Petition for Writ of Certiorari — Luis Escalera v. Tierco Water Park, Inc.

(1) PT ep

2920.19 yun; 2 2000

No. 99- GFARE 06 IKE CLERK

IN THE

Supreme Court of the United States

JOSE LUIS ESCALERA, an individual,

Petitioner,

v.

TIERCO WATER PARK, INC., d/b/a WHITE WATER BAY

THEME PARK; and PREMIER PARKS, INC.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Court OF Civit APPEALS OF THE

STATE OF OKLAHOMA

PETITION FOR A WRIT OF CERTIORARI

RICHARD L. DENNEY

Counsel of Record

Lypia JOANN BARRETT

DENNEY & BARRETT

Attorneys for Petitioner

870 Copperfield Drive

Norman, Oklahoma 73072

(405) 364-8600

159950 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

Leper

SRE ES SS Sr eer ee

i

QUESTIONS PRESENTED FOR REVIEW

I. Does the state of Oklahoma violate federal laws that

make the metric system the preferred system of measurement

throughout the United States, thus denying petitioner his

rights as a foreign national lawfully in the United States?

II. Did the Oklahoma court’s ruling that defendants

made the shallow pool into an open and obvious condition

solely by marking it with a “3” impermissibly Classify

petitioner according to his national origin?

ii

PARTIES TO THE PROCEEDING

Petitioner is Jose Luis Escalera, plaintiff in this action,

appellant in the Court of Civil Appeals of Oklahoma, and

Petitioner in the Oklahoma Supreme Court. Defendants and

respondents here and below are Tierco Water Park, Inc., dba

White Water Bay Theme Park; and Premier Parks, Inc.

iti

TABLE OF CONTENTS

Questions Presented for Review ...............

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Statement of Jurisdiction .....................

Statutes and Constitutional Provisions Involved ..

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Reasons for Granting the Writ .................

I. The State Of Oklahoma Systematically

Violates The Federal Statute Making The

Metric System The Preferred System Of

Measurement Throughout The United States,

Thus Denying Petitioner His Rights As A

Foreign National Lawfully In The United

No reek vis kak cise as Ganewuas

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Contents

Page

II. The Oklahoma Court’s Ruling That

Defendants Made The Shallow Pool Into An

Open And Obvious Condition Solely By

Marking It With The Numeral 3

Impermissibly Classified Petitioner

According To His National Origin, And Is

In Conflict With Prior Rulings Of Other State

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TABLE OF CITED AUTHORITIES

Cases:

Florida Lime & Avocado Growers, Inc. v. Paul, 373

U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248

ho Rg AES ee on rane ye ep enter ney Sl Pa

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,

112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992) .....

Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98

Tk, | tenia Re § Oe ae

Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399,

Be te SC I Ss 6 bo $a ok dees

Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55

a Be ie RES.

Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18

Re i EINES ic cab ban es ceawe kun

McDermott v. Middle East Carpet Co., 811 F.2d

DRE Ne PORTE 6 6 Kh Sa shee she es ben ee

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106

S. Ct. 2399, 91 L. Ed. 2d 49 (1986) ...........

Patterson v. McLean Credit Union, 491 U.S. 164,

109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989) .....

Page

11

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11

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13

12

14

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Cited Authorities

Page

People v. Choi, 167 Cal. App. 3d Supp. 6, 213 Cal.

a FD TA 66 KARAS eh nb 12

Saint Francis College v. Al-Khazraji, 481 U.S. 604,

107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987) ...... 13

Sierra Club v. Costle, 657 F.2d 298, (D.C. Cir.

EROS: kk < kau dk 05h alee ee ee 12

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) ....... 14

Statutes:

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MP Slaten BS OEPEEED. c.bsvnsdcdunkctdanie 14

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Cited Authorities

Page

paeee. Cote: 6 TS 2FS C1GFRY i hos oe ee Sh teks i

Okla. Env., Health and Safety Reg. § 310:315-7-

oo i ee ee PeU EE rer ie mere 4,7,9, 11,12

2 Okla. St. Ann. § 5-61b, (Laws 1976, c. 108, § 2) |

yi ahh be eR cree eb ea eE VEER EUK Weed ale |

GS Cokin, Gent. Ann. 61-1016. oi i As 7

United States Constitution:

United States Constitution, art. VI, cl.2 ........ 2, 8, 11

United States Constitution, Amendment XIV ..... 2,15

Rule:

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Other Authorities:

Act of July 28, 1866, 14 Stat. 339 .............. 9

1875 Treaty of the Meter (20 Stat. 709) ......... 9,10

Pub. L. 94-168, Dec. 23, 1975, 89 Stat. 1007 ..... 2,9

Pub. L. 100-418, Title V, § 5164(b), Aug. 23, 1988,

PU TARE i ee 10

Vili

TABLE OF APPENDICES

Appendix A — Opinion Of The Court Of

Civil Appeals Of The State Of Oklahoma,

Division I Dated And Filed December 10, 1999

Appendix B — Transcript Of Proceedings Of The

District Court Of Oklahoma County, State Of

Oklahoma Dated June 25, 1999 ..............

Appendix C — Journal Entry Of The District Court

Of Oklahoma County, State Of Oklahoma Dated

Fi ee Se Bs Se bn F405 o Kia KARR

Appendix D — Order Of The Supreme Court Of The

State Of Oklahoma Denying Petition For

Certiorari Dated And Filed March 14, 2000 ....

Page

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23a

1

OPINIONS BELOW

On July 25, 1999, the Journal Entry of the District Court

of Oklahoma County, Oklahoma, was entered, pursuant to

the district court’s Order of June 25, 1999, granting the

motion of Defendants-Respondents for summary judgment

against Petitioner in his action against the Defendants for

injuries he suffered that rendered him a quadriplegic. The

judgment was affirmed on appeal by the Court of Civil

Appeals of Oklahoma on December 10, 1999, and

Petitioner’s petition to the Oklahoma Supreme Court for a

writ of certiorari to that court was symmarily denied on

March 14, 2000.

STATEMENT OF JURISDICTION

The order denying Petitioner’s petition for a writ of

certiorari to the Supreme Court of Oklahoma was entered

March 14, 2000. The opinion of the Court of Civil Appeals

finally determined the case on its merits. See Okla. R. Civ.

Proc. 1.171, 1.178 (Westlaw 2000).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a) (Westlaw 2000)'. Petitioner has been denied his

right to the equal protection of the laws and to his rights

under the federal Metric Conversion Act of 1975, as amended

in 1988, in violation of the protections guaranteed by the

United States Constitution.

1. Unless otherwise noted, statutory and regulatory references

are to Westlaw 2000.

