GREISER V. BROWN, 1984-NMCA-101, 102
N.M. 11, 690 P.2d 454 (Ct. App. 1984)
ARTHUR H. GREISER, Plaintiff-Appellant,
vs.
DOROTHY BROWN, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
1984-NMCA-101, 102 N.M. 11, 690 P.2d 454
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY, Bruce Kaufman, Judge
ANDRES S. VARGAS, Taos, New Mexico, SARAH
MICHAEL SINGLETON, SINGLETON LAW OFFICES, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellant.
DONALD D. MONTOYA, MONTOYA, MURPHY,
KAUFFMAN & GARCIA, Santa Fe, New Mexico, Attorneys for Defendant-Appellee.
BIVINS, J., wrote the opinion. WE CONCUR:
THOMAS A. DONNELLY, Chief Judge, JOE W. WOOD, Judge
{1} Plaintiff sued defendant
to recover damages for personal injuries resulting from a fall while plaintiff
was repairing the roof on defendant's building. Plaintiff appeals from a
summary judgment in defendant's favor claiming the existence of genuine issues
of material fact. We agree and reverse.
{2} In determining whether
genuine issues of fact exist, an appellate court gives the party opposing
summary judgment the benefit of all reasonable doubts.
Goodman v. Brock,
83 N.M. 789,
498 P.2d 676 (1972). We therefore examine the facts in that light.
{3} Plaintiff worked as a
handyman for defendant and her now-deceased husband from 1975 to 1977. During
that time he helped defendant and her husband with repairs to a large storage
building which they referred to as the "museum". These repairs
included putting on a roof. At the direction of Mr. Brown, plaintiff started
cutting off vigas which extended out from the north side of the building. After
cutting four or five vigas, plaintiff told Mr. Brown that "it didn't look very
good", so Mr. Brown told him not to cut any more and to "stick"
the ones he had cut back on. Mr. Brown said, "we'll fix them later at some
other date." Plaintiff reattached the cut vigas with nails and a rebar.
Defendant helped with the roofing and was present when the vigas were cut.
{4} Approximately five years
later in 1980 defendant contacted plaintiff to tell him the roof was leaking.
Plaintiff offered to fix the roof if defendant would purchase the
{*13} materials. According to plaintiff he was
to receive a small tract of land as compensation for repairing the roof.
Plaintiff had been working on the roof for two hours when the accident
occurred. Plaintiff describes what happened: "I was getting ready to start
a roll of paper on the northeast corner. * * * [I] [l]eaned over to start that
roll of paper, drive a nail in the side, and stepped on the viga to get my, a
little bracing while I drove a nail and down I went." Plaintiff placed
either his foot or knee on one of the vigas that had previously been cut and
reattached and it gave way.
{5} After the four or five
vigas had been cut and reattached, Mr. Brown had someone else attach boards
over the vigas to divert rain away from the wall. Although the vigas extended
beyond the boards, the boards prevented anyone on the roof from seeing the
seams where the vigas had been cut. Defendant knew that the cuts could not be
seen from the roof. Defendant did not warn plaintiff about this potential
danger, and plaintiff said he had forgotten about the vigas. He had not been on
the roof during the five years since the vigas were cut and reattached and had
not participated in putting the boards on the vigas.
{6} Although defendant
challenges plaintiff's status as an invitee, contending that he volunteered to
repair her roof without compensation, defendant concedes for the purpose of
appellate review plaintiff's status is immaterial. She argues that no material
issue of fact exists regardless of whether plaintiff acted as an invitee or a
licensee. Thus, status for the purpose of our review is not an issue.
Therefore, we limit our discussion, as have the parties, to the question of
whether a fact issue exists as to a breach of duty by the owner to her invitee.
{7} Both sides rely on NMSA
1978, UJI Civ. 13.10 (Repl. Pamp.1980) which provides:
Duty to business visitor; known or discoverable danger.
The [owner] [occupant] owes a duty to a business visitor,
with respect to known or obvious dangers, if, and only if:
(1) The [owner] [occupant] knows or has reason to know of a
dangerous condition on his premises involving an unreasonable risk of danger to
a business visitor; and
(2) The [owner] [occupant] should reasonably anticipate that
the business visitor will not discover or realize the danger [or the] [owner]
[occupant] should reasonably anticipate that harm will result to the business
visitor, even though the business visitor knows or has reason to know of the
danger.
If both of these conditions are found to exist, then the
[owner] [occupant] had a duty to take reasonable measures to protect the
business visitor from harm.
{8} The first condition
requires that there be a dangerous condition on the premises involving an
"unreasonable risk of danger". Defendant argues that the reattached
vigas did not involve an unreasonable risk of danger to plaintiff. She relies
on the following language from
Proctor v. Waxler, 84 N.M. 361,
503 P.2d
644 (1972), in which the supreme court approved for "slip and fall"
cases involving ice and snow the following quote from
Dawson v. Payless For
Drugs, 248 Or. 334, 433 P.2d 1019 (1967), (quoting 2 F. Harper and F.
