Vosbeck v. Lerdall, 36548

• Decision Date: 24 June 1955
• Docket Number: No. 36548,36548
• Citation: 245 Minn. 164,72 N.W.2d 371
• Parties: Florence VOSBECK, Appellant, v. F. A. LERDALL, Respondent.
• Court: Minnesota Supreme Court

Page 371

72 N.W.2d 371

245 Minn. 164

Florence VOSBECK, Appellant, v. F. A. LERDALL, Respondent.

No. 36548.

Supreme Court of Minnesota.

June 24, 1955.

Syllabus by the Court.

1. In negligence action, where lack of an issue is clearly indicated on motion for summary judgment under Rule 56 of Rules of Civil Procedure, motion must be granted where there is no showing by opposing party pursuant to Rule 56.06 that essential facts indicating an issue cannot be presented at that time by affidavit or otherwise.

2. Rule 56.06 was not intended to permit withholding of evidence until trial or to authorize delays in hope that material issues might develop. Where there is no attempt to comply with it, motion for summary judgment must be disposed of on pleadings, affidavits, and depositions before the court at the hearing thereon.

3. Ordinance No. 110, § 604(8), of the city of Mankato, requiring handrails on certain stairways, considered in conjunction with § 104(6) and § 600(3) of such ordinance and Held to be inapplicable to buildings constructed prior to its passage.

4. Judd v. Landin, 211 Minn. 465, 1 N.W.2d 861, considered and distinguished.

5. While absence of handrail on ordinary stairway is not indicative of the lack of reasonable care by the landlord, where it is alleged that a common stairway was 'steep and dangerous' and not provided with such a handrail, there may be issue of fact as to whether landlord's failure to provide such handrail constituted lack of ordinary care under common-law principles.

6. Although tenant may be familiar with defective condition of common stairway which tenant is compelled to use, this fact would not establish that tenant's use thereof constituted contributory negligence or assumption of risk as matter of law unless defect was obviously so dangerous that a reasonably prudent person would consider such use to be foolhardy.

The judgment appealed from is reversed.

Blethen, Ogle & Gage, Mankato, for appellant.

Gallagher, Farrish, Sheran & Zimmerman, Mankato, for respondent.

THOMAS GALLAGHER, Justice.

Florence Vosbeck brings action against defendant F. A. Lerdall for injuries sustained by her December 24, 1952, as a result of a fall down a common stairway on defendant's premises wherein she was a tenant. The complaint alleged defendant's negligence in failing to install handrails on the stairway 'which was steep and dangerous' and in allowing it to fall into disrepair. On July 9, 1954, the trial court made its order granting summary judgment dismissing the action on the basis of plaintiff's deposition taken prior to trial pursuant to Rule 27.01 of Rules of Civil Procedure. This is an appeal from such judgment.

In her deposition plaintiff testified that she had occupied an apartment on the third floor of defendant's premises for two or three years prior to the accident; that several times daily in going to and from her apartment during said period she had used the stairway involved which connected the second and third floors of the building; that it was comprised of two series of eight steps each, with a landing and a turn between; that at the time of the accident it was adequately lighted and in good condition; that there was no debris, nothing slippery, and no defects thereon; that as she approached it to descend, both her arms were filled with a number of packages she was about to deliver as Christmas gifts; that as she stepped off the top step, she fell but did not know what caused her to fall; that immediately she dropped her packages and reached out to grasp anything that would check her fall, but there being nothing there; and that she fell to the first landing sustaining the injuries for which this action was instituted.

When asked what she thought defendant had done or failed to do which caused her to fall, she replied:

'* * * I thought * * * if there had been a railing there when I reached out, there would be something * * * to take a hold of, I could probably have stopped it, * * * you once start falling you have to have something to take hold of to stop it.'

Asked if there was anything else that would have any connection with the accident--anything the owner should or should not have done--she replied: 'I couldn't think of anything.' She testified that there were no witnesses who could add to her testimony and that her brother who had examined the stairway the day following the accident found nothing which could have caused the fall.

The deposition establishes that plaintiff relies exclusively on defendant's failure to provide handrails as the basis for her action. Ordinance No. 110, § 604(8), of the city of Mankato, effective June 10, 1948, intended to regulate 'the construction, alteration, equipment, repair, or removal of building,' provides that stairs less that 44 inches in width in such buildings shall have handrails on at least one side, and if wider, then on both sides. It was stipulated that the building in which the accident occurred was constructed prior to the enactment of this ordinance and that since its adoption no pertinent construction, alteration, modification, or repair has been undertaken therein.

It is plaintiff's contention that she is within the class for whose benefit the ordinance was enacted; that it is remedial in nature and applicable to building equipment; and that hence defendant was obligated to comply with its terms, notwithstanding his building had been constructed prior to its adoption. She asserts further that, even if the ordinance be deemed inapplicable, her allegation that the stairway was steep and dangerous and that defendant had failed to provide a handrail therefor would support a finding under common-law principles that he had failed to exercise reasonable care and that this issue was not adversely determined by her deposition.

At the hearing on the motion for summary judgment, no further evidence was submitted; no suggestion was made that evidence could be produced which would support a claim of negligence other than that relating to defendant's failure to provide handrails; and no continuance was sought for the purpose of producing such evidence by deposition or otherwise as provided by Rule 56.06 of Rules of Civil Procedure. It is plaintiff's contention that on the record at that time no burden then rested upon her to take any such measure.

1. We have recently held that issues of negligence are not subject to summary adjudication unless material facts are undisputed and, as a matter of law, compel but one conclusion. Sauter v. Sauter Minn., 70 N.W.2d 351; Lindgren v. Sparks, 239 Minn. 222, 58 N.W.2d 317; 6 Moore, Federal Practice (2 ed.) par. 5617(42); Wright, Minnesota Rules, p. 331. Where on motion for summary judgment lack of an issue is indicated, the motion must be granted unless the opposing party satisfies the court that there is a triable issue, Appolonio v. Baxter, 6 Cir., 217 F.2d 267; Surkin v. Charteris, 5 Cir., 197 F.2d 77, or, in compliance with Rule 56.06, establishes by affidavit that essential facts indicating such an issue and justifying his position cannot be presented by affidavit or otherwise at that time. Some indication should then be given the court as to the proof to be submitted thereon and as to the steps undertaken to procure it.

2. Rule 56.06 was not intended to permit the withholding of evidence until trial, Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469, or to authorize delays in the hope that material issues might later be arised for such results would substantially destroy the efficacy thereof. Dyer v. MacDougall, 2 Cir., 201 F.2d 265; Orvis v. Brickman, 90 U.S.App.D.C. 266, 196 F.2d 762; Radio City Music Hall Corp. v. United States, 2 Cir., 135 F.2d 715. Where there has been no attempt to comply with it, the disposition of the motion for summary judgment must be determined on the pleadings, affidavits, and depositions before the court at the hearing thereon. Marion County Coop. Ass'n v. Carnation Co., 8 Cir., 214 F.2d 557; Foster v. General Motors Corp., 7 Cir., 191 F.2d 907, certiorari denied, 343 U.S. 906, 72 S.Ct. 634, 96 L.Ed. 1324, rehearing denied, 343 U.S. 937, 72 S.Ct. 768, 96 L.Ed. 1344.

3. Here, by reason of plaintiff's deposition, only one of the complaint's allegations as to defendant's...