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Date: 11-12-2021

Case Style:

Ginger Hinshaw v. Libra Electric Company, Brickopolis Entertainment, LLC and USA Property Management, LLC

Case Number: CJ-2019-4998

Judge: Don Andrews

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney:


Best Oklahoma City Personal Injury Lawyer Directory


Defendant's Attorney: James K. Secrest

Description: Oklahoma City, Oklahoma personal injury wrongful death attorneys represented Plaintiffs, who sued Defendants on negligence theories claiming more than $10,000 in damages and injuries as a direct result of Wesley Seeley, age 23, who was electrocuted.

The Petition filed by Ginger Hinshaw, individually, as a Personal Administrator of the Estate of Wesley William Seeley; Brandon Gann and Taylro Gann, alleged that on September 20, 2018, Wes Seeley, Brandon Gann and Taylro Gann were all invitees at Brickoplis in Oklahoma City. Wes Seeley was walking along the Bricktown Canal and learned against a light bollard. Without warning, the bollard gave way and Wes fell into the Bricktown Canal and was electrocuted by current from the wiring in the bollard.

Brandon Gann jumped into the water in an effort to help Seeley and was incapacitated by the electrically charged water.

Brandon Gann was also shocked in the water and was seriously harmed.

1-2021 CTFREE


ANDREWS 1-20-2021 RULINGS:

