Papagni v. Purdue
| Decision Date | 11 February 1958 |
| Docket Number | No. 4014,4014 |
| Citation | 74 Nev. 32,321 P.2d 252 |
| Parties | Carlo PAPAGNI and Anna Papagnl, husband and wife, Appellants, v. Albert H. PURDUE, Respondent. |
| Court | Nevada Supreme Court |
Wanderer & Perry, Las Vegas, for appellants.
McNamee & McNamee, Las Vegas, for respondent.
This is an appeal taken by the plaintiff below from summary judgment in favor of the defendant in an action for injuries resulting from negligence. The injuries resulted from a fall upon a stairway which, it was alleged, defendant had negligently failed to repair.
In support of the judgment defendant contends that the complaint of the plaintiff shows upon its face that plaintiff had either assumed the risk which the defective stairway created or had been guilty of contributory negligence. Defendant concedes that if such is not the case summary judgment was not proper. The sole question upon this appeal, then, is whether it may be said that assumption of risk or contributory negligence conclusively appears as a matter of law from the allegations of the complaint; or whether it may be said that questions concerning such defenses remain for the court or jury.
The complaint alleges that plaintiff leased a dwelling house from defendant for one month. It then proceeds: It is then alleged that plaintiff, after the lapse of three months, 'while using said stairs, tripped and fell as a result of defendant carelessly and negligently allowing the said stairs to remain in said dangerous condition.'
It is clear that plaintiff was aware of the defect which defendant had agreed to repair and of the fact that danger (in some degree) resulted from failure to repair and that she had used the stairs with such knowledge. More is necessary, however, if contributory negligence or assumption of risk is to follow.
If reliance is upon contributory negligence it must appear that the risk which plaintiff knowingly took was not, under the circumstances, a reasonable one to take; that the apparent danger was such that a reasonably prudent person would not have undertaken the risk of using the stairs. Am.Jur., v. 38, Negligence, §§ 182, 184, pp. 859-862.
If reliance is upon assumption of risk, it must appear not only that the condition was recognized as dangerous, but also that plaintiff appreciated the nature of the risk involved. The California Supreme Court considered this problem in the case of Hawk v. City of Newport Beach, 46 Cal.2d 213, 293 P.2d 48, 51. The court there said that the plaintiff did not assume the risk of injury...
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