author: WINCHESTER, J.

text:
    2003 OK 52
    Patti BARBER, Defendant/Appellant/Cross-Appellee, v. Gary D. BARBER, Jr., Plaintiff/Appellee/Cross-Appellant, and Bonita Barber and Gary Barber, Sr., Interveners.
    No. 93,086.
    Supreme Court of Oklahoma.
    May 20, 2003.
    Rehearing Denied Sept. 8, 2003.

      Gerald J. Lovoi, Tulsa, OK, for Defendant/Appellant/Cross-Appellee Patti Barber.
    M. Jean Holmes, Michael James King, Winters, King & Associates, Inc., Tulsa, OK, and Sherrie Thompson McAllister, Harris, McMahan & Peters, P.C., Tulsa, OK, for Gary D. Barber, Jr., Plaintiff/Appellee/Cross-Appellant.
    Sean McKee, Tulsa, OK, for Bonita Barber and Gary Barber, Sr., Interveners.
   WINCHESTER, J.

{1 This matter concerns the right of a biological mother to dispute the presumption of paternity created by 10 0.8.2001, § 2(A)(1), pursuant to 10 0.8.2001, § 3, and the trial court's order awarding visitation with the biological mother's son to third parties, to-wit: his mother's former spouse and the former spouse's parents. Today we address whether the Court of Civil Appeals erred in its application of equitable estoppel to preclude the biological mother from disputing paternity, even though she complied with the provisions set forth in 10 0.$.2001, § 3 to contest paternity. We hold in the affirmative. The opinion of the Court of Civil Appeals is vacated. We further hold that the trial court erred when it awarded visitation rights with the biological mother's son to third parties, specifically, the biological mother's former spouse and the former spouse's parents. This case is remanded to the trial court for further proceedings consistent with today's pronouncement. The record before the Court establishes the following relevant facts.

FACTS AND PROCEDURAL HISTORY

T2 The parties, Defendant/Appellant/Cross-Appellee Patti Barber, (hereinafter "Biological Mother") and Plaintiff/Appel-lee/Cross-Appellant Gary D. Barber, Jr., (hereinafter "Husband") were married in 1989 and a daughter was born of the marriage. Custody and visitation rights concerning the parties' daughter is not at issue herein. Custody and visitation rights concerning a son, born to Biological Mother after she was impregnated by another man, form the basis for the paternity issue presented herein. At the time Biological Mother became pregnant with this second child, she and Husband had separated. Subsequently, they reconciled. The son was born March 29, 1994. The record establishes that Biological Mother's Husband knew he might not be the father of Biological Mother's son, even during Biological Mother's pregnancy. Biological Mother allowed Husband's name to be placed on her son's birth certificate. The record establishes that the parties agreed they would rear Biological Mother's son together. Husband filed for divorce when Biological Mother's son was approximately nineteen months old. After awarding temporary custody of both children to Biological Mother, the trial court determined Biological Mother and Husband were unfit and placed the children with Husband's parents, who are the daughter's paternal grandparents but who are unrelated to Biological Mother's son. Biological Mother contested paternity under 10 0.8.2001, § 3 , within the two year period provided for doing so under the statute. The trial court ordered DNA testing, over Husband's objection that was based upon the presumption of paternity set forth in 10 0.8. 2001, § 2(A)(1) . The record reflects that the DNA testing established Husband was not the Biological Mother's son's biological father. The trial court awarded custody of both children to Biological Mother, and set visitation rights for Husband and Husband's parents with both children. The record reflects that Biological Mother objected to Husband's and Husband's parents' visitation rights with her son, throughout the trial court proceedings on the basis that Husband was not her son's biological father. She raises this visitation issue on appeal.

T3 Husband asserts Biological Mother is estopped from challenging paternity or that he should be treated as her son's father under a theory of "equitable parenthood," or "equitable adoption" or in Biological Mother's son's best interest. Biological Mother contends that she should not be forced to allow her son to have a relationship with Husband and his parents, since Husband is not her son's biological father. She also contends her son's best interest is met by disallowing Husband access to him.

14 The Court of Civil Appeals, Division III, applied the principle of equitable estop-pel to prevent Biological Mother's timely challenge to the marital presumption contained in 10 0.$.2001, § 2(A)(1). The court held that the trial court improperly allowed Biological Mother to challenge paternity. In a published opinion, it reversed the trial court's order and remanded with instructions to reconsider custody, visitation and child support issues concerning Biological Mother's son.

STANDARD OF REVIEW

15 The issues before us arise from the court's ruling on matters of law, to-wit: whether Biological Mother was equitably es-topped from contesting paternity, and whether Husband and Husband's parents were entitled to visitation rights with the son even though Husband is not the biological or adoptive father. We note that were the "best interests of the child" a consideration, then the issue would become a fact question, dictating a different standard of review. However, since both of these issues are matters of law, our review is de novo. "An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 456, n. 30. Upon de novo review, we hold that the principle of equitable estoppel is not applicable to prevent a timely challenge to the marital presumption.

CHALLENGES TO THE MARITAL PRESUMPTION

16 The statutory language of § 2(B) is clear that the marital presumption of paternity may be challenged under § 3 by Biological Mother within two years of her son's birth. The statute does not reference the common law principle of equitable estop-pel in the context of an analysis regarding whether the presumption should be challenged. Indeed, the common law does not make provisions for paternity suits, and we decline to call upon an equitable tenet of the common law to carve an exception to the legislature's clear intent in this regard. Challenges to the marital presumption under 10 0.8.2001, § 3 do not involve a tort and are not civil actions at law or suits in equity, but rather are special statutory proceedings for the purpose of challenging the marital presumption of paternity and for ascertaining the paternity of a child. " 'Special proceedings' is a term used to distinguish litigation that is not governed by the general regime of pleadings." Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶ 7, 64 P.3d 1113, 1115. They are distinguished from other civil actions by the manner of pleading, practice and procedure prescribed by the law. Id. Accordingly, these actions to challenge the marital presumption are statutory in nature, created by the legislature and embodied in 10 O.S.2001, § 3. The common law theory of promissory estoppel has no place in this kind of special proceeding.

T7 The theory of promissory estoppel is grounded in the Restatement (Second) of Contracts $ 90 and is incorporated into Oklahoma common law. Russell v. Board of County Commissioners, Carter County, 1997 OK 80, 1 27, 952 P.2d 492, 503. Section 90 of the Restatement (Second) of Contracts states in relevant part:

"(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. # ook *

We articulated the elements necessary to establish promissory estoppel in Russell v. Board of County Commissioners, Carter County, 1997 OK 80, ¶ 27, 952 P.2d 492, 508, to-wit:

1. a clear and unambiguous promise;
2. foreseeability by the promisor that the promisee would rely upon it;
3. reasonable reliance upon the promise to the promisee's detriment;
4. hardship or unfairness can be avoided only by the promise's enforcement.

T8 In the case at bar, Husband's theory of promissory estoppel seems to arise from his contention that he and Biological Mother, at some point prior to his request for divorce, agreed to rear Biological Mother's son "together." Even if we were at liberty to consider the application of promissory estoppel to the instant facts, which we are not, it is apparent that the four elements we set forth in Russell, supra, are not present herein. No factual disputes exist to open the door for a theory of promissory estoppel, were it possible to do so. The record reflects that Husband filed for divorce from Biological Mother, thus rendering it impossible for the parties to rear her son "together." Indeed, Husband commenced the very action that precluded Biological Mother from fulfilling her half of their "promise" to rear her son as though he were Husband's. It cannot be said that Husband relied on this joint promise to his detriment. The record does not contain any reference to hardship or unfairness to Husband in allowing Biological Mother to contest the marital presumption, because he in fact is not the biological father of her son. Further, the record is undisputed that Biological Mother challenged paternity within the statutory two-year time period. The record further reflects it is undisputed that the DNA testing established Husband is not the biological father of Biological Mother's son. Accordingly, we determine Husband's argument that Biological Mother is equitably estopped from contesting paternity lacks merit.

VISITATION ISSUES

"9 Biological Mother contends that because Husband is not the- biological father of son, he is not entitled to visitation rights, nor are Husband's parents, We agree. A parent's right to companionship, care, custody and management of her child is a basic fundamental right protected by the United States and Oklahoma Constitutions. Leake v. Grissom, 1980 OK 114, 18, 614 P.2d 1107, 1110. Visitation rights in the absence of a statute derive from the right to custody. "A parent is under no legal obligation to permit a child to visit its grandparents in the absence of a statute." Id. The longing of Husband herein, and Husband's parents, for the company of Biological Mother's son may not be translated into a legal right in the absence of a statute that dictates visitation or in the absence of a pre-existing legal adoption by Husband of Biological Mother's son. No legal authority exists to compel Biological Mother to permit visits by Husband and Husband's parents. Indeed, we held in Leake, supra, that even biological paternal grandparents did not have the right to visit their grandchildren who had been adopted by the biological mother's husband; a fortiori, in the instant case, in which neither Husband nor Husband's parents are biologically or legally (through adoption) related to Biological Mother's son. We note that grandparent visitation recently was addressed by the United States Supreme Court in Troxel v. Granville, 580 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). At issue in Troxel was the constitutionality of Section 26.10.160(8) of the Revised Code of Washington, that allowed "any person" at "any time" to obtain visitation rights when such visitation was in the child's best interests. The Supreme Court invalidated the statute, holding it im-permissibly interfered with "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel, 530 U.S. at 66, 120 S.Ct. at 2060. Hence, our observation hereinabove that visitation rights, in the absence of a statute, derive from the right to custody. In the case at bar, the trial court awarded custody of the son and the other child, a daughter, to Biological Mother. That decision of the trial court is not before us. Only the issue regarding the trial court's award of visitation privileges with the son, awarded to Husband and Husband's parents, is before us. We hold upon de novo review that this award of visitation privileges with Biological Mother's son is not supported by statute or by the court awarded custody to Biological Mother. Indeed, it impinges upon Biological Mother's fundamental right to make decisions concerning the care, custody, and control of her son.

