Brazell v. Save-on Drug, Inc.

• Decision Date: 20 December 1968
• Docket Number: SAVE-ON,No. 198,198
• Citation: 1968 NMCA 95,449 P.2d 86,79 N.M. 716
• Parties: Verna Mae BRAZELL, Plaintiff-Appellant, v.DRUG, INC., a Corporation, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 86

449 P.2d 86

79 N.M. 716

Verna Mae BRAZELL, Plaintiff-Appellant, v. SAVE-ON DRUG, INC., a Corporation, Defendant-Appellee.

No. 198.

Court of Appeals of New Mexico.

Dec. 20, 1968.

Denis Cowper, Chavez & Cowper, Belen, for plaintiff-appellant

Mary C. Walters, J. E. Casados, Toulouse, Ruud, Gallagher & Walters, Albuquerque, for defendant-appellee.

OPINION

ARMIJO, Judge.

This appeal is from summary judgment entered against appellant on her complaint for damages on account of injuries received as a result of a fall.

In her complaint appellant states she was walking to appellee's store and alleges further:

'VI

'That at said time, Defendant was maintaining the premises in a dangerous condition in that it permitted soil to be washed from around the steps, and failed and neglected to correct such situation when they knew or ought to have known, that such situation ought to be corrected.

'VII

'That on said date Plaintiff was ignorant of the dangerous condition existing about the steps at the entrance to the drugstore and failing to see the condition, tripped and fell over the said steps.'

The motion for summary judgment was supported by deposition, interrogatories and affidavits, including photographs and a survey showing contour, plat and elevation portraying the scene.

The incident occurred in the daytime. The place of the fall was where the wide part of the sidewalk in front of appellee's building joins a dirt surface parking lot. The sidewalk was six feet wide and raised about six inches above the surface of the parking lot. Appellant, while walking from the parking area, stepped on the sidewalk with her right foot and fell when her left toe caught in a hole which extended underneath the sidewalk.

The hole extended from the corner of the building about half way along the edge of the sidewalk. It was described as approximately twelve inches deep, tapering with the deepest part next to the building and extending about ten inches underneath the sidewalk. It was apparently caused by rain water sometime prior to the date of the fall.

On the day of the fall photographs were made of the scene from a distance of perhaps fifteen feet. The hole is plainly visible in these photographs. What appears to make the cavity stand out prominently is the dark and shaded area which obviously is caused by the portion of the depression which extends underneath the sidewalk.

Appellant admits seeing that portion of the hole outside the sidewalk, but denies seeing or being aware of the part underneath. She argues that the hole underneath the sidewalk constitutes the dangerous condition about which she complains.

We are unable to follow the reasoning advanced which seeks to distinguish that portion of the hole under the sidewalk from that which was outside. No mention is made of slipping into the hole and no explanation is given of how appellant's left foot got in the hole in the first place. We can perceive of no way for the left foot to be in a position to get caught underneath the sidewalk unless it was in that portion of the hole outside the sidewalk in the first place. This compels a conclusion that appellant saw the condition and proceeded with full knowledge of its existence.

Appellee's answer included contributory negligence and assumption of risk as affirmative defenses.

The sole question presented for determination is whether, under the pleadings, testimony and evidence submitted to the trial court in support of the motion for summary judgment, the movant was entitled to judgment as a matter of law. Simon v. Wilson, 78 N.M. 491, 432 P.2d 847 (1967). As stated in Martin v. Board of Education of City of Albuquerque, 79 N.M. 636, 447 P.2d 516, decided November 8, 1968:

'The moving party is entitled to summary judgment when the pleadings, depositions and admissions, together with the affidavits, show there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Wieneke v. Chalmers, 73 N.M. 8, 385 P.2d 65; Hubbard v. Mathis, 72 N.M. 270, 383 P.2d 240; ...