Harrington v. Syufy Enterprises

Decision Date30 January 1997
Docket NumberNo. 27312,27312
Citation931 P.2d 1378,113 Nev. 246
PartiesNorma HARRINGTON, Appellant, v. SYUFY ENTERPRISES, a Limited Partnership, Respondent.
CourtNevada Supreme Court
OPINION

PER CURIAM:

Appellant Norma Harrington suffered an injury to her wrist when she tripped over tire spikes (a device employed to encourage the uni-directional flow of automobile traffic by causing "severe tire damage" to offending vehicles) while attending a weekend flea market at the El Rancho Drive-in Movie Theater. Harrington sued respondent Syufy Enterprises, owner of El Rancho, in negligence. Syufy Enterprises moved for summary judgment arguing that the alleged dangerous condition, the grate with tire spikes, was open and obvious, and therefore, Syufy Enterprises had no duty to warn of the danger.

In support of the motion for summary judgment, Syufy Enterprises attached portions of the deposition of Louis Chacon, who arrived at the flea market at about 8:00 or 8:30 a.m. to meet Harrington. Chacon recounted that the weather was very clear. Harrington saw Chacon and called to him. The grate with the tire spikes was between them, with the spikes pointed toward Harrington. No one else appeared between Harrington and Chacon, and nothing obscured Harrington's view of the grate. Harrington walked toward Chacon, looking at him, and tripped on the grate and fell.

Harrington opposed the motion for summary judgment, and argued that issues concerning her fault in contributing to the accident should be submitted to the jury under the comparative negligence statute, NRS 41.141. In her affidavit, Harrington stated that the flea market was getting crowded and that she was forced to walk over or adjacent to the grate with the tire spikes to exit the flea market and reach her friend. She stated that the bright sun was shining directly in her eyes, and she specifically denied seeing the spikes prior to her fall: "[I] was aware that the grate was there, but the spikes in the grate were aimed directly at me and were difficult to see until after I had fallen."

On May 26, 1995, the district court ordered summary judgment in favor of Syufy Enterprises, concluding from Harrington's affidavit that no facts gave rise to a claim of negligence. The district court denied Harrington's motion for reconsideration, concluding: "In its earlier Order, the Court found after reviewing Plaintiff's Affidavit that she conceded that she was aware of the existence of the grate and spikes in question. Based on these uncontested facts, the Court can find no facts which give rise to a claim of negligence." This appeal followed.

Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable to the non-moving party, there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). All of the non-movant's statements must be accepted as true, and a district court may not pass on the credibility of the affidavits. Sawyer v. Sugarless Shops, 106 Nev. 265, 267, 792 P.2d 14, 15 (1990). This court's review of an order granting summary judgment is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

In negligence actions, courts are generally reluctant to grant summary judgment. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1991). Nevertheless, when plaintiff cannot recover as a matter of law, defendant is entitled to summary judgment. Id. To establish entitlement to judgment as a matter of law, defendant need only negate one element of plaintiff's case (i.e., duty, breach, causation, or damages). Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590-91 (1991).

Syufy Enterprises contends that it was entitled to summary judgment because the tire spikes presented an "obvious danger" as a matter of law. See Worth v. Reed, 79 Nev. 351, 354, 384 P.2d 1017, 1018 (1963) (If the danger is "obvious," ordinary care does not require a warning from the owner because the "obviousness" of the danger is itself an adequate warning.). In response, Harrington contends that the "obvious danger" doctrine was abrogated by Nevada's adoption of statutory comparative evidence rules. Harrington also contends that, in any case, a question of fact exists as to whether the danger was obvious and whether the tire spikes may have presented an unreasonable safety risk despite their "obviousness."

In Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962), plaintiff sued the defendant hotel to recover injuries she sustained after falling over a planter in defendant's lobby. The planter was two feet wide and ran along a plate-glass window for approximately thirty feet. The planter was in a box, the border of which was three or four inches above the level of the floor and was concealed by artificial foliage which was a foot and a half or two feet high. Plaintiff conceded that she fell because she did not see the planter, and it was apparent the reason she did not see the planter was that she was moving backwards in the act of turning around. After presentation of plaintiff's evidence, the district court granted defendant's motion for involuntary dismissal under NRCP 41(b). This court, after noting no evidence existed that the planter was hidden or concealed, deemed the peril "obvious" as a matter of law. This court thus affirmed on the ground that an owner's liability does not extend to an invitee who incurs injury from an obvious danger.

In Worth, this court affirmed a judgment in favor of the slip-and-fall plaintiff. 79 Nev. 351, 384 P.2d 1017. Plaintiff injured herself after slipping on a wet tile floor in a hotel-room...

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