiff and returned a verdict against Defendant. Defendant filed a motion for new trial based upon the trial court's previous denial of allowing evidence and a jury instruction on third-party negligence, and the trial court's order bifurcating proceedings. The Honorable Rodney K. Ring, Judge of the District Court of Cleveland County, granted the motion for new trial. Plaintiff appealed and the Court of Civil Appeals reversed the order. Defendant sought certiorari from this Court. We hold that the District Court erred in granting the motion for new trial when a business invitor seeks to have the jury hearing a premises liability claim simultaneously to hear an invitor's claims against a third-party based upon attributing causation of the invitee's injury to the third party, as well as claims of contribution and indemnity made by the invitor against the third party, without the trial court considering whether the invitor is vicariously liable for the acts of the third party or the potential for confusion by the jury.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF
CIVIL APPEALS VACATED; ORDER OF THE DISTRICT COURT REVERSED

Kayce L. Gisinger, George W. Dahnke, Abowitz, Timberlake & Dahnke, P.C., Oklahoma City, Oklahoma for Plaintiff/Appellant.
Tracy Pierce Nester, Harry A. Parrish, Pray, Walker, Jackman, Williamson & Marlar, Oklahoma City, Oklahoma for Defendant Third Party Plaintiff/Appellee

EDMONDSON, J.

¶1 The issue presented for our review on certiorari is whether the trial court was correct in determining in the context of a premises liability lawsuit that a business invitor's claims against a third party and its claim that the third party caused the invitee's injury should be heard by the jury determining the liability of the invitor to the invitee. That issue may not be unequivocally answered in this case. The trial court did not consider whether the third party was an independent contractor of the invitor, or whether the invitor's indemnity claim against the third party was based upon vicarious liability of an invitor for the act of an independent contractor, or whether the separate claims could be simultaneously considered by a jury using proper instructions without causing confusion.

¶2 Thomas brought an action against E-Z Mart Stores, Inc. (E-Z Mart), and alleged that she slipped on a floor mat in the store which resulted in her fall and subsequent injury. E-Z Mart filed a petition against Aramark Uniform Company (Aramark) and Core-Mark International, Inc., (Core-Mark), distributors and suppliers of the floor mat. E-Z Mart alleged that Core-Mark and Aramark were liable based upon theories of either contribution or indemnity.

E-Z Mart's petition alleges that: 1. The floor mat was manufactured by Aramark and supplied to E-Z Mart by Core-Mark; 2. The mat was defective; 3. The mat was not the type of mat that Core-Mark was required by an agreement to supply to E-Z Mart; and 4. Core-Mark was negligent in supplying a defective mat. E-Z Mart asked for a judgment against Aramark and Core-Mark for sums, if any, that E-Z Mart would be adjudged liable to Thomas. Aramark and Core-Mark were granted their motion to bifurcate the proceedings, and a jury trial commenced solely against E-Z Mart.

¶3 The jury returned a verdict against E-Z Mart in the amount of $350,000, and a judgment was then entered in accordance with the verdict. The jury attributed no negligence to Thomas. E-Z-Mart filed a motion for new trial. E-Z Mart argued that a new trial was necessary because the trial court did not allow E-Z Mart to present evidence on the alleged negligence of a third-party (Core-Mark) or E-Z Mart's requested instruction on the negligence of a third-party.

¶4 On appeal the Court of Civil Appeals determined that E-Z Mart is vicariously liable for the acts of Core-Mark. The appellate court concluded that E-Z Mart's duty to a business invitee, Thomas, could not be delegated to Core-Mark, and that Core-Mark was an independent contractor to E-Z Mart. The court reversed the order granting a new trial, and E-Z Mart sought certiorari. We agree with the Court of Civil Appeals that the premises liability could not be delegated, and we agree that a premises liability may not be transferred to an independent contractor when the injury-causing condition of the premises is within the control of the invitor. We reverse the order granting a new trial because E-Z Mart's new trial quest was insufficient as we explain herein, and the trial court erred on a question of law.

I. Standard of Review

¶5 This proceeding is an appeal from an order of a trial court granting a new trial. The trial and the motion for new trial were heard before the same judge. When an appellant challenges an order granting a new trial a stronger showing of error must be made than when challenging an order denying a motion for new trial. Dominion Bank of Middle Tennessee,

¶6 The issue contested by the parties is whether the trial court was correct in combining Thomas' claim against E-Z Mart with E-Mart's claim against Core-Mark in one trial. The issue of either consolidating claims into one trial or bifurcating for separate trials is governed, in part, by § 2018(C) & (D) of the Oklahoma Pleading Code.

