Rhodes Hieronymus

Rhodes Lawyer Tries Case “Old School Style” with Implausible Result

colin — Fri, 12 Apr 2013 20:52:01 +0000

The firm was called in to defend an insurer in a personal injury lawsuit. A woman sought damages for past and future injury, disability, pain and suffering and punitive damages. The insurer’s previous counsel had withdrawn without so much as deposing the Plaintiff. Our defendant’s insured refused to cooperate in the case or even to attend trial. With discovery closed, trial would be utterly unpredictable. Associate Bill T. McKee accepted the challenge. He succeeded in prompting key admissions from the plaintiff on cross examination, won motions to excludes categories of damage for insufficient evidence, and in the end, the jury awarded the plaintiff only a fraction of the damages she had sought. Foreseeing this possibility when others were predicting a substantial award, Bill had made an offer of judgment before trial, and the offer exceeded the amount of the jury’s award. Net result: judgment for defendant.

All that aside, we recommend that plaintiffs be deposed before trial, that the defendant appear for the trial, and that the potential for summary judgment be at least explored. But for those rare times when basic trial preparation is not an option, we recommend that you call Bill McKee.

MAJOR CHANGE TO OKLAHOMA CIVIL LIABILITY LAW

colin — Thu, 21 Mar 2013 15:23:13 +0000

Oklahoma Supreme Court finds federal laws and regulations establish the standard of care in negligence per se claims; violation of federal law or regulation thus satisfies the “duty” and “breach” elements of negligence per se. Furthermore, federal preemption defenses are no longer effective in Oklahoma in the negligence per se context.

On March 19, 2013, the Oklahoma Supreme Court released Howard v. Zimmer, Inc., 2013 OK 17. This new decision both makes it easier for plaintiffs to establish the existence of a legal “duty” and standard of care in a negligence case, and, it eliminates a commonly used defense against negligence claims.

The Howard opinion reminds us that to prevail on a claim for negligence per se, a plaintiff must not only demonstrate violation of a federal law, “but also that the violation caused his injury along with the extent to which the injury may support an award of damages.” Coupled with the overruling of a line of preemption cases from the Oklahoma Court of Civil Appeals dating back to 1994, however, the practical effect of Howard is to do away with one of the most effective defenses to negligence per se claims.

Howard diminishes the relevancy of longstanding “implied right of action” caselaw because a negligence per se claim often can substitute for a private cause of action.

Going forward under Howard, we expect that motions for partial summary judgment by plaintiffs will become more common and more commonly granted. Resourceful plaintiffs’ lawyers will scour the Federal Register and the U.S. Code for provisions that can substitute for a common law standard of care in contexts not yet seen in Oklahoma’s courts. Defense motion for summary judgment will become less effective with the effective demise of the federal preemption defense.

Our lawyers have been briefed on the Howard case and the changes it will cause to Oklahoma litigation. You are welcome to call any one of our lawyers for a more detailed discussion of the case, or to review how these changes to the law could impact your business.

Manufacturing company collects defense verdict in jury trial of former employee’s wrongful termination claim.

colin — Thu, 14 Feb 2013 20:52:39 +0000

An assembly worker at a manufacturing plant was terminated after he was absent for two days from work without calling in. He had been injured at work one week earlier, and claimed the real reason for his firing was his on-the job injury. Plaintiff asked the jury to award him lost wages in excess of $150,000, as well as damages for emotional distress. Jo Anne Deaton worked with Denelda Richardson to highlight the problems with the plaintiff’s case. A jury in Tulsa County District Court returned a unanimous verdict for the employer following 45 minutes of deliberation.

Suit against commercial property owner rejected by Tulsa County District Court and affirmed on appeal.

colin — Wed, 30 Jan 2013 16:58:39 +0000

A tenant of an apartment building brought suit against the owner of the apartment building for property damage after the tenant’s apartment caught fire. The tenant alleged that the owner failed to warn of the danger of hanging drapes over an electric baseboard heater. Nathan Clark and Rachel Lee defended the owner and asked for summary judgment, arguing that the owner had no duty to warn the tenant of risks associated with placing combustibles near a heating source. The Tulsa County trial court sustained the owner’s motion; on appeal, the Oklahoma Civil Court of Appeals affirmed, finding that any hazard associated with hanging drapes in front of a heater was open and obvious.

