                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 15 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MICHAEL SALINAS,

                Plaintiff-Appellant,

    v.                                                    No. 98-7032
                                                    (D.C. No. 97-CV-449-S)
    JAMAR, INC.; BEARD ESTATES,                           (E.D. Okla.)
    LTD.; MODERN ENTERPRISES,
    INC.; MONARCH ENTERPRISES,
    INC.,

                Defendants-Appellees.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff Michael Salinas   1
                                      appeals from an order of the district court

granting defendants ’ motion for summary judgment.        2
                                                              We affirm.

      Michael Salinas was fifteen when        he became a quadriplegic in a tragic

accident resulting from his failure to complete a double back flip on a trampoline.

The trampoline was owned by his neighbors, the Florences, and was located in

their yard. Mr. Salinas admits he was an invitee on the Florence’s property.         See

Appendix at 9(f) (pre-trial order admitted facts).

      The Florences leased their residence in a low income housing project

owned by defendants , Beard Estates, Ltd., and Modern Enterprises, Inc. The

property was managed by     defendant Monarch Properties, Inc. As a low income

housing project, the property is subject to regulation under the Section 8 Housing

Assistance Payment Program.       See 24 C.F.R. § 886 Subpt. A ( § 886.113 setting

forth housing quality standards).


1
       Michael Salinas was a minor when this action was commenced. He
thereafter reached the age of majority and filed an amended complaint in the
district court to reflect his new status.
2
      This court originally noted that the appealed judgment was not final as to
defendant Jamar, Inc. The district court subsequently certified the judgment
pursuant to Fed. R. Civ. P. 54(b). The judgment is now appealable.    See Heimann
v. Snead, 133 F.3d 767, 770 (10th Cir. 19 98); Lewis v. B.F. Goodrich Co., 850
F.2d 641, 645-46 (10th Cir. 1988).

                                             -2-
       Mr. Salinas commenced this diversity action against       the property owners

and the property manager as well as the manufacturer of the trampoline, Jamar,

Inc. and the retailer alleged to have sold the trampoline, The Mower Shop, Inc.

Mr. Salinas settled his claims with The Mower Shop and entered into a stipulation

to dismiss, without prejudice, his claims against Jamar, Inc. Mr. Salinas alleged

the property owners and manager were negligent because they allowed the

Florences to have a dangerous product on their property and did not require that

warning labels be placed on the trampoline.

       On appeal, Mr. Salinas argues that      defendants violated federal law which

dictates that Section 8 housing areas must be reasonably free from hazards to its

occupants . He also contends that assumption of the risk is not a valid defense and

that, even if it were, the   Oklahoma constitution requires that assumption of the

risk be decided by a jury. Finally, Mr. Salinas presented sobering evidence as to

the danger of trampolines and that, despite this danger, manufacturers had not

adequately warned consumers. Nevertheless, he asserts that the danger of the

trampoline was not open and obvious.

       As this is a diversity action, we look to Oklahoma substantive tort law, but

we are governed by federal law in determining the propriety of the district court’s

grant of summary judgment.       See Pegasus Helicopters, Inc. v. United

Technologies Corp. , 35 F.3d 507, 510       (10th Cir. 19 94).


                                             -3-
             We review the entry of summary judgment de novo,
             drawing all reasonable inferences in favor of the
             nonmovants. Summary judgment is appropriate only
             when the moving party shows there is no genuine issue
             as to any material fact and that the moving party is
             entitled to a judgment as a matter of law. To avoid
             summary judgment, the nonmovant must make a
             showing sufficient to establish an inference of the
             existence of each element essential to the case. The
             nonmovant may not rest upon mere allegation or denials
             of his pleadings, but must set forth specific facts
             showing that there is a genuine issue for trial.

Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (quotations and citations

omitted).

      In Oklahoma , “t he essential elements of negligence are (1) a duty owed by

defendant to protect plaintiff from injury, (2) a failure to properly exercise or

perform that duty, and (3) injuries to plaintiff proximately caused by defendant’s

failure to exercise his duty of care.” Copeland v. Admiral Pest Control Co.,

933 P.2d 937, 939 (Okla. Ct. App. 1996) (citation omitted). Whether a duty is

owed is the threshold issue in a negligence action and is a question of law.

See id.

      Mr. Salinas contends that defendants owed him a duty of care based on

federal regulations governing Section 8 housing. However, § 886, Subpt. A was

implemented to ensure that the property owner/manager provide living units and

surrounding property which meet the basic standards of habitability. The

regulations contain no requirement that the owner/manager monitor the personal

                                          -4-
property of tenants to ensure that adequate warnings are present to prevent harm

to invitees on the property.

      Likewise, common law does not impose any duty on defendants in this

situation. Cf. Price v. Smith, 373 P.2d 242, 244 (Okla. 1962) (property owner

owes no duty of care over property that is within the sole control of the lessee;

lessor is only liable for injuries due to improper maintenance of that portion of

premises reserved by lessor or kept open for use by those other than tenant).

Thus, a landlord has no duty to warn invitees that items owned by a tenant may be

hazardous.

      Defendants owed no duty to Mr. Salinas. Therefore we need not reach       his

remaining arguments. The judgment of the United States District Court for the

Eastern District of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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