Montgomery v. Timberbrook Homeowners Ass'n

ADAMS, J.,

dissenting.

¶ 1 I believe the majority too narrowly considers the trade or business in which Tim-berbrook is engaged. In the process, my colleagues overlook the necessity of some evidence that Timberbrook or others engaged in a similar business typically use their own employees to perform the services which Swim Management performed under its contract with Timberbrook.

¶ 2 If the analysis employed by the majority here had been applied in Bradley v. Clark, 1990 OK 73, 804 P.2d 425, the Oklahoma Supreme Court would have been forced to conclude that the well operator was in the business of repairing oil wells. However, the Court did not focus on the precise task for which the contractor was hired but looked at the broader business in which the well operator was engaged. A similar analysis is appropriate here.

¶3 For purposes of the “three-tier test” recognized in Bradley, Timberbrook was engaged in the general business of maintaining and operating the common areas of a residential development. In order to conduct that business it had to be certain that the pool was operated and maintained properly, much as the well operator in Bradley had to be certain that the well was properly functioning and in good repair. The Bradley Court properly considered evidence concerning whether the well repair was the type of work which was necessary to the well operator’s business and which the well operator or others like the operator would typically have performed by employees of the operator.

¶ 4 I would apply that same analysis here. The record contains no evidence bearing on whether Timberbrook has ever hired its own employees to maintain and operate the pool or whether other homeowners’ associations or other entities whose primary business is the maintenance and operation of common areas for residential purposes typically do so. Therefore, in my opinion, summary judgment was inappropriate on this record, and I respectfully dissent.