Heffernan v. Reinhold ( 2002 )

WILLIAM H. CRANDALL, JR., Presiding Judge,

concurring in part and dissenting in part.

I concur in the majority opinion, which affirms summary judgment in favor of Reinhold and the Dawidowskis. I am unable to join in the majority opinion regarding Mastodon Meadows Homeowners Association, and Rambo.

The majority states that the pivotal question is whether a twelve-foot deep and fifteen-foot wide ditch is an open and obvious condition as a matter of law. I believe, however, that we need to narrow the inquiry. Certainly the size of the ditch was open and obvious, but that was not the danger. The dangerous condition, herein, was the propensity for the ditch to collapse without proper shoring. I believe that whether that condition was open and obvious is a question of fact for the jury, thus precluding summary judgment.

As to Ray Heffernan’s statement, “This is crazy. This looks dangerous,” I cannot conclude, as a matter of law that means that he realized the danger of a collapse. It is more reasonable to conclude that Heffernan would not have gone in the ditch if he thought it would collapse. I believe, at the very least, Heffernan’s appreciation of the specific danger in question is a jury question.

As to Rambo, whether he had superior knowledge and thus owed a duty to Hef-fernan is, I believe, a jury question.

For the reasons stated, I concur in part and dissent in part.