1 10 Therefore, we hold that the trial court erred when it awarded visitation rights with Biological Mother's son to Husband and Husband's parents. We also hold that the Court of Appeals erred when it applied principles of equitable estoppel to Biological Mother's sue-cessful challenge to the marital presumption of Husband's paternity. We determine that all of Husband's arguments in the instant matter lack merit. This case is remanded to the trial court for further proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART AND CASE REMANDED FOR PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT.

CONCUR-WATT, C.J., and HODGES, LAVENDER, KAUGER, and BOUDREAU, JJ.

CONCUR IN PART; DISSENT IN PART-OPALA, V.C.J., HARGRAVE and SUMMERS, JJ.

      . 10 0.$.2001, § 3 provides:
      Persons entitled to dispute presumption-Time limit
      A. The presumption of paternity created pursuant to Section 2 of this title may be disputed only by the husband or wife, the putative father or their descendants. Paternity may be established pursuant to Section 70 of this title.
      B. If a child is born during the course of the marriage and is reared by the husband and wife as a member of their family without disputing the child's legitimacy for a period of at least two (2) years, the presumption cannot be disputed by anyone.

      . 10 0.$.2001, § 2(A)(1) provides:
      Presumption of paternity
      A. Except as otherwise provided by Section 215 of Title 84 of the Oklahoma Statutes, a man is presumed to be the natural father of a child for all intents and purposes if:
      1. He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within ten (10) months after the termination of the marriage by death, annulment, declaration of invalidity, divorce or dissolution, or after a decree of separation is entered by a court. A child born before wedlock becomes legitimate by the subsequent marriage of his parents even if the marriage is, was or could be declared invalid. Any child born within the ten-month period specified in this subsection which is born during a subsequent marriage to another person shall be presumed to be the legitimate child of that subsequent marriage;
      2. Before the child's birth, he and the child's natural mother have cohabitated and the child is born within ten (10) months after the termination of cohabitation. As used in this paragraph, the term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law;
      3. While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child for a period of at least two (2) years;
      4. The United States Immigration and Naturalization Service made or accepted a determination that he was the father of the child at the time of the child's entry into the United States and he had the opportunity at the time of the child's entry into the United States to admit or deny the paternal relationship; or
      5. Statistical probability of paternity is established at ninety-five percent (95%) or more by scientifically reliable genetic tests, including but not limited to blood tests.
      B. The presumption of paternity created pursuant to this section may be disputed pursuant to Section 3 of this title.

      . We reject Husband's suggestion that 10 O.S. 2001, § 70(B)(4) supports application of equitable estoppel in this matter. Section B sets out four ways to establish paternity. Section (B)(4) provides that paternity may be established "as otherwise provided by law." We reject the notion that principles of equitable estoppel may be injected under this blanket language to defeat a successful challenge to Husband's paternity. Husband fails to cite any authority for this argument, and indeed no authority exists for such an interpretation. We also note that the Court of Civil Appeals did not rely upon such an argument when it applied the principles of equitable estoppel in this cause.


source: Caselaw Access Project

author: BOUDREAU, J.

license: Public Domain

text:
    2003 OK 53
    Heather V. EVERS and Derek Evers, Plaintiffs/Appellants, v. FSF OVERLAKE ASSOCIATES, an Oklahoma Limited Partnership; D.G.M. Overlake, Inc., a suspended Delaware Corporation; Trust Property Management, Inc., an unincorporated or unregistered association, Defendants/Appellees.
    No. 97470.
    Supreme Court of Oklahoma.
    May 20, 2003.

      John D. Mashburn, Oklahoma City, OK, for Plaintiffs/Appellants.
    Gary S. Chilton and Heidi Jo Long, Oklahoma City, OK, for Defendants/Appellees.
   BOUDREAU, J.

11 Heather and Derek Evers filed suit against the owners and managers of an apartment complex in Bethany, Oklahoma, as well as other unnamed defendants, who resided in the adjoining apartment during the operation of a methamphetamine drug lab. The Evers' petition alleges that in March 2000, they along with other tenants began to notice strong smells in and around the apartment building. Shortly thereafter, the Evers and other tenants began to complain about the smells to the management and owners of the apartment complex.

12 After the advent of fumes, Heather Evers claims she became ill with headaches, dizziness and a variety of debilitating symptoms, which eventually made it impossible for her to go to work and resulted in her spending even more time in the apartment. In May 2000, approximately two months after the initial complaints began, Heather says she once again complained to the apartment staff. In response, an apartment security officer was sent to investigate the origin of the smell. The security company officer believed the smell to be the result of illegal drug activity. The police raided the apartment adjoining the Evers' apartment and discovered a methamphetamine drug lab in the bathroom, which shared a wall and ventilation system with the Evers apartment. After the police raid, the Evers terminated their lease.

T3 In their petition, the Evers assert that the materials used to manufacture the methamphetamine are highly toxic and carcinogenic. The Evers allege the owners and management personnel of the complex knew or should have known of the dangerous condition posed by the illegal manufacture of drugs in the adjacent apartment and negligently failed to warn or protect the tenants of the danger. The Evers claim these failures resulted in Heather becoming very ill, with residual reproductive complications and increased risk of future illness, such as cancer.

[4 Defendants, FSF Overlake Associates, D.G.M. Overlake, Inc. and Trust Property Management, moved for summary judgment. In their summary judgment motion, Defendants argued they owed no duty to the Evers to maintain an apartment community free from eriminal activity and even if a duty was owed, the criminal acts of third parties caused the Evers harm and not any negligence on the part of the property managers or owners.

15 The trial court granted Defendants' motion for summary judgment. Plaintiffs moved for a new trial. This motion was denied and Plaintiffs appealed. The Court of Civil Appeals, determined the Evers failed to provide sufficient evidence of injury and failed to adequately link any alleged injuries to exposure to methamphetamine or its components. As a result, the Court of Civil Appeals determined the trial court did not err in granting the summary judgment. The Evers sought certiorari to this Court, asserting that the Court of Civil Appeals affirmed Defendants' summary judgment based upon an issue not tried or raised at the court below, namely the extent and cause of the Evers' physical injuries.

I. Standard of Review

16 We note this case comes on appeal from Plaintiffs' motion for a new trial. The standard of review on appeal in examination of the trial court's denial of a new trial motion is abuse of discretion. Jones, Givens, Gotcher & Bogan v. Berger, 2002 OK 31, 46 P.3d 698, 701; Austin v. Cockings, 1994 OK 29, 871 P.2d 88, 34. However, in this case the propriety of the trial court's denial of the new trial motion rests on the correctness of the trial court's grant of summary judgment. Therefore, we must examine by de novo review the trial court's decision on summary judgment in order to determine whether the trial court abused its discretion in denying the new trial motion. See Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455.

II. Content of Defendants' Summary Judgment Motion

T7 FSF Overlake Associates, D.G.M. Ov-erlake, Inc. and Trust Property Management, Inc., the Defendants, owners and managers of the apartment complex, filed their motion for summary judgment arguing that 1) they owed no duty to the Evers to maintain a crime-free apartment environment, 2) even if they owed a duty, the Evers injuries were caused by the intentional erimes of third parties, which was a supervening cause of any alleged injuries, and 3) they could not be liable for misrepresentation, because Plaintiffs did not rely on any allegedly false statements by any of the Defendants.

18 In support of this motion, Defendants set out the following "uncontroverted facts":

1. In May 2000, the Overlake Apartments, located at 7902 N.W. 21st Street in Bethany, Oklahoma, were owned by FSF Overlake Associates;
2. In May 2000, the Overlake Apartments were managed by Trust Property Management, Inc.;
8. The Plaintiffs resided in Unit E-20 at the Overlake Apartments from July 1999 through May 22, 2000;
4. Unit E-19, the apartment adjacent to Unit E-20, was raided by the Bethany Police on May 18, 2000, and an illegal methamphetamine laboratory was discovered;
5. The parties arrested in connection with the methamphetamine laboratory did not have prior criminal records;
6. Following the police raid, the plaintiffs immediately gave notice of termination of lease and moved from the Overlake Apartments;
7. After the police raid, the plaintiffs resided in a different apartment unit until they were able to physically move from the Overlake Apartment community;
8. Beginning December 1, 1999, at the latest, Overlake requested all residents to sign a "Lease Addendum for Drug Free Housing".

