Hicks v. Kollar Construction ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PAUL EDDIE HICKS,
3 Plaintiff-Appellant,
4 vs. NO. 31,740
5 KOLLAR CONSTRUCTION, INC.,
6 a New Mexico Corporation, and MARK
7 KOLLAR, individually and d/b/a KOLLAR
8 CONSTRUCTION COMPANY, and
9 KOLLAR ENTERPRISES; DARYL R. HARRELL
10 and SUE B. HARRELL, his wife,
11 Defendants-Appellees.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Theodore C. Baca, District Judge
14 Behles Law Firm, P.C.
15 Eric N. Ortiz
16 Deborah Moore
17 Jennie Deden Behles
18 Albuquerque, NM
19 for Appellants
20 Madison, Harbour & Mroz, P.A.
21 Michael J. Dekleva
22 Jacqueline Olexy
1 Albuquerque, NM
2 for Appellees
3 MEMORANDUM OPINION
4 GARCIA, Judge.
5 Plaintiff appeals from a district court order granting Defendant Susan B.
6 Harrell’s motion for summary judgment. We issued a calendar notice proposing to
7 affirm. Plaintiff has filed a memorandum in opposition. We affirm.
8 “Summary judgment is appropriate where there are no genuine issues of
9 material fact and the movant is entitled to judgment as a matter of law.” Self v. United
10 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review
11 these legal questions de novo.” Id.
12 In this case, there is no dispute that Defendant Harrell hired Defendant Kollar
13 Construction to paint her house. [MIO 1] Plaintiff, working for Kollar, was assigned
14 the work and was injured when he fell off a ladder. [MIO 1-2] Plaintiff sued
15 Defendant Harrell under a premises liability theory, and asserted that she (by way of
16 her boyfriend) exercised a sufficient degree of control over the work that a separate
17 duty of care was created. [RP 1] The central claim by Plaintiff related to the
18 imposition of this additional duty by way of a “right to control” analysis. However,
19 even if we assume that Defendant exercised a sufficient degree of control to satisfy
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1 this test, “[p]laintiff must also show that his injury was proximately caused by the
2 owner's failure to exercise that control in a reasonable manner, that the owner knew
3 or by the exercise of reasonable care should have discovered the dangerous condition,
4 that such hazard involved an unreasonable risk of harm to plaintiff, and the landowner
5 should have expected that the employee would not discover or realize the danger[.]”
6 Requarth v. Brophy, 111 N.M. 51, 54-55, 801 P.2d 121, 124-25 (Ct. App. 1990).
7 In our calendar notice, we noted that it was undisputed that Defendant Kollar
8 instructed Plaintiff to retrieve a Kollar Construction ladder from the back of his truck
9 for use in the painting work. [RP 62-63] Plaintiff’s complaint alleged that he fell
10 because this ladder “was either defective or in a poor state of repair and thereby
11 defective and the ladder simply broke and gave way.” [RP 2, ¶ 4.] Plaintiff appears
12 to be trying to impose liability by showing that Defendant exercised control by
13 requiring the use of a brush, necessitating the use of a ladder. However, there is
14 nothing inherently negligent in requesting that a home be painted by brush, and we
15 proposed to hold that Defendant was not required to inspect the soundness of the
16 Kollar tools used to perform that job. Also, contrary to Plaintiff’s contentions, there
17 is nothing unusual or inherently dangerous in the type of method employed here that
18 would by itself raise questions of negligence. To the extent that Plaintiff believed that
19 the ground was uneven, or that the height of the ladder was not sufficient, these were
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1 risks that Plaintiff knew about at the time, and therefore these facts did not satisfy the
2 test for liability (lack of disclosure) set forth above.
3 Accordingly, we affirm the district court.
4 IT IS SO ORDERED.
5 _______________________________
6 TIMOTHY L. GARCIA, Judge
7 WE CONCUR:
8
9 JAMES J. WECHSLER, Judge
10
11 RODERICK T. KENNEDY, Judge
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