Nunez v. R'bibo

• Decision Date: 05 June 1989
• Docket Number: No. B,B
• Citation: 260 Cal.Rptr. 1,211 Cal.App.3d 559
• Court: California Court of Appeals Court of Appeals
• Parties: Mercedes NUNEZ and Francisco Nunez, Plaintiffs and Appellants, v. Andre R'BIBO, sued erroneously herein as Andre Enriquez, Defendant and Respondent. 037526.

Page 1

260 Cal.Rptr. 1

211 Cal.App.3d 559

Mercedes NUNEZ and Francisco Nunez, Plaintiffs and Appellants, v. Andre R'BIBO, sued erroneously herein as Andre Enriquez, Defendant and Respondent.

No. B 037526.

Court of Appeal, Second District, Division 2, California.

June 5, 1989.

Review Denied Aug. 23, 1989.

Ralph R. Benson, Woodland Hills, for plaintiffs and appellants.

Mommaerts & Rutledge, Jeffrey D. Hathaway, Los Angeles, for defendant and respondent.

ROTH, Presiding Justice.

Francisco Nunez appeals from the summary judgment in favor of defendant Andre R'Bibo. The question is whether appellants' claim for negligence and premises liability are negated by the doctrine of implied assumption of the risk. Concluding that the answer is "yes," we affirm.

The summary judgment motion is used to determine the existence of triable issues of material fact. The motion should be granted if the moving party is entitled to judgment as a matter of law. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)

Appellant was a self-employed gardener. Respondent was one of his clients. In May 1986, respondent asked appellant to trim the branches of some trees in front of his house. Appellant agreed to do the job. He asked to borrow respondent's ladder, which was taller than his own; respondent assented.

Appellant went to respondent's house with his cousin, Daniel Nunez, on May 26. They retrieved respondent's ladder from the garage. Each of them noticed that the ladder was "shaky" or "loose." They considered the ladder dangerous. Appellant leaned the ladder against the trees in order to climb onto the branches. From this vantage point at the trunk he used a chain saw to dismember the trees. On the ground, Daniel Nunez cut the branches into smaller pieces with a second chain saw. Respondent was not present when appellant and Daniel trimmed the tree on May 26.

Respondent was not entirely satisfied with the work performed; there was at least one more branch that he wanted trimmed, away from the trunk. Consequently, appellant and Daniel returned to respondent's residence two days later, on May 28, 1986. Again, respondent was not present.

They again took respondent's ladder from the garage, again noticing its wobbly condition. They set it up under the tree in a freestanding posture, standing on the concrete sidewalk or driveway. Appellant climbed to the top or penultimate step of the ladder, started the chain saw, and extended his arms over his head. He started cutting a length of the limb about 15 to 16 feet long.

When the branch was partially severed, it suddenly swung down, striking the ladder. The ladder and appellant fell to the ground. Appellant sustained severe head and back injuries.

On October 3, 1986, appellant filed his action for product liability, ¹ premises liability, general negligence, and loss of consortium. ²

Respondent moved for summary judgment, which was granted on August 4, 1988. Appellant's motion for reconsideration was denied on September 14, 1988. This appeal followed.

Appellant contends that the doctrine of implied assumption of risk does not operate to bar his complaint. We disagree.

The relevant principles were discussed at length in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536. Comparative negligence has not abolished reasonable implied assumption of risk. (Id. at [211 Cal.App.3d 563] p. 102, 243 Cal.Rptr. 536.) "The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter law, a personal injury plaintiff who has voluntarily--and reasonably--assumed the risk cannot prevail. Or stated another way, the individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care." (Id. at p. 104, 243 Cal.Rptr. 536.)

We find a reasonable assumption of risk by appellant in the case at bench. Appellant was an experienced gardener. Both he and his assistant Daniel immediately noted the ladder's rickety condition, before setting a foot on it. Appellant asked respondent's permission to use the ladder; respondent did not require appellant to use it. Appellant did not buy or borrow a sturdier ladder. Appellant's sawed off a single 15-16 foot section of branch, rather than cut the branch in smaller, safer sections. Any danger inherent in the operation was obvious, not obscure or concealed. These undisputed facts render the assumption of risk analysis applicable to the case at bench, and bar recovery.

Appellant seeks to avoid this conclusion by pointing out that reasonable assumption of risk does not apply to a non-voluntary or coerced undertaking. While we agree with that statement of law, it does not help appellant.

To support his position appellant cites Daniel's declaration submitted in opposition to the motion for summary judgment. Daniel stated when respondent asked appellant to trim the tree limb further away from the trunk, appellant protested that would be too dangerous; but respondent said that "he did not care and that [appellant] and I should just cut the branches."

This portion of Daniel's declaration is contradicted by his earlier deposition testimony in which Daniel stated that he was not present at the conversation in question, and did not overhear it. This deposition evidence is corroborated by appellant's deposition. Not all forms of evidence in connection with a summary judgment motion are of equal weight. When a defendant can establish a part of his defense with the admissions offered by plaintiff, the admissions are considered so valuable that...