III. Defendants' Motion Does Not Entitle Them to Judgment Through Summary Process

19 A motion for summary judgment is a request for an adjudication on the merits of the case. It is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and the party moving for summary judgment is entitled to judgment as a matter of law. Markwell v. Whinery's Real Estate, Inc., 1994 OK 24, 869 P.2d 840, 845. The moving party has the burden to show there is no substantial controversy as to any material fact. Bowers v. Wimberly, 1997 OK 24, 983 P.2d 312, 315. In demonstrating that no material fact exists, the moving party must present a concise written statement of the material facts as to which the movant contends no genuine issue exists. Rule 18, Rules for the District Courts of Oklahoma, 12 0.S.2.2001, Ch. 2, app. 1; Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 984. The movant must attach to the statement copies of the acceptable evidentiary substitutes relied upon to support the motion. Finally, the movant must offer a statement of argument and authority demonstrating why the undisputed material facts entitle the movant to judgment as a matter of law. See Rule 18, Rules for the District Courts of Oklahoma, 12 ©.9.2001, Ch. 2, app. 1. This burden exists whether or not any counter statement is filed by the non-moving party. Union Oil Co. v. Bd. of Equalization, 1996 OK 40, 918 P.2d 1330, 1334.

110 In arguing they are entitled to summary judgment, Defendants assert that they owed no duty to the Evers to maintain a crime-free apartment environment. They contend that the obligation to keep a unit "safe" is not intended to make the landlord the guarantor of the tenant's safety and does not create an obligation on the landlord to insure against criminal attack. While a landlord does not guarantee tenant safety, a landlord who retains possession of a portion of the leased premises, for use in common with other tenants, must use reasonable care to keep that portion of the premises over which he has maintained control in a safe condition. See Staples v. Baty, 1952 OK 98, 206 Okla, 288, 242 P.2d 705, 707 (tenant injured when a common use staircase collapsed underneath her); see also Loy v. Dworman, 1986 OK 85, 782 P.2d 455, 459 (court rejected concept that the landlord/tenant relationship itself gives rise to a duty to guard the tenant's safety, but found landlord who failed to repair faulty lock was liable for injuries resulting from tenant's rape, because the tenant requested the lock be repaired and repair of the locks was in exelusive control of landlord).

111 In their petition, Plaintiffs claim that Defendants have retained control over a portion of the leased premises, specifically the ventilation system (heat and air), for use in common with other tenants. They claim that Defendants knew or should have known of a dangerous condition affecting the ventilation system posed by the manufacture of drugs in the adjacent apartment. They argue that Defendants breached their respective duties to use reasonable care to maintain the ventilation system by failing either to remove or to warn Plaintiffs of the dangerous condition posed by the system.

112 Whether a negligent defendant stands in such a relationship to a plaintiff that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff is a question for the court. Wofford v. Eastern State Hosp., 1990 OK 77, 795 P.2d 516. In their petition, Plaintiffs have alleged specific facts, which if true, would give rise to a duty on the part of the Defendants. The statement of uncontrovert-ed facts offered by the Defendants fails to offer any facts to counter the specific factual allegations made by the Plaintiffs. While the statement acknowledges the presence of criminal activity in the apartment adjoining that of the Plaintiffs', this Court has held that the mere presence of criminal activity does not absolve the landlord of all duty with regard to the leased premises. Lay v. Dwor-man, 732 P.2d at 459-60. On their face, the uncontroverted facts are insufficient to allow the trial court to draw any legal conclusion on the issue of duty in this case.

113 Second, in examining Defendants supervening cause argument, we note a supervening cause is a legal mechanism that breaks the chain of causation between an original actor and the injury to a plaintiff. A supervening cause effectively shields the original actor from liability, because it renders the original actor's breach of duty incidental or inoperatively remote or one which the original actor could not reasonably have foreseen or anticipated. The test for supervening cause is threefold: 1) the supervening act must be independent of the original act; 2) the supervening act must be adequate of itself to bring the result; and 3) the supervening act must not be reasonably foreseeable. See Thompson v. Presbyterian Hosp., Inc., 1982 OK 87, 652 P.2d 260, 264; Strong v. Allen, 1989 OK 17, 768 P.2d 369, 371.

14 Again, Defendants' statement of material facts, alleged to be undisputed, does not offer any facts upon which the defense of supervening cause can be decided as a matter of law. In fact, a review of Plaintiffs' petition casts doubt on whether the Defendants can be considered original actors for purposes of applying the defense. In the petition, Plaintiffs' make factual allegations against Defendants in which Defendants' actions are subsequent and secondary to the criminal acts which occurred in the adjoining apartment. These include allegations that Defendants failed to investigate, detect or repair the methamphetamine release in the air vents or breeze-ways. Defendants' statement fails to address how the defense of supervening cause can be applied in cireum-stances where their alleged negligence is not an original act, but one which is secondary to the advent of the criminal activity.

T15 Even in those alleged cireumstances where Defendants' negligence arguably precedes the methamphetamine production, where for example Plaintiffs allege Defendants improperly sereened prospective tenants, Defendants' statement does not present uncontroverted facts sufficient to address the three-prong test that shields an original actor from liability. There is simply not enough information in the "uncontroverted facts" offered to support a finding that the criminal activity of the adjoining tenants was an effective supervening cause that shields the Defendants from liability.

T16 As a final argument, Defendants contend that Plaintiffs did not rely on any alleged misrepresentations made by the Defendants. While reliance is an indispensable element of a misrepresentation or deceit claim, Defendants' statement of material facts falls far short of presenting facts that would allow a court to rule on the issue as a matter of law. State ex rel. Southwestern Bell Tel. Co. v. Brown, 1974 OK 19, 519 P.2d 491, 495. The statement fails to address the nature of Plaintiffs' claimed misrepresentation, its timing and the reasons why Plaintiffs did not rely upon it. Defendants' "uncontro-verted facts" do not support a conclusion as a matter of law that Plaintiffs did not rely upon Defendants' alleged misrepresentations.

17 Summary process provides a method of summarily terminating a case, or eliminating from trial some of its issues on the merits of a claim, where only questions of law remain. Myers v. Lashley, 2002 OK 14, 44 P.3d 553, 562. The summary judgment motion offered by Defendants in this case falls short of demonstrating that only questions of law remain to be decided in this case. The trial court erred when it entered summary judgment in favor of Defendants.

IV. Court of Civil Appeals Decision

118 In reviewing a judgment entered through the summary process, "appellate tribunals must equally bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant." Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455-456, This review is completely confined to the content of the trial court's summary judgment record. Id. An appellate court's determination of summary relief, like the trial court's, must be premised upon the record before the court and not materials that could be assembled later. Hadnot, 826 P.2d at 982 n. 10. An appellate court cannot take notice of any document or evidentiary material which the trial court did not have in deciding the summary judgment motion. Manley v. Brown, 989 P.2d at 457. In addition, it is not the duty of the appellate court on review to make first-instance determinations of disputed law or fact issues. Bivins v. State of Oklahoma, ex rel. Oklahoma Memorial Hospital, et al., 1996 OK 5, 917 P.2d 456, 464. An appellate court "cannot craft an initial decision upon an wntried question and then direct that it be followed on remand." Id. (emphasis in original).

119 The Court of Civil Appeals upheld Defendants' summary judgment based upon its analysis that Plaintiffs did not support their claims of injury and failed to establish a sufficient link between exposure to methamphetamine or its components and their injuries. However, factual issues regarding the nature, cause and existence of Plaintiffs' injuries were not addressed by the motion for summary judgment or considered by the trial court below. The trial court simply did not examine whether Plaintiffs suffered injuries and whether they are the result of methamphetamine exposure. Therefore, the appellate court should not have engaged in such an examination in the first instance.

20 The Court of Civil Appeals opinion in essence affirmed the summary judgment on a theory not before the trial court. Accordingly, we must vacate the opinion. See Bivins, 917 P.2d 456.

V. Conclusion

21 The trial court erred when it entered summary judgment in favor of Defendants. The summary judgment motion offered by Defendants in this case falls short of demonstrating that only questions of law remain to be decided in this case.

The Court of Civil Appeals erred when it examined matters outside the record and outside those considered by the trial court. Accordingly, the opinion of the Court of Civil Appeals is vacated.

123 CERTIORARI PREVIOUSLY GRANTED. OPINION OF THE COURT OF CIVIL APPEALS VACATED. JUDGMENT OF THE TRIAL COURT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

WATT, C.J., HODGES, LAVENDER, and KAUGER, JJ., CONCUR.

OPALA, V.C.J., concurs in part and dissents in part.

HARGRAVE, SUMMERS, WINCHESTER, JJ., dissent.

      . It is only after the moving party meets this burden that the non-moving party must then demonstrate the existence of a material fact that would justify a trial of that issue. Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138, 1143; Bowers v. Wimberly, 1997 OK 24, 933 P.2d 312, 315. There is considerable latitude given a non-moving party and, in fact, the party against whom a summary judgment motion is directed can use the movant's own evidentiary materials to establish the existence of a controverted fact. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 984-85.

      . A landlord has a basic duty to "[mlake all repairs and do whatever is necessary to put and keep the tenant's dwelling unit and premises in a fit and habitable condition" and "[mJaintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by him{.]" 41 0.$.2001, § 118(A)(2)-(3). This Court determined that keeping a unit "safe" is not intended to make the landlord the guarantor of the tenant's safety and does not create an obligation on the landlord to insure against criminal attack. Cordes v. Wood, 1996 OK 68, 918 P.2d 76, 78-79; Mengel v. Rosen, 1987 OK 23, 735 P.2d 560, 562.

