Otts v. Brough

Decision Date14 December 1965
Docket NumberNo. 9674,9674
PartiesCharles OTTS and Verna Otts, Plaintiffs-Appellants, v. DeVan BROUGH dba Brough Construction Co., Defendant-Respondent.
CourtIdaho Supreme Court

A. A. Merrill, Idaho Falls, and Merrill & Merrill, Pocatello, for appellants.

Clemons, Skiles & Green, Boise, for respondent.

SMITH, Justice.

Appellants, husband and wife, have appealed from a summary judgment dismissing their tort action directed against respondent, for recovery of damages for personal injuries sustained by appellant Charles Otts.

On or about June 1, 1963, respondent, hereinafter sometimes referred to as Brough, as general contractor, obtained a contract for the construction of two school buildings--the Eastside and Westside--for School District No. 321, Rexburg, Idaho.

Appellant Charles Otts, sometimes hereinafter referred to as Otts, obtained a copy of the plans and specifications of the school buildings in order to bid on the roofing and insulation. On June 11, 1963, Brough awarded to Otts, as a subcontractor, a contract for the installation of the roofing, insulation, damp-proofing, and sheet metal as it pertained to the insulation.

The plans for the Westside--a one-story building--showed an opening in the concrete main floor to the basement portion of the building. The opening, 39 inches wide and 7 feet and 4 inches long, was so constructed. During construction, the opening in the concrete floor was referred to as a 'buckout,' meaning that it was a framed in opening to accommodate metal work or metal pipe of the ventilating system to be installed by another subcontractor. Directly above the buckout there was, during construction, an opening in the ceiling about 3 feet by 3 feet in size. Workers used ladders in the buckout opening to carry materials to and from the main floor and the basement.

The main hall of the Westside building was 12 feet wide and extended in a northsouth direction approximately 123 feet.

As the construction progressed and the interior walls were installed, the buckout opening was located in an area referred to as the janitor's room, which opened by a doorway, 30 to 32 inches wide, onto the main hall of the building.

An opening 3 feet by 5 feet in size extended through the wall of the janitor's room into the main hallway. This opening, intended to be covered by a metal grill, was 3 to 3 1/2 feet above the main floor, adjacent to and above the east end of the buckout opening.

On October 24, 1963, there was daylight coming into the janitor's room through the opening in the roof above the buckout, and from the main hall. On that date the insulation had not been completed, doors were still being installed, and certain phases of the electrical, plumbing, heating and ventilating systems, and the basement steps, were not completed.

During the morning of October 24, 1963, Brough called Otts to the job site relating to the progress of insulation of the building. The insulating material was required to be blown, by mechanical blowers, into areas above the ceiling sheetrock. The two men, Otts ahead of Brough, walked northerly down the main hallway. Otts was pointing to the ceiling requiring completing by installation of sheetrock (not covered by Otts' subcontract) before the insulation work could proceed. As they approached the area of the janitor's room, some 15 feet from the northerly end of the building, Otts entered the room still pointing to the ceiling areas, and fell into the buckout opening.

Otts sustained severe injuries occasioned by the accident for which he seeks recovery. His amended complaint shows that in the first instance he directed his action against School District No. 321, as the owner of the building, and Brough's two subcontractors, i.e., Bingham Mechanical & Metal Products, Inc., and A. C. Bidstrup, who had contracted the electrical, plumbing, heating and ventilating installations.

During the course of the action the trial court granted the separate motions for summary judgment of the four defendants and entered a separate summary judgment dismissing the action as to each defendant. Otts appealed from all the summary judgments but subsequently dismissed the appeal as to all the defendants except respondent Brough, thus leaving the action and the appeal solely between appellant Otts, a subcontractor, and respondent Brough, the general contractor.

Appellants in their amended complaint now allege in effect that Brough, the general contractor, in control of the premises for the purpose of the contracted work there carried on, owed the duty of using ordinary care to provide a safe place for Otts to work, including the duty to warn of dangers either known to the general contractor or discernible by him through ordinary care, and otherwise to use ordinary care to protect Otts from injury; that Brough allowed the buckout opening to exist behind a closed or swinging door, unguarded and without barricades, railing or other devices to protect the workers, including Otts; and that Brough breached the standard of reasonable care in that he did not provide any warning or other protection, and that although he knew or was charged with knowledge of such condition of danger, and having opportunity to warn Otts of the danger, he failed to do so and allowed Otts to enter into this area of danger.

Brough in his answer admitted the factual aspects of the accident, but denied negligence on his part as the proximate cause of the accident; and by affirmative defenses he alleged, as causative of appellant's injury and damage, his assumption of risk and negligence.

