* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 6 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

WILLIAM BROWN, JUDY BROWN,

Plaintiffs,

v. FRED C. VANARSDALE, UNDERWRITERS SURETY, INC., NATIONAL AMERICAN INSURANCE CO.,

Defendants-Appellees, and JEFF CURTZ,

Defendant, and TOMMY OSBORN, JR.,

Defendant-Appellant. No. 96-5220 (D.C. No. 95-CV-272-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. In this diversity case, defendant Tommy Osborn appe als the district court’s entry of summary judgment against him on his neglig ence claims against his codefendants. Osborn’s claims arise out of the follo wing events. In July 1994, William Brown, a resident of Oklahoma, was arrested in Butler County, Kansas, on several charges related to his driving while int oxicated. Brown secured his release from jail on a $1,000 appearance bond that was posted by defendant Fred C. VanArsdale, a local bondsman. Defendant Nationa l American Insurance Company was the surety on the bond, and its local m anager was defendant Underwriters Surety, Inc. After being released on bond, Brown returned to his home in Oklahoma. Brown subsequently failed to make two court appearances. On November 28, 1994, the Kansas court entered an orde r forfeiting the appearance bond. Upon learning of the bond forfeiture, VanArs dale contacted defendant Jeff Curtz, a bounty hunter, and assigned him Brown’s ca se. Curtz had a contract with Underwriters pursuant to which he agreed to accept assignments to “investigate, locate, apprehend, [and] secure the arrest and/or s urrender [of] a fugitive . . . from-3-

justice on whose behalf [Underwriters] has posted abond and whose failure to appear in court resulted in [Underwriters’] bond be ing forfeited.” Appellant’s App. at 87. On a Saturday in early January 1995, Curtz contacte d Brown by telephone, told him of his failure to appear, and asked Brown what he intended to do. Brown, who said he was unaware that he had missed any scheduled appearances, said he would have to speak with his lawyer. The n ext Monday, Curtz turned up at Brown’s auto shop looking for Brown. Brown was not there, but two of his customers were. Apparently, hostile words were exc hanged between the two men and Curtz. Curtz left after one of the men pulled out a gun. Brown learned of Curtz’s visit later that day and decided the situat ion was sufficiently serious that he had better look into the status of his Kansas ca se. He called the County Attorney in Butler County, Kansas, who told Brown h e would have to come to Kansas to discuss the matter. The next day, January 11, Brown went to Kansas, met with the County Attorney, and signed an agreeme nt for pre-trial diversion. Pursuant to the agreement, prosecution of the charg es would be delayed for twelve months, at the conclusion of which the charg es would be dropped, provided Brown complied with the terms and conditio ns of the agreement. The County Attorney filed the diversion agreement with the court on January 11 and the court immediately entered an order vacating the bond forfeiture order. No one1 Osborn’s version of events is rather different. He claims that he remained

by the car the whole time and did not go into the h ouse or participate in the actual seizure of Brown in any way. He does admit that he helped Curtz get Brown in the car and that he drove part of the way back to K ansas. -4- notified VanArsdale, National, or Underwriters about either the diversion agreement or the vacation of the forfeiture order. Two weeks later, Curtz, who was continuing his effo rts to apprehend Brown, returned to Oklahoma. This time, unbeknowns t to anyone, Curtz was accompanied by his friend Tommy Osborn, a carpet layer by trade. According to Brown, at about 11:20 on the night of January 23, h e was awakened from his sleep on the living room couch by the sound of brea king glass. A lead pipe, about four feet long and four inches in diameter had been thrown through the sliding glass door. Two men, who later turned out to be Curtz and Osborn, came rushing through the broken door with their guns drawn, grab bed Brown, shoved him to the floor, and asked whether anyone else was in the ho use. Believing the men to be robbers, Brown did not respond. The men then hand cuffed Brown’s hands behind his back, dragged him from the house, and pu t him in their car. 1 Brown finally figured out that his apprehension hadsomething to do with the Kansas criminal charges when he heard Curtz and Osborn talking about taking him back to Kansas. Brown said he tried to explain to the two men that he had taken care of the Kansas charges, but they would no t listen to him. After they2 Although Osborn’s claims against his co-defendants were all the same, for

