United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is the Motion for Summary Judgment (Doc. No. 105)
filed by Defendant The Stewart Perry Company (“Stewart
Perry”). Plaintiff Robert Green, Intervenor Liberty
Mutual, and co-defendant Brothers Steel, responded in
opposition to the motion. (Doc. Nos. 111, 118, 113).
Defendant Stewart Perry seeks summary judgment on the issue
of liability and with regard to punitive damages. In response
to the motion Plaintiff withdrew his claim for punitive
damages against this Defendant but argues that disputed facts
preclude summary judgment in Defendant's favor. Having
considered the parties' submissions, the Court finds as
judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Material facts are those which
“might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
To determine whether this standard is met, the court views
the evidence in the light most favorable to the non-moving
party. Estate of Booker v. Gomez, 745 F.3d 405, 411
(10th Cir. 2014). “[T]he plain language of Rule 56(c)
mandates entry of summary judgment ... against a party who
fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
Stewart Perry was the general contractor on a construction
project in Yukon, Oklahoma, pursuant to a contract with Czech
Hall Investment Partners, LLC. Co-Defendants Brothers Steel
and R&T Acoustics were subcontractors of Stewart Perry.
Air Conditioning Services, Inc., Plaintiff's employer,
was the HVAC subcontractor. On August 26, 2016, Defendant
Brothers Steel cut a hole in the roof of the project in an
area under construction for use as a Marshalls
store. Javier Cruz, the Brothers Steel employee
who cut the hole, covered the hole with a wooden pallet
because there was no one there to begin work on the roof
hatch, the intended use of the hole. Approximately three
hours after the hole was cut and covered by the pallet,
Plaintiff Greene was picking up trash on the roof and lifted
the pallet, intending to use it to weigh down other
construction debris. He did not realize the pallet covered a
hole, and after lifting the pallet he stepped into the
now-open space and fell to the concrete slab below, which
resulted in substantial injuries. Plaintiff seeks to recover
from Stewart Perry, the general contractor, under a theory of
negligence. There is no dispute that Stewart Perry did not
ask that Brothers Steel cut the hole and that it was unaware
the hole had been cut and improperly covered.
this case arises under the Court's diversity
jurisdiction, the substantive law of Oklahoma applies to this
dispute. Napier v. Cinemark USA, Inc., 635 F.Supp.2d
1248, 1250 (N.D. Okla. 2009) (“A federal court sitting
in diversity must apply the substantive law of the forum
state.”). To establish a prima facie case of
negligence, a plaintiff must show: “1) a duty owed by
the defendant to protect the plaintiff from injury; 2) a
failure to perform that duty; and 3) injuries to the
plaintiff which are proximately caused by the defendant's
failure to exercise the duty of care.” Smith v.
City of Stillwater, 328 P.3d 1192, 1200(Okla.
2014)(citations omitted). Defendant contends that Plaintiff
lacks evidence that any action or inaction on its part
proximately caused Plaintiff's injuries.
claim against Stewart Perry is premised on its position as
general contractor and its obligation to ensure the entire
jobsite was safe, to conduct safety inspections and safety
briefings. Defendant Stewart Perry contends it conducted
regular safety meeting and inspections, as supported by the
affidavit of Eddie Cassell, Senior Project Manager and
Director of Safety Operations for Stewart Perry. Plaintiff
argues that Defendant has not provided any “evidence
that a site inspection was ever performed. This failure
directly contributed to Plaintiff's injury.” (Doc.
No. 111, p. 3). Plaintiff argues that the absence of any
safety inspection forms for the months of July or August 2016
supports a finding of causation.
Court disagrees with Plaintiff's contention that any
disputed facts are material to a summary judgment
determination and further finds that Plaintiff cannot
establish causation with regard to Defendant Stewart Perry.
The undisputed facts indicate that Stewart Perry was not made
aware by Brothers Steel that a hole was to be cut on August
26, 2016, and that the hole was in the roof for a period of
no more than three hours before Plaintiff lifted the pallet
and stepped through. Accordingly, the absence of safety
inspections during July or August, other than during the
three-hour window the hole was open, could not have caused
Plaintiff's injuries. Only a fortuitously timed
inspection by Defendant Stewart Perry might have prevented
the accident. Even if Stewart Perry had a policy of
conducting safety inspections at the beginning and end of
each day and documentation to prove the same, the accident
would have occurred regardless. “Generally, the
proximate cause of an injury in a negligence case is an issue
of fact for the jury.” Iglehart v. Bd. of Cty.
Comm'rs of Rogers Cty., 60 P.3d 497, 504 (Okla.
2002). “It becomes a question of law for the court only
when there is no evidence from which a jury could reasonably
find a causal nexus between the act and the injury.”
Id. There is no factual basis in the record from
which the jury could conclude that the alleged failure to
conduct “regular” safety inspections and
briefings “set[ ] in motion the chain of circumstances
leading to [Plaintiff's] injury.” Id.
Simply stated, there is no evidence to link the absence of
safety inspections and briefings to the decision by Javier
Cruz to cut a hole in the roof of the building and to walk
away therefrom without properly securing the opening.
Defendant Stewart Perry is entitled to summary judgment on
Plaintiff's negligence claim. For the reasons set forth
herein, Defendant Stewart Perry's Motion for Summary
Judgment (Doc. No. 105) is GRANTED.
IS SO ORDERED.
 Defendant Brothers Steel contends that
its employee cut the hole at the request of an employee of
R&T Acoustics. R&T Acoustics denies that its employee