2

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

United States Constitution, art. VI, cl. 2

This Constitution, and the laws of the United

States which shall be made in pursuance thereof;

and all treaties made, or which shall be made,

under the authority of the United States, shall be

the supreme law of the land; and the judges in

every state shall be bound thereby, any thing in

the constitution or laws of any state to the contrary

notwithstanding.

United States Constitution, Amendment XIV

[NJor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Metric Conversion Act of 1975, 15 U.S.C. § 205a

(Pub. L. 94-168, Dec. 23, 1975, 89 Stat. 1007)

The Congress finds as follows:

(1) The United States was an original signatory

party to the 1875 Treaty of the Meter (20 Stat.

709), which established the General Conference

of Weights and Measures, the International

Committee of Weights and Measures and the

International Bureau of Weights and Measures.

3

(2) Although the use of metric measurement

standards in the United States has been authorized

by law since 1866 (Act of July 28, 1866; 14 Stat.

339), this Nation today is the only industrially

developed nation which has not established a

national policy of committing itself and taking

steps to facilitate conversion to the metric system.

(3) World trade is increasingly geared towards

the metric system of measurement.

(4) Industry in the United States is often at a

competitive disadvantage when dealing in

international markets because of its nonstandard

measurement system, and is sometimes excluded

when it is unable to deliver goods which are

measured in metric terms.

(5) The inherent simplicity of the metric system

of measurement and standardization of weights

and measures has led to major cost savings in

certain industries which have converted to that

system.

(6) The Federal Government has a responsibility

to develop procedures and techniques to assist

industry, especially small business, as it

voluntarily converts to the metric system of

measurement. ;

(7) The metric system of measurement can

provide substantial advantages to the Federal

Government in its own operations.

4

§ 205b. Declaration of policy

It is therefore the declared policy of the United States —

(1) to designate the metric system of

measurement as the preferred system of weights

and measures for United States trade and

commerce;

(2) to require that each Federal agency, by a date

certain and to the extent economically feasible

by the end of the fiscal year 1992, use the metric

system of measurement in its procurements,

grants, and other business-related activities,

except to the extent that such use is impractical

or is likely to cause significant inefficiencies or

loss of markets to United States firms, such as

when foreign competitors are producing

competing products in non-metric units;

(3) to seek out ways to increase understanding

of the metric system of measurement through

educational information and guidance and in

Government publications; and

(4) to permit the continued use of traditional

systems of weights and measures in nonbusiness

activities.

Okla. Env., Health and Safety Reg. § 310:315-7-4(i)(1)

Depth Markings. The depth of water shall

be plainly marked at or above the water surface

on the vertical wall of the swimming pool and on

5

the edge of the deck or walk next to the swimming

pool, at maximum and minimum points; at the

points of break between the deep and shallow

portions; and at intermediate one-foot increments

of depth in the shallow end up to the breakpoint;

and at two-foot increments of depth from the

breakpoint to the deep end wall, spaced at not

more than 25 foot intervals measured peripherally;

and at two-foot increments of depth (with at least

three marker per pool) throughout the length of

non-diving pools with uniform bottom slope.

Depth markers shall be in numerals of four

inches minimum height and a color contrasting

with the background. Where depth markers cannot

be placed on the vertical walls above the water

level, other means shall be used, said markings

to be plainly visible to persons in the pool area.

STATEMENT OF THE CASE

A. Procedural History

Petitioner Jose Luis Escalera filed this action in

Oklahoma County district court against the defendants Tierco

Water Park, dba White Water Bay Theme Park (“Tierco”),

and Premier Parks, Inc. (“Premier”), on December 16, 1997.

The district court granted the motions of Tierco and Premier

for summary judgment, which ruling was upheld on appeal

by the Court of Civil Appeals of Oklahoma. See Appendix

A. Petitioner’s rehearing petition was denied, and Petitioner’s

subsequent petition for leave to appeal to the Oklahoma

Supreme Court was summarily denied on March 14, 2000.

See Appendix D at 23a.

B. Statement of Facts

Petitioner Jose Escalera was rendered quadriplegic as a

result of a dive into a water slide catch pool at the water

park operated by Tierco. Although it looked like a swimming

pool, this pool was but three feet deep, was unsafe for diving,

and had turbid water which concealed its depth. However,

there were no signs warning against diving into it. Instead,

the only sign at the pool was a depth marker consisting solely

of the numeral “3,” with no explanatory unit of measurement.

The pool was large, approximately twenty-five feet by sixty-

eight feet, with an extensive concrete apron. See Op. Ct. Civ.

App., Appendix A at 2a-3a.

Escalera, who was born and raised to adulthood in

Mexico, had never been to the facility before the date of the

accident. His uncontradicted testimony showed that he

understood the “3” on the sign to mean that the water was

three meters deep, which would have made it safe for diving.

He offered to prove that it was reasonable for him to

understand that “3” meant “three meters,” making diving

safe, in view of the size of the pool, the lack of warnings

against diving at that pool, the turbidity of the water, and

the safety warnings displayed in other parts of the water park.

See Appendix B at 10a-12a. Petitioner also offered to prove

that other water parks operated by these defendants, as well

as water parks operated by others, used signs listing the depth

in both feet and meters. However, the Oklahoma courts

refused to permit Petitioner to establish these facts, instead

basing their rulings on the State policy that all measurements

are understood to be in feet, state regulations requiring pool

depth signs to be in “feet,” and judicial notice that persons

who remain in Oklahoma are, as matter of law, obliged to

abide by that state’s disregard for the federally mandated

7

preference for metric measurements. See Op. Ct. Civ. App.,

Appendix A at 2a-3a; Appendix B at 8a-9a.

Oklahoma Environmental, Health and Safety

Regulations § 310:315-7-4(i)(1) require water depth to be

plainly marked at a facility such as the one involved in this

litigation. See 63 Okla. Stat. Ann. § 1-1014 (West 1999)

(authorizing adoption of such regulations by the Oklahoma

Commissioner of Health). However, these regulations as

interpreted by the Oklahoma Courts require the markings to

be feet rather than metric measurements, and do not require

any qualifying notation on them to indicate that the number

refers to the depth in feet. Instead, as construed by the

Oklahoma Courts, these regulations, which apply to all public

bathing facilities in Oklahoma, charge all persons who are

in Oklahoma with knowledge that the federal policy favoring

the use of the metric system throughout the United States is

suspended in that state. See 63 Okla. Stat. Ann. § 1-1014.

Moreover, the Oklahoma court ruled that all persons in that

state must be aware that all pool measurement signs in

Oklahoma are permitted to display the depth of the water

only in feet. See Op. Ct. Civ. App., Appendix A at 3a.