      . Defendants stress that Plaintiffs moved from their apartment immediately after the police raid on the adjoining unit. A reading of Defendants' argument suggests that they take the position that Plaintiffs could not have relied upon any alleged statements made by the Defendants concerning the safety of their apartment, because they did not return to it after the statements were made. However, Plaintiffs' assertions regarding misrepresentations about the safety of the apartment were not confined to the aftermath of the police raid. Plaintiffs indicate in their pleadings that Defendants knew or should have known of the dangerous qualities of the ingredients emanating from the adjoining apartment and did nothing to warn tenants of those dangers. In other words, Plaintiffs assert that Defendants failed to warn where they owed a duty to do so. State, ex rel. Oklahoma Bar Ass'n v. Lloyd, 1990 OK 14, 787 P.2d 855; Phillips v. Ball, 1960 OK 145, 358 P.2d 193, 197 (where one has a duty to speak, but remains silent, there may be constructive fraud); Bean v. Harris, 1923 OK 779, 93 Okla. 10, 219 P. 300 (when there is a duty to speak and the actor does not, it is equal to concealment); Silk v. Phillips Petroleum Co., 1988 OK 93, 760 P.2d 174. In any event, a statement which offers only one undisputed fact on the issue of reliance, i.e. that Plaintiffs moved from their apartment immediately after the police raid, does not warrant the entry of adjudication on this issue.


author: SUMMERS, J.

text:
    2003 OK 57
    Joshua MORAN and Ruth Moran, as parents and next friends of D. M., a minor, Plaintiffs/Appellants, v. The CITY OF DEL CITY, a municipal corporation, Defendant/Appellee.
    No. 97,346.
    Supreme Court of Oklahoma.
    June 3, 2003.
    As Corrected June 17, 2008.
    Rehearing Denied Sept. 15, 2008.

      Gary C. Bachman, Kenyatta R. Bethea, Holloway, Dobson & Bachman, Oklahoma City, OK, for Plaintiffs/Appellants.
    Robert M. Anthony, Robert S. Lafferran-dre, Pierce, Couch, Hendrickson, Baysinger & Green, Oklahoma City, OK, for Defendant/Appellee.
   SUMMERS, J.

T1 The primary issue on certiorari is whether an exemption from tort liability in the Governmental Tort Claims Act, 51 0.8. Supp.2000 § 151 et seq., shields a political subdivision from liability based upon an allegation that the subdivision did not maintain its real property in a safe condition. We conclude that the "inspection powers or functions" exemption of the Governmental Tort Claims Act is not so broad as to include any act of a political subdivision that is designed to obtain knowledge of a condition or cireum-stance of its real property.

T 2 Two children were crossing a vacant lot when one fell into an uncovered sanitary sewer manhole. The other child went to an adjacent home to obtain help from adults. After one adult was unable to reach the outstretched arms of the child, another adult, Mr. Smart, used a rope to pull the child from the hole.

13 Mr. Smart described what he saw for the purpose of an affidavit used by Del City:

I noticed that the manhole lid and rim were gone, and that the concrete column of the manhole had been smashed down so that it was almost flush with the ground.
A young boy (who was later identified to me as D.... M ....) was standing at the bottom of the manhole. He was chest-deep in sewer water, which smelled terrible.

This manhole is located in a vacant grassy lot that is owned and maintained by Del City. The lot is near athletic facilities used by children.

14 The parents of the child brought an action against the City of Del City. Del City filed a motion for summary judgment with a brief and affidavits. Del City argued that 1) the City was not negligent because the cause of the child's injuries was the intentional act of an unknown vandal, and 2) that the cause of action against the City was barred by the Governmental Tort Claims Act, (GTCA), 51 00.98.2001 § 151 ef seq. Parents responded with their brief and affidavits. Del City responded and challenged affidavits submitted by the parents. The District Court granted Del City's motion for summary judgment without stating the specific grounds upon which the judgment was based.

T5 The parents appealed and urged as error that questions of fact existed so as to preclude summary judgment. They included under this alleged error various assertions relating to whether Del City violated certain standards of care. The Court of Civil Appeals concluded that "The competing summary judgment materials and affidavits demonstrate substantial controversy over material facts concerning Moransg' cause of action based upon the City's negligence." The appellate court concluded that the City's defense of supervening. cause could not be the basis of summary judgment because of disputed facts on what the City knew, or should of known, about the condition of the manhole prior to the child's injuries. But the appellate court concluded that summary judgment was nevertheless proper, because the claim that the City negligently failed to inspect and maintain the manhole was barred by 51 O.S$.8upp.2000 § 155(13) of the GTCA. The parents then sought certiorari in this Court, claiming that Del City failed to properly maintain the lot and that their claim for relief was not barred by the GTCA.

16 Governmental immunity of a subdivision of the State is waived only to the extent and in the manner provided in the GTCA. Salazar v. City of Oklahoma City, 1999 OK 20, 976 P.2d 1056, 1066, quoting, 51 O.S.1991 § 152.1(B). A political subdivision shall be liable for loss resulting from its torts or the torts of employees committed within the seope of employment where private persons or entities would be lable under the laws of this state. Walker v. City of Moore, 1992 OK 73, 887 P.2d 876, 878, citing, 51 O.S.1991 § 153(A). However, the GTCA makes certain exemptions from this liability. 51 § 155. Included therein is the one urged by Del City and applied by the Court of Appeals.

§ 155. Exemptions from liability

The state or a political subdivision shall not be liable if a loss or claim results from:
. 18. Inspection powers or functions, including failure to make an inspection, review or approval, or making an inadequate or negligent inspection, review or approval of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety, or fails to conform to a recognized standard;

51 0.9.Supp.2000 § 155(13).

On certiorari the parents make a distinction between inspection powers performed by Del City and "maintenance of the vacant lot" owned by Del City. Parents are correct.

T7 We first note that § 155(18) makes no reference to a political subdivision's maintenance of property. But § 155 does expressly include exemptions from liability for claims arising from the "maintenance" of a prison, jail, correctional facility, juvenile detention facility, or state highway system. 51 O.S.Supp.2000 § 155(24), (25), (30) The interpretation of Del City is that the language of § 155(13): "failure to make an inspection, review or approval, or making an inadequate or negligent inspection" must include acts of maintenance that would, or should, result from inspections performed by a political subdivision.

%8 A statute must be read to render every part operative and to avoid rendering parts thereof superfluous or useless. In re Baby Girl L., 2002 OK 9, ¶ 21, 51 P.3d 544, 554, We construe the parts of the GTCA as consistent parts of a whole. Pellegrino v. State ex rel. Cameron University ex rel. Board of Regents of State, 2008 OK 2, 116, 63 P.3d 535, 540. Del City's construction of § 155(13) so as to include maintenance functions within the rubric of "inspection powers and functions" would make the "maintenance" provisions of § 155(24), (25), and (80) to be superfluous. Thus, the phrase "(inspection powers or functions" does not include the maintenance of property.

19 Del City relies upon Brewer v. Independent School District No. 1, 1993 OK 17, 848 P.2d 566, for the proposition that the "inspection exemption" from liability applies when a political subdivision fails to keep its property in a reasonably safe condition. In Brewer two of the allegations were that the school district negligently failed to keep its premises in a reasonably safe condition, and that it failed to inspect its premises at proper intervals. Id. 848 P.2d at 570. We said that no liability could be predicated on the latter allegation relating to inspection because of § 155(13). Id. However, summary judgment on the former allegation of keeping the premises in a safe condition was not addressed in the opinion as barred by § 155(18). Instead, the parties and the Court addressed the condition of the property as it related to the injured person's status as a trespasser, licensee or invitee. Id. 848 P.2d at 571. We said

Even in the absence of the attractive nuisance doctrine, the School still had a duty to Kristin either as a trespasser, licensee or invitee, Different duties are owed depending on the status of the injured person. See Good v. Whan, 335 P.2d 911 (Okla.1959).
The School concedes that Kristin was a licensee. Brief of Appellee, at 7. Licensee status is accorded to those individuals who enter onto another's land for his or her own benefit, interest or pleasure under such cireumstances that the landowner is presumed to be aware of the person's presence there. Good, 385 P.2d at 918, 914. An owner is charged with exercising ordinary care to avoid injuring a licensee, which is that degree of care a person of ordinary prudence would exercise under the facts and cireumstances of the particular case. Good at 914. As a licensee, the School owed Kristin the duty to use ordinary care with regard to any defects or conditions in the nature of hidden dangers which were known or should have been known to the School. Id. at 913; see also Henryetta Constr. Co. v. Harris, 408 P.2d 522, 525 (Okla.1965).

Brewer, 848 P.2d at 571, emphasis added.

Thus, while we said that a claim couched in the language of a "failure to inspect" the premises was barred by § 155(13), we nevertheless considered potential liability based upon what the defendant knew or should have known about the premises. The political subdivision's premises liability in tort is not controlled solely by the "failure to inspect" exemption.

