LOWERY v. ECHOSTAR SATELLITE CORP.

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LOWERY v. ECHOSTAR SATELLITE CORP.
2007 OK 38
160 P.3d 959
Case Number: 102606
Decided: 05/22/2007

THE SUPREME COURT OF THE STATE OF OKLAHOMA

JO ANN M. LOWERY, Appellant,
v.
ECHOSTAR SATELLITE CORP. d/b/a/ DISH NETWORK, Appellee.

ON WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS, DIVISION IV

¶0 Jo Ann M. Lowery suffered injuries to her left leg and back when she attempted to repair the satellite dish on the roof of her garage. Lowery filed a negligence action against the satellite dish company, alleging the company is liable for her injuries because the company refused to repair its equipment and directed her to make the repairs. The defendant moved for summary judgment, arguing that it owed no duty to plaintiff arising from either a contract or the circumstances. In response, plaintiff argued that defendant assumed a duty of ordinary care when it repeatedly told her she would have to repair the satellite dish and offered to give her directions to effect the repair. The district court, the Honorable Edward C. Cunningham, presiding, granted summary judgment in favor of defendant. Plaintiff appealed. The Court of Civil Appeals concluded that defendant's offer to advise plaintiff during the repair of the satellite dish subjected it to liability and reversed the district court's summary judgment. We previously granted defendant/appellee's petition for writ of certiorari.

COURT OF CIVIL APPEALS' OPINION VACATED;
DISTRICT COURT'S SUMMARY JUDGMENT AFFIRMED.

E. W. Keller and Henry Dalton, Keller, Keller & Dalton, Oklahoma City, Oklahoma, for appellant.
Jeffrey W. Miller, Jennings Cook Hoisington & Teague, Oklahoma City, Oklahoma, for appellee.

TAYLOR, J.

¶1 On certiorari, Echostar Satellite Corporation d/b/a Dish Network, defendant/appellee (Dish Network), contends that it did not owe Jo Ann M. Lowery, plaintiff/appellant (Lowery), a duty of care under the facts and circumstances in this case and that it is entitled to judgment in this negligence action as a matter of law. We agree. We vacate the Court of Civil Appeals' opinion. We affirm the district court's summary judgment in favor of the defendant/appellee.

I. The Facts and Proceedings Below

¶2 The facts and circumstances giving rise to Lowery's allegations of negligence against Dish Network are established by the summary judgment filings. We glean the following undisputed facts from Lowery's answers to interrogatories and the portions of her deposition included in the appellate record.

¶3 Lowery owned her home in Union City, Oklahoma, where she and her boyfriend, John McCormack, resided. In February of 2003, McCormack purchased a satellite dish television system from Dish Network and had the dish installed on Lowery's garage roof. McCormack had a one-year limited warranty on the satellite dish. Lowery was not involved in the purchase of the satellite dish, and she was not financially responsible for the satellite dish television system.

¶4 The following are the significant parts of Lowery's telephone conversations with Dish Network. Customer service advised that the problem with the satellite dish required a minor repair and the three screws were the parts needed for the repair. Lowery insisted that Dish Network send someone out to repair the satellite dish as provided in the warranty. Customer service advised that Dish Network would not send anyone out, that the limited warranty covered only necessary repair parts but not labor, and that Lowery would have to make the repairs. Lowery insisted that she should not have to repair the satellite dish because it was not her job, she was inexperienced, and she was concerned about climbing to the garage roof. When customer service advised that the repair would not be done by Dish Network, Lowery demanded that the satellite dish be removed from her garage.

¶5 Customer service advised Lowery more than once that she could make the minor repair to the dish. A customer service employee offered to stay on the line to guide Lowery through the repair process, and then, forty-four year old Lowery proceeded to make the repair. With a cordless telephone in hand and Dish Network's customer service on the line, Lowery climbed the ladder to her garage roof. Lowery fell from the roof before she began the repair. A neighbor came to Lowery's rescue. The neighbor repaired the satellite dish with instructions from the Dish Network's customer service. Lowery testified that when she fell, she broke her left leg and injured her left knee, left ankle, and the left side of her lower back.

¶6 In July of 2004, Lowery filed her petition in the district court in Canadian County, Oklahoma, seeking monetary damages from Dish Network. Lowery alleged that her bodily injuries were directly and proximately caused by Dish Network's carelessness and negligence and by Dish Network's failure to perform its duty under its warranty. Dish Network moved for summary judgment, asserting that there is no dispute as to the material facts and that it is entitled to judgment as a matter of law.