¶7 A review using an abuse of discretion standard includes an appellate examination of both fact and law issues. Tibbetts v. Sight'n Sound Appliance Centers, Inc.,

¶8 The trial court granted the motion for new trial based upon a determination that EZ-Mart is entitled, as a matter of law, to introduce additional evidence at trial and submit to the jury an instruction on the alleged negligence of, and/or indemnity relating to, Core-Mark.

II. The Premises Liability Claim

¶9 Thomas brought an action based upon on "premises liability;" that is, the liability of E-Z Mart as the owner/occupier of the premises where her injury occurred. In premises liability actions we have explained that a landowner's duty varies with the status of the entrant. Pickens v. Tulsa Metropolitan Ministry,

To a trespasser, a landowner owes in the common law status-based classification system only a duty to avoid injuring him wilfully or wantonly. To a licensee, an owner owes a duty to exercise reasonable care to disclose to him the existence of dangerous defects known to the owner, but unlikely to be discovered by the licensee. This duty extends to conditions and instrumentalities which are in the nature of hidden dangers, traps, snares, and the like. To an invitee, an owner owes the additional duty of exercising reasonable care to keep the premises in a reasonably safe condition for the reception of the visitor. Even vis-a-vis an invitee, to whom a landowner owes the highest duty in this trichotomous classification system, the law does not require that the landowner protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered. In other words, a landowner owes to an invitee, as well as to a licensee, a duty to protect him from conditions which are in the nature of hidden dangers, traps, snares and the like.

Pickens

¶10 Thomas argues that E-Z Mart's duty, as an invitor, may not be delegated by E-Z Mart to Core-Mark. In this case E-Z Mart delegated to Core-Mark, by an agreement, the responsibility for maintaining one aspect of ingress and egress to E-Z Mart's property, supplying and maintaining floor mats used at the entrance to the store. E-Z Mart argues that its claim is not about delegating its duty as an invitor, but rather, its right to have the jury apportion liability to Core-Mark as the actual wrong-doer.

¶11 We have explained that whether a duty is non-delegable is a question of law. Bouziden v. Alfalfa Elec. Co-op., Inc.,

¶12 We recently discussed nondelegable duties in Copeland v. Lodge Enterprises, Inc.,

¶ 12 Although a hirer ordinarily cannot be held liable for the negligence of an independent contractor, the rule of non-liability does not apply where the hirer contracts for the performance of a duty imposed by law. Hence, while an innkeeper may hire an independent contractor to perform the former's nondelegable duty, he (or she) may not pass off to an independent contractor the ultimate legal responsibility for the proper performance of that duty. Under the nondelegable duty rule, an innkeeper may be held vicariously liable for an independent contractor's failure to exercise reasonable care even if the innkeeper has himself exercised due care.

Copeland

We are not alone in describing this duty to an invitee as nondelegable.

As one commentator points out, courts generally agree that the duty of a possessor of land to keep the possessor's premises in a reasonably safe condition for business invitees is a nondelegable duty. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984). See also 41 Am.Jur.2d Independent Contractors § 46, at 815 (1968); Thomas E. Miller, Annotation, Storekeeper's Liability for Personal Injury to Customer Caused by Independent Contractor's Negligence in Performing Alterations or Repair Work, 96 A.L.R.3d 1213 (1979). As one court has noted, the term "nondelegable duty" in this context is somewhat of a misnomer because "the owner is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of nonperformance of the duty." Rowley, 305 Md. at 466, 505 A.2d at 499.

Kragel v. Wal-Mart Stores, Inc.

¶13 One court has explained in the following manner why landowners may not delegate ultimate legal liability to others.

The nondelegable duty of the property owners exception is premised on principles of basic fairness as well as policy considerations relating to allocation of the risk. An owner may be held vicariously liable for the negligence of its independent contractor because the owner in possession has retained control over the premises. . . . This affirmative responsibility is consistent with an owner's general duty of reasonable care under all the circumstances (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). Clearly it would be inequitable to permit a property owner to escape liability by merely delegating the obligation to repair or maintain the premises to an independent contractor. Moreover, the underlying policies of public safety and building owner responsibility provide a reasonable basis for imposing liability (see Thomassen v. J & K Diner, supra at 426-427, 549 N.Y.S.2d 416, citing Koepke v. Carter Hawley Hale Stores, 140 Ariz. 420, 682 P.2d 425; see also Prosser and Keeton, Torts § 71 at 509 [5th ed] ).

