Pittman v. Pedro Petroleum Corp.
Decision Date | 31 October 1974 |
Citation | 42 Cal.App.3d 859,117 Cal.Rptr. 220 |
Parties | Billy J. PITTMAN and Georgia Mae Pittman, Plaintiffs and Appellants, v. PEDRO PETROLEUM CORPORATION et al., Defendants and Respondents. Civ. 43320. |
Court | California Court of Appeals Court of Appeals |
Demler, Perona, Langer, Bergkvist, Lauchengco & Lewine, Long Beach, for plaintiffs and appellants.
Barnes, Schag, Johnson, Kennedy & Carlson, Gregory R. Harris, Newport Beach, for defendants and respondents Pedro Petroleum Corp. and Southern Pac. Transp. Co.
James E. Cusick, Los Angeles, Herbert S. Brumer, Beverly Hills, Jerold V. Goldstein, for defendant and respondent Western Well Pulling Co. ALLPORT, Associate Justice.
Plaintiffs, father and mother respectively of Keith Pittman, a minor aged 13 years, filed this action for the wrongful death of their son. It is alleged that as a result of defendants' negligence in failing to properly enclose an oil well derrick owned and operated by them, the minor was permitted to climb upon and fall therefrom receiving injuries which resulted in his death. In their answer defendants alleged, among other things, affirmative defenses of contributory negligence and assumption of risk.
Motions for summary judgment were granted on May 15, 1973, in favor of defendants and an order dismissing the action was filed May 24, 1973. On July 17, 1973, plaintiffs filed a notice of appeal, etc., from the 'Summary Judgment and Order of Dismissal entered May 24, 1973.' On August 21, 1973, a formal judgment was entered in favor of defendants. Despite the irregularities noted we shall deem the appeal to have been properly taken from the summary judgment. (Code Civ.Proc., § 437c; rule 1(a), Cal.Rules of Court.)
It is contended on appeal that the trial court's misconception of the summary judgment procedure deprived plaintiffs of a fair trial in that defendants' showing made in support of the motion did not reveal any substantial evidence to carry their burden of providing that the minor was guilty of contributory negligence or assumed the risk involved in the undertaking.
Facts
The motion for summary judgment was based upon the pleadings, interrogatories and answers thereto and upon the affidavit of Ronald Carrico, a witness to the incident. No counter affidavits were filed. The record thus presented establishes without conflict that on September 25, 1971, at about 3:30 p.m. Keith and Ronald went upon defendants' premises and climbed up a metal ladder leading from the ground to the top of an oil drilling derrick under defendants' control. In descending Keith went first followed by Ronald. Upon reaching a point some 20 feet from the ground Ronald noticed Keith lying on the ground. It is unknown as to what actually caused Keith to fall. The only defect in the ladder was, as disclosed by plaintiffs' answers to defendant Pedro's first set of interrogatories, that 'You had ladders on the derrick extending to the ground, clearly inviting impulsive children to climb.' Deceased was considered by his parents to be both bright and academically talented. Apparently he was in full possession of his mental and physical faculties. For purposes of the motions defendants admitted negligence but contended that the foregoing established contributory negligence and assumption of risk. In granting the motion the trial court did not specify the grounds but it would appear that it was impressed with the existence of contributory negligence.
Discussion
Summary judgment procedure is authorized by Code of Civil Procedure section 437c. While it is true, as stated by plaintiffs, that the remedy of summary judgment has been characterized as being a 'drastic procedure to be used sparingly and with circumspection' (Jack v. Wood, 258 Cal.App.2d 639, 645--646, 65 Cal.Rptr. 856, 860) and that the burden is on the moving party to establish that the action is without merit (Rowland v. Christian, 69 Cal.2d 108, 111, 70 Cal.Rptr. 97, 443 P.2d 561; Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 49--50, 46 Cal.Rptr. 552), where there is no material issue of fact to be tried and the sole question before the trial court is one of law as to whether the claim of the moving party is tenable on the undisputed facts, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law. (Burke Concrete Accessories, Inc. v. Superior Court, 8 Cal.App.3d 773, 775, 87 Cal.Rptr. 619.)
With respect to assumption of risk the burden of proof rests on defendant to establish by a preponderance of the evidence (1) plaintiff's conscious assumption of the risk which, in the case of a juvenile, encompasses his capacity to realize and appreciate the risk, and (2) the risk which plaintiff assumed was the one that proximately caused the injury. (Beard v. Atchison, Topeka & Santa Fe Ry. Co., 4 Cal.App.3d 129, 138, 84 Cal.Rptr. 449.) In Vierra v. Fifth Avenue Rental Service, 60 Cal.2d 266, 271, 32 Cal.Rptr. 193, 196, 383 P.2d 777, 780 it was said, 'Stated another way, before the doctrine (assumption of risk) is applicable, the victim must have not only general knowledge of a danger, but must have Knowledge of the magnitude of the risk involved.' (Emphasis added.) The court went on to say:
The record in the instant case discloses that the proximate cause of the accident was simply the climbing of and falling from a ladder. While it is forcefully suggested, and not without merit, that assumption of risk should operate to relieve defendants of liability as a matter of law, we hesitate to base our decision upon an application of that doctrine in this case. While it is true that there is nothing uncommon about a ladder and that the danger of falling from one is familiar to children as well as adults (Doyle v. Pacific Elec. Ry. Co., 6 Cal.2d 550, 553, 59 P.2d 93), the age of decedent and the character of the ladder involved render the realization and appreciation of the specific danger involved a question of fact to be proved by defendant. In Beard v. Atchison, Topeka & Santa Fe Ry. Co., Supra, 4 Cal.App.3d 129, at 138, 84 Cal.Rptr. 449, at 455, it was said:
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