United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is the Motion for Partial Summary Judgment filed by
Defendant Brothers Steel (Doc. No. 100). Therein Defendant
Brothers Steel asserts that it is entitled to summary
judgment on Plaintiff's claim for punitive damages,
because Plaintiff lacks sufficient evidence to meet his
burden of providing clear and convincing evidence that its
employee's behavior was reckless. Plaintiff responded in
opposition to the motion urging that summary judgment is
inappropriate. (Doc. No. 110). Having considered the
parties' submissions, the Court finds as follows.
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).
case stems from severe injuries Plaintiff suffered while
working on a construction site in Yukon, Oklahoma. Plaintiff,
working for the HVAC contractor, was picking up trash from
the roof of a building and picked up a pallet that he
believed was to be discarded. The pallet, unfortunately, was
covering a hole in the roof that had been cut by Javier Cruz,
foreman for Brothers Steel, allegedly at the request of
Defendant R&T Acoustics. Mr. Cruz cut the hole and in
apparent realization that no one was available to work on the
framing for the roof hatch, used a pallet to cover the hole.
He did not, however, secure the pallet to the rooftop. When
Mr. Greene lifted the pallet, he stepped into the hole and
fell through to the ground below, suffering substantial
Court notes that it must apply the substantive law of
Oklahoma. 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.”). In Oklahoma, punitive damages are
generally considered to be an element of recovery of the
underlying cause of action; a request for punitive damages is
not a separate cause of action. Rodebush v. Okla. Nursing
Homes, Ltd., 867 P.2d 1241, 1247 (Okla. 1993).
Regardless, the Court finds it is appropriate to exercise its
gatekeeping function at this juncture because there is no
evidence of recklessness by Defendant Brothers Steel through
its employee, Javier Cruz.
Badillo v. Mid Century Ins. Co., 121 P.3d 1080, 1106
(Okla. 2005)(“Whether that showing has been made
remains an issue of law for the trial court in its role as
gatekeeper to determine ... whether there is competent
evidence upon which a reasonable jury could find reckless
disregard . . . .”).
support of his quest for punitive damages against Brothers
Steel Plaintiff relies on 23 O.S. § 9.1, which permits
such a recovery where the jury finds by clear and convincing
evidence that the defendant has been guilty of reckless
disregard for the rights of others. 23 O.S. § 9.1(A).
Conduct is in reckless disregard of another's rights if
the defendant was “aware, or did not care, that there
was a substantial and unnecessary risk that its conduct would
cause serious injury to others.” Okla. Uniform Jury
Instructions (Civ. 3d) No. 5.6. “In order for the
conduct to be in reckless disregard of another's rights,
it must have been unreasonable under the circumstances, and
also there must have been a high probability that the conduct
would cause serious harm to another person.”
Id.; see Black v. M & W Gear Co., 269
F.3d 1220, 1239-40 (10th Cir. 2001).
Plaintiff is correct that Defendant's foreman failed to
secure the rooftop opening and to clearly mark the same in
accordance with its own policies and industry standards, he
did not leave the hole uncovered. Rather, he used a pallet to
cover the hole, offering protection for anyone who walked on
the roof. It is not disputed that Plaintiff's fall
through the roof was an accident-there is no evidence in the
record of any intent on the part of Defendant Cruz, and it is
well settled in Oklahoma that “the mere happening of an
accident as a result of inadvertence on the part of the
responsible party is insufficient to constitute gross
negligence.” Hinds v. Warren Transport, Inc.,
882 P.2d 1099, 1102. The Court finds that none of the facts
pointed out by Plaintiff, even if true, would demonstrate
gross negligence on the part of Defendant Brothers Steel.
reasons set forth herein, the motion for partial summary
judgment filed by Defendant Brothers Steel is GRANTED.