Opinion:Harwood v. Ardagh Group, 2022 OK 51
Subject matter:Negligence 
Date Decided:June 1, 2022
Trial Court:District Court of Creek County; Judge Golden
Route to this Court:Appeal from Dismissal Order; COCA affirmed; Petition for Certiorari granted. 
Facts:Plaintiff was struck by a car as he was leaving his work shift and crossing the street to an employer provided parking lot. After an unsuccessful attempt to recover workers’ compensation benefits for his injuries, Harwood filed a lawsuit against the driver and his employer. The trial court dismissed the lawsuit against the employer for failure to state a claim upon which relief could be granted.

Ardagh argued that because it did not own, operate or control the crosswalk, and the employee was not within the course and scope of employment at the time of the accident, Ardagh did not have a duty to make the crosswalk safer. Accordingly, because no duty existed, the employer could not be determined to have been negligent as a matter of law, and the employee failed to state a claim upon which relief could be granted. The trial court agreed with this argument.
Standard of Review:An order dismissing a case for failure to state a claim upon which relief can be granted is subject to de novo review. When reviewing a motion to dismiss, the Court must take as true all of the challenged pleading’s allegations together with all reasonable inferences which may be drawn from them. The precise issue on appeal is whether the facts pled may support a claim for relief.
Analysis:While workers’ comp. is not being reviewed, it is essential to determining the present issue. The workers’ comp. statute,  85 O.S. Supp. 2021 § 2(13), draws a line for the employer and employee that essentially the “clock” begins and ends the employer’s liability under Workers’ Compensation. Unless, the employer owns or maintains exclusive control over the area, the statute provides that a compensable injury suffered in the “course of employment” does not include any injury occurring in a parking lot or other common area adjacent to an employer’s place of business before the employee clocks in or after the employee clocks out. Even though a claim for workers’ comp. may fail, that does not prevent a negligence claim against the employer.

The Restatement (Second) of Torts § 323 (1965) provides: “One who undertakes, gratuitously or for consideration, to render services to another which he (or she) should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his (or her) failure to exercise reasonable care to perform the undertaking if: (a) his (or her) failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.”

Based on the plaintiff’s allegations, the employer provided parking for employees and instructed them to park across a busy highway. The employer represented to employees that it would make the passage across the highway as safe as possible, and it recognized the necessity for the protection of the employees crossing to the parking lot. The allegations are beyond those of promise; allegations imply the employer previously had taken steps to make the crossing safer, the employees relied on the employer to make the crossing safe, and the employer failed to do so on this occasion which increased the risk of harm to the employee. Taken in a light most favorable to the employee, and with all reasonable inferences in his favor, the plaintiff has stated a claim upon which relief may be granted. However, this does not mean that the employer is liable. That is a matter for the fact finder on remand. 
Outcome:Court of Civil Appeals’ decision vacated; trial court ruling reversed and remanded.
Vote:5-4; Concur: Darby, C.J., Kauger, Edmondson (author), Combs and Gurich, JJ.

Dissent: Kane, V.C.J. (by separate writing), Winchester (by separate writing) Rowe and Kuehn, (by separate writing), JJ.
Other: V.C.J. Kane argues that no duty would exist because regulating a public street is a power the city cannot surrender. Teeter v. City of Edmond, 2004 OK 5, ¶ 17, 85 P.3d 817, 822 (a municipality’s power to regulate traffic on a public street is an exercise of police power delegated from the state that cannot be redelegated).

J. Winchester’s complaint with the majority is that it creates a duty for the employer to provide safe passage on a public street. 

J. Keuhn takes issue with the majority suggesting some undefined, enhanced duty on Ardagh’s part by virtue of its status as Plaintiff’s employer.