Respondent contends that the holdings of the trial court in granting the motions for summary judgment of the two defendant subcontractors, became the law of the case, res judicata and binding upon appellants Otts as to respondent Brough, inasmuch as Otts did not appeal from those summary judgments. In that regard respondent directs attention to the memorandum decision of the trial court on those motions wherein the court held in effect that the same duty rested upon all the subcontractors, as to keeping the premises reasonably safe, including the protection of the buckout opening, and that Otts was contributorily negligent insofar as the two defendant subcontractors were concerned, as regards the happening of the accident; also, that Otts would be considered a co-employee under the Workmen's Compensation Law.

The ruling of the trial court (except as in respect to the Workmen's Compensation Law) relates to the relationship and duties as between the three subcontractors, including Otts, but not as between Brough, the general contractor, and his subcontractors. Moreover, whether Otts would be considered as a co-employee with the two defendant subcontractors under the Workmen's Compensation Law, we need not decide inasmuch as appellants' action is no longer against those subcontractors but only against Brough, the general contractor. Hence the doctrine of the law of the case can have no application insofar as the action is directed only against Brough, the general contractor.

The trial court's ruling upon respondent Brough's motion for summary judgment is to the effect that the pleadings, depositions, files and records show no genuine issue as to any material fact, and that respondent Brough is entitled to judgment as a matter of law. I.R.C.P. 56(c). Appellants by their assignments contend that the trial court erred in so ruling and in dismissing their action directed against respondent, Brough.

The trial court when confronted by a motion for summary judgment must determine if there are factual issues which should be resolved by the trier of the facts. I.R.C.P. 56(c); Deshazar v. Tompkins, 89 Idaho 347, 404 P.2d 604 (1965); Anderton v. Waddell, 86 Idaho 220, 384 P.2d 675 (1963); Fairchild v. Wiggins, 85 Idaho 402, 380 P.2d 6 (1963); Jones v. State, 85 Idaho 135, 376 P.2d 361, 3 A.L.R.3d 1158 (1962); Sutton v. Brown, 85 Idaho 104, 375 P.2d 990 (1962); Allen v. Moyle, 84 Idaho 18, 367 P.2d 579 (1961); Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960).

A motion for summary judgment must be denied if the evidence is such that conflicting inferences can be drawn therefrom and if reasonable men might reach different conclusions. Deshazar v. Tompkins, supra; Layrite Products Company v. Lux, 86 Idaho 477, 388 P.2d 105 (1964); Sutton v. Brown, supra; Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962); Anderson v. Smith Frozen Foods of Idaho, Inc., 83 Idaho 494, 365 P.2d 965 (1961); Merrill v. Duffy Reed Construction Co., supra.

All doubts and all favorable inferences which may be reasonably drawn from the evidence will be resolved against the party moving for summary judgment. Deshazar v. Tompkins, supra; Jack v. Fillmore, supra; In re Kilgore's Estate, 84 Idaho 226, 370 P.2d 512 (1962); Sutton v. Brown, supra; Merrill v. Duffy Reed Construction Co., supra.

If there are conflicts and inconsistencies in the depositions of the opposing party, the court should consider only the portions most favorable to such party. Deshazar v. Tompkins, supra; Jack v. Fillmore, supra.

Owners or persons in charge of property owe to an invitee or business visitor the duty to keep the premises in a reasonably safe condition, or to warn the invitee of hidden or concealed dangers of which the owner or one in charge knows or should know by exercise of reasonable care, in order that the invitee be not unnecessarily or unreasonably exposed to danger. Alsup v. Saratoga Hotel, 71 Idaho 229, 229 P.2d 985 (1951); Pittman v. Sather, 68 Idaho 29, 188 P.2d 600 (1947); Hall v. Boise Payette Lumber Co., 63 Idaho 686, 125 P.2d 311 (1942); Martin v. Brown, 56 Idaho 379, 54 P.2d 1157 (1936); Carr v. Wallace Laundry Company, 31 Idaho 266, 170 P. 107 (1918). In Feeny v. Hanson, 84 Idaho 236, 371 P.2d 15 (1962), the Court approved the rule incorporated into a jury instruction, reading:

'* * * the duty to keep the...

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    • 5 Octubre 2020
    ...duty to invitees was to keep the premises in a safe condition and warn the invitee of hidden or concealed dangers. Otts v. Brough , 90 Idaho 124, 132, 409 P.2d 95, 98 (1965) ("Owners or persons in charge of property owe to an invitee or business visitor the duty to keep the premises in a re......
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    • 5 Octubre 2020
    ...duty to invitees was to keep the premises in a safe condition and warn the invitee of hidden or concealed dangers. Otts v. Brough , 90 Idaho 124, 132, 409 P.2d 95, 98 (1965) ("Owners or persons in charge of property owe to an invitee or business visitor the duty to keep the premises in a re......
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