Donahue v. Durfee

Decision Date28 September 1989
Docket NumberNo. 880227-CA,880227-CA
Citation780 P.2d 1275
PartiesPatrick R. DONAHUE, Plaintiff and Appellant, v. John C. DURFEE; Delta Valley Foods, a Utah corporation; Larry Howell; Utah Power & Light Company, a Utah corporation; ABCO Construction Corp., a Utah corporation, Defendants and Respondents.
CourtUtah Court of Appeals

W. Brent Wilcox and Edward B. Havas, Salt Lake City, for plaintiff and appellant.

Darwin C. Hansen, Bountiful, for defendants and respondents John C. Durfee and Delta Valley Foods.

Robert B. Hansen, Salt Lake City, for defendant and respondent Larry Howell.

Before BENCH, GARFF and ORME, JJ.

ORME, Judge:

Plaintiff Patrick Donahue appeals the district court's entry of summary judgment in favor of defendants Delta Valley Foods ("DVF"), John Durfee, and Larry Howell. Donahue filed this negligence action seeking to recover damages for injuries he suffered when he contacted an electrical power line while installing a rain gutter on DVF's warehouse. The district court concluded the power line constituted an open and obvious danger and, accordingly, DVF, Durfee, and Howell owed no duty to warn Donahue of the danger or otherwise protect him from it. We reverse and remand.

FACTS

Summary judgment is proper only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56(c). "In reviewing a summary judgment, we analyze the facts and inferences in a light most favorable to the losing party." Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 89 (Utah 1988). Accordingly, we set forth the facts as contended by Donahue.

John Durfee, DVF's general manager, hired Larry Howell, a steel building salesman, to organize the construction of a new warehouse for DVF. Howell's duties included procuring the necessary building materials and locating a suitable contractor. With Durfee's consent, Howell hired ABCO Construction Corp. to erect the warehouse.

By spring of 1982, the warehouse was mostly complete and Howell hired "Mr. Rain Gutter," Donahue's employer, to install a gutter to promote proper water drainage. On August 18, 1982, Donahue was assigned to assist with the DVF warehouse project. Donahue was required to work from atop the warehouse roof, where a 7200 volt high-tension power line operated by Utah Power and Light loomed approximately four to five feet overhead. Apparently, Donahue stood up during the gutter's installation and the top of his head struck the power line, causing a severe electrical shock and his resulting fall from the warehouse roof. Donahue was not warned about the powerline but saw it and perceived the potentially fatal danger which it posed.

In July of 1984, Donahue brought this negligence action against DVF, Durfee, Howell, ABCO, and Utah Power and Light. 1 DVF, Durfee, and Howell moved for summary judgment, contending they owed no duty to warn Donahue or otherwise protect him from the power line as it constituted an open and obvious danger. See, e.g., Steele v. Denver & Rio Grande W. R.R., 16 Utah 2d 127, 396 P.2d 751, 753-54 (1964). The district court agreed and entered summary judgment in favor of the defendants.

Donahue appeals, advancing several related arguments. However, the dispositive issue on appeal is whether the open and obvious danger rule is an absolute bar to Donahue's action under Utah's comparative negligence system. We hold that even assuming the power line was an open and obvious danger, Donahue is nonetheless entitled to have the finder of fact compare his negligence, if any, in encountering the power line with any negligence attributable to the defendants in creating or allowing such a dangerous condition to exist.

We first address this issue as it pertains to Donahue's claim against DVF based on its ownership of the warehouse.

TRADITIONAL APPROACH TO LANDOWNER LIABILITY

Historically, a landowner's duty of care owing to persons entering his or her land varied with the nature of the visit. See, e.g., Tjas v. Proctor, 591 P.2d 438, 441 (Utah 1979). But see Williams v. Melby, 699 P.2d 723, 726 (Utah 1985) (abandoning the traditional common law distinctions and instead imposing a duty of "reasonable care in all circumstances," at least toward the landowner's tenant). Accord English v. Kienke, 774 P.2d 1154, 1156 (Utah Ct.App.1989); Gregory v. Fourthwest Invs., Ltd., 754 P.2d 89, 91 (Utah Ct.App.1988). Under the traditional view a landowner has no duty to warn guests of "open and obvious dangers," regardless of the purpose of the visit. See, e.g., Ellertson v. Dansie, 576 P.2d 867, 868 (Utah 1978); Steele, 396 P.2d at 753-54. This doctrine is commonly known as the open and obvious danger rule, and it precludes an injured guest's recovery against the landowner for any injuries sustained through encountering an obvious risk. The justification for the rule appears to be that encountering an obvious risk is negligence as a matter of law and, at least under a contributory negligence system, a plaintiff who is even only slightly negligent is barred from recovery. An alternative justification is that while a landowner has a duty to warn guests of dangers on his or her property, the landowner's failure to do so is harmless where the danger is readily apparent.