8

REASONS FOR GRANTING THE WRIT

I. THESTATE OF OKLAHOMA SYSTEMATICALLY

VIOLATES THE FEDERAL STATUTE MAKING

THE METRIC SYSTEM THE PREFERRED

SYSTEM OF MEASUREMENT THROUGHOUT

THE UNITED STATES, THUS DENYING

PETITIONER HIS RIGHTS AS A FOREIGN

NATIONAL LAWFULLY IN THE UNITED STATES.

The Oklahoma court ruled that even though Petitioner was

raised in Mexico, where measurements of pool depths and

similar labels are always in meters, the jury was not permitted

to consider whether he reasonably believed that the “3” on the

sign meant three meters, rather than three feet. See Op. Ct. Civ.

App., Appendix A at 3a. Basing its ruling on the fact that

Petitioner had “lived in the United States for the past 12 years,”

the court, effectively took judicial notice that despite his

cosmopolitan background, Petitioner could not be a reasonable

person exercising fair and impartial judgment when he reached

the conclusion that the pool was three meters deep. Jd.

In so ruling, the Oklahoma court ignored the well-

established federal rules regarding measurement systems in

the United States, and violated the Supremacy Clause by

purporting to establish the primacy of Oklahoma law over

the long-existing federal program to encourage the use of

metric measurements throughout the United States.

Moreover, the Oklahoma courts ignored the fact that all

national and international swimming events are measured

in terms of meters, including all diving events (such as the

“3 meter springboard”), and that most other water parks in

the United States and elsewhere also use signs using feet

and meters. See U.S. Const., art. VI, cl. 2; 15 U.S.C. § 205a.

9

Oklahoma requires that depth signs such as th» one at

the pool in question be in feet, instead of metric

measurements. See Okla. Env., Health & Safety Reg.

§ 310:315-7-4(1)(1). This regulation directly contravenes the

federal Metric Conversion Act of 1975. Compare 15 U.S.C.

§ 205a with § 310:315-7-4(i)(1). Moreover, the Oklahoma

court in this case took judicial notice that a foreign national

from a country that uses the metric system — as do all

industrialized nations save the United States — was barred

from proving that the lack of warnings against diving, the

unadorned “3” on the pool’s depth sign, and the surrounding

circumstances all combined to support his reasonable

understanding that the pool was actually three meters deep,

which would have been a safe depth for diving. See Op. Ct.

Civ. App., Appendix A at 3a; cf. 15 U.S.C. § 205a.

The use of metric measurement standards in the United

States has been authorized by law since 1866. See Act of

July 28, 1866, 14 Stat. 339. And with the enactment of the

Metric Conversion Act of 1975 (Pub. L. 94-168, Dec. 23,

1975, 89 Stat. 1007) (“the Act”), Congress made it clear that

the United States should join the rest of the industrialized

world in adopting metric measurements for commerce. See

15 U.S.C. § 205a. Among the aims that Congress announced

with its adoption of the Act were the reduction of the

competitive disadvantage in international commerce that

resulted from the use of non-metric measurements;

standardization and the “inherent simplicity” that results from

universal use of the metric system in United States and world

commerce; meeting the United States’ responsibilities as an

original signatory party to the 1875 Treaty of the Meter

(20 Stat. 709), which established the General Conference of

Weights and Measures, the International Committee of

Weights and Measures, and the International Bureau of

10

Weights and Measures; and overcoming the disadvantage to

domestic businesses that resulted from the use of non-metric

measurements. /d.

In order to further the policies behind the Act, as well as

to make clear its intent that the metric system become the

primary system of measurement in this country, Congress

amended the Act in 1988 to “designate the metric system

of measurement as the preferred system of weights

and measures for United States trade and commerce.”

See 15 U.S.C. § 205b(1), Pub. L. 100-418, Title V, § 5164(b),

Aug. 23, 1988, 102 Stat. 1452. Moreover, the 1988

amendment provided that by 1992, the federal government

must “use the metric system of measurement in its

procurements, grants, and other business-related activities

except to the extent that such use is impractical or is likely

to cause significant inefficiencies. .. .” 15 U.S.C. § 205b(2).

Ignoring the long-established federal policy favoring

metric measurements reflected in these statutes, the

Oklahoma court in this case judicially noticed that the

preferred system of measurement in this country is feet and

not meters. See Op. Ct. Civ. App., Appendix A at 2a-3a.

The state court went on to hold that, because Petitioner had

lived in the United States for twelve years, he was bound as

a matter of law to recognize that an unqualified number on a

depth sign could not refer to a metric measurement.

See Op. Ct. Civ. App., Appendix A at 2a.

This ruling, reflecting Oklahoma’s statutory preference

for using feet instead of metric measurements, violates the

Supremacy Clause, for it directly affects and inhibits the

federal policy announced in the Act. The ruling establishes

Oklahoma as a state outside the requirements of the Act,

11

and purports to establish Oklahoma, and not Congress, as

the final arbiter of what system of weights and measures

shall be established in the United States. This disdain for

federal statute and policy on the part of the state of Oklahoma

should not go unchecked, or it will undermine the goals of

uniformity, simplicity and fair competition in commerce that

Congress announced in the Act. Thus, the Oklahoma law

“stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress” in enacting

the Act. See Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct.

399, 404, 85 L. Ed. 581 (1941). Moreover, Oklahoma’s

construction of its laws makes “compliance with both federal

and state regulations into a physical impossibility ... ,”

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 142-43, 83 S. Ct. 1210, 1217-18, 10 L. Ed. 2d 248

(1963); see U.S. Const., Art. VI., Cl. 2. In sum, Oklahoma’s

insistence on the exclusivity of non-metric measurements

runs afoul of the Supremacy Clause, for it drastically

interferes with the objectives and purposes of the Act, which

has been the law of the land for over a quarter of a century.

Other states faced with similar issues have disagreed

with Oklahoma’s narrow rejection of the metric system.

Thus, nearly thirty years ago, Mississippi “jointly

recognized” the metric system and the system of weights

and measure then in customary use in the United States.

See Miss. Code § 75-27-5 (1972).? Other states have taken a

similar approach, adopting statutes that require clear

2. Oklahoma enacted a similar statute in 1976, but the

regulations at issue in this case, which mandate “feet” as the

measurement for public bathing signs, were adopted in 1986.

Compare 2 Okla. St. Ann. § 5-61b, (Laws 1976, c. 108, § 2), with

Okla. Env., Health and Safety Reg. § 310:315-7-4(i)(1) (adopted

1986 by Okla. State Bd. of Health).

