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Shaw v. Cherokee Meadows, LP

United States District Court, N.D. Oklahoma

December 31, 2019

DELLA SHAW, SHERLYNE TURNER, BERTHA JOHNSON, and MARY RAND, Plaintiffs,
v.
CHEROKEE MEADOWS, LP; CARLAND GROUP, LLC; REDBUD CONTRACTORS, LLC; CARLAND PROPERTIES, LLC; and BLACKLEDGE & ASSOCIATES, Defendants. CHEROKEE MEADOWS, LP and CARLAND GROUP, LLC, Third-Party Plaintiffs,
v.
CRAFTON TULL & ASSOCIATES, INC., Third-Party Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE

         This matter comes before the court on the Motion for Summary Judgment [Doc. 98] of third-party defendant Crafton Tull & Associates, Inc. For the reasons set forth below, the motion is denied.

         I. Background and Procedural History

         This case arises from alleged violations of the Fair Housing Act (“FHA”), Americans with Disabilities Act (“ADA”), Rehabilitation Act, and Uniform Federal Accessibility Standards (“UFAS”) at the Cherokee Meadows Apartments. Cherokee Meadows Apartments is a forty-eight (48) unit multi-family, affordable housing community (the “Community”) for persons aged sixty-two or older developed in 2016 by Carland Group, LLC and owned by Cherokee Meadows, LP. Plaintiffs are tenants of Cherokee Meadows Apartments who allege that the Community includes artificial barriers that exclude persons with disabilities and do not comply with federal statutes.

         The Complaint asserts the following claims against defendants: (1) failure to design and construct the public use and common use portions of the Community in a readily accessible and usable manner to handicapped persons in violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(C); (2) discrimination based on handicap in violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3604(f); (3) violation of section 504 of the Rehabilitation Act, 29 U.S.C. § 794; (4) discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 by designing, constructing, and maintaining housing that is not accessible to persons with disabilities; and (5) breach of contract.

         Defendants Carland Group, LLC and Cherokee Meadows, LP subsequently filed a Third-Party Complaint against Crafton Tull & Associates, Inc., the company that performed civil engineering and design services at the Community. [Doc. 14]. Therein, the third-party plaintiffs allege that “[t]he design features which form the basis of Plaintiffs' claims were specified and/or approved in part by Crafton [Tull]” and therefore third-party plaintiffs assert a contingent claim for contribution, among others, against Crafton Tull. [Id. at p. 3]. Crafton Tull now seeks summary judgment as to the Third-Party Complaint. See [Doc. 98]. Third-party plaintiffs Carland Group, LLC and Cherokee Meadows, LP filed a response [Doc. 118], as did plaintiffs Della Shaw, Sherlyne Turner, Bertha Johnson, and Mary Rand. [Doc. 123]. Crafton Tull did not file a reply and therefore the motion is ripe for the court's review.

         II. Summary Judgment Standard

         Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment 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.” A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 242');">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. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         In considering a motion for summary judgment, “[t]he evidence and reasonable inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party.” Stover v. Martinez, 382 F.3d 1064');">382 F.3d 1064, 1070 (10th Cir. 2004). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861');">134 S.Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249). Summary judgment is appropriate only “where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Stover, 382 F.3d at 1070 (quoting Fed.R.Civ.p. 5');">p. 56(c)).

         III. Summary Judgment Analysis

         Crafton Tull seeks summary judgment based on three propositions: (1) plaintiffs have no evidence of breach of the standard of care; (2) plaintiffs' injuries were due to intervening causes or their own negligence; and (3) Carland accepted Crafton Tull's work. The court separately considers each proposition.

         A. Evidence of Breach of Standard of Care

         Crafton Tull first argues it is entitled to summary judgment because expert testimony is required to establish that Crafton Tull breached its professional standard of care in performing engineering and design services at the Community. Plaintiffs offer no expert evidence or testimony specifically directed to Crafton Tull's civil engineering design and therefore Crafton Tull contends that plaintiffs cannot prove there was a defect or deficiency in its work.

         Under Oklahoma law, “[t]he general rule is expert testimony is ordinarily necessary to establish causation in professional liability cases.” Boxberger v. Martin, 2 P.2d 370');">552 P.2d 370, 373 (Okla. 1976) (internal footnote omitted). However, “when a [professional's] lack of care has been such as to require only common knowledge and experience ...


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