THE COURT SHALL, UPON AGREEMENT OF THE PARTIES, RULE ON THE BRIEFS SUBMITTED BY THE PARTIES HERETO PURSUANT TO RULE 4(H) OF THE RULES FOR THE DISTRICT COURTS OF OKLAHOMA. THE COURT, HAVING REVIEWED THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS BRICKOPOLIS ENTERTAINMENT, LLC AND USA PROPERTY MANAGEMENT, LLC FILED ON NOVEMBER 20, 2020, PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS BRICKOPOLIS ENTERTAINMENT, LLC AND USA PROPERTY MANAGEMENT, LLC'S MOTION FOR SUMMARY JUDGMENT FILED ON DECEMBER 16, 2020, AND DEFENDANTS BRICKOPOLIS ENTERTAINMENT, LLC'S AND USA PROPERTY MANAGEMENT, LLC'S REPLY TO PLAINTIFFS' RESPONSE REGARDING THESE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FILED ON JANUARY 4, 2021, FINDS AS FOLLOWS:
1. DEFENDANT USA PROPERTY MANAGEMENT, LLC (“UPM”) OWNS THE BUILDING/PROPERTY NEXT TO THE BRICKTOWN CANAL NEAR THE LOCATION WHERE THE INCIDENT HEREIN OCCURRED.
2. DEFENDANT BRICKOPOLIS ENTERTAINMENT, LLC (“BRICKOPOLIS”) IS A TENANT OF UPM.
3. UPM'S REAL PROPERTY IS SUBJECT TO A PERMANENT EASEMENT IN FAVOR OF THE CITY OF OKLAHOMA CITY (“OKC”), WHICH FACILITATED OKC'S CONSTRUCTION OF THE BRICKTOWN CANAL AND THE PUBLIC IMPROVEMENTS CONSTRUCTED THROUGHOUT THIS AREA; THAT OKC WAS OBLIGATED TO MAINTAIN ALL IMPROVEMENTS INSTALLED THEREON.
4. CONSISTENT WITH THE TERMS OF THE PERMANENT EASEMENT, OKC PAID FOR AND INSTALLED LIGHT BOLLARDS THAT LINE THE BRICKTOWN CANAL, INCLUDING THE LIGHT BOLLARD AT ISSUE IN THIS CASE; THAT OKC HAS MAINTAINED EXCLUSIVE CONTROL OVER THE LIGHT BOLLARDS SINCE THEIR INSTALLATION.
5. PURSUANT TO THE PERMANENT EASEMENT AGREEMENTS BETWEEN UPM AND OKC, UPM HAD NO OBLIGATION TO MAINTAIN PUBLIC IMPROVEMENTS INSTALLED WITHIN THE PERMANENT EASEMENT. HOWEVER, UPM (AND BRICKOPOLIS) DID RESERVE “THE RIGHT TO USE SAID LAND FOR THE PLACEMENT OF TEMPORARY IMPROVEMENTS, INCLUDING BUT NOT LIMITED TO TABLES, CHAIRS, FOOD AND BEVERAGE SERVICES STATIONS, ADDITIONAL LANDSCAPING AND PLANTS, LIGHTING, PAVING AND ACCESSORIES THERETO . . .” SEE EXHIBIT #3 TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.
6. THERE IS NO SUPPORTING AUTHORITY IN OKLAHOMA TO ESTABLISH THAT UPM AND BRICKOPOLIS' LIMITED CONTROL OVER IMPROVEMENTS ON THE PERMANENT EASEMENT TRANSLATED INTO ANY OBLIGATION REGARDING THE LIGHT BOLLARDS.
7. OKC, BY THE TERMS OF THE PERMANENT EASEMENT, IS THE ONLY ENTITY WITH THE RIGHT AND OBLIGATION TO INSPECT AND MAINTAIN THE LIGHT BOLLARDS; THAT OKC PAYS CONTRACTORS TO PERFORM SERVICES ON THE LIGHT BOLLARDS.
8. UPM AND BRICKOPOLIS DO NOT OWN OR OPERATE THE LIGHT BOLLARDS, AND THE PERMANENT EASEMENT IN FAVOR OF OKC PRECLUDED UPM AND BRICKOPOLIS FROM EXERCISING ANY POWER TO MAINTAIN OR REPAIR THE LIGHT BOLLARDS.
9. DUTY IS THE FIRST ELEMENT A PLAINTIFF MUST PROVE IN ANY NEGLIGENCE ACTION, INCLUDING PREMISES LIABILITY CASES, AND WHETHER A DUTY EXISTS IS A QUESTION OF LAW FOR THE COURT TO DETERMINE. SCOTT V. ARCHON GROUP, L.P., 2008 OK 45, ¶17, 191 P.3D 1207, 1211.
10. “THE OWNER OWES THE INVITEE A DUTY OF 'REASONABLE CARE,' AND AN INVITEE WHO IS A BUSINESS VISITOR IS ENTITLED TO THAT CARE WHICH WOULD MAKE THE PREMISES SAFE FOR HIS RECEPTION.” BROWN V. NICHOLSON, 1997 OK 32, ¶7, 935 P.2D 319, 321-322.
11. THE OWNER/OCCUPIER HAS A “DUTY TO EXERCISE REASONABLE CARE TO KEEP THE PREMISES IN A REASONABLY SAFE CONDITION AND TO WARN OF CONDITIONS WHICH WERE IN THE NATURE OF HIDDEN DANGERS, TRAPS, SNARES, OR PITFALLS.” MARTIN V. ARAMARK SERVICES, INC., 2004 OK 38, ¶5, 92 P.3D 96, 97.
