HOFFMAN, Presiding Judge.
Appellant Robert Law was making a service call at Yukon Delta, Inc., when he slipped and fell on the premises injuring himself. Law brought an action against Yukon Delta claiming negligent maintenance of the business premises. Yukon Delta submitted a motion for summary judgment which was granted by the trial court. Law appeals. |
On appeal Law raises three issues which have been consolidated for review:
(1) whether the trial court incorrectly based its decision to grant summary judgment for Yukon Delta on the "open and obvious" rule as discussed in Bemis Co., Inc. v. Rubush, (1981) Ind., 427 N.E.2d 1058; and
(2) whether the trial court erred in granting Yukon Delta's motion for summary judgment.
Summary judgment is properly granted only in those causes of action where there exists no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Middlekamp v. Hanewich, (1977) 173 Ind.App. 571, 364 N.E.2d 1024; Bailey et al. v. Beekman, (1977) 173 Ind.App. 154, 362 N.E.2d 1171. The movant has the burden of proving his right to have summary judgment granted in his favor. McKenna v. City of Fort Wayne, (1981) Ind.App., 429 N.E.2d 662; Wallace v. Indiana Ins. Co., (1981) Ind.App., 428 N.E.2d 1361. When determining whether to grant a motion for summary judgment or when reviewing a grant of summary judgment, the facts are viewed in a light most favorable to the opponent of the motion and all doubt is resolved in his favor. F.W. Means & Co. v. Carstens, (1981) Ind.App., 428 N.E.2d 251; Carrell v. Ellingwood, (1981) Ind.App., 423 N.E.2d 630. When reviewing the grant of a summary judgment, this Court must determine that no genuine issue of material fact exists and the law was correctly applied by the trial court. If both factors are met, the trial court's grant of summary judgment shall be upheld. Enderle v. Sharman, (1981) Ind.App., 422 N.E.2d 686.
Appellant first attacks the trial court's grant of summary judgment on the ground it misapplied the law. It is appel lant's contention that the trial court erroneously relied upon the decision of the Su[679]*679preme Court in Bemis Co., Inc. v. Rubush, supra, Ind., 427 N.E.2d 1058, in applying the "open and obvious danger" doctrine to the case at bar. Appellant argues the doctrine of "open and obvious danger" is applicable only in products liability actions based upon a theory of strict liability. However, Bemis provides some illuminating support for the contrary conclusion.
In Bemis, Justice Pivarnik, writing for the majority, stated:
"The open and obvious rule finds support in Indiana cases and cases decided in federal courts applying Indiana law in diversity. The rule may be stated generally as follows: In the area of products Hability, based upon negligence or based upon strict liability under § 402A of the Restatement (Second) of Torts, to impress lability upon manufacturers, the defect must be hidden and not normally observable, constituting a latent danger in the use of the product." (Emphasis added.) 427 N.E.2d at 1061.
Thus, consistent expansion of the principle as stated by Justice Pivarnik would entail application of the "open and obvious danger" rule in all negligence actions not merely those involving claims based upon products liability. The expansion of the rule in this manner is consistent for two reasons.
First, all negligence actions involve the same closed set of prima facie elements as a basis of recovery whether they sound in products liability or otherwise. Further, the "open and obvious danger" rule is a consistent and logical factor to consider when determining whether a person has acted in an ordinary and reasonable fashion. A person that engages in activity with the knowledge that he is exposing himself to an open and obvious danger can hardly be regarded reasonable or prudent. Therefore, the trial court did not err in relying on this rule as a ground for granting Yukon Delta's motion for summary judgment.
Next, appellant argues the trial court erred in granting Yukon Delta's motion for summary judgment because there existed material issues of fact. It is appellant's contention that the evidence before the trial court gave rise to conflicting inferences, thus barring the grant of summary judgment. Intertwined with this argument is appellant's ancillary contention that the trial court erred in concluding that he was contributorily negligent and assumed the risk of slipping and falling.
One need look no further than appel lant's own deposition to find ample evidence which rebuts this argument. In his deposition Law admits he was aware that the floor was wet and assumed that it was slippery because it was constructed of concrete. After walking a short distance Law was certain the floor was slippery.
