Preston v. Duncan

• Decision Date: 25 February 1960
• Docket Number: No. 35232,35232
• Citation: 349 P.2d 605,55 Wn.2d 678
• Parties: Ada PRESTON, Appellant, v. William R. DUNCAN and Jane Doe Duncan, his wife, and the marital community composed thereof, and Carolyn Elene Duncan, Respondents.
• Court: Washington Supreme Court

Page 678

55 Wn.2d 678

349 P.2d 605

Ada PRESTON, Appellant, v. William R. DUNCAN and Jane Doe Duncan, his wife, and the marital community composed thereof, and Carolyn Elene Duncan, Respondents.

No. 35232.

Supreme Court of Washington, Department 2.

Feb. 25, 1960.

Burgess & Hallin, Seattle, for appellant.

Rosling, Williams, Lanza & Kastner, Joseph J. Lanza, Seattle, for respondents.

HILL, Judge.

This is an appeal, by a plaintiff, from a summary judgment dismissing two causes of action:

1. An action against a six-year-old minor because the child 'intentionally and with full knowledge of the probable effects thereof did jump' from a chair onto the plaintiff (a seventy-eight-year-old woman), 'knocking plaintiff to the floor'; consequence of which, she sustained a fractured left femur and other injuries.

It is conceded, in the plaintiff's brief, that the fact of jumping on her by the child did not constitute an actionable tort, unless the child 'performed the act with full knowledge and intention to throw appellant [plaintiff] off balance and pull her to the floor.'

2. An action against the parents of the minor, based on their negligence, in that while they

'* * * had full knowledge and awareness of a dangerous propensity of their said minor child for jumping upon and suprising other individuals, yet said defendants failed to warn or give any notice of said dangerous propensity to the plaintiff,'

who was employed by them as a 'baby sitter.'

By their answer the parents admit they were aware of the child's jumping tendencies, and admit that they failed to give any notice or warning thereof to the plaintiff; but deny any awareness that the tendency was dangerous, and deny that any special notice or warning thereof was required.

It is the plaintiff's position that the admissions in the answer are sufficient to give rise to a prima facie case against the parents on the theory of negligence; the contention being that whether the parents should have known that the tendency was dangerous, and that whether or not a warning was necessary, were jury questions.

The motion for summary judgment on behalf of the defendants was based upon the plaintiff's oral deposition and upon her written statement concerning her injury.

The plaintiff presented no affidavits, and, seemingly, relies upon the allegations in the pleadings as raising substantial issues of fact.

It is not clear to us exactly what the position of the plaintiff was before the trial court.

If it was her position that the facts, as set forth in her deposition and signed statement, are all that need to be presented to make a case for a jury on the issue of liability, the trial court was quite right in concluding (1) that there was no evidence in the action against the minor from which a jury could infer knowledge or intent on her part to cause the plaintiff to fall; and, in concluding (2) that there was no evidence in the action against the parents from which a jury could infer that the parents should have known that the child's jumping constituted a danger that made a warning necessary.

The court would, under such circumstances, if the case had gone to trial, properly direct a dismissal of both causes of action at the close of the plaintiff's case, and a summary judgment of dismissal was warranted.

However, if it was the plaintiff's position, as it seems to be, that the facts, as set forth in her deposition and signed statement, did not in themselves defeat her cause of action, then the trial court erred in granting a summary judgment. In that event, her additional affirmative allegations, which if established would entitled her to prevail, not being challenged by the defendants, she was not required to show by affidavit what her evidence (in support for those allegations) would be.

Let us assume that the plaintiff has evidence that the child's jumping on people has caused one or several to fall. This might be strengthened by evidence that she enjoyed seeing them fall. This would certainly make a jury question as to the child's intent on the cause of action against her; and it would, with equal certainty, make a jury question as to the parents' knowledge of danger and duty to warn.

The question, then, is: If such evidence exists, is the plaintiff required to produce it when the defendants' showing on their motion for summary judgment does not negate the existence of such additional evidence?

A brief statement of certain general principles relative to summary judgments, with which we are here concerned, may not be amiss. (The statements which are capitalized herein will be found to be supported by abundant authority, under a discussion of Federal Rule No. 56, in 6 Moore's Federal Practice, 2d Ed., § 56.15, p. 2101 et seq.)

The function of the Summary Judgment is to Avoid a Useless Trial.

A Trial Is Not Useless But Absolutely Necessary Where There Is a Genuine Issue as to Any Material Fact.

It seems obvious that in situations where,...