Summary judgment for employer in Creek County, Oklahoma scope of employment suit.

colin — Mon, 14 Jan 2013 22:51:32 +0000

Our client’s employee was driving from out-of-state to an Oklahoma town, to begin a new job. Although the employee had not begun work yet, the job awaited him. His new employer was paying the cost of his travel. En route, the employee was involved in a serious traffic accident with the Plaintiff. The Plaintiff sustained grievous brain injury. Plaintiff sued both the employee driver and the driver’s new employer. Defending the employer, firm partner Nathan Clark and associate Kyle Rogers argued that the employee was not within the course and scope of his employment at the time of the accident. The court sustained our motion for summary judgment, finding that the employee was not within the scope of his employment, and, that the reimbursement of mileage for an employee to relocate for a job does not by itself bring an employee within the course and scope of employment.

Commercial property manager nets summary judgment in Tulsa County District Court.

colin — Sun, 13 Jan 2013 03:18:45 +0000

A commercial tenant alleged that a high-value theft from the tenant’s offices was successful because the property manager stymied an investigation that would have led to recovery of the lost property. Nathan Clark and Rachel Lee dug into the allegations. They were able to establish that the actual theft predated what was alleged in the Petition, meaning that the Plaintiff’s claims were barred by the statute of limitations. On that ground, the Tulsa County District Court granted our motion for summary judgment.

Mortgage broker’s duties to borrower limited under Oklahoma law, resulting in dismissal of Osage County lawsuit.

colin — Thu, 20 Dec 2012 16:26:23 +0000

It is not often that someone buys a vacant lot and then builds a home on an adjacent lot. It was a matter of first impression when the errant homeowners brought suit against their mortgage broker, claiming that the mortgage broker had a fiduciary duty to verify that the home they were building was being build on the correct lot. Colin Tucker tested the claim with a motion to dismiss. A trial judge in Osage County agreed, finding that mortgage brokers in Oklahoma have no duty to a borrower — fiduciary or otherwise — regarding the location or placement of a home.

Summary judgment for manufacturer in Okmulgee County District Court

colin — Thu, 20 Dec 2012 16:18:22 +0000

A manufacturer and its dealer settled a claim brought by an owner of allegedly defective heavy agricultural equipment. Two years later, the owner reconsidered and filed suit. The owner alleged products liability with both direct damages and lost profits damages. The owner also alleged fraud in the context of the earlier settlement agreement. The claims proved fruitless, as Jo Anne Deaton and Lindsay McDowell obtained summary judgment for the manufacturer on all claims of the owner.

Federal jury returns defense verdict for bicycle manufacturer in products liability trial.

colin — Tue, 13 Nov 2012 23:17:43 +0000

The rider of a Trek bicycle suffered a fatal accident, alone on a rural highway with no witnesses. A carbon fiber component of the bicycle (the front fork) suffered a catastrophic failure — allegedly caused by a design and manufacturing defect — sending the rider over the handlebars and down to the pavement. Working with the world’s leading expert in the science of carbon fiber manufacturing, firm partner John Tucker showed that the bicycle was not defective. A jury in the United States District Court for the Eastern District (Muskogee, Oklahoma) agreed, awarding a unanimous verdict to the Trek Bicycle Company. This was the first successful defense of a “broken fork” lawsuit in several years, for any bicycle manufacturer, anywhere in the United States.

Conspiracy and contract claims against corporation rejected by Noble County District Court.

colin — Thu, 08 Nov 2012 16:03:53 +0000

An Oklahoma staffing business was sued for allegedly breaching contracts and engaging in a conspiracy. The district court in rural Noble County, Oklahoma, granted our motion to dismiss the conspiracy claim outright. We then were able to obtain summary judgment for the corporation on the contract claims. Lawyers Brian Brandes and Kyle Rodgers directed the effort.