The broadest application of the nondelegable duty exception has been in those cases, such as here, where the owner owes a higher duty of care to a particular class of persons because of some special relationship imposed by statute or at common law (see Sciolaro v. Asch, 198 N.Y. 77, 83, 91 N.E. 263; Harrington v. 615 West Corp., supra at 482, 161 N.Y.S.2d 106, 141 N.E.2d 602; Ft. Lowell-NSS Ltd. Partnership v. Kelly, supra at 100, 800 P.2d 962; Prosser and Keeton, Torts § 71 at 511-512 [5th ed]; Restatement of Torts, § 422[e] ). As is relevant to the issues on this appeal, New York courts have long imposed a special duty on property owners to keep the entrances and passageways of a public building safe for tenants, their visitors, and their employees, all classes of people who come onto the premises for reasonably foreseeable purposes (see e.g. Murphy v. Broadway Improvement Co., 189 A.D. 692, 178 N.Y.S. 860; Hume v. Ten Eyck, 245 A.D. 794, 280 N.Y.S. 808; Ancess v. Trebuhs Realty Co., 18 A.D.2d 118, 238 N.Y.S.2d 560, affd. 16 N.Y.2d 1031, 265 N.Y.S.2d 909, 213 N.E.2d 318).

Backiel v. Citibank, N.A.

¶14 E-Z Mart argues that opinions discussing a landowner's non-delegable duties to invitees do not apply to E-Z Mart. This is so, it argues, because 1. third-party negligence is a defense to a premises liability claim and 2. Core-Mark was not an independent contractor. E-Z Mart also argues that Core-Mark is a "supplier" and not an independent contractor.

¶15 Core-Mark is in the business of providing floor mats and other products to businesses such as E-Z Mart. Once a week Core-Mark replaced E-Z Mart's soiled floor mat with a clean mat, and retrieved the soiled mat for cleaning at a location away from E-Z Mart. Trial Tr. at p. 354-355. Core-Mark provides the clean mats pursuant to a contract with E-Z Mart. E-Z Mart's petition against Core-Mark states that "Core-Mark was negligent in substituting a defective, undersized door mat in the place of those door mats which had been previously provided." Amended Third-Party Petition, O.R. at 7. On the motion for new trial E-Z Mart relied upon Keel v. Titan Construction Corporation,

¶16 We have noted the general proposition that a tort defendant may predicate its defense on a non-party's negligence. PFL Life Ins. Co. v. Franklin,

¶17 We recently explained Porter in Johnson v. Hillcrest Health Center, Inc.,

Porter

Johnson v. Hillcrest Health Center, Inc.

¶18 In Porter, Grayson Porter, an employee of Sun Electric was on the premises of a car dealership, Norton-Stuart, and while Porter was providing services to customers of the car dealership he caused an injury to one them, Frank Smith. We explained:

So far as the relationships of the parties are concerned, it is clear that as to Smith, Porter, whose actual negligence caused the accident, was the agent, servant or employee of Norton-Stuart. His presence on the premises was authorized by Norton-Stuart and he was doing the work which Norton-Stuart had offered to Smith. At the time of the accident, he was working on the Smith automobile at the express direction of the Norton-Stuart shop foreman. So far as Smith was concerned, the right of control over Porter rested with Norton-Stuart. Norton-Stuart was therefore liable to Smith under the doctrine of respondeat superior.

However, as between Norton-Stuart and Sun Electric, Porter was clearly the agent, servant or employee of Sun Electric. He was present for the purpose of demonstrating Sun Electric equipment, and attempting to sell it. This agency was admitted by Sun Electric in its pleadings in the indemnity action. Being a corporation, Sun Electric could act only through its agents, servants or employees, and therefore the act of Porter was literally the act of Sun Electric. If, for instance, Smith had not been on the premises when Porter caused the automobile to lurch forward, and the injury had been confined to damage to the property of Norton-Stuart, there can be no doubt that Sun Electric would have been liable to Norton-Stuart under the doctrine of respondeat superior.

We hold that under the facts in this case, Norton-Stuart has a right to indemnity from Sun Electric.