¶7 Dish Network contended that it cannot be liable for negligence because it owed no duty of care to Lowery to prevent the harm she suffered. Dish Network argued that it had no duty to protect Lowery where she voluntarily climbed to the roof and that no inference of a duty to protect Lowery from the harm she suffered can be drawn from the customer service employee's offer to advise Lowery on repairing the satellite dish. Dish Network also argued that it owed no contractual duty to Lowery to repair the equipment her boyfriend purchased. In response, Lowery asserted that Dish Network exposed her to foreseeable harm when it refused to repair the satellite dish at the request of a member of the purchaser's household. Lowery argued that Dish Network is liable for her injury caused by its reckless urging, encouraging and advising an inexperienced person to repair the satellite dish equipment. Lowery relied on the general common law principle that a person owes a duty of care to all persons who are foreseeably endangered by his or her conduct with respect to all risks which make the conduct unreasonably dangerous.

¶8 The district court granted Dish Network's motion for summary judgment. Lowery timely appealed. In her issues on appeal, Lowery asserted error in the summary judgment because 1) material facts are disputed, 2) Dish Network, by encouraging Lowery to repair the satellite dish, assumed a duty to avoid foreseeable harm that could occur and breached that duty, and 3) Lowery's contributory negligence and assumption of the risk must be left to the jury.

¶9 The Court of Civil Appeals concluded that Dish Network may be liable for negligence where its customer service not only told Lowery to make the repairs but also offered to instruct and direct the repairs. The Court of Civil Appeals observed that the "good Samaritan rule" applies to the giving of advice as well as the rendering of medical assistance and found that Dish Network may have assumed a duty of care in relation to Lowery when its employee offered to direct the repair of the satellite dish. The Court of Civil Appeals recognized that modern customer service and tech support offered over the telephone generally is not dangerous activity but found that the customer service in this case is an exception. The Court of Civil Appeals reversed the summary judgment and remanded for further proceedings to resolve the issues of whether Dish Network exercised reasonable judgment and whether Lowery caused or contributed to her injuries.

¶10 Dish Network timely petitioned for certiorari review, arguing that the Court of Civil Appeals erroneously applied the "good Samaritan rule" and that it, Dish Network, had no duty to protect Lowery from the open and obvious risks associated with climbing up to her garage roof. Lowery responded that the Court of Civil Appeals did not actually apply the "good Samaritan rule," but rather, the appellate court determined that Dish Network assumed a duty to Lowery by giving technical advice and that the reasonableness of Dish Network's conduct should be left to the trier of fact. We previously granted Dish Network's petition for writ of certiorari.

II. Standard of Review

¶11 Summary judgment is not a procedure to substitute a trial by affidavit for a full-blown trial. Myers v. Lashley,

III. A duty of care owed by Dish Network
to Lowery to protect her from the harm she allegedly suffered
cannot be inferred from the facts and circumstances in this case.

¶12 The elements of the tort of negligence are 1) a duty of care owed by defendant to plaintiff, 2) defendant's breach of that duty, and 3) injury to plaintiff caused by defendant's breach of that duty. Nicholson v. Tacker,

¶13 We have long recognized that without regard to the relationship of the parties, a person owes a duty of care to another person whenever the circumstances place the one person in a position towards the other person such that an ordinary prudent person would recognize that if he or she did not act with ordinary care and skill in regard to the circumstances, he or she may cause danger of injury to the other person. Lisle v. Anderson,

¶14 In determining the legal question of the existence of a duty of care, the court considers policy factors that lead the law to say a particular plaintiff is entitled to protection. Inglehart v. Bd. of County Commissioners of Rogers County,

¶15 The foreseeability of the risk of harm to Lowery from the particular danger involved in this case is tacitly admitted by the parties. The focus of our inquiry is not whether the risk of harm was foreseeable but whether Dish Network's conduct unreasonably endangered Lowery with respect to the obvious risk involved in climbing onto a rooftop. The essence of Lowery's claim is that Dish Network assumed a duty of care to protect her from the obvious danger involved in climbing a ladder to a rooftop when it refused to repair the satellite dish and it offered to guide her in making the repair herself. On the other hand, the essence of Dish Network's defense is that there is no fact that would lead the law to say Lowery is entitled to protection from the danger she encountered and place a legally cognizable duty on Dish Network to protect Lowery from the injury she alleges. We have carefully perused the appellate record and find no evidentiary material that would lead a reasonable prudent person to view Dish Network's customer service conduct, its acts or omissions, as unreasonably endangering Lowery and placing a duty upon Dish Network such that it is subjected to liability for the injuries she alleged.