12

identification of the measurement standard being used, and

in some instances, mandating the display of conversivn

information between the metric system and another system.

See People v. Choi, 167 Cal. App. 3d Supp. 6, 9, 213 Cal.

Rptr. 205, 216 (1985).

Litigation resulting from the confusion caused by the

use of different measuring systems is hardly novel, but other

courts treat the issues as matters of fact to be resolved at

trial. See, e.g., McDermott v. Middle East Carpet Co., 811

F.2d 1422 (11 Cir. 1987) (action on contract to build carpet

manufacturing plant, where plant was built for materials

measured by metric system, but materials were ordered in

twelve-foot widths). And it is not at all unusual for cases to

discuss issues in terms of both metric and non-metric

systems, with appropriate conversions indicated in the text.

See, e.g., Sierra Club v. Costle, 657 F.2d 298, 311 n.7

(D.C. Cir. 1981) (explaining issues in Clean Air Act case

concerning heat energy in terms of both metric nanograms

per joule (ng/j) and Million British thermal units (MBtu)).

In contrast, Oklahoma rejected the federally mandated

switch to the metric system, instead clinging to a former

system of measurement to the exclusion o* the metric system.

As explained above, Oklahoma’s pool safety regulations,

adopted by the Oklahoma State Board of Health, require

water depth to be plainly marked at a facility such as the one

involved in this litigation, but require the markings to be in

feet instead of metric measurements. See Okla. Env., Health

& Safety Reg. § 310:315-7-4(i)(1), requiring depth markings

to be in feet. Relying on this expression of state policy, the

Oklahoma court determined as a matter of law that the

numeral “3” necessarily meant feet, despite all the evidence

to the contrary. See Op. Ct. Civ. App., Appendix A at 3a.

13

Certiorari should be granted to resolve this conflict

among the states in their approaches to implementing the

Metric Conversion Act of 1975, and to consider whether

Oklahoma’s deliberate flouting of the federal statute that

requires adoption of the metric system as the “preferred

system” of measurement in the United States violates the

federal rights of Petitioners and others who are similarly

situated. See 15 U.S.C. § 205a.

Il. THE OKLAHOMA COURT’S RULING THAT

DEFENDANTS MADE THE SHALLOW POOL

INTO AN OPEN AND OBVIOUS CONDITION

SOLELY BY MARKING IT WITH THE

NUMERAL 3 IMPERMISSIBLY CLASSIFIED

PETITIONER ACCORDING TO HIS NATIONAL

ORIGIN, AND IS IN CONFLICT WITH PRIOR

RULINGS OF OTHER STATE HIGH COURTS.

Supposed “inherent differences” have long been rejected

as a ground for classifications based on race or national

origin. See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817,

18 L. Ed. 2d 1010 (1967). Thus, for example, “the exclusion

of otherwise eligible persons from jury service solely because

of their ancestry or national origin is discrimination

prohibited by the Fourteenth Amendment.” Hernandez v.

Texas, 347 U.S. 475, 479, 74S. Ct. 667, 671, 98 L. Ed. 866

(1954).

Federal policies against discrimination on the basis of

improper classifications, such as one’s national origin, are

well-established. For example, 42 U.S.C. § 1981 forbids all

racial discrimination in the making of private and public

contracts. See Saint Francis College v. Al-Khazraji, 481 U.S.

604, 609, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987). And the

14

“framework” developed in Title VII cases has been applied

to claims brought under this statute. See Patterson v. McLean

Credit Union, 491 U.S. 164, 186, 109 S. Ct. 2363, 105

L. Ed. 2d 132 (1989). The Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 623(a)(1), prohibits

discrimination on the basis of an employee’s age, and this

Court has noted that its “interpretation of Title VII . . . applies

with equal force in the context of age discrimination, for the

substantive provisions of the ADEA ‘were derived in haec

verba from Title VII.’ ” See Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d

523 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 584,

98 S. Ct. 866, 55 L. Ed. 2d 40 (1978)).

Title IX of the Education Amendments of 1972,

20 U.S.C. § 1681, et seg., prohibiting discrimination under

any federally funded education program or activity, is yet

another example of the federal policy forbidding

discrimination on grounds such as race, sex or national origin.

See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,

75, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992) (relying on

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct.

2399, 91 L. Ed. 2d 49 (1986), a Title VII case).

Here, Petitioner’s status as a foreign national who had

spent time in this country was used to deprive him of his

right to establish the facts that support his claim. Petitioner

sought to show that based on his experience and background,

the unadorned “3” on the side of the pool operated by the

defendants was not, by itself, an adequate warning to him of

the dangers of diving into the pool, and that he reasonably

believed that the “3” meant the pool was three meters deep.

See Appendix B at 10a-12a. However, the Oklahoma courts

rebuffed his efforts to establish the fact that his belief derived

15

in part because he was raised in Mexico, where he learned

that water depths are measured in meters. Instead, the court

below found that merely because Petitioner had lived in the

United States for the past twelve years, Petitioner would be

denied his right to establish the facts that supported the

reasonableness of his belief. See Op. Ct. Civ. App., Appendix

A at 3a.

Petitioner was thus classified according to his national

origin, in violation of the Fourteenth Amendment and federal

policies forbidding such classifications, and the Oklahoma

courts have made it clear that this classification is the law

that will be applied in that state. Certiorari should be granted

to consider whether this classification deprives foreign

nationals and others in Oklahoma their right to the equal

protection of the laws regarding the use of measurement

systems in the United States.

CONCLUSION

For the reasons stated above, this petition is well taken

and should be granted.

Respectfully submitted,

RICHARD L. DENNEY

Counsel of Record

LypiA JOANN BARRETT

DENNEY & BARRETT

Attorneys for Petitioner

870 Copperfield Drive

Norman, Oklahoma 73072

(405) 364-8600

APPENDIX

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APPENDIX A — OPINION OF THE COURT OF

CIVIL APPEALS OF THE STATE OF OKLAHOMA,

DIVISION I DATED AND FILED DECEMBER 10, 1999

THE COURT OF CIVIL APPEALS OF THE

STATE OF OKLAHOMA

DIVISION I

Case No. 93,481

JOSE LUIS ESCALERA, an individual,

Plaintiff/Appellant,

vs.

