Johnson v. Fisher, 58-72

• Citation: 131 Vt. 382,306 A.2d 696
• Decision Date: 05 June 1973
• Docket Number: No. 58-72,58-72
• Court: United States State Supreme Court of Vermont
• Parties: Arlie JOHNSON, Admx. Estate of Eugene C. Davis v. Harriet FISHER and Village of Lyndonville.

Page 696

306 A.2d 696

131 Vt. 382

Arlie JOHNSON, Admx. Estate of Eugene C. Davis v. Harriet FISHER and Village of Lyndonville.

No. 58-72.

Supreme Court of Vermont.

June 5, 1973.

Alan W. Cook, of Richard E. Davis Associates, Barre, for plaintiff.

Downs, Rachlin & Martin, St. Johnsbury, for Harriet Fisher.

Karen McAndrew, of Dinse, Allen & Erdmann, Burlington, for Village of Lyndonville.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

This is a suit founded on negligence. Each defendant filed a motion for summary judgment. Defendant Fisher's motion was on the alternative for judgment on the pleadings without supporting affidavits. The ground of her motion was 'that a fireman assumes, as a matter of law, the risk of injury or death from the instrumentality which results in his being called to render assistance in his official capacity.'

Defendant Village of Lyndonville (hereinafter called Village) supported its motion with an affidavit of a trustee of the Village. It was therein stated that the plaintiff's decedent was a volunteer fireman, that the trustees of the Village had voted to obtain Workmen's Compensation Insurance to cover all employees of the Village including volunteer firemen; that such a policy of insurance had been purchased; that a report of decedent's injury was filed with the Commissioner of Industrial Relations; and, upon information and belief, that the plaintiff had made a claim against the Workmen's Compensation carrier.

The court, after hearing the motions, found that there was no genuine issue in this case as to the material facts involved and dismissed the action as to each defendant under V.R.C.P. 56.

The court concluded as to the Village that because the plaintiff's decedent, Eugene Davis, was a volunteer fireman, and that, as such, being covered by the provisions of the Workmen's Compensation Law, recovery by plaintiff was barred by 21 V.S.A. § 622 against the defendant Village. The ground of the dismissal of defendant Fisher was that as a volunteer fireman Davis, the decedent, assumed the risk of his employment.

The plaintiff appealed to this Court from the judgment order dismission her action.

Paragraph 6 of defendant Village's affidavit is made 'on information and belief', not on 'personal knowledge' as required by V.R.C.P. 56(e). See Reporter's Notes at p. 159. That paragraph related to a claim against the Workmen's Compensation carrier being made by plaintiff. The facts recited in paragraph 6 of the affidavit are not for consideration for lack of a compliance with the rule. See Automatic Radio Mfg. Co. v. Hazelting Research, 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1237 (1958).

The complaint alleges the following facts. Defendant Village owns and operates an electrical power transmission system with its essential components in the town of Lyndon including a line along town highway 36. Defendant Fisher owned land and premises situated adjacent to the power transmission line of the Village. There was a tree on her land having rotted branches extending over the transmission line. On April 25, 1969, the branches broke from the tree, struck the power line causing it to break and fall onto the ground. This started a fire and the Lyndonville volunteer fire department was called, Davis being one of the firemen who responded to the call. Upon arrival at the area he came in contact with the electric current being emitted from the severed transmission line lying on the ground but not discovered or discoverable by him. As a result he was electrocuted. He died leaving a wife and two children surviving him. It was for their benefit that this action was brought under the wrongful death statute, 14 V.S.A. § 1492.

The plaintiff alleged that both defendants were negligent in failing to remove the rotted limbs and branches from the tree over the transmission line. It is also alleged the Village failed to exercise due and reasonable care in the inspection, maintenance and operation of its transmission line so as not to cause injury or damage to the deceased. These allegations were traversed by the answer of defendant Village which raised a question of fact.

Defendant Fisher's answer admitted: (1) ownership of the land adjacent to the power transmission line; (2) the fall of the limbs and branches and consequent contact with the power line; (3) plaintiff's intestate (Davis) was a volunteer fireman of the Village's volunteer fire department and was called to the area to put out a fire following the severance of the power line; and (4) Davis came in contact with the severed power line lying on the ground but denied it was not discovered or discoverable by him. Defendant Fisher also alleged Davis assumed the risk of injury or death and negligently contributed to his death by failing to wear proper insulated footwear when he knew or ought to have known that he was in close proximity to an exposed source of electricity on the ground.

The basis of defendant Fisher's motion and the judgment of the court dismissing the action as to her was that as a fireman, Davis, as a matter of law, assumed the risk. In pleading this defense defendant Fisher 'shall affirmatively set forth and establish' it as required by V.R.C.P. 8. The burden of proof rested on this defendant.

The assumption of risk doctrine has no application unless there is knowledge of the existence of the risk, together with an appreciation of the extent of the danger. One cannot assume a risk unless one knows about it, appreciates it, and consents to assume it. Beck v. Dutra, 129 Vt. 615, 617, 285 A.2d 732 (1971); Garafano v. Neshobe Beach Club, 126 Vt. 566, 574, 238 A.2d 70 (1967).

Mere knowledge of the risk does not necessarily involve consent to the risk. The circumstances must be such as to warrant the inference that the plaintiff's decedent encountered the risk freely and voluntarily with full knowledge of the nature and extent thereof. Beck v. Dutra, supra, 129 Vt. at 617-618, 285 A.2d 732.

The application of the doctrine of assumption of risk connot be made except on an adequate state of facts. Here vital facts are lacking to support a summary judgment based on the fact that Davis assumed the risk as a matter of law. There is no showing that the decedent had knowledge of the existence of the risk involved, or that he appreciated it, and consented to assume the risk. It does not appear whether the fire was a building, grass or brush fire, whether a hidden danger existed, and whether the decedent had knowledge of the cause of the fire and that a live power line was in the area. In other words, facts are lacking as to just what the circumstances were surrounding the electrocution of the decedent. Facts are also lacking as to whether the defendant was on the premises and whether culpability existed on her part in failing to exercise an opportunity to warn of the danger.

The facts presented by the record do not justify the assertion that the defense was available as a matter of law. It was error for the court to hold, as a matter of law, that the decedent assumed the risk within the doctrine stated supra. The question was one for resolution by the jury under proper instructions of the court. Berry v. Whitney, 125 Vt. 383, 387, 217 A.2d 41 (1965).

Defendant Village argues that the summary judgment in its favor should be affirmed as decedent Davis had only the rights and remedies granted by the Workmen's Compensation Law on the premise that he was an 'employee' as defined by 21 V.S.A. § 626(a). The facts established by the affidavit of the village trustee were that plaintiff's intestate was a volunteer fireman; that in 1965 the village trustees voted to obtain Workmen's Compensation for all of its employees including volunteer firemen; that volunteer firemen were paid at an hourly rate for weekend standby service, attending monthly meetings and fighting fire; and that the trustees purchased a policy of Workmen's Compensation coverage for the year 1969.

In ruling on defendant's motion the court stated the affidavit of the Village established that decedent was acting as a volunteer fireman and 'that, as such, he was covered by the provisions of the Vermont Workmen's Compensation Law; and recovery in this action is barred by 21 V.S.A. sec. 622.' This statute reads:

'The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury.'

Plaintiff's contention is that the decedent was not at the time of his death an 'employee' of the Village within the definition of 21 V.S.A. § 626(a).

'Employees' as defined by 21 V.S.A. § 626(a) provides:

'The provisions of this chapter shall apply to employees in the state department of highways and to employees employed by the state buildings division, other than office employees, and to employees other than officials, except in the case of road commissioners or selectmen as provided in subd...