The open and obvious danger rule has been sharply criticized. An often-cited basis for attack is that the rule establishes the landowner's duty of care according to what is known or should be known by the guest. See, e.g., Keller v. Holiday Inns, Inc., 105 Idaho 649, 671 P.2d 1112, 1117 (Ct.App.1983), aff'd on other grounds, 107 Idaho 593, 691 P.2d 1208 (1984). These critics argue that a more logical approach treats the guest's knowledge of obvious danger as bearing only on the reasonableness of the guest's subsequent conduct, not Others have criticized the open and obvious danger rule for ignoring reality. As the Texas Supreme Court observed,

as relieving the landowner of its duty of care. See, e.g., Keller, 671 P.2d at 1117 (the open and obvious danger rule does not differentiate between those facts relevant to the landowner's duty of care and those facts establishing a total or partial defense to liability); Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex.1978) ("A plaintiff's knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger openly and obviously, is a matter that bears upon [plaintiff's] own negligence; it should not affect the defendant's duty.").

[t]here are many instances in which a person of ordinary prudence may prudently take a risk about which he knows, or has been warned about, or that is open and obvious to him.... One's conduct after he is possessed of full knowledge, under the circumstances may be justified or deemed negligent depending on such things as the plaintiff's status, the nature of the structure, the urgency or lack of it for attempting to reach a destination, the availability of an alternative, one's familiarity or lack of it with the way, the degree and seriousness of the danger, the availability of aid from others, the nature and degree of darkness, the kind and extent of a warning, and the precautions taken under the circumstances....

Parker, 565 S.W.2d at 520. See Keller, 671 P.2d at 1117. Courts subscribing to this view have either completely abandoned the open and obvious danger rule, as did Texas in Parker, or, at a minimum, refuse to apply the rule as an absolute bar in actions brought by plaintiffs who, like Donahue, entered the property in connection with their employment duties. See, e.g., Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 509 (2nd Cir.1976) (a vessel owner must anticipate that a longshoreman may voluntarily encounter an obvious danger to avoid losing his job); Brown v. Martin Marietta Corp., 690 P.2d 889, 892 (Colo.Ct.App.1984) (where an employee's duty renders an obvious danger unavoidable, injured employee is not barred as a matter of law from recovery against landowner); Shannon v. Howard S. Wright Constr. Co., 181 Mont. 269, 593 P.2d 438, 440-41 (1979) (where an employee must either forego employment or encounter danger, the obviousness of the danger will not completely bar the employee's recovery for any resulting injury).

A related approach is articulated in the Restatement (Second) of Torts (1965). Section 343A provides that a landowner is not liable for a guest's injuries resulting from an open and obvious danger unless the landowner "should anticipate the harm despite such knowledge or obviousness." A few jurisdictions, apparently including Utah, have seen merit in this approach. See, e.g., Whitman v. W.T. Grant Co., 16 Utah 2d 81, 395 P.2d 918, 920 (1964) ("In order to justify holding that a jury question as to negligence exists, where injury has resulted from an observable hazard, it is essential that there be something which could be regarded as tending to distract the [injured person's] attention or to prevent him from seeing the danger...."); Santos v. Scindia Steam Navigation Co., 598 F.2d 480 (9th Cir.1979) (applying Restatement approach under Jones Act), aff'd, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981); Scales v. St. Louis-San Francisco Ry. Co., 2 Kan.App.2d 491, 582 P.2d 300, 306 (1978) (a landowner may be liable for injuries suffered by a worker encountering an obviously dangerous condition during periods of foreseeable distraction).

Thus, the open and obvious danger rule is not beyond reproach even within the contributory negligence system from which it arose.

COMPARATIVE NEGLIGENCE AND ASSUMPTION OF THE RISK

Utah has now abandoned its contributory negligence system. Utah Code Ann. § 78-27-38 (1987), entitled "Comparative Negligence," provides in part that "[t]he fault of a person seeking recovery shall not alone bar recovery by that person. He may recover from any defendant or group First, the open and obvious danger rule is fundamentally incompatible...

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