TIERCO WATER PARK, INC., d/b/a WHITE WATER

BAY, THEME PARK; and PREMIER PARKS, INC.,

Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY, OKLAHOMA

HONORABLE NANCY L. COATS, JUDGE

* * &

OPINION

Opinion by Carol M. Hansen, Presiding Judge:

On August 30, 1997, Plaintiff, Jose Escalera, a 29 year

old man, dived head first into a three foot “catch pool” at

White Water Bay. He hit his head on the bottom of the pool,

2a

Appendix A

breaking his neck and rendering him a quadriplegic. Plaintiff

sued Defendants, Tierco Water Park, Inc., d/b/a White Water

Bay Theme Park, and Premier Parks, Inc. In his petition,

Plaintiff alleged he was an invitee on Defendants’ premises,

that he sustained serious injury when he dived into the pool,

and, as a result suffered great pain of body and mind and

incurred medical expenses. He demanded judgment from

Defendants in excess of $10,000.00. The trial court granted

Defendants’ motion for summary judgment. Plaintiff appeals.

In his petition in error, Plaintiff contends the trial court

erred in granting Defendants’ motion for summary judgment

because there were material questions of fact regarding

whether the depth of the pool was an open and obvious

condition. An invitor’s duty of ordinary care and/or duty to

keep the premises in a reasonably safe condition extends only

to hidden dangers, defects, traps, snares, pitfalls and the like

that are not known to the invitee. Esther v. Wiemer, 859 P.2d

1140 (Okla. App. 1993). On the other hand, an invitor has

no duty to protect or warn about dangers on its premises

which are open and obvious and which should be discovered

by the invitee in the exercise of ordinary care. Phelps v. Hotel

Management, Inc., 925 P.2d 891 (Okla. 1996).

In Plaintiff’ s deposition, he testified he saw the “3” depth

marking on the apron of the pool and stood next to it for 45

seconds before diving into the pool head first. However,

Plaintiff also testified that when he saw the “3” depth

marking, he thought the “3” represented meters rather than

feet. He testified the metric system of measurement is used

in Mexico, where he was raised. Thus, he contends that

because he was raised in Mexico, a jury may find he

3a

Appendix A

reasonably assumed the depth of the catch pool was 3 meters,

rather than 3 feet. We disagree. Inasmuch as Plaintiff has

lived in the United States for the past 12 years, a reasonable

person exercising fair and impartial judgment could not reach

the conclusion the depth of the catch pool was 3 meters rather

than 3 feet without further testing of the depth. See Northrip

v. Montgomery Ward & Co., 1974 OK 142, 529 P.2d 489.

Next, Plaintiff argues the trial court erred in granting

Defendants’ motion for summary judgment because there

were questions of fact regarding whether he knowingly

assumed the risk. The defense of assumption of the risk need

not be submitted to the jury where the plaintiff fails to present

evidence tending to show primary negligence on the part of

the defendant and where, upon undisputed facts, reasonable

people exercising fair and impartial judgment could not

reasonably reach differing conclusions concerning them.

Flanders v. Crane, 1984 OK 88, 693 P.2d 602. In this case,

Plaintiff failed to present evidence tending to show primary

negligence inasmuch as Defendants had no duty to warn

because the depth of the pool, clearly marked with “3” was

an open and obvious condition. Thus, we do not reach the

issue of whether Plaintiff knowingly assumed the risk. For

the reasons discussed above, the trial court did not err in

granting Defendants’ motion for summary judgment.

AFFIRMED. R

JONES, C.J. and ADAMS, J., concur.

4a

APPENDIX B — TRANSCRIPT OF PROCEEDINGS

OF THE DISTRICT COURT OF OKLAHOMA COUNTY,

STATE OF OKLAHOMA DATED JUNE 25, 1999

IN THE DISTRICT COURT OF

OKLAHOMA COUNTY, STATE OF OKLAHOMA

Case No. CJ-97-8712

JOSE LUIS ESCALERA,

Plaintiff,

vs.

TIERCO WATER PARK, INC. d/b/a WHITE WATER

BAY THEME PARK and PREMIER PARKS, INC.,

Defendants.

SEVENTH JUDICIAL DISTRICT OF OKLAHOMA

TRANSCRIPT OF PROCEEDINGS

HAD ON THE

25TH DAY OF JUNE, 1999

BEFORE THE HONORABLE NANCY L. COATS

DISTRICT JUDGE

* * *

[3] (On June 25, 1999, with Court and Counsel present,

the following proceedings were had:)

THE COURT: In this particular matter Escalera is the

plaintiff, vs. Tierco Water Park d/b/a White Water or White

Water Bay Theme Park. The Court has before it the

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Appendix B

Defendant’s Motion for Summary Judgment, the Plaintiff's

Response to Defendant’s Motion for Summary Judgment and

the Defendant’s Reply to the Response to Defendant’s

Motion for Summary Judgment. Those are all the documents

that I have unless there’s been something else that didn’t get

furnished to me.

MR. DENNEY: Your Honor, I have with me this

morning that we have filed, or caused to be filed today, a

supplemental exhibit which is no more than just a

compilation to assist the Court this morning in the hearing

of the items contained in plaintiff's statement of facts.

THE COURT: Let me just start out by saying I have a

little problem sometimes on these Rule 13(b) motions

because I get a motion for summary judgment and it sets out

what one side alleges is the material facts not in dispute.

And then the other side comes up with material facts not in

dispute which in my opinion does not comply with the

requirements of Rule [4] 13(b) because I am under the

impression you are to let me know which of the material

facts that they allege are undisputed are those which you

think are disputed.

MR. DENNEY: Well, your Honor, if I may address that

issue. I’ve iooked carefully at Rule 13 to deal with that same

issue because the defendant raised that in their reply. And

as it’s set out the federal rules from which Rule 13 came,

and the adopted case law that follows it, controversion (sic)

of the defendant’s facts can occur in two different matters.

It can occur by the plaintiff setting out facts that are

different than the defendant’s facts which we have done in

6a

Appendix B

great length and detail. It can also occur by the plaintiff

setting out the different inferences from those facts.

Now I agree with the Court that some lawyers have the

style of simply coming in and taking and saying plaintiff —

the defendant says this and I say this or defendant says this

and I say this. However, in this case for us to have attempted

to do that given the simplicity of their stated facts and the

complications of the issue of diving safety would have left

the Court derift (sic) of many facts and knowledge that the

Court needs to analyze the issue of liability on [5] behalf of

this defendant. To do so would leave the Court making

decisions out of context set out by the defendant that’s not

complete and that’s the reason we’ve done it.

What I’ve given you in way of a table, your Honor, is

more of what your Honor is talking about. It’s simply to

show your Honor where we have controverted facts on a

fact by fact basis.

THE COURT: I guess what I’m wanting is for lawyers

to make my job as easy as possible. And when it’s neatly set

out 1, 2, 3, 4, 5, these are the material facts that you allege

are undisputed and then if you totally ignore them and come

back with some other facts it’s not as neat as I would like to

have.

