Opinion
Feb. 17, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Williams, Taussig & Trine, William A. Trine, Boulder, for plaintiff in error.
Weller, Friedrich & Hickisch, Michael E. Oldham, Denver, for defendants in error.
ENOCH, Judge.
This case originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as in the trial court and will be referred to as plaintiff and defendants.
Plaintiff seeks reversal of an order of the District Court granting defendants a summary judgment.
Plaintiff sued the defendants for damages resulting for personal injuries caused by the alleged negligence of defendants. The defendants filed an answer denying all of the material allegations of plaintiff's complaint. The defendants further pled the affirmative defenses of contributory negligence and assumption of risk. The defendants then took the deposition of the plaintiff and subsequently moved for a summary judgment which was granted. Neither side submitted any affidavits.
The alleged facts indicate that plaintiff, an insurance agent, went to the business office of the defendants in the Crossroads Shopping Center in Boulder, Colorado on or about May 3, 1966. Plaintiff initiated the visit to make inquiries concerning the possibility of renting booth space in the shopping center from which he would advertise and make contacts for his insurance business.
Following directions to defendants' office from an unknown party, the plaintiff passed through a doorway from the outside and walked about 75 feet on a walkway 4 feet in width to the defendants' office door. This walkway was under roof, with a wall along one side and on the other side of the walkway were occasional support pillars running from the walkway to the ceiling. On the other side of the pillars was a step down of about 12 inches to the floor of an interior truck loading dock. It was a bright sunny day just before noon when plaintiff entered upon the walkway and proceeded to the defendants' office without incident. After about a 15 minute conference in the office, plaintiff left the office and proceeded back on the same walkway. As he left the office door and turned to walk out, he observed a truck in the loading dock area, that it was on a lower level than the walk he was on and that the large doors to the loading dock area were open. As plaintiff proceeded along the walk toward the pedestrian door which was adjacent to and parallel with the truck loading dock doors, a man unloading the truck in the dock called to the plaintiff. In response to the call, plaintiff turned his body partially back toward the direction of the truck to respond and at that moment stepped off the walk and fell to the floor of the loading dock. Plaintiff was injured in the fall.
After a detailed analysis of the plaintiff's complaint and plaintiff's deposition, we concur with the trial court. The complaint describes a 'narrow walkway'--'which walkway was partially obstructed by large pillars'. Plaintiff testified to a 4 foot unobstructed walkway that was clean and clear of any obstruction. The complaint alleges plaintiff 'slipped from the edge of the walkway'. In his deposition, plaintiff denied slipping, but said he stepped off. The complaint alleges that the walkway and the dock and loading platform were 'dimly lit', inferring at least that due to the bright sun light outside and the 'dimly lit' area inside, the plaintiff could not see the walkway or the loading dock level. This is also refuted by plaintiff in his deposition when he said, 'Oh, it was light enough to see' * * * 'I could see the walk.' Summarizing his testimony on pages 38 and 39 of the deposition, the plaintiff said that upon leaving the office he saw the truck, saw that it was at a lower level than the walkway and he could and did see the drop down from the walkway to the loading dock level.
Though the complaint may have sufficiently stated a claim, the plaintiff, by his own deposition, repudiated all of the alleged material facts and circumstances upon which any finding of negligence could have been based.
The law is clear as quoted by plaintiff that summary judgment is a drastic remedy and is never warranted except on clear showing that there is no genuine issue as to any material fact. However, we agree with the trial court's findings that here 'there is no genuine issue as to any material fact' and 'that the condition of the defendants' premises, of which plaintiff complains, does not pose an appreciable risk of harm to the plaintiff.'
As was stated in Kinney, Inc. v. Paul Hardeman, Inc., 151 Colo. 571, 379 P.2d 628:
'R.C.P. Rule 56 permits a motion for a summary judgment with or without supporting affidavits. And 'judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Here no counter affidavit was filed to indicate any genuine issue as to a material fact, and the affidavit and depositions clearly disclosed that plaintiff's complaint could not be sustained; thus as a matter of law the summary judgment was proper.'
'The purpose of a motion for summary judgment is to save litigants the expense and time connected with a trial when, as a matter of law based upon admitted facts, one of the parties could not prevail.'
In the case of Field v. Sisters of Mercy, 126 Colo. 1, 245 P.2d 1157, the court affirmed the trial court and approved the procedure of granting a summary judgment in a trip and fall case upon the basis of the testimony in the plaintiff's deposition.
The trial court should be very cautious in granting a summary judgment on the complaint and deposition of the plaintiff. However, R.C.P. Rule 56 permits this prodedure and we feel it was properly applied in the circumstances of this case.
Judgment affirmed.
DUFFORD, J., concurs.
DWYER, J., dissents.
DWYER, Judge (dissenting).
The pleadings raised issues of negligence, contributory negligence and assumption of risk. These were issues of fact and, in my opinion, genuine issues. The issues should have been resolved on trial and not on motion for summary judgment.