Radosevich v. Board of County Com'rs of County of Sweetwater
| Decision Date | 03 July 1989 |
| Docket Number | No. 88-226,No. 1,1,88-226 |
| Parties | John E. RADOSEVICH, Appellant (Plaintiff), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SWEETWATER, Wyoming; the Board of the Sweetwater County Solid Waste Disposal District; and Johnson, Fermelia & Crank, Inc., a Wyoming corporation, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
John W. James of James and James, Rock Springs, for appellant.
Frank D. Neville and Stuart R. Day (argued) of Williams, Porter, Day & Neville, Casper, for Bd. of Sweetwater County Solid Waste Disposal Dist. No. 1.
Ford T. Bussart of Greenhalgh, Bussart, West & Rossetti, Rock Springs, for Johnson, Fermelia & Crank, Inc.
Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and ROONEY, J. Retired.
This personal injury case arose from injuries appellant John Radosevich received when he fell from the top of a wall into a concrete garbage pit. The district court entered summary judgment in favor of defendants Sweetwater County Solid Waste Disposal District No. 1 (District) and Johnson, Fermelia & Crank, Inc. (JFC). Although variously stated by the parties, two main questions are presented by this appeal:
1. What legal duty does a landowner or occupier owe to an invitee in light of our decision in O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985); and
2. Were there disputed issues of material fact sufficient to preclude summary judgment?
We affirm.
The garbage pit into which Radosevich fell is located in Sweetwater County on land leased by the county from the Bureau of Land Management. It is a concrete pit, approximately 16 feet deep, intended for household trash dumping during periods when the primary landfill facility is closed. There is a two-foot high concrete wall along one edge to prevent vehicles from backing into the pit. Appellant hauled trash to the landfill in his pickup, as he had on numerous previous occasions. He backed his pickup up to the concrete wall at the edge of the pit. He then climbed onto the wall and began to throw trash from his truck into the pit. While doing so, he lost his balance and fell into the pit, suffering an ankle fracture. Appellant testified that he did not know why he lost his balance but speculated that it might have been because of a gust of wind, or because he slipped, or because he stepped backwards, or because the wall was narrow.
Appellant testified that he was aware that a person standing on the wall could fall off into the pit. He also testified that despite his awareness of the danger, his customary practice was to stand on the wall when unloading trash from his truck. Appellant contends that the wall was negligently designed in that it was too narrow to stand on safely and it should have been wider, or, alternatively, that it should have been impossible to stand on the wall. Since his accident, he now unloads while standing on the ground outside the wall.
Appellant sued District, JFC, and the Board of County Commissioners of Sweetwater
County alleging negligent design, construction and maintenance of the pit. He also claimed that District, as lessee, was liable for an unreasonably dangerous condition on the property. The Board of County Commissioners was dismissed from the case prior to this appeal. After discovery was completed, the district court granted summary judgment for appellees.
Appellant contends that his injury demonstrates that the wall was a dangerous condition and that since he was aware of the danger, the danger was obvious. He then argues that our decision in O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985), created an absolute duty in Wyoming to remove obvious dangers created by the defendant. He therefore concludes that District had a duty to remove the obvious danger; the injury shows that the duty was violated; so District must be liable.
Appellant misinterprets the effect of O'Donnell. That decision did not create new legal duties; it held that a plaintiff's behavior in choosing to encounter a known and obvious danger is evidence of his negligence. 1 This negligence is compared to the total fault under W.S. 1-1-109 if there is a trial. Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 898 (Wyo.1986).
The "absolute duty" rule advanced by appellant would make any landowner or occupier an insurer of all invitees. To impose an absolute duty to remove any condition which could possibly cause injury would effectively require the removal of all artificial structures. All vertical walls would have to be razed in order to prevent the obvious danger that someone might walk headlong into one and suffer an injury. Similarly, street curbs would have to be removed because someone might trip, fall and be injured. At the extreme, any artificial condition which could be tripped over, fallen off of, run into, or bounced off of causing injury would, according to appellant, be unreasonably dangerous and per se negligently designed, constructed or maintained.
An occupier of land's duty is to protect an invitee against unreasonably dangerous conditions, not against every conceivable risk of injury. The mere fact that an injury occurred does not establish that a condition was unreasonably dangerous, nor does testimony that the danger was "known" or "obvious." A departure from what is reasonable in design and construction under the circumstances must be shown to establish that a condition is unreasonably dangerous.
Appellant contends that a jury trial is needed to compare the negligence of the parties. While it appears from the materials presented in support of summary judgment that the plaintiff in this case may have been negligent, negligence of the plaintiff alone does not automatically require a trial to apportion liability. There must be a question of material fact in regard to defendants' negligence; negligence of a defendant will not be presumed merely because a plaintiff was injured.
To avoid summary judgment where, as here, defendant has established that the pit and wall are simple structures designed, constructed and maintained so as to be reasonably safe for its intended use--which was to prevent vehicles from backing into the pit--it was incumbent upon plaintiff to produce facts which indicate that the condition as designed, constructed or maintained was unreasonably dangerous. Plaintiff's response is best illustrated by the following excerpt from his deposition testimony:
Bald assertions that it should have been possible to prevent the injury or that the condition must ipso facto be unreasonably dangerous because someone was injured are not sufficient to create a question of material fact. Baldwin v. Dube, 751 P.2d 388, 390 (Wyo.1988). Giving every favorable inference to appellant as the non-moving party, we are unable to discern a genuine issue of material fact or any facts showing that the wall was dangerous when used for its intended purpose. There was no danger at all until appellant attempted to balance himself on the wall, in a gusty high wind, while throwing refuse from his pickup. Simply stated, the wall was not shown to be an unreasonably dangerous condition as designed and constructed.
Appellant asserts that numerous disputed issues of fact exist. In support, he has presented us with numerous references to deposition testimony of Kim Briggs, an administrative assistant to District, and of Edward Fermelia, one of the principals of JFC. However, he has not presented material facts which create a dispute. He has merely listed facts with which he disagrees. A plaintiff may not resist a summary judgment motion merely by identifying testimony which is contrary to allegations made in his complaint. To demonstrate a genuine issue of material fact requires more than repeated assertions that a defendant is liable. After a prima facie showing has been made, the opposing party cannot rely solely on allegations or argument to defeat the motion. He must produce similar materials which controvert the prima facie facts in the moving party's materials. Baldwin, 751 P.2d at 388.
The summary judgment is affirmed.
ROONEY, J. Retired, filed a concurring opinion.
I concur in that said by Chief Justice Cardine....
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