Opinion
Nov. 4, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Sidney Biderman, Howard E. Willner, Denver, for plaintiff in error.
Goss & Gleason, Douglas K. Goss, Denver, for defendant in error.
PIERCE, Judge.
Plaintiff in error (plaintiff) seeks reversal of the trial court's summary judgment in favor of defendant in error (defendant) in an action for personal injuries in which plaintiff alleged that defendant negligently allowed a trailer hitch to remain installed on a pickup truck which caused him injury when he struck his leg on it while walking between that truck and another vehicle, both of which were parked on a private driveway, in darkness. Defendant admitted the existence of the hitch, but generally denied all other allegations in the complaint. He also set up the affirmative defenses of plaintiff's sole or contributory negligence, assumption of risk, and lack of foreseeability.
After submission of affidavits, interrogatories and answers thereto, and other documentary evidence, defendant moved for summary judgment, which the trial court granted, ruling that '* * * even assuming that everything pleaded by the plaintiff (could) be proven and is accepted * * * as (fact), in reviewing the pleadings, the depositions, the affidavits and attachments thereto, * * * the defendant could not be found guilty as a matter of law (and) the Court would be forced to take the case away from the jury * * *.'
On appeal, plaintiff argues that there were disputed issues requiring the case to be heard by a jury, which he had demanded. We do not agree.
While summary judgment is a drastic remedy, warranted only when there is no genuine issue as to material fact, (Ridgewood Mobile Homes Park, Inc. v. Alameda Water & Sanitation District, 159 Colo. 178, 410 P.2d 641) the evidence before the court in the instant case clearly showed no genuine issue of fact.
Evidence showed as follows: Defendant's pickup truck had installed upon it a 'U' type trailer hitch. This type hitch operates with a pin and cotter key instead of a 'ball' and is very common on vehicles throughout rural America where they are frequently used to pull trailers or farm machinery having tongues of varying heights from the ground. The truck was parked on a driveway leading to a house at which defendant was visiting. When plaintiff arrived to visit at this same house, he stepped from his car and walked partially up the driveway, then crossed between the back of defendant's pickup truck and the front of another vehicle parked some three to four feet behind it. While so crossing, he struck his leg on defendant's trailer hitch, which extended no more than five inches beyond defendant's bumper.
Although these facts present a question of negligence to the court, 'where the facts are undisputed and reasonable minds can draw but one inference from them,' the question of 'reasonable care' is one of law. Hilzer v. MacDonald, Colo., 454 P.2d 928. We hold the facts in this case make the question of 'reasonable care' a matter of law, and that the trial court committed no error in granting summary judgment.
The standard of care to which a defendant in a negligence action is held is that of a reasonably prudent person under the same or similar circumstances. He is not negligent unless he deviates from that standard and his deviating results in injury to a plaintiff. Roessler v. O'Brien, 119 Colo. 222, 201 P.2d 901.
We hold that under the circumstances of this case, the installation by the defendant of a common truck accessory such as a trailer hitch, cannot be considered an act of negligence which he, as a reasonably prudent man, could foresee would bring about harm to the plaintiff. Our position is clearly stated in McMillan v. Hammond, 158 Colo. 40, 404 P.2d 549, in which the Colorado Supreme Court stated, in quoting from W. Prosser, Law of Torts, 165 (2d ed.):
'The culpability of the actor's conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward 'with wisdom borne of the event.' The standard must be one of conduct rather than of consequences. It is not enough that everyone can see now that the risk was great, if it was not apparent when the conduct occurred * * *. No man can be expected to guard against events which are not reasonably to be anticipated, or are so unlikely that the risk would commonly be disregarded * * *.'
Judgment is affirmed.
DWYER and ENOCH, JJ., concur.