12. PLAINTIFFS' RELY ON CITIES SERVICE OIL CO. V. KINDT. 1947 OK 219, 190 P.2D. 1007 IN THAT AN OWNER/OCCUPIER HAS A DUTY TO PROVIDE ITS PATRONS A REASONABLY SAFE PREMISES THAT ABUTS THE BUSINESS'S PROPERTY. HOWEVER, THIS CASE IS INAPPOSITE SINCE THE NATURE OF THE DEFENDANT'S BUSINESS THEREIN REQUIRED THAT THEY EXPECT AND ACCOUNT FOR AN OIL PATCH CONDITION. THE PERMANENT EASEMENT IN THE CASE-AT-HAND GOVERNS THE DUTIES (OR LACK THEREOF), AND THE ALLEGEDLY DANGEROUS CONDITION (THE LIGHT BOLLARD) IS NOT SOMETHING TO BE EXPECTED IN CONNECTION WITH DEFENDANTS' BUSINESS.
13. IN PREMISE LIABILITY CASES, THERE IS A “BASIC RULE THAT POSSESSION AND CONTROL OF REAL PROPERTY IS THE FUNDAMENTAL REQUIREMENT FOR ASCRIBING LIABILITY FOR INJURY SUFFERED THEREON . . . SCOTT V. ARCHON GROUP, L.P., 2008 OK 45, ¶25, 191 P.3D 1207, 1213.
14. THE CASE OF REYNA V. AYCO DEVELOPMENT CORP., 788 S.W.2D 722 (TEX. APP. 1990) IS PERSUASIVE DUE TO ITS SIMILAR FACT PATTERN TO THE CASE-AT-HAND; THAT THE RULE IN PREMISE LIABILITY IS THAT AN “OWNER OR OCCUPIER WHO HAS NO CONTROL HAS NO DUTY TO WARN AGAINST THE DANGER OR TO TAKE ANY ACTION TO RELIEVE THE DANGER.” ID., AT 724.
15. THE RATIONALE IN REYNA V. AYCO DEVELOPMENT CORP., 788 S.W.2D 722 (TEX. APP. 1990) IS CONSISTENT WITH OKLAHOMA'S PREMISES LIABILITY LAW THAT IN ORDER FOR AN OWNER/OCCUPIER TO OWE A DUTY TO AN INJURED PLAINTIFF, THE OWNER/OCCUPIER MUST FIRST HAVE THE REQUISITE POSSESSION AND CONTROL OVER THE PREMISES. SCOTT V. ARCHON GROUP, L.P., 2008 OK 45, ¶25, 191 P.3D 1207, 1213.
16. UPM AND BRICKOPOLIS LACK THE REQUISITE OWNERSHIP, POSSESSION AND CONTROL OVER THE LIGHT BOLLARDS TO OWE ANY DUTY TO THE PLAINTIFFS.
17. THE FACT THAT OKC CONSENTED TO UPM AND BRICKOPOLIS' REQUEST TO STOP THE LIGHT BOLLARD REMOVAL PROJECT IS NOT A BASIS FOR LIABILITY; THAT IMPOSING A DUTY IN TORT ON A PERSON/ENTITY WHO ASKS SOMETHING OF ANOTHER, WHERE THE OTHER HAS NO OBLIGATION TO HONOR THE REQUEST BUT GRATUITOUSLY DOES IT ANYWAY, WOULD EFFECTIVELY CREATE A NEW FORM OF AGENCY LIABILITY THAT DOES NOT ACTUALLY REQUIRE ANY AGENCY; THAT “TO HOLD SO WOULD BE TO EXTEND THE CONCEPT OF DUTY BEYOND REASON AND GOOD SENSE.” ROSE V. SAPULPA RURAL WATER CO., 1982 OK 85, 631 P.2D 752, 757.
18. THE PERMANENT EASEMENT HEREIN REMOVED UPM AND BRICKOPOLIS' OBLIGATION TO DO ANYTHING WITH REGARD TO KNOWLEDGE OF THE LIGHT BOLLARDS' CONDITION; THAT THERE IS NO DUTY OWED BECAUSE THE DANGEROUS CONDITION IS NOT WITHIN UPM AND BRICKOPOLIS' POSSESSION OR CONTROL; THAT SUCH A DETERMINATION WOULD REQUIRE ALL PROPERTY OWNERS IN BRICKTOWN TO OVERSEE OKC'S MAINTENANCE EFFORTS, NOTWITHSTANDING THE TERMS OF THE PERMANENT EASEMENT.
19. ALTHOUGH THE PLAINTIFFS WERE INVITEES OF BRICKOPOLIS ON THE DATE OF THE INCIDENT, NO HARM OCCURRED TO THE PLAINTIFFS INSIDE BRICKOPOLIS' PREMISES.
20. MRS. GANN'S CLAIM FOR LOSS OF CONSORTIUM IS DERIVATIVE FROM MR. GANN'S PERSONAL INJURY CLAIM, AND THUS, THE VIABILITY OF HER CLAIM DEPENDS ON THE SUCCESS OF HER HUSBAND'S CLAIM. LEWIS V. DUST BOWL TULSA, LLC, 2016 OK CIV APP 43, N.2, 377 P.3D 166, 170 (CITING LAWS V. FISHER, 1973 OK 69, 513 P.2D 876).
21. IF THERE IN NO RECOVERY IN THE UNDERLYING ACTION, THERE CAN BE NO PUNITIVE DAMAGES RECOVERY. RODEBUSH EX.REL. RODEBUSH V. OKLA. NURSING HOMES, INC., 1993 OK 160, 867 P.2D 1241, 1247.
ACCORDINGLY, THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS BRICKOPOLIS ENTERTAINMENT, LLC AND USA PROPERTY MANAGEMENT, LLC IS SUSTAINED.