some reason Osborn chose to file the claims againstCurtz, VanArsdale, and National as cross-claims, and to file the claims ag ainst Underwriters in a separate third-party complaint. -5- returned to Kansas, Curtz dropped Osborn off at his home and took Brown to the county jail, where Brown spent the rest of the nigh t. After contacting the County Attorney the next morning, Brown was able to obtain his release from jail. Criminal charges were filed against Curtz and Osborn in Oklahoma for first degree burglary and kidnaping. Osborn was bound ov er for trial on these charges in November 1996. Curtz, however, was killed not l ong after the charges were filed. Meanwhile, Brown and his wife filed suit in Oklahoma state court against Curtz, Osborn, VanArsdale, National and Underwriter ’s for trespass, assault and battery, and kidnaping. The civil case was removed to federal court and Osborn filed claims against his co-defendants for indemnif ication and negligence. 2 As to the latter, Osborn alleged that VanArsdale, Nationa l, and Underwriters (whom we will refer to collectively as the “surety defendant s”), breached their duty “to inspect, verify, and confirm the warrant for Plaint iff William Brown’s arrest,” Appellant’s App. at 110, 116, and not to misreprese nt the status of their right to arrest Brown. Osborn also alleged that the surety defendants breached their duty to warn him that “he would be subjected to an extra ordinary degree of risk of-6-

injury to his person, to his reputation, and to his financial well-being” if he accompanied Curtz to Oklahoma to apprehend Brown. Id. at 108, 114. The Browns subsequently reached a settlement with a ll the defendants. Because the settlement was funded entirely by Natio nal and/or Underwriters, it effectively mooted Osborn’s claims for indemnificat ion. The surety defendants then moved for summary judgment on Osborn’s neglige nce claims, arguing, under a variety of theories, that they owed Osborn no duty. The district court addressed several of defendants’ theories and concluded that, under Oklahoma law, the surety defendants did not owe a duty to Osborn to a dvise him of the status of their right to arrest Brown or to warn him of the risks i nvolved in accompanying Curtz to apprehend Brown. We review the grant or denial of summary judgment d e novo, applying the same standard as the district court under Fed. R. C iv. P. 56(c). See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Based upon our review, we conclude that the risk of injury to Osborn was not foreseeable to the surety defendants and, therefore, that they owed him no du ty. The elements of a negligence claim have been descri bed by the Oklahoma Supreme Court as follows: “(1) the existence of a duty on defendant’s part to protect plaintiff from injury; (2) violation of that duty; and (3) injury resulting therefrom.” Grover v. Superior Welding, Inc. , 893 P.2d 500, 502 (Okla. 1995).-7-

Thus, “[t]he threshold question in any suit based o n negligence is whether the defendant had a duty to the particular plaintiff al leged to have been harmed.” Id. [T]he existence of a duty depends on the relationsh ip between the parties and the general risks involved in the commo n undertaking. Whether a defendant stands in such relationship to a plaintiff that the law will impose upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff is a quest ion for the court. Wofford v. Eastern State Hosp. , 795 P.2d 516, 519 (Okla. 1990) (citation omitted). “The most important consideration in est ablishing duty is foreseeability.” Delbrel v. Doenges Bros. Ford, In c. , 913 P.2d 1318, 1321 (Okla. 1996). “As a general rule a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.” Wofford , 795 P.2d at 519 (quotation omitted). Osborn argues that it was foreseeable to the suretydefendants that Curtz would take someone with him to apprehend Brown, “si nce it is reasonable and in fact obviously necessary for a bounty hunter to be accompanied by another person, for such obvious safety reasons, etc. . . . because of the nature of the job that the bounty hunters were employed to perform.” Principal Br. of Appellant at 12. Therefore, Osborn contends, the surety defenda nts had a duty to warn him that they had no right to arrest Brown and that ass isting Curtz in the arrest could cause Osborn injury to his safety, reputation, and well-being.-8-

Osborn, however, presented no evidence to establishthat it was customary for bounty hunters in general, or Curtz in particul ar, to enlist the assistance of others in apprehending a fugitive. The evidence is undisputed that the surety defendants had no actual knowledge that Curtz had t aken someone with him to apprehend Brown until the deed was complete. The f irst time VanArsdale learned that Curtz was not acting alone was when Curtz call ed VanArsdale on his way to the county jail with Brown and mentioned having sto pped to drop off a friend. Nor does the evidence support an inference that the surety defendants should have known that Curtz would seek assistance in apprehend ing Brown. VanArsdale testified that Curtz had apprehended fugitives for Underwriters on several other occasions and that, to VanArsdale’s knowledge, Curt z had never before taken someone with him to apprehend a fugitive. We also note that Curtz’s contract with Underwriter’s prohibited him from assigning any of his obligations or duties thereunder to someone else without Underwriter’s pr ior written consent. Therefore, even if we assume that the surety defend ants had no right to arrest Brown and that they should have known this f act, the surety defendants owed no duty to Osborn to warn him that they had no right to arrest Brown or that Osborn might suffer injury if he assisted Curtz in apprehending Brown. Because the lack of foreseeability is dispositive of Osborn ’s claims, we need not address defendants’ alternative theories for avoiding liabi lity.-9-

The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. Appellees’ Motion to Stri ke is denied as moot.

Entered for the Court

Michael R. Murphy Circuit Judge