Webster v. Sill

675 P.2d 1170, 1983 Utah LEXIS 1233
CourtUtah Supreme Court
DecidedDecember 13, 1983
Docket18415
StatusPublished
Cited by71 cases

This text of 675 P.2d 1170 (Webster v. Sill) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Webster v. Sill, 675 P.2d 1170, 1983 Utah LEXIS 1233 (Utah 1983).

Opinions

STEWART, Justice:

The plaintiff, John Webster, appeals a summary judgment granted the defendants. The plaintiff entered into an agreement with his landlord, the defendant, Diana Sill, whereby he would be allowed a $25 monthly rent reduction for watering and mowing the lawn around the apartment. Sill offered the use of a manual push mower, but because it was in need of repair, the plaintiff obtained a power mower from his father and used that mower three or four times without mishap prior to the accident giving rise to this action.

On July 17, 1980, the plaintiff again mowed the lawn. When he came to an inclined section, one which he had previously mowed by going horizontally along the face of the slope, he began to mow the slope in a vertical fashion. On his second time down the slope, he slipped, caught his foot under the mower casing, and was injured when the mower blade severed his big toe.

One week later the plaintiff learned that Sill or her agent had watered the lawn on [1172]*1172the day of the accident. Subsequently, he filed this suit alleging that Sill, by watering the lawn, had created a dangerous and slippery condition on the lawn which caused his accident. The trial court granted summary judgment against the plaintiff.

A major purpose of summary judgment is to allow the parties to pierce the pleadings to determine whether there is a genuine issue of fact. To raise a genuine issue of fact, an affidavit must do more than reflect the affiant’s opinions and conclusions. Walker v. Rocky Mountain Recreation, 29 Utah 2d 274, 508 P.2d 538 (1973). The affidavit must “set forth specific facts” showing there is a genuine issue for trial. Utah R.Civ.P. 56(e). The mere assertion that an issue of fact exists without a proper evidentiary foundation to support that assertion is insufficient to preclude the granting of a summary judgment motion. Leininger v. Stearns Roger Mfg., 17 Utah 2d 37, 404 P.2d 33 (1965); Foster v. Steed, 19 Utah 2d 435, 432 P.2d 60 (1967).

Under Rule 56(e) of the Utah Rules of Civil Procedure, summary judgment shall be rendered if the record demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Doubts or uncertainties concerning issues of fact properly presented, or the nature of inferences to be drawn from the facts, are to be construed in a light favorable to the party opposing the summary judgment. Bowen v. Riverton City, Utah, 656 P.2d 434 (1982); Durham v. Margetts, Utah, 571 P.2d 1332 (1977). In negligence cases, summary judgment is appropriate in only the most clear instances. FMA Acceptance Co. v. Leatherby Insurance Co., Utah, 594 P.2d 1332 (1979).

On deposition, the plaintiff testified that when he started to mow, he was unaware that the grass was wet or damp. When asked what caused the injury he responded: “I couldn’t understand how I slipped.” He first concluded that the grass was wet and slippery only after he had spoken to Mike Sill and Mike Davis seven or eight days after the accident. They told the plaintiff that the grass had been watered the day of the accident. On the basis of the plaintiff’s deposition testimony, Sill moved for summary judgment on the ground that the plaintiff’s own admission established that there was no genuine issue of fact as to whether a dangerous condition existed which caused the accident.

After the deposition, the plaintiff filed an affidavit that impliedly, if not directly, contradicted a critical part of his deposition. Plaintiff argues on appeal that his affidavit created an issue of fact as to the element of causation. The affidavit states:

That on or about the 17th day of July, 1980, MIKE DAVIS or some other person acting as the agent of DIANA SILL intruded upon the responsibility and duty of the plaintiff and without his knowledge-sprinkled a part of the lawn so that the lawn became wet and slippery and said persons negligently left the lawn in a slippery, wet, unsafe condition for mowing, which negligence resulted, on the 17th day of July, 1980, in the injury to the plaintiff in that the plaintiff slipped on the wet, slippery grass ....

In ruling on a motion for summary judgment, a trial court may consider, together with the affidavits filed, “the pleadings, depositions, answers to interrogatories, and admissions on file.” Utah R.Civ.P. 56(c). A single sworn statement is sufficient to create an issue of fact. Barnes Co. v. Sohio Natural Resources Co., Utah, 627 P.2d 56, 59 (1981). Clearly, it is not for a court to weigh the evidence or assess credibility. Id.

As a matter of general evidence law, a deposition is generally a more reliable means of ascertaining the truth than an affidavit, since a deponent is subject to cross-examination and an affiant is not. 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice § 56.11[4] at 56-277 (1983). That does not mean, however, that in summary judgment proceedings, a deposition should be accorded greater weight than an affidavit. The purpose of summary judgment is not to weigh the evidence. But when a party takes a clear position in a deposition, that is not modified on cross-ex-[1173]*1173animation, he may not thereafter raise an issue of fact by his own affidavit which contradicts his deposition, unless he can provide an explanation of the discrepancy. Smith v. Ashley, 29 Ill.App.3d 932, 332 N.E.2d 32 (1975); Gaboury v. Ireland Road Grace Brethren, Inc., Ind., 446 N.E.2d 1310 (1983); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983); Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975); Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.1969). A contrary rule would undermine the utility of summary judgment as a means for screening out sham issues of fact. Gaboury v. Ireland Road Grace Brethren, Inc., supra; Mays v. Ciba-Geigy Corp., supra.

The rule that a moving party may not rely upon his own affidavit which contradicts his deposition must be administered with care. It is common knowledge that witnesses sometimes misstate themselves, may not properly understand the question propounded, or give equivocal answers.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kelso v. Applington
548 P.3d 363 (Idaho Supreme Court, 2024)
Beauty Lab and Laser v. Jelosek
2023 UT App 139 (Court of Appeals of Utah, 2023)
Dierl v. Birkin
2023 UT App 6 (Court of Appeals of Utah, 2023)
Hansen and Mecham Investments v. Hansen
2022 UT App 17 (Court of Appeals of Utah, 2022)
Christiansen v. Silverbrand
497 P.3d 1155 (Court of Appeals of Kansas, 2021)
Bryant v. State
2021 UT App 30 (Court of Appeals of Utah, 2021)
Luna v. Luna
2020 UT 63 (Utah Supreme Court, 2020)
Luna v. Luna
2019 UT App 57 (Court of Appeals of Utah, 2019)
Anderton v. Boren
2017 UT App 232 (Court of Appeals of Utah, 2017)
Mower v. Moyer
2017 UT App 188 (Court of Appeals of Utah, 2017)
Mower v. Simpson
2017 UT App 23 (Court of Appeals of Utah, 2017)
Heslop v. Bear River Mutual Insurance Co.
2017 UT 5 (Utah Supreme Court, 2017)
Bresee v. Barton
2016 UT App 220 (Court of Appeals of Utah, 2016)
Lugo Montalvo v. Sol Meliá Vacation Club
194 P.R. Dec. 209 (Supreme Court of Puerto Rico, 2015)
Fowler v. Mark McDougal & Associates
2015 UT App 194 (Court of Appeals of Utah, 2015)
Willey v. Bugden
2013 UT App 297 (Court of Appeals of Utah, 2013)
Portfolio Recovery Associates, LLC v. Migliore
2013 UT App 255 (Court of Appeals of Utah, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
675 P.2d 1170, 1983 Utah LEXIS 1233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webster-v-sill-utah-1983.