THE COURT SHALL, UPON AGREEMENT OF THE PARTIES, RULE ON THE BRIEFS SUBMITTED BY THE PARTIES HERETO PURSUANT TO RULE 4(H) OF THE RULES FOR THE DISTRICT COURTS OF OKLAHOMA. THE COURT, HAVING REVIEWED THE MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANT, LIBRA ELECTRIC COMPANY (“LEC”), FILED ON NOVEMBER 20, 2020, PLAINTIFFS' RESPONSE AND OBJECTION TO MOTION FOR SUMMARY JUDGMENT OF DEFENDANT LIBRA ELECTRIC COMPANY FILED ON DECEMBER 16, 2020, AND REPLY TO PLAINTIFFS' RESPONSE & OBJECTION TO MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANT, LIBRA ELECTRIC COMPANY, FILED ON JANUARY 13, 2021, FINDS AS FOLLOWS:
1. THE NATURAL RESOURCES DEPARTMENT OF OKLAHOMA CITY (“OKC”) HAS RESPONSIBILITY TO MAINTAIN THE LIGHT BOLLARDS ALONG THE BRICKTOWN CANAL.
2. LEC WAS A “STANDBY” ELECTRICAL SERVICES PROVIDER TO THE CITY THROUGH MARCH 21, 2018; THAT THE CITY HAD A LONG RANGE PLAN TO EVENTUALLY REMOVE ALL LIGHT BOLLARDS IN THE BRICKTOWN CANAL AREA, AND CONTRACTED WITH LEC TO REMOVE THE SIX (6) LIGHT BOLLARDS NEAR THE BRICKTOWN CANAL AND IN FRONT OF THE DEFENDANT, BRICKOPOLIS ENTERTAINMENT, L.L.C. (“BRICKOPOLIS”).
3. LEC BEGAN REMOVAL OF THE LIGHT BOLLARDS ON MARCH 21, 2018.
4. THEREAFTER, OKC DIRECTED LEC TO STOP WORKING ON THE LIGHT BOLLARD REMOVAL PROJECT; AS DIRECTED BY OKC, LEC REATTACHED THE METAL COVERS ON THE FIRST TWO LIGHT BOLLARDS AND LOOSELY PLACED THE PAVING STONES BACK AROUND THE FOUR (4) LIGHT BOLLARDS; AND THAT WARNING CONES AND TAPE WERE PLACED AROUND THE FOUR (4) OTHER LIGHT BOLLARDS.
5. OKC RESET ALL THE LOOSE PAVERS AROUND THE FOUR (4) LIGHT BOLLARDS IN FRONT OF BRICKOPOLIS THAT HAD BEEN LOOSED BY LEC, AND CONFIRMED THAT ALL SIX LIGHT BOLLARDS WERE FUNCTIONING, SECURE, AND NOT WOBBLING.
6. PLAINTIFFS HAVE THE BURDEN TO PROVE THAT “BUT FOR” THE DEFENDANT'S NEGLIGENCE, THE ALLEGED HARM WOULD NOT HAVE OCCURRED. MCKELLIPS V. SAINT FRANCIS HOSPITAL, 1987 OK 69 ¶¶9 & 10, 741 P.2D 467, 470-471.
7. AS LICENSED ELECTRICIANS, LEC SHOULD HAVE ADVISED OKC OF THE HAZARDS AND RISK OF LEAVING THE LIGHT BOLLARDS AT THE BRICKTOWN CANAL, AND AS ELECTRICIANS, HAD THE KNOWLEDGE AND EXPERTISE TO SUGGEST THE APPROPRIATE REMEDY TO THE LIGHT BOLLARDS.
8. BASED UPON THE EVIDENCE PRESENTED, FACTUAL DISPUTES EXIST AS TO THE EXTENT OF WORK THAT WAS DONE ON THE LIGHT BOLLARDS BY LEC, WHICH LIGHT BOLLARDS WERE INVOLVED, AND WHO REMOVED THE WARNING TAPE AND CONES LEC HAD INSTALLED AT THE LOCATION OF THE INCIDENT.
9. THE LIGHT BOLLARDS WERE NOT A SUFFICIENT DISTANCE FROM THE “CANAL SHORELINE PLANE” AND THE “ELECTRIC DATUM PLANE” NOR WERE THEY GFCI PROTECTED, ALL AS REQUIRED BY NATIONAL ELECTRICAL CODE (“NEC”) STANDARDS; THAT LEC HAD A DUTY TO NOTIFY OKC THAT THE LIGHT BOLLARDS WERE NOT IN COMPLIANCE WITH THE NEC, AND SHOULD HAVE WARNED THE CITY OF THE HAZARD AND ELECTRICAL DANGERS ASSOCIATED WITH THE LIGHT BOLLARDS BASED UPON NATIONAL ELECTRICAL CODE STANDARDS.
10. ADDITIONAL ELECTRICAL WORK WAS PERFORMED BY LEC IN APRIL AND/OR JUNE OF 2018 AT THE BRICKTOWN CANAL.
11. NOTWITHSTANDING LEC'S POSITION THAT THE LIGHT BOLLARDS WERE ALL TIGHT (AFFIDAVIT OF STEVEN WRIGHT), OTHER EVIDENCE INDICATES THAT AFTER THE INCIDENT, NEARLY 30% OF THE LIGHT BOLLARDS ALONG THE BRICKTOWN CANAL WERE LOOSE (PLAINTIFF'S EXHIBIT #16).
12. “[I]MPLIED IN EVERY CONTRACT FOR WORK OR SERVICES [IS] A DUTY TO PERFORM IT SKILLFULLY, CAREFULLY, DILIGENTLY, AND IN A WORKMANLIKE MANNER” WITH THE APPLICABLE STANDARD OF CARE BEING “THE DEGREE OF SKILL, EFFICIENCY, AND KNOWLEDGE 'POSSESSED BY THOSE OF ORDINARY SKILL, COMPETENCY, AND STANDING IN THE PARTICULAR TRADE OR BUSINESS'.” KEEL V. TITAN CONST. CORP., 1981 OK 148, ¶8, 639 P.2D 1228, 1231.
13. QUESTIONS OF DISPUTED FACTS EXIST, AND WHETHER THE CONDUCT OF A DEFENDANT BREACHED THE STANDARD OF CARE IN A SPECIFIC SCENARIO IS GENERALLY AN ISSUE FOR THE JURY. SALAZAR V. CITY OF OKLAHOMA CITY, 1999 OK 20, ¶20, 976 P.2D 1056, 1064.
ACCORDINGLY, THE MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANT, LIBRA ELECTRIC COMPANY IS OVERRULED.

