Wolff v. Light, No. 8359

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: KNUDSON; TEIGEN; STRUTZ
• Citation: 156 N.W.2d 175
• Decision Date: 09 February 1968
• Docket Number: No. 8359
• Parties: Ardel WOLFF, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiffs and Appellants, v. Dudly LIGHT, Defendant and Respondent.

Page 175

156 N.W.2d 175 Ardel WOLFF, Individually and as Trustee for the North
Dakota Workmen's Compensation Bureau, Plaintiffs
and Appellants,
v.
Dudly LIGHT, Defendant and Respondent. No. 8359. Supreme Court of North Dakota. Feb. 9, 1968.

Syllabus by the Court

1. Under N.D.R.Civ.P. Rule 56(c) the moving party is entitled to summary judgment if it appears that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

2. In cases involving issues of negligence, contributory negligence, assumption

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of risk and proximate cause, where the standard of the reasonable man must be applied to conflicting testimony, and even where there is no dispute as to the facts, where inferences may be reasonably drawn from the evidence that indicate the presence of a genuine issue of fact, summary judgment should not be granted, but these issues should be tried in the usual manner.

3. Under N.D.R.Civ.P. Rule 56 the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and the party opposing the motion will be given all favorable inferences which may reasonably be drawn from the evidence.

4. The intervening cause, to be a shield to defendant, must be such as to actually break all connection of cause and effect between the negligent act and the injury. To be a superseding cause it must alone, and without aid from the act of defendant, produce the injury, and to be a responsible cause it must be the culpable act of a responsible party.

5. Where the defendant drove his automobile into and shattered a plate glass window of a cafe, and a police officer, who was called to investigate the accident, attempted to remove a piece of the glass suspended from the top of the window, presumably to prevent the glass from causing injury to the people in the cafe and to others who might come into close proximity of the jagged piece of glass, and in so doing dislodged another piece of glass that was hidden from view, that fell, nearly severing his wrist, the questions of whether the defendant should have foreseen the consequences of his conduct, whether the conduct of the defendant was the proximate cause of the plaintiff's injuries, and whether the conduct of the plaintiff constituted contributory negligence, were questions of fact for a jury to determine.

Mackenzie & Jungroth, Jamestown, for plaintiffs and appellants.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for defendant and respondent.

KNUDSON, Judge (on reassignment).

The defendant stopped at the '94 Gas Station and Cafe' at Jamestown, North Dakota, to have his automobile serviced. He placed a book on the accelerator to keep the engine running. While the automobile was being serviced he and his family went into the cafe. Later he came out of the cafe to drive the automobile to the front of the cafe to pick up his family. In doing so the defendant drove the automobile into the plate glass window of the cafe. He said the accelerator stuck and he was unable to dislodge it with his foot. Although he applied the brakes, the automobile crept forward, striking the cafe window and shattering the plate glass.

The Jamestown Police Department, upon being notified of the accident, called the plaintiff, a police officer on duty, to investigate the accident. The plaintiff drove his squad car to the '94 Gas Station and Cafe.' As he went in to the cafe he observed the broken plate glass window and saw broken glass on the floor and near the stools and counter. There were several people in the cafe. The window was adjacent to the entrance and that part visible from the inside of the cafe was approximately five feet wide and four feet high. The plaintiff saw a jagged piece of glass hanging down from the top of the window. Plaintiff attempted to remove this piece of glass by pushing it outward. However, there was a section of plate glass covered by a plywood panel two or three feet in depth at the top of the window, which panel had the appearance of being a part of the wall. This section of plate glass was hidden from view from the inside the cafe. The plaintiff, in pushing out the piece of glass, loosened the section of glass behind the plywood panel and it fell, almost severing his right wrist.

The plaintiff brought this action on behalf of himself and the North Dakota Workmen's

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Compensation Bureau, from which he had received compensation for his injury under the Workmen's Compensation Act, against the defendant, alleging negligence on the part of the defendant as the proximate cause of his injuries. The defendant answered, denying his negligence, and further alleging that the complaint failed to state a cause of action and pleading the affirmative defense of contributory negligence.

