Perry v. Green

• Decision Date: 14 April 1970
• Docket Number: No. 42453,42453
• Citation: 468 P.2d 483,1970 OK 70
• Parties: Dock M. PERRY, Plaintiff in Error, v. A. B. GREEN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 483

468 P.2d 483

Dock M. PERRY, Plaintiff in Error, v. A. B. GREEN, Defendant in Error.

No. 42453.

Supreme Court of Oklahoma.

April 14, 1970.

Syllabus by the Court

When on motion for summary judgment it appears from pleadings, affidavits, depositions; admissions, answers to interrogatories or other instruments properly before the Court that there are no genuine issues as to material facts or that admitted facts justify but a single inference therefrom, it is not error to grant summary judgment. (Rule 13--Judgment Where Facts Not Controverted, Title 12 O.S. Ch. 2 Appendix-Rules for the District, Superior and Common Pleas Courts of Oklahoma)

Appeal from the District Court of Oklahoma County; Boston W. Smith, Trial Judge.

Action for damages based on alleged acts of negligence of the defendant. The trial court sustained defendant's motion for summary judgment, filed subsequent to the filing of the plaintiff's petition, the defendant's answer, the plaintiff's reply, and a deposition by the plaintiff, taken by the defendant. After his motion for a new trial had been overruled, the plaintiff appealed to this court. Order affirmed.

Rinehart, Morrison & Cooper, Oklahoma City, for plaintiff in error.

Watts, Looney, Nichols & Johnson, Oklahoma City, for defendant in error.

LAVENDER, Justice.

This appeal, by the plaintiff in an action against the defendant in error herein, as the defendant, for damages resulting from alleged negligence on the part of the defendant, involves an order of the district court sustaining the defendant's motion for summary judgment.

Summary judgment is provided for in Rule 13 of the rules of this court for the district courts of this state. Insofar as pertinent herein, that rule (divided herein for easier reading) provides:

'A party may move for judgment in his favor where the deposition(s), admission(s), answers to interrogatories and affidavits on file show that there is no substantial controversy as to any material fact. * * *

The court shall render judgment if it appears that there is no substantial controversy as to any material fact and that any party is entitled to judgment as a matter of law.

If the court finds that there is no substantial controversy as to certain facts or issues, it shall make an order specifying the facts or issues which are not in controversy and direct that the action proceed for a determination of the other facts or issues. * * *.'

In addition to the plaintiff's petition, the defendant's answer, and the plaintiff's reply to the answer, a deposition of the plaintiff, Dock M. Perry, taken by the defendant, was on file in the case when the defendant's motion for summary judgment was filed. The plaintiff filed no affidavit or other materials in opposition to such motion, as authorized by an unquoted portion of Rule 13.

The plaintiff's petition alleges that he was employed as a laborer on the defendant's ranch and, on a specified date, had, under the direction of the defendant and his agents, servants and employees, climbed a 16-foot ladder for the purpose of making repairs on a barn structure located on premises owned by the defendant; that, while so engaged, the ladder slipped, causing the plaintiff to fall to, and strike, the ground, thus causing the damages complained of by the plaintiff; that the slipping of the ladder, furnished to the plaintiff by the defendant, and his fall, injuries and damages, were the direct and proximate result of the defendant's negligence, in the following particulars: (a) Failure to furnish the plaintiff with a safe place to perform his work; (b) Failure to furnish the plaintiff with safe tools and equipment for the performance of the work assigned; (c) Failure to erect and place the ladder, furnished to the plaintiff for such purpose, in such a manner as to give proper and adequate protection to the plaintiff as required by 40 O.S.1961, § 174; (d) Failure to warn the plaintiff of the dangers associated with the use of the ladder and mechanical contrivances furnished by the defendant; and (e) Failure to adequately secure the ladder furnished by the defendant for use by the plaintiff.

In addition to a general denial, the defendant's answer pleaded (1) That the accident in question was caused by the negligence and carelessness of the plaintiff, which negligence and carelessness constituted contributory negligence; (2) That the accident was an unavoidable casualty or misfortune, which could not have been avoided by the defendant in the exercise of ordinary care; (3) That the defendant was not negligent in any way and the sole cause of the accident was the negligence of the plaintiff; (4) That the plaintiff assumed the risk of all known and obvious hazards; and (5) That, if the ladder furnished by the defendant was faulty in any way (which is specifically denied by the defendant), it was open and obvious for all, in particular this plaintiff, to see, and the plaintiff is barred from any recovery based thereon.