MR. DENNEY: I understand. That’s why I prepared this

table for your Honor this morning.

THE COURT: Well, I guess I have a little bit of a

problem of lawyers coming in on the day of the hearing and

7a

Appendix B

asking me to look over something else when I have really

spent considerable time reading over all of the documents

that have previously been furnished to me. And I think I’ve

_ read all 80 of your alleged undisputed facts, material facts

or whatever they are. But I didn’t find that you really had

responded in a concise written manner to the material [6]

facts as to which you contend a genuine issue exists. I guess

I’m spending more time on form than substance here, but I

sometimes think that one of the reasons you’re doing that is

for something other than maybe what you’re really doing it

for, but maybe — do you dispute any of the material facts?

MR. DENNEY: Absolutely, your Honor. We dispute

the most basic underlying material facts.

THE COURT: Well, I did not pick up on that in your

response that was filed, but be that as it may I think I’ve

made myself clear on that. I guess I’m looking for simplicity

with respect to responses under 13(b), but I think your

argument is well taken with respect to our rule coming from

the federal rules and perhaps you can do it by inference. It’s

just a little mirkier that way.

MR. DENNEY: Well, I intended to do it this morning

by specific reference rather than inference and I — we have

the facts contained that are absolutely contrary to the facts

as stated by the defendants.

THE COURT: Well, there are some facts to which you

do agree that this was a grown man standing on the edge of

a catch pool at a water park with the number “3” written

down there and he dives into the [7] water and comes out a

quadriplegic.

8a

Appendix B

MR. DENNEY: That’s a basic fact.

MR. DONCHIN: Yes, your Honor.

THE COURT: And then we get into whether it’s open

and obvious, whether there’s a duty, whether there’s an

assumption of risk. I think that, as I’ve been through some

of these, I think that some of the material facts that were

represented on behalf of the plaintiff were sort of isolated

statements taken out of the depositions but didn’t really give

me the clear picture because I think sometimes lawyers tend

to pick out a statement that supports their particular position

without giving me the context.

And I do think in this case the plaintiff had been to

similar water parks a few times. There is some information

that he had been to one at least in Tulsa. There’s no doubt

that there was a depth marker number on the pool edge.

Whether the plaintiff being of Hispanic origin was confused

by the number “3” as to whether it meant liters or feet of

course is something you’re relying upon heavily. Whether

there’s a duty on behalf of the water park to put the numeral

“3” as a depth marker in languages and meters and other

measurements to notify people from other countries seems

to go beyond any requirements.

[8] I don’t think there’s any question in respect to your,

on both sides, that there was any law or any code or any

standards that were violated. I think that both of you agree,

although you spent a lot of time talking about things along

those lines.

9a

Appendix B

There’s no doubt that the plaintiff could see others in

the catch pool at the time that he dove, although there

certainly seems to be an agreement that he couldn’t see the

bottom of the pool at the time he dove. He did see others

exiting the pool or floating around on inner tubes. The water

apparently was turbid at that point. There were rails and some

steps leading out of the water, I believe, from which a

reasonable person might be able to gather information as to

the depth of the water.

Plaintiff knew and admitted that he knew he could be

injured by diving into water of an unknown depth. I guess

I’m inclined here to rule in favor of the Defendant’s Motion

for Summary Judgment because of the things I’ve just

mentioned in addition to what they have set out in their brief,

that there was an open and obvious situation here. The

plaintiff assumed the risk by diving head first into water

where he could not see the bottom. I would be happy to hear

your response.

[9] MR. DENNEY: May I respond?

THE COURT: Yes, sir.

MR. DENNEY: I want the record clear, your Honor,

I’ve got some things with me this morning that I want to, in

spite of the Court’s admonition, refer the Court to that I think

this Court can take judicial notice of.

As I set out in my brief, or Mr. Loftis set out in our

brief, as far back as 1875 the United States was the original

signator of the treaty that adopted the metric system as the

10a

Appendix B

measurement — as the superior system of measurement to

be used in this country.

Since then there has been specifically adopted by the

United States Congress two laws that have been referred to

in my brief that make the metric system the preferred system

of measurement and those were the preferred system of

measurement in the United States.

The defendants make the statement, and I frankly believe

the writer of the brief was quite racist in this statement, that

if you come to America you must use feet and inches. You

may not be a Hispanic who relies on meters. As the Court

knows this country is an amalgamation of many different

countries of persons who come here quite commonly and

visit water parks.

[10] As great an institution as the United States Air Force

in recruiting, your Honor, uses the metric system as evidence

to this Court by one of their advertisements that I’m showing

you on a ruler that includes the metric system and metric

conversions in this country.

The question raised by the inference of that is this, your

Honor, does a “3” mean anything? And the defendant’s

expert, the affidavit of my expert and the testimony of Mr.

Escalera cleaily establishes that the persons from metric

countries a “3” is known to mean meters. Three meters is

9 feet as your Honor knows, or slightly more than that. And

that would be true to 90 percent of the world, your Honor,

not just in the United States where the preferred system

adopted by Congress is the metric system. Therefore, a “3”

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Appendix B

without a unit, which is the problem here, a simple “3” is

not a plain marking of depth required by the Oklahoma

statutes under anybody’s interpretation.

As we showed the Court at all the other parks, Premier

Parks, they use feet and meters to clear that discrepancy up

so that there would be no difficulty with ascertaining what a

“3” means. I suggest, your Honor, a “3” could also mean

there are three slides in this pool which there are three slides

in this pool. [11] It may mean pool number three. It may

mean a lot of different things, but it does not plainly tell

anyone that cannot see the bottom that the depth is 3 feet.

And the law that your Honor must interpret this morning

is the law of the state of Oklahoma that simply says if

conflicting inferences may be drawn from the facts and

circumstances and evidence as to whether the offending

hazard did have a deceptively innocent appearance or to the

extent could not be anticipated neither the trial court nor

this court can make it clear that the peril was obvious and

apparent.

And that takes your Honor to the testimony, the sworn

testimony of Lucia De Lara, your Honor, which is the

question of whether or not a conflicting interest can be drawn.

And if I may refrain from giving the Court a short course in

what intervening cause is what the defendant really argues

here is contributory negligence as intervening cause and I’1I

tell you why.

The original act of negligence in this case are the acts of

the park and the liability. As far back as 1990, the Consumer

12a

Appendix B

Products Safety Commission of the United States notified

the purveyors of water parks that signs in areas where diving

may occur [12] should be posted both at the entrance to the

park and at the side of the pool where diving may occur and

that comes from studies done by the Consumer Products

Safety Commission contracted with the National Pool and

Spa Institute.

