Auxier v. Auxier

Judge JONES

concurring in part and dissenting in part.

I respectfully dissent as to Parts I and II because I believe that the trial court properly entered summary judgment in this matter. I concur with Part III.

Summary judgment is warranted only upon a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). Once the movant shows that genuine issues are absent, the burden shifts to the opposing party to demonstrate a true factual controversy. In the absence of a demonstrated controversy, summary judgment is proper. Heller v. First National Bank, 657 P.2d 992 (Colo.App.1982). Thus, the question before this court is whether either party has demonstrated the existence of any factual controversy that would render summary judgment inappropriate. I believe they have not.

I.

To recover on his claim of negligence, plaintiff must establish the existence of a legal duty and a breach of a duty on the part of defendant.

The parties stipulated that plaintiff was not an employee of defendant at the time of his fall in September 1988. Therefore, the defendant’s applicable duty of care to plaintiff is the general legal standard of care enunciated in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971). Such duty of care is to “act as a reasonable [person] in view of the probability of injury to others.”

In Mile High, the court held that a fence company could foresee or, by the exercise of reasonable care, should have foreseen, the probability that someone using an alley might inadvertently deviate from the alley, step into a post hole, and incur injury. I believe that plaintiff’s reliance on this holding to demonstrate that defendant has breached a duty of care is not analogous to the facts at hand.

The roof of a house under construction is not a place upon which someone might inadvertently stumble. Thus, I consider defendant’s duty as a reasonable property owner to be to guard against foreseeable injuries to those persons having some foreseeable reason to be on top of the roof. The only persons who would foreseeably be on the roof, under such circumstances, are construction workers, such as plaintiff, who would be aware of the dangers inherently associated with a roof under construction. And, I note that the pleadings are devoid of any evidence of any dangerous condition on the roof other than what would normally be foreseeably associated with a roof under construction.

As well, because the affidavits do not reveal that plaintiff fell from tripping on any dangerous condition which existed on the roof, such as staples or protruding pieces of wood, I conclude that plaintiff did not meet his burden to show genuine issues as to material facts.

Thus, I perceive no genuine factual issue that could support a conclusion that defendant has breached his duty of reasonable care to plaintiff. Accordingly, in my view, summary judgment was properly entered, as a matter of law, against plaintiff on his claim of negligence. Churchey v. Adolph Coors, Co., supra.

II.

In order to prevail on his claim of res ipsa loquitur, plaintiff must first demonstrate that: “The event is the kind which ordinarily does not occur in the absence of negligence.” Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo.1980).

The pleadings, as noted, and matters submitted in support of plaintiffs motion, fail to demonstrate any evidence that defendant was negligent in the construction of the roof. Furthermore, I believe that plaintiff’s reliance on defendant’s admission that “unless you trip on something, there is no reason to fall off a roof,” does not establish the existence of negligent roof construction. This statement merely demonstrates the obvious fact that it may be possible to trip on materials normally used in the construction of a roof and fall off.

Thus, I conclude that no genuine issue of fact exists as to the first element of plaintiff’s claim of res ipsa loquitur, and accordingly, such claim was properly disposed of by summary judgment. See Churchey v. Adolph Coors, Co., supra.

Therefore, I would affirm the summary judgment entered against plaintiff.