The area in which the incident occurred contained numerous work benches and many boat shells in various stages of completion. The area was well lit and Law had no difficulty seeing where he was walking. Yukon Delta employees were working in the area.
Law asked no one for assistance in charting a safe route through this obstacle course. Instead, Law forged ahead and decided to proceed cautiously only upon belatedly determining that he was in a precarious position. Law could have attempted to take a drier, safer course or could have asked an employee for aid in navigating a safer route, but failed to do so.
Law claims to have been surprised to find himself standing in a puddle of water. However, he admits he knew the floor was wet and slippery. He further stated there were boat shells stacked all over the area requiring him to watch where he walked. If Law was in fact carefully watching where he walked, he should not have been surprised to find his path taking him through a puddle on a floor he knew to be wet. If Law was truly surprised to find himself standing in a puddle of water, then he was not watching where he was walking, as he should have been while traversing this obstacle course. Law's conduct hardly exemplifies that of an ordinary, reasonable, and cautious man under the circumstances.
[680]*680Summary judgment is rarely a proper method of disposition in actions based upon claims of negligence. Stapinski v. Walsh Const. Co., Inc., (1979) 272 Ind. 6, 395 N.E.2d 1251; Bassett v. Glock, (1977) 174 Ind.App. 439, 368 N.E.2d 18. However, where the facts are undisputed and support only one conclusion, that being, the claimant was contributorily negligent, then such a finding may be entered as a matter of law. Pontious v. Littleton, (1970) 146 Ind.App. 369, 255 N.E.2d 684.
Free access — add to your briefcase to read the full text and ask questions with AI
HOFFMAN, Presiding Judge.
Appellant Robert Law was making a service call at Yukon Delta, Inc., when he slipped and fell on the premises injuring himself. Law brought an action against Yukon Delta claiming negligent maintenance of the business premises. Yukon Delta submitted a motion for summary judgment which was granted by the trial court. Law appeals. |
On appeal Law raises three issues which have been consolidated for review:
(1) whether the trial court incorrectly based its decision to grant summary judgment for Yukon Delta on the "open and obvious" rule as discussed in Bemis Co., Inc. v. Rubush, (1981) Ind., 427 N.E.2d 1058; and
(2) whether the trial court erred in granting Yukon Delta's motion for summary judgment.
Summary judgment is properly granted only in those causes of action where there exists no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Middlekamp v. Hanewich, (1977) 173 Ind.App. 571, 364 N.E.2d 1024; Bailey et al. v. Beekman, (1977) 173 Ind.App. 154, 362 N.E.2d 1171. The movant has the burden of proving his right to have summary judgment granted in his favor. McKenna v. City of Fort Wayne, (1981) Ind.App., 429 N.E.2d 662; Wallace v. Indiana Ins. Co., (1981) Ind.App., 428 N.E.2d 1361. When determining whether to grant a motion for summary judgment or when reviewing a grant of summary judgment, the facts are viewed in a light most favorable to the opponent of the motion and all doubt is resolved in his favor. F.W. Means & Co. v. Carstens, (1981) Ind.App., 428 N.E.2d 251; Carrell v. Ellingwood, (1981) Ind.App., 423 N.E.2d 630. When reviewing the grant of a summary judgment, this Court must determine that no genuine issue of material fact exists and the law was correctly applied by the trial court. If both factors are met, the trial court's grant of summary judgment shall be upheld. Enderle v. Sharman, (1981) Ind.App., 422 N.E.2d 686.
Appellant first attacks the trial court's grant of summary judgment on the ground it misapplied the law. It is appel lant's contention that the trial court erroneously relied upon the decision of the Su[679]*679preme Court in Bemis Co., Inc. v. Rubush, supra, Ind., 427 N.E.2d 1058, in applying the "open and obvious danger" doctrine to the case at bar. Appellant argues the doctrine of "open and obvious danger" is applicable only in products liability actions based upon a theory of strict liability. However, Bemis provides some illuminating support for the contrary conclusion.
In Bemis, Justice Pivarnik, writing for the majority, stated:
"The open and obvious rule finds support in Indiana cases and cases decided in federal courts applying Indiana law in diversity. The rule may be stated generally as follows: In the area of products Hability, based upon negligence or based upon strict liability under § 402A of the Restatement (Second) of Torts, to impress lability upon manufacturers, the defect must be hidden and not normally observable, constituting a latent danger in the use of the product." (Emphasis added.) 427 N.E.2d at 1061.
