Brewer v. Murray

BARNES, P.J.,

concurring in result:

T1 I concur in the majority decision to reverse the trial court's order granting summary judgment to Jackson and to remand for further proceedings regarding negligence, proximate cause, and other issues that may stem from Brewer's negligence claim. However, I respectfully submit that the duty owed by Jackson to Brewer under the undisputed facts developed thus far in this case are (1) the general duty Jackson owed to Brewer for Jackson's own conduct, and (2) a duty she owed Brewer to protect her from actions she knew or should have known about her daughter's conduct that could have caused harm to Brewer.

T2 In Oklahoma, whether a duty exists depends on the relationship between the parties and the general risks involved in the common undertaking. Wofford v. Eastern State Hosp., 1990 OK 77, ¶ 10 , 795 P.2d 516, 519 . Whether a defendant stands in such a relationship to the plaintiff such that the law will impose on her an obligation of reasonable conduct for the benefit of the plaintiff is a question of law. Id. As to this general duty, Jackson voluntarily undertook custody of Brewer for the evening and thereby had a special relationship with her. Jackson made specific representations to Brewer's parents that she would supervise their 18-year-old daughter except for a few hours when Jackson went out for pizza and other errands. Moreover, Jackson knew about her daughter's prior substance abuse problems, including her sale of over-the-counter drugs to other minors. The cireamstances here are different from those in J.S. v. Harris, 2009 OK CIV APP 92 , 227 P.3d 1089 . In Harris, no duty was found where the grandmother neither invited the young boy into her home, nor undertook supervision of him, nor knew about her grandson's risk to the boy. Jackson, however, affirmatively invited Brewer into her home, accepted responsibility of her, and knew about a potential risk her daughter might pose to Brewer.

3 As expressed by the majority, foreseea-bilty is key to duty, and the foreseeability needed for duty is broader in seope than that needed for proximate cause. See Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 86, ¶11 , 913 P.2d 1318, 1322 . That harm could befall a minor, unsupervised by an adult for the evening and left alone with another minor known to act in risky ways with respect to substance abuse, is certainly within the zone of risk needed to establish a duty. Consequently, as a matter of law, Jackson was under an obligation of reasonable conduct for Brewer's benefit. Whether she breached that duty by her absence from the home is a question of fact for the trier of fact upon remand.

*55 T4 As to a duty she might have for the acts of a third party, pursuant to Restate ment (Second) of Torts § 816 Jackson also had a duty to protect Brewer from possible exposure to alcohol abuse as a result of her relationship with her own daughter and her knowledge about her daughter's substance abuse problems. Again, in Harris the grandmother had no knowledge and had no reason to know about the danger her grandson posed to young teenage boys. Conversely, Jackson was fully aware of her daughter's possession of marijuana. She also knew that her daughter sold over-the-counter-drugs to other students to "get kids high." When Jackson invited Brewer into her home and left the minors unattended for the evening, she should have known that her daughter had the propensity to abuse drugs or other substances, such as alcohol. That knowledge imposed a duty on Jackson to warn and protect Brewer from exposure to that potential substance abuse.

T5 For the foregoing reasons, I concur in the majority's Opinion that the trial court order granting summary judgment to Jackson should be reversed and the cause remanded for further proceedings.