dissenting:
Admiral’s motion for summary judgment relied solely on a lack of a duty on its part to Plaintiff. No other element of an action for negligence was presented to the trial court. It was on this basis, and this basis alone, that the trial court granted summary judgment to Admiral. The decision in this case should not be based on any other theory such as breach of warranty, or a contract where Admiral might be charged with its breach if it promised to extinguish every single bug in the place. These issues have not been briefed or heard by the trial court.
Duty is clearly a threshold question in a negligence action. Haas v. Firestone Tire & Rubber Co., 563 P.2d 620 (Okla.1976). Whether or not a duty exists depends on the relationship between the parties. The court decides whether a defendant stands in such a relationship to a plaintiff that the defendant owes an obligation of reasonable conduct for the benefit of the plaintiff. The most important consideration in establishing a duty is foreseeability. Wofford v. Eastern State Hospital, 795 P.2d 516 (Okla.1990).
The majority stresses no such relationship ever existed between Admiral and Plaintiff largely because of the lack of a contract between them. I disagree. Even though Admiral had no contractual relationship with Plaintiff, Plaintiff clearly is a beneficiary of insect extermination from the motel. Why else would a proprietor feel the need to provide such services?
The majority attempts to distinguish the recent Supreme Court decision dealing with the issue of a defendant’s liability to a foreseeable plaintiff who had no contractual relationship with the alleged tortfeasor. In Delbrel v. Doenges Brothers Ford, Inc., 913 P.2d 1318 (Okla.1996), the plaintiff was pushing a disabled vehicle off a public roadway when he was struck from behind by another vehicle. The plaintiff was a passenger in the car that had been previously repaired by Doenges Brothers Ford. The ear died in the roadway. The Supreme Court held that even though the plaintiff was a stranger to Doeng-es, it was foreseeable that he would be injured by any negligence of Doenges. The court held no privity was necessary in a tort action based on negligence. The Court observed that the Court in Truitt v. Diggs, 611 P.2d 633, 636 (Okla.1980), Stated “the traditional rule at common law was that privity of contract was required before a cause of action in tort arose from a breach of duty created by contract, but now this restriction in cases involving physical injury to third persons has in many instances been eliminated or modified.” In the present case, it is likewise foreseeable that Plaintiff could be injured if Admiral performed its duties in a negligent manner.
The Court in Delbrel, further cited Stuckey v. Young Exploration Co., 586 P.2d 726 (Okla.1978). That decision held a duty of a repairer of chattels to exercise reasonable care was quite aside from any obligation in contract and that one who negligently repairs a vehicle at the request of the owner is liable to third persons who might be injured by his negligence.
Such a duty to third persons certainly may be equated to the duty here to perform extermination services with reasonable care and in a workmanlike and non-negligent manner. I would hold an exterminator who contracts with an inn or hotel to eliminate bugs owes a duty to the patrons of that establishment to perform the bug extermination with reasonable care and in a workmanlike manner. This does not mean the exterminator promises that every bug will be destroyed!
Whether Admiral breached that duty, and whether such a breach caused Plaintiff’s injuries is not before this Court as it was not argued at trial in Admiral’s motion for summary judgment. These questions of fact would be resolved on remand.