-17-2021 CTFREE


ANDREWS: IN LIEU OF A SCHEDULED HEARING, THE COURT SHALL, UPON AGREEMENT OF THE PARTIES, RULE ON THE BRIEFS SUBMITTED BY THE PARTIES HERETO PURSUANT TO RULE 4(H) OF THE RULES FOR THE DISTRICT COURTS OF OKLAHOMA. THE COURT, HAVING REVIEWED DEFENDANT LIBRA ELECTRIC'S *AMENDED* MOTION FOR PARTIAL SUMMARY JUDGMENT ON ISSUE OF PUNITIVE DAMAGES FILED ON APRIL 16, 2021, PLAINTIFFS' RESPONSE AND OBJECTION TO DEFENDANT LIBRA ELECTRIC'S *AMENDED* MOTION FOR PARTIAL SUMMARY JUDGMENT ON ISSUE OF PUNITIVE DAMAGES FILED ON MAY 3, 2021, AND DEFENDANT LIBRA ELECTRIC'S REPLY TO PLAINTIFFS' RESPONSE AND OBJECTION TO DEFENDANT'S *AMENDED* MOTION FOR PARTIAL SUMMARY JUDGMENT ON ISSUE OF PUNITIVE DAMAGES FILED ON MAY 18, 2021, FINDS AS FOLLOWS:

