Rooney v. Statewide Plumbing & Heating--General Contractors, Inc.
| Decision Date | 17 May 1972 |
| Docket Number | HEATING-GENERAL,No. 347,347 |
| Citation | 265 Md. 559,290 A.2d 496 |
| Parties | Hollie T. ROONEY et vir v. The STATEWIDE PLUMBING ANDCONTRACTORS, INC., et al. |
| Court | Maryland Court of Appeals |
Richard C. Rice, Laurel, for appellants.
Edward C. Mackie and Austin W. Brizendine, Towson (Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellees.
Argued before HAMMOND, C. J., and BARNES, FINAN, * SINGLEY and SMITH, JJ.
When a housewife fell through a hole in the hallway of her own home she and her husband sued the contractor and subcontractor who were in the process of installing a new furnace when the accident took place. They complain here because summary judgment was entered against them upon motion of the defendants. We shall affirm.
Appellants, Joseph E. Rooney and Hollie T. Rooney (the Rooneys), contracted with appellee, The Statewide Plumbing and Heating-General Contractors, Inc. (Statewide), for a new furnace. Appellee James F. Colwell (Colwell) did the work. Judge Macgill summarized the facts in his opinion:
'According to her deposition, Mrs. Rooney and her husband owned a dwelling in Savage, Howard County, which had a space of about four to five feet between the first floor and the ground. The house was heated by a furnace and in connection with this furnace there was a grate or register in the floor in the hallway. The Rooneys decided to have the furnace replaced and Mrs. Rooney made arrangements with the defendants to have this done. She was at home when the workmen arrived to remove the old furnace and install the new one. While the men were working she remained, most of the time, in the dining room looking after her grandson. The work was being done about twelve feet away in the hallway and she was aware that it was being done because of the noise, although she did not look into the area. It was a bright, sunny day and there was no problem about lighting. Sometime after four o'clock in the afternoon Mrs. Rooney cleaned off the dining room table and picked up some letters and papers which belonged to her son and proceeded to take them to a closet in the hallway. The grate or register in the hallway had been removed by the workmen and she fell through the uncovered opening to the ground under the floor, injuring herself.
'The relevant parts of her deposition with respect to this incident are as follows:
'Q. Well, now, then you, I take it, you walked toward the closet; is that correct? A. I just walked back in and threw the mail up and hit the ground.
'Q. Now, did you look straight ahead, or look down, or look up when you started walking toward the closet in the hallway? A. I just deliberately walked in there-I don't remember looking up or down or any way. I walked there a million times.
'Q. You knew that the men were working there, did you not? A. I knew they were working, yes.
'Q. You knew the grate was out, didn't you? A. No, I did not. Do you think I would have walked in it if I did?
'Q. Now, how large was the hole? A. I don't know how large it is. Large enough for me to fall down through.
'Q. When you were walking from the dining room table toward the closet in the hallway, didn't you see that there was a hole there? A. No, I didn't see the hole there.
'Q. Did you look down there? A. No.
'Q. Did you, or did you not, look when you walked ahead? A. No, I didn't.
'
The Rooneys sued Statewide and Colwell, claiming negligence in installing the furnace and breach of contract in failing 'to complete said job in a safe manner.' The fourth count was a claim against Statewide only. In it the Rooneys claimed that Statewide 'failed and refused to properly install said furnace and as a result thereof, the Plaintiffs, Hollie T. Rooney and Joseph E. Rooney, ha(d) in the past and/or (would) in the future incur the expenses of properly installing said furnace.' This was the only count that did not deal with the incident in which Mrs. Rooney fell. Of the counts dealing with that incident, some were against Statewide, some against Colwell, and some against both Statewide and Colwell.