The plaintiff's reply was a general denial of all allegations inconsistent with the allegations of his petition.

The following statements are derived from the plaintiff's deposition as filed in the case:

The incident in which the plaintiff was injured occurred while the plaintiff was standing on a ladder, pulling a nail from what he referred to as a 'weather-strip' that had been installed, horizontally, approximately 15 feet above the ground, above a wide doorway in a 21-foot-high barn on the defendant's ranch near Purcell, Oklahoma.

The weather-strip was made of 'roof-tin' and projected out from the face of the barn about four inches and then turned downward, for about five or six inches, in front of metal tracks above the doorway, from which two 'sliding' doors were to be hung. Nails holding the weather-strip to the barn went through a narrow, vertical lip on the weather-strip, just above the projecting part of the weather-strip. This made it impossible to remove the nails by pulling straight down on a hammer-handle, so he was using his claw-hammer 'sideways.'

The ladder being used by the plaintiff actually was the upper section of a two-section, aluminum, extension ladder that the defendant had acquired and brought to the ranch two or three years before the accident. Such upper section was 16 feet long, and was 16 or 18 inches wide, uniformly, from end to end. Its side-rails, or legs, were 'hollow' and open at the bottom ends, but the upper ends were rounded and closed and covered with rubber-like material. The lower section (which the defendant's superintendent was using at the time for the same purpose and in the same way) was one or two inches wider than the upper section, and, unlike the upper section, had hinged, corrugated rubber, or corrugated aluminum, 'shoes' on the bottom ends of the legs to keep the ladder from slipping away from whatever the ladder might be leaning against. The legs of the upper section would fit into channels on the lower section to form an extension ladder.

At the time of the accident, the plaintiff had worked for the defendant, off and on, for about 17 years, doing carpenter work, laying blocks, and finishing concrete on filling stations being constructed by the defendant, and on the defendant's ranch where the accident happened, averaging about 150 days, or better, a year, except for one year, during that period.

The plaintiff had used this extension ladder, or one or the other section of it, two or three times a week, most weeks, during the two or three years that the defendant had had the ladder at the ranch, and had used one section or the other, separately, just about as often as he had used the two sections together. The usual procedure was to separate the two sections when two people needed a ladder at the same time, but, if only one section was being used at any time, the usual procedure was to use the lower section because it was 'safer.' No one had ever warned the plaintiff not to use the upper section separately, and he had never warned any one else not to do so, because he did not consider it to be dangerous.

About eight o'clock on the morning of the accident, the defendant's superintendent, Cecil Clark, had told the plaintiff to come on out to the ranch when he finished some work he was doing in the defendant's shop in Purcell, and they would tear down the weather-strip (which, like the barn doors, had been damaged by a storm, and needed to be replaced). The plaintiff finished that work and arrived at the barn approximately ten minutes before the accident occurred about eleven o'clock a.m.

When he arrived at the barn, Mr. Clark was up on the lower section of the extension ladder and had either started pulling nails from the weather-strip or was just about to start doing so, and the upper section of the extension ladder was down on the ground. Without any further instructions from Mr. Clark, or any one else, the plaintiff picked up the upper section of the extension ladder, placed it against the barn, in front of the doorway, about eight or nine feet, to the right, from the other ladder, with the rounded, rubber-covered upper ends of the legs just above the weather-strip, and the open, lower ends of the legs on the ground about three or four feet out from the barn, climbed the ladder and started pulling nails from the weather-strip with his own claw-hammer. There was nothing whatsoever wrong with his hammer.

The accident occurred while he was pulling either his second or third nail--he didn't remember which. The ladder had remained in position, at the bottom and at the top, while he climbed it, and did not move at all until the accident occurred.

The plaintiff was wearing composition-soled shoes, and, while he was working, had both feet on one rung of the ladder, probably the fourth one from the top, but, at any rate, his shoulders were just about on a level with the top of the ladder.

Concerning his fall and the nail involved in the accident, the...