10 Del City also relies upon an opinion of our Court of Civil Appeals that cites Brewer, Reynolds v. Union Public Schools, 1998 OK CIV APP 101, 976 P.2d 557. The Reynolds court concluded that "if the negligent maintenance is based on the failure to discover (inspect) or negligent inspection, then the school is exempt from lability." Reynolds, at 17, 976 P.2d at 558. That court reasoned that if the maintenance personnel should have discovered the dangerous condition and did not do so, then the plaintiffs claim was one for negligent inspection, and must fail due to § 155(18). But maintenance of property is not the same thing as inspection of property for § 155(18). A landowner may be liable for negligent maintenance of property irrespective of its inspection powers or functions. We now disapprove of Reynolds insofar as it would extend an inspection power or function in § 155(18) to include the simple act of a landowner in acquiring or not acquiring knowledge of the landowner's property.

111 The concept of a person's duty to discover facts, and to anticipate what might occur under the cireumstances, is involved, at some point, in all negligence cases. Negligence is sometimes defined by a person's duty to know certain facts and then guard against the consequences of them.

In negligence, the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable person in his position to anticipate them, and to guard against them.... [Risk is defined] as a danger which is apparent, or should be apparent, to one in the position of the actor.

Prosser and Keeton on the Law of Torts, 169, 170 (5th ed.1984), (material omitted, explanation and emphasis added).

The negligence standard describes a duty of what "should be apparent" and is merely another way of saying what the person "should know" for a circumstance. Whether these facts are part of foreseeability, and are made a part of defining a particular duty, or as an element of causation, is not important to the point that liability in many types of negligence cases involves an adjudication of what the defendant should have known.

One of the most difficult questions in connection with negligence is that of what the actor may be required to know.... He may be negligent in failing to look, or in failing to observe what is visible when he does look.

Prosser and Keeton on the Law of Torts, 182 (5th ed.1984), (material omitted and emphasis added).

This concept is found in the Restatement (Second) of Torts.

(2) The words "should know" are used throughout the Restatement of this Subject to denote the fact that a person of reasonable prudence and intelligence or of superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that such fact exists.

Restatement (Second) of Torts § 12(2).

This concept of creating liability based, in part, upon what the person, should know or should discover, is not foreign to our tort jurisprudence in general, or tort claims against the State in particular.

112 The exercise of ordinary care in many cireumstances requires a person to be aware of facts relating to a thing or a particular cireumstance. An exemption arising from an "inspection power or function" cannot include becoming aware of cireumstances in a general sense without also bringing many types of negligence cases within the class of exempted claims. We thus decline to follow the Reynolds analysis for the meaning of "inspect" in § 155(13). Were we to hold otherwise we would put in doubt the viability of every GTCA claim based upon what a defendant should have known. Such an interpretation would expand the application § 155(18) to the point that many other provisions of $ 155 would be superfluous.

113 Our conclusion is buttressed by the fact that § 155(18) says that a state or a political subdivision shall not be liable if a loss or claim results from inspection powers or functions. Governmental entities possess governmental powers and governmental functions. Section 1565 refers to legislative functions, § 155(1); judicial, quasi-judicial, or prosecutorial functions, § 155(2); licensing powers or functions, § 155(12); and inspection powers or functions, § 155(18). 51 0.S8.8upp.2000 § 155. The GTCA speaks in terms of a power or function, and not conduct to acquire knowledge.

1 14 A particular inspection power or funetion is not necessarily synonymous with a particular act of checking something out. For example, in State v. Chickasha Milling Co., 1987 OK 477, 71 P.2d 981, in the context of a tax ferret proceeding, the State invoked Okla. Const. Art. 2 § 28, and argued that it was authorized to inspect certain portions of defendant's business records. We explained that an inspection of records as part of adversary proceedings where the State is a party did not apply to an inspection as a result of an exercise of the State's constitutional visitorial powers. Id. 985-986.

115 We thus view § 155(13) as de-seribing the exercise of a particular governmental "power" or "function" and not a simple familiarization with one's own property. Governmental entities exercise inspection powers and functions in many contexts, but no particular governmental inspection power or function is at issue in this case. We thus vacate that portion of the opinion of the Court of Civil Appeals holding that $ 155(13) applies in this case to exempt Del City from liability.

116 On certiorari Del City also argues that § 155(6) exempts it from lability. Section 155(6) creates an exemption if the loss or claim results from "6. Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection;. ..." 51 O0.8.S8upp.2000 § 155(6). Del City states that one allegation is that it failed to investigate reports of vandalism involving the removal of manhole covers and thereby created a dangerous condition. Del City argues that the § 155(6) exemption is known as the "negligent investigation exemption" and that the claim against Del City is based upon an allegation of negligent investigation of criminal activity.

17 We have explained this exemption as follows:

Section 155(6) of the GTCA affords immunity to a governmental subdivision for claims that result from "the failure to provide, or the method of providing, police, law enforcement or fire protection." "Protection" serves as the key word for the textual analysis of the critical sentence quoted here from subsection 6. The exemption in that subsection is invocable when the tort arises while a municipality is rendering services that fall into some category of police protection, law enforcement protection or fire protection. In short, a governmental subdivision is not liable for deficiency of protective services extended by its police, law enforcement or fire fighting components.

Salazar v. City of Oklahoma City, 1999 OK 20, 126, 976 P.2d 1056, 1066, notes omitted. In Salazar we distinguished between providing protective services and carrying out law enforcement duties. Id. at 127, 976 P.2d at 1066. The exemption from liability applied to the former and not the latter.

1 18 The allegation against Del City is not that Del City was negligent in providing protection from criminal activity. Rather, it is an allegation that Del City, as an owner of real property, was a vietim of wrongful activity, and then did not reasonably remedy an unsafe condition on its property that resulted from the wrongful activity. Del City's reliance upon § 155(6) is misplaced.

{19 The Court of Civil Appeals (COCA) decided two issues in this matter. First, it decided that the City's defense of supervening cause could not be resolved by summary judgment procedure because of the existence of a substantial controversy over material facts. This issue was not presented on cer-tiorari, and we leave undisturbed that portion of the opinion by the Court of Civil Appeals.

[ 20 The Court of Civil Appeals also decided that the exemption of 51 O0.8.Supp.2000 § 155(13) applied. We have concluded on certiorari that § 155(18) does not apply, and we accordingly vacate that portion of the COCA opinion. Because the COCA opinion was released for publication and we have vacated those portions of that opinion on the immunity issue, we also withdraw the COCA opinion from publication.

121 The judgment of the District Court granting summary judgment to Del City is reversed, and the matter is remanded to that court for further proceedings consistent with this opinion, and consistent with the opinion of the COCA to the extent that it decided that a controversy of facts precluded summary judgment on Del City's defense of supervening cause.

T 22 WATT, C.J., OPALA, V.C.J., HODGES, KAUGER, and BOUDREAU, JJ., concur,.

23 LAVENDER, HARGRAVE, and WINCHESTER, JJ., dissent.

      . A supervening cause (or superseding cause) is a new, independent and efficient cause of the injury which was neither anticipated nor reasonably foreseeable. Akin v. Missouri Pacific R. Co., 1998 OK 102, 138, 977 P.2d 1040, 1054-1055. A supervening cause that will insulate the original actor from liability is based upon a three-prong test where the cause is: (1) independent from the original negligent act, (2) adequate in itself to bring about the relevant injury, and (3) reasonably unforeseeable. Akin, 1998 OK 102, at n. 81, 977 P.2d 1040.

      . We have said that provisions of the GTCA applicable in a particular controversy are those in effect when the alleged injuries occurred. Lykins v. Saint Francis Hosp., Inc., 1995 OK 135, 917 P.2d 1, 4. Cf. Ingram v. State, 1990 OK 2, 786 P.2d 77, 79, (analysis based upon the version of statute in effect when the injury occurred). The alleged injury in the case before us occurred on August 26, 2000. The version of § 155 in effect on that date is codified at 51 O.S.Supp.2000.

      . 51 O0.S.Supp.2000 § 155(24), (25), (30), (emphasis added):
      "24. Provision, equlpplng, operation or maintenance of any prison, jail or correctional facility, or injuries resulting from the parole or escape of a prisoner or injuries by a prisoner to any other prisoner; provided, however, this provision shall not apply to claims from individuals not in the custody of the Department of Corrections based on accidents involving motor vehicles owned or operated by the Department of Corrections;
      25. Provision, equipping, operation or maintenance of any juvenile detention facility, or injuries resulting from the escape of a juvenile detainee, or injuries by a juvenile detainee to any other juvenile detainee; ...
      30. Maintenance of the state highway system or any portion thereof unless the claimant presents evidence which establishes either that the state failed to warn of the unsafe condition or that the loss would not have occurred but for a negligent affirmative act of the state;"

      . We have recognized that "foreseeability"' is a term used in both defining a duty and as an element of proximate cause. Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 913 P.2d 1318, 1322. We have used "foreseeability" to describe an element of proximate cause. Dirickson v. Mings, 1996 OK 2, 910 P.2d 1015, 1019. We have also used "foreseeability'" in defining a duty, and as describing the zone of risk, ie., "whether the conduct 'creates a generalized and foreseeable risk of harming others."" Iglehart v. Board of County Commissioners of Rogers County, 2002 OK 76, ¶ 10, 60 P.3d 497, 502.
      In this case we need not participate in the debate on the extent to which foreseeability is involved in either the duty or causation elements of negligence. See, eg., Dorsaneo, Judges, Juries, and Reviewing Courts, 53 S.M.U. L.Rev., 1497, 1522-1525 (2000), (Dean Green argued that ""foreseeability" should be limited to foreseeability of harm and determined by the finder of fact, as opposed to a theory of risks used by the trial judge to determine the existence of a duty). Dor-saneo, Judges, Juries, and Reviewing Courts, 53 S.M.U. L.Rev., 1497, 1522-1525 (2000), (Dean Green argued that "foreseeability" should be limited to foreseeability of harm and determined by the finder of fact, as opposed to a theory of risks used by the trial judge to determine the existence of a duty). See also Green, Foreseeability in Negligence Law, 61 Colum. LRev. 1497, 1417-1418 (1961).