Both defendants moved for summary judgment. Two affidavits were presented by the Rooneys to the court for its consideration on these motions in addition to the deposition of Mrs. Rooney which was on file. One was an affidavit of Mrs. Rooney in which she said 'that on April 8, 1967, the day on which she fell * * * she did not know that the grate had been removed from the floor prior to the fall; that the hole where she fell was not visible from normal occupation of the dining room and at no time prior to the fall was she in a position in the dining room to see where the grate had been removed.' The second was the affidavit of another contractor in which he said 'that he (was) the President of Laurel Fuel Oil and Heating Co., Inc., which (was) and ha(d) been engaged in the business of installing heating units in dwellings; that he personally examined the home of Mr. and Mrs. Rooney at 212 Commercial Street, Savage, Maryland * * *; that he was shown the place where the grate had been removed in the installation of the new furnace; that based upon his experience in installing heating units, it is not good practice nor is it in accordance with the general standards of construction to leave a hole of that size open for any period of time and good workmanship requires the person or persons installing such a furnace to keep said hole firmly covered at all times when workmen are not in the immediate area.'
The Rooneys contend that Judge Macgill erred in ruling as a matter of law that Mrs. Rooney was guilty of contributory negligence, both on the basis that she was not contributorily negligent and because '(w)hen a person has contracted for the performance of work in a good and workmanlike manner, he or she is entitled to have what was bargained for, without the necessity for unusual caution.' They also contend that there was error in granting summary judgment on the basis of contributory negligence as to the fourth count, which is 'solely in contract for failure to properly install the furnace.' They say this 'is obviously distinct from any claim of negligence or lack thereof.'
The principles relative to consideration of a motion for summary judgment at the circuit court level are familiar and have been summarized recently in Sherman v. Am. Bankers Life Assur., 264 Md. 239, 241-242, 285 A.2d 652 (1972), and Brown v. Suburban Cadillac, Inc., 260 Md. 251, 254-255, 272 A.2d 42 (1971). The purpose is not to try the case on its merits, but to determine whether any real dispute exists as to any material fact. If the pleadings, depositions, admissions, and affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then summary judgment should be granted. If there is a genuine dispute as to any material fact, then it should not be granted. In reviewing such a motion we must be concerned primarily with deciding whether or not a factual issue exists. Therefore, all inferences should be resolved against the party making the motion. However, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact. This showing must be by facts which would be admissible in evidence. Such a material fact must be one the resolution of which will somehow affect the outcome of the case. Parklawn v. Nee, 243 Md. 249, 254, 220 A.2d 563 (1966).
Apparently, the Rooneys see the triable issues of fact here as whether Mrs. Rooney prior to her fall was in a position in the dining room to see where the grate had been removed in the hallway and whether the general standards of care applicable to such contractors would have required the contractor to keep the furnace hole 'firmly covered at all times when workmen (were) not in the immediate area.'
In So. Md. Electric Co-op....
To continue reading
Request your trial
-
Salisbury Beauty Schools v. State Bd. of Cosmetologists
...him to decide whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law.' See also Rooney v. Statewide Plumbing, supra. In reviewing the propriety of the granting of a summary judgment our concern is primarily with deciding whether a factual issue d......
-
Gross v. Sussex Inc.
...Salisbury Beauty Schools v. State Bd. of Cosmetologists, 268 Md. 32, 40, 300 A.2d 367, 373 (1973), quoting Rooney v. Statewide Plumbing, 265 Md. 559, 564, 290 A.2d 496, 498-499 (1972); Parklawn v. Nee, 243 Md. 249, 254, 220 A.2d 563, 566 (1966); Daniel v. Kensington Homes, Inc., 232 Md. 1, ......
-
Washington Homes, Inc. v. Interstate Land Development Co., Inc.
...their respective contentions by placing before the court facts which would be admissible in evidence. Rooney v. Statewide Plumbing, 265 Md. 559, 563-564, 290 A.2d 496 (1972); Shatzer v. Kenilworth Warehouses, 261 Md. 88, 95, 274 A.2d 95 (1971); Brown v. Suburban Cadillac, Inc., 260 Md. at 2......
-
Lynx, Inc. v. Ordnance Products, Inc.
...material fact must be one, the resolution of which will somehow affect the outcome of the case. Rooney v. Statewide Plumbing and Heating-Gen. Contractors, Inc., 265 Md. 559, 290 A.2d 496 (1972); Parklawn, Inc. v. Nee, 243 Md. 249, 220 A.2d 563 (1966). In connection with a ruling to be made ......