¶16 When, on summary judgment, the defendant contends that the facts and circumstances are undisputed and submits evidentiary material supporting the contention, the plaintiff must respond with some evidentiary material that would demonstrate a need for a trial on the issue. Runyon v. Reid, at ¶13, 510 P.2d at 946. Lowery did not respond to the summary judgment with evidentiary material tending to establish any fact from which a duty of care might be inferred or tending to show that Dish Network had control over the dangerous conditions or that Dish Network was in a superior position to protect her from the danger she encountered. To prevent summary judgment, Lowery needed to produce evidentiary materials showing that the Dish Network customer service employee knew or should have known of some danger of harm with respect to the obvious risks of climbing onto a rooftop, such as, precarious location of the satellite dish or precarious height or pitch of the roof, absence of an intelligent choice to climb to the roof, physical inability to climb a ladder, or a myriad of other possible facts which might lead a reasonable prudent person to view the conduct of the customer service employee to be unreasonably dangerous. We are convinced by the totality of the facts and circumstances established by the evidentiary material in the appellate record that it is beyond good sense to say that Dish Network owed Lowery a duty to protect her from the danger she encountered because of her desire to have the satellite dish repaired and her decision to climb on the roof to repair it.

IV. The good Samaritan rule is not applicable.

¶17 The Court of Civil Appeals found that Dish Network owed Lowery a duty of care by analogy to that of a good Samaritan rescuer. It relied on the "good Samaritan rule" in the Restatement (Second) of Torts § 323 (1965) which provides that any person who renders "services to another which services he should recognize as necessary for the protection of the" other person or the other person's property, is liable to the other person for harm resulting from the failure to exercise reasonable care if the failure increases the risk of harm or the harm is suffered because the other person relied upon the service.

V. Contributory negligence and assumption of the risk
do not prevent summary judgment

¶18 Lowery also argued that summary judgment was not proper because the issues of her contributory negligence or assumption of the risk can only be decided by a jury, citing Okla. Const., art. 23, § 6. Where, as in this case, there is no duty of care on the part of the defendant, there is no need to submit the defense of assumption of the risk or contributory negligence to a jury and the court may find the negligence claim is not actionable as a matter of law. Tucker v. ADG, Inc.,

VI. There are no material facts in dispute.

¶19 Finally, Lowery urged that summary judgment was not proper because material facts are disputed. We do not agree. There is no dispute that during Lowery's telephone conversations with several customer service employees Lowery was advised that Dish Network would not repair the satellite dish and that she would have to take care of the problem. There is no dispute that Lowery was aware of the dangers of climbing to the garage roof and expressed her concerns to the customer service employee. Also, there is no dispute that Lowery made the choice to climb to the roof to repair the satellite dish. Further, there is no evidentiary material tending to show circumstances that placed the Dish Network customer service in a position toward Lowery to protect her from the harm she alleged. The undisputed fact that the employee had a hand in the dangerous situation by telling Lowery she could repair the satellite dish and offering to give her advice as she made the repair does not render Dish Network liable for negligence to Lowery. In Nicholson v. Tacker,

VII. Conclusion

¶21 To successfully defend against Dish Network's summary judgment motion Lowery had the burden to produce some evidentiary material tending to establish any fact from which a duty of care to protect her from the danger she encountered might be inferred. Lowery failed to carry this burden. On this appellate record, it is not reasonable to say that Dish Network owed Lowery a duty to protect her from the danger she encountered when she decided to climb onto the roof of her garage. Lowery's negligence claim against Dish Network failed as a matter of law under the evidentiary material presented on summary judgment. The district court did not err in granting summary judgment in favor of Dish Network.

COURT OF CIVIL APPEALS' OPINION VACATED;
DISTRICT COURT'S SUMMARY JUDGMENT AFFIRMED.

WINCHESTER, C.J., EDMONDSON, V.C.J., and LAVENDER, HARGRAVE, OPALA, and TAYLOR, JJ., concur.

KAUGER and COLBERT, JJ., concur in part and dissent in part.

WATT, J., dissents.

FOOTNOTES

1 Although Lowery had no contractual relationship with Dish Network, they were not strangers. Lowery is the person who actually signed Dish Network's contract with McCormack. When the satellite dish was installed, McCormack, a long-distance truck driver, was on the road and both McCormack and the person who installed the satellite dish requested that Lowery sign McCormack's name on Dish Network's documents.

2 For this proposition, Lowery relied on Wofford v. Eastern State Hosp., 1990 OK 77, 795 P.2d 516, and Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 913 P.2d 1318.

3 76 O.S.2001, § 1 imposes a legal duty upon each person, without contract, to abstain from injuring the person or property of another. How the one person must act or not act is the standard of care required to satisfy this duty of care. See Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, ¶13, 70 P.3d 811, 816-817; Copeland v. Lodge Enterprize, Inc., 2000 OK 36, ¶7, 4 P.3d 695, 698.

4 At note 17, Inglehart v. Bd. of County Commissioners of Rogers County, 2002 OK 76, ¶10, 60 P.3d 497, 502, cited Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976), for the policy considerations that would lead the law to recognize a legal duty of care. The policy considerations include 1) foreseeability of harm to the plaintiff, 2) degree of certainty of harm to the plaintiff, 3) moral blame attached to defendant's conduct, 4) need to prevent future harm, 5) extent of the burden to the defendant and consequences to the community of imposing the duty on defendant, and 6) availability of insurance for the risk involved.