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Copeland v. Tela Corporation10/5/1999
SUPREME COURT OF THE STATE OF OKLAHOMA
COPELAND v. TELA CORPORATION
___P.2d___
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II
The appellant, a pedestrian, was injured when he was struck by an automobile driven by a customer of the Red Dog Saloon and Café, where the customer had been drinking alcoholic beverages. When the appellant sued the appellee for negligence pursuant to Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, the appellee moved for summary judgment and the District Court of Oklahoma County, the Honorable Brian C. Dixon, granted the motion. The Court of Appeals affirmed.
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF CIVIL APPEALS VACATED;
JUDGMENT OF THE DISTRICT COURT REVERSED.
The question in this case concerns whether the trial court properly granted summary judgment in favor of the appellees, Tela Corporation and Donald Mackey. We answer that summary judgment under these facts was improperly granted.
On December 31, 1993, the appellant, Roy Copeland, was walking next to the curb in the 4700 block of N.W. 10th Street in Oklahoma City, when he was struck by Ronald Barnes' vehicle. Barnes was traveling about 45 miles per hour when he struck Copeland, who was thrown approximately 55 feet from the point of impact. Barnes, who had a blood alcohol content of .12%, was taken into custody for Driving Under the Influence of Alcohol. Subsequent investigation revealed that Barnes had arrived at 11:00 p.m. at the Red Dog Saloon and Café. He had not consumed any alcohol in the past twenty-four hours. While at the Red Dog, Barnes consumed between one and two pitchers of beer, drinking beer until it closed. The accident occurred immediately after leaving, within one and one-half mile of the Red Dog. Copeland sued the appellees for negligence, pursuant to our holding in Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, , 725 P.2d 300, 304, that "one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person."
Summary judgment was granted to the appellees because the trial court found Copeland could not present evidence that the vendor had served alcohol to a "noticeably intoxicated person." This finding appears to be based on an admission in the "Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment and Brief in Support," that employees of the defendant, Tela Corporation, who were on duty the night Barnes was at the Red Dog, and who were in a position to view the area in which Barnes was drinking, all swore under oath that no patron of the Red Dog was served any beer while the patron was visibly or noticeably intoxicated. The Court of Appeals affirmed the trial court and this Court granted certiorari.
We must decide if summary judgment is proper where Copeland was unable to obtain a witness to testify that alcohol was served to a noticeably intoxicated person at the Red Dog during the time Barnes was drinking there. Summary judgment is appropriate only when there is no substantial controversy as to any material fact. Rule 13, Rules for District Courts of Oklahoma, Okla. Stat. tit. 12, ch. 2, app. (Supp.1998). The purpose of summary judgment is to avoid unnecessary jury trials, by allowing the trial court to look beyond the pleadings to various evidentiary materials to determine whether there is an issue of fact to be submitted to the
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