And they specifically said in their warning sign located

in a place where diving is prohibited represent the last

opportunity to communicate with a person who’s contemplating

a dive. Information improperly communicated could cause

the individual to alter the intent to dive. And they go on to

say, your Honor, that the first pool rule should be posted.

The second categories of signs are the ones related to either

a specific activity such as diving or rules pertaining to the

use of specific —

THE COURT: Are you reading from some material

other than what’s been furnished to the Court?

MR. DENNEY: I am, your Honor.

THE COURT: I find that unacceptable. I’m ruling on

what’s been furnished to me.

MR. DENNEY: I am simply establishing for your Honor

the format within which the intervening cause defense has

raised, your Honor.

THE COURT: If you’re trying to interject [13] into your

argument some standards or references to standards that have

13a

Appendix B

not been submitted to me and on which I have not based my

opinion I find it inappropriate. I’m going to go ahead and

grant Defendant’s Motion for Summary Judgment.

MR. DENNEY: Can] finish my argument, your Honor?

THE COURT: If you’re going to base it on material that

you furnished to me, but if you’re bringing in some outside

material that I haven’t had an opportunity to review or if the

other —

MR. DENNEY: Your Honor, the material —

THE COURT: — or if the other side has not had an

opportunity then I —

MR. DENNEY: The material I’m referring to is attached

to my brief as Exhibit D.

MR. DONCHIN: That’s not what you were reading

from.

THE COURT: You were reading from some sort of —

MR. DENNEY: I’m reading from the original study

which came from Consumer Products Safety Commission.

THE COURT: Let me just say that I think that I

reviewed most of all the material that’s been [14] furnished

to me and I think that I’m ready to rule on this material. And

I find that the Defendant’s Motion for Summary Judgment

should be granted.

l4a

Appendix B

MR. DENNEY: Well, I would like for your Honor to

deny my request that my record be complete on the record

because I have additional materials that I would like to cover,

your Honor.

~ THE COURT: Is it material that you furnished to the

Court?

MR. DENNEY: Yes. It’s right out of the record of this

case.

THE COURT: And you want to further argue it?

MR. DENNEY: Yes.

THE COURT: Go ahead.

MR. DONCHIN: If I may ask counsel if he’s going to

read from a document that he says was submitted to you I

would like to know where it is.

MR. DENNEY: The testimony of the lifeguard set out

in plaintiff's enumerated facts establishes, your Honor, that

— and the position of the defendant is as to this man’s —

THE COURT: Do you want to refer to a particular

exhibit?

MR. DENNEY: That’s set out in our facts, [15] your

Honor, in our statement of facts in our brief. Establishes a

position of the defendant that Mr. Escalera stood at the side

of the pool for 45 seconds. The lifeguard has admitted and

15a

Appendix B

testified as set out in her facts that she should not allow him

to stand there, she should warn him back from the edge of

the pool. The lifeguard has admitted that if she follows her

10/20 rule, and that is to scan the pool every 10 seconds and

to act within 20 seconds in response to a hazard, that she

would warn somebody back. She looked and saw him there

every ten seconds. That would be violated four times before

this alleged diving act occurred by the position of the

defendant.

The testimony of Lucia De Lara provided to you in our

exhibits established that it’s her position — and she is, by

the way, not an 8-year-old, she is a 13-year-old young lady

— establishes that she believes her uncle to have stood there

for two minutes. That would violate the 10/20 rule 20 times,

that the lifeguard should have warned him back from the

side of the pool.

That establishes, your Honor, a format of negligence that

precedes Mr. Escalera’s act. And my purpose for mentioning

that is in a intervening cause [16] defense which is what this

open and obvious defense is, must be — if you will look at

9.8 of the Oklahoma rules, proposed jury instructions — must

be independent of the acts of the defendant. This is not.

THE COURT: Was that something that was furnished

to the Court? I didn’t remember seeing that reference.

MR. DENNEY: I don’t need to furnish your Honor the

OUJI instructions. The Court can certainly take judicial

notice of the OUJI instructions and the case law. The state

of Oklahoma supports what an intervening cause is.

16a

Appendix B

Now an intervening cause which is what they allege here,

your Honor, must be independent of the negligent acts of

the defendant. The affidavit of my expert establishes, and it

is attached to my materials, that the standards of the industry

set out a level of negligence brought about when you fail to

warn about diving in places where it’s foreseeable.

And it clearly establishes that after visiting the park itself

and being there he saw the people came (sic) off these slides

head first in a diving position. And when they came off the

slide they existed the opposite side of the pool on the steps

[17] after floating across on tubes.

Now can the jury decide from that that the inference is

that underneath the slide is deep and when you go across the

pool it is shallow where you walk out to the steps? Of course

they can decide that, your Honor. The fact that this pool is

uniform on the bottom is not obvious as is set out in the

testimony of Miss De Lara and Mr. Escalera who testified

they couldn’t see the bottom.

Your Honor makes the assumption that you would know

the pool is uniform when you look at the steps all the way

across from the slide. Remember that this dive occurred by

the slide on that side, on the other side of the steps, that the

person would automatically know that it’s 3 feet deep. On

the other side where the steps are would make it 3 feet deep

where the slides are. That is simply not true. Most swimming

pools are deeper on one side than the other, your Honor.

And since most swimming pools are deeper on one side than

the other and the steps are on the opposite side of the pool

like almost every home pool in the United States the deep

side would be opposite the steps.

17a

Appendix B

Therefore, when Mr. Escalera looks across the pool and

sees steps it is fair for the jury to know [18] from these

inferences that he may believe he’s on the deep side of the

pool. That’s my point. That makes it not open and obvious

and the jury can infer facts from that which would cause a

reasonable person to believe that he’s standing on the deep

side of the pool and he then looks and believes he’s —

THE COURT: Do you think you can conclude your

argument within two minutes?

MR. DENNEY: I just did.

THE COURT: Okay. Thank you. Would you like an

opportunity to respond?

MR. DONCHIN: Just briefly for two minutes, your

Honor. One is we have not brought this based on intervening

cause. That is not the defense. The defense is whether it

would be reasonable, whether the park had a duty to warn.

And I know you’ve — I’m not going to repeat the facts

because you’ve accurately set them out.

THE COURT: I will allow you an opportunity to make

a record as I did the other side.

MR. DONCHIN: The — there was no duty to warn. And

the standard is whether the premises’ owner would

reasonably expect the ordinary person using reasonable care

_ to ascertain what the condition was. There is no question in

this case. He’s a 27-year-old [19] man. And, I’m sorry, I

seem a little upset because there’s a comment — I don’t think

18a

Appendix B

counsel meant it personally. But he’s made a comment that

we might be racist in implying — I truly don’t believe he

meant that as a personal attack and-I’ll give him the

opportunity to tell me that.