1. OKLAHOMA'S PUNITIVE DAMAGES STATUTE IS CONSTITUTIONAL AND NOT VIOLATIVE OF DUE PROCESS. RODEBUSH V OKLAHOMA NURSING HOMES, LTD., 1993 OK 160, ¶39, 897 P.2D 1241, 1252, CITING PACIFIC MUTUAL LIFE INS. CO V. HASLIP, 499 U.S. 1, 111 S.CT. 1032, 113 L.ED.2D 1 (1991); THAT AS IN HASLIP, THE COMBINATION OF STATUTORY LAW, JURY INSTRUCTIONS, POST-TRIAL PROCEDURES AND APPELLATE REVIEW PROVIDE ADEQUATE SAFEGUARDS AGAINST THE JURY'S UNBRIDLED EXERCISE OF DISCRETION IN DETERMINING WHETHER TO AWARD PUNITIVE DAMAGES. ID.
2. EVIDENCE HAS BEEN PRESENTED THAT MAY SUPPORT A PUNITIVE DAMAGE INSTRUCTION FROM THE COURT PURSUANT TO 23 O.S. §9.1 REGARDING THE DEFENDANT, LIBRA ELECTRIC COMPANY. THE COURT SPECIFICALLY RESERVES ITS DECISION ON THIS ISSUE UNTIL THE CLOSE OF EVIDENCE IN PLAINTIFFS' CASE-IN-CHIEF AT TRIAL.

ACCORDINGLY, A RULING ON DEFENDANT LIBRA ELECTRIC'S *AMENDED* MOTION FOR PARTIAL SUMMARY JUDGMENT ON ISSUE OF PUNITIVE DAMAGES IS RESERVED UNTIL THE CLOSE OF EVIDENCE IN PLAINTIFFS' CASE-IN-CHIEF AT TRIAL.

Outcome: 11-09-2021 CTFREE


ANDREWS: THE MATTER COMES ON FOR JURY TRIAL (DAY 7). PLAINTIFF, GINGER HINSHAW, APPEARS WITH ATTORNEY, LANE NEAL. PLAINTIFFS, BRANDON GANN AND TAYLOR GANN, APPEAR WITH ATTORNEY, DANIEL SMOLEN. DEFENDANT, LIBRA ELECTRIC, APPEARS WITH ATTORNEYS, JAMES SECREST AND LAWSON HESTER. COURT REPORTER, SCOTT WILMETH, ATTENDS. THE COURT INSTRUCTS THE JURY. CLOSING ARGUMENTS ARE GIVEN BY ALL PARTIES. THE JURY DELIBERATES AND RETURNS THE FOLLOWING VERDICTS:
HINSHAW > DEFENDANT, LIBRA ELECTRIC CO'S NEGLIGENCE IS 75%. NON-PARTY, CITY OF OKC'S NEGLIGENCE IS 25%. DAMAGES $3 MILLION.
GANN > DEFENDANT, LIBRA ELECTRIC CO'S NEGLIGENCE IS 75%. NON-PARTY, CITY OF OKC'S NEGLIGENCE IS 25%. DAMAGES (BRANDON GANN) $5 MILLION. DAMAGES (TAYLOR GANN) $500,000.
JURY DELIBERATES 2ND STAGE AND FIXES THE DOLLAR AMOUNT OF PUNITIVE DAMAGES AT $0.
VERDICTS ARE ACCEPTED BY THE COURT. JURORS ARE THANKED FOR THEIR SERVICE. COURT IS ADJOURNED.

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