      . See, eg., Strubhart v. Perry Memorial Hosp. Trust Authority, 1995 OK 10, 903 P.2d 263, 273-274, (in certain circumstances a hospital exercising ordinary care should know of doctor's prior conduct); McGee v. Alexander, 2001 OK 78, ¶ 34, 37 P.3d 800, 808, (circumstantial evidence can be used to establish whether the vendor knew or should have known of the inebriate's visible or noticeable intoxication); Lockhart v. Loosen, 1997 OK 103, ¶ 13, 943 P.2d 1074, 1080, (a duty to warn another arises when a person knew or reasonably should have known of a dangerous condition); Edwards v. Basel Pharmaceuticals, 1997 OK 22, 933 P.2d 298, 300, (our products lability law generally requires a manufacturer to warn consumers of danger associated with the use of its product to the extent the manufacturer knew or should have known of the danger); Ingram v. Wal Mart Stores, Inc., 1997 OK 11, 932 P.2d 1128, 1130, (summary judgment was reversed because reasonable persons could differ as to whether owner of real property knew or should have known of a dangerous condition, or whether the property was checked often enough by owner's employees); Avard v. Leming, 1994 OK 121, 889 P.2d 262, 267, (a homeowner is liable for injuries to an invitee if evidence shows that the homeowner knew or should have known of a dangerous condition on the premises and failed to warn an invitee); Mistletoe Exp. Service, Inc. v. Culp, 1959 OK 250, 353 P.2d 9, 16, (court relied upon Restatement, Torts, § 302, Comment n, and its standard of what a person knows, or should know, about another, as such relates to a negligent hiring claim}.

      . For example, in an action against a State hospital we said that a psychiatrist has a duty to exercise reasonable professional care when discharging a mental patient, and to take reasonable precautions to protect potential victims when in accordance with the standards of his of her profession the therapist knows, or should know, that a patient's dangerous propensities present an unreasonable risk of harm to others. Wofford v. Eastern State Hospital, 1990 OK 77, 795 P.2d 516, 520.
      In Ingram v. State, 1990 OK 2, 786 P.2d 77, plaintiffs' action used a negligent entrustment theory, and they pled that defendants knew or "should have known" or "ought to have known" certain facts. Ingram, 786 P.2d at 80, 81. We reversed the dismissal order, and stated that "At a very minimum, she [plaintiff] has stated a claim for bodily injury that is founded on negligent entrustment of dangerous implements to the attacker, accomplished through unnamed State agents. . .." Ingram, 786 P.2d at 81.

      . Okla. Const. Art. 2 § 28: Corporate records, books and files.
      The records, books, and files of all corporations shall be, at all times, Hable and subject to the full visitorial and inquisitorial powers of the State, notwithstanding the immunities and privileges in this Bill of Rights secured to the persons, inhabitants, and citizens thereof.

      . Inspection of corporate records pursuant to visitorial power is a public right, existing in the State, and for the purpose of examining into the conduct of the corporation with a view to keeping it within its legal powers. Gilmer Oil Co. v. Ross, 1936 OK 548, 62 P.2d 76, 78-79.


author: HODGES, J.

text:
    2003 OK 64
    FIRST BETHANY BANK & TRUST, N.A., a National Banking Association, Plaintiff/Appellee, v. ARVEST UNITED BANK, a State Savings Bank, Defendant/Appellant.
    No. 97,310.
    Supreme Court of Oklahoma.
    June 24, 2003.
    As Corrected July 2, 2008.

      Margaret E. Travis, Kline, Kline, EHiott, Castleberry & Bryant, P.C., Oklahoma City, Oklahoma, and Peter G. Pierce, Bethany, Oklahoma, for Appellee.
    Mitchell D. Blackburn and Kiran A. Phan-salker, Conner & Winters, P.C., Oklahoma City, Oklahoma, for Appellant.
   HODGES, J.

I. ISSUE

T 1 The dispositive issue presented for our review is whether title 12A, section 9-812(4) of the 1991 Oklahoma Statutes, the law applicable to this appeal, allows an exception to section 9-812(5)'s first-to-file priority rule for a purchase money security interest (PMSI) in accounts receivable. It should be noted that the Oklahoma Commercial Code (OCC), which is based on the Uniform Commercial Code (UCC), was amended in 2001 to clarify that a PMSI in accounts receivable is not entitled under the current law to super-priority status. Okla. Stat. tit. 12A, § 1-9-824(a) (2001).

II FACTS

1 2 This case involves Article 9 of the OCC. Syntrix Financial Solutions, Inc. was in the business of factoring accounts receivable. "Factoring is the direct sale of accounts receivable at a discount." United States v. Drake, 982 F.2d 861, 868 (10th Cir.1991).

13 First Bethany Bank (First Bethany) loaned financing money to Syntrix. On March 20, 1997, First Bethany Bank perfected its security interest in Syntrix's existing and after-acquired accounts receivable, general intangibles, and the proceeds thereof by filing a financing statement. On March 2, 2000, First Bethany filed a statement to continue the effectiveness of its previous financing statement.

14 In April of 1998, Arvest United Bank (Arvest) extended loans to Syntrix to purchase two particular accounts receivable. To secure the loans, Syntrix gave Arvest a security interest in the two accounts receivable. Arvest filed a financing statement to perfect its security interest. Okla. Stat. tit 12A, §§ 9-302-3083 (1991). Syntrix used the account debtors' payments to repay the loans to Arvest. After Syntrix filed bankruptcy, First Bethany sought to recover the payments Syntrix had made to Arvest.

III. PURCHASE MONEY SECURITY INTEREST

T5 Arvest argues that under title 12A, section 9-312 Oklahoma 1991 Statutes, its PMSIs have priority over First Bethany's security interests. A PMSI is defined in section 9-107 as a security interest that is

(2a) taken or retained by the seller of the collateral to secure all or part of its price; or
(b) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.

Pursuant to this definition, the parties do not contest that Arvest has PMSIs in the two accounts receivable for which it loaned Syn-trix money. However, Arvest's PMSIs do not automatically have priority over First Bethany's filed security interest.

T6 The general rule under the OCC is "[elonflicting security interests rank according to priority in time of filing or perfection," whichever is earlier. Okla. Stat. tit. 12A, § 9-312(5) (1991). Section 9-312 allows exceptions to this general rule for PMSIs in inventory and PMSIs in collateral other than inventory. However, the PMSI holder must meet certain requirements in order for its security interest to qualify for section 9-812's superpriority status. Id. at § 9-812.

IV. ACCOUNTS RECEIVABLE AS COLLATERAL OTHER THAN INVENTORY

17 Arvest argues that section 9-812(4) applies. Section 9-812(4) gives a PMSI holder in collateral other than inventory and in the collateral's proceeds priority over an earlier filed conflicting security interest if the PMSI "is perfected at the time the debtor receives possession of the collateral or within ten (10) days thereafter." Because accounts receivable are intangible, a conflict arises over whether they can be possessed and, if they can be possessed, when possession occurs.

T8 Even though the OCC does not explicitly define possession, it is implicit in Article 9 that possession means actual physi-eal control. See id. at §§ 9-802-805; Central Washington Bank v. Mendelson-Zeller, Inc., 118 Wash.2d 346, 779 P.2d 697, 699 (1989); Jeanne L. Schroeder, Some Realism about Legal Surrealism, 37 Wm. & Mary L.Rev. 455, 489, 491 (1996). Because accounts receivable are intangibles, see Okla. Stat. tit. 12A, $ 9-106 (1991), and incapable of being possessed, Central Washington Bank, 779 P.2d at 699, PMSIs in accounts receivable are not subject to section 9-312(4)'s super-priority status.

T 9 This result is consistent with the history of and current amendments to the OCC and the UCC. Traditionally the law addressed only PMSIs in goods. Grant Gilmore, The Purchase Money Priority, 76 Harvy. L. Rev, 18383, 1372 (1968). In 1963, Grant Gilmore, one of the primary drafters of the UCC, stated that "it is almost impossible to conceive of a situation, other than the kind which practitioners refer to as 'academic, in which intangible money claims could be made the subject of a purchase money transaction." Id. Then recent amendments, which are intended as declaratory "unless a change has been clearly made," Okla. Stat. tit. 12A, § 11-107 (2001), clarify that section 9-3812(4)'s super-priority status is not available for accounts receivable. Id. at § 1-9-324(a).

110 This result is also consistent with other provisions of the 1991 OCC addressing accounts receivable. Except for a de mini-mis exclusion, a security interest in accounts receivable could be perfected only by filing. Id. at § 9-302 (1991). It is illogical that the drafters of the UCC would give a super-priority to a PMSI in accounts receivable by possession when a security interest in accounts receivable can be perfected only by filing. In contrast, a security interest in goods can be perfected by possession, id. § 9-305, and a PMSI in goods can be subject to section 9-312(4)'s super-priority status. Id. at § 9-812(4).