Thus, consistent expansion of the principle as stated by Justice Pivarnik would entail application of the "open and obvious danger" rule in all negligence actions not merely those involving claims based upon products liability. The expansion of the rule in this manner is consistent for two reasons.
First, all negligence actions involve the same closed set of prima facie elements as a basis of recovery whether they sound in products liability or otherwise. Further, the "open and obvious danger" rule is a consistent and logical factor to consider when determining whether a person has acted in an ordinary and reasonable fashion. A person that engages in activity with the knowledge that he is exposing himself to an open and obvious danger can hardly be regarded reasonable or prudent. Therefore, the trial court did not err in relying on this rule as a ground for granting Yukon Delta's motion for summary judgment.
Next, appellant argues the trial court erred in granting Yukon Delta's motion for summary judgment because there existed material issues of fact. It is appellant's contention that the evidence before the trial court gave rise to conflicting inferences, thus barring the grant of summary judgment. Intertwined with this argument is appellant's ancillary contention that the trial court erred in concluding that he was contributorily negligent and assumed the risk of slipping and falling.
One need look no further than appel lant's own deposition to find ample evidence which rebuts this argument. In his deposition Law admits he was aware that the floor was wet and assumed that it was slippery because it was constructed of concrete. After walking a short distance Law was certain the floor was slippery.
The area in which the incident occurred contained numerous work benches and many boat shells in various stages of completion. The area was well lit and Law had no difficulty seeing where he was walking. Yukon Delta employees were working in the area.
Law asked no one for assistance in charting a safe route through this obstacle course. Instead, Law forged ahead and decided to proceed cautiously only upon belatedly determining that he was in a precarious position. Law could have attempted to take a drier, safer course or could have asked an employee for aid in navigating a safer route, but failed to do so.
Law claims to have been surprised to find himself standing in a puddle of water. However, he admits he knew the floor was wet and slippery. He further stated there were boat shells stacked all over the area requiring him to watch where he walked. If Law was in fact carefully watching where he walked, he should not have been surprised to find his path taking him through a puddle on a floor he knew to be wet. If Law was truly surprised to find himself standing in a puddle of water, then he was not watching where he was walking, as he should have been while traversing this obstacle course. Law's conduct hardly exemplifies that of an ordinary, reasonable, and cautious man under the circumstances.
[680]*680Summary judgment is rarely a proper method of disposition in actions based upon claims of negligence. Stapinski v. Walsh Const. Co., Inc., (1979) 272 Ind. 6, 395 N.E.2d 1251; Bassett v. Glock, (1977) 174 Ind.App. 439, 368 N.E.2d 18. However, where the facts are undisputed and support only one conclusion, that being, the claimant was contributorily negligent, then such a finding may be entered as a matter of law. Pontious v. Littleton, (1970) 146 Ind.App. 369, 255 N.E.2d 684. As there are no degrees of negligence recognized in Indiana, once a claimant is found to be contributorily negligent, his right of recovery is cut off. Huey v. Milligan, (1961) 242 Ind. 93, 175 N.E.2d 698.
Knowledge and appreciation of peril are essential elements of contributory negligence. Rouch v. Bisig, (1970) 147 Ind.App. 142, 258 N.E.2d 883. Likewise, the doctrine of assumed risk may defeat a claimant's action where he voluntarily undertakes a risk of which he has knowledge. Petroski v. NIPSCO, (1976) 171 Ind.App. 14, 354 N.E.2d 736.
In the case at bar the facts as supplied by appellant's deposition are undisputed. Law was aware of the "open and obvious danger" of the slippery wet floor immediately upon entering Yukon Delta's premises. Nonetheless, Law proceeded ahead without attempting to avail himself of any precautionary measures. Thus, the facts clearly indicate Law was contributorily negligent and assumed the risk. Inasmuch as the undisputed facts support a defense which defeats Law's claim, the trial court's grant of summary judgment was proper. For these reasons the decision of the trial court is affirmed.
Affirmed.
YOUNG, J., participating by designation, concurs.
STATON, J., dissents with opinion.