John v. OO (Infinity) S Development Co.

• Decision Date: 12 January 1990
• Docket Number: No. 88-045,88-045
• Citation: 234 Neb. 190,450 N.W.2d 199
• Parties: Dwain JOHN, Appellant, v. OO (INFINITY) S DEVELOPMENT COMPANY, a General Partnership, Defendant and Third-Party Plaintiff, National Union Fire Insurance Company, and Ginger D. Storey-Zimmer, doing business as Zimmer Management Services, Third-Party Defendant, Appellees.
• Court: Nebraska Supreme Court

Page 199

450 N.W.2d 199

234 Neb. 190

Dwain JOHN, Appellant, v. OO (INFINITY) S DEVELOPMENT COMPANY, a General Partnership, Defendant and Third-Party Plaintiff National Union Fire Insurance Company, and Ginger D. Storey-Zimmer, doing business as Zimmer Management Services, Third-Party Defendant, Appellees.

No. 88-045.

Supreme Court of Nebraska.

Jan. 12, 1990.

Syllabus by the Court

1. Summary Judgment. A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact or as to the ultimate inferences which may be drawn from the material facts, and the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3. Negligence. If the defendant's negligence has made the plaintiff's exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in so doing unless he acts unreasonably.

4. Negligence. A plaintiff does not assume a risk of harm unless he or she voluntarily accepts the risk. A plaintiff's acceptance of a risk is not voluntary if the defendant's conduct has left plaintiff no reasonable alternative course of conduct in order to avert harm to plaintiff.

T.J. Hallinan and Gordon D. Ehrlich, of Cobb, Hallinan & Ehrlich, P.C., Lincoln, for appellant.

Robert L. Bals, of Nelson & Harding, Lincoln, for defendant and third-party plaintiff, Infinity.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ.

GRANT, Justice.

Plaintiff-appellant, Dwain John, brought a negligence action against defendant-appellee OO (Infinity) S Development Company, a partnership (referred to hereinafter as "defendant"). Plaintiff alleged that defendant failed to maintain a "reasonable safe means" of ingress and egress, in that portable wooden stairs provided for plaintiff's use, as the employee of one of defendant's tenants, at defendant's loading dock were maintained by defendant in a defective state and as a result tipped over when plaintiff attempted to descend them, causing plaintiff injury. Defendant answered, denying it was negligent, and pleaded the defenses of contributory negligence and assumption of risk. Defendant also filed a third-party complaint against Ginger D. Storey-Zimmer, doing business as Zimmer Management Services, whom defendant had hired before the time of the injury to manage and maintain the property on which the plaintiff was injured. Defendant subsequently moved for summary judgment against plaintiff on the basis that the pleadings, deposition testimony, and affidavits demonstrated as a matter of law that plaintiff was contributorily negligent and had assumed any risk of injury from the stairs. The trial court sustained the motion for summary judgment on the grounds that the plaintiff was contributorily negligent as a matter of law, and dismissed plaintiff's petition. The trial court made no finding as to plaintiff's assumption of the risk.

Plaintiff appeals from this order, assigning as error the district court's holding that plaintiff was contributorily negligent as a matter of law. We reverse.

A party defendant is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact or as to the ultimate inferences which may be drawn from the material facts, and the moving party is entitled to judgment as a matter of law. Neb.Rev.Stat. § 25-1332 (Reissue 1985); Wicker v. City of Ord, 233 Neb. 705, 447 N.W.2d 628 (1989). Further, as we stated in Babb v. United Food & Commercial Workers Local 271, 233 Neb. 826, 830, 448 N.W.2d 168, 170 (1989), "[i]n appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence."

