Dispositions Other Than By Published Opinion | April 12, 2023

Oklahoma Court of Civil Appeals

Division I

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Division II

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Division III

120,829 – Andrew Tate, as Personal Representative of the Estate of Daniel Tate, Deceased, Plaintiff/Appellant, v. City of McAlester, a government entity, Defendant/Appellee. Appeal from the District Court of Pittsvurg County, Oklahoma.  Honorable Tim Mills, Trial Judge. This appeal arises out of an Order by the trial court that granted summary judgment to the City of McAlester, Defendant/Appellee, on the Plaintiff’s negligence claim.  The outcome of this appeal turns on the issue of whether the deposition testimony as to causation by the wife of the decedent, Brenda Cragun, and the statements in the various medical records attributed to the decedent, Daniel Tate, are admissible lay opinion testimony under 12 O.S. § 2701.  We hold that they are not proper lay opinion testimony because the undisputed facts show that Mr. Tate’s injury was not clearly discernable and, thus, not an “objective” injury about which they could offer an opinion.  Additionally, the progress note in the summary judgment record by Mr. Tate’s treating doctor describes two alternative, potential causes of Mr. Tate’s broken ankle, only one of which attributed fault to the firemen. Because the treating doctor’s progress note does not state a definitive opinion on the issue of causation, and expert testimony is required, there are no facts in the summary judgment record to meet the causation element of Plaintiff’s case.  The trial court, therefore, committed no error in sustaining the Motion for Summary Judgment.  Consequently, we AFFIRM the award of summary judgment to the Defendant.  Opinion by PRINCE, P.J.; MITCHELL, C.J., and BELL, J., concur. April 7, 2023

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Division IV

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