Pya/Monarch, Inc. v. Higley

Blackburn, Judge,

concurring specially.

Although I believe issues of fact remain regarding whether Monarch had surrendered complete control of the premises to Hennigh, I specially concur in the judgment reached by the majority as the only evidence in the record indicates that the plaintiff was not exercising ordinary care for his own safety. I also cannot agree with the majority’s conclusions in Division 2, but again because the plaintiff’s lack of care for his own safety precludes his recovery, I specially concur in the majority’s judgment.

Lee Madison Goza deposed that as he let one end of a fence post fall to the ground (the other end of the post was already on the ground), the plaintiff “all of a sudden . . . came out beside me and I guess he was going so fast that he couldn’t stop. . . . Instead of just trying [to] catch the post or something, he tried to get under the post. He hunkered down like this . . . , and got under the post and then it hit him on top of the head.” My review of the record revealed no evidence contradicting this testimony. Under these circumstances, the defendants’ motions for summary judgment should have been granted.