Considered in the light most favorable to plaintiff, the record shows the following. At the time of the incident on July 31, 1984, plaintiff was an employee of ADT Security Systems, for which he installed and maintained security systems. ADT was a tenant on the second floor of a two-story building owned by defendant Infinity and managed by defendant Ginger Storey-Zimmer of Zimmer Management Services. There was a parking lot on the west side of the building. There was an entrance on the northern end of the west side of the building and an entrance on the southern end of the west side of the building. Just south of the northern entrance and about 40 feet from the southern entrance there was a garage-type overhead door, about 10 to 12 feet wide, which opened into an interior loading area. The loading area was approximately 30 feet long and 20 feet wide. On the east end of the loading area was a loading dock which ran the length of the east wall of the loading area. The loading dock was approximately 3 feet above the level of the floor of the loading area.

Apart from jumping or stepping directly down from the loading dock, the only direct access from the dock to the floor of the loading area was a portable "step-stool" of wooden steps. The whereabouts of the actual steps is unknown. The oral descriptions and drawings of the steps by the witnesses and attorneys are approximate. Plaintiff supervised the construction of a model of the steps, and the model was admitted into evidence. The model shows that the steps were 2 feet high and extended outward 3 feet at the base. The three steps each extended 1 foot outward and were 1 1/2 feet wide. The drop from the loading dock to the first stair was 1 foot. The next drop was 10 inches, the next 10 inches, and the final drop from the third stair to the floor was 4 inches. There were no means for anchoring the steps to the loading dock. The steps had no "cross supports."

The steps had been used in the dock area since at least the time plaintiff helped ADT move into the building in 1982. At that time the steps were "wobbly" and would sway approximately 4 inches from side to side. Plaintiff used the steps about a hundred times in the course of moving ADT into the building, and about once a week after that. He used the dock area whenever he needed to load materials into the van. Plaintiff testified that he did not trust the steps and that he thought the steps could possibly collapse or tip, and therefore was always careful in using them, and was particularly careful in descending them. The condition of the steps deteriorated only slightly between the time ADT moved into the building in 1982 and the time of the incident in this case in July 1984.

The statements of the manager and at least one of the owner partners indicated that they were personally familiar with the condition of the steps, including, we infer, the instability of the steps. The manager of the property used the steps upon occasion and did not feel they were dangerous. Neither the manager nor the owner partner had ever received a complaint about the steps.

On July 31, 1984, plaintiff parked the company van inside the loading area and went upstairs to the office. About one-half hour later, he filled a 2-by 2-by 1.5-feet box with about 30 pounds of materials and took the elevator down to the first floor. Apparently, the elevator opens directly into the loading area. Plaintiff was carrying the box in front of his stomach. As he approached the portable wooden steps, he looked around the box at the top stair. Plaintiff intended to step onto the center of the first step. As plaintiff stepped onto the top step, the stairs tipped over, and plaintiff fell to the floor and was injured. The owner partner stated that after the incident he saw the steps in about the same condition they were in before the incident.

Under Neb.Rev.Stat. § 25-21,185 (Reissue 1985), plaintiff's contributory negligence will not bar recovery when the contributory negligence of plaintiff was slight and the negligence of defendant was gross in comparison. Thus, to entitle defendant to summary judgment, defendant had the burden of proving, under the facts viewed most favorably to plaintiff, that (1) plaintiff's contributory negligence was more than slight as a matter of law or (2) defendant's negligence was not gross in comparison to plaintiff's negligence as a matter of law.

Defendant did not meet its burden to show that plaintiff's contributory negligence was more than slight as a matter of law. We said in Tichenor v. Lohaus, 212 Neb. 218, 224, 322 N.W.2d 629, 633 (1982): " 'If the defendant's negligence has made the plaintiff's exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in so doing unless he acts unreasonably.' "

The evidence, viewed most favorably to plaintiff, shows that although he did not trust the steps, he believed that the steps could be used safely as long as he was careful. It cannot be said as a matter of law that this belief was unreasonable. Plaintiff had used the steps without incident on more than two hundred prior occasions. Others used the steps regularly for a number of years, and the manager did not feel they were dangerous. There were no complaints about the steps or evidence that the steps had ever tipped or caused injury before the incident involving plaintiff.

If plaintiff's belief was reasonable, then he only breached his duty to protect himself...