{11 Arvest argues that the comments to the UCC, the policies underlying the OCC and the UCC, comments of one of the UCC's drafters, and cases from other jurisdictions support a holding that a PMSI in accounts receivable may be subject to section 9-312(4)'s super-priority status. We are unaware of any case granting section 9-312(4)'s super-priority status to accounts receivable. Further none of the cases cited by Arvest have held that a PMSI in accounts receivable is subject to section 9-812(4)'s super-priority status. See First Interstate Bank of Utah v. IRS, 930 F.2d 1521 (10th Cir.1991) (Loans that were made to allow debtor to perform preexisting executory contracts could not create a PMSI. A PMSI "in intangibles would be an extraordinary situation."); MBank Alamo Nat'l Ass'n v. Raytheon Co., 886 F.2d 1449, 1452 (5th Cir.1989) (Addressing a PMSI in inventory, the court held that "a PMSI in inventory is limited to that inventory" and to "proceeds received on or before delivery."); TIFCO, Inc. v. U.S. Repeating Arms Company, 67 BR. 990, 997 (Bkrtcy.D.Conn.1986) (The case involved unearned prepaid insurance premiums which were not governed by Article 9 of Maryland's Commercial Code.); Citizens Nat'l Bank of Denton v. Cockrell, 850 S.W.2d 462 (Tex.1998) (This ease involved equipment, not accounts receivable. The court held that even though seller retained access to equipment, the buyer had physical control and, thus, possession.); Automated Bookbinding Services, Inc. v. Hons Mueller Corp., 471 F.2d 546, 552 (4th Cir.1972) (Regarding equipment, the Court held that a buyer receives possession on the date of delivery, not the date installation is completed.); Northwestern Nat'l Bank Southwest v. Lectro Systems, 262 N.W.2d 678, 680 (Minn.1977) (Collateral for purposes of a PMSI does not include the performance of a preexisting contract.)

{12 Arvest's position would require that this Court define possession in a manner that is inconsistent the OCC's implicit meaning. The OCC provides two methods of notice of a security interest: one is physical possession, id. at § 9-805, and the other is constructive possession by filing. Id. at § 9-302. The OCC uses the term "possession" for physical possession, id. at § 9-305, and the term "filing" for constructive possession. Id. at § 9-302. Under Arvest's position, the terms would be synonymous.

V. ACCOUNTS RECEIVABLE AS INVENTORY

113 Section 9-812(8) bestows super-priority status for PMSIs in inventory. However, we need not determine for the purposes of this appeal whether the two accounts receivable were inventory. Under section 9-812(8), the holder of a PMSI in inventory has priority over a conflicting seeu-rity interest and the identifiable cash proceeds thereof if, among other things, the holder of the PMSI gives written notice to the conflicting security interest holder. Ar-vest did not give First Bethany written notification as required by section 9-312(8). Even if the accounts receivable are inventory, First Bethany's security interest has priority over Arvest because Arvest failed to give notice. Id. at § 9-812(5).

VI. CONCLUSION

« 14 Because section 9-812 does not allow a super-priority for PMSIs in accounts receivable, conflicting security interests in accounts receivable are subject to the general rules of priority under which the first perfected security interest has priority over a later perfected security interest. Id. at § 9-312(5). Because First Bethany perfected its security interests in the two accounts receivable first, it is entitled to the proceeds thereof which are held by Arvest. Summary judgment is proper where, as here, there is no dispute of material fact. Okla. Stat. tit. 12, ch. 2, app. 1, rule 183 (2001). Thus, the district court correctly granted summary judgment to First Bethany, and its judgment is affirmed. The Court of Civil Appeals opinion is vacated.

COURT OF CIVIL APPEALS OPINION VACATED; DISTRICT COURTS JUDGMENT AFFIRMED.

[ 15 WATT, C.J., OPALA, V.C.J., LAVENDER, HARGRAVE, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

116 KAUGER, J., concurs in result.


author: RONALD J. STUBBLEFIELD, Judge.

text:
    2003 OK CIV APP 80
    James ARMSTRONG, Plaintiff/Appellant, v. Gary CARR, an individual; and Glover Construction, an Oklahoma corporation, Defendants/Appellees, and Clarendon National Insurance Company, Intervenor.
    No. 98,532.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    May 20, 2003.
    Certiorari Denied Sept. 22, 2003.

      Michael R. Green, Stites & Green, Tulsa, OK, for Plaintiff/ Appellant.
    A. Camp Bonds, Jr., Bonds Matthews Law Firm, Muskogee, OK, for Defendant/Appel-lee Gary Carr.
    Brian J. Goree, James K. Secrest II, Richard C. Honn, Tulsa, OK, for Defendant/Ap-pellee Glover Construction Company.
   Opinion by

RONALD J. STUBBLEFIELD, Judge.

T 1 Plaintiff appeals from order of the Trial Court granting summary judgment to Defendants based on its determination that they were immune from tort liability under 85 ©.9.2001 §§ 11 and 12, and that Plaintiffs exclusive remedy was under the Workers' Compensation Act. The appeal has been assigned to the accelerated docket. See Okla. Sup.Ct. R. 1.36, 12 0.98.2001, ch. 15, app. 1.

BACKGROUND FACTS AND PROCEDURAL HISTORY

T2 Plaintiff, James Armstrong, was injured on May 19, 1998, as a result of a physical altercation with Defendant Gary Carr (Carr), which occurred on the premfses of Defendant Clover Construction Company (Glover). At the time of the altercation, Plaintiff was employed by Browning Trucking as a truck driver. Glover was in the business of making asphalt and building and maintaining asphalt roadways. Glover, which had a contract with the State of Oklahoma Department of Transportation, contracted with Browning to provide day-to-day transportation of asphalt between Glover's temporary production plant and the asphalt "lay-down site" specified in the state highway construction contract. Carr was the Glover employee who supervised the loading of asphalt at the temporary plant. Plaintiff was injured by Carr while loading asphalt to haul to the State job site. He had not seen or spoken to Carr prior to the date of the incident.

13 Plaintiff pursued a workers' compensation claim against his direct employer, Browning Trucking for alleged injuries to his head, neck, back, arms and legs, as well as internal injuries. The injuries were determined to be compensable, and he was awarded benefits for permanent partial disability by the Workers' Compensation Court.

{ 4 In early 2000, Plaintiff filed the present action naming Carr and Glover as parties defendant. He alleged he was a victim of an unprovoked assault and battery by Carr and suffered injuries as a result of Carr's intentional acts. He claimed Glover was Hable under respondeat superior theory, and also because Glover's management purportedly knew of a prior assault and/or battery committed by Carr, and was therefore negligent in the hiring, training and supervision of Carr. Finally, Plaintiff alleged Glover was negligent in failing to provide a safe work place for business invitees and in failing to adhere to industry custom and practices regarding safety equipment.

T5 In his answer, Carr admitted that the altercation occurred, but denied it was unprovoked. He denied the remaining allegations of the petition. In its answer, Glover also admitted that the altercation occurred, but claimed it was a "mutual affray" and that Plaintiffs claims based on Carr's conduct were barred by the doctrines of comparative fault, "self-defense" and "voluntary assumption of a known risk."

T 6 The Trial Court allowed Clarendon National Insurance Company, the workers' compensation insurance carrier for Browning Trucking, to intervene in the action. The insurance carrier asserted that it had paid approximately $103,000 in benefits to Plaintiff and sought to protect its subrogation rights.

17 Glover sought summary judgment on the basis of the affirmative defense that Plaintiff's claims were barred by the exclusive remedy provision of the Workers' Compensation Act, found at 85 0.S8.2001 § 12, which provides immunity to Plaintiff's "intermediate" or "principal" employer. Glover submitted evidentiary materials tending to show that it was Plaintiff's principal employer, secondarily liable under the Workers' Compensation Act, and, therefore, not subject to civil liability in tort.

T8 Carr also sought summary judgment, asserting that, as Glover's employee, he also was immune from suit. Carr adopted the argument and authority set forth in Glover's summary judgment brief.

T9 Plaintiff objected to Defendants' motions, but his response brief left the material facts set forth by Defendants essentially undisputed. In particular, Plaintiff agreed with the fact that Clover "was in the business of building asphalt roadways." However, Plaintiff submitted evidentiary materials to attempt to show the work performed by Browning Trucking, which he described as the "hauling of asphalt," was not a necessary and integral part of Glover's business, which he characterized as "asphalt production."

{10 The Trial Court granted summary judgment in favor of Clover and Carr. The Trial Court concluded that hauling asphalt from the temporary plant to the job site was a necessary and integral part of the business of building asphalt roads. The Trial Court concluded that the general contractor, Glover, was a principal employer in such a situation. The Trial Court granted summary judgment to CHlover and its employee, Carr, based on its conclusion that Plaintiff's exelu-sive remedy was under the Workers' Compensation Act.

[11 Plaintiff filed a motion for new trial, which was denied. Plaintiff appeals.

