United States District Court, N.D. Oklahoma
DELLA SHAW, SHERLYNE TURNER, BERTHA JOHNSON, and MARY RAND, Plaintiffs,
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,
CRAFTON TULL & ASSOCIATES, INC., Third-Party Defendant.
OPINION AND ORDER
GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE
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.
Background and Procedural History
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.
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.
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 Plaintiffs39;
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 court39;s review.
Summary Judgment Standard
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).
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 ‘judge39;s
function39; 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.39;” 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.39;” Stover, 382 F.3d at 1070
(quoting Fed.R.Civ.p. 5');">p. 56(c)).
Summary Judgment Analysis
Tull seeks summary judgment based on three propositions: (1)
plaintiffs have no evidence of breach of the standard of
care; (2) plaintiffs39; injuries were due to intervening
causes or their own negligence; and (3) Carland accepted
Crafton Tull39;s work. The court separately considers each
Evidence of Breach of Standard of Care
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 Tull39;s civil engineering design and therefore
Crafton Tull contends that plaintiffs cannot prove there was
a defect or deficiency in its work.
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 ...