Marshall v. Miles

• Decision Date: 29 February 1972
• Docket Number: No. 214,214
• Citation: 54 Wis.2d 155,194 N.W.2d 630
• Parties: Earl MARSHALL, Appellant, v. Robert MILES, Respondent.
• Court: Wisconsin Supreme Court

Page 630

194 N.W.2d 630

54 Wis.2d 155

Earl MARSHALL, Appellant, v. Robert MILES, Respondent.

No. 214.

Supreme Court of Wisconsin.

Feb. 29, 1972.

This is an appeal from a judgment granting the motion of the defendant-respondent for summary judgment and dismissing the complaint of plaintiff-appellant upon its merits and with prejudice.

The plaintiff commenced an action for damages for personal injuries which he sustained when he fell from the roof of a house owned by the defendant.

Sheridan, Sheridan & Mellick, Waukon, Iowa, Bosshard, Sundet & Nix, La Crosse, for appellant.

Steele Smyth, Klos & Flynn, R. W. Schroeder, La Crosse, for respondent.

CONNOR T. HANSEN, Justice.

The complaint alleged that at the request of the defendant, plaintiff engaged in measuring the roof of defendant's house for the purpose of estimating the number of shingles necessary for replacement. While on the roof, plaintiff slipped and fell to the ground. Plaintiff alleged the fall was proximately caused by the negligence of the defendant. Defendant answered, denying each of the material allegations in the complaint and, as an affirmative defense, claimed the accident was caused by the plaintiff's own negligence.

Defendant's affidavit in support of the motion for summary judgment stated that although nothing was said concerning compensation to the plaintiff for measuring the roof, he assumed an agreement would be reached at a later time. Defendant was unaware of any defect that would make the roof hazardous to walk on although he never made any personal inspection of the roof for that purpose. He never made any statement or representation to the plaintiff about the condition of the roof. He stated that when plaintiff stepped off the ladder and out of his view, he had one foot on the first rung and was in the process of ascending the ladder himself, Before he could take another step, plaintiff slid into the top of the ladder, knocking it away from the roof. The top of the ladder swung back and plaintiff then fell to the ground between the side of the house and the ladder. Defendant further stated that at no time did plaintiff tell him to hold the ladder as a barrier, nor did he make any exclamation when he slipped and fell.

The adverse examination of the plaintiff reveals that he had measured roofs for other persons for compensation on at least three previous occasions but it was his belief that he was doing the work for the defendant as a favor. On the day of the accident, plaintiff did not intend to measure the roof of defendant's house because it had been raining at his home some two miles away. He, therefore, changed from his work clothes to his street clothes and called the defendant to tell him that he was not coming over. Defendant stated that it was not raining at his house and plaintiff then agreed to come over and do the work. He stated that the defendant did not make any representation to him about the condition of the roof other than stating that his house needed roofing. Upon arriving at the defendant's home, plaintiff examined the ladder furnished by the defendant and judged it to be satisfactory. As he started up the ladder he turned to the defendant and told him to hang onto the ladder, which the defendant did. Upon reaching the top, he wiped his hand across the surface of the roof to determine whether or not it was dry; he did not check to see if the granules in the asphalt shingles were loose. He then got off the ladder and put both feet on the roof. As he took a step with his right foot the granules gave way under his left foot and caused him to slip and fall. He slid down the roof on his stomach in a 'spread eagle' position with his hands in front of him, grabbing for the roof. He also stated that he was trying to grab the ladder while he was sliding. At no time did he cry out or give any warning. He stated that when he hit the ladder it '. . . gave back a ways and then I could feel Mr. Miles batting at me with his ladder, . . . and that held my feet from coming down between the ladder and the house and it consequently turned me over on my back and that's where I fell, flat on my back.' Plaintiff could not actually see the defendant at this time. He further stated that he did not explain to the defendant why he wanted him to hold the ladder but he stated that part of the reason for directing the defendant to hold the ladder was to steady it as he was ascending; the other part of the reason was that 'it is nice to know that there is somebody there holding the ladder,' although plaintiff stated he was not expecting to slip and fall on the roof.

In opposition to the motion for summary judgment, plaintiff, by his attorney, submitted an adverse examination of the defendant along with portions of his own adverse examination. The defendant stated that the roof on his house did not have a very steep pitch. He also stated that the plaintiff did not tell him to hold the ladder although the defendant did so until the plaintiff got off the ladder and onto the roof. Defendant then started up the ladder himself. He further stated that the ladder could not have acted as a barrier unless it was known that the plaintiff was about to slide into it.

Plaintiff also submitted the affidavit of his attorney who stated that from his (the attorney's) notes and recollection, the defendant admitted, in a conversation in the attorney's office, that the plaintiff requested him to hold the ladder and that he did so for a short time but then started to climb the ladder himself.

ISSUE.

The issue presented on this appeal is whether the trial court erred in granting defendant's motion for summary judgment.

The rules relating to the use of summary judgment procedure are well established and they have been set forth and explained by this court many times.

Summary judgment is a drastic remedy that should not be granted where material evidentiary facts are in dispute, or, where reasonable inferences can be drawn from undisputed facts that would lead to alternative and opposite reslts. Hardscrabble Ski Area v. First Nat. Bank (1969), 42 Wis.2d 334, 166 N.W.2d 191; Balcom v. Royal Ins. Co. (1968), 40 Wis.2d 351, 161 N.W.2d 918; Schandelmeier v. Brown (1968), 37 Wis.2d 656, 155 N.W.2d 659. The summary judgment procedure initially requires an examination of the pleadings to determine whether a cause of action has been stated and whether material issues of fact are presented. Younger v. Rosenow Paper & Supply Co. (1971), 51 Wis.2d 619, 188 N.W.2d 507. However, the allegations of the pleadings may not be considered as evidence or other proof on a disposition of the motion. Milwaukee County v. Schmidt (1968), 38 Wis.2d 131, 156 N.W.2d 493; McCluskey v. Thranow (1966), 31 Wis.2d 245, 142 N.W.2d 787. Assuming a cause of action and the existence of factual issues, an examination is then made of the moving party's (defendant's) affidavits and other proof to determine whether a prima facie defense has been established. Cirillo v. Milwaukee (1967), 34 Wis.2d 705, 150 N.W.2d 460. If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (plaintiff's) affidavit and other proof to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. Skyline Constr., Inc., v. Sentry Realty, Inc. (1966), 31 Wis.2d 1, 141 N.W.2d 909. The summary judgment procedure is not a trial on affidavits. Jahns v. Milwaukee Mut. Ins. Co. (1968), 37 Wis.2d 524, 530, 155 N.W.2d 674, 678:

'. . .. A party opposing summary judgment defeats the motion if he shows by affidavits, or other proof, that there are substantial issues of fact or reasonable inferences which can be drawn from the evidence. The court does not try the issues but decides on...