STANDARD OF REVIEW

T12 The appellate standard of review of a trial court's grant of summary judgment is de novo. Carmichael v. Beller, 1996 OK 48, 12, 914 P.2d 1051, 1058. On review, this Court will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Id. All inferences and conclusions to be drawn from the evidentiary materials will be viewed in the light most favorable to the non-moving party. Id. Summary judgment is appropriate where there is no substantial controversy as to any material fact, and it appears that a party is entitled to judgment as a matter of law. Vince Allen & Assocs., Inc. v. Delhi Gas Pipeline Corp., 1989 OK CIV APP 56, ¶ 7, 788 P.2d 414, 415-16.

DISCUSSION OF ISSUES

I. Statutory Immunity Under the Workers' Compensation Act

{13 Plaintiff's appellate contentions are essentially the same arguments he made below. He challenges the lower court's determination that Glover stood in the position as his principal employer, and takes particular exception to the Trial Court's underlying determination that his job function-the "hauling of asphalt"-was a "necessary and integral" part of Glover's trade or business. For the following reasons, we agree with the Trial Court.

[14 Under the provisions of 85 0.8.2001 § 11(B)(1), "the principal employer shall also be liable in the manner hereinafter specified for compensation due all direct employees, employees of the independent contractors, subcontractors, or other persons engaged in the general employer's business...." Tort immunity is afforded to principal employers who bear workers' compensation liability under section 11. 85 0.8.2001 § 12.

1 15 In W.P. Atkinson Emterprises, Inc. v. District Court of Oklahoma County, 1973 OK 97, 115, 516 P.2d 541, 544, the Oklahoma Supreme Court established the rule that a hirer would have secondary workers' compensation lability for the activities of his independent contractor, only if the work done by the independent contractor is a "nee-essary and integral" part of the hirer's principal business. Then, in Murphy v. Chickasha Mobile Homes, Inc., 1980 OK 75, 611 P.2d 248, the high Court fashioned "a helpful two-part task-related standard" for determination of a hirer's status as a statutory seetion 11 employer. Id. at 110, 611 P.2d at 248. The Murphy Court stated that tasks performed by an independent contractor are a "necessary and integral" part of a principal/hirer's operation when (1) directly associated with the day-to-day activity carried on by the hirer's business, or (2) customarily done in that line of business. Id. The Court further explained that the activities encompassed by the contractual relationship of the statutory employer and the skills needed for their performance must necessarily be germane to, and considered part and parcel of, that employer's day-to-day business operations. Id.

T16 Subsequently, in Bradley v. Clark, 1990 OK 73, 804 P.2d 425, the Oklahoma Supreme Court gave further guidance in addressing the issue and elucidated a "sharp tool" for implementing the Murphy standards. Bradley at 1 6, 804 P.2d at 428. The Bradley Court adopted an analysis fashioned by the Louisiana Supreme Court in Berry v. Holston Well Service, Inc., 488 So.2d 984, 937-39 (La.1986), which first required inquiry into whether the contract work was specialized or non-specialized. If the work was non-specialized, then the inquiry shifted to a comparison of the principal/hirer's trade, business or occupation with the contract work to determine if the latter could be considered part of the hirer's trade, business or occupation. The third and last tier of the Berry analysis was to determine whether the hirer was actually engaged, at the time of the injury, in the trade, business or occupation of the hired contractor. Bradley, 1990 OK 78 at ¶ 6 n. 10, 804 P.2d at 428.

T17 As we previously noted, the material facts in regard to Glover's business are essentially undisputed. The main point of contention between the parties is whether, under the agreed facts and upon application of the rules enunciated in Murphy and Bradley, Glover can be considered an intermediate or principal employer.

118 Plaintiffs primary argument is that the contract work provided by Browning Trucking was specialized per se, and therefore, under Bradley, as a matter of law was not a necessary and integral part of Glover's business. Glover, on the other hand, argues that Browning Trucking's services are not specialized per se. Plaintiffs alternative argument is that, even if the contract work was not specialized, the work still could not be considered as part of Glover's trade or business, which he attempts to characterize as "asphalt provider."

119 We are unable to conclude, after examination of the record, that the contract work was "specialized per se." To support this argument, Plaintiff submitted the affidavit of Browning Trucking's president, who stated that operation of dump trucks in the asphalt construction business required "specialized skills," and only "skilled mechanics" are allowed to perform maintenance on the trucks. Here, however, Plaintiff was not a mechanic, but a truck driver.

120 Glover's evidentiary materials showed that the contract work actually being performed-picking up and hauling loads of asphalt to the lay-down site-was not, by industry standards, considered to be specialized. The terms of Glover's contract with the State for asphalt highway construction differentiate between "basic work" and "specialty items." Paul Glover, the owner of the company, described the contract as a "standard government contract," with the same general provisions for every asphalt highway construction contractor. The contract defines "specialty items" as work requiring "highly specialized knowledge, abilities or equipment," a kind of work not "ordinarily available" to contractors who bid on highway construction jobs. It is not disputed that for many years Glover did use its own trucks and drivers to haul asphalt to paving sites. Thus, the evi-dentiary materials simply do not support a conclusion that the contract work was specialized per se.

121 Moreover, Plaintiff's interpretation of (Glover's trade or business as an "asphalt provider" is overly restrictive. The eviden-tiary materials clearly establish that Glover's trade/business was not so limited. Indeed, Plaintiff listed as an undisputed fact: "Glover Construction is in the business of building asphalt roadways."

122 Glover submitted testimony from its President of Operations and Asphalt Superintendent regarding the company's methods for building and maintaining asphalt roads. (Glover has only one permanent plant site, but it could have several temporary plant sites, with locations dependent on the size of a particular job and location of the job site. For nearly twenty years, Glover has contracted with various trucking companies and independent truckers to haul asphalt from its plants to the "lay down machine" at construction sites. On the date of Plaintiffs injury, there were several trucks operated by several contractors, including Browning Trucking, hauling asphalt to the State job site.

{23 We find that the record conclusively establishes that the contract work performed by Browning Trucking-transportation of the asphalt from the plant to the lay-down site-was routine, customary work associated with Glover's day-to-day activity and essential to Glover's ability to conduct its business. Therefore, the Trial Court did not err in finding that Clover was a principal employer and immune from tort liability under sections 11 and 12. See Bradley, 1990 OK 78 at 11 9-10, 804 P.2d at 429. However, in regard to employee Carr we find that the Trial Court's judgment constitutes fundamental error, and must be reversed.

IL. The Intentional Tort

§24 Plaintiff's claim against Carr is that of an intentional tort-that Carr intentionally assaulted him, inflicting serious bodily injury. The long-standing rule is that workers' compensation is the exclusive remedy for an injured worker unless the injury was willfully inflicted by the employer. United States Zinc Co. v. Ross, 1922 OK 247, ¶ 0, 208 P. 805, 806 (sylls. 1, 2 by the Court). In Roberts v. Barclay, 1962 OK 38, 369 P.2d 808, the Oklahoma Supreme Court reiterated the rule, stating:

Since our Workmen's Compensation Law by its terms applies only to disability or death resulting from accidental injuries . it may be conceded that an employee who has been wilfully injured by his employer bas a common law action for damages.

Id. at 14, 369 P.2d at 809 (citation omitted). Relying on Roberts, this Court in Thompson v. Madison Machinery Company, Inc., 1984 OK CIV APP 24, ¶ 17, 684 P.2d 565, 568 held:

This court, like those before us, determines that the workers' compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and seope of a worker's employment. The statutes were not designed to shield employers or co-employees from willful, intentional or even violent conduct.

125 Thus, it is clear that a claim under the Workers' Compensation Act is the exclusive remedy for accidental injuries covered by the Act, but not for intentionally inflicted injuries. Because Plaintiff alleges that Carr assaulted him, intentionally inflict, ing injuries upon him, that claim is not barred by section 12. Therefore, entry of judgment for Carr by the lower court, as a matter of law, was fundamental error because it is apparent on the face of the record that Plaintiff claimed Carr intentionally injured him. It is likewise apparent from the record that there was a substantial controversy of fact regarding the nature of the altercation between Plaintiff and Carr, which also prevented the entry of summary judgment in Carr's favor.

126 We have also reviewed the record to determine if the allegation of intentional injury might apply to Glover. We conclude it cannot. In Thompson, this Court found that an intentional assault by an employee could not be attributed to the employer based on respondeat superior. And Plaintiff's claim of Glover's liability based on negligence-in hiring, training, and supervising Carr and in maintaining the workplace-is the type of claim that is barred by the exclusive remedy provision of section 12. Therefore, we again conclude that the grant of judgment in favor of Hover was correct.

CONCLUSION

€ 27 Upon application of the Bradley analysis to the undisputed material facts of this case, we find that Glover established its entitlement to an immunity defense under see-tions 11 and 12 of the Workers' Compensation Act. However, Defendant Carr is not entitled to the defense where the claim against him is based on a purported willful, intentional act. Accordingly, we affirm the grant of summary judgment to Glover, but reverse the judgment in favor of Carr and remand for further proceedings.

28 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, V.C.J., and TAYLOR, P.J., concur.

      . We refer to the current version of the statutes. Amendments to portions of section 11 are not pertinent to the issues of this appeal, and the provisions of section 12 have not been amended.

      . This Court notes that the Louisiana Legislature specifically rejected the approach adopted in Berry, through amendment to the "statutory employer" provisions of its workers' compensation laws. See La.Rev.Stat. Ann. § 23:1061 (West Supp. 1990). However, that would have no bearing on the adoption by our high court of the same rule.