Porter

¶19 E-Z Mart also relied on Employers Casualty Company v. Ideal Cement Company,

¶20 Indemnity is a right possessed by one who discharges a duty owed by that party, but which, as between that party and another, should have been discharged by the other. Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 405 P.2d at 113. Indemnity occurs when one party has a primary liability or duty that requires that party to bear the whole of the burden as between certain parties. Id. This primary liability is not the result of fault, but a matter of allocation of risk, which is established by law. Burke v. Webb Boats, Inc.,

¶21 E-Z Mart states that it sought to protect itself in the trial court by "joining in the action other parties who are potentially liable to the Appellant as joint tortfeasors." In Kirkpatrick v. Chrysler Corp.,

¶22 E-Z-Mart appears to be arguing that it has potential partial liability for the injury to Thomas based upon a premises liability claim; that is, E-Z-Mart shares the status of tortfeasor with Core-Mark.

¶23 An invitor is not an insurer of the safety of others and is not required to prevent all injury occurring on the property. Taylor v. Hynson,

¶24 In this case, the trial judge explained to counsel that "This trial is about what the defendant knew or should have known up until October 22nd [the date of the injury]." Thomas sought to impose premises liability based upon what E-Z Mart knew, or should have known, about the mats it was receiving from Core-Mark. Testimony at trial revealed that E-Z Mart changed the type of mats it was using two to three weeks prior to the date of Thomas' injury. A former employee of E-Z Mart testified about people walking on the mat prior the date of Thomas' injury, " . . . people would walk on it, and it would kind of slip with them a little bit, just enough to make them go ooh or oops or whatever." Tr. at 211. This same witness testified that more than one customer had complained about the mats. She testified that she reported the incidents to her supervisor. Thomas did not seek to impose liability on E-Z Mart based upon respondeat superior or some other theory of vicarious liability. Thomas sought a judgment based upon what E-Z Mart knew or should have known about the floor mat it was using on its premises.

¶25 On adjudication of the motion for a new trial, E-Z Mart argued that a invitor/defendant is always, as a matter of law, entitled to put before a jury a third-party's negligence as the cause of condition of the invitor's property that resulted in a plaintiff's injury. We have pointed out that a landowner's duty may not be delegated in the sense that an invitor may be held liable for certain acts of its independent contractors. Allocation of the risk is placed on the invitor who is in control of its premises, including the injury-causing condition thereon, when the invitor either knew or should have known of its existence. Burke v. Webb Boats, Inc., supra; Porter v. Norton-Stuart Pontiac-Cadillac of Enid, supra; Taylor v. Hynson, supra.

¶26 A trial court has broad discretion in consolidating proceedings for trial when they involve common questions of law or fact.

¶27 E-Z Mart maintains on certiorari that Core-Mark is not an independent contractor.

¶28 Moving for a new trial, E-Z Mart claimed that it had a defense to a premises liability claim that was not heard by the jury. This defense, as put forward succinctly on certiorari, is that a third-party, with whom it does not have a special relationship (e.g., employee or independent contractor), caused the negligence. As we have said, E-Z Mart has a duty the performance of which it may not delegate to escape risk of liability to an invitee. The motion for new trial did not address the evidence relating to whether the alleged defective mat was within the control of E-Z Mart or Core-Mark for the purpose of E-Z Mart providing ingress and egress for its customers. The trial court did not consider whether Core-Mark was an independent contractor. On the motion for new trial, E-Z Mart did not distinguish between its claim that Core-Mark was a joint tortfeasor and E-Z Mart's claim that it was entitled to indemnity, or whether appropriate jury instructions could prevent a jury from being confused on both claims when liability to Thomas was to be decided. The parties did not address whether a new trial was warranted if E-Z Mart was vicariously liable, and if so, whether the vicarious nature of its liability either required or made unnecessary a new trial on E-Z Mart's liability to Thomas. We decline to make these determinations in the first instance on appeal.

¶29 A motion for new trial that was granted will not be reversed on appeal unless the court "erred in its view of some unmixed question of law and that the new trial was granted because of such erroneous view of the law." Claiborne v. Claiborne,

¶30 WATT, C.J., OPALA, V.C.J., LAVENDER, WINCHESTER, EDMONDSON, TAYLOR, JJ. - Concur

¶31 HARGRAVE, KAUGER, JJ. - Concur in result

FOOTNOTES

1 12 O.S.2001 § 2018 (C) & (D):
C. CONSOLIDATION. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

D. SEPARATE TRIALS. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury.

2 The standard is stated in Landrum v. National Union Ins. Co., 1996 OK 18, 912 P.2d 324, 328, when the court applied § 2018(D) and relied on Faulkenberry v. Kansas City Southern Ry. Co., 1983 OK 26, 661 P.2d 510, 513, cert. den. 464 U.S. 850, 104 S. Ct. 159, 78 L. Ed. 2d 146 (1983), an opinion which predated § 2018. In Puckett v. Cook, 1978 OK 108, 586 P.2d 721, 723, another opinion that predates § 2018, the court applied an abuse of discretion standard when reviewing an order consolidating cases for trial.