MR. DENNEY: Well, I meant the writer of this brief —

MR. DONCHIN: Well, I wrote the brief.

MR. DENNEY: — who states that in America that we

use feet and meters is implying that somebody Hispanic who

relies on the metric system is doing something improper and

that’s racist. It’s just that simple.

MR. DONCHIN: I don’t even want to comment on it,

your Honor. I am offended by it and I’1l deal with him later

on that. Your Honor, this is a question of whether you put

— if you take all the facts away, if you take a person just out

at the scene by a pool that’s 3 feet deep with the number “3”

by it, is it reasonable to conclude based on what he would

see with the ladders and the steps and everything goes with

it, would a reasonable ordinary person know not to dive head

first and the answer is an unqualified yes.

[20] Mr. Denney made a comment about somebody

coming off the slides and where this took place. This did not

take place at the slides. It took place at the other end of the

pool and that’s well documented in the briefs. The plaintiff

says that he stood — the plaintiff himself admits he stood

next to that “3” for 45 seconds.

You can’t put a wall around society. A person has to use

reasonable care, and obviously he failed to do that. But past

19a

Appendix B

his comparative negligence, was there a duty to warn in this

case? We think the undisputed facts show there was no duty

to warn.

For the record, plaintiff's counsel made a comment about

how all other parks, Premier Parks, do this. They didn’t go

to all these other parks. They went to two parks down in San

Antonio and Houston, South Texas, where the codes and

ordinances require a different marking. The codes that’s set

forth in our brief which is undisputed show that it only

requires the number “3.” It doesn’t require any distinction

of feet or meter or anything like that.

Te accept plaintiff's counsel’s argument would make

them change all the speed limit signs to say miles per hour

where right now it just says speed limit 55. I mean, we don’t

live in that kind of [21] society. The rules aren’t there. The

codes aren’t there. For them to — for you to accept their

argument would require you, or in every business, to find

out what all the city ordinances and codes are throughout

the United States and comply with something that doesn’t

even exist in this state. I think that’s all, your Honor.

MR. DENNEY: May I respond with a case, your Honor?

THE COURT: A brief reply, yes.

MR. DENNEY: Your Honor, the case is Silkwood vs.

Kerr McGee Corporation. The cite is 104 Supreme Court

615. It establishes very clearly that in Oklahoma, certain

ruling, compliance with state law does not abrogate you from

common law liability for negligence. Mere compliance with

state law in accordance with Silkwood is nothing more than

20a

Appendix B

the meeting of minimum requirement. The jury may then

even award punitive damages those who complied with state

law and the rulings of the NLC in that case, the Court said.

Even after making a finding that you have full compliance

with both federal and state law the jury may award punitive

damages in addition to finding for negligence.

The issue as set out by my expert and as set out [22] by

the World Water Park Standards the jury may decide from

the standards of this industry that a reasonable park would

put a no diving sign at the edge of this pool. And it is very

clear that a reasonable park would do that. This park does

that in every other catch pool that they have that we have

brought to the attention to the Court in our response.

The jury may then infer from that that they should have

had one here. Mr. Escalera’s undisputed testimony is if there

had been a sign saying no diving he would not have dived.

He can’t assume the risk of a 3 foot deep pool when he

testifies to this Court that he believed it to be 9 feet deep.

The Court would have to find in the record that he knew it

was 3 feet deep.

THE COURT: I thought it was also interesting that this

plaintiff used in reference to distances the term “number of

feet” and never used meters when he was describing other

things, so be that as it may. Thank you very much and —

MR. DONCHIN: Ill draft a journal entry. Thank you,

your Honor.

(END OF PROCEEDINGS)

* * *& *

2la

APPENDIX C — JOURNAL ENTRY OF THE DISTRICT

COURT OF OKLAHOMA COUNTY, STATE OF

OKLAHOMA DATED AND FILED JULY 14, 1999

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

Case No. CJ-97-8712-61

JOSE LUIS ESCALERA,

Plaintiff,

v.

TIERCO WATER PARK, INC. d/b/a WHITE WATER

BAY THEME PARK and PREMIER PARKS, INC.,

Defendants.

JOURNAL ENTRY

NOW ON THIS 25* day of June, 1999, the above-styled

matter having come before the undersigned District Judge,

with the parties represented by counsel, Plaintiffs by Richard

Denny and Jim Loftis, and Defendants by David B. Donchin

and Logan Johnson of Durbin, Larimore & Bialick, and the

Court, having reviewed the briefs and having heard argument

of counsel, finds that the Motion for Summary Judgment

filed by Defendants herein should be and is hereby sustained

as a matter of law.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that Defendants’ Motion for Summary Judgment

is hereby granted, and that Judgment is hereby rendered on

22a

Appendix C

behalf of Defendants and against Plaintiff, and that the clerk

of this Court should enter judgment accordingly.

s/ Nancy L. Coats

JUDGE OF THE DISTRICT

COURT

Approval page — attorneys’ signatures —

Motion for Summary Judgment

APPROVED:

s/ Richard L. Denney

Richard L. Denney, OBA No. 2297

Denney & Barrett, P.C.

870 Copperfield Drive, Suite A

Norman, Oklahoma 73072

Telephone: (405) 364-8600

Facsimile: (405) 364-3980

Attorney for Plaintiff

s/ David B. Donchin

David B. Donchin, OBA #10783

J. Logan Johnson, OBA #12722

DURBIN, LARIMORE & BIALICK, P.C.

920 N. Harvey

Oklahoma City, OK 73102

Telephone: (405) 235-9584

Telefax: (405) 235-0551

Attorneys for Defendants

Tierco Water Park, Inc.

d/b/a White Water Bay Theme Park

and Premier Parks, Inc.

23a

APPENDIX D — ORDER OF THE SUPREME

COURT OF THE STATE OF OKLAHOMA DENYING

PETITION FOR CERTIORARI DATED AND

FILED MARCH 14, 2000

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

Tuesday, March 14, 2000

THE CLERK IS DIRECTED TO ENTER THE

FOLLOWING ORDERS OF THE COURT:

93,481 Jose Luis Escalera v. Tierco Water Park, Inc. d/b/a

White Water Bay Theme Park et al.

Petition for certiorari is denied.

CONCUR: Hargrave, V.C.J., Hodges, Lavender,

Opala, Watt, Boudreau, Winchester, JJ.

DISSENT: Summers, C.J., Kauger, J.

* * *

s/ Hardy Summers

CHIEF JUSTICE