The defendant moved for a summary judgment of dismissal of the action under Rule 56, North Dakota Rules of Civil Procedure, upon the pleadings and on the deposition of the plaintiff taken by the defendant. The plaintiff filed a written interrogatory of the defendant in resistance to the motion. There was before the court the pleadings, deposition, and interrogatory.

The district court granted the defendant's motion for summary judgment of dismissal, and from this judgment the plaintiff has appealed.

We will first consider whether this was a proper case for the entry of summary judgment.

Under N.D.R.Civ.P. Rule 56(c) the moving party is entitled to summary judgment if it appears that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Titus v. Titus, 154 N.W.2d 391 (N.D.1967); Verry v. Trenbeath, 148 N.W.2d 567 (N.D.1967); Lang v. General Motors Corporation, 136 N.W.2d 805 (N.D.1965); Fire Ass'n of Philadelphia v. Vantine Paint & Gl. Co. of Bismarck, 133 N.W.2d 426 (N.D.1965); Mondy v. Gjesdal, 123 N.W.2d 33 (N.D.1963); Heasley v. State, 115 N.W.2d 334 (N.D.1962).

A motion for summary judgment should be granted 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.' N.D.R.Civ.P. Rule 56(c).

Although the motion for summary judgment and for directed verdict are similar in that they are both made on the grounds that there is no genuine issue of material fact to be determined, and that on the law applicable the movant is entitled to judgment, there is a distinct difference in the handling of the motions by the court. The harshness of the motion for a directed verdict has been largely remedied in the Federal Courts by Fed.R.Civ.P. 50(b) which provides for an automatic reservation of decision on the motion for a directed verdict which permits a verdict to be taken and decision on the motion subsequently to be made.

The text writer discusses this matter in 6 Moore's Federal Practice (2nd ed.) at § 56.02(10), on page 2045, wherein he says:

The delay and waste that result from improper handling by the district court of the motion for summary judgment bears a certain resemblance to the delay and waste that formerly resulted from the improper handling of the motion for directed verdict, although this latter matter has been largely remedied by Rule 50(b). Live trials before the trier of the facts, who can observe the demeanor of the witnesses as they testify on both direct and cross-examination, should be had where there is any reasonable doubt as to the facts. And it is a perversion of justice if tremendous time and energy must be spent by a party resisting a motion for summary judgment either to convince the district court that the motion should be denied, or, where the district court has granted the motion, in obtaining a reversal. Here the time and effort have been spent only for the purpose of getting to trial.

Where the defendant's motion for directed verdict is sustained at the end of plaintiff's case the judge has at least heard testimony at a live trial, but if the trial court improperly sustains the motion reversal follows with its attendant delay and expense. Much the same comment

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applies where a verdict is actually directed at the close of the entire case. To remedy this evil, Rule 50(b) provides for an automatic reservation of decision on the motion for directed verdict made at the close of the entire case, which permits a verdict to be taken and decision on the motion subsequently to be made. But if the trial court errs in deciding this motion the appellate court need not remand for a new trial, if the provisions of Rule 50(b) have been properly followed in the district court.

The directed verdict technique has, therefore, been moulded so that a legal decision by the trial court can be obtained with a minimum of judicial waste. The summary judgment procedure on the other hand is productive of grave injustice or waste, or both, where judgment is improvidently granted. An improvident denial does not result in the delay and expense of an appeal although, of course, it usually means the waste that attends a needless trial.

Our Rules 50(a) and (b), relating to motions for directed verdict and judgment notwithstanding the verdict, are similar in context to the Federal Rule 50(b) and the discussion above is applicable to our rules.

In cases involving issues of negligence, contributory negligence, assumption of risk and proximate cause, where the standard of the reasonable man must be applied to conflicting testimony, and even where there is no dispute as to the facts, where inferences may be reasonably drawn from the evidence that indicate the presence of a genuine issue of fact, summary judgment should not be granted, but these issues should be tried in the usual manner.

Generally, issues of negligence, including such related issues as wanton or contributory negligence, are ordinarily not susceptible of summary adjudication either for or...