James,
The Law of Torts § 27.13 at 1489-90 (1956)):
"People can hurt themselves on almost any condition of
the premises. That is certainly true of an ordinary flight of stairs. But it
takes more than this to make a condition unreasonably dangerous. If
people who are likely to encounter a condition may be expected to take
perfectly good care of themselves without further precautions, then the
condition is not unreasonably dangerous because the likelihood of harm is
slight."
{9} We are unable to say as a
matter of law that someone encountering the reattached vigas under the
circumstance here would be expected to take perfectly good care of themselves
without further precautions. While that portion of the vigas which extended
beyond the boards could be seen from the roof, the cuts were obscured by the
boards. Given the lapse of time since the vigas were reattached and the fact that
{*14} the danger was not visible from
above, a fact question exists as to whether the condition involved an
unreasonable risk of danger.
{10} The second condition of
UJI Civ. 13.10 requires a finding that the owner should reasonably anticipate
that the business visitor will not discover or realize the danger. Defendant
makes two arguments that this condition cannot be found to exist as a matter of
law.
{11} First, defendant
contends that because plaintiff cut and reattached the vigas, his knowledge of
the danger was at least equal to or probably greater than that of the
defendant. This argument might be valid had plaintiff remembered about the cut
vigas, or their condition at the time of the accident had not been obscured.
But here plaintiff claims that he forgot. An injured party's forgetfulness has
been held a question of fact in cases dealing with contributory negligence.
See
Williams v. City of Hobbs, 56 N.M. 733,
249 P.2d 765 (1952);
Johnson v.
City of Santa Fe, 35 N.M. 77,
290 P. 793 (1930). In
Johnson
defendant argued that actual knowledge by the injured party was equivalent to
or obviated the need to warn of a dangerous condition. In that case the
plaintiff, aware of excavation going on, fell into an open trench while on her
way to church. The supreme court held that whether plaintiff's preoccupation
with saying her prayers prevented her from perceiving the dangerous condition
presented a fact question as to her own negligence.
{12} Whether plaintiff's
knowledge of the danger was equal to or greater than defendant's in the present
case is a question of fact. While both knew of the cutting and reattaching of
the vigas back in 1974 or 1975, it was not unreasonable that plaintiff may have
forgotten about it during the five or more years that elapsed until his fall.
Further, the cuts had been partially obscured by the planking laid over the
vigas. We also note that a jury could believe that plaintiff understood that
Mr. Brown would fix the cut vigas more permanently at a later date. Finally,
defendant occupied the premises and would have more opportunity and reason to
be aware of the danger than plaintiff who had not been on the roof for five
years. Thus, absent undisputed evidence of a present awareness by plaintiff of
the danger, we cannot hold as a matter of law that defendant did not have a
duty to warn or take other reasonable precautions to protect the plaintiff from
harm.
{13} Our holding that
plaintiff's lapse of memory or failure to check the vigas does not as a matter
of law relieve defendant of her duty to warn or take precautions to protect him
from harm does not suggest that plaintiff himself was free from fault.
{14} Second, defendant claims
there was no way she could reasonably anticipate that plaintiff would venture
out on the vigas. The description given by plaintiff in his deposition,
photographs made a part of the record together with counsel's explanation at
oral argument reflect that the roof on the north side of the building where the
vigas in question were located dropped an inch-and-a-half to two inches and
that the roofing paper extended onto and covered the boards over the vigas. The
parapet walls were on the east and west sides of the building. Thus, if
plaintiff was nailing the paper to the boards over the vigas, it was reasonable
that his foot or knee would come into contact with the vigas. If this
description is not entirely accurate, still it would be within the range of
foreseeability that he might have to put his weight on a viga while laying the
paper near the edge of the roof.
{15} The range of
foreseeability is discussed in the case of
Tapia v. Panhandle Steel Erectors
Co., 78 N.M. 86,
428 P.2d 625 (1967) which is instructive on this point.
There the supreme court held that where a two-by-four placed by a defendant as
a spacer between concrete beams pulled loose when a workman took hold of it as
he
{*15} was moving up a ladder, the
workman's fall and resulting injury were not beyond the range of
foreseeability.
{16} For the reasons stated
we are unable to hold as a matter of law that defendant owed no duty or that
she did not breach that duty. Whether defendant performed her duty presents a
question to be determined by the fact finder.
{17} Summary judgment for
defendant is reversed and the case is remanded for trial on the merits.
Appellate costs shall be paid by defendant.
WE CONCUR: THOMAS A. DONNELLY, Chief Judge, JOE W. WOOD,
Judge