3 E-Z Mart's motion for new trial and supporting briefs do not mention Aramark. This Court does not issue advisory opinions or answer hypothetical questions. We thus need not determine the correctness of the trial court's order if the claim against Aramark was considered.

4 Although application of a contribution statute, 12 O.S.2001 § 832, is not at issue here, we note that use of the term "joint tortfeasor" is not appropriate when describing a party vicariously liable for another and applying § 832. Burke v. Webb Boats, Inc., 2001 OK 83, ¶¶ 9-12, 37 P.3d 811, 814. See also Sisk v. J.B. Hunt Transport, Inc., 2003 OK 69, n. 9, 81 P.3d 55, 57 (holding of Burke stated).

5 See note 1 supra.

6 The term "supplier" occurs in various statutes and has various uses in tort jurisprudence. See, e.g., Duane v. Oklahoma Gas & Elec. Co., 1992 OK 97, 833 P.2d 284, 286, (discussed a supplier's duty to warn of known dangers in the ordinary use of the supplier's product). E-Z Mart provides a general definition for the term but does not show why, based on the facts in this case, a supplier may not also possess the legal status of an independent contractor.

OPALA, V.C.J., concurring

¶1 I accede to the court's opinion and to the disposition made of this case. I write in concurrence to explain that analysis which persuades me to join today's pronouncement.

¶2 1) The critical and dispositive issue here is whether the trial court's grant of new trial is rested on a "pure error of law."1 I agree that it is and that it must be reversed.

¶3 2) The trial court perceived that its refusal to allow the defendant to offer evidence of a third party's negligence was fatally erroneous. In this view the trial judge was clearly mistaken for two reasons:

¶4 a) Qua land possessor, the defendant owed the injured invitee an ex delicto duty that is nondelegable.2 The possessor's indivisible liability may not be apportioned based upon the percentage of harm a nonparty actor may have inflicted upon the invitee in the same injurious event.3 In short, in this invitee's tort suit brought solely against the land possessor,4 the latter's premises liability cannot be subjected to comparison with that of any other actor or co-actor. Whether pressed in the same action or elsewhere, the land possessor's own claim against one alleged to have been a third-party actor in the very same occurrence may be prosecuted - after settlement or recovery by the invitee - in common-law indemnity,5 for statutory contribution,6 or upon either or both of these theories.

¶5 b) Even if erroneous, the evidentiary exclusion of a third party's negligence was never preserved by a formal ruling fit for appellate review. In the course of trial the land possessor failed to make the required proffer7 of facts showing a third party's negligence.8 Neither an in limine ruling nor any other nisi prius exclusionary action will ever preserve for appellate review an error in rejecting evidence tendered or sought to be adduced unless proof is offered in the course of trial, which is followed by an objection that stands sustained, and proffer of the excluded facts then follows for the record. Moreover, the courtroom scenario of the entire occurrence must be shown in the transcript of oral proceedings incorporated into the record for appeal.9

¶6 Put more simply, a party aggrieved by any nisi prius exclusionary ruling, whether in limine, tentative, formal or informal, must first seek to elicit the evidence judicially deemed as excludable and, when an objection to its admission is interposed and sustained, must then make a proffer that outlines the proof that would have been adduced had the objection not been sustained.10

¶7 3) Land possessor's own claim brought against the third party in this action, if indeed actionable, is to be regarded as separate, distinct from, and unaffected by that pressed by the invitee. The latter clearly lies in tort,

SUMMARY

¶8 In sum, the record for this appeal, which so clearly falls short of demonstrating a flawed in-trial evidentiary ruling in the nisi prius exclusion of third party's negligence, gives unequivocal support for the trial court's commission of a reversible error by granting the defendant a new trial.14

¶9 The trial judge's exclusion of evidence that would have shown a third party's negligence is error free. If proof of that negligence had been proffered during trial - after an objection by the plaintiff - the exclusionary ruling would not have been an error.

FOOTNOTES

1 When a judge's new-trial grant is rested on an error in resolving a "pure, simple, and unmixed question of law," it must be reversed. Bishop's Restaurants, Inc. of Tulsa v. Whomble, 1960 OK 44, ¶6, 355 P.2d 560, 563.

2 A land possessor is liable for all defects upon the land because its duty to exercise reasonable care for the safety of an invitee is nondelegable. Copeland v. Lodge Enterprises, Inc., 2000 OK 36, ¶12, 4 P.3d 695, 700; Boyles v. Oklahoma Natural Gas Co., 1980 OK 163, ¶21, 619 P.2d 613, 619 (the land possessor has an "independent nondelegable duty" to prevent danger from its premises to persons on the sidewalk). Nondelegable duties are addressed in the Restatement (Second) of Torts §§ 416-425.

3 If the principle of nondelegability is invoked, as it was done in this case, the land possessor's liability to the invitee clearly is indivisible.

4 Having herself chosen the land possessor for imposition of premises liability as her lone adversary in the action, the plaintiff may not be barred from invoking the targeted defendant's nondelegable (indivisible) duty to the invitee.

5 Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 1965 OK 18, 405 P.2d 109.

6 12 O.S.2001 § 832.

7 Black's Law Dictionary 1090 (5th ed.1979) defines a "proffer" as "offer or tender, as, the production of a document and offer of the same in evidence." Regier v. Hutchins, 1956 OK 192, 298 P.2d 777, 782; Hudson v. Blanchard, 1956 OK 8, 294 P.2d 554, 563; Taylor v. Davis, 1947 OK 301, 199 Okl. 260, 185 P.2d 444, 445.

8 Regier, supra note 7; Hudson, supra note 7; Taylor, supra note 7; 1 Wigmore, Evidence § 20a (Tillers rev. 1983); 1 McCormick on Evidence § 51, at 215-17 (John W. Strong et al., 5th ed.1999).

9 Myers v. Missouri Pacific R. Co., 2002 OK 60, ¶36, n. 66, 52 P.3d 1014, 1033 n. 66; Braden v. Hendricks, 1985 OK 14, 695 P.2d 1343, 1348-49; Teegarden v. State, 1977 OK CR 162, ¶¶8-9, 563 P.2d 660, 662 (though the motion in limine was properly made and argued before trial, the movant failed to preserve error for appellate review because he did not once again object to the testimony elicited at trial). A motion in limine is generally a pretrial device used to preclude prejudicial statements and questions which have no proper bearing on the issues in the case and which, if heard by the jury, would interfere with a fair and impartial trial. Braden, supra at 1348-49; Teegarden, supra at 662.

10 A party who is aggrieved by a trial court's in limine ruling that suppresses proof sought to be introduced must, during the trial proceeding, elicit the desired proof through a witness from whom the facts may be adduced and, when the objection to the question is made and sustained, that party must - out of the hearing of the jury - make a proffer. The proffer consists of outlining for the record the nature of the evidence that would have been given by the witness had she/he been allowed to answer the question to which the objection was sustained. It is in this manner that the trial court is afforded an opportunity to make its in-trial ruling upon the issue in contention. The last link in the chain to be followed in the preservation-of-error process is a transcript of the trial court proceedings incorporated into the record for appeal. These are the sine qua non requirements for preserving for review an exclusionary ruling. In short, an appellate court will not review error in excluding evidence unless the record for appeal reflects all necessary steps were taken for the quest of corrective relief.

The trial court considered the plaintiff/invitee's request for an inquiry - outside the presence of the jury - on the admissibility of third-party negligence. The plaintiff moved to exclude any testimony (or argument by counsel) showing that a third party supplied a defective floor mat to the defendant's store. The motion was resisted on the ground that if the mat was defective, the testimony would show a third party failed to provide a quality mat and that the defendant lacked knowledge of the dangerous condition. No proffer followed when the court sustained the in-trial request for excluding proof of a third party's negligence. None of the steps the defendant's lawyer took qualifies here as a substitute for, or functional equivalent of, a required evidentiary proffer.

The burden stood imposed on the defendant land possessor to proffer the excluded evidence in the course of trial. After the trial court's initial ruling that excluded the tendered evidence, the defendant's duty was to make a proffer. There is here no record trail of either the plaintiff's formal objection to an attempted admission or of a proffer by the defendant of evidence deemed excludable.

11 See, e.g., Boyles, supra note 2.

12 See, e.g., Porter, supra note 5.

13 12 O.S.2001 §832.

14 Bishop's, supra note 1 at 563.

15 Even if a proffer had been made and the evidence barred by a ruling reviewable on appeal, there would have been here no error. The nondelegable nature of the defendant/land possessor's duty vis-a-vis the plaintiff/invitee removes from the case the presence of an apportionable tort liability.