Martins v. Omega Elec. Co., Inc., 95-676-A

• Decision Date: 22 April 1997
• Docket Number: No. 95-676-A,95-676-A
• Citation: 692 A.2d 1203
• Parties: George MARTINS et al. v. OMEGA ELECTRIC CO., INC. et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1203

692 A.2d 1203

George MARTINS et al. v. OMEGA ELECTRIC CO., INC. et al.

No. 95-676-Appeal.

Supreme Court of Rhode Island.

April 22, 1997.

Fred L. Mason, Jr. and Mark Nugent, Providence, for Plaintiff.

Michael G. Sarli and Stuart D. Hallagan, III, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER and FLANDERS, JJ.

OPINION

PER CURIAM.

This matter came before the Supreme Court for oral argument on January 24, 1997, pursuant to an order directing both parties to show cause why the issues raised in this appeal should not be summarily decided. The plaintiffs, George Martins (Martins), his wife, Linda, and their children, Susan and Clothilde, appeal from a summary judgment in Superior Court in favor of the defendants, Omega Electric Company Co., Inc. (Omega), H.V. Collins Company (Collins), Morse Diesel, Inc. (Morse), and John Doe. After hearing the arguments of counsel and reviewing their memoranda, we perceive no cause and will therefore summarily decide this matter.

Martins was employed by a subcontractor engaged to do carpentry work in the Citizens Plaza building in Providence. On April 6, 1990, while doing carpentry work, he came into contact with an electrical wire, sustained a severe shock, and was injured. He commenced a civil action in the Superior Court, seeking damages from Omega, the subcontractor responsible for installing the electrical wiring, and Collins and Morse, the general contractors. ¹

In pretrial-deposition testimony, Martins stated that the incident giving rise to his injuries occurred while he was in the process of repairing a ceiling. He testified that the electrical wiring, or flex conduit, suspended from the ceiling was improperly attached to temporary light fixtures and that when he attempted to move the ensemble, he was severely injured by an electrical charge. ² He testified that before being injured, he had several times that morning come in contact with other flex-conduit wires and felt no electrical current. He also noted that earlier on the day of his injury he had asked an electrician employed on the job site to move some of the wiring, and the electrician refused, citing the wiring's high voltage. ³ Martins also stated that he had encountered similar flex-conduit types of wiring at other job sites and that despite being aware of the electrical voltage it conveyed, he had often handled flex-conduit wiring without suffering any electrical shock. In concluding the deposition, he was asked by defense counsel whether "temporary wiring and stuff like that" could be dangerous and result in an electrical shock. To that rhetorical question, Martins answered in the affirmative. Seizing upon that answer, defendants then filed a motion for summary judgment, asserting that Martins had assumed the risk of his injury by touching the flex-conduit wire.

Martins later supplemented his pleadings by affidavit, submitted after his deposition testimony, in which he repeated many of the same assertions made during his deposition, adding, however, that he "was not afraid of moving the metal flex conduit * * * since [he] thought that the wiring was insulated, which prevents the risk of an electrical shock."

A Superior Court motion justice, hearing defendants' motion for summary judgment, agreed with defendants' contention that Martins had "assumed the risk of electrical shock" and granted defendants' motion for summary judgment. Martins appealed to this Court.

Martins contends that the trial justice erred in granting summary judgment. He contends that the case file records and his affidavit in opposition to the defendants' motion raised material issues of fact concerning his subjective knowledge and apprehension that the particular flex-conduit wire in question, if touched by him, would cause him to sustain an electrical shock and injury.

The defendants, on the other hand, submit that the motion justice properly granted summary judgment. They contend that Martins's affidavit was merely an attempt to create a "sham" factual issue in order to preclude summary judgment and should not be considered by this Court in our review of this appeal. In particular, defendants point to that portion of Martins's affidavit where he states that he "was not afraid of moving the metal flex conduit * * * since [he] thought that the wiring was insulated, which prevents the risk of an electrical shock." This statement, argues defendants, contradicted Martins's deposition testimony in that Martins never spoke of the flex conduit's insulating features, and, in fact, admitted to knowing that temporary wiring posed a risk of electrical shock. Because of this inconsistency, defendants urge us to disregard Martins's affidavit.

The principles governing the doctrine of assumption of the risk are well settled. "In the absence of an express agreement, an individual does not assume the risk of harm arising from another's conduct unless he [or she] knows of the existence of the risk and appreciates its unreasonable character." Rickey v. Boden, 421 A.2d 539, 543 (R.I.1980). In determining whether an individual has assumed the risk of harm, this Court examines the record to learn what the injured party "saw, knew, understood, and appreciated." Id. This is a subjective standard, keyed solely on the observations and understandings of the plaintiff at the time of injury. Filosa v. Courtois Sand and Gravel Co., 590 A.2d 100, 103 (R.I.1991). If it can be determined that the individual voluntarily proceeded to engage in a certain course of conduct, despite knowing and appreciating the danger involved, that individual will be deemed to have assumed the risk of injury and not be entitled to relief. Rickey v. Boden, 421 A.2d at 543. Even though this last inquiry is generally left to the trier of fact, if the facts, however, suggest only one reasonable inference, the issue of assumption of the risk then becomes a question of law for the trial justice. Id.